The TSA's Pre✓™ Program and Security Theater

-- By ArchanHazra1 - 17 May 2015

Introduction

Over spring break, I had the opportunity to go to a moot court competition in Portland; we flew from New York to Portland via San Francisco, where we went through security a second time because of the layout of SFO’s terminals. Going through security at JFK was my first experience with TSA’s Pre✓™ program—the “✓”, unlike the word “check”, is, of course, hip and clever and underscores the TSA’s position at the vanguard of security procedure development. The TSA Pre-Check program provides air travelers with the luxury of expedited airport screening, whereby travelers need not take off their shoes or belts or take out their laptops or 3-1-1 compliant liquid/gels bag when going through the metal detector. While Pre-Check ordinarily requires an application process and an $85 fee, the TSA has also—presumably in an effort to entice greater enrollment—allowed travelers through Pre-Check on a case-by-case basis through its managed inclusion policy. Essentially, TSA Behavior Detection Officers conduct “real-time threat assessments” and let certain un-cleared travelers through expedited screening. Apparently, my fellow law students and I were worthy at JFK.

A recent ACLU blogpost hits the nail on the head in identifying the feeling engendered when going through Pre-Check, which has resulted in more than a million signups for the program: “it plays to the natural human tendency to appreciate special treatment, and it constitutes an official recognition of what each of us knows to be true about ourself: we are not at terrorist.” Indeed, going through Pre-Check at JFK felt great—it was quick, and I didn’t feel like a criminal. But when going through security at SFO, a fellow law student and I got separated from our group. This time, he and I were not allowed to go through Pre-Check. So we went through the “regular” process while up ahead, ours peers went swiftly, once again, through Pre-Check. Of course, the TSA asserts that Pre-Check is a privilege and cannot be expected when one is not a member of the program. Yet I figured, perhaps cynically, we were not Pre-Checked because we were both men of color, a sentiment exacerbated by the fact that most of the people in the regular screening line were also people of color.

On one hand, Pre-Check, and the government’s other Trusted Traveler programs, can be seen as a modulated rollback of one-size-fits-all post-9/11 airport security. But on the other, it comes off as, as one comment on the ACLU blogpost puts it, “paying for the right to feel human.” In effect, the ad-hoc managed inclusion program, which relies on discredited behavior detection, makes the normal screening procedure just seem like security theater. If people are randomly screened out of it, then what was its value in the first place?

The TSA and Data Collection

Continuing a trend of Congress looking to fix purported TSA missteps, the managed inclusion program has recently come under fire from members of Congress. The proposed “Securing Expedited Screening Act” would limit Pre-Check to those enrolled in the program, as well as other limited-risk travelers. The proposed bill comes after a former domestic terrorist was allowed through Pre-Check, despite restrictions on expediting travelers who have been convicted of certain crimes. Regardless of the value-added security that taking one’s shoes off may or may not provide, the incident does pose a question of how the TSA uses its collected passenger data—in addition to its behavioral assessments—in expediting certain travelers.

It is unclear, of course, as to what data the TSA exactly relies on to make its assessments. Secure Flight already cross-references all passenger names and dates of birth with no-fly lists. Pre-Check goes further, as the application process requires addresses and fingerprinting. And the TSA has access to data like tax identification numbers, past travel itineraries, property records, and law enforcement databases. In an effort to expand the program and improve the use of predictive data, the TSA has solicited private contractors for private background check programs that would use commercial data to approve or reject travelers for Pre-Check; such commercial data includes, in addition to criminal history and real estate records, “other publicly available information, such as directories, press reports, location data and information that individuals post on blogs and social media sites; and wide ranging data such as purchase information, customer lists from registration websites, and self-reported information.”

So What?

This begs the following question—should the enhanced background check deter travelers from paying to be a part of the program? On one hand, if the commercial data exists (which would depend on one’s own online practices), it exists whether one applies for Pre-Check or not. The government does not need people to apply for a program in order to use the data; for instance, look at China’s social credit system that’s in development. And while the New York Times article notes, for instance, that the fingerprints from the Pre-Check application will be checked against the FBI unsolved crimes database, that seems like a reasonable procedure when screening for low-risk passengers. But what TSA Pre-Check does do, I think, is create a seemingly more palatable version of China’s social credit system proposal—where air travelers are separated between those willing to pay to conform and those who, according to big data, must be separated and scrutinized. Consider the fact that the TSA is looking to reach 25% of all travelers with its Pre-Check program; the ACLU blogpost points out that the gradual expansion of the Pre-Check whitelist will, in effect, create a blacklist for those not on the list—more draconian measures will be justified for those “unknown” or “high” risk individuals not in the “club.” In the end, I think the program plays on—in addition to people’s desire for convenience—an eagerness to seek acknowledgement from the government that the government does not, in fact, think they are terrorists. That is a new normal that should not exist.