ACLU sues TSA over behavior screening program

Bart Jansen | USA TODAY

The American Civil Liberties Union filed a federal lawsuit Thursday to force the Transportation Security Administration to reveal information about the effectiveness of its behavior detection program to spot risky travelers.

The ACLU is asking a U.S. District Court in New York to order TSA to release documents about the program's scientific justification, policies, training, efficacy and impact on minorities.

The ACLU filed a Freedom of Information Act request for the documents in October, but the agency rejected expedited service for the request and hasn't responded yet.

"Although the TSA has been using behavior detection techniques in some form since 2003, there is no known instance in which these techniques were responsible for apprehending someone who posed a security threat," the 15-page lawsuit says. "However, the public knows little about the scope, effectiveness or purported scientific basis for these programs."

Hugh Handeyside, an ACLU staff attorney, says in a statement accompanying the lawsuit that pseudo-scientific techniques in the stressful atmosphere of airport screening have given rise to persistent allegations of racial and ethnic profiling.

"It's as nutty as it sounds," he said.

TSA declined comment on the lawsuit and said it is processing the document request.

TSA, as part of screening travelers and baggage at airports, deploys officers to watch for suspicious behavior, under a program called Screening Passengers by Observation Techniques (SPOT). Depending on the behavior, an officer could send the traveler to secondary screening, such as questions and a pat-down, or refer the traveler to a local law enforcement officer for investigation.

While the agency doesn't describe what sets off alarms, security experts have said fidgeting, sweating and eye movement could be deemed suspicious in security lines.

At times, behavior detection officers have been used to direct passengers into faster Pre-check security lines for expedited screening. The only TSA officer killed in the line of duty, Gerardo Hernandez, who was shot Nov. 1, 2013, in Los Angeles International Airport, was a behavior detection officer.

But the program has long been contentious.

The Government Accountability Office has repeatedly questioned whether behavior detection is scientifically justified or worth the cost. A November 2013 GAO report reviewed 400 studies that found people are only slightly better than chance at spotting deceptive behavior.

But the program costs about $200 million per year to field 3,000 officers, which "risks funding activities that have not been determined to be effective," according to GAO.

From October 2011 through September 2012, the program resulted in 199 arrests, typically for outstanding warrants, suspected drugs and immigration status, according to a June 2013 report by the Department of Homeland Security's inspector general.

Rep. Richard Hudson, R-N.C., who was head of the Homeland Security subcommittee on transportation, has said that "there has not been a single instance where a behavior detection officer has referred someone to a law enforcement officer and that individual turned out to be a terrorist."

Travelers have alleged racial and religious discrimination in who is singled out for secondary screening. Clusters of complaints arose at airports in Boston, Newark and Honolulu, where dozens of workers were fired or suspended.

While individual officers and supervisors have been fired or disciplined, TSA officials have denied broad problems with behavior detection.

John Pistole, the former head of TSA who retired in December, told a House hearing in November 2013 that behavior detection provides a "crucial layer of security" that is broader than simply searching for weapons with metal detectors, X-rays and pat-downs.

During 2012, behavior-detection officers referred 2,116 travelers to law-enforcement officers which led to 183 arrests and 30 travelers denied boarding, he said.

Pistole told lawmakers that "profiling has absolutely no place" in behavior detection, and allegations of profiling would be investigated thoroughly." He cited an inspector general's report in August 2013 that found no indication of racial profiling in Boston.

"Anybody who is found to be profiling will be investigated and dealt with appropriately," Pistole said.