RE: HR 3150, the "Secure Transportation for America Act," and HR 3165, the "Aviation Security Act II"
Dear Representative:
We urge you to consider the civil liberties implications of two airport security measures that will come before you this week: HR 3150, the "Secure Transportation for America Act," (the "Young bill") and HR 3165, the "Aviation Security Act II" (the "Ganske 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 ensure 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 House aviation security bills including limits on the number of carry on bags, matching all baggage with passengers, increasing 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. Section 102 of the Ganske bill would put security screeners under the authority of the Department of Justice. 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 with a pretext to search each and every passenger for information and items that have nothing to do with airport security. The Young bill properly does not take this approach. Congress should be wary of turning airports into law enforcement checkpoints that threaten individuals' right to privacy, equality, and travel.
New Security Technologies
New security technologies should both be effective and implemented in ways that minimize the risk to privacy. The Young and Ganske bills encourage the use of new technologies including voice stress analysis, threat image projection (HR 3150, Section 7) and biometric technologies for persons seeking access to secured areas in an airport (HR 3165, Section 106). Title II of the Ganske 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 Ganske bill proposes a similar application of biometrics.
However, before any new security technologies are implemented, the National Institute of Standards and Technology or some other 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 Ganske bill requires research into security technologies before they are implemented 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.
Immunity Provisions
Trained Federal air marshals and airline personnel should not be granted immunity from actions that deter violations of passengers' constitutional rights. Section 11 of the Young bill would provide immunity from damages arising in federal or state court to 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," including federal air marshals and airline employees acting under federal authority.
The language of this proposal would extend this immunity to an individual on the basis of subjective good faith. This is a significant expansion of the law on qualified immunity that currently applies to government employees, and 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 Ganske bill provides 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 activities" is not defined and could provide airlines and airline employees' immunity against racial profiling claims or other lawsuits challenging discriminatory practices under Federal and state civil rights statutes.
Oversight of Air Security Measures
Air security legislation should provide meaningful Federal oversight of both the effectiveness of air security proposals and their impact on civil liberties. Section 13 of the Young 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 Ganske 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.
Finally, there are other measures that warrant careful consideration and debate. The sharing of information between government agencies raises significant privacy and civil liberties concerns. Congress should place meaningful limits on information sharing for air security purposes.
Laura W. Murphy
Director
Rachel King
Legislative Counsel
Katie Corrigan
Legislative Counsel