Mr. Vice-President and Members of the Commission:
I appreciate the opportunity to make a statement before you today on behalf of the American Civil Liberties Union (ACLU) about proposals to increase airport security. The ACLU is a nation-wide, non-partisan organization of more than 275,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights.
The analysis must begin with acceptance of one premise: air travel must be safe. Nobody believes this more strongly than I, or more strongly than does the ACLU. Our employees and members tend to fly more often than does the general public. Nobody -- least of all our members - wants to feel that to set foot on an airplane or in an airport is to take a substantial risk. I want my wife to know that when she sees me off at the gate, she'll see me back home in one piece.
To the credit of many in the airline industry, including members of the Commission and of other organizations making statements to the Commission, air travel is in fact the safest form of travel today. That does not mean that it cannot be safer.
Nor does it mean that civil liberties must be sacrificed to make air travel safer. Three basic principles would serve to help focus airport security efforts on actually improving safety, instead of on measures that would infringe on civil liberties but not enhance safety, should be considered:
First, passengers should not be detained, questioned and searched as if they are potential criminals, unless there are specific facts that indicate that they may commit a criminal act.
Second, no passenger should be singled out on the basis of their perceived or actual race, religion, national origin, gender, sexual orientation or political opinion.
Third, passengers not legitimately under suspicion should not have to fear that their private effects and private lives will be held up to public scrutiny, or that personal data about them will be made accessible to others without their fully-informed, and genuinely non-coerced consent.
Let the Commission adopt this as the Golden Rule of airline security: at the airport ticket counter, passengers check only their luggage, not their rights to personal security, privacy, and equality.
The Fourth Amendment demands no less. And assuring safety requires no more.
The Fourth Amendment provides that people, their property, their papers and their homes shall be not be subjected to unreasonable searches and seizures. It requires that warrants issued to support a search or seizure must be based upon probable cause of criminality. The Fourth Amendment is the cornerstone to protecting personal privacy in the United States.
Judicial gloss on the Fourth Amendment has created a sliding scale: when there is no suspicion of criminality, no intrusion will satisfy its requirements; as evidence of criminality increases, progressively more intrusive investigation is warranted. For example, the Supreme Court has held that when a police officer has only a "reasonable articulable suspicion" of criminality, but not probable cause, the police officer cannot conduct a full search of a person, but can stop the person and conduct a limited pat down, but only to ensure his own safety.
The airport is not a "no-privacy zone." The Fourth Amendment is fully applicable. People have an expectation of privacy in the contents of their baggage, in their own persons, and in the personal information about them.
They also have an expectation of safety, but they will not be safe if people are targeted for searches based on incorrect criteria instead of evidence.
Applying these principles, the ACLU is alarmed at some of the proposals being suggested in an apparent, but perhaps ineffective, attempt it increase airline security.
One proposal would be to "profile" passengers and subject only those who "fit the profile" of a terrorist to heightened security measures. These measures include increased questioning; scanning of their luggage with sophisticated technology; or using such technologies to peer under their clothing and project detailed body images in a search for contraband, explosives, or weapons.
Reduced to its essentials, a "profile" is a stereotype. It is a proxy for real evidence, but a profile is not a legitimate substitute for real evidence. It is rather a speculative means of predicting conduct - in this case, criminal conduct - based on characteristics which individually do not suggest criminality.
From a civil liberties perspective, profiles are notoriously over broad. Profiling violates the first principle I identified above: it permits treatment of passengers as potential criminals in the absence of facts specific to them that suggest they are likely to engage in criminal activity.
From a security perspective, profiles are notoriously under inclusive. Those who do not "fit the profile" are given only cursory attention, or no attention at all. Yigal Amir, the man who assassinated Israeli Prime Minister Rabin, did not fit the "profile" of a "terrorist" and was therefore allowed unwarranted access to the Prime Minister. Similarly, what "terrorist" profile would have picked up the seminary student returning to his studies from a visit to his mother who was detained by law enforcement officers in Florida last week when he tried to board an airplane with an assortment of weapons that included hand grenades?
We believe that profiles offend both the Constitution and the goal of safety. Use of profiles marks a dramatic departure from the Fourth Amendment principle that a person should not be subjected to invasive investigative techniques without a criminal predicate or probable cause that is particularized to that person. Profiling also distracts airline personnel, who instead of observing whether a person is acting in a potentially criminal manner, are trying to determine whether the person fits the profile.
In short, instead of training security personnel to determine whether a passenger fits a pre-conceived stereotype of what a "terrorist" is, security personnel should be trained to recognize an individual's specific activity that creates a reasonable, articulable suspicion of possible criminality that warrants further inquiry. Anything less than that is founded not on Fourth Amendment principles, but on nothing more than a stereotype.
The use of such stereotypes may temporarily make people feel safer, but they will not actually increase safety and may instead decrease safety. The use of stereotypes that violate the rights of innocent people while allowing criminals to filter through are not an acceptable solution to this problem.
The most offensive profiles are those that are based on characteristics a person cannot change, or should not be forced by the government to change, and which have no causal relationship to terrorist activity: race, religion, national origin, gender, sexual orientation, or political opinion. Profiles based on these characteristics violate the first and second principles identified above: they treat potential passengers as criminals in the absence of specific evidence of individual criminality, and they treat passengers unequally.
Protected characteristics such as race should never be part of a profile used to determine whom (or whose luggage) will be subjected to heightened security measures in an airport. It is akin to using race to decide which cars to stop in a search for drugs. Such discrimination cannot be excused merely by citing the financial difficulty or slow pace of treating everybody equally. Nor will such discrimination enhance safety. Professional terrorists will employ measures to defeat whatever profile is in use, by, for example, appearing one day as a seminary student, and the next as who knows what.
Profiling does more than subject those who fit the profile to harmless delay. On February 1, 1991, an American of Middle Eastern origin boarded a plane in Miami bound for New York. Just before the plane took off, agents of the airline escorted Mr. Ghonoudian from the plane in the full view of other passengers, detained and questioned him for three hours (often in a rude and hostile tone) demanded to know the name of his mother, where he was born, where he had stayed on the earlier portion of his trip, his employer, and how long he had lived in the United States. They forced him to miss his plane, ordered him to remove his jacket and shoes, and conducted a hand search of his entire body, including his crotch and buttocks. One airline agent admitted that Mr. Ghonoudian was forced to leave the plane because he "fit the profile" of a "terrorist."
On April 19, 1995, the day of the bombing in Oklahoma City, Abraham Ahmad boarded a plane in Oklahoma City bound for Chicago, en route to visit his family in Jordan. He was detained by the government in Chicago, then later in London and in Virginia. Over three days he was questioned repeatedly for prolonged periods of time and with hostility, and was made to answer questions about his religious practices, his friends and his family. At various times, he was handcuffed, paraded through the airport for all to see and fingerprinted. He was strip searched. His identity was made available to the media and his wife fled the family home when the media descended upon it and people began driving by shouting curses and throwing trash. He, too, was innocent of wrongdoing, and the victim of a stereotype.
Profiles tend to turn up the same "usual suspects" time and time again. Their characteristics that triggered the heightened security measures often do not change. The usual suspects, though, aren't usually guilty. Those who travel often but are not criminals should be able to get out from under the heightened security measures when it is clear they are not a security risk. Will they be compelled to appear before the 1990's equivalent of the House Unamerican Affairs Committee to attempt to prove their loyalty and trustworthiness?
Another proposal is the creation of a massive data base of potential air passengers that would include identifying information (a picture, description, fingerprint, DNA sample, or PIN number), address, flying patterns with a particular airline, bill paying at a particular address, criminal records and other information. This, and information gleaned from observing the persons with whom the passenger was traveling, would be fed into a computer data base that would be used to decide whether the passenger "fits the profile" and should be subjected to heightened security measures. Under this proposal, the checked luggage of people selected by the computer would be scanned by new sophisticated scanning devices. The checked luggage of other passengers would not be scanned because to do so is regarded as too expensive.
This proposal is even further removed from the Fourth Amendment principle of individualized suspicion. A computer would decide who would board without further scrutiny, and who (or whose luggage) would not. Computerizing the stereotype makes it even more objectionable. The proposal violates the principles of privacy and individualized determinations of potential criminality described above; if the computer program uses race or another protected characteristic to identify those whose persons or effects would be subjected to heightened security measures, the proposal would have the dubious distinction of violating all three principles identified above.
Nor would such computer-generated profiles be likely to enhance safety. There is no substitute for evidence as a basis for suspicion. A preferable alternative would be to X-ray all luggage. When safety is a concern, time and money should not be barriers.
The ACLU has never challenged the use of X-ray machines to scan carry-on luggage in the airports, and the courts have upheld the practice. Nor has the ACLU challenged use of dogs to sniff luggage in an airport. We have, however, challenged discriminatory use of heightened security measures, such as subjecting to the X-ray machine only the luggage of those who fit a profile based not on evidence, but in part on a protected characteristic. The proposed luggage scanners are arguably even more intrusive than an X-ray scan because they would provide more detail about the contents of luggage than would an X-ray scan.
Even more importantly, a huge new government data base, full of personal information about travelers and accessible to airline ticket issuers and security personnel, would be created. The risks to privacy are enormous. The risks run not only to those who "fit the profile." For this system to be useful, it must apply to every person who might take a flight, i.e., to everybody. A new government file on everyone would have to be created, computerized, and made accessible to airline personnel.
In addition, for the system to be useful, it would have to be linked to other data bases and constantly updated. Each time a person changes their address or takes another flight, or does anything related to the characteristics about them in the computer, the government would track it. All of our experience with the creation and updating of such ever-changing data bases teaches us that the likelihood of inaccuracy at any given moment is high. Such inaccuracy would lead to both a breach of safety and to violations of the rights of innocent people. This proposal is a quick fix that won't fix anything.
We are alarmed at the notion that the answer to airline security is the creation of a new national government data base with a new file on every traveler and potential traveler. This proposal, if adopted by the President, would be the fifth national data base, either centralized or created by means of linking universal identifier, he has endorsed. Already, the President has endorsed: (1) a national worker data base for all persons newly-hired, for immigration enforcement purposes; (2) a national worker data base to track absentee parents who are not paying child support; (3) a national patient computerization scheme linked by an identifier used to track health care treatment of every person in the U.S.; and (4) a national data base of so-called sex offenders.
The proposal may violate a central principle of the Privacy Act: information given the government for one purpose ought not be used for other purposes without the consent of the person to whom it pertains. The use of criminal records in such a data base, particularly where those records include arrests that do not result in convictions, is particularly troubling.
Every person who has ever had difficulty in clearing an inaccuracy in their credit record knows that this system will be a nightmare, that characteristics pertaining to others will somehow find their way into the file about them, and that when this happens, it will be virtually impossible to "correct" the file.
New technologies promise that soon, scanners able to detect guns, plastic explosives and contraband will have the power to penetrate clothing and project an image of the both the body of the person they are searching, and the object for which they search.
Again, a Fourth Amendment analysis is in order. The courts have consistently held that a magnetometer examination is a search for Fourth Amendment purposes. Body scanners are far more intrusive, and we expect the courts to have no trouble in concluding that these "cameras" conduct an intrusive search for Fourth Amendment purposes.
One could also expect that this technology will only improve. Machines capable of projecting a clear image of a person's body under their clothing already exist. They will only become capable of producing a sharper image, and will likely be reduced in size so they can be more readily used in more contexts.
If there is ever a place where a person has a reasonable expectation of privacy, it is under their clothing. We Americans have all kinds of private things there, including medications we do not want others to know we are taking, catheter tubes and bags, evidence of mastectomies, penile implant devices, and artificial limbs, to mention only a few. We expect that we will not be required to show these to others as a condition to boarding an airplane.
Moreover, people generally regard searches of their persons as more intrusive than searches of their belongings. The level of discomfort is simply higher.
This level of discomfort increases when the search "results" (i.e. an outline of a person's naked body) are projected on a screen for others to see -- much as the outline of luggage contents are projected on screens in airports today for all to see. A far less objectionable alternative would be a device that acts like a magnetometer, and beeps when a person passes though with a suspicious substance.
For all of these reasons, we urge the Commission to reject proposals that body scanners capable of projecting an image of a person's naked body be employed to clear airline passengers not otherwise under legitimate suspicion.
Air safety improvements that actually enhance safety need not come at the expense of civil liberties.
-- Security personnel should be trained to identify tangible evidence giving rise to a reasonable, articulable suspicion of criminal activity. Such evidence includes the making of a patently false statement or the use of a fictitious name the person using it cannot even remember. Security personnel should not be trained to stereotype based on protected characteristics.
-- Airline personnel and the employees of air security vendors should be carefully screened in accordance with their constitutional rights, and use of temporary employees in positions where they might pose a security threat should be carefully limited.
-- Access to the secure areas of an airport, such as the tarmac, should be strictly controlled so that only authorized employees can go there.
-- Those authorized employees should be trained about what to do if an apparently unauthorized person is found where they do not belong.
-- More measures to enforce security standards at foreign airports should be taken.
-- An entity to which lax airline security procedures can be reported should be established so that when a passenger identifies a problem, they can be assured that it will be examined by a neutral third party, instead of by the airline.
-- Luggage matching, which assures that no checked luggage is put on the airplane unless the person who checks it also gets on the plane, should be required. This practice, common in some foreign airports, would ensure that a criminal does not place a bomb in checked luggage, then walk away from the airport or board a different flight to escape.
At the same time, the civil liberties of air passengers should be preserved:
-- Airline security plans, all of which must be approved by the Federal Aviation Administration, should be required to include a complete bar to using actual or perceived race, religion, national origin, gender, sexual orientation or political opinion as an element in any profile or other scheme used to identify which passengers (or which passengers' luggage) are to subjected to heightened security measures.
-- An administrative mechanism should be established to receive complaints of discriminatory or other inappropriate security screening, and the mechanism should supplement, not supplant, existing court remedies.
-- Complaints of inappropriate, discriminatory, or overly intrusive security screening measures should be tracked and reported -- like on-time performance is -- so that passengers know which airlines and which security vendors are committing security-related abuses.
-- No new passenger data base, mandated by the federal government and accessible to airline employees should be established, and no computer empowered to decide who is a potential criminal and who is not.
-- Absent facts giving rise to probable cause of criminality, no device capable of projecting an image of a person's naked body should be used to look under a person's clothing for contraband, weapons or explosives.
-- Those charged with conducting security should be trained to minimize the privacy intrusion of security measures taken.
At the ticket counter, air passengers check their luggage, not their rights to personal security, equality and privacy. We urge you to accept this as the Golden Rule of airline security. We urge you to insist that any policy or procedure recommended to you be of demonstrable effectiveness and be the least intrusive means of securing the benefits it purports to offer.
We also ask that you be mindful that the security system adopted for airports today will likely be imposed in other arenas tomorrow. Just as magnetometers and X-ray machines have found their ways into government buildings, banks and schools, so may the enhanced security measures the Commission may recommend.
Thank you very much. I would be happy to respond to any questions you might have.
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