Tag: TSA

No, America, You Don’t Need to Comply with the REAL ID Act

Like countless similar news stories recently, a report on Business Insider claims: “Residents from 5 US states could soon need a passport for a domestic flight.” The idea is that the Transportation Security Administration will begin to enforce the REAL ID Act in 2016 by denying airport access to travelers from non-compliant states.

It’s not true.

Nobody needs to get a passport to fly domestically. No state needs to implement the REAL ID Act’s national ID mandates.

I’ve been collecting examples of misleading reports like this at the Twitter hashtag “#TakenInByDHS.” A recent blog post of mine, also called “Taken In by DHS,” fleshes out the story of widespread misreporting on the situation with our national ID law.

In brief, the Department of Homeland Security is trying to get the states to convert their driver licensing systems into components of a U.S. national ID system. The REAL ID Act, which Congress passed in 2005, allows DHS to refuse IDs from non-compliant states, including IDs travelers present at TSA’s airport checkpoints.

This concerns some people when they first learn about it, but the REAL ID compliance deadline passed more than seven years ago with not one state in compliance. DHS has improvised deadline after deadline since then, and it has caved every single time its deadlines have been reached. I went through the history last year in my Cato Policy Analysis, “REAL ID: A State-by-State Update.”

DHS’s latest story is that it might start to enforce REAL ID in 2016. It won’t. 

TSA’s Classified “Risk-Reduction Analysis”

Last month, our friends at the Competitive Enterprise Institute filed suit against the TSA because the agency failed to follow basic administrative procedures when it deployed its notorious “strip-search machines” for use in primary screening at our nation’s airports. Four years after being ordered to do so by the U.S. Court of Appeals for the D.C. Circuit, TSA still hasn’t completed the process of taking comments from the public and finalizing a regulation setting this policy. Here’s hoping CEI’s effort helps make TSA obey the law.

The reason why federal law requires agencies to hear from the public is so that they can craft the best possible rules. Nobody believes in agency omniscience. Public input is essential to gathering the information for setting good policies.

But an agency can’t get good information if it doesn’t share the evidence, facts, and inferences that underlie its proposals and rules. That’s why this week I’ve sent TSA a request for mandatory declassification review relating to a study that it says supports its strip-search machine policy. The TSA is keeping its study secret.

In its woefully inadequate (and still unfinished) policy proposal on strip-search machines, TSA summarily asserted: “[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.”

The Effort to Bring TSA Under Law

Four years ago, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Department of Homeland Security to consider the public’s input on its policy of using strip-search machines for primary screening at our nation’s airports. The TSA had “advanced no justification for having failed to conduct a notice-and-comment rulemaking,” the court found. It ordered the agency to “promptly” proceed in a manner consistent with its opinion.

Over the next 20 months, the TSA produced a short, vague paragraph that did nothing to detail the rights of the public and what travelers can expect when they go to the airport. At the time, I called the proposed rule “contemptuous,” because the agency flouted the spirit of the court’s order. In our comment on the proposed rule, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I took the TSA to task a number of ways.

The comment period on that proposal closed more than two years ago, but the TSA has still not proceeded to finalizing its rule. Continuing the effort to bring the TSA under the rule of law—and into the world of common sense—the Competitive Enterprise Institute filed suit against TSA yesterday, asking the court to require the agency to finalize its strip-search machine rule within 90 days.

Two Years On, the TSA Is Still Not Subject to Law

Two years ago tomorrow, the Transportation Security Administration stopped accepting comments on its proposal to use “Advanced Imaging Technology” for primary screening at airports. The end of the comment period on nude body scanning would ordinarily promise the issuance of a final rule that incorporates knowledge gained by hearing from the public. But this is no ordinary rulemaking. This is an agency that does not follow the law.

It was almost four years ago that the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public,” the court said in ordering the agency to “promptly” publish its policy, take comments, and consider them in formalizing its rules.

Dear America, I Saw You Naked

Politico has a hilarious, revolting, and insightful article, written by former Transportation Security Administration screener Jason Edward Harrington. It’s called “Dear America, I Saw You Naked.” The subhead: “And yes, we were laughing.”

Many of the images we gawked at were of overweight people, their every fold and dimple on full awful display. Piercings of every kind were visible. Women who’d had mastectomies were easy to discern—their chests showed up on our screens as dull, pixelated regions. Hernias appeared as bulging, blistery growths in the crotch area. Passengers were often caught off-guard by the X-Ray scan and so materialized on-screen in ridiculous, blurred poses—mouths agape, à la Edvard Munch. One of us in the I.O. room would occasionally identify a passenger as female, only to have the officers out on the checkpoint floor radio back that it was actually a man. All the old, crass stereotypes about race and genitalia size thrived on our secure government radio channels.

In July 2011, the D.C. Circuit Court of Appeals ordered the TSA to conduct a formal rulemaking and take comments from the public on the use of strip-search machines at airports. TSA took 20 months to propose a two-sentence regulation, which, as we pointed out to the agency, is totally defective.

The comment period closed in June last year and we have waited another seven months, at this point, for a final rule. When it comes out, it can be challenged in court under the “arbitrary and capricious” standard of the Administrative Procedure Act.

The evidence in the rulemaking docket shows that strip-search machines cost more in dollars, privacy, and dignity than they provide in security, which, as Harrington’s article again shows, is not very much: “We knew the full-body scanners didn’t work before they were even installed.”

Cato Comments on TSA Body Scanners

In 2007, the president and CEO of the RAND Corporation, James Thomson, wrote up his impressions of the management at the Department of Homeland Security. “DHS leaders … ‘manage by inbox,’ with the dominant mode of DHS behavior being crisis management,” he wrote. “DHS implements most of its programs with little or no evaluation of their performance.”

If you want proof, look no further than the nation’s airports. Across the United States, the Transportation Security Administration harries American travelers daily, giving them a Hobson’s choice between standing, arms raised, before a nude body scanner or undergoing a prison-style pat-down. It doesn’t have to be this way.

Nearly two years ago, the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public” as the use of body scanning machines, the court said. Its ruling required the agency to publish its policy, take comments from the public, and consider them in formalizing its rules.

The last day to comment on the proposed rules is Monday, June 24th. You can submit your comments until then.

In our comment, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I take the TSA to task a number of ways. The TSA fails to account for privacy in its proposed policy, even though the lawsuit that required the rulemaking was based on its privacy consequences.

The policy proposal that TSA issued is hopelessly vague. In fact, the court decision requiring the TSA to put its policies on record is more informative about what the rights of travelers and responsibilities of the TSA are.

Instead of placing its risk management work in the docket, TSA claims that its “risk-reduction analysis” is classified. There is almost no basis for treating such work as secret. Indeed, Mueller and Stewart have done a risk assessment of nude body scanners, published it in an article and their book, and spoken about it at public conferences. Their analysis has shown that the nude body scanning policy does not provide cost-effective security. Quite simply, spending money on nude body scanning buys a tiny margin of security at a price that is too dear. If you add non-monetary costs such as privacy and liberty, as well as opportunity costs such as time wasted due to body scanning, the cost-ineffectiveness of body scanners becomes all the more clear.

Travelers wary of TSA mistreatment choose driving over flying for many short or medium-length journeys. Given the far greater danger of driving, this means more injuries and as many as 500 more Americans killed per year on the roads. Outside of war zones, TSA policies visit more death on Americans than Islamist extremist terrorism has worldwide since 9/11.

The National Research Council found in 2010 that the risk models the Department of Homeland Security uses for natural hazards are “near state of the art” and “are based on extensive data, have been validated empirically, and appear well suited to near-term decision needs.” This is not the case with airline security. In fact, the TSA will accept risks of death that are higher than terrorism in order to maintain nude body scanning policies. The original body scanners, which applied x-ray technology, posed a fatal cancer risk per scan of about one in 60 million. Asked about this on the PBS NewsHour, TSA head John Pistole said this risk was “well, well within all the safety standards that have been set.” The chance of an individual airline passenger being killed by terrorism is much lower: one in 90 million.

TSA’s nude body scanning policies probably cause more deaths than they prevent. For this reason, we recommend in our comment that the TSA suspend the current policies, commence a new rulemaking, and implement a rational policy resulting from an examination of all issues on the public record. After comments close, TSA will issue a final regulation on a schedule it determines, after which the regulation can be challenged in court, and very likely it will.

Government Surveillance of Travel IT Systems

If you haven’t seen Edward Hasbrouck’s talk on government surveillance of travel IT systems, you should.

It’s startling to learn just how much access people other than your airline have to your air travel plans.

Here’s just one image that Hasbrouck put together to illustrate what the system looks like.

He’ll be presenting his travel surveillance talk here at Cato at noon on April 2nd. We’ll also be discussing the new public notice on airport strip-search machines issued by the TSA earlier this week.

Register now for Travel Surveillance, Traveler Intrusion.