Security Theater and Racial Profiling

Twitching through the Boston airport security line

I squinted. I gave a “cold penetrating stare.” I tried “wide open flashbulb eyes,” then a “trance-like gaze.”  I panted.  I turned my head excessively. I fidgeted excessively. I turned my head while fidgeting.  I stood in a “rigid posture with minimal body movements and arms close to sides.”

Until the man behind me leaned over and asked that I please keep moving forward in the security line.

Fine. That was pretty much the entire suspicious activity list anyway, from the New Jersey Office of Homeland Security’s Terrorism Awareness and Prevention. Moving on to the American Public Transportation Association’s Identifying Suspicious Behavior in Mass Transit Recommended Practice, I rubbed my hands.  I paced a bit when a space opened up between me and the person in front of me in line.  I repetitively touched my face.  I continuously scanned the area.  I tried “aggressively biting nails.”  Then I engaged in some “exaggerated yawning.”  I blinked as rapidly as I could, John McCain style.  I cleared my throat excessively.

Still no dice.  My attempts to get noticed by the Behavioral Detection Officer (BDO) at Boston Logan Airport was not producing any results.  Could it be because I’m of East Asian descent and not wearing a head scarf? Noooooo, can’t be – these BDOs are highly trained in the science of microfacial detection and other, um, behavioral detection techniques.

The BDO himself was easy to spot: he was the TSA officer who, rather than calling out instructions about liquids and gels or opening a new line to check ID’s, was gazing out at us in the airport’s security line. He had the look of a bored person trying not to look bored. He did not look my way.

As reported in the NYTimes this week, the TSA’s behavior detection program designed to suss out would-be terrorists seems to have become instead an exercise in rampant racial profiling. A series of complaints to TSA officials alleged that Behavior Detection Officers (BDOs) who have been trained in the dubious science of spotting unconscious body cues indicative of deception and terrorist intent were in fact making shit up in order to make arrests that had nothing to do with airline security.

The complaints that made the NYTimes take notice came not from the thousands of people who are repeatedly pulled out for additional screening, but from 32 of the federal officers giving the order to please step out at Boston’s Logan International Airport.

What’s a BDO?

The BDOs at Logan Airport – and the 3,000 other BDOs working at 161 other airports to the tune of $212 million a year – are part of the TSA’s cleverly acronymed SPOT (Screening of Passengers by Observational Techniques) program.  TSA’s SPOT program developed after 9/11 to catch terrorists while they stood in the security line. Rolled out in 2003, the program was expanded in 2007 to include BDOs trained to spot “indicators” of intent to cause harm.

After four years of not catching any terrorists, TSA changed SPOT’s mission to include detection of any criminal activity or illegal presence.

The 32 BDOs in Logan complained to TSA that there is a de facto quota system in place which encourages BDOs to screen people whose referral to law enforcement could lead to an arrest.  The pressure to produce arrests has resulted in the BDOs looking for “Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward.”

It’s not a new allegation.  An internal TSA report dated January 25, 2010 noted that a subset of BDO’s at Newark International Airport had become known as “the great Mexican hunters” by their colleagues.  After the NJ Star-Ledger got a copy of the report and asked whether BDO’s were, in fact, fabricating numbers in order to refer Mexicans and Dominicans to law enforcement, TSA spokesman Lisa Farbstein issued the standard denial:  “TSA does not profile passengers on the basis of race, ethnicity or religion.”

In fact, according to the official line, the “SPOT Program was specifically designed to use behavioral criteria indicative of an individual possibly engaged in criminal and/or terrorist activity — race, ethnicity or religion are not considered.”   Rather than racially or ethnically profiling passengers, then, BDOs were trained to look for people doing things on a list of “behavioral and appearance indicators,” each with a point value, add up the points, and refer for additional screening if it adds up to a certain number.  If, during this additional screening the person racks up more points, law enforcement is called in.  The list of indicators being used is a tightly guarded secret.

A few months later, the GAO released its exceedingly kindly titled Aviation Security: Efforts to Validate TSA’s Passenger Screening Behavior Detection Program Underway, but Opportunities Exist to Strengthen Validation and Address Operational Challenges.  The GAO gently pointed out that not only had SPOT failed to spot any of the instances where people were in fact seeking to do harm on an airplane, but the entire program is unvalidated and most probably a load of crap.

The House Committee on Science, Space, and Technology jumped into the fray in April 2011 with a hearing on Behavioral Science and Security: Evaluating TSA’s SPOT Program.  The transcript is fun to read – and I don’t say that about all Congressional hearings.  TSA refused to attend.  The Chairman, Representative Paul Broun, Tea Party member from Georgia, was clearly not impressed by SPOT’s anticipated outlay of $1.2 billion over the next five years.  Larry Willis, head of DHS’s Advanced Research Projects Agency, adamantly insisted the BDOs are “specifically trained not to consider ethnicity or race-and or other traits that are not associated with behavior.”    And what are they trained to consider? Sorry, that’s secret.

One of the testifiers was Paul Ekman.  If you’ve read Malcolm Gladwell’s Blink or watched the TV show Lie to Me, then you know Ekman’s work.   He developed the ‘facial action coding system’ that is the basis for TSA’s SPOT program.  His testimony was challenged by John Jay professor Maria Hartwig, who apparently thinks Ekman’s “science” of “microfacial expressions” is hogwash, as she made clear in Nature magazine’s Intent to Deceive: Can the Science of Deception Detection Help to Catch Terrorists?

Has airport theatre become a cover for racial and ethnic profiling?

Researchers at George Mason University recently confirmed that public approval for the use of racial/ethnic profiling by police in the criminal justice has dropped. Simultaneously, however, support has increased for the use of racial/ethnic profiling to prevent terrorism.   What the SPOT program seems to be doing is using the public’s approval of (or rather, acquiescence to) airport screening as a cover for unconstitutional racial profiling.

When the TSA changed the SPOT program’s mission from airline security to criminal or illegal activity of any kind, it was aligning policy to practice.  During the four years preceding the GAO report, the SPOT program resulted in 1,083 arrests.  Of these, 39% were people in the country illegally and another 15% were carrying fraudulent documents of some kind.  19% were arrested on outstanding warrants, 12% were in possession of drugs, 1% held undeclared currency, and 12% were arrested on other grounds.  To repeat, underline and put in bold: there were no BDO referred arrests for anything having to do with airline safety.

As Cato Institute fellow Julian Sanchez pointed out in TSA Profiling, Security Theater, and the Fourth Amendment, metal detectors and screenings are permitted under a “special needs” exemption to the reasonable suspicion requirement, but it’s a no-no for the government to use this exemption in the course of regular law enforcement activity – enforcing the criminal law around drug possession, for example.   A stop and search that is a result of racial profiling is unconstitutional because using someone’s race as the sole or primary indicator of criminal activity is unreasonable, and thus prohibited by the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons…against unreasonable searches and seizures.”   Conducting such a search in an airport security line rather than on a New York City street does not make the officer’s actions constitutional.

Security expert Bruce Schneier refers to security measures that make people feel more secure without doing anything to actually improve their security as “security theater.”   The term is damning, but the effect is real.  Taking off our shoes and walking through a metal detector actually makes people feel safer, regardless of its actual effectiveness.   But under the SPOT program, is this security theatre becoming a cover for racial and ethnic profiling?

Put a different way, is the pantomime of taking off our shoes distracting us from the fact that SPOT appears to be systematically racially profiling not only people perceived to be Muslims, but also young African Americans to look for drugs, and Latinos to look for undocumented immigrants?

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2 thoughts on “Security Theater and Racial Profiling

  1. fisher1949 says:

    What part of profiling being illegal doesn’t Pistole understand? He and TSA think they can search passenger computers, phones and checkbooks when every other agency is required to have a search warrant in advance? This demonstrates that Pistole is unfit to head a dog pound, much less TSA.

    There have been three TSA profiling scandals in this program in a year. The first was at Newark airport in June 2011 (AOL Travel – 6/15/11) and another that TSA covered up in Honolulu after employees there complained that BDO’s were deliberately harassing Latinos (Huffington Post – Jennifer Sinco Kelleher – 12/1/11). TSA excused itself finding no profiling (Fox News – 4/13/12) and even promoted one of those accused (KITV – Keoki Kerr – 12/2/11).

    Representative Bennie Thompson (D-Miss.) called for TSA to suspend the program in November 2011 (Washington Post – Joe Davidson – 11/28/11) and now another incident identical to the one in Hawaii occurs in Boston.

    How many incidents of flagrant illegal conduct does TSA have to commit before it is replaced? The agency has defied Congress and a court order to test the scanners (NY Daily News 8/12/12), they lied to Congress about owning $184 million of unused equipment stored in Dallas and caught trying to destroy it before GAO arrived (Bloomberg 5/9/12) and failed to report security breaches at Newark to conceal the failures from headquarters (CNN Aaron Cooper 5/15/12).

    In the past two months 35 TSA workers fired or arrested and 66 more disciplined for misconduct. Two more were arrested in the past week for theft from passengers and assault with a handgun. A known pedophile, Thomas Harkins, was exposed two months ago but remains employed as a TSA Supervisor in Philadelphia (CBS 3 Philadelphia 5/24/12).

    There were a total of 97 TSA workers arrested in the past 20 months including 12 arrested for child sex crimes, over 26 for theft, 12 for smuggling contraband through security and one for murder. In July a drunken lead TSO, Milagros Casanas, was arrested for beating a woman and trying to steal her cell phone in Key West and Robert Don Jensen was charged with felony terrorizing, assault, and ingestion of a controlled substance. This month two more screeners were indicted for drug smuggling through security.

    TSA needs to be dismantled and replaced by an agency that understands airport security and the law. Pistole needs to be indicted for criminal malfeasance for this violation of basic human and civil rights.

    The failure of elected officials to reform this agency permits these abuses to occur and ultimately puts the lives of passengers and crew at risk.

  2. KungLi says:

    fisher, thanks for the additional info about the TSA, especially the Bloomberg story from May 9 (and extra points for including attributions!) – do you have a recommendation for the most comprehensive & reliable blog bird-dogging the TSA?

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