RE: Conference on H.R. 3150, the "Secure Transportation for America Act," and S. 1447, the "Aviation Security Act"
Dear Conferee:
We urge you to protect civil liberties in the conference report on the two air security measures that are before you: HR 3150, the "Secure Transportation for America Act," (the "House bill") and S 1447, the "Aviation Security Act" (the "Senate bill"). Like all Americans, we support efforts to ensure air travel safety, but we remain convinced that we need not sacrifice our civil liberties to guarantee safety in the air.
We ask Congress to use a three-prong analysis to promote safety and to reduce the likelihood that new security measures would violate civil liberties. First, any new security proposals must be genuinely effective, rather than creating a false sense of security. Second, security measures should be implemented in a non-discriminatory manner. Travelers should not be subjected to intrusive searches or questioning based on race, ethnic origin or religion. Finally, if a security measure is determined to be genuinely effective, the government should work to ensure that implementation of it minimizes its cost to our fundamental freedoms, including the rights to travel, due process, privacy and equality.
Based on these principles, the ACLU supports provisions in the pending aviation security bills including limits on the number of carry on bags, matching all baggage with passengers, increased training for airport security personnel, strict control of secured areas of airports, and fortification of cockpit doors.
There are several provisions, however, we urge Congress to carefully consider as it moves forward on this legislation.
The Department of Transportation should maintain oversight of air security personnel.
Section 102 of the Senate bill would put airport security screeners under the jurisdiction of the Department of Justice (DOJ). The House bill leaves security screening with the Department of Transportation (DOT) where it belongs. The ACLU takes no position as to whether security screeners should be employees of the federal government. Screeners, however, should be supervised (or employed) by the Department of Transportation, not the Department of Justice. Conceivably, administrative searches at airports would provide law enforcement officials and air security personnel with a pretext to search each and every passenger for information and items that have nothing to do with airport security. Congress should make it clear that air security screeners' authority should be limited to the enforcement of air security laws.
The Department of Justice itself agrees that DOT is the appropriate agency to oversee air security screeners. Assistant Attorney General Bryant wrote to Chairman Young last week, "In light of DOT's strong capabilities and DOJ's many responsibilities in fighting the war on terrorism, we feel that our resources would be better spent carrying out our current mission than developing a new transportation infrastructure and expertise." (Letter from Assistant Attorney General Daniel J. Bryant to Chairman Don Young, dated October 29, 2001.)
Recommendation: The Conferees should reject provisions that move the oversight of air security personnel to the Department of Justice and should clearly limit the authority of air security personnel to the enforcement of air security regulations.
Trained Federal air marshals and airline personnel should not be granted immunity from actions that deter violations of passengers' constitutional rights.
Section 110 of the House bill would provide immunity from damages in federal or state court arising out of the acts of any individual who "in attempting to thwart an act of criminal violence or piracy on an aircraft if that individual in good faith believed that such an act of criminal violence or piracy was occurring or was about to occur." This provision apparently immunizes all individuals, even air marshals acting under federal authority.
This proposal creates immunity based on a subjective "good faith" standard. This significantly expands current law that provides qualified immunity to government employees. It would substantially and unreasonably inhibit the ability of airline passengers to recover damages when their constitutional rights are violated. The ACLU recommends that individuals should be held to an objective "reasonable person" standard, not a subjective "good faith" standard.
Section 121 of the Senate bill provides that airlines and their employees "shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State" for making disclosures to various Federal and law enforcement agencies of "any suspicious transactions" relevant to violation of law or regulation, including threats to passenger safety.
The term "suspicious transactions" is not defined in the bill and left open to interpretation. This could provide airlines and airline employees' immunity against racial profiling claims or other challenges to unlawful discriminatory practices.
Recommendation: Section 110 of the House bill and Section 121 of the Senate bill should be omitted from the conference report on this legislation. If Section 110 of the House bill is retained, the subjective "good faith" standard for immunity should be replaced with a "reasonable person" standard.
The conference report should not permit employment discrimination against citizens and lawful permanent residents of the United States. The ACLU strongly opposes language in the Senate version that would create two classes of citizenship. Under Section 109 of the Senate bill, naturalized United States citizens could not be baggage screeners, unless they had been citizens for more than five years. This provision is patently unconstitutional because it discriminates against citizens on the basis of their national origin, in direct violation of the equality component of the Due Process Clause of the Fifth Amendment. "[T]he rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President." Schneider v. Rusk, 377 U.S. 163 (1964). From the beginning of the Republic, the Court has held that the power of Congress to regulate immigration and naturalization does not permit the creation of a second class or probationary form of citizenship. Chief Justice John Marshall wrote that upon naturalization, a new United States citizen "becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights." Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 827 (1824) (emphasis added).
While the House bill does not set up two classes of citizenship, Section 104 of the bill requires that baggage screeners be United States citizens or nationals. We do not believe that prohibiting all legal residents, no matter the depth of their ties to the United States, from becoming baggage screeners is justified. The Supreme Court has said that a federal rule making legal residents "ineligible for employment in a major sector of the economy is of sufficient significance to be characterized as a deprivation of an interest in liberty," although it did not decide whether Congress could adopt such a rule. Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976).
Congress should not adopt such a discriminatory rule for baggage screeners. Lawful permanent residents must pay taxes, serve in the Armed Forces and have been subject to the military draft. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 645 (1973). Many such residents are currently fighting with American forces in Afghanistan. It is difficult to see why legal residents are trustworthy enough to fight for America abroad but not to screen baggage. Lawful permanent residents, who must already undergo a background check to immigrate to the United States, will be subject to the same careful background checks as other screeners. Finally, excluding lawful permanent residents would reduce the pool of available applicants and lower the standards for screeners, hampering aviation security.
Recommendation: ACLU urges the conferees to adopt the House language, modified to permit lawful permanent residents to be screeners as well.
New security technologies should be both effective and implemented in ways that minimize the risk to privacy, equality and other civil liberties.
The House and Senate bills both encourage the use of new technologies including voice stress analysis, threat image projection and biometric technologies for persons seeking access to secured areas in an airport. Title II of the Senate bill would require additional research on emerging security technologies and set deadlines for implementation of such technologies.
Certainly, some new technologies have the potential to enhance air security. For example, the ACLU would support using biometric identification techniques with a proven record of accuracy (such as iris scans or digital fingerprints) for airport and airline personnel. The error rate for those technologies is very low and using the technology on airline employees could increase security without compromising civil liberties of passengers. Section 106 of the Senate bill proposes a similar application of biometrics.
Before any new security technologies are implemented, however, the National Institute of Standards and Technology or unbiased research-based entity should ensure the technology effectively enhances security. In addition, the technology should have a record of success in other public and private contexts. Technology that doesn't work will do nothing to enhance passenger safety and will instead create a false sense of security among the public.
Even if a particular technology is found to be effective for the purpose of airline security, the government should work to ensure the measure minimizes its cost to our fundamental freedoms before the technology is implemented. For example, Title II of the Senate bill requires research into security technologies before officials implement the technologies in airports. The legislation, however, fails to require those officials to consider the impact on passengers' civil liberties and whether a less intrusive, equally effective alternative form of technology could be deployed.
Section 106 of the House bill proposes the use of a "trusted passenger program" that would allow DOT to expedite airport screening by establishing the identity of "trusted" passengers through the issuance of an ID card. This provision is ripe for violations of privacy and equality and would be ineffective at preventing terrorists from boarding planes.
First, in order to be a trusted passenger, individuals would presumably have to allow the airlines or government agents access to a range of personal information contained in government databases to run a background check. This information could include tax returns, employment records, or even medical information. Anyone who ever flies on an airplane would either have to sacrifice their privacy in a range of highly personal information or automatically be considered a suspect at an airport. The program could be extended to all types of travel, making it more difficult to move freely around the country, a state, or even a locality without such a trusted passenger ID. As a result, the trusted passenger program could become a de facto national ID system, requiring Americans to carry an internal passport with them wherever they go.
Second, the criteria for becoming a "trusted" passenger is left up to the agency, but would presumably rely on a profiling system. Profiling systems using race, religion, or national origin as criteria would clearly violate the constitution. Other criteria such as income level or address, however, could have an equally discriminatory impact on certain Americans. Finally, there is no evidence that a trusted passenger system would effectively screen out terrorists. All 19 of the September 11 hijackers had social security numbers. Some had the SSNs legally; others were able to steal false identities. If terrorists were able to get SSNs, there is no reason to think they couldn't become or have appeared to become "trusted" passengers and avoid heightened screening requirements.
Recommendation: The conference report should omit the trusted passenger program in the Section 106 of the House bill and require that (1) the National Institute of Standards and Technology or some other research-based entity should ensure that technology effectively enhances security and; (2) DOT consider the impact of security technology on passengers' civil liberties and determine whether a less intrusive, equally effective alternative form of technology could be deployed.
Air security legislation should provide meaningful Federal oversight of both the effectiveness of air security proposals and their impact on civil liberties.
Section 112 of the House bill includes a "Transportation Oversight Board" that would review and ratify air security plans and regulations, share intelligence information, and make recommendations on air security. This Board includes representation from executive branch agencies, including the Department of Justice and Defense and the new office of Homeland Security. Section 103 of the Senate bill establishes a "Aviation Security Coordination Council" that has similar responsibilities. Neither the Board nor the Council, however, would be required to establish an oversight mechanism for air security measures to ensure they have a minimal impact on civil liberties.
Air security legislation should establish an independent entity to receive and investigate complaints of discriminatory or other inappropriate security screening and privacy violations. Such an entity could be modeled after the Equal Employment Opportunity Commission and should supplement not supplant existing remedies. This entity should also track inappropriate, overly intrusive or discriminatory screening practices so abuses can be identified and problems can be addressed through retraining or the elimination of a particular device. It could also order a study that DOT has thus far failed to conduct to determine whether the profiling system put in place has a disparate impact on passengers based on their race or national origin.
Recommendation: The final air security legislation should establish an independent entity to receive and investigate complaints of discriminatory practices or other inappropriate security screening and privacy violations.
Finally, both bills contain information sharing provisions for the purpose of air security. We would support law enforcement's sharing of the names of suspected terrorists with air security personnel, but indiscriminate information sharing runs directly counter to the principles supporting the Privacy Act and also raises concerns about equality and limitations on individuals' right to travel. Government databases contain a significant amount of highly sensitive personal information including income tax statements, employment records and even medical information. Congress should place meaningful limits on information sharing for air security purposes by requiring a nexus between the information shared from these databases and the purpose of identifying passengers who are suspected terrorists. Otherwise, air security personnel could access all kinds of personal information contained in Federal databases that have nothing to do with air security.
Laura W. Murphy
Director
Rachel King
Legislative Counsel
Katie Corrigan
Legislative Counsel