Legal Commentary

Rethinking Privacy at the Airport

By Stewart Baker

I testified yesterday at a government oversight hearing on TSA.  It was a through-the-looking-glass experience for anyone whose memory extends back to, well, 2007.  That?s because the Republican members mostly lined up to bash whole body imagers and talk about privacy while the Democrats mostly spoke about the importance of air passenger security.  Government Oversight chairman Issa and subcommittee chairman Chaffetz were particularly vocal in scorning TSA?s current approach. This is reminiscent of the ?big switch? on privacy in the late Clinton years, when Republicans began attacking the Clinton administration on civil liberties grounds.

When your party doesn?t control the Executive, the playbook says you should attack the administration on almost any basis.  So the switch isn?t a complete surprise.  But attacks like this have consequences, and the most obvious consequence of a successful campaign against TSA will be more reliance on metal detectors, which have no hope of catching any of the bombs al Qaeda has used since 9/11.

Still, there are things TSA could do to improve security and passenger dignity, and they got some attention yesterday.  TSA should spend more time looking for terrorists, and less looking for weapons.  But to do that, TSA needs to know something about the passengers it?s screening, and in the last spasm of two-minute hate for TSA, back in 2003, Congress restricted the agency?s access to passenger data.

Luckily, it looks as though the stars are lining up to rethink that restriction.  We could see a TSA ?known traveler? program in which passengers can volunteer more information in exchange for streamlined screening, something I supported at the hearing:

Imagine you are among the majority who don?t see what the fuss over travel data is about.  You authorize TSA to access data about you ? travel data,say, and perhaps criminal or other records.  When you show up for your flight, your boarding pass has already been coded to show that you?re entitled to use the trusted traveler lane.  Good thing, too, because that line is much shorter.  The TSA official checks your ID and boarding pass as usual, but he waves you into a fast lane, where the most aggravating and time-consuming security procedures have been eliminated ? the liquids and laptop inspections, perhaps the shoe inspection too.  No wonder the trusted traveler line is shorter; it is moving twice as fast.  Every once in a while, though, scanning the boarding pass sets off a beep, and the officer waves you into a standard line for the usual drill.  This is a random event, programmed into the system in advance based on all the data that TSA has.  The line is still a lot faster, because only a few of the trusted travelers end up in the standard inspection, but that random event makes it difficult for terrorists to game the trusted traveler program. The upshot would be faster inspections, less hassle, and more security.  More privacy too, for those who think that giving up a little information is a fair trade for fewer scans and patdowns.

Secretary Ridge helped lead a private group that recommended a similar solution yesterday.  And TSA head Pistole is also thinking along similar lines. Here?s what he said in an ABA talk recently:

We want to focus our limited resources on higher-risk passengers, while speeding and enhancing the passenger experience at the airport.

I believe what we?re working on will provide better security by more effectively deploying our resources, while also improving passengers? travel experiences by potentially streamlining the screening experience for many people.

There are lots of risks in such a program, so the details matter, but if the flap over scanners and patdowns produces a smarter approach to travel data, maybe we?ll end up safer and less prodded at the airport.

Full post as published by The Volokh Conspiracy on March 17, 2011 (boomark / email).