When being an unknown air traveler is not good

Scott Forsyth, The Daily Record Newswire

In August I flew to Jackson Hole, Wyoming, departing at 7 a.m. Knowing how busy the security screening gets early, I arrived at 5:30 a.m. The pens were full, but at the mouth a TSA employee looked at my ticket and directed me to a line marked "Pre Check." I was puzzled but sailed through without a wait and without removing my shoes.

In Chicago I met up with my daughter. We looked up Pre Check and learned it identifies passengers who have submitted certain biographical information to TSA, been fingerprinted and passed a background check. In return, the passengers keep their shoes and belts on, do not remove their laptops, and use a line dedicated to them.

I never applied to participate in the program. My daughter and I chalked up the experience to airline or TSA error. Now I am not so sure.

Last month the Government Accounting Office released a report stating TSA maintains three passenger lists a list of persons posing a "high risk" to travel, a list of persons posing a "low risk" to travel and a list of persons posing an "unknown risk" to travel. The low-riskers proceed to the Pre Check line.

The sorting of passengers this way started in 2010 as part of Secure Flight. Previously TSA matched passengers against its No Fly and Selectee lists, for the purpose of identifying the persons barred from flying and the persons to be screened more intensively. You had to be in the Terrorist Screening Database to make one of the aforementioned lists. Now TSA matches names against the entire terrorist database and other unidentified databases.

What criteria does TSA use to sort passengers? We do not know. The information is a state secret. According to the GAO, TSA utilizes "risk-based targeting scenarios and assessments" to identify the high-risk and unknown-risk passengers.

The GAO statement is not very reassuring. Targeting sounds like profiling. Even if the scenarios and assessments are neutral on their face, they may applied in a way to single out groups by race or religion. We just do not know.

Who gets the privilege of being designated low-risk and undergoing less onerous screening? Without the criteria, again we cannot be sure.

TSA has told us who is on the list by virtue of their status: members of Congress, federal judges, Department of Defense military and civilian personnel (approximately 2.9 million) and employees of the intelligence agencies (approximately 70,000). Maybe attorneys of a certain vintage are too.

True, many of the above folks have undergone a background check to obtain their jobs. But that does not mean they will foreswear violence in the name of extremism. Ask the families of the victims of the Fort Hood shooter.

Watch lists presume the government can predict a person will commit a dangerous act on an airplane in the future based on the past behavior of the person on the ground. This presumption has not been proved.

The better and fairer approach is for TSA to screen all persons, including me, using the same procedures.

There may be some persons who pose a credible threat to aviation and should be barred from flying. They have an administrative remedy to challenge the bar if they believe TSA incorrectly placed them on the No Fly List or incorrectly matched them with a name on the list. The remedy is weak but at least it is a remedy.

The same cannot be said of the persons who pose an unknown risk to travel. Befitting their label, they may never know they have made an enhanced screening list. If they do, currently TSA does not offer them any mechanism to challenge the designation.

I fly to California at the end of December. It will be interesting to see if I am prechecked again or must join the mass of travelers snaking their way through the pens, ultimately shoeless.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Mon, Oct 13, 2014