Tag: department of homeland security

TSA’s Pistole Says ‘Risk-Based,’ Means ‘Privacy Invasive’

There is one thing you can take to the bank from TSA administrator John Pistole’s statement that he wants to shift to “risk-based” screening at airports: it hasn’t been risk-based up to now. That’s a welcome concession because, as I’ve said before, the DHS and its officials routinely mouth risk terminology, but rarely subject themselves to the rigor of actual risk analysis.

What Administrator Pistole envisions is nothing new. It’s the idea of checking the backgrounds of air travelers more deeply, attempting to determine which of them present less of a threat and which prevent more. That opens security holes that the risk-averse TSA is unlikely to actually tolerate, and it has significant privacy and Due Process consequences, including migration toward a national ID system. 

I wrote about one plan for a “trusted traveler”-type system recently. As the details of what Pistole envisions emerge, I’ll look forward to reviewing it.

The DHS Privacy Committee published a document several years ago that can help Pistole with developing an actual risk-based system and with managing its privacy consequences. The Privacy Committee itself exists to review programs like these, but has not been used for this purpose recently despite claims that it has.

If Pistole wants to shift to risk-based screening, he should require a full risk-based study of airport screening and publish it so that the public, commentators, and courts can compare the actual security benefits of the TSA’s policies with their costs in dollars, risk transfer, privacy, and constitutional values.

Shades of Warning: What It Means to Inform

Ben Friedman helpfully supplies more information to go with my positive reaction to the Department of Homeland Security’s decision to scrap color-coded threat warnings.

Our colloquy leaves somewhat open what should replace color-coding. Because most threat warnings are false alarms, and because exhortations to vigilance will tend toward the vagueness of the color-coding system, Ben hopes “DHS winds up being tighter-lipped.”

His points are good ones, but they don’t dissuade me from my belief that DHS should “begin informing the public fully about threats and risks known to the U.S. government.”

The right answer here centers on who is better at digesting threat information—experts in the national security bureaucracy or the public?

There is a great deal of expertise in the U.S. government focused on turning up threat information and digesting it for policymakers. However, that expertise has limits, often manifested as threat inflation, as Ben notes, and as myopia. Daniel Patrick Moynihan’s Secrecy: The American Experience illustrates the latter well (especially the edition with Richard Gid Powers’ fine introduction).

The public consists of hundreds of millions of subject matter experts in every walk of life. They include owners and operators of all our infrastructure, reporters and commentators in the professional and amateur press, academics, state and local law enforcement personnel, information networks, and social networks of all kinds. We have security-interested folk in the hundreds of millions spread out across the land, all in regular communication with each other. We’re a tremendously powerful information processing machine. I believe this public can do a better job of digesting threat information than “experts,” particularly when it comes to terrorism threats, which can—theoretically, at least—manifest themselves pretty much anywhere.

The public constantly digests risk and threat information from other walks of life. We digest information about ordinary crime, health and disease, finance and investment, driving and walking, etc., etc. There is nothing about terrorism that disables the public from making judgments about threat information and incorporating it into daily life. People can figure out what matters and what does not, and they can apply information in the spheres they know.

When I say “fully inform,” I don’t argue for broadcasting every speck of information the U.S. government collects. There are limited domains in which information sharing will reveal sources and methods, undercutting access to future information. Appropriate caveats are part of ”fully” informing, of course. Natural pressure will cause too speculative threats to be winnowed from public release. But even opening a firehose will get people the water they need to drink.

Tight lips sink ships. The presumption should fall in favor of sharing information with the public. After a period of adjustment lasting from months to a year or more, the American information system would incorporate open threat information into daily life, and the country would be more secure. People made confident by the ability to consume and respond to threat information will feel more secure, which is the other half of what security is all about.

Warning Without Color

Jim Harper noted yesterday that the Department of Homeland Security (after lengthy review) has decided to scrap its color-coded alert system. The change is long overdue–the alerts implied, absurdly, that danger was equally distributed across the nation. The fact that the Department never used the blue and green threat levels (general and low risk), which most accurately describe the true danger most Americans face from terrorism, showed the systems’ inherent threat inflation. Eventually, everyone started ignoring the threat level, officials stopped changing it, and system became a charade.

Jim argues that, in place of the colors, the Department should inform “the public fully about threats and risks known to the U.S. government,” treating us like adults with a shared responsibility for protecting ourselves. According to a report from the National Journal’s Chris Storm, DHS agrees, sort of.  Storm links to a DHS document on the new warning policy, which states:

  • DHS will implement a new system that is built on a clear and simple premise: When a threat develops that could impact the public, we will tell you.  We will provide whatever information we can so you know how to protect yourselves, your families, and your communities.
  • The new system reflects the reality that we must always be on alert and be ready.  When we have information about a specific, credible threat, we will issue a formal alert providing as much information as we can.
  • Depending on the nature of the threat, the alert may be limited to a particular audience, like law enforcement, or a segment of the private sector, like shopping malls or hotels.
  • Or, the alert may be issued more broadly to the American people, distributed — through a statement from DHS — by the news media and social media channels.
  • The alerts will be specific to the threat.  They may ask you to take certain actions, or to look for specific suspicious behavior.  And they will have an end date.
  • This new system is built on the common-sense belief that we are all in this together — that we all have a role to play — and it was developed in that same collaborative spirit.

The first bullet point embraces maximum information sharing, but things get hazier after that. In the end, it’s not clear when DHS will warn all of us, warn some of us, or just warn police. Nor do we get much indication about what information warnings will include. Unlike Jim, though, I think that’s fine. Actually, there are a couple reasons why I hope DHS winds up being tighter-lipped.

First, most threat warnings are false alarms. A government that publicized every warning received by intelligence agencies would swamp the public with confusing and frightening information that people would have to learn to ignore. Better to reveal only intelligence that has been vetted.

Second, the theory of providing the public maximum information about danger (often a cover for the CYA imperative to have warned the public if an attack does occur) in practice easily degenerates into vague exhortations to be vigilant, which are almost as bad as the color-coded threat warnings. The difficulty is that the threat information is vague and that authorities worry that revealing too much detail will give away sources. The warning issued to Americans going to Europe last October, is an example, as I discussed here.

Given that such general warnings create false leads, cancelled travel, anxiety, and harassment, they may do more harm than good.  In response to this argument, people point to the vigilant airline passengers who subdued the shoe and underwear bombers or the Times Square vendors who called the cops after Faisal’s Shazhad’s car failed to explode. But, at least since 2001, we hardly need the government to tell us to respond to people lighting their underwear on fire on international flights or cars burnings in Times Square. The theory that increased public vigilance is always a good thing needs testing.

And Good Riddance…

The Department of Homeland Security is scrapping the color-coded terror alert system. The color-code system meant to serve as a way of keeping the public informed, but because it signaled some ambiguous sense of “threat” without providing a scintilla of information the public could use, it merely kept Americans ignorant and addled.

Scrapping the color-coded threat system is only the beginning. The next step is to begin informing the public fully about threats and risks known to the U.S. government. We’re adults. We can handle it. In fact, we can help.

Prediction: DHS Programs Will Create Privacy Concerns in 2011

The holiday travel season this year revealed some of the real defects in the Transportation Security Administration’s new policy of subjecting select travelers to the “option” of going through airport strip-search machines or being subjected to an intrusive pat-down more akin to a groping. Anecdotes continue to come forth, including the recent story of a rape victim who was arrested at an airport in Austin, TX after refusing to let a TSA agent feel her breasts.

Meanwhile, the Department of Homeland Security is working on the “next big thing”: body-scanning everywhere. This “privacy impact assessment” from DHS’s Science and Technology Directorate details a plan to use millimeter wave—a technology in strip-search machines—along with other techniques, to examine people from a distance, not just at the airport but anywhere DHS wants.

With time to observe TSA procedures this holiday season, I’ve noticed that it takes a very long time to get people through strip-search machines. In Milwaukee, the machines were cordoned off and out of use the Monday after Christmas Day because they needed to get people through. Watch for privacy concerns and sheer inefficiency to join up when TSA pushes forward with universal strip/grope requirements.

And the issue looks poised to grow in the new year. Republican ascendancy in the House coincides with their increasing agitation about this government security excess.

I’ll be speaking at an event next Thursday, January 6th, called ”The Stripping of Freedom: A Careful Scan of TSA Security Procedures.” It’s hosted by the Electronic Privacy Information Center (EPIC) at the Carnegie Institute for Science in Washington, DC.

EPIC recently wrote a letter asking Homeland Security Secretary Janet Napolitano to task the DHS Privacy Committee (or “DPIAC,” on which I serve) with studying the impact of the body scanner program on individuals’ constitutional and statutory rights:

The TSA’s deployment of body scanners as the primary screening technique in American airports has raised widespread public concerns about the protection of privacy. It is difficult to imagine that there is a higher priority issue for the DPIAC in 2011 than a comprehensive review of the TSA airport body scanner program.

Will the Secretary ask her expert panel for a thorough documented review? Wait and see.

Whatever happens there, privacy concerns with DHS programs will be big in 2011.

TSA’s Strip/Grope: Unconstitutional?

Writing in the Washington Post, George Washington University law professor Jeffrey Rosen carefully concludes, “there’s a strong argument that the TSA’s measures violate the Fourth Amendment, which prohibits unreasonable searches and seizures.” The strip/grope policy doesn’t carefully escalate through levels of intrusion the way a better designed program using more privacy protective technology could.

It’s a good constutional technician’s analysis. But Professor Rosen doesn’t broach one of the most important likely determinants of Fourth Amendment reasonableness: the risk to air travel these searches are meant to reduce.

Writing in Politico last week, I pointed out that there have been 99 million domestic flights in the last decade, transporting seven billion passengers. Not one of these passengers snuck a bomb onto a plane and detonated it. Given that this period coincides with the zenith of Al Qaeda terrorism, this suggests a very low risk.

Proponents of the TSA’s regime point out that threats are very high, according to information they have. But that trump card—secret threat information—is beginning to fail with the public. It would take longer, but would eventually fail with courts, too.

But rather than relying on courts to untie these knots, Congress should subject TSA and the Department of Homeland Security to measures that will ultimately answer the open risk questions: Require any lasting security measures to be justified on the public record with documented risk management and cost-benefit analysis. Subject such analyses to a standard of review such as the Adminstrative Procedure Act’s “arbitrary and capricious” standard. Indeed, Congress might make TSA security measures APA notice-and-comment rules, with appropriate accomodation for (truly) temporary measures required by security exigency.

Claims to secrecy are claims to power. Congress should withdraw the power of secrecy from the TSA and DHS, subjecting these agencies to the rule of law.

Conservatives, Liberals, and the TSA

Libertarians often debate whether conservatives or liberals are more friendly to liberty. We often fall back on the idea that conservatives tend to support economic liberties but not civil liberties, while liberals support civil liberties but not economic liberties – though this old bromide hardly accounts for the economic policies of President Bush or the war-on-drugs-and-terror-and-Iraq policies of President Obama.

Score one for the conservatives in the surging outrage over the Transportation Security Administration’s new policy of body scanners and intimate pat-downs. You gotta figure you’ve gone too far in the violation of civil liberties when you’ve lost Rick Santorum, George Will, Kathleen Parker, and Charles Krauthammer. (Gene Healy points out that conservatives are reaping what they sowed.)

Meanwhile, where are the liberals outraged at this government intrusiveness? Where is Paul Krugman? Where is Arianna? Where is Frank Rich? Where is the New Republic? Oh sure, civil libertarians like Glenn Greenwald have criticized TSA excesses. But mainstream liberals have rallied around the Department of Homeland Security and its naked pictures: Dana Milbank channels John (“phantoms of lost liberty”) Ashcroft: “Republicans are providing the comfort [to our enemies]. They are objecting loudly to new airport security measures.” Ruth Marcus: “Don’t touch my junk? Grow up, America.” Eugene Robinson: “Be patient with the TSA.” Amitai Etzioni in the New Republic: “In defense of the ‘virtual strip-search.’” And finally, the editors of the New York Times: ”attacks are purely partisan and ideological.”

Could this just be a matter of viewing everything through a partisan lens? Liberals rally around the DHS of President Obama and Secretary Napolitano, while conservatives criticize it? Maybe. And although Slate refers to the opponents of body-scanning as “paranoid zealots,” that term would certainly seem to apply to apply to Mark Ames and Yasha Levine of the Nation, who stomp their feet, get red in the face, and declare every privacy advocate from John Tyner (“don’t touch my junk”) on to be “astroturf” tools of “Washington Lobbyists and Koch-Funded Libertarians.” (Glenn Greenwald took the article apart line by line.)

Most Americans want to be protected from terrorism and also to avoid unnecessary intrusions on liberty, privacy, and commerce. Security issues can be complex. A case can be made for the TSA’s new procedures. But it’s striking to see how many conservatives think the TSA has gone too far, and how dismissive – even contemptuous – liberals are of rising concerns about liberty and privacy.