ACLU lawyer warns of ‘license to harass’ after review of thousands of Transportation Security Administration documents

This article is more than 3 years old

This article is more than 3 years old

A new study based on thousands of internal Transportation Security Administration (TSA) documents has excoriated a controversial screening program as reliant on dubious behavioral science and amounting to surveillance of scores of unsuspecting air travelers, particularly Muslims and Latinos.



The study, conducted by the American Civil Liberties Union (ACLU) after a years-long transparency lawsuit, may add to the anxiety of travelers in the Donald Trump era and particularly non-Americans, whom Trump’s executive orders on immigration explicitly note do not enjoy legal privacy protections.

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In particular, the TSA documents indicate a substantial focus on Arabs, Muslims and Latinos, despite repeated TSA assurances that the Department of Homeland Security (DHS) component does not profile travelers based on ethnicity, race or religion.

“Because the techniques that the TSA are using are not grounded in valid science, those techniques raise an unacceptable risk of racial and religious profiling,” said the ACLU’s Hugh Handeyside, one of the attorneys in the TSA lawsuit.

“The documents show the use of those techniques become a license to harass. They can easily give way to implicit or explicit bias.”

The study reveals that the TSA concluded in internal investigations that its officials engaged in such profiling. At Newark Liberty international airport in New Jersey, a supervisor, ultimately demoted, instructed “profiling of passengers based on race” and made “improper law enforcement referrals to Customs and Border Protection”.

At Logan airport in Boston, agents implemented “a procedure for profiling or identifying illegal aliens”, something beyond the mandate of the TSA. Investigations of TSA profiling allegations also occurred at Chicago, Honolulu and Miami airports.

One behavioral-detection officer [BDO] cited in the report observed: “I’ve seen BDO managers lie to cover up their mistakes … [and] make questionable decisions based on the way someone looks, ie cute, Asian, Black, etc … What’s worse is I’ve heard a BDO manager refer to passengers as ‘towel heads’ when speaking in a meeting with other management AND subordinates.”

TSA’s program, Screening Passengers by Observation Techniques, or Spot, is intended as an additional check on potential onboard hijackings or airport attacks. Spot instructs plainclothes agents to conduct surreptitious “interviews” with travelers who have cleared security checkpoints and trains them to identify supposed signs of deception.

In 2013, the watchdog Government Accountability Office recommended limiting funding for Spot until “TSA can provide scientifically validated evidence demonstrating that behavioral indicators can be used to identify passengers who may pose a threat to aviation security”. A 2016 DHS inspector general’s report stated that TSA employs 2,660 staff at 87 airports.

“The passenger should not suspect that they have undergone any deliberate line of questioning,” a Spot document instructs, contributing to the ACLU’s conclusion that plainclothes Spot officers “conduct surveillance covertly”.

One TSA document on “behavioral cues” singles out a “trancelike state; inappropriate clothing; avoiding direct contact with others”.

Other alleged indicators include “exaggerated yawning”; excessive “grooming gestures”; “fast eye blink rate”; a lack of eye contact; “excessive fidgeting, clock watching, head-turning, shuffling feet, leg shaking” and more. A “male with a fresh shave and lighter skin on his lower face” is considered an indicator of concealed Muslim zealotry.

The ACLU lawsuit unearthed extensive scientific research undermining Spot’s premises that such behavior indicates deception at all.

“A striking finding in the literature is that liars do not seem to show clear patterns of nervous behaviors such as gaze aversion and fidgeting,” according to a 2007 article in the journal Law and Human Behavior. A 2006 review of the literature found that “people who are motivated to be believed look deceptive whether or not they are lying”.

Although the available science indicates that behavioral observation is little more reliable at indicating deception than flipping a coin, the ACLU found no evidence that the TSA reformed Spot to accommodate the evidence. Instead, the study called into question repeated statements the TSA has provided to Congress assuring that “widely accepted principles supported by leading experts in the field of behavioral science and law enforcement” underpin Spot.

“[I]t appears highly unlikely that behavior detection officers could reliably assess deception or ‘mal-intent’ through brief encounters with total strangers in a context as fluid and harried as an airport terminal,” the ACLU study said.

In 2015, the Intercept revealed that Spot included on its list of “signs you might be a terrorist” activities including “excessive throat clearing” and contradictory instructions like “gazing down” and “widely open staring eyes”.

Handeyside said: “We are just not convinced that this program can be implemented at all without raising an unacceptable risk of unlawful racial religious profiling. We think it should be discontinued.”