[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]

PERSPECTIVES ON TSA'S POLICIES TO PREVENT UNLAWFUL PROFILING

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HEARING

BEFORE THE

COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTEENTH CONGRESS

FIRST SESSION

__________

JUNE 4, 2019

__________

Serial No. 116-24

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Printed for the use of the Committee on Homeland Security

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

Available via the World Wide Web: http://www.govinfo.gov

__________

U.S. GOVERNMENT PUBLISHING OFFICE
37-870 PDF WASHINGTON : 2019

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COMMITTEE ON HOMELAND SECURITY

Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas Mike Rogers, Alabama
James R. Langevin, Rhode Island Peter T. King, New York
Cedric L. Richmond, Louisiana Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey John Katko, New York
Kathleen M. Rice, New York John Ratcliffe, Texas
J. Luis Correa, California Mark Walker, North Carolina
Xochitl Torres Small, New Mexico Clay Higgins, Louisiana
Max Rose, New York Debbie Lesko, Arizona
Lauren Underwood, Illinois Mark Green, Tennessee
Elissa Slotkin, Michigan Van Taylor, Texas
Emanuel Cleaver, Missouri John Joyce, Pennsylvania
Al Green, Texas Dan Crenshaw, Texas
Yvette D. Clarke, New York Michael Guest, Mississippi
Dina Titus, Nevada
Bonnie Watson Coleman, New Jersey
Nanette Diaz Barragan, California
Val Butler Demings, Florida
Hope Goins, Staff Director
Chris Vieson, Minority Staff Director

C O N T E N T S

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Page

Statements

The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Mike Rogers, a Representative in Congress From the
State of Alabama, and Ranking Member, Committee on Homeland
Security:
Oral Statement................................................. 4
Prepared Statement............................................. 5
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas:
Prepared Statement............................................. 6

Witnesses

Mr. W. William Russell, Acting Director, Homeland Security and
Justice Team, U.S. Government Accountability Office:
Oral Statement................................................. 8
Prepared Statement............................................. 10
Mr. Sim J. Singh, Senior Manager of Policy and Advocacy, The Sikh
Coalition:
Oral Statement................................................. 17
Prepared Statement............................................. 19
Ms. Janai S. Nelson, Associate Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc.:
Oral Statement................................................. 32
Prepared Statement............................................. 34

For the Record

The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Report From the National Center for Transgender Equity......... 64

Appendix

Questions for W. William Russell From Chairman Bennie G. Thompson 69
Questions for Sim J. Singh From Chairman Bennie G. Thompson...... 70
Question for Janai S. Nelson From Chairman Bennie G. Thompson.... 71

PERSPECTIVES ON TSA'S POLICIES TO PREVENT UNLAWFUL PROFILING

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Tuesday, June 4, 2019

U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
310, Cannon House Office Building, Hon. Bennie G. Thompson
(Chairman of the committee) presiding.
Present: Representatives Thompson, Jackson Lee, Payne,
Correa, Rose, Underwood, Slotkin, Cleaver, Green of Texas,
Clarke, Titus, Barragan, Demings, Rogers, King, McCaul, Katko,
Walker, Higgins, Lesko, Taylor, Joyce, and Crenshaw.
Chairman Thompson. The Committee on Homeland Security will
come to order.
The committee is meeting today to receive testimony on
perspectives on TSA's process to prevent unlawful profiling.
Good morning. Thank you to our witnesses for joining us
today.
We are meeting to examine whether TSA's policies and
screening processes allow for unlawful profiling and
discrimination.
TSA has a difficult security mission. Terrorists continue
to target the transportation sector and would like nothing
better than to take a plane out of the sky. Every Member of
this committee appreciates the need to protect against that
threat.
This committee is focused on ensuring that TSA continues to
mature into an effective, professionalized agency that fulfills
its security mission in a manner that does not allow unlawful
profiling or discrimination.
The report GAO is releasing today shows that TSA's current
operations do not meet the mark. GAO found that TSA has
antiprofiling policies in place for its behavioral detection
program, yet lacks an oversight mechanism to ensure
antiprofiling policies are actually followed.
Given the concerns this committee and others have voiced
for more than a decade regarding TSA's behavior detection
program and the door it opens to unlawful profiling, it is
unconscionable that TSA has not developed better oversight
procedures.
GAO's new report follows a 2013 report that recommended
that Congress limit future funding for TSA's behavior detection
activities. It also follows GAO's 2017 finding that TSA lacks
valid scientific evidence to support nearly 80 percent of the
behaviors it relies upon to identify suspicious travelers for
additional screening.
Meanwhile, TSA has not provided sufficient evidence of the
security benefits of behavior detection. TSA has scaled back
the scope of its behavior detection program, but the logical
conclusion from years of evidence is clear: It is time to end
the program entirely.
For today's report, GAO also looked at 3,700 complaints
related to civil rights and civil liberties filed against the
agency over 2\1/2\ years and found over 1,000 complaints with
potential indicators of discrimination. These complaints allege
a variety of discriminatory incidents and practices
encompassing all of TSA's screening operations.
DHS's response to GAO's findings shows the Department does
not understand the gravity of the allegations it faces. DHS
stated it was ``pleased to note'' that GAO identified ``only
3,700 complaints related to passenger screening alleging civil
rights and civil liberties violations'' during the relevant
time period.
DHS has missed the point entirely. First, 3,700 is not an
insignificant number. A single incident where a traveler feels
traumatized as a result of allegedly discriminatory treatment
is certainly not insignificant to that person and should not be
considered insignificant to anyone.
Under my leadership, this committee will not ignore or
downplay the significance of any American making a credible
allegation of discrimination by their Government. As TSA says:
``Not on our watch.''
Moreover, incidents are likely unreported, as people who
are discriminated against in various ways throughout society
may not have the time or resources to lodge formal complaints
in every instance.
It is clear from the complaints GAO has documented and
recent media reports that TSA's screening processes
disproportionately impact minority populations. In particular,
Advanced Imaging Technology, or AIT machines, regularly alarm
on certain populations, such as Sikh passengers, African
American women, and transgender people, leading to increased
delays and pat-downs.
AIT machines rely on algorithms that define what TSA
considers normal, and religious headwear, hairstyles, or bodies
that fall outside that definition are flagged for further
inspection.
TSA must improve its technology to address this issue while
considering the diversity of the public when it solicits and
tests new technology.
Finally, I want to make clear my concerns are not with the
TSA work force. TSA's front-line officers have proven their
commitment to TSA's mission, despite insufficient pay and
during the Government shutdown missed paychecks.
Over and over again TSA has made the news due to a poor
passenger screening experience, and after an investigation
TSA's statement has almost always noted that officers followed
security protocols appropriately. By and large, TSA's problems
lie with its procedures, not its officers.
As for the agency, I commend TSA for the work it has done
to engage advocacy groups and improve cultural awareness
training for officers. The next step is for TSA to ensure it
fully considers concerns voiced by multicultural groups when
developing technologies and screening procedures.
TSA must provide effective security without
disproportionately impacting certain groups of Americans. This
is not an ``either/or'' proposition. TSA interacts more
intimately with the public on a regular basis than any other
Government agency, screening over 2 million passengers every
day and physically touching many of them. For many, TSA is not
just the public face of Government, but its hands, too.
Its success as a security agency depends upon the trust and
compliance of a diverse public. I hope to have a productive
dialog today about how we can continue to move TSA toward that
important goal.
I thank the Members for joining us and look forward to our
discussion.
The Chair now recognizes the Ranking Member of the full
committee, the gentleman from Alabama, Mr. Rogers, for an
opening statement.
[The statement of Chairman Thompson follows:]
Statement of Chairman Bennie G. Thompson
June 4, 2019
We are meeting to examine whether TSA's policies and screening
processes allow for unlawful profiling and discrimination. TSA has a
difficult security mission. Terrorists continue to target the
transportation sector and would like nothing better than to take a
plane out of the sky. Every Member on this committee appreciates the
need to protect against that threat. This committee is focused on
ensuring that TSA continues to mature into an effective,
professionalized agency that fulfills its security mission in a manner
that does not allow unlawful profiling or discrimination.
The report GAO is releasing today shows that TSA's current
operations do not meet the mark. GAO found that TSA has anti-profiling
policies in place for its behavioral detection program, yet lacks an
oversight mechanism to ensure anti-profiling policies are actually
followed. Given the concerns this committee and others have voiced for
more than a decade regarding TSA's behavior detection program and the
door it opens to unlawful profiling, it is unconscionable that TSA has
not developed better oversight procedures. GAO's new report follows a
2013 report that recommended that Congress limit future funding for
TSA's behavior detection activities. It also follows GAO's 2017 finding
that TSA lacks valid scientific evidence to support nearly 80 percent
of the behaviors it relies upon to identify suspicious travelers for
additional screening.
Meanwhile, TSA has not provided sufficient evidence of the security
benefits of behavior detection. TSA has scaled back the scope of its
behavior detection program, but the logical conclusion from years of
evidence is clear: It is time to end the program entirely. For today's
report, GAO also looked at 3,700 complaints related to civil rights and
civil liberties filed against the agency over 2\1/2\ years and found
over 1,000 complaints with potential indicators of discrimination.
These complaints allege a variety of discriminatory incidents and
practices encompassing all of TSA's screening operations.
DHS's response to GAO's findings shows that the Department does not
understand the gravity of the allegations it faces. DHS stated it was
``pleased to note'' that GAO identified ``only 3,700 complaints related
to passenger screening alleging civil rights and civil liberties
violations'' during the relevant time period. DHS has missed the point
entirely. First, 3,700 is not an insignificant number. A single
incident where a traveler feels traumatized as a result of allegedly
discriminatory treatment is certainly not insignificant to that person,
and should not be considered insignificant to anyone. Under my
leadership, this committee will not ignore or downplay the significance
of any American making a credible allegation of discrimination by their
Government. As TSA says: ``Not On Our Watch.''
Moreover, incidents are likely underreported, as people who are
discriminated against in various ways throughout society may not have
the time or resources to lodge formal complaints in every instance. It
is clear from the complaints GAO has documented and recent media
reports that TSA's screening processes disproportionately impact
minority populations. In particular, Advanced Imaging Technology or
``AIT'' machines regularly alarm on certain populations--such as Sikh
passengers, African American women, and transgender people--leading to
increased delays and pat-downs. AIT machines rely on algorithms that
define what TSA considers ``normal''--and religious headwear,
hairstyles, or bodies that fall outside that definition are flagged for
further inspection. TSA must improve its technology to address this
issue, while considering the diversity of the public when it solicits
and tests new technologies.
Finally, I want to make clear that my concerns are not with the TSA
workforce. TSA's front-line officers have proven their commitment to
TSA's mission, despite insufficient pay and, during the Government
shutdown, missed paychecks. Over and over again, TSA has made the news
due to a poor passenger screening experience, and after an
investigation, TSA's statement has almost always noted that officers
followed security procedures appropriately. By and large, TSA's
problems lie with its procedures--not its officers. As for the agency,
I commend TSA for the work it has done to engage advocacy groups and
improve cultural awareness training for officers. The next step is for
TSA to ensure it fully considers concerns voiced by multicultural
groups when developing technologies and screening procedures.
TSA must provide effective security without disproportionately
impacting certain groups of Americans. This is not an ``either/or''
proposition. TSA interacts more intimately with the public on a regular
basis than any other Government agency, screening over 2 million
passengers every day and physically touching many of them. For many,
TSA is not just the ``public face'' of Government--but its ``hands''
too. Its success as a security agency depends upon the trust and
compliance of a diverse public. I hope to have a productive dialog
today about how we can continue to move TSA toward that important goal.

Mr. Rogers. Thank you, Mr. Chairman.
Unfortunately, allegations of unlawful profiling are
nothing new for TSA. Since the agency was created after 9/11,
it has faced allegations that its screening practices unfairly
target certain populations of travelers.
Some of these allegations have stemmed from TSA's behavior
detection program. Throughout the program's several iterations,
the TSA has faced bipartisan criticism from this committee for
its lack of scientific validation in evaluating passengers'
risk to the aviation security.
That is why I am pleased that last Congress the Republican
Majority enacted legislation Representative Katko authored to
end stand-alone Behavior Detection Officer positions and
require them to be integrated into the primary screening
functions at checkpoints. This important step has helped
alleviate passenger wait times while sending a strong message
to TSA about Congress' dissatisfaction with the behavior
detection program.
In the most recent review, GAO issued a single
recommendation for TSA to establish an oversight mechanism to
better monitor behavior detection activities. TSA should
implement this recommendation immediately.
I would note that during the full year period GAO considers
part of this report, TSA conducted nearly 3 billion passenger
screenings. Of those 3 billion, only 1,066 passengers had
allegations of unlawful profiling that were substantiated and
resulted in employee retraining. That is an average of one
substantiated allegation for every 2.8 million passengers
screened.
In no way does this minimize the very real experiences of
those who have faced discrimination. Even one incident is too
many. However, this context is important.
The vast majority of TSA officers conduct themselves
professionally. It would be unfortunate for this committee to
send a message to them or the traveling public that unlawful
profiling is rampant within the ranks when, according to this
data, it is not.
In contrast to the low rates of unlawful profiling,
previous media reports have highlighted the very high rates of
TSA screeners failing to detect threats at checkpoints. I hope
at some point in the near future the Majority will focus on
oversight efforts on finding a solution to this tremendous risk
to aviation security.
Finally, this is the second hearing concerning TSA in as
many weeks where the Majority chose not to invite the agency to
testify. I think all Members would agree that it would have
been beneficial for the TSA to appear today to respond to the
GAO report and the perspectives of other witnesses.
At some point, I hope the Majority will seek input from TSA
on these important issues. In the interim, I look forward to
this hearing and from our witnesses today.
Thank you. I yield back.
[The statement of Ranking Member Rogers follows:]
Statement of Ranking Member Mike Rogers
June 4, 2019
Thank you, Mr. Chairman.
Unfortunately, allegations of unlawful profiling are nothing new
for the TSA. Since the agency was created after September 11, it has
faced allegations that its screening practices unfairly target certain
populations of travelers.
Some of these allegations have stemmed from TSA's behavior
detection program. Throughout the program's several iterations, the TSA
has faced bipartisan criticism from this committee for its lack of
scientific validation in evaluating passengers' risk to aviation
security.
That is why I am pleased that last Congress, the Republican
Majority enacted legislation Representative Katko authored to end
stand-alone Behavior Detection Officer positions and require them to be
integrated into the primary screening functions at checkpoints. This
important step has helped alleviate passenger wait times while sending
a strong message to TSA about Congress's dissatisfaction with the
behavior detection program.
In its most recent review, GAO issued a single recommendation for
TSA to establish an oversight mechanism to better monitor behavior
detection activities. TSA should implement this recommendation
immediately.
I would note that during the 4-year period GAO considered as part
of its report, TSA conducted nearly 3 billion passenger screenings. Of
that 3 billion, only 1,066 passengers had allegations of unlawful
profiling that were substantiated and resulted in employee retraining.
That's an average of 1 substantiated allegation for every 2.8 million
passengers screened.
In no way does this minimize the very real experiences of those who
have faced discrimination. Even one such incident is too many. However,
this context is important.
The vast majority of TSA officers conduct themselves
professionally. It would be unfortunate for this committee to send a
message to them and the traveling public that unlawful profiling is
rampant within their ranks, when, according to the data, it is not.
In contrast to the low rates of unlawful profiling, previous media
reports have highlighted very high rates of TSA screeners failing to
detect threat items at checkpoints. I hope that at some point in the
near future, the Majority will focus its oversight efforts on finding a
solution to this tremendous risk to aviation security.
Finally, this is the second hearing concerning the TSA in as many
weeks where the Majority chose not to invite the agency to testify. I
think all Members would agree that it would have been beneficial for
TSA to appear today to respond to the GAO report and the perspectives
of our other witnesses. At some point, I hope the Majority will seek
input from the TSA on these important issues. In the interim, I look
forward to hearing from our witnesses today.
I yield back.

Chairman Thompson. Other Members of the committee are
reminded that under committee rules opening statements may be
submitted for the record.
[The statement of Hon. Jackson Lee follows:]
Statement of Honorable Sheila Jackson Lee
June 4, 2019
Thank you, Chairman Thompson for holding today's hearing on
``Examining TSA Mechanisms to Prevent Unlawful Profiling.''
The United States is a Nation of laws and as such we must be
mindful of the reason for the creation of the TSA following the
horrific attacks of September 11, 2001.
Today's hearing provides an opportunity for Members of this
committee to examine whether TSA's policies and screening processes
allow for unlawful profiling and discuss the perspectives of community
groups that have worked to improve processes and address potential
discrimination by TSA.
The September 11, 2001 was also the date Mr. Balbir Singh Sodhi was
murdered because of his religious beliefs.
Mr. Balbir Singh, an Indian Sikh immigrant was gunned down at the
gas station that he owned in Mesa, Arizona.
Balbir Singh Sodhi was the oldest of 5 brothers and had immigrated
to the United States from India in 1988 to realize the American Dream.
Mr. Balbir Singh Sodhi was a husband and a father of 2 daughters.
Mr. Balbir Singh Sodhi would regularly send money to his family
that still lived in India.
Balbir Sodhi's murderer, Frank Roque had stated earlier: ``I'm
going to go out and shoot some towel heads,'' and ``We should kill
their children, too, because they'll grow up to be like their
parents.''
Four days later, Frank Roque shot Balbir Sodhi in the back 5 times.
Balbir Singh Sodhi was the first murder victim in the post-9/11
backlash.
Balbir Singh Sodhi was targeted simply because he had a beard and
wore a turban in accordance with his Sikh faith.
Such senseless acts of violence highlight how important it is for
racial profiling and discrimination to be eradicated.
The murder may have killed Balbir Singh Sodhi, but he could not
kill his spirit, which lives on in the lives of his children and his
relatives, one of whom, Hargun Sodhi is an excellent student at the
University of Houston and an intern in my office.
I look forward to hearing from today's witnesses testimony on
preventing unlawful profiling:
Mr. Bill Russell, director, homeland security and justice,
Government Accountability Office (GAO);
Mr. Sim Singh, senior manager of policy & advocacy, The Sikh
Coalition; and
Ms. Janai Nelson, associate director-counsel, NAACP Legal
Defense and Educational Fund, Inc.
My admiration and respect for the men and women of the TSA as
public servants who are our Nation's first line of defense against
terrorism that targets our Nation's transportation is well-known.
Today's hearing is not about the rank and file of the TSA who work
under different circumstances than other Federal employees--they have
no collective bargaining rights.
TSA employees are essential personnel so during the recent Federal
Government shutdown that lasted over a month, they were expected to go
to work each day, which most of them did at great personal sacrifice.
TSA professionals work long hours due to insufficient staffing.
Securing our Nation's airports requires efficiency and
effectiveness of all aspects of recruitment, training, and retention of
TSA professionals.
This hearing is about a policy that they must implement that is
void of input from TSA rank-and-file and impacts every traveler
boarding a flight originating in the United States are arriving in this
country from abroad.
TSA screening protols should reflect the real threats that exist to
our Nation's transportation systems.
In the last decade, domestic terrorism has become an increasing
concern in the United States.
In 2018, domestic extremists killed at least 50 people in the
United States, a sharp increase from the 37 extremist-related murders
documented in 2017, though still lower than the totals for 2015 (70)
and 2016 (72).
The 50 deaths made 2018 the fourth-deadliest year on record for
domestic extremist-related killings since 1970.
According to an analysis by the Washington Post, between 2010 and
2017, right-wing terrorists committed a third of all acts of domestic
terrorism in the United States (92 out of 263), more than Islamist
terrorists (38 out of 263) and left-wing terrorists (34 out of 263) put
together.
Recent unpublished FBI data leaked to the Washington Post in early
March 2019 reveal that there were more domestic terrorism-related
arrests than international terrorism-related arrests in both fiscal
year 2017 and fiscal year 2018.
From 2009 to 2018 there were 427 extremist-related killings in the
United States. Of those, 73.3 percent were committed by right-wing
extremists, 23.4 percent by Islamist extremists, and 3.2 percent by
left-wing extremists.
In short, 3 out of 4 killings committed by right-wing extremists in
the United States were committed by white supremacists (313 from 2009
to 2018).
The culmination of the 2016 mid-term election was consumed by bombs
placed in the mail addressed to Democrats.
TSA interacts more intimately with broad swaths of the public than
any other Government agency, screening over 2 million passengers every
day.
TSA policies, procedures, and technologies should reflect the
diversity of the population it serves, without disproportionately
affecting minorities.
The Government Accountability Office conducted a study to review
TSA's measures to prevent behavior detection activities from resulting
in unlawful profiling.
GAO reviewed TSA policies and procedures; analyzed passenger
complaint data received by TSA from October 2015 through February 2018
and actions taken to address them; and interviewed TSA officials.
From its findings, GAO recommends that TSA develop a specific
oversight mechanism to monitor behavior detection activities for
compliance with policies that prohibit unlawful profiling. DHS
concurred with GAO's recommendation.
Some notable statistics:
From October 2015 through February 2018, TSA received about
3,700 complaints alleging civil rights and civil liberties
violations related to passenger screening.
TSA operates at about 450 airports Nation-wide, but just 10
airports accounted for a full third of all complaints analyzed.
Approximately 2,250 of 3,663 of the complaints alleged
discrimination or profiling based on personal attributes and
characteristics.
For example, the TSA Contact Center (TCC) received
complaints alleging discrimination that involved assertions by
passengers that they had been selected for pat-downs based on
race and ethnicity, among other reasons, when the passengers
believed they did not trigger an alarm prompting the pat-downs.
The TSA TCC received complaints related to passengers'
transgender identity alleging selection for additional
screening because of their transgender status.
TCC also received passenger complaints alleging that
screening procedures were aggressive or inappropriate for
senior citizens.
The American Civil Liberties Union published a report, ``BAD TRIP:
Debunking the TSA's Behavior Detection Program,'' based on documents
the ACLU obtained in a Freedom of Information Act lawsuit.
The ACLU report reveals that materials in TSA's own files discredit
the program.
The report recommends that the TSA implement a rigorous anti-
discrimination training program for its workforce.
Specifically, the ACLU found that TSA protocols for behavior
screening misunderstand nonverbal behavior due to inadequate
understanding of cultural norms and cues.
Further, they found that nonverbal patterns typical for ethnic
groups are easily interpreted by Caucasian observers as signs of
deception.
Documents in the TSA's files underscore that physiological signs
such as blushing, sweating, or trembling have numerous potential
causes, including medical conditions.
The fact that the TSA associates those signs with stress, fear, or
deception increases the likelihood that officers will more intensively
scrutinize travelers with medical conditions.
The topic of today's hearing is important and I thank the Chairman
for his foresight in bringing today's witnesses before the committee.
I look forward to the testimony of today's witnesses.
Thank you.

Chairman Thompson. Also, we had informed the Minority weeks
ago that we intended to hold this hearing today and formal
notice of the hearing was made in full compliance with the
rules. We, too, would have wanted TSA to be here. The committee
has been engaged with TSA and other stakeholders, and this is
just part of what we have to do to look at this situation. So
we look forward to getting TSA before the committee at some
point.
I would also like to welcome our panel of witnesses today.
Our first witness, Mr. William Russell, is an acting
director of the Government Accountability Office, Homeland
Security and Justice team, where he is responsible for leading
GAO's work on aviation and transportation security. Mr. Russell
has over 17 years of experience at GAO and was previously an
assistant director in GAO's Contracting and National Security
Acquisitions team.
Mr. Sim Singh is a senior manager of policy and advocacy at
the Sikh Coalition, where he works on National advocacy issues
against hate crimes, school bullying, employer discrimination,
and racial profiling. Prior to joining the Sikh Coalition, Mr.
Singh developed apps that provide free legal resources for
highly-vulnerable communities and worked in governmental
affairs through prior positions at Facebook and the U.S.
Chamber of Commerce.
Ms. Janai Nelson is associate director-counsel for the
NAACP Legal Defense and Educational Fund, Inc., where she
helped oversee the operation of LDF's program. Prior to joining
LDF in June 2014, Ms. Nelson held senior leadership positions
at St. John's University School of Law, where she also was a
full professor of law.
Without objection, the witnesses' full statements will be
inserted in the record. I now ask each witness to summarize his
or her statement for 5 minutes, beginning with Mr. Russell.

STATEMENT OF W. WILLIAM RUSSELL, ACTING DIRECTOR, HOMELAND
SECURITY AND JUSTICE TEAM, U.S. GOVERNMENT ACCOUNTABILITY
OFFICE

Mr. Russell. Good morning, Chairman Thompson, Ranking
Member Rogers, and Members of the committee. I am pleased to be
here today to discuss perspectives on TSA's policies to prevent
unlawful profiling while screening passengers.
In our report issued today, we examined a range of issues
related to how TSA implements policies that prohibit unlawful
profiling, to include oversight of behavior detection
activities, as well as how TSA addressed passenger screening-
related complaints that allege profiling and other civil rights
and civil liberties issues.
The bottom line is that TSA has policies and procedures in
place that prohibit unlawful profiling of passengers, but can
improve oversight of its behavior detection activities related
to profiling.
Second, based on our review of passenger screening-related
complaints, TSA found indications of potential discrimination
and unprofessional conduct by screeners that involved race or
other factors for more than 1,000 of the complaints reviewed.
In terms of behavior detection oversight, TSA began using
behavior detection in a more limited way in 2016 to identify
potentially high-risk passengers who exhibit certain behaviors
it asserts are indicative of stress, fear, or deception, and
refer them for additional screening.
We found that TSA has oversight policies for behavior
detection that do prohibit unlawful profiling, but does not
specifically assess whether profiling occurs. For example,
TSA's Optimized Behavior Detection Handbook and Oversight
Guidance require supervisors to conduct routine checks on
behavior detection operations to monitor compliance with
standard operating procedures. This includes 7 specific
assessments and checklists for managers to document completion
of routine oversight.
However, our review of the checklist found that they do not
specifically instruct supervisors to monitor for compliance
with procedures intended to prohibit unlawful profiling. We
recommended that TSA develop a specific oversight mechanism to
address compliance in this regard. TSA agreed to do so and
plans to implement this recommendation by the end of September
2019.
Second, apart from behavior detection, we also examined
civil rights and civil liberty-related passenger screening
complaints received by TSA from October 2015 through February
2018 and looked at what TSA did to address those complaints.
In total, TSA received about 3,700 of these types of
complaints, the majority of which allege discrimination or
profiling based on personal attributes and characteristics, a
number of specific complaints related to hair and transgender
issues.
TSA's Multicultural Branch, the office responsible for
reviewing these types of complaints, assessed over 2,000 of
them, and for about half, 1,066 to be exact, found indications
of potential discrimination and unprofessional conduct that
involved race or other factors.
For example, in one case we reviewed a passenger alleged
profiling based on headwear. TSA officials used camera
recordings and statements from officers involved in the
encounter to substantiate that screening procedures violations
had occurred.
In response to these complaints, TSA recommended a range of
refresher training across airports or for screeners at
individual airports identified in the complaints.
We found that TSA's responses to the complainants included,
but were not limited, to apologizing for the screening
experience or informing the complainant about next steps, such
as agency plans to address the complaint or the underlying
conduct that gave rise to it. We also found that TSA reviewed
trends in the passenger complaint data and used that
information to further inform and update screener training.
In conclusion, TSA can improve how it conducts oversight of
behavior detection activities related to profiling and should
continue efforts to identify and address passenger screening
complaints that allege civil rights and civil liberty issues.
Chairman Thompson, Ranking Member Rogers, this concludes my
prepared remarks. I look forward to any questions you may have.
[The prepared statement of Mr. Russell follows:]
Prepared Statement of W. William Russell
June 4, 2019
aviation security.--tsa has policies that prohibit unlawful profiling
but should improve its oversight of behavior detection activities
gao-19-490t
Chairman Thompson, Ranking Member Rogers, and Members of the
committee: I am pleased to be here today to discuss mechanisms the
Transportation Security Administration (TSA) uses to prevent unlawful
profiling while screening passengers using behavior detection
techniques. TSA uses behavior detection to identify potentially high-
risk passengers who exhibit certain behaviors it asserts are indicative
of stress, fear, or deception, and refer them for additional screening
or, when warranted, to law enforcement.\1\ Although TSA's policies and
procedures prohibit unlawful profiling, and screeners are prohibited
from selecting passengers for additional screening based on race,
ethnicity, or other factors, allegations of racial profiling have
raised questions about TSA's use of behavior detection.
---------------------------------------------------------------------------
\1\ We reported in November 2013 that available evidence did not
support whether behavioral indicators can be used to identify persons
who may pose a risk to aviation security. We recommended that TSA limit
future funding support for the agency's behavior detection activities
until TSA could provide scientifically-validated evidence that
demonstrates that behavioral indicators can be used to identify
passengers who may pose a threat to aviation security. In 2017, we
reported that TSA had reduced funding for behavior detection activities
and revised its behavioral indicators. We stated that TSA should
continue to limit funding for such activities until it can provide
valid evidence demonstrating that behavioral indicators can be used to
identify passengers who may pose a threat to aviation security. GAO,
Aviation Security: TSA Should Limit Future Funding for Behavior
Detection Activities, GAO-14-159 (Washington, DC: Nov. 8, 2013); and
Aviation Security: TSA Does Not Have Valid Evidence Supporting Most of
the Revised Behavioral Indicators Used in Its Behavior Detection
Activities, GAO-17-608R (Washington, DC.: July 20, 2017).
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My testimony today discusses: (1) How TSA trains screeners who
engage in behavior detection on policies and procedures that prohibit
unlawful profiling; (2) TSA's oversight of behavior detection
activities; (3) the number of complaints TSA received alleging
violations of civil rights and civil liberties related to passenger
screening from October 2015 through February 2018, and actions taken by
TSA to address them; and (4) how TSA used complaint data to inform
screener training.
This statement summarizes our April 2019 report on TSA's measures
to prevent behavior detection activities from resulting in unlawful
profiling.\2\ For this work, we reviewed TSA policies and procedures;
interviewed TSA officials; and analyzed civil rights and civil
liberties complaints made by passengers from October 2015 through
February 2018 and actions taken by TSA to address them.
---------------------------------------------------------------------------
\2\ GAO, Aviation Security: TSA Has Policies that Prohibit Unlawful
Profiling But Should Improve Its Oversight of Behavior Detection
Activities, GAO-19-268 (Washington, DC: April 23, 2019).
---------------------------------------------------------------------------
Further details on the scope and methodology for the April 2019
report are available within the published product. The work on which
this statement is based was conducted in accordance with generally
accepted Government auditing standards.
background
TSA's Use of Behavior Detection
The Aviation and Transportation Security Act established TSA as the
Federal agency with primary responsibility for securing the Nation's
civil aviation system, which includes the screening of all passengers
and property transported by commercial passenger aircraft.\3\ At the
approximately 440 TSA-regulated airports in the United States, all
passengers, their accessible property, and their checked baggage are to
be screened prior to boarding an aircraft or entering the sterile area
of an airport pursuant to statutory and regulatory requirements and
TSA-established standard operating procedures.\4\ TSA began using
behavior detection in 2006 as an added layer of security to identify
potentially high-risk passengers.
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\3\ See Pub. L. No. 107-71, 101(a), 115 Stat. 597 (2001); 49
U.S.C. 114. For purposes of this statement, ``commercial passenger
aircraft'' generally encompasses the scheduled passenger operations of
U.S.-flagged air carriers operating in accordance with their TSA-
approved security programs and foreign-flagged air carriers operating
in accordance with security programs deemed acceptable by TSA. See 49
C.F.R. 1544 (governing U.S.-flagged air carriers) and 1546 (governing
foreign-flagged air carriers).
\4\ See 49 C.F.R. 1540.5 (defining the sterile area of the
airport as, in general, an area of an airport that provides passengers
access to boarding aircraft and to which access is controlled through
the screening of persons and property).
---------------------------------------------------------------------------
Through the end of fiscal year 2016, TSA's behavior detection
screening process was a stand-alone program that used specially-trained
Behavior Detection Officers to observe passengers at the screening
checkpoint and engage them in brief verbal exchanges. If the Behavior
Detection Officers determined during this interaction that a passenger
exhibited a certain number of behavioral indicators, the Behavior
Detection Officer was to refer the passenger for additional screening
or, if circumstances warranted, contact a law enforcement officer. The
law enforcement officer then would determine next steps, which could
include questioning the passenger or conducting a criminal background
check. The law enforcement officer then would determine whether to
release the passenger, refer the passenger to another law enforcement
agency, or arrest him or her.
In fiscal year 2017, consistent with the Aviation Security Act of
2016, TSA eliminated the stand-alone Behavior Detection Officer
position.\5\ TSA transferred the former Behavior Detection Officers to
serve as part of the screener workforce and began assigning them to the
checkpoint to screen passengers. According to TSA officials, when
screeners trained in behavior detection are assigned to a position, TSA
policies and procedures permit them to use behavior detection when
applicable. Furthermore, some screeners trained in behavior detection
work in conjunction with canine teams to observe passenger behavior and
identify passenger behaviors that may indicate that a passenger poses a
higher risk to the aviation system.\6\
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\5\ See Pub. L. No. 114-190, 3304(a)(1), 130 Stat. 615, 655
(2016) (requiring that TSA, not later than 30 days after enactment
(enacted July 15, 2016), utilize Behavior Detection Officers for
passenger and baggage security screening, including the verification of
traveler documents, particularly at designated TSA PreCheck lanes to
ensure that such lanes are operational for use and maximum efficiency).
\6\ TSA deploys passenger screening canine teams that are trained
to detect explosives being carried by or worn on a person. TSA uses
combinations of behavior detection and passenger screening canine teams
to help ensure that individuals who have been selected for expedited
screening do not exhibit high-risk behaviors or otherwise present a
risk to the traveling public. Expedited screening is a process that TSA
uses to assess a passenger's risk to aviation security prior to the
passenger arriving at an airport checkpoint. GAO, Aviation Security:
TSA's Managed Inclusion Process Expands Passenger Expedited Screening,
but TSA Has Not Tested Its Security Effectiveness, GAO-15-465T
(Washington, DC: Mar. 25, 2015).
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TSA's Oversight of Behavior Detection
TSA's Security Operations is responsible for overseeing the use of
behavior detection. TSA's behavior detection policies and procedures
prohibit screeners from selecting passengers for additional screening
based on race, ethnicity, religion, and other factors, whether through
behavior detection or other security measures. This responsibility
includes overseeing officers trained in behavior detection to ensure
they conduct behavior detection without regard to race/ethnicity,
color, gender/sex, gender identity, religion, national origin, sexual
orientation, or disability, in accordance with constitutional,
statutory, regulatory, and other legal and Department of Homeland
Security (DHS) policy requirements to protect the civil rights and
civil liberties of individuals. Although the stand-alone Behavior
Detection Officer position was eliminated and the program ended in
2017, the requirement to conduct oversight and verify compliance with
TSA policies still applies when behavior detection is used, such as
when behavior detection is used in conjunction with passenger screening
canine teams.
Passenger Complaint Review and Referral Process
The TSA Contact Center (TCC) is the primary point of contact for
collecting, documenting, and responding to public questions, concerns,
or complaints regarding passengers' screening experience; reports and
claims of lost, stolen, or damaged items; and complaints submitted by
TSA employees.\7\ The TCC may refer screening complaints for resolution
to other TSA headquarters offices, depending on the specific
allegation. For example, complete complaints alleging violations of
civil rights and civil liberties, which include allegations implicating
color, race, ethnicity, gender, genetic information, national origin,
religion, sexual orientation, and parental status, must be referred to
the Multicultural Branch.\8\ Figure 1 describes the TCC's complaint
review process.
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\7\ Questions, concerns, or complaints submitted to the TCC
regarding passengers' screening experience may relate to any and all
aspects of the screening process and are not necessarily specific or
related to behavior detection activities. In this statement, we use
``employees'' to refer to current and former TSA employees who
submitted complaints alleging civil rights and civil liberties
violations related to TSA employment to the TCC. The TCC is responsible
for receiving these employee complaints and referring them to TSA's
Equal Employment Opportunity office for review.
\8\ According to the TCC standard operating procedures, TCC
analysts review the complaints to ensure that they contain the
necessary information to be considered complete, including the airport,
passenger's name, date of the alleged incident, and description of the
alleged civil rights and civil liberties violation.

The Multicultural Branch, in consultation with Security Operations,
determines whether a screener followed standard operating procedures
while screening the complainant by reviewing available video of an
incident or interviewing witnesses. Following the outcome of the
complaint review and any resulting corrective actions, the TSA
headquarters unit or the TSA customer support manager at the airport is
to communicate the status of the resolution, if any, to the
complainant--such as by using a template letter that explains TSA's
policies and procedures or issuing an apology.
screeners conducting behavior detection receive training on tsa's
policies and procedures that prohibit unlawful profiling
As we reported in April 2019, before screeners are eligible to
conduct any behavior detection activities, they must first complete a
5-day Optimized Behavior Detection Basic Training course, and undergo
on-the-job training at their local airport. This course includes an
overview of DHS and TSA policies that prohibit unlawful profiling, and
trains screeners to apply behavioral indicators to passengers without
regard to race/ethnicity, color, gender/sex, gender identity, religion,
national origin, sexual orientation, or disability.\9\ In addition,
TSA's 2018 National Training Plan required behavior detection-trained
screeners to complete 4 recurrent technical training courses related to
behavior detection, including 2 that contain material reinforcing DHS's
and TSA's policies prohibiting unlawful profiling.\10\
---------------------------------------------------------------------------
\9\ According to TSA policy, screeners may only use discernible
traits to screen passengers when 3 conditions are met: (1) They are
directed to do so by their Federal Security Director; (2) the directive
is based on specific intelligence information; and (3) the directive is
time-limited.
\10\ The National Training Plan, which is developed annually,
guides the training requirements for all screeners for a given year.
---------------------------------------------------------------------------
tsa has oversight policies for behavior detection and prohibits
unlawful profiling but does not specifically assess whether profiling
occurs
In April 2019, we reported that TSA policy and guidance requires
managers to ensure behavior detection is conducted without regard to
race or ethnicity, among other factors. TSA uses 7 oversight checklists
to assess whether behavior detection activities are conducted in
accordance with TSA policy, such as monitoring whether screeners
trained in behavior detection observe and engage passengers correctly.
However, our review of these checklists found that they do not instruct
supervisors to monitor for indications of profiling. According to TSA
officials, TSA's guidance and checklists do not include this type of
monitoring because TSA officials believe that the training screeners
receive, adherence to its operating procedures, and general supervisory
oversight are sufficient to alert supervisors to situations when
unlawful profiling may occur. However, a 2013 DHS memorandum addressing
unlawful profiling states that each component, including TSA, should
both implement specific policy and procedures on racial profiling, and
ensure all personnel are trained and held accountable for meeting the
standards set forth in DHS policy.\11\ For TSA, such a policy or
procedure could be an item added to a checklist for supervisors to
document, based on their observations, whether screeners selected
individuals for additional scrutiny in a manner consistent with
policies and procedures related to behavior detection activities and
unlawful profiling. Developing a specific mechanism to monitor behavior
detection activities for compliance with policies prohibiting unlawful
profiling would provide TSA with greater assurance that screeners are
adhering to such policies.
---------------------------------------------------------------------------
\11\ Department of Homeland Security, Memorandum for Component
Heads from Secretary Napolitano: The Department of Homeland Security's
Commitment to Nondiscriminatory Law Enforcement and Screening
Activities (Apr. 26, 2013). The DHS memorandum further states that DHS
``has explicitly adopted'' the Department of Justice's ``Guidance
Regarding the Use of Race by Federal Law Enforcement Agencies,'' issued
in June 2003. According to the DHS memorandum, ``[i]t is the policy of
DHS to prohibit the consideration of race or ethnicity in [its] daily
law enforcement and screening activities in all but the most
exceptional instances,'' as defined in Department of Justice guidance.
See United States Department of Justice, Civil Rights Division,
Guidance Regarding the Use of Race by Federal Law Enforcement Agencies
(Washington, DC: June 2003).
---------------------------------------------------------------------------
In our April 2019 report, we recommended that the TSA administrator
direct Security Operations to develop a specific oversight mechanism to
monitor the use of behavior detection activities for compliance with
DHS and TSA policies that prohibit unlawful profiling. DHS agreed with
our recommendation and stated that TSA plans to take additional steps
to continue to ensure behavior detection activities adhere to policies
that prohibit unlawful profiling. Specifically, TSA plans to modify
existing oversight checklists used by managers and supervisors to
include specific terminology for monitoring unlawful profiling. DHS
estimates that this effort will be completed by September 30, 2019.
tsa received 3,663 complaints alleging civil rights and civil liberties
violations involving passenger screening in recent years, and
recommended training in certain cases
The TCC Received 3,663 Complaints Related to Passenger Screening and a
Majority Alleged Discrimination or Profiling Based on Personal
Attributes and Characteristics
In April 2019, we reported that the TCC received 3,663 complaints
related to passenger screening alleging violations of civil rights and
civil liberties from October 2015 through February 2018. These
complaints are not specific to behavior detection activities and
generally reflect alleged conduct occurring at the screening checkpoint
through the application of screening measures. We analyzed the 3,663
complaints and found that the majority (2,251 of 3,663) of the
complaints alleged discrimination or profiling based on personal
attributes and characteristics.\12\ For example, the TCC received
complaints alleging discrimination that involved assertions by
passengers that they had been selected for pat-downs based on race and
ethnicity, among other reasons, when the passengers believed they did
not trigger an alarm prompting the pat-downs.\13\ The TCC also received
complaints related to passengers' transgender identity alleging
selection for additional screening because of their transgender status.
Additionally, the TCC received passenger complaints alleging that
screening procedures were aggressive or inappropriate for senior
citizens. Table 1 provides a list of complaint types based on our
analysis. In addition, our April 2019 report provides additional detail
about our content analysis of complaints alleging civil rights and
civil liberties violations.\14\
---------------------------------------------------------------------------
\12\ These complaints alleged discrimination or profiling based on
personal attributes and characteristics related to, among other things,
an individual's race, ethnicity, national origin, language, gender,
age, and hair.
\13\ Standard screening typically includes passing through a walk-
through metal detector or advanced imaging technology (AIT) machine,
which identifies objects or anomalies on the outside of the body.
Passengers may be subject to a pat-down if they are screened by the AIT
or walk-through metal detector and the equipment alarms. Pursuant to
TSA standard operating procedures for screening at the checkpoint,
triggering an alarm is not the only reason why a passenger may be
selected for a pat-down or additional screening measures.
\14\ GAO-19-268.

TABLE 1.--COMPLAINTS RECEIVED BY THE TRANSPORTATION SECURITY ADMINISTRATION (TSA) CONTACT CENTER (TCC) ALLEGING
CIVIL RIGHTS AND CIVIL LIBERTIES VIOLATIONS RELATED TO PASSENGER SCREENING AND CATEGORIZED BY PERSONAL
ATTRIBUTES AND CHARACTERISTICS OR BY ALLEGED ADVERSE ACTIONS, OCTOBER 2015 THROUGH FEBRUARY 2018
----------------------------------------------------------------------------------------------------------------
Category Frequency Percentage General Description
----------------------------------------------------------------------------------------------------------------
Discrimination/profiling--national origin, 1,532 42 Questions, concerns, or allegations
language, race/ethnicity. about profiling or discrimination
based on the individual's national
origin, language, race, or ethnicity,
or discrimination/profiling in general
(no reason specified).
Pat-down........................................ 493 13 Questions, concerns, or allegations
about a pat-down that was possibly
invasive or overly aggressive,
including pat-downs that the passenger
alleges occurred due to their race/
ethnicity.
Hair............................................ 279 8 Questions, concerns, or allegations
about receiving a hair pat-down.
Sex/gender/gender identity, excluding 271 7 Questions, concerns, or allegations of
transgender. discrimination based on gender,
including gender identity concerns:
e.g., the passenger asserts that a
screener of the wrong gender started
to conduct the pat-down. Also includes
allegations of differential treatment
based on their sex/gender. No mention
of race/ethnicity.
Religion........................................ 200 5 Questions, concerns, or allegations of
discrimination based on perceived
religion, e.g., a passenger alleges
being subjected to additional
screening because he or she appears to
be part of a religious group or has a
name that may make him or her appear
to be part of a religious group.
Transgender..................................... 169 5 Questions, concerns, or allegations
about transgender screening, e.g., a
transgender passenger alleges that she
always has to undergo a pat-down
because TSA's technology is based on a
binary male/female system.
Other--civil rights and civil liberties related. 316 9 Combination of categories such as age,
sexual orientation, and Constitutional
rights, among others.*
Other--not related to passenger screening....... 403 11 Combination of categories such as
employee complaints, or those not
related to passenger screening.**
---------------------------------------------------------------
Total..................................... 3,663 100 .......................................
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of TSA complaint data./GAO-19-490T
Note: We use the term ``passengers'' to refer to individuals--including ticketed passengers, individuals
accompanying ticketed passengers, and any other individuals not considered an employee for purposes of this
statement--who submitted complaints alleging civil rights and civil liberties violations related to TSA
screening procedures to the TCC. In addition, we use ``employees'' in this table to refer to current and
former TSA employees who submitted complaints alleging civil rights and civil liberties violations related to
TSA employment to the TCC. The TCC is responsible for receiving these employee complaints and referring them
to TSA's Equal Employment Opportunity office for review.
* Constitutional rights may include questions, concerns, or allegations raising freedom of speech or
unreasonable search-and-seizure issues.
** Matters not related to passenger screening may include information received by the TCC that TSA characterizes
as conspiracy theories or other information unrelated to TSA screening processes.

TSA's Multicultural Branch Reviewed More Than 2,000 Complaints and
Recommended a Range of Screener Training
From October 2015 through February 2018, the Multicultural Branch
received 2,059 complaints, including approximately 1,900 from the TCC
as well as complaints referred from other TSA offices, alleging
violations of civil rights and civil liberties, as shown in figure
2.\15\
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\15\ TSA's Multicultural Branch receives complaint referral from
multiple sources, including the TCC, DHS's Office of Civil Rights and
Civil Liberties, TSA's Disability Branch, and TSA personnel at
airports.

For about half of the complaints (1,066) the Multicultural Branch
reviewed, it found indications of potential discrimination and
unprofessional conduct that involved race or other factors and
recommended a range of refresher training across airports or for
screeners at individual airports identified in the complaints. As we
reported in April 2019, Multicultural Branch officials told us that its
policy is to recommend refresher training as a proactive measure when,
for example, they are unable to determine if the alleged civil rights
and civil liberties violations occurred. Multicultural Branch officials
said these trainings were provided through National Shift Briefings,
which were circulated across TSA, or through training provided at a
particular airport.\16\
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\16\ National Shift Briefings provide a reminder to all screening
personnel of their role in ensuring that security measures are
appropriately applied in accordance with TSA policies and procedures.
---------------------------------------------------------------------------
In addition, TSA's office of Human Capital Employee Relations
reported that it took a range of disciplinary actions--from letters of
reprimand to termination--for 100 screeners from October 2015 through
February 2018, in part in response to passenger complaints alleging
civil rights and civil liberties violations.\17\
---------------------------------------------------------------------------
\17\ TSA officials reported that none of the complaints that
resulted in the disciplinary actions were specific to behavior
detection. TSA's Human Capital Employee Relations officials determined
that more than 60 percent of the 100 screeners used inappropriate
comments or were engaged in misconduct, including offensive comments or
actions based on another's race, national origin, and/or sex, among
other factors.
---------------------------------------------------------------------------
tsa's multicultural branch analyzes and shares passenger complaint data
to inform screener training
In April 2019, we reported that TSA's Multicultural Branch
regularly collects and analyzes data on passenger civil rights and
civil liberties and discrimination complaints and their resolution
status, and shares this information with TSA executive leadership, TSA
airport customer service managers, and screeners in the field, among
others. According to TSA officials, the Multicultural Branch uses its
analysis of passenger complaints and the results of complaint
investigations to develop training aids and materials on areas where
they determine screeners need more training, such as multicultural
awareness or screening of transgender passengers. For example, the
Multicultural Branch has developed briefings focusing on unlawful
profiling and unconscious bias which reiterated that unlawful profiling
is against TSA policy, defined unconscious bias, and provided scenario-
based examples. Additionally, members from the Multicultural Branch
hold on-site training for screeners at selected airports each year
based on complaint data analysis and other factors. These training
sessions last 3 days, include topics stemming from complaint data TSA
has analyzed, and can include webinars, role-playing, and other forms
of instruction.
Chairman Thompson, Ranking Member Rogers, and Members of the
committee, this concludes my prepared statement. I would be pleased to
respond to any questions that you may have at this time.

Chairman Thompson. Thank you very much for your testimony.
I now recognize Mr. Singh to summarize his statement for 5
minutes.

STATEMENT OF SIM J. SINGH, SENIOR MANAGER OF POLICY AND
ADVOCACY, THE SIKH COALITION

Mr. Singh. I would like to thank this committee, including
Chairman Thompson and Ranking Member Rogers, for their
leadership and the opportunity to appear here today.
My name is Sim J. Singh, and I am the senior manager of
advocacy and policy at the Sikh Coalition, the Nation's largest
Sikh American civil rights organization. We are a nonpartisan
nonprofit focused on combating and preventing hate in America.
We recognize the importance of TSA's mission to protect
this Nation's transportation systems to ensure freedom of
movement for people and commerce. However, if that is TSA's
mandate, they must ensure the freedom of movement for all
people, regardless of their race, sex, gender identity,
national origin, religion, and disability.
In 2019, we continue to receive complaints from Sikh
travelers across the Nation reporting troubling incidents of
profiling and discrimination. Oftentimes, these incidents
involve secondary screening demands without any TSA technology
indicating there is a problem.
These discriminatory actions, combined with a lack of clear
traveler guidance, has led to Sikh passengers feeling
frustrated and singled out because they experience inconsistent
TSA security screenings between airports and even within
specific airports of frequent travel.
While TSA's increased reliance on technology has come with
Government assurances that it would mitigate against the need
for pat-downs and searches that violate basic civil rights,
this has not solved the discriminatory and invasive screening
practices that enable the profiling of Sikhs.
As a Sikh American and frequent traveler who maintains my
religious articles of faith, I almost always experience an AIT
alarm indicating that my turban is a problem and that I must
undergo additional screening, ordinarily by explosive trace
detection, a device that we receive many complaints about for
false alarms, usually because the TSO failed to change their
gloves and/or the ETD swab.
Additional screening and searches for observant Sikhs
remains highly probable, reinforcing that current TSA
technology, policies, and procedures continue to single out and
target our community.
The message at airports across the country to millions of
passengers watching: Sikhs are outsiders that somehow pose
threats worthy of investigating, regardless of how pretextual
that investigation is.
These discriminatory practices continue to shift the focus
away from the TSA's top priority of protecting our Nation. The
Office of the Inspector General has repeatedly documented
threats, such as guns, knives, and explosives, breezing through
TSA security checkpoints with ease. As TSA continues to
disproportionately focus on discriminatory behaviors, like Sikh
religious articles of faith, it takes away from the necessary
focus--combating credible threats.
Unlike most Americans, Sikhs are continually asked to pay a
price for exercising our Constitutional rights by submitting to
routine and frequent searches by TSA. It further perpetuates
negative stereotypes and falsely validates the myth of racial
and religious communities posing a threat to our country.
TSOs and other passengers witnessing minorities
disproportionately receiving these additional screenings leads
to the creation of implicit and explicit biases that
detrimentally influence security policies and behavior, which
justify scrutinizing specific kinds of travelers on racial or
religious grounds.
That begs the question: Are we really going to always
select a Sikh for additional screening because he or she wears
a turban? More importantly, why is this treatment considered
acceptable?
We request Members of this committee and Congress to
reintroduce and pass the End Racial Profiling Act to
comprehensively address bias and limit the harmful impacts of
algorithmic bias.
Second, our Government must correct screening policies and
procedures that enable profiling, such as TSO abuses of
discretion that is often used as a pretext to profile.
Third, any new technology or procedures must reduce the use
of pat-downs and ensure that travelers aren't singled out based
on their race, religion, or gender. These invasive TSO-
administered pat-downs should be an absolute last resort where
other screening procedures cannot revolve an alarm.
Last, Congress should mandate independent and regular civil
liberties impact assessments and require data collection on
secondary screening incidents by the TSA.
It is our sincere hope that this committee and TSA address
the need for profiling protections and eliminate discriminatory
practices, not just for the religiously observant Sikhs and
Muslims, but also for the disability, transgender, and other
minority communities.
It is not a coincidence that the American public continues
to fear and discriminate against those whom our Government
continues to discriminate against. When a turbaned Sikh is
routinely subjected to secondary screenings without cause, it
further validates every false stereotype that contributes to
Sikhs remaining hundreds of times more likely to experience
bias, bigotry, or backlash in America.
We are deeply appreciative for the time given today for the
Sikh American community to raise our concerns.
[The prepared statement of Mr. Singh follows:]
Prepared Statement of Sim J. Singh
June 4, 2019
Chairman Thompson, Ranking Member Rogers, and Members of the
committee: My name is Sim J. Singh, and I am the senior manager of
advocacy & policy for the Sikh Coalition. Thank you for the opportunity
to testify regarding the efforts of the Transportation Security
Administration (TSA) to engage the traveling public. The Sikh Coalition
is the Nation's largest Sikh American civil rights organization, non-
profit, non-partisan foundation founded in 2001 in response to numerous
cases of discrimination against Sikh Americans after 9/11. Our mission
has been to work toward a Nation where Sikhs--who have been part of the
American fabric for over 125 years--and other religious minorities in
America, may freely practice their faith without bias and
discrimination.
In addition to conducting public education, pro-bono legal aid,
National research, and community empowerment, the Sikh Coalition works
with Federal, State, and local agencies on a wide range of issues, and
we have engaged with TSA since its inception. My testimony will focus
on the challenges facing Sikh travelers, and our engagement with TSA.
Please know that, we view these challenges as part of a broader
spectrum of privacy and civil rights concerns that affect large
segments of the traveling public. Those concerns are acutely amplified
by travelers of intersectional identities of race, sex, gender
identity, National origin, religion, and disability.
Organizationally, we have worked with TSA to help reduce some of
the inequities that travelers face based on their protected
characteristics. Since 2001, the Sikh Coalition has trained thousands
of Transportation Security Officers (TSOs) and Customs and Border
Protection officers at airports across the country in providing
cultural competency on the Sikh religious articles of faith. We have
also advised TSA's multicultural branch on specific policy
considerations, training gaps, and community outreach needs. Over the
course of the last 18 years we have created several iterations of a
traveler's guide to ``Know your Rights'', which TSA has vetted and
provided feedback for in order to make it as accurate and consistent
with TSA policy as possible.\1\
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\1\ See Exhibit B and Exhibit C.
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In 2012, we made filing complaints against TSA more accessible by
introducing a free mobile app called FlyRights. It was the first-of-
its-kind mobile app created to combat profiling at airports and is
still in use today. The app allows travelers to formally report
incidents in real time and have those complaints routed to TSA and DHS
so that they will be treated as official and actionable. Our app was
adopted not just by Sikh travelers, but travelers of all walks of life
with over 10,000 downloads. When it was first launched DHS reported a
mere 8 complaints for 2012, while FlyRights documented 157 for the same
year.\2\ In total the app helped facilitate approximately 1,000
complaints at 112 airports and provides insights of the issues the
traveling public is facing when it comes to TSA engagement on a daily
basis.
---------------------------------------------------------------------------
\2\ ``FlyRights'' by the Sikh Coalition, 2012, available at https:/
/www.fly-rights.org/infographic_2013.pdf.
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The Sikh Coalition recognizes the importance of TSA's mission to
protect the Nation's transportation systems to ensure freedom of
movement for people and commerce. We believe that the agency's mission
statement can be more than aspirational. If the agency is going to
ensure the freedom of movement for people, it must do so for ALL
people, regardless of their race, sex, gender identity, national
origin, religion and disability. Sometimes it takes difficult
conversations like these to ensure TSA is living up to the standards it
has set out for itself, and to uphold the civil liberties of all
individuals. I'm sure we can all agree that our Government should not
penalize anyone because of their protected characteristics.
To be clear, profiling not only stigmatizes victims but also makes
our Nation less safe because it redirects limited security resources
away from detecting and preventing actual criminal behavior and
security threats. Sikhs, like all other travelers, have the right to be
free from profiling based on the wear of our articles of faith. As a
concerned citizen and proud American, I am alarmed to hear that the
Homeland Security Inspector General revealed that undercover
investigators were able to smuggle banned weapons, such as fake guns,
knives, and explosives, through checkpoints 70 percent of the time--
actions which could have been prevented if TSA had a better
implementation of its resources and policies.\3\ The TSA shouldn't keep
their eyes focused on my turban, rather security officials need to keep
their eyes on the real threats such as the guns, knives, and explosives
that have a 70 percent rate of passing a security checkpoint. With
better technology, clearer and more transparent screening standards,
increased oversight, and mechanisms in place to ensure civil rights
compliance, our security resources can enable the agency to focus on
the real threats facing our Nation.
---------------------------------------------------------------------------
\3\ ``TSA Misses 70 percent Of Fake Weapons But That's An
Improvement'' by Forbes November 9, 2017 available at https://
www.forbes.com/sites/michaelgoldstein/2017/11/09/tsa-misses-70-of-fake-
weapons-but-thats-an-improvement/#5a2deb2a38df.
---------------------------------------------------------------------------
background
Sikhism is the fifth-largest organized world religion, with more
than 25 million adherents throughout the world. Sikhs have been in the
United States for 125 years and approximately 500,000 followers live
here. The core teachings of the Sikh religion are that there is one God
and that all human beings are created equal, regardless of distinctions
such as their religion, race, sex, or caste. Observant Sikhs are
distinguished by visible articles of faith, including uncut hair, which
Sikhs, both men and women, will cover with a religiously mandated
turban which must be worn at all times.
Although the Sikh turban signifies a commitment to upholding
freedom, justice, and dignity for all people, the physical appearance
of a Sikh is often ignorantly and negatively conflated with images of
foreign terrorists, some of whom also wear turbans and many of whom
have received copious publicity in our mainstream media in the post-9/
11 environment. More troubling is that our physical appearance has
invoked bias against our community. As far back as the early 20th
Century, Sikhs have been ridiculed and stereotyped because of their
appearance, and continue to be subjected to unusually high rates of
discrimination and profiling based on these articles of faith. Today
Sikhs continue to face disproportionately higher rates of secondary
screening by TSA in comparison to the average traveler.
challenges faced by religiously observant travelers
TSA was established in the aftermath of Sept. 11, 2001 to help
secure weaknesses in existing airport security procedures. In that same
time period, hundreds of Sikh Americans were put on the receiving end
of backlash attacks, harassment, and discrimination. Not only were
Sikhs facing brutal physical assaults, murder, and intimidation within
their neighborhoods, but law enforcement was also turning against Sikhs
and other racial and religious minorities by subjecting people like us
to profiling. At the time, TSA was no exception to profiling Sikhs
because of their external appearance, subjecting Sikhs to a 100 percent
screening rate at airports across the country.
The removal of the turban--which Sikhs view as an extension of
their body--is highly personal and sensitive and is akin to a strip
search. Removal of the turban is not just a mere inconvenience for
Sikhs, as re-tying a turban can take a significant period of time. It
is considered a great dishonor for anyone to violate another's turban
by removing it, and it is highly disrespectful to touch it with
unwashed hands or by anyone who does not themselves adhere to the
tenets of the faith. As you can imagine TSA's security protocol on
religious headwear was deeply problematic for religious observance and
civil rights, as it was patently similar to frisking an individual
without suspicion or probable cause. The reason Sikhs are frisked is
plainly stated by TSOs--it is because we wear turbans on our heads, and
not that they actually believe we are hiding something underneath
it.\4\
---------------------------------------------------------------------------
\4\ ``Sikh Americans' `Raw Deal' at Airport Security'' by The
Washington Post, November 29, 2013 available at https://
www.washingtonpost.com/opinions/sikh-americans-raw-deal-at-airport-
security/2013/11/29/8aab1dc6-5790-11e3-8304-caf30787c0a9_story.html.
---------------------------------------------------------------------------
Anyone with religious headwear was mandated to remove their article
of faith at TSA checkpoint until October 2007. After receiving numerous
complaints we worked with TSA to help modify the agency's screening
policy to better balance the needs of National security and civil
rights. We arrived at a policy that allowed for self-pat-downs of
religious headwear and presenting hands for additional screening with
Explosive Trace Detection (ETD) devices.\5\ The new procedures,
designed to detect non-metallic objects, allow the Sikh traveler to
request a self-pat-down of their turban instead of an officer-conducted
pat-down. A Sikh turban or other religious head covering may only be
asked to be removed if the traveler wearing it does not successfully
clear the additional screening measures that are in place.
---------------------------------------------------------------------------
\5\ ``The Public Face of TSA: Examining the Agency's Outreach and
Traveler Engagement Efforts'' by the Transportation Security
Administration, March 5, 2018 available at www.tsa.gov/news/testimony/
2018/02/27/public-face-tsa-examining-agencys-outreach-and-traveler-
engagement.
---------------------------------------------------------------------------
For Sikh Americans and other minority groups, biases against
travelers are prevalent at every stage of the traveling process. This
bias starts with the fact that TSOs do not receive adequate training on
TSA policies or cultural competencies, which is evident from the moment
many stigmatized groups arrive at the airport and have to go through
behavioral detection before reaching security. It continues as these
passengers pass through security, proceed past the security screening
area, and in many cases even as these individuals are boarding their
flights. For example, TSA has employed behavioral detection--a junk
science--disproportionately targets segments of the traveling public
for additional screening based on their racial or religious
characteristics even before they enter the screening area. Once a
traveler is within the screening area, inconsistent application of
procedures--including the implementation of ``local rules'' on
screening, unfettered TSO discretion, and biased technology single out
specific groups of passengers more than others. Profiling continues to
reverberate throughout the security landscape even after leaving the
screening area with reports of TSOs attempting to haul passengers back
for additional screening.\6\ This is often unacceptably exacerbated
when the general traveling public expresses discomfort with traveling
alongside passengers perceived to be Muslim, Middle-Eastern, Arab, and
South Asian.\7\ To be clear, it is the Government's responsibility to
remain above the fray when this type of public hysteria breaks out, and
TSA should not be engaging in profiling activities as a result.
---------------------------------------------------------------------------
\6\ ``TSA Tells Sikh Man To Remove Turban, Finds Out He's A
Canadian Politician'' by HuffPost, May 11, 2018 available at
www.huffpost.com/entry/tsa-sikh-canadian-
politician_n_5af5dbb3e4b00d7e4c1a643f?guccounter=1&guce_referrer=aHR0cHM
6Ly93d3cuZ29v-
Z2xlLmNvbS8&guce_referrer_sig=AQAAAKnkncIsC_AlUNqKhr0UwyHDIqekBXfhAtqty4
e5J- _I8_eKOx_j4kOfw6_NPMuJD2rqBvt6ZkJAHerdZo9mfbQ-
fQHlRFK6yX8HGmEv_D5Cf- LX5Axuc3oU89g-
PbTfVJFnuulwz63XRLqHteBhFxGG9SCLqoQhV4IT77w1trZZL.
\7\ ``Jess Hilarious profiled four Sikhs on a plan. Our government
does so every day.'' By RNS, March 18, 2019 available at https://
religionnews.com/2019/03/18/jess-hilarious-profiled-four-sikhs-on-a-
plane-our-government-does-so-every-day/ and ``College Student Is
Removed From Flight After Speaking Arabic on Plane'' by The New York
Times, April 17, 2016 available at www.nytimes.com/2016/04/17/us/
student-speaking-arabic-removed-southwest-airlines-plane.html and
``Four Passengers Removed from Flight at BWI That Was Headed to
Chicago'' by The Washington Post, November 17, 2015 available at
www.washingtonpost.com/local/trafficandcommuting/four-passengers-
removed-from-flight-at-bwi-that-was-headed-to-chicago/2015/11/17/
554cc46a-8d38-11e5-acff-673ae92ddd2b_story.html?utm_term=.26ce2023550d
and ``Ivy League Professor Kicked Off Plane For Writing `Arabic
Symbols,' '' AKA Math Equations'' by Mic, May 7, 2019 available at
www.mic.com/articles/142926/ivy-league-professor-kicked-off-plane-for-
writing-arabic-symbols-aka-math-equations#.JYhQijNto.
---------------------------------------------------------------------------
technology reinforcing biases
Not only are minority communities subjected to bias-based profiling
by policies and procedures enabling discretion to be used as pretext
for profiling, but the technology utilized to dispel bias-based
suspicions reinforce negative stereotypes. The technology currently in
use does not help reduce incidents of profiling; rather it ensures that
secondary screening will transpire more frequently and adds needless
delays, unwelcomed humiliation, and frustration as passengers with
bulky clothing or certain hairstyles that are not equally subjected to
TSA policies. Algorithmic biases like these are dangerous because
algorithms are often perceived to be neutral and project greater
authority than human expertise. Travelers feel that they cannot
complain about the bad results generated by the machine or the TSO
operating the device.
In practice new policies adopted to screen religious headwear have
not been implemented in a manner that is consistent, respectful, or
accurate in threat detection. In many airports, TSOs are not adequately
trained on TSA policies and procedures when it comes to screening and
searching religious articles of faith. The option of a self-pat-down by
a passenger is not proactively offered by the TSO. As such travelers
often feel they have no other option than to acquiesce to the TSO's
request to pat-down or removal of their religious garment. Travelers
also don't want to make a TSO's job any harder than necessary or
perpetuate a negative stereotype of an angry minority. Due to the lack
of appropriate supervision and ineffective religious sensitivity
training, TSA places the onus on travelers to request a self-
administered pat-down of their religious headwear and ensure TSOs are
following their own security protocol.
After a pat-down is conducted TSOs often fail to visibly change
their gloves or replace ETD swabs in front of a traveler prior to
administering the ETD on a traveler. ETDs are sensitive enough to
capture chemical compounds by contact from other sources. TSOs come
into primary contact with a range of chemical compounds carried by
travelers before needing to administer an ETD. Without measures taken
to ensure ETD alarms are as accurate as possible, travelers will
continue to be subjected to invasive secondary screening by ETD which
reduces passenger throughput and credible threat detection. These false
alarms adversely impact travelers with religiously mandated headwear as
the alarm will accompany a request to remove that religious headwear.
We frequently receive reports of false ETD alarms from Sikh community
members. Speaking from personal experience, the ETD alarms will not re-
occur upon a change of swabs and/or gloves. Unfortunately, ETDs and how
they are implemented are not the only screening technology that singles
out specific types of passengers for additional screening, Advanced
Imaging Technology (AIT) devices are even more problematic.
TSA adopted full-body scanners, amidst promises that these machines
would eliminate the need for pat-downs, which we now know not to be
true. The technology can apparently filter through clothing, but not
thick hair.\8\ What culminates is disproportionate targeting of
minorities based on race and religion. According to TSA, the cloth on
our heads and/or the accompanying hair are registered as an ``anomaly''
requiring increased scrutiny. What results is humiliating hair and
headwear pat-downs that leave travelers feeling profiled and violated
while others watch. In practice, Sikhs are virtually guaranteed to
receive secondary screening because of our turbans, and reports also
show that African American women and transgender individuals are
subjected to higher rates of secondary screening as a result of AIT
deficiencies as well.\9\
---------------------------------------------------------------------------
\8\ ``How Airport Scanners Discriminate against Passengers of
Color.'' Vox, April 17, 2019 available at www.vox.com/the-goods/2019/4/
17/18412450/tsa-airport-full-body-scanners-racist.
\9\ ``TSA Agents Say They're Not Discriminating Against Black
Women, But Their Body Scanners Might Be'' by ProPublica, April 22, 2019
available at www.propublica.org/article/tsa-not-discriminating-against-
black-women-but-their-body-scanners-might-be.
---------------------------------------------------------------------------
Despite TSA having knowledge and proof of long-standing issues
facing travelers with religious headwear, the agency has failed to
publish easily accessible and transparent information on its website to
assist this segment of the traveling public. Instead the agency relies
on a ``Know Before You Go'' document that contains ambiguous and
unclear language that is confusing for a Sikh traveler. This document
also was never published on the agency's website and it's unclear how
it is even distributed to the public. Ultimately, the agency relies on
organizations like ours to develop easy-to-understand publications that
are language-accessible and comprehensible to the average traveler,
however even then TSA fails to adequately resolve issues that such
organizations face when deciphering TSA's policies by often citing
``National Security'' as a reason to evade answering questions for
clarity.\10\
---------------------------------------------------------------------------
\10\ ``Know Your Rights At the Airport'' by the Sikh Coalition,
Nov. 19, 2018 available at https://www.sikhcoalition.org/wp-content/
uploads/2018/11/tsa-know-your-rights-2018-1.pdf.
---------------------------------------------------------------------------
TSA needs to do more to ensure the technologies and procedures in
use do not perpetuate biases or otherwise lead to disproportionate
screening of minority and marginalized communities. TSA must also
convene stakeholders from the community, including organizations like
the Sikh Coalition, to provide input and feedback on policy procedures,
development, and challenges. We should not accept the fact that
specific groups of travelers are guaranteed to receive secondary
screening whenever they pass through TSA checkpoints due to their race
or religion. Beyond these common-sense approaches, more needs to be
done to reduce incidents of bias and recognizing the consequences. Not
only are minority communities adversely impacted by biases in
technology and its application, but it also inadvertently validates and
perpetuates negative stereotypes of the ensnared communities.
The general traveling public also internalizes these biases by
witnessing minority communities routinely subjected to secondary
screening when passing through security checkpoints. As a result of the
negative stereotypes reinforced by TSA's screening procedures and
policies, passengers have a heightened fear of those who are most
likely to face secondary screening and equate those individuals (and
others who look like them) with ``something'' dangerous. The
deputization of the general traveling public as an integral part of the
security landscape via programs like ``If you see something, say
something'', creates further harm against minority communities.
Minorities are therefore increasingly singled out by the general public
with reports of suspect behavior based purely on bias.
The result is innocent travelers forcibly removed by airlines as a
result of the traveling public citing fears for their safety--fears
based on perceptions of an individual's appearance, language, or
religious appearance. What is apparent from these disturbing events is
the need for better passenger protections to mitigate against profiling
and the wrongful removal of a passenger from flights for innocuous
behavior such as speaking a foreign language.
Proposals to implement any new technology must be carefully
scrutinized to ensure that technologies that are touted as
``objective'' do not have the potential of discriminating against
people of color, faith, gender identity, disability, or nationality.
It is not that the technology tools themselves are discriminatory--
instead they reinforce human biases and perpetuate disparate treatment.
TSA's request for technology vendors to develop solutions that
accommodate the diversity of the traveling public travelers is a good
first step but not enough. Plans to introduce facial recognition
technology by TSA should require more regulatory oversight as such
technology has been repeatedly proven to have higher error rates in
identifying darker-skinned and female faces.\11\ Such systems would
exacerbate discrimination, encourage intrusive surveillance of
marginalized groups, and cases of mistaken identity. It does not appear
TSA is providing adequate consideration to the limitations of such
technologies and the risk of bias they perpetuate for specific
communities. The agency's plans to expand facial recognition technology
under the TSA Biometrics Roadmap for Aviation Security and Passenger
Experience to all passengers is yet another example of wasteful
spending for technologies that are inaccurate and problematic for
passengers.\12\ As new technologies evolve the Government must do more
to ensure harm is not further perpetuated on already historically-
marginalized groups.
---------------------------------------------------------------------------
\11\ ``AI Researchers Tell Amazon to Stop Selling `Flawed' Facial
Recognition to the Police'' by The Verge, April 3, 2019 available at
www.theverge.com/2019/4/3/18291995/amazon-facial-recognition-
technology-rekognition-police-ai-researchers-ban-flawed. ``Facial
Recognition Is Accurate, If You're a White Guy.'' The New York Times,
February 9, 2018 available at www.nytimes.com/2018/02/09/technology/
facial-recognition-race-artificial-intelligence.html.
\12\ ``How the TSA's Facial Recognition Plan Will Go Far Beyond the
Airport.'' American Civil Liberties Union, October 23, 2018 available
at https://www.aclu.org/blog/privacy-technology/surveillance-
technologies/how-tsas-facial-recognition-plan-will-go-far.
---------------------------------------------------------------------------
ambiguous discretion standards contributing to profiling
Even where technology says an individual is not a threat, overly-
broad discretion is provided to TSOs to screen a traveler. Without a
clear and articulable threshold standard required of other law
enforcement agencies, travelers often feel profiled without any
articulable basis for selection. When questioned, TSOs often claim that
the routine selection of Sikhs a for further inspection is random, or
plainly state that they are always required to screen headwear.
In my personal experience, due to the wide discretion granted to
TSOs, minorities like me have to change our behavior to avoid being
singled out any more than we usually would be. I have to engage in a
pattern of behavior not expected of my other fellow travelers. Though I
have TSA PreCheck, I take many additional precautions such as wearing
light and professional clothing to keep searches minimally invasive,
triple checking all my pockets are emptied, ensuring that my bags are
compliant with the latest TSA screening guidelines, and arriving at the
airport well in advance of the average traveler--because ``something''
will usually require secondary screening. The less reasons I can
provide for security to further delay me for additional screening, the
better.
It does not matter how bad of a day I am having--at no point am I
allowed to get upset or show my aggravation. I can't commiserate with
others who fume and complain throughout the security line. I have to be
calm and respectful and answer questions as succinctly and politely as
possible oftentimes giving deference to TSOs who I know are acting
outside the scope of TSA policy and my civil rights, for fear of
creating a scene or worse. Speaking clearly and quietly has the least
risk of getting additional screening. For all intents and purposes, I
must behave like a second-class citizen or model minority--I am not
sure which is worse. The sad reality is that anyone with brown skin or
non-Judeo-Christian religious headwear is not going to get through
security any quicker by protesting, nor do we have the time and energy
to protest about the many injustices faced every time we travel. If
anything, we have learned that complaining about the bias of a TSO is
only likely to confirm further suspicion and scary stories of being
taken to private back rooms for searches.
The Sikh community understands that most TSOs are just trying to do
their job. But, wide discretion, inadequate training, and a lack of
civil rights oversight will breed problems. When passengers like myself
repeatedly experience suspect behavior by TSOs through random selection
or additional screening because of clothing or something ``other'', it
is clear that profiling is taking place. Anyone who reads media
articles and publicly-available first-person accounts of additional
screening will quickly identify a consistent pattern where people of
color are routinely ``randomly'' selected for screening--to the point
where it has become a joke.\13\
---------------------------------------------------------------------------
\13\ ``Queer Eye's Tan France Claims TSA Racially Profiled Him
After He Was Stopped 3 Times in a Week'' by People, December 13 2018,
people.com/tv/queer-eyes-tan-france-slams-tsa-racial-profiling/.
---------------------------------------------------------------------------
While traveling for work in 2018 out of DCA I was on the receiving
end of this abuse of discretion, despite being a trusted traveler
enrolled with TSA PreCheck and being cleared in the corresponding
PreCheck line. I cleared the Walk-Through Metal Detector without alarm
and was informed that I was chosen for random screening. I questioned
how I was chosen after observing at least 20 passengers ahead of me not
undergo additional screening. What resulted was a conversation with a
TSA supervisor informing me that I would require additional screening
solely as a result of my wearing a turban. That is unacceptable.
Profiling has repercussions beyond mere inconvenience or delay for
travelers. It further perpetuates negative stereotypes and falsely
validates the myth of racial and religious minority communities posing
a threat to our country. TSOs witnessing minorities disproportionately
receiving additional screening leads to the creation of implicit and
explicit biases that influence their behavior and TSA policies which
serve to justify scrutinizing specific kinds of travelers on racial or
religious grounds.
According to TSA documents, there is a substantial focus on using
techniques to specifically target Arabs, Muslims, and people of Middle
Eastern or South Asian descent when it implemented the Screening
Passengers by Observation Techniques.\14\ Training materials focused
exclusively on examples of Arab or Muslim terrorists and perpetuated
demeaning stereotypes about Muslims and women.\15\ From early 2008 to
late 2009 TSOs routinely looked for Hispanic male travelers to see if
they had proper visas and passport stamps. If not, those passengers
would be subjected to bag searches, pat-downs, questioning, and
referrals to immigration with bogus behaviors invented by screeners to
obscure evidence of profiling and to meet alleged quotas.\16\ What is
clear is that unfettered discretion in screening is being used as a
pretext for harassing minorities and disfavored groups.
---------------------------------------------------------------------------
\14\ ``TSA Screening Program Risks Racial Profiling amid Shaky
Science'' by The Guardian, February 8, 2017 available at
www.theguardian.com/us-news/2017/feb/08/tsa-screening-racial-religious-
profiling-aclu-study.
\15\ ``New Documents Show This TSA Program Blamed for Profiling Is
Unscientific and Unreliable--But Still It Continues'' by the American
Civil Liberties Union, February 8, 2017 available at www.aclu.org/blog/
national-security/discriminatory-profiling/new-documents-show-tsa-
program-blamed-profiling.
\16\ `` `The Mexican Hunters': Racial Profiling Team at Newark
Airport Targeted Hispanic Passengers'' by the Daily Mail, June 13 2011
available at www.dailymail.co.uk/news/article-2003174/The-Mexican-
Hunters-Racial-profiling-team-Newark-Airport-targeted-Hispanic-
passengers.html.
---------------------------------------------------------------------------
The implicit and explicit biases of TSOs coupled with a lack of
appropriate oversight, high turnover, and inadequate training are all
factors that increase the likelihood that a religious or racial
minority will be disproportionately selected for additional screening
by a TSO. Without explicit and implicit bias training, TSA will
continue to erode public trust and harm the civil rights of many
travelers. Despite TSA having policies in place to prevent profiling,
these policies appear to be enforced only after a complaint has been
filed by a traveler and only within the specific airport where the
violation occurred.
Despite all the work that TSA has done to establish its
Multicultural Division and community outreach, we are extremely
disappointed to receive complaints in recent months of airports
instituting ``local rules'' that require TSOs to frisk turbans without
cause. We are hard-pressed to understand how a Federal agency governed
by Federal law can implement ``local'' or regional rules, which
inevitably lead to major inconsistencies in the application of Federal
policies. We know that TSOs across the country are refusing travelers
to self-administer a pat-down of their turban. To date, no TSA
representatives have informed us of this potential policy change that
affects religious headwear travelers nor has any information been
published to advise the traveling public about this policy change. What
the agency has done is fail to provide adequate guidance for when
requests for self-pat-downs of religious headwear may or may not be
granted, as our questions regarding that issue were met with the
response that TSA could not disclose any information due to ``National
Security'' concerns. It is the Government's responsibility to provide
clarity for all travelers when it comes to the criteria for safely
moving through TSA checkpoints. When there is a lack of transparency
and failure in communication between TSA and organizations like the
Sikh Coalition--which has always sought to work with TSA in providing
cultural competency and in deciphering what TSA policy means for Sikhs
in America--it calls into question the agency's commitment to ensuring
the civil rights of all passengers are protected.
Often individuals do not want to report TSA misconduct due to
factors of embarrassment, lack of awareness about one's rights,
hopelessness about change after 18 years of profiling, or lack of time
and awareness on how to file a complaint. The Government Accountability
Office's ``GAO'' recent report on profiling infers most travelers don't
want to further engage with TSA or otherwise relive that traumatic
experience. With the GAO's recent report reviewing approximately 3,700
complaints, what is shocking is that half of the complaints were civil
rights and civil liberties violations. It is not surprising that half
of those complaints contained inaccessible passenger information or a
lack of passenger response.
policy recommendations
The consequences of profiling have far-reaching consequences beyond
inconvenience and delays to specific groups of people. Whether implicit
or explicit, biases have a detrimental impact on the freedom of
movement for people and commerce. This is a damaging distraction from
actual credible threats and creates distrust between vulnerable
communities and the Federal Government.
When profiling is made permissible by inadequate and inconsistent
policies and biased technologies, it amounts to not just delay,
inconvenience, and shame for being separated from family, friends, and
colleagues for travelers, but it further perpetuates negative
stereotypes of entire communities. It is a pronouncement that
minorities are outsiders and pose threats worthy of investigation. This
also hits home the reality that actual credible threats to our Nation's
security are not TSA's priority. Without adequate screening procedures
and practices, we trivialize the Constitution's promise of democracy
and equality for all.
The thousands of civil-rights-related complaints TSA has received
are the tip of the iceberg. Many travelers don't know where to
complain, or that they can complain, especially if TSOs were just
following procedure and produces a bad outcome that is perceived as
legitimate from technology that is biased. Some travelers have given up
filing complaints when the same things happen again and again. What is
clear is the need for improvements in TSA's training, policies,
procedures, and implementation of technology.
The Sikh Coalition offers the following recommendations in
connection with the committee's hearing:
Require TSOs to adhere to consistent and transparent
standards of discretionary criteria that reduce the likelihood
of profiling. Criteria that requires a clear and articulable
suspicion of an individual and imminent security threat permits
TSOs to continue thwarting credible security threats and
reduces the likelihood of discretionary abuse. Beyond
establishing clear discretionary standards, TSA should also be
required to log statistical data on secondary screening
practices to eliminate inconsistencies, gauge the efficacy of
secondary screenings, and identify disproportionate enforcement
and TSO non-compliance.
Any new technology or procedures must reduce the use of pat-
downs and ensure travelers aren't singled out based on their
race, religion, or gender. Respectful engagement with religious
headwear must be maintained at all times and the use of pat-
downs should be an absolute last resort. Travelers with
religious grooming requirements, including headwear, should be
permitted the right to self-pat-down and avail themselves of
readily available non-intrusive screening methods. TSOs should
be provided clear guidance and training that travelers with
religious headwear must be given the option to self-pat-down.
Furthermore, TSA should issue clear guidance and training for
all TSOs and staff that ``local rules'' do not apply to the
agency and are not to be used as pretext to discriminate or
profile passengers for additional screening.
Screening policies of ETDs require transparent and
standardized application that mitigates the false positive
alert rate. When a traveler requires ETD screening, TSOs must
be required to change gloves and swabs in the presence of the
traveler to eliminate any uncertainty as to the TSO's adherence
to policy standards. Reducing the amount of false positives,
otherwise known as nuisance alarms, helps ensure that TSA staff
are able to allocate existing resources in a more efficient
manner and leads to improved traveler satisfaction and
throughput.
TSA must implement consistent, mandatory anti-discrimination
training programs for all TSA employees in promoting systemic,
agency-wide change as opposed to its individual approach to
training and disciplining TSOs when complaints arise.\17\ Such
training components must include in-person, interactive
cultural competency awareness and periodic recertification on
implicit and explicit bias. TSA needs to ensure that bias
training is embedded within all courses taught to TSOs to
reinforce the agency's commitment and dedication to ensuring
the civil rights and liberties of the traveling public is fully
respected.
---------------------------------------------------------------------------
\17\ See Exhibit A.
---------------------------------------------------------------------------
Congress must mandate regular and independent Civil
Liberties Impact Assessments at all airports Nation-wide. Such
programs should entail unannounced audits of all airports to
document civil liberties compliance. Assessments should be
based on reviews of TSO interactions via video footage, the use
of undercover agents testing for civil rights violations, and
reviewing passenger complaints to reveal the full extent to
which TSA is respecting travelers' civil rights and liberties.
Mandate that TSA implement random TSO screener audits
ensuring officers are not engaged in racial profiling and that
supervisors are instructed in detecting situations where
unlawful profiling occurs. TSA should also adopt GAO's
recommendation to monitor ``behavior detection'' activities for
compliance with policies that prohibit unlawful profiling.
Though AIT and other advanced screening technologies are
routinely tested for accuracy in the screening of passenger
characteristics, the testing mechanisms and monitoring of
screening that occurs in practice must be improved to account
for the large diversity of passengers. TSA must routinely
develop best practices to reduce biased alarms, and train
officers in the operation of these technologies and detection
to avoid discriminatory practices with the goal of eliminating
profiling.
Incentivize airport security technology vendors to work
collaboratively with community stakeholders in mitigating
against profiling. Government contracts for any new technology
acquisitions should take into account a vendor's commitment to
alleviating bias by considering factors such as: (a) Whether
the vendor conducts regular convenings with community
stakeholders and profiling experts, (b) issues routine software
improvements designed to improve device reliability, and (c)
certifies anti-bias initiatives and publishes efficacy rates
for variations in traits screened that may be a part of a
protected identity (i.e. race, sex, gender identity, national
origin, religion, and disability).
Amend the Airline Passengers' Bill of Rights to establish
clear guidelines limiting the ability of airlines to forcibly
remove passengers solely based on generalized concerns of
personal safety without any specific, objectively concerning
information that is not rooted in personal bias. All airline
crew must undergo training focusing on behavioral forces like
implicit bias and stereotype threats. Barring exigent
circumstances, when passengers report an issue, airline crew
must be required to investigate the credibility of such
concerns to reach an informed decision on the veracity of any
threats. Airlines should be held liable for the wrongful
removal of a passenger if the removed passenger is not
determined to pose an imminent security threat by law
enforcement.
Re-introduce and pass the End Racial Profiling Act to
comprehensively address the insidious practice of biased
treatment by law enforcement, including TSA. Such legislation
is critical to restoring the community's confidence in our
Nation's law enforcement and ensuring that scarce security
resources are focused on combating actual criminal and suspect
behavior. This legislation should add safeguards against the
harmful impacts of algorithmic bias against protected identity
(i.e. race, sex, gender identity, National origin, religion and
disability).
TSA must publish clear, transparent, and easy-to-understand
traveler guidance on its website to better inform the traveling
public on what to expect at the security line, and ensure that
TSOs adhere to its protocols. This guidance would help reduce
traveler frustrations and negative stereotypes of those who are
routinely subjected to additional unnecessary screening, and
expedite screening procedures for all travelers.
conclusion
Disparate treatment not only undermines cherished Constitutional
rights, but also reinforces the perception among TSA and the flying
public that members of minority racial and religious communities should
be treated with suspicion and caution. This outcome is at direct odds
with TSA's responsibility to ensure that its screening procedures and
technologies are implemented in a fair and equitable manner. Biased
technologies and unstructured discretion lead to longer lines, invasive
and unnecessary pat-downs, traumatic stress and anxiety, missed
flights, and unlawful discrimination against minority communities.
We must acknowledge that stereotypical beliefs about certain
travelers due to the way they look or their religious articles of faith
are not a reasonable basis to subject them to disparate screening.
Religious head coverings do not pose any greater threat than other
articles of clothing and should not automatically be subjected to
additional screening. Similarly, stigmatic beliefs based on perceived
ethnicity and nationality do not serve as a basis to subject
individuals to disparate screening practices. Thus, we respectfully
request that our policy recommendations be considered and implemented.
The Sikh Coalition is grateful for the opportunity to submit this
testimony for the hearing record and looks forward to working with the
esteemed committee here today along with partners in Government,
private industry, civil society, and grassroots communities Nation-wide
to foster dignified and respectful treatment of all travelers passing
through TSA.
Exhibit A
June 12, 2018.
Satjeet Kaur,
Executive Director, The Sikh Collection, 50 Broad Street, Suite 504,
New York, NY 10004.
Dear Satjeet Kaur: Thank you for contacting the Transportation
Security Administration (TSA) regarding your concerns about TSA
security screening of Sikh travelers at our Nation's airports. We also
appreciate your expressing your concerns about the April 2017 screening
of Canadian Cabinet Minister Navdeep Bains. This letter serves as
follow-up to our May 11, 2018, teleconference attended by members of
the Sikh Coalition and my staff.
TSA must ensure that all persons and their accessible property
passing through the security checkpoint undergo screening to protect
against the introduction of weapons, explosives, and incendiary devices
into the sterile area of an airport and on-board an aircraft. To do
this work, TSA is committed to treating members of the traveling public
in a fair and lawful manner. As we have discussed, travelers may
undergo additional screening of their clothing, hair, and/or headwear;
however, in performing our screening activities, TSA neither uses nor
condones unlawful profiling. Pursuant to TSA's Civil Rights Policy,
Transportation Security Officers are prohibited from basing screening
decisions on a traveler's protected status. All screening decisions are
based on the interests of aviation security.
We regularly engage and conduct outreach with the Sikh American
community, through organizations such as Sikh American Legal Defense
and Education Fund (SALDEF), United Sikhs, and the Sikh Calition.
Within the past year, TSA has participated in more than 20 SALDEF
``Know Your Rights'' forums around the country to engage with the Sikh
community.
With job aids and other training, we have in the past and continue
today to update our front-line workforce regularly on appropriate
religious/cultural knowledge and etiquette for engaging with the
millions of passengers served by TSA, including the Sikh community. We
also developed a Know Before You Go publication, which provides useful
information for Sikh travelers and is enclosed with this letter.
We look forward to ongoing engagement with Harsimran Kaur, and we
have added Sim J. Singh and Julian Darwall to our list of contacts for
The Sikh Coalition.
We hope this information is helpful and we appreciate that you took
the time to contact TSA. We strongly believe that our work together
will continue to provide an improved traveler experience at TSA's
security checkpoints.
Sincerely yours,
Christine Griggs,
Acting Assistant Administrator.
Enclosure: Know Before You Go--Sikh Travelers
Transportation Security Administration
Multicultural Branch, Office of Civil Rights & Liberties, Ombudsman,
and Traveler Engagement
Know Before You Go
for sikh travelers
The Transportation Security Administration is committed to ensuring
access and serving all persons with dignity and respect.
If you are enrolled in a trusted traveler program (TSA PreCheck,
Global Entry, NEXUS, SENTRI), enter your known traveler number or PASS
ID when making airline reservations. When you check in for a flight,
look for the TSA PreCheck boarding pass indicator.
We are aware and respect that Sikh travelers may wear traditional
clothing and/or carry religious items. Observant travelers may be
wearing a Dastaar (religious head covering/turban), Kara (metal
bracelet), and a Kangha (wooden comb). The Kirpan is considered sharp
object and must be in checked baggage, and cannot be worn or carried
through the checkpoint. Please view TSA.gov for the list of prohibited
items.
WHAT TO KNOW
Signing-Up for TSA PreCheck
Apply on-line at TSA.gov.
You will go through a background check where your
identification and citizenship will be verified, among other
things. Make sure all of the information on your identification
is exactly the same. Inconsistent information can delay the
process.
Then you'll get a Known Traveler Number (KTN). You have to
enter in your KTN every single time you make a reservation,
otherwise you will not get the benefit of TSA PreCheck.
As one of many layers of TSA security, you may, on occasion,
be randomly selected to receive additional screening.
Making Reservations:
TSA requires airlines to collect a traveler's full name,
date of birth, gender, and redress number (if applicable) to
significantly decrease the likelihood of watch-list
misidentification. TSA verifies a traveler's identification
through Secure Flight.
You are encouraged to book your reservation such that the
reservation information matches the full name, date of birth,
and gender on the Government-issued identification (ID) that
you will use for travel, as well as your Known Traveler Number
(KTN) if you have signed-up for TSA PreCheck. For additional
information about identification documents, visit the
Identification page on TSA.gov here.
On arrival to the security checkpoint, you must present your
Government-issued ID that has the same name as the one on your
boarding pass to the TSA Officer who will verify that the names
on the ID and boarding pass match, and that the photo on the ID
matches you.
TSA Cares:
TSA Cares is a toll-free helpline, 1-855-787-2227 or Federal
Relay #711, available for travelers to ask questions about
screening or to request help at the checkpoint. You may call
from 8 a.m. to 11 p.m. ET Monday through Friday, and 9 a.m. to
8 p.m. weekends and holidays.
If you would like to arrange assistance at the checkpoint,
TSA recommends that you call at least 72 hours ahead of travel
so that TSA Cares has the opportunity to coordinate checkpoint
support. Checkpoint support may include coordination with a
Passenger Support Specialist (PSS). Each airport has different
resources; therefore, the level of assistance you receive at
the checkpoint will vary. Some airports have an individual who
will call you to gather additional information and arrange a
meeting time and place. Other locations notify the checkpoint
manager of your itinerary, but no pre-contact is made.
If you arrive at the checkpoint and have any concerns
before, during, or after the screening process, you should
immediately request to speak with a Supervisory Transportation
Security Officer (STSO) or a PSS for assistance.
Planning Your Trip:
Arrive early to allow time for security screening.
Communicate your specific needs (e.g., turban,
accommodations, delicate/fragile items, sensitive items or body
areas) to the TSA Officer before screening begins to have a
smooth airport screening experience.
The 3-1-1 liquids rule for carry-ons allows each traveler to
have liquids, gels, aerosols, creams and pastes in quantities
of 3.4 ounces (100 ml) or less per container; in 1 quart-sized,
clear, plastic, zip-top bag; and in one bag.
This rule does not apply to medically-necessary liquids for
travelers with disabilities and medical conditions. However,
you will need to declare medically-necessary liquids for
inspection at the checkpoint, and officers may need to conduct
additional screening of these items.
Walk-Through Metal Detectors (WTMD):
You may be chosen to be screened by a Walk Through Metal
Detector (WTMD), most commonly in the TSA PreCheck lane.
You cannot request WTMD screening instead of receiving
screening via the Advanced Imaging Technology (AIT) or a pat-
down.
Learn more about Walk Through Metal Detectors at TSA.gov.
Advanced Imaging Technology (AIT):
You are eligible to be screened via Advanced Imaging
Technology (AIT) if you are able to stand, walk through the
machine, and stand holding your hands above your head for 5 to
7 seconds without support. If there is an alarm, you may need
to stand for additional time to resolve the alarm.
If you do not want to be screened by AIT, or are ineligible,
you may request a pat-down. A reminder--you may not request
screening using the Walk Through Metal Detector.
The AIT has software that protects individual privacy,
eliminating traveler-specific images by auto-detecting
potential threats, which are shown on a generic outline of a
person on a screen located after you exit the machine. You can
see this as well. The generic outline is identical for all
travelers. If there is an alarm indicated on the generic
outline, TSA Officers are trained to clear the alarm, not the
individual. Additional screening is conducted to determine
whether a prohibited item is present.
You may always request a private screening at any time if a
pat-down is needed to resolve an alarm.
TSA is committed to ensuring effective and efficient
security screening, while treating all travelers with dignity
and respect.
Learn more about Advanced Imaging Technology at TSA.gov.
Pat-Downs:
You may opt-out of the screening technology and receive a
pat-down.
You will undergo a pat-down if any screening technology
alarms, or if you are randomly chosen for pat-down screening.
When conducted, the pat-down will be performed by a TSA
Officer of the same gender as you present.
You can request a private screening at any time and may be
accompanied by a companion of your choosing.
You can request a chair if you need to sit down.
You may request that the TSA Officer change his or her
gloves, prior to conducting the pat-down.
A pat-down may include inspection of the head, neck, arms,
torso, legs, and feet. This includes head coverings such as
your turban, hair, and sensitive body areas such as breasts,
groin, and the buttocks. You may be required to adjust clothing
during the pat-down.
The TSA Officer will advise you of the procedure to help
you anticipate any actions before you feel them.
Pat-downs require sufficient pressure to ensure detection.
Travelers wearing turbans may be subject to additional
security screening, which may include a traveler self-
conducted pat-down or officer-conducted pat-down. A swab
test for traces of explosives may also take place. Any
alarm will require additional screening by a TSA Officer.
You may request: Private screening; and that the TSA
Officer change gloves prior to conducting the pat-down,
and/or change ETD swabs prior to testing.
The private screening area should have a mirror available,
if it is necessary that your turban be removed.
TSA Officers use the back of the hands for pat-downs over
sensitive areas of the body. In limited cases, additional
screening involving a sensitive area pat-down with the
front of the hand may be needed to determine that a threat
does not exist.
Learn more about pat-downs at TSA.gov.
Explosive Trace Detection (ETD) Screening:
TSA Officers may swab your personal property or hands, and
then use ETD technology to test for explosive particles. This
is not a drug test.
Travelers may request a new swab prior to their hands being
sampled.
WHAT TO REMEMBER:
Packing.--Separate medically necessary liquids and equipment
from other belongings so they can be quickly identified and
accessed for screening.
Known Traveler Number (KTN).--Enter your known traveler
number when you book your flight to get TSA PreCheck
(PreCheck) benefits.
Companion.--You can be accompanied by a companion of your
choosing to provide assistance during the screening process.
However, the companion must be re-screened after providing
assistance that involves physical contact.
Body Piercing.--Certain metal body piercings may cause the
machines to alarm, which will result in additional screening.
If additional screening is required, passengers may be asked to
remove their body piercing.
Gift Wrapping.--You should refrain from wrapping gifts until
arriving at your final destination. If a TSA Officer needs to
inspect a wrapped gift, it may have to be unwrapped.

------------------------------------------------------------------------
TSA PreCheck (PreCheck) Standard Screening
------------------------------------------------------------------------
If you have TSA PreCheck (PreCheck) on If you do not have TSA
your boarding pass: PreCheck (PreCheck) on your
-Proceed to the TSA PreCheck boarding pass:
(PreCheck) line; -Proceed to the standard
-Present your boarding pass and screening line;
Government-issued ID to the TSA travel -Present your boarding pass and
document checker; Government-issued ID to the
-The TSA travel document checker will TSA travel document checker;
verify your identification and scan -The TSA travel document
your boarding pass barcode and confirm checker will verify your
that you are eligible for this lane. identity and scan your
boarding pass barcode.
During the screening process: During the screening process:
-Generally, TSA PreCheck lines are -Generally, travelers
shorter and have shorter wait times. experience longer lines
Find out when TSA PreCheck lanes are depending on the day, date,
available at your airport at TSA and time of travel.
PreCheck Checkpoint Schedule. -If eligible, you may be
-If eligible, you may be screened using screened using Advanced
Advanced Imaging Technology or Walk Imaging Technology or Walk
Through Metal Detector. If not, you Through Metal Detector. If
may be screened using a pat-down. not, you may be screened using
a pat-down.
You are required to remove: You are required to remove:
-Medically-necessary LGA over 3.4 -Shoes;
ounces (from accessible property). -Jackets/Coats; and
-3-1-1-compliant bag of
liquids, gels, and aerosols.
You are not required to remove: You are required to separate:
-Shoes -Medically-necessary liquids;
-Jackets -Electronics the size of a cell
-3-1-1-compliant bag phone and larger;
-Electronics the size of a cell phone -CPAP/BPAP.
and larger;
-CPAP/BPAP.
It is recommended that you remove items It is recommended that you
from your pockets to expedite the remove items from your pockets
screening process and minimize the to expedite the screening
need for additional screening. process and minimize the need
for additional screening.
------------------------------------------------------------------------

EXHIBIT C.--KNOW YOUR RIGHTS AT THE AIRPORT
If you believe your civil rights have been violated, we encourage
you to report TSA screening discrimination directly to the TSA and the
Sikh Coalition via on our mobile app, FlyRights. Download the app at:
http://fly rights.org/.
You can also file complaints with the TSA on-line at: https://
www.tsa.gov/contact-center/form/complaints.
before traveling
You may sign up for TSA PreCheck at TSA.gov to expedite the
security checkpoint process. A background check will be
performed, asking you questions about citizenship, and
requesting additional information. If successful, you will be
provided with a Known Traveler Number (KTN) for use every time
you make a reservation.
Make sure the details on the airline reservation match the
information on your traveler's identification (ID) that will be
used during travel.
The TSA is aware that Sikh travelers may wear traditional
clothing and/or carry religious items, such as a dastaar, kara,
and kangha.
The kirpan must be checked into baggage and cannot be worn
or carried through checkpoints.
Remember to place salais, dastaar pins, or other grooming
tools in your carry on or checked luggage as they may set off
metal detectors or other screening technology.
at the airport
Arrive 2 hours early for domestic flights & 3 hours early
for international flights for security screening and
communicate any specific needs to the TSA Officer prior to
screening to ensure a smooth screening experience, including
your turban, accommodations, delicate/fragile items, sensitive
items, or body areas.
You have a right to be accompanied by a travel companion of
your choice during the screening process. The companion must be
rescreened after providing assistance involving physical
contact.
The 3-1-1 liquids rule for carry-ons allows each traveler to
have liquids, gels, aerosols, creams, and pastes in quantities
of 3.4 ounces (100ml) or less per container; in 1 quart-sized,
clear, plastic, zip-top bag; and in one bag. (This rule does
not apply to medically-necessary liquids for travelers with
disabilities and medical conditions. However, you will need to
declare medically-necessary liquids for inspection at the
checkpoint, and officers may need to conduct additional
screening of these items.)
screening
KNOW YOUR RIGHTS AT THE AIRPORT
1. It is best to thoroughly wash your hands with soap prior to
entering TSA checkpoints to avoid any oils or contaminants on your
hands. (Please note some soaps may cause false positives due to oils or
scents.)
2. You may be chosen for screening through either a Walk-Through
Metal Detector (WTMD) or an Advanced Imaging Technology (AIT) machine.
Advanced Imaging Technology, a full-body scanner, screens passengers
for metallic and/or non-metallic threats, such as guns or explosives,
that may be concealed under a person's clothing. Any threats the
technology scans will appear on a generic outline of a person on a
screen, which is intended to preserve privacy.
3. You have a right to refuse the AIT machine and request a pat-
down. You may not request screening through WTMD instead of AIT.
4. You may be required to adjust your clothing during the pat-down.
The officer will advise you of procedures to help you anticipate
actions that will be taken.
5. Travelers wearing turbans may be subject to additional security
screening, including traveler self-conducted pat-downs or officer-
conducted pat-downs, and swab tests for traces of explosives. You may
request that the officer change their gloves and swabs prior to
testing.
6. If either of the screening technologies alarms during the
process, you will undergo a pat-down, which will be conducted by an
officer of the same gender, as that which you present or declare.
Pursuant to TSA's eligibility criteria, you may request a self-pat-down
of your turban, and the officer will do a swab test for traces of
explosives on your hands, once the self-pat-down is completed. You may
also be chosen for a pat-down randomly. Should you decide that a TSA
officer conduct the pat-down, you may request that they change gloves
and swabs prior to doing so.
7. If you undergo a pat-down, you have a right to a private
screening with a companion of your choice. Private screening areas must
have a mirror available if removing your turban is necessary. You may
request a chair if you need to sit.
8. If TSA requests that your turban be removed for an additional
screening, it should only occur after all other screenings have been
completed and resulted in positive indications. If you are asked to
remove your turban, you have a right to a private screening with a
companion of your choice. Private screening areas must have a mirror
available if removing your turban is necessary. You may request a chair
if you need to sit.
9. Sensitive areas such as breasts, groin, and buttocks are
included in the pat-downs and pat-downs require sufficient pressure to
ensure detection. TSA Officers use the back of their hands for pat-
downs over sensitive areas of the body. In limited cases, additional
screening involving a sensitive area pat-down with the front of the
hand may be needed to determine that a threat does not exist.
10. If you arrive at a checkpoint & have any concerns before,
during, or after the screening process, immediately ask to speak with a
Supervisory Transportation Security Officer (STSO) or a Passenger
Support Specialist (PSS).
REQUEST DIRECT ASSISTANCE FROM TSA CARES.--Toll-free helpline: 1-
855-787-2227, available for all questions about screening or help at
checkpoints, from 8 a.m. to 11 p.m. ET., Monday through Friday, & 9
a.m. to 8 p.m. on weekends & holidays. If you would like to arrange
assistance at checkpoints, TSA recommends calling at least 72 hours
ahead of travel so TSA has the opportunity to coordinate support.
The Sikh Coalition does not endorse these TSA policies, and this
document should not be construed as legal advice. It is merely
providing information to Sikh travelers on TSA policies during the
screening process.

Chairman Thompson. Thank you for your testimony.
I now recognize Ms. Nelson to summarize her statement for 5
minutes.

STATEMENT OF JANAI S. NELSON, ASSOCIATE DIRECTOR-COUNSEL, NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Ms. Nelson. Thank you. Good morning, Chairman Thompson,
Ranking Member Rogers, and Members of the committee. My name is
Janai Nelson. I am the associate director-counsel of the NAACP
Legal Defense and Educational Fund. Thank you for the
opportunity to testify this morning.
LDF is the Nation's oldest civil and human rights law
organization. LDF was founded in 1940 by Thurgood Marshall, and
in the 80 years since its inception it has used legal advocacy
strategies to promote the full, equal, and active citizenship
of Black Americans. That includes litigating the seminal case
of Brown v. Board of Education and Newman v. Piggie Park
Enterprises, which is important for our purposes here today
because it upheld Title II of the Civil Rights Act of 1964's
prohibition on racial discrimination in public accommodations.
For as long as we have been in this country, Black people
have faced discrimination that impedes our mobility in public
spaces and discrimination in various spheres because of our
hair. Indeed, the civil rights movement that ended legal
apartheid in the United States was anchored in acts of
resistance related to transportation, including the bravery of
women like Rosa Parks and children like Claudette Colvin.
The Civil Rights Act of 1964 was built on the foundation
that Congress can take action to prohibit racial discrimination
that impedes travel and thereby impedes interstate commerce.
Black women's hair has also never ceased to be policed,
from forcible head coverings in the Antebellum South to the
present-day denial of employment and other rights based on our
hair texture and treatment.
In light of this history, we at LDF are deeply troubled
that TSA's full-body scanners disproportionately single out
Black women for additional and burdensome security procedures,
including invasive and humiliating hair pat-downs. This
systematic infringement on the mobility of Black women by a
Government agency must be corrected, and we are heartened that
this committee is taking up the charge.
Roughly 8 percent of the U.S. adult population of flyers is
Black, 17 percent is Latinx, and 6 percent is Asian. However,
reports suggest that countless Black travelers have experienced
heightened suspicion and profiling as a result of TSA
technology that singles out Black people in airports,
particularly Black women, simply because the technology is
unable to distinguish contraband from natural Black hair.
The false positives produced by TSA's full-body scanners
exemplify the impact of purportedly race-neutral technology
that nonetheless perpetuates racial profiling. Whether they are
high-profile celebrities, business travelers, or general
commuters, for Black women TSA scanners are one more assault in
a constant barrage of risk assessments to which they are
subjected on a daily basis and which reflect deep-rooted biases
and historical associations between race and dangerousness.
Moreover, racial discrimination is a proven threat to our
National security, yet TSA has not justified that its highly-
criticized practice of violative hair pat-downs improves
security. To the contrary, security experts have called into
question whether these additional screenings are an effective
use of TSA personnel's time and resources.
Most disturbing perhaps is that top TSA officials do not
seem to recognize that a system that disproportionately singles
out Black women is discriminatory. We know that technology is
susceptible to biases of the humans who create it. This means
that technology that uses White phenotype as a default can
easily produce biased outcomes against people of color.
This issue is not new. Not only did this committee hold a
hearing on these issues a little over a year ago, TSA has been
aware of discriminatory and biased security practices for
years. In 2015, it entered a settlement agreement over the very
issue of racially profiling Black hair.
To be very clear, we recognize and respect TSA's important
security functions at our Nation's airports. However, I want to
stress that we can maintain security in our Nation's airports
while maintaining the human dignity of our Nation's travelers,
we can pursue new technology and not compromise civil and human
rights. In fact, these goals cannot only co-exist, by law, they
must.
In closing, we acknowledge TSA's important charge to ensure
safe travel while meeting its obligation to treat all
passengers with dignity. We also appreciate the attention this
committee has paid to this important issue and thank you for
your consideration and for the opportunity to testify today.
[The prepared statement of Ms. Nelson follows:]
Prepared Statement of Janai S. Nelson
June 4, 2019
i. introduction
Good Morning Chairman Thompson, Ranking Member Rogers, and Members
of the committee. My name is Janai Nelson and I am the associate
director-counsel of the NAACP Legal Defense and Educational Fund, Inc.
(LDF). Thank you for the opportunity to testify this morning.
LDF is the Nation's oldest civil and human rights law organization.
LDF was founded in 1940 by Thurgood Marshall, who later became the
first Black U.S. Supreme Court Justice. Since its inception, LDF has
used litigation, legislative, public education, and other advocacy
strategies to promote full, equal, and active citizenship for Black
Americans. This work has included litigating seminal cases such as
Brown v. Board of Education and Newman v. Piggie Park Enterprises,
which upheld Title II of the Civil Rights Act of 1964 and its
prohibition on racial discrimination in public accommodations. LDF has
also been on the front lines of opposing racial profiling, whether
practiced by law enforcement agencies, department stores, airlines, or
taxicab drivers. LDF has also challenged policies that have a
discriminatory impact on Black people because of specific
characteristics, including hair type. We have vigorously opposed hair
policies that serve as pretexts or justifications for racial
discrimination in schools and in the workplace.\1\ In just the past 2
years alone, we challenged a hair policy in a Boston-area charter
school that denied Mya and Deanna Cook the right to wear braid
extensions at their school, we obtained public records concerning an
incident in which Andrew Johnson, a Black high school student in New
Jersey, was forced to cut his hair in order to compete in a high school
wrestling match,\2\ and we filed an administrative complaint with the
Florida Department of Education on behalf of a 6-year-old boy, Clinton
Stanley Jr., who was denied entry on his first day of school because he
wore his hair in locs that extended past his ears.\3\ LDF has also been
involved in lawsuits combatting hair discrimination in the workplace,
including EEOC v. Catastrophe Management Solutions, in which LDF
petitioned the Supreme Court of the United States to review the case of
Chastity Jones, a Black woman whose job offer was rescinded solely
because she wore her hair in locs.\4\
---------------------------------------------------------------------------
\1\ See, e.g., Brief of NAACP Legal Def. & Educ. Fund, Inc. et al.,
as Amici Curiae, EEOC v. Catastrophe Management Solutions, 2016 WL
7173828 (11th Cir. Dec. 2, 2016).
\2\ See Press Release, LDF Makes Public Records Request in Response
to Hair Discrimination Case Involving Buena Regional High School
Wrestler (Jan. 7, 2019), https://www.naacpldf.org/press-release/ldf-
makes-public-records-request-response-hair-discrimination-case-
involving-buena-regional-high-school-wrestler/; Press Release, LDF
Sends Letters Over Concerns with Discriminatory Hair Policies Stemming
from Incident Involving New Jersey High School Wrestler (Feb. 12,
2019), https://www.naacpldf.org/press-release/ldf-sends-letters-
concerns-discriminatory-hair-policies-stemming-incident-involving-new-
jersey-high-school-wrestler/.
\3\ Letter to Adam Miller from Angel S. Harris, et al., re: Clinton
Stanley Jr. Complaint (Nov. 29, 2018), https://www.naacpldf.org/wp-
content/uploads/11.29.2018-Stanley-Complaint-002.pdf.
\4\ https://www.naacpldf.org/files/about-us/CMS%20-
%20Cert%20Petition%20FINAL.PDF.
---------------------------------------------------------------------------
We appreciate the opportunity to testify this morning on the
important topic of Transportation Security Administration (``TSA'')
policies that profile, single out, and disproportionately burden people
of color, as well as persons with disabilities, transgender persons,
persons of various religions, and particularly Black women. Black
people have historically been discriminated against in ways that impede
their mobility in public spaces and discriminated against in various
spheres because of their hair. In light of the long and on-going
history of discrimination rooted in Black hair and continuing barriers
to Black mobility, we are deeply troubled that the full-body scanners
that TSA employs at airports disproportionately single out Black women
for additional and burdensome security procedures, including invasive
pat-downs, because of their hair.\5\ LDF's work has long recognized
that full citizenship for Black Americans requires the elimination of
discrimination in public spaces--schools, transportation, public
accommodations--and the transformation of these spaces to protect the
dignity of communities of color and their unfettered mobility. As LDF
is a National organization, litigating and advocating in States and
cities across the country, being able to navigate the Nation's airports
without unjustified burdens is also a matter of personal concern for
our racially and ethnically diverse staff.
---------------------------------------------------------------------------
\5\ See Brenda Medina, TSA Agents Say They're Not Discriminating
Against Black Women, but Their Body Scanners Might Be, ProPublica (Apr.
17, 2019), https://www.propublica.org/article/tsa-not-discriminating-
against-black-women-but-their-body-scanners-might-be.
---------------------------------------------------------------------------
TSA interacts with millions of people of color each year as they
navigate air travel in the United States.\6\ An April 2016 report
prepared by Ipsos Public Affairs on the ``Status of Air Travel in the
USA'' indicates that 45 percent of the U.S. adult population traveled
by air in 2015. Of those adult flyers, in 2015, 8 percent were Black or
African American, 17 percent were Latinx and 6 percent were Asian.\7\
As countless Black people have experienced, the already-heightened
suspicion and profiling of Black people by security personnel in this
country is compounded by TSA technology that singles out Black people
in airports, particularly Black women, for invasive and humiliating
searches simply because the technology is unable to distinguish
contraband from natural Black hair. What we are seeing is part of an
on-going trend at the intersection of race and technology, and the
pattern is becoming depressingly familiar. TSA's full-body scanners are
another new, purportedly race-neutral risk-assessment technology that
does not ostensibly classify, discriminate, or use any discretion on
the front end--yet, on the back end, it perpetuates racial profiling
and Black people are disproportionately harmed. And, in the case of TSA
hair pat-downs that result from the false positives produced by TSA
scanners, it is Black women, Black trans women, Black women with
disabilities, Black Muslim women, and those at the intersection of
these and other identities who are disproportionately burdened. The
burdens these women bear are too often disregarded as a cost of public
safety and denied remedy.
---------------------------------------------------------------------------
\6\ http://airlines.org/wp-content/uploads/2016/04/2016Survey.pdf.
\7\ http://airlines.org/wp-content/uploads/2016/04/2016Survey.pdf.
---------------------------------------------------------------------------
We recognize and respect that the TSA performs important security
functions at our Nation's airports. However, I want to stress in my
testimony today that we can maintain security in our Nation's airports
while maintaining human dignity. We can pursue new technology while not
compromising civil and human rights. We can be safe in employing best
practices for security procedures while also being sound in ensuring
that the policies and practices we uphold do not discriminate. In fact,
these goals cannot only coexist, by law, they must. Racial
discrimination is a threat to our National security and it violates our
constitution and civil rights laws. The recently-released ProPublica
report, as well as multiple anecdotal news accounts, are evidence that
TSA practices needlessly burden specific groups of people, namely Black
women, whether they are high-profile celebrities, business travelers,
or general commuters. This systematic infringement on the mobility of
Black people by a Government agency must be corrected and we are
heartened that this committee is taking up the charge.
To be a Black person participating in public life too often means
being subjected to a constant barrage of ``risk assessments,'' whether
formal or informal, conscious or beneath the surface. And the results
of these assessments inevitably reflect this country's deeply rooted
biases and racism and the automatic associations made between race and
dangerousness. As studies have demonstrated, when people see a Black
man and a white man of the same size, they perceive the Black man to be
both larger and more threatening.\8\ People likewise perceive Black
children to be older, less innocent, and a greater threat than their
white counterparts.\9\ A criminal justice system premised on treating
Black people as higher-risk and more in need of social control has
resulted in Black people being 2.5 times more likely to be arrested
than white people, and in almost half of all Black men having been
arrested at least once by the age of 23.\10\ And while Black people
comprise only 12.7 percent of the general population, they make up over
41 percent of the Federal and State prison population in the United
States. The legacy of using law enforcement and State security
apparatuses as tools for racially discriminatory control and
subordination continues, including in the implementation of purportedly
neutral- and objective-sounding programs as risk assessment tools that
incorporate racial biases, including algorithms used to determine pre-
trial detention,\11\ facial recognition security devices, and, indeed,
airport full-body scanners.
---------------------------------------------------------------------------
\8\ https://www.apa.org/pubs/journals/releases/psp-pspi0000092.pdf.
\9\ See Phillip Atiba Goff et al., The Essence of Innocence:
Consequences of Dehumanizing Black Children, 106 J. PERSONALITY & SOC.
PSYCHOL. 526, 540 (2014).
\10\ ANGELA J. DAVIS (ED.), POLICING THE BLACK MAN XV (2017).
\11\ See, e.g., Eric Westervelt, California's Bail Overhaul May Do
More Harm Than Good, Reformers Say, NPR (Oct. 2, 2018), https://
www.npr.org/2018/10/02/651959950/californias-bail-overhaul-may-do-more-
harm-than-good-reformers-say.
---------------------------------------------------------------------------
Of course, the instances of racial bias that Black people endure on
a daily basis are not relegated to official State action. Indeed, not a
week goes by without a new viral video depicting Black people unable to
engage in public life without harassment. People have called the police
on Black people shopping for prom clothes \12\ and office supplies.\13\
Just last week a white person drew a pistol and threatened a black
couple who were seeking to have a picnic at a campground.\14\ A black
guest at a hotel in Portland was presumed to be a trespasser and asked
to leave the premises. Hotel staff then called 9-1-1 when he made a
phone call in a hotel lobby.\15\ Black students have been suspected of
and interrogated for trespassing simply for walking around, eating
lunch, and taking a nap on their college campus.\16\ And, the list goes
on and on. These ``living while Black'' indignities range from
humiliating to life-threatening. They transform what should be routine,
quotidien acts into fraught and potentially dangerous encounters.
---------------------------------------------------------------------------
\12\ https://money.cnn.com/2018/05/08/news/companies/nordstrom-
rack-shoplifting/index.html.
\13\ https://www.cnn.com/videos/us/2018/08/14/north-carolina-mom-
accused-of-trying-to-shoplift-vpx.hln.
\14\ Kelly Taylor Hayes, White campground worker fired after
pulling gun on black visitors in Mississippi, Fox 5 DC (May 29, 2019),
http://www.fox5dc.com/news/white-campground-worker-fired-after-pulling-
gun-on-black-visitors-in-mississippi.
\15\ Keith Allen, Hotel employees who asked black guest to leave
fired, CNN (Dec. 29, 2018), https://www.cnn.com/2018/12/28/us/portland-
hotel-police-black-guest-trnd/index.html.
\16\ Holly Yan, Yale student accused of `napping while Black' wants
fellow student disciplined, CNN (May 14, 2018), https://www.cnn.com/
2018/05/14/us/yale-black-grad-student-interview/index.html; Katie
Mettler, A Black college student went looking for free food. He ended
up pinned down by campus officers. Wash. Post. (Apr. 14, 2019), https:/
/www.washingtonpost.com/education/2019/04/14/video-shows-black-
columbia-student-pinned-by-campus-police-after-failing-show-his-id/
?utm_term=.6807cb9b6af3; Nicole Chavez, Smith College student who was
racially profiled while eating says the incident left her so shaken she
can't sleep, CNN (Aug. 3, 2018), https://www.cnn.com/2018/08/03/us/
smith-college-student-police-trnd/index.html.
---------------------------------------------------------------------------
Similarly, discriminatory security procedures in airports create a
jarring contradiction, juxtaposing the freedom associated with travel
and movement with invasive practices that primarily target historically
marginalized groups. For most of this Nation's history, Black people
could not travel between the States freely and without encountering
State-sanctioned discrimination. Indeed, the Civil Rights Act of 1964
is built on the foundation that Congress can take action to prohibit
the kind of discrimination that would impede Black people from
traveling throughout the country and engaging in interstate
commerce.\17\
---------------------------------------------------------------------------
\17\ See Heart of Atlanta Motel v. United States, 379 U.S. 241
(1964).
---------------------------------------------------------------------------
People who have been subjected to aggressive and humiliating
searches and hair pat-downs by TSA may think twice before traveling by
plane unless absolutely necessary. When they were flying out of Los
Angeles airport in 2017, Reba Perry-Ufele and her 12-year-old daughter,
Egypt, both African American,\18\ were pulled aside by Transportation
Security Officers (TSOs) after going through the scanning machine. Ms.
Perry-Ufele was told that TSA personnel would need to conduct a search
of her braids. Ms. Perry-Ufele said she did not consent to the search,
but was told by TSA agents that it was mandatory ``protocol''. During
the search, according to Ms. Perry-Ufele, the agents ``literally ripped
my braids apart until they were a mess and I had to take them out when
I got home.'' ``I was so embarrassed,'' she added, ``because not only
did she humiliate me but she did it in front of the other people.''\19\
Ms. Perry-Ufele's experience is similar to that of many people who the
TSA full-body scanners falsely identified as having an object hidden in
their hair.
---------------------------------------------------------------------------
\18\ See Tatiana Walk-Morris, Why is the TSA Still Searching Black
Women?, Cosmopolitan (Apr. 24, 2018), https://www.cosmopolitan.com/
lifestyle/a18666534/tsa-black-women-hair-searches/.
\19\ Id.
---------------------------------------------------------------------------
On 3 of Jazzmen Knoderer's first 4 air travel experiences, she was
pulled aside for full-body and hair pat-downs.\20\ On at least one of
these occasions, Ms. Knoderer had not even gone through a scanner or
metal detector before a TSA officer pulled her aside and searched her.
Ms. Knoderer aptly noted, ``It doesn't feel random when it happens
three times in a row. It doesn't feel random when you see that all the
people around you, who don't look like you, aren't asked to step aside
. . . I don't want to change the way my hair grows out of my head.''
---------------------------------------------------------------------------
\20\ Medina, supra note 5.
---------------------------------------------------------------------------
As we now know from reporting from Pro Publica and multiple first-
hand accounts, experiences like Ms. Perry-Ufele's and Ms. Knoderer's
are not uncommon. That is why LDF has requested records relating to
TSA's policies and practices regarding full-body scanners and hair pat-
downs; to TSA's August 2018 request for proposals to enhance security,
including by ``address[ing] capability gaps in civil rights
compliance'';\21\ to data and policies regarding ``false positives''
produced by full-body scanners resulting in hair pat-downs; and to the
number of illegal and/or unauthorized objects TSA has recovered as a
result of hair pat-downs.
---------------------------------------------------------------------------
\21\ See Transportation Security Administration, ITF Innovative
Demonstrations for Enterprise Advancement (IDEA) 2018 BAA, Solicitation
Number 70T04018K9NSTD105, https://www.fbo.gov/
index.php?s=opportunity&mode=form&tab=core&id=c64a62edf70b0cbd9297e8aac7
- e9fc47&_cview=0 (more information regarding request provided in
Attachment A, https://www.fbo.gov/utils/
view?id=63a555f1caa4334c21de68cd074502d7).
---------------------------------------------------------------------------
Air travel is also a particular burden for people who wear
religious head coverings, particularly Muslims. As one Muslim woman,
Nyfees Syed, told the New York Times, ``I have to go [to the airport]
an extra hour before, because it's not random checking [by TSA]''--and,
the majority of the time, she is pulled aside by TSA officers for
secondary screenings and for examiners to grip and feel her head
through her hijab.\22\ Airport security can also be extraordinarily
difficult and dangerous for transgender passengers, an issue that is
only starting to be addressed.\23\ In sum, TSA's policies and
practices, specifically the use of scanners, continue a history of
discrimination by disproportionately identifying Black women, as well
as certain other marginalized groups, as suspicious, subjecting them to
demeaning searches and pat-downs, and interfering with their right to
travel freely.
---------------------------------------------------------------------------
\22\ Michael T. Luongo, Traveling While Muslim Complicates Air
Travel, N.Y. Times (Nov. 7, 2016), https://www.nytimes.com/2016/11/08/
business/traveling-while-muslim-complicates-air-travel.html; see also
Press Release, Muslim Advocates and LDF Urge Airlines to Institute
Anti-Bias Training, NAACP Legal Def. & Educ. Fund (Oct. 12, 2017),
https://www.naacpldf.org/press-release/muslim-advocates-and-ldf-urge-
airlines-to-institute-anti-bias-training/.
\23\ See Alex Marzano-Lesenevich, Flying While Trans, N.Y. Times
(Apr. 17, 2019), https://www.nytimes.com/2019/04/17/opinion/tsa-
transgender.html.
---------------------------------------------------------------------------
There is a long legacy of policing, regulating, and judging natural
Black hair in this country. This legacy includes forcing Black women to
cover their hair in the antebellum South \24\ and, in more recent
times, the legal approval of hair discrimination, particularly with
respect to Black women. In a 1981 case stemming from an airline's
policy, for example, a Federal court in New York upheld the right of
employers to categorically prohibit employees from wearing ``braided
hairstyles,'' a policy that disproportionately affected Black, female
employees.\25\ Only recently have we as a society--if not as a legal
system--begun to understand and address the interplay between racism
and misogyny, and how hair discrimination is a particular point of
intersection between these two oppressive forces.
---------------------------------------------------------------------------
\24\ See U.S. Dep't of the Interior, Nat'l Park Service, African
American Heritage & Ethnography--Africans in French Americas, https://
www.nps.gov/ethnography/aah/aaheritage/FrenchAmA.htm (``[w]omen of
color had to wear a scarf or handkerchief over their hair as a visible
sign of belonging to the slave class, whether they were enslaved or
not. Those women affected by the law did, in fact, cover their hair,
but they did it with elaborate fabrics and jewels--an action which
technically meant the letter of the law but also allowed them to
maintain their standards of fashion and beauty.'').
\25\ Rogers v. American Airlines, 527 F. Supp. 229 (S.D.N.Y. 1981).
---------------------------------------------------------------------------
In and out of the workplace, Black people in the United States face
barriers or judgments when they display their natural hair. Locs in
particular have long been the target of deep-seated negative
stereotypes about Black people and their hair--mainly, that Black hair
is dirty, unprofessional, or unkempt. In fact, the term ``dreadlocks''
originated from slave traders who described Africans' hair that had
naturally formed into locs as ``dreadful.''\26\ For Black women in
particular, these stereotypes often compel them to undertake costly,
time-consuming, and harsh measures to straighten their hair to conform
to the predominant white culture and standards of professionalism and
beauty. The pressure to take such measures in order to be treated
equally in the workplace is deeply lamentable, and it is a pressure
exacerbated by TSA's practices and policies. Dorian Wanzer, for
example, a Black woman whose job requires frequent travel and has
testified/reported that ``almost every time she steps out of an airport
body scanner,'' she is pulled aside so TSA officers can conduct a hair
pat-down.\27\ This consistent treatment has prompted Ms. Wanzer to
query, ``When you find yourself in that kind of situation, it makes you
wonder, is this for security, or am I being profiled for my race?''\28\
Black women are too often denied the ability to participate in the
workplace equally because of their natural hair, both because of bias
in their place of employment, and because of external burdens and
discrimination like TSA hair pat-downs making it that much more
difficult for Black women like Ms. Wanzer to do their jobs.
---------------------------------------------------------------------------
\26\ Brown White, Releasing the Pursuit of Bouncin' and Behavin'
Hair: Natural Hair as an Afrocentric Feminist Aesthetic for Beauty, 1
Int'l J. Media & Cultural Pol. 295, 296 n.3 (2005).
\27\ See Medina, supra note 5.
\28\ Id.
---------------------------------------------------------------------------
The stereotype that Black natural hairstyles are dirty or unkempt
and therefore not appropriate for more formal settings remains
unfortunately wide-spread. For example, until 2014, the U.S. military
banned a number of common Black hairstyles, including cornrows and
braids.\29\ School administrators and dress codes also often restrict
Black natural hairstyles and punish students for wearing them.\30\ In
one dramatic episode, a school principal reportedly took scissors to a
Black student's locs.\31\ More recently, as noted earlier, a high
school wrestling referee with a history of making racist comments
forced a Black student athlete to cut his locs in order to compete,
even though doing so was not required by district policy.\32\
---------------------------------------------------------------------------
\29\ David S. Joachim, Military to Ease Hairstyle Rules After
Outcry from Black Recruits, N.Y. TIMES (Aug. 14, 2014), https://
www.nytimes.com/2014/08/15/us/military-hairstyle-rules-dreadlocks-
cornrows.html.
\30\ See, e.g., Press Release, Civil Rights Groups Retained to
Represent African American Teens Punished for Wearing Braids at
Massachusetts Charter School, NAACP Legal Def. & Educ. Fund (May 22,
2017), https://www.naacpldf.org/press-release/civil-rights-groups-
retained-to-represent-african-american-teens-punished-for-wearing-
braids-at-massachusetts-charter-school/.
\31\ David Moye, Mom Accuses Principal of Cutting Her Son's Hair
Without Permission, HUFF. POST (Mar. 28, 2018), https://
www.huffingtonpost.com/entry/mississippi-boy-hair-locs-cut-
principal_us_5abbfa33e4b03e2a5c78e34d; see also Kayla Lattimore, When
Black Hair Violates the Dress Code, NPR (July 17, 2017), https://
www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-
the-dress-code (describing two Black students punished for wearing
braids); Crystal Tate, 16-Year-Old Black Student with Natural Hair
Asked by School to ``Get Her Hair Done,'' ESSENCE (May 16, 2017),
https://www.essence.com/hair/natural/black-student-natural-hair-asked-
to-get-hair-done.
\32\ See Press Release, LDF Makes Public Records Request in
Response to Hair Discrimination Case Involving Buena Regional High
School Wrestler (Jan. 7, 2019), https://www.naacpldf.org/press-release/
ldf-makes-public-records-request-response-hair-discrimination-case-
involving-buena-regional-high-school-wrestler/; Press Release, LDF
Sends Letters Over Concerns with Discriminatory Hair Policies Stemming
from Incident Involving New Jersey High School Wrestler (Feb. 12,
2019), https://www.naacpldf.org/press-release/ldf-sends-letters-
concerns-discriminatory-hair-policies-stemming-incident-involving-new-
jersey-high-school-wrestler/.
---------------------------------------------------------------------------
While these incidents are particularly troubling and stark examples
of hair discrimination, the underlying myths and judgments about Black
natural hair are pervasive in both professional and social contexts and
in people's attitudes. A 2017 study, for instance, found that white
women, on average, show explicit bias against ``black women's textured
hair,'' rating it ``less professional than smooth hair.''\33\ This same
study, perhaps not surprisingly, found that Black women feel particular
pressure to straighten their hair for work.\34\ In the words of
Professor Paulette Caldwell, ``I marvel[] with sadness that something
as simple as a black woman's hair continues to threaten the social,
political, and economic fabric of American life.''\35\
---------------------------------------------------------------------------
\33\ See ALEXIS M. JOHNSON, ET AL., THE ``GOOD HAIR'' STUDY:
EXPLICIT AND IMPLICIT ATTITUDES TOWARD BLACK WOMEN'S HAIR 6, PERCEPTION
INSTITUTE (Feb. 2017), https://perception.org/wp-content/uploads/2017/
01/TheGoodHairStudyFindingsRe- port.pdf.
\34\ Id. at 12.
\35\ Paulette M. Caldwell, A Hair Piece: Perspectives on the
Intersection of Race and Gender, 1991 DUKE L.J. 365, 367 (Apr. 1991).
---------------------------------------------------------------------------
Realizing the pernicious and demonstrably harmful effects of hair
discrimination, some States and cities are starting to take action. In
February 2019, the New York City Human Rights Commission released
Guidance on Race Discrimination on the Basis of Hair, noting that
``Bans or restrictions on natural hair or hairstyles associated with
Black people are often rooted in white standards of appearance and
perpetuate racist stereotypes that Black hairstyles are
unprofessional'' and that ``[s]uch policies exacerbate anti-Black bias
in employment, at school, while playing sports, and in other areas of
daily living.''\36\ And the California Senate recently passed a bill,
the CROWN Act (SB 188), that would prohibit schools and employers from
discriminating against natural hairstyles associated with race.\37\
According to the sponsor of the bill, Sen. Holly J. Mitchell, ``There
are still far too many cases of Black employees and applicants denied
employment or promotion--even terminated--because of the way they
choose to wear their hair. I have heard far too many reports of Black
children humiliated and sent home from school because their natural
hair was deemed unruly or a distraction to others.''\38\ We commend
these jurisdictions for taking action against pervasive discrimination
against Black hair and ask TSA to similarly incorporate these
principles into its policies and practices.
---------------------------------------------------------------------------
\36\ New York City Commission on Human Rights, NYC Commission on
Human Rights Legal Enforcement Guidance on Race Discrimination on the
Basis of Hair (2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/
Hair-Guidance.pdf.
\37\ See Kristin Lam, California's CROWN Act seeks to end racial
discrimination based on hairstyles, USA Today (Apr. 23, 2019), https://
www.usatoday.com/story/news/nation/2019/04/23/california-bill-end-
racial-discrimination-hairstyle/3557231002/.
\38\ ``Senate OKs Sen. Mitchell's bill to protect against
discrimination based on hair texture, styles,'' YouTube.com (Apr. 22,
2019), https://www.youtube.com/watch?time_- continue=182&v=Ty69wWU-M7E.
---------------------------------------------------------------------------
Most disturbing, perhaps, is that top TSA officials do not
recognize that a system that singles out and disproportionately targets
Black women is discriminatory. In its investigation, ProPublica
reported that ``[a] senior TSA official said in an interview that hair
pat-downs are not discriminatory and are done when a body scanner
indicates that a passenger has an object in his or her hair. `I get a
hair pat-down every time I travel. I'm a white woman,' said the
official, who agreed to be interviewed on the condition that she not be
named.''\39\ The implications here--that supposedly objective
technology cannot be discriminatory, and that a system cannot be
racially discriminatory if it also affects white people--are misguided.
We are past the point of asking whether software, algorithms, machines,
and other forms of technology can perpetuate racism. Of the numerous
examples of technology-based discrimination, two from Google Images
include incidents in which the website featured almost all Black people
in response to a query about ``unprofessional hairstyles,''\40\ and one
in which the website ``labeled black people as gorillas, likely because
those were the only dark-skinned beings in the training set.''\41\ The
data that is fed into this kind of technology is susceptible to the
biases of the humans who choose that data and shape the development of
the technology: ``Software is written by humans, who have bias, and
training data is also generated by humans who have bias.''\42\ Our
focus now should be on studying the disparate outcomes produced by
these technologies and ensuring that we are not simply automating human
biases while relying on ``objective technology'' to escape culpability
for the racially unequal results. A longer and expanded inquiry is
warranted to ensure that this country's history of discrimination and
racial bigotry does not continue to be perpetuated by technology.
---------------------------------------------------------------------------
\39\ Medina, supra note 5.
\40\ Andrew Leung, If you Google `Unprofessional Hairstyles for
Work,' these are the problematic results, Mic.com (Apr. 6, 2016),
https://www.mic.com/articles/140092/if-you-google-unprofessional-
hairstyles-for-work-these-are-the-problematic-results#.KKA0LXRdd.
\41\ Maya Kosoff, Alexandria Ocasio-Cortez says algorithms can be
racist. Here's why she's right., LiveScience (Jan. 29, 2019), https://
www.livescience.com/64621-how-algorithms-can-be-racist.html.
\42\ Id.
---------------------------------------------------------------------------
Indeed, the compromising of passengers' civil rights at TSA
security points in airports is not new, and TSA has been aware of the
problem in various forms for years. In fact, over 4 years ago, TSA
entered into an agreement with the ACLU of Northern California over the
racial profiling of Black women's hair.\43\ Since this agreement, the
problems that motivated the initial complaint have reemerged, but are
now treated as an issue of technological inefficiency rather than as a
violation of passengers' civil rights. These issues of racial bias in
TSA technology must be addressed particularly as TSA moves toward
increased reliance on other forms of technology, including facial
recognition tools,\44\ which have already been proved to operate in
manner that discriminates based on race.\45\
---------------------------------------------------------------------------
\43\ Letter from Bryan W. Hudson, TSA, https://www.aclunc.org/
sites/default/files/2015.01.12%20Singleton%20TSA%20resolution_0.pdf.
\44\ https://www.theverge.com/2018/10/15/17979688/tsa-precheck-
facial-recognition-airport-cbp-biometric-exit.
\45\ https://www.theverge.com/2019/1/25/18197137/amazon-
rekognition-facial-recognition-bias-race-gender.
---------------------------------------------------------------------------
Recent reports and articles on TSA's policies and procedures
related to profiling have been a laudable and much-needed step in
understanding the problem, though the problem's scope is far from
understood. One of the ways to bring greater transparency to the issue
of racial profiling in TSA technology and TSA's policies and practices
more generally is to promote the complaint process. It is likely that
many people about to board a plane may not take the time to file a
formal complaint with TSA. And, more troubling, according to
ProPublica, ``most people [they] heard from said they had not known
they could make a complaint.''\46\ We urge TSA to continue studying the
scope of this problem, both by reviewing complaints and proactively
soliciting feedback from passengers. TSA, particularly its Office for
Civil Rights & Liberties, Ombudsman & Traveler Engagement (CRL/OTE), as
well as its Innovation Task Force, should be actively engaged in
monitoring and colleting data on how the implementation of technology
like full-body scanners disproportionately affects certain passengers.
Given TSA's constant contact with the public--contact that at times can
be of a highly personal and invasive nature--public engagement and
responding to public input is critical.
---------------------------------------------------------------------------
\46\ Medina, supra note 5.
---------------------------------------------------------------------------
Further, to the extent that TSA asserts that its current policies
and practices regarding full-body scanners and hair pat-downs are
necessary as a matter of security, we urge TSA to be transparent in
explaining why that is so and to confirm that there are no less
discriminatory measures. To our knowledge, TSA has not provided any
data on the number of weapons or other contraband, if any, it has
discovered through the process of hair pat-downs. Against the
voluminous evidence that TSA procedures are disproportionately
burdening people of color, TSA has failed to adequately show that these
procedures are actually necessary, or even helpful, in enhancing
security, or that there are no less burdensome alternative procedures.
TSA has also not shown that it is effective for TSA officers to spend
time tending to the many false positives produced by full-body
scanners, which cannot tell the difference between a weapon in a
person's hair and a Black woman's locs as opposed to other security
measures.
We appreciate TSA's role in maintaining safe travel, as well as its
attention to the on-going problems discussed in this testimony and
those shared by others today. TSA's obligation to treat all passengers
with dignity and to protect their Constitutional and civil rights, as
well as their safety is a critical one. LDF looks forward to continuing
to engage on these issues and would welcome the opportunity to work
with TSA on finding innovative solutions that serve the needs of TSA
while protecting the dignity and civil rights of all travelers.
Thank you for your consideration of this important issue and for
the opportunity to speak to you today.

Chairman Thompson. I thank the witnesses for their
testimony. I remind each Member that he or she will have 5
minutes to question the panel.
I now recognize myself for questions.
Let me say from the outset that I think it is clear that
every Member of this committee wants to get it right. The
traveling public has a duty to be safe, and we have an
obligation to make sure that that process by which they get
screened is the best system.
Our challenge--and I am speaking for the Chair--is I have
had experiences as an African American that perhaps some of my
other colleagues haven't when I have had to question why am I
being put in secondary screening. It was always not real clear
as to why. I hear comments quite often.
So one of the reasons we are trying to have this hearing is
to get it right. How can we reduce those numbers down as low as
possible? We have invested in technology. We are continuing to
invest in technology. We have done away with some of the uses,
Behavioral Detection Officers and other things that didn't have
real science behind them. But we still have to work at getting
it right, because a lot of these instances are still occurring.
One of the things I would like to ask Mr. Russell is, is
there a clear traveler's redress available to someone who feels
that he or she has been singled out for discrimination?
Mr. Russell. So what we found in our most recent report was
that there are three main ways to do that. Basically, you are
going to contact the TSA Contact Center, which handles all the
complaints; but you could do that via phone, email, or
electronic communication. Then there are comment cards at
airports that you can fill out as well.
So those are the three main avenues. You have 180 days
after the experience to lodge that complaint with TSA.
Chairman Thompson. So, to your knowledge, were you able to
ascertain whether or not individuals who are going through that
process are told that?
Mr. Russell. So there are officials at the airports that
can help, customer service representatives that can help steer
passengers in the right place if they know to find them, is how
we talked about it in the report.
Chairman Thompson. Mr. Singh, your experience on the group
you are here representing, has that process been clear to those
individuals?
Mr. Singh. It has not really been clear for individuals. In
fact, I would say that the word ``comment cards'' is a
deceptive practice. It doesn't really indicate that this is a
complaint form for a traveler to use.
Second, travelers who are already delayed and frustrated
with the secondary screening procedures have flights to catch.
They are not going to try to hang around at the airport to try
to ascertain who the appropriate individual is to complain.
So we developed the Fly Rights app to hopefully make it a
little bit more accessible. We launched this app in 2012 so
that complaints could be officially made through our app and
forwarded to TSA.
TSA has done a little bit more in terms of the on-line
space allowing for complaints, but I think people are tired of
complaining for 18 years and seeing little to no change. The
inconsistent application of security procedures and discretion
at airports makes the job too big of a problem to always
complain about. The entire system really requires an overhaul,
as a top-down messaging is not effectively implemented by
airports and security officials that kind of govern themselves.
The more sophisticated technology, such as AIT, is also
often perceived as superior to human expertise, and people are
left to make a generalized complaint about the machine, not
necessarily about the TSO or specific airport. They may not
even understand that the technology they are using is a problem
for them.
Chairman Thompson. Thank you very much.
Ms. Nelson, what has been your experience with people
making complaints?
Ms. Nelson. Well, my experience has been that, as my co-
panelists have described, the process is not clear. It leaves a
lot to be desired. Currently, if a complaint is lodged and
supplemental information is requested and it is not provided
within a 10-day window, the administrative complaint is closed.
So the 3,700 complaints that were identified in the GAO
report really does not represent the lion's share of incidences
that happen at airports that go unreported and ultimately are
later dismissed because they are not fully complete.
One of the 5 recommendations that the Legal Defense Fund is
making is that the complaint process be overhauled, that there
is greater public education and ad campaigns about the ability
to lodge such complaints. When passengers complain to TSOs and
complain to airport security personnel, they should be
immediately offered an opportunity to file a complaint then or
to later do so on-line.
Chairman Thompson. Thank you very much.
I yield to the Ranking Member.
Mr. Rogers. Thank you, Mr. Chairman.
I would tell Mr. Singh and Ms. Nelson that the AIT
machines, I have been a long-time critic of that technology and
have worked for years to make sure we don't purchase any more
of them. I think they need to be out of our airports as soon as
we can replace them with better technology.
Mr. Russell, TSA has struggled for a long time with
screening in a way that treats everybody fairly, but they seem
to have been hung up on this behavior detection approach even
though we have told them to stop using it.
Why do you think that they continue to lean on this
approach to screening, along with using AIT, when there are
better technologies available?
Mr. Russell. What they have reported to us is that they
just consider behavior detection as one layer of security among
many. You have Secure Flight, the technology at the checkpoint,
and that that is a useful security measure to help counter
threats to aviation.
What we have said in our past report is that there was
little valid evidence to support a good number of the
indicators that are in use and had recommended that they limit
funding until such time that they get that valid support.
As was mentioned, the Aviation Security Act of 2016 helped
TSA in the stand-alone behavior detection program, and now
those staff trained in that function have been converted to
regular transportation security officers.
Mr. Rogers. But don't you find that they still use that
approach in their screening practices, even though they have
been told to move on to a different job?
Mr. Russell. Right. What we found is they are still being
used in a limited way in support of passenger screening, canine
teams, as well as vetting of airport workers as they come to
work every day.
Mr. Rogers. One of the arguments for using Federalized
screening personnel as opposed to allowing airports to
privatize the screening personnel and let them just be
supervised by TSA is that it is supposedly supposed to offer
more consistency in the way screening is done. Have you found
that to be true? It seems there are a lot of inconsistencies to
me.
Mr. Russell. Right. That wasn't something we looked at at
this review, that comparison between the SPP airports and a
Federalized TSA airport.
Mr. Rogers. Mr. Singh, I heard you mention a few minutes
ago that you had seen some improvements in TSA, not enough, but
some improvements.
Ms. Nelson, is that your view?
Ms. Nelson. That there have been some improvements at TSA?
Well, we just mentioned that there is a diminished use of
behavioral techniques and that is certainly an improvement. But
we still have a very long way to go. There are very sound
practices that can also keep us safe.
We do not believe, as the Chairman emphasized in his
opening remarks, that it is an either/or equation. It is not a
zero-sum question. We can protect civil rights, we can protect
human rights, and we can protect our National security.
Mr. Rogers. Thank you.
I yield back.
Chairman Thompson. Thank you.
The Chair recognizes the gentlelady from Texas, Ms. Jackson
Lee, for 5 minutes.
Ms. Jackson Lee. Mr. Chairman, first of all, let me thank
you for the hearing and thank you for the Ranking Member
joining. We have been together on this committee for a very
long time and addressed these issues that are extremely
important.
I want to take note, Ms. Nelson, because I think it is
important that people know what is in your testimony as relates
to TSA. You very openly say, we appreciate TSA's role in
maintaining safe travel as well as its attention to the on-
going problems discussed in the testimony.
So I want it to be known that we understand, I think each
and every witness, Members here understand the front-line
responsibility of the Transportation Security Administration as
well as the TSO officers, and we offer them our gratitude.
But we live in a Nation of laws, and we believe we still
live in a Nation that adheres to the rule of law and as well
our basic principles of human dignity and due process. So I
think this hearing is crucial, because it is important to get
things correct on how we balance the aftermath of 9/11, when
the naivete of the United States was breached and we understood
that we had the responsibility of security.
So I am going to ask, I think in your report, Mr. Russell,
you indicated that a number of these complaints were heavily in
about 10 cities, am I correct, on the 3,700 complaints?
Mr. Russell. Right. The top 3 were LAX, JFK, and then
Atlanta.
Ms. Jackson Lee. Do you attribute that to the size of the
airports and not necessarily that it is not going on all across
the Nation?
Mr. Russell. That is certainly one factor. I mean, those
are some of the busiest airports in the country. We just
provided that data, but we didn't make a judgment beyond that.
Ms. Jackson Lee. So the most important point that you want
to make out of your recommendation is what?
Mr. Russell. So TSA has a number of oversight mechanisms
already in place for the remaining parts of behavior detection
that it employs, but we think they need to go one step further
and make sure there is a specific mechanism within their
oversight checklist and their policies to specifically look for
instances of or indications of profiling as they are doing
their due diligence.
Ms. Jackson Lee. So there should be a specific mechanism?
Mr. Russell. Correct.
Ms. Jackson Lee. To? Say it again.
Mr. Russell. So this is--and this is what TSA agreed to, is
to go back, look at the whole process they use for oversight,
actually documenting what the supervisor is observing as the
behavior detection is being conducted, and to have a specific
place to look for indications of profiling, and then to remark
whether they are seeing something or not, so that you could go
back later.
Ms. Jackson Lee. So they have to internally do this. They
have to set up a structure and do this themselves.
Mr. Russell. Correct.
Ms. Jackson Lee. Mr. Singh, let me thank you very much.
First of all, we will answer your question. We are in the
process in a committee that works very closely with this
committee, the Judiciary Committee, to reintroduce the End
Racial Profiling, and I look forward to leading that effort. So
thank you very much.
I just want to quickly say that I am reminded of an Indian
Sikh right after 9/11, Mr. Sodhi, who was killed in Mesa,
Arizona, and the person who killed him was Frank Roque, I
believe. ``I am going to go out and shoot some towel-heads, and
we should kill their children too, because they will grow up to
be like their parents.'' The intensity of that hatred is
resurging.
I do want to acknowledge and put in the record Hargun
Sodhi, who is currently a rising junior at the University of
Houston, and he came to my office in Houston from the SikhLEAD
Program. He is, in fact, related to Mr. Sodhi, which tells us
that when we kill, we may kill one, but the spirit and the
strength of our communities will remain strong.
I ask you the question how the community feels, and you
sort-of represent others who may be similarly dressed in other
religious garb, in terms of what they feel, what it means when
they go to an airport and expect to be or are treated that way.
I am going to ask that question, because I am going to quickly
go to Ms. Nelson so that you can answer the question.
My constituent Ms. Mohammad was treated unfairly in
Atlanta, which I am still pursuing. I ask the question to you,
what is the most key thing that we will need to do? You said an
appeal process or you said a process that captures where they
can apply directly at the airport, which I think is extremely
important.
So, Mr. Chairman, if you don't mind if they could answer
those 2 questions.
Mr. Singh, your answer, and then Ms. Nelson.
Thank you so very much.
Mr. Singh. First of all, thank you so much for that
recognition for the legacy of Mr. Sodhi.
Travelers feel humiliated, they feel ashamed, they feel
stigmatized, and they feel left out. In short, they also feel
like second-class citizens and sometimes like model minorities
that are not helping their own community.
Ms. Jackson Lee. Ms. Nelson.
Ms. Nelson. You asked about additional recommendations to
improve the process. While the GAO report that was released
this morning is laudable and it is an insightful assessment,
there should be a full audit of TSA practices and policies to
determine 2 things. No. 1, whether they, in fact, serve
National security interests. No. 2, are they the least
discriminatory means of serving those goals?
No one group or several groups of citizens who are already
marginalized should bear the responsibility of security
procedures that are not effective.
Ms. Jackson Lee. Thank you very much.
Mr. Chairman, thank you.
Chairman Thompson. Thank you very much.
If this gentleman from New York will allow me to recognize,
for a point of personal privilege, the other gentleman from New
York, the Chair would appreciate it.
Mr. Katko. This time, sure.
Chairman Thompson. I understand you have a special guest in
the audience, Mr. Rose, that you might want to introduce to the
committee.
Mr. Rose. Mr. Chairman, thank you very much for that honor.
I would like to recognize my mother and my aunt and my
wonderful cousin who is out there.
[Applause.]
Mr. Rose. Please stand up real quickly, mom and Rachel.
Stand up. Stand up. Say hello.
All right. OK. I am not repeating that.
Chairman Thompson. Does the gentleman yield back?
Mr. Rose. Yes. Let's strike that from the record, what you
just said. All right?
Yes, I yield back. Thank you.
Chairman Thompson. The gentleman from New York is
recognized for 5 minutes.
Mr. Katko. Perhaps Mr. Rose owes me a beer now.
Mr. Chairman, I thank you for having this hearing. It is
very important. I agree with the sentiments expressed by both
yourself and the Ranking Member that even one incident of
racial profiling is too much.
So I commend all of you for being here today.
I must say, though, that I am a little concerned with TSA,
and it seems to be a problem that is more endemic to the whole
administrative Executive branch function of our Government as a
whole, and that is sometimes it seems like they dictate the
terms by which they appear here, and that shouldn't be. If they
are given 12 days notice or we make inquiries about whether we
want to have a witness, either in the Majority or us in the
Minority, 12 days should be sufficient for them to get their
internal approvals done. They signal to us repeatedly that they
need more time to prepare their witnesses.
If this recalcitrance continues, I think we should consider
using the subpoena process, because TSA should be here to face
the fire. TSA is the one we are concerned with, and TSA is the
only one not here at the table. So, in my mind, TSA, we should
take a little more aggressive approach in the future, if
necessary, Mr. Chairman, I respectfully suggest.
Chairman Thompson. Duly noted.
Mr. Katko. Thank you. Plus, I was a prosecutor and I like
subpoenas. It tends to get people's attention.
Now, Mr. Russell, we have talked about this behavior
detection, but, as the Chairman noted in his opening statement,
we passed a bill out of here, one of my bills, that outlawed
using Behavior Detection Officers in the line to determine
whether they go to PreCheck or not. I want to understand, how
exactly are they using these officers now?
Mr. Russell. So over the course of our review they were
using them in support of passenger screening canine teams, as
well as screening of aviation workers.
Mr. Katko. So are they stationed at the line when people
are coming in or what?
Mr. Russell. So they would be with the actual canine units,
wherever they are operating. Then, depending on how the airport
is set up to do their screening of workers, they would be
positioned there.
Mr. Katko. Is that your understanding as well, Mr. Singh?
Mr. Singh. That is probably SSI we are not privileged to,
so I couldn't comment on that.
Mr. Katko. OK. Well, I want to get, Mr. Singh, I want to
get some examples from you, some more specific examples of when
you think that they have been profiling in a not appropriate
manner. Give me specific examples just so I can understand it.
Mr. Singh. In a not appropriate manner?
Mr. Katko. Yes.
Mr. Singh. So I will highlight one of them. A Sikh traveler
within the past 2 months flew out of EWR three times, twice
from terminal C and once from terminal A. When he flew out of
terminal C, in both instances he was told he cannot do a self-
pat-down of his turban. The TSO and the manager said that the
rules have changed and that they have to do a pat-down. The
third flight of EWR from terminal A, he was able to do a self-
pat-down like usual.
He mostly goes through the AIT machine, and his turban
shows up on alarms 9 times out of 10. This is one of those
demonstrations of inconsistent application within just one
airport in the last 2 months.
Mr. Katko. OK, great. Thank you.
Ms. Nelson, you mentioned some possible remedies for this,
and could you expound on those a bit? I know you talked about
perhaps some sort of a public awareness campaign. But what else
would you suggest we do to ameliorate this problem?
I am really concerned, as the Chairman knows, with the use
of these officers. I think it is way too nonscientific. Unless
you are engaging a passenger for several minutes and getting a
feel for whether there is a concern, I don't think in 10
seconds you can make a snap decision.
I will give you an example. I would sit for days talking to
people I think committed a murder, and for days I would be
absolutely convinced that they were telling me the truth, and
then after a while they broke down and told me they did do it.
So you are not going to find out in 10 seconds whether someone
is a security risk or not.
So with that as a proviso, I want to hear what you have to
say, some suggestions.
Ms. Nelson. Sure. So in addition to improving the complaint
process and also ensuring that we are, in fact, meeting our
National security interest needs in a way that is least
burdensome on American travelers, we also recommend three other
measures.
One is that in addition to antidiscrimination training for
all TSA personnel, that the TSA quickly implement, as Ranking
Member Rogers suggested, that it immediately implement the
GAO's recommendation, which it has accepted, to monitor
compliance with the specific procedures intended to prohibit
unlawful profiling. So not just general monitoring, but looking
at the specific procedures that are intended to deal with this
very issue that we are most concerned about.
In addition, we would add that, in the interest of
transparency, it should share the results of that monitoring
with the public.
Also, very commendably, it was reported that the TSA
requested that vendors last summer provide ideas to improve
screening of headwear and hair, in compliance with Title VI of
the Civil Rights Act. That is an excellent step in the right
direction. We urge the TSA to maintain that demand of vendors
and to refuse to contract with vendors using taxpayer funds
that cannot ensure that their technology is nondiscriminatory.
So those are just a few additional ways in addition to
phasing out completely the use of behavioral detection
techniques.
Mr. Katko. Well, you just gave me a couple ideas for new
bills. So thank you very much.
I yield back my time, Mr. Chairman.
Chairman Thompson. Thank you very much.
Let me assure the gentleman from New York, we will follow
up and get TSA here. I am wondering why they are not following
the Congressional mandate of your bill. I mean, I don't know
how they can----
Mr. Katko. I don't understand it either, and that is why I
would respectfully suggest that we have some follow-up on this.
Chairman Thompson. Sure. We will.
Mr. Katko. If we need to use subpoenas, we need to use
subpoenas.
Chairman Thompson. Absolutely.
Mr. Katko. Time should never be an excuse for them not to
be here.
Chairman Thompson. Thank you.
The Chair recognizes the gentleman from New Jersey, Mr.
Payne.
Mr. Payne. Thank you, Mr. Chairman, for having this
hearing, and the Ranking Member as well.
You know, I think it has kind-of already been mentioned, my
line of questioning, but to reiterate the seriousness of the
issue, 3,500 complaints in the scope of things may not seem
like a significant number, but 3,500 people that took the time
to lodge a complaint is probably just the tip of the iceberg in
terms of people that are not complaining. They are upset, they
are distraught, they didn't like it, but they don't have the
time to make the complaint or don't know the procedure of what
to do next. That is a serious problem.
So I am asking all the witnesses, do you suspect that
travelers underreport civil rights and civil liberty complaints
against TSA? Do you think passengers refrain from reporting
incidents due to fear of being placed on a watch list that will
restrict future travel?
Sir.
Mr. Russell. So in our recent report, we really looked at
for those 3,700 complaints with civil right/civil liberties
issues, what was the process? One of the things that you note
is they don't all really make it to the investigative stage. So
almost a third of those dropped out, because there wasn't
complete information that the passenger was able to provide for
TSA to pursue it further.
So anything along those lines, to make it more evident what
you need to file, how you are responsive to a request for more
information, to have a complete complaint that could be
investigated, would be helpful.
Mr. Payne. OK.
Mr. Singh.
Mr. Singh. We believe that there are numerous factors that
contribute to underreporting. Sometimes the traveling public,
especially if they don't travel frequently, may not know their
rights are being violated or that the TSO is not adhering to
policies and protocols, because those policies and protocols
are not always transparent or easy to understand.
I would refer the committee Members here to our exhibit B
and C to show the difference between TSA's guidance for Sikh
air travel passengers and the one that we developed with close
consultation.
Mr. Payne. Thank you.
Ms. Nelson. I will add that we should underscore that of
the 3,663 complaints related to passenger screening, TSA's
Multicultural Branch found indications of potential
discrimination and unprofessional conduct that involved race
and other factors in over a thousand complaints. That is a
significant number.
That is buttressed by the anecdotal accounts and news
reports by African American women, who talk about invasive and
humiliating pat-downs at airports. It is buttressed by the
accounts of TSOs themselves who talked about racial profiling
being pervasive at airports, like Logan National Airport,
Newark Liberty International Airport, Honolulu International
Airport.
It is something that we know is far more prevalent than the
number of complaints suggests, because of the frailties in the
complaint process and the very nature of the issue itself,
where people are under pressure to get where they need to go
and do not often circle back. I can confess to not complaining
or lodging a formal complaint to TSA when I have personally
been subjected to similar pat-downs.
Mr. Payne. I do recall times prior to me becoming a Member
of the House of Representatives having issues in airports and
not necessarily filing a complaint, but finding myself being
very discouraged and frustrated and embarrassed by the pat-
downs that TSA formally did in their procedures.
What other reasons might result in underreporting of
complaints?
Ms. Nelson. Well, I think with respect to certain
populations, and I particularly would like to lift up Muslim
Americans on the last day of Ramadan today who often are
singled out and concerned that by stepping up and speaking out
that they may be subjecting themselves to additional scrutiny
and potential danger because of the stereotypes that surround
that community and many others.
In addition, transgender individuals are often so deeply
humiliated by the very binary lens that the TSA scanners and
TSOs use to determine who is appropriate to pass through
security that filing a complaint and airing those issues only
leads to further exposure and potential humiliation.
So I think those are deterrents, and we need to find a
process that allows for a greater opportunity to air those
issues.
Mr. Payne. Thank you.
I apologize. I yield back.
Chairman Thompson. Thank you very much.
The Chair recognizes the gentleman from North Carolina for
5 minutes, Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman.
Ms. Nelson, I appreciate your perspective on some of the
things that you have seen. It has been educating for me and I
appreciate you sharing some of the things, specifically with
hair and some of the things that the African American females,
false signals and some of that. I am going to look more into
that and check into that.
I haven't thought about this in probably I guess maybe 15,
16 years, Mr. Singh. I remember my third-grade son coming home
one day with a note that he and some friends had made fun of
another boy in his class that wore a turban. I just thought
about that today. The next day, in trying to teach him a
lesson, my son left for school wearing a turban that day to try
to get him to understand what it feels like to be picked on or
discriminated against.
I do believe that was--I haven't always gotten it right,
but I think that day we were able to send a valuable lesson
that no Americans--and I know my colleagues on this side of the
aisle want to make sure that any kind of discrimination is shut
down.
At the same time, I want to make sure--there are many
wonderful employees at the TSA who take their job very
seriously and do their best. I think with about 2 million
passengers each day, I think it comes down to less than 1/1000
of 1 percentage point of some of these actionable claims. Still
too many, we want to continue to work on that, but we want to
make sure that we stop that.
I do have a couple questions.
Mr. Russell, as the director here, how does the
Multicultural Branch review whether a screener followed the
protocol in instances of alleged violations?
Mr. Russell. So once they have enough information to review
the complaint, typically they go back to the airport involved
and try to pull the camera footage, interview the
transportation security officers involved, and try to recreate
the events and see if they could substantiate any part of the
allegation in the complaint.
Mr. Walker. Can you tell me, are there consistent
disciplinary actions that are used if a screener does not
follow protocol?
Mr. Russell. Right. Most often there is refresher training
of various sorts, either to the employees at the airport or it
could be a Nation-wide brief, depending on what the issue may
be. Over the course of our review, we also noted there were a
hundred instances where disciplinary action was taken in
response to some of the passenger screening-related complaints.
Mr. Walker. I know trends are very important in this line
of work. What ways does the TSA check potential trends,
concerns that is, increases or decreases related to allegations
of unlawful profiling? Do you have some kind of system in place
that you are able to monitor that?
Mr. Russell. So TSA does review at a macro level the
complaint data to try to look for trends, things that are
emerging, and has various mechanisms to report that, both to
the leadership within TSA or to make the airport officials, the
Federal security directors, others, aware of things that they
might be seeing in the data.
Mr. Walker. Can you unpack that a little bit more? You said
they have ways to follow the trends. Can you speak to that, as
far as specifically what are being utilized as tracking the
changes to reduce profiling in the future?
Mr. Russell. Right. So one of the examples that we were
able to look at had to do with headgear and turbans and the way
to handle that situation at the checkpoint when an anomaly is
present based on the AIT review. Religious wear. If there are
particular religious artifacts that groups may be traveling
with, how to handle that situation. So we saw sort-of trying to
be somewhat proactive and to alerting airports to those
situations.
Mr. Walker. OK. Thank you, Director Russell.
Thank you, panel.
I yield back to the Chairman.
Chairman Thompson. Thank you very much.
The Chair recognizes Mr. Correa for 5 minutes.
Mr. Correa. Thank you, Mr. Chair, and the Ranking Member
for holding this most important hearing.
Listening to your testimony here, I do wish TSA would have
been here. I hope that either this full committee or our
subcommittee on TSA does have a hearing and invites the TSA
officials. It is important to hear from them because they do
have an important job, very important job.
If you look at, you know, how many flights per day in this
country, maybe 2,000 or more, it is a million passengers. How
many airports around this country? Their job is to make sure
that those planes leave and land safely.
Now, I am going to ask Mr. Russell: Immigration, law
enforcement, TSA, three separate functions. When it comes to
immigration, before you walk into the TSA inspection, your
credentials are checked, correct?
Mr. Russell. That is right.
Mr. Correa. Many places before you get on that airplane,
you are checked again. Yes? No?
Mr. Russell. Right, to go through screening.
Mr. Correa. So TSA really is there to screen for devices
that may cause harm to the passengers, correct?
Mr. Russell. Right.
Mr. Correa. We are always working to make sure that we
attain 100 percent in terms of assuring that those negative
things don't get on our planes or get into airports, correct?
Mr. Russell. Right, that is the goal.
Mr. Correa. So I got to figure TSA, those workers have a
very stressful job, and they know zero tolerance is what is
expected of them. So what is the policy right now at TSA when
it comes to screening for immigration? Is that part of the job?
Mr. Russell. That is not something that we looked at in
this review. So I can look in that and see if there is
something specific in their standard operating procedures. I
can tell that you they are----
Mr. Correa. I ask you this because, several years ago, we
heard reports that Latino passengers were being targeted by the
Behavior Detection Officers in Honolulu, Boston, and Newark.
Some of these officers actually call themselves
``Mexicutioners,'' which meant they were really looking for
secondary screenings that would yield drug-related offenses,
outstanding warrants, and deportations.
Is this part of the TSA mission or goal? Do you know if
they are still doing this, or is this something incidental?
Mr. Russell. So that is not something that came up
specifically in our review, but in terms of where behavior
detection is being used, yes, we saw that. They definitely
needed to improve the oversight in terms of checking for
compliance with profiling. So, if those--if behavior detection
was involved in the incidents that you are referring to,
certainly we think our recommendation will help at least have
an oversight mechanism to specifically look for those.
Mr. Correa. Most of us that fly are familiar with the
process, but a person who occasionally flies, travels, so to
speak, you are going to be nervous as you walk up to a lot of
those hi-tech machines. So you on the natural will probably
exhibit some kind of nervousness. The detection behavior folks,
would they look at this as triggering a secondary inspection?
Mr. Russell. That is what behavior detection is intended to
do, is look for signs of fear, stress, using a certain number
of indicators; and if you see enough of them, then you refer
the person to secondary.
Mr. Correa. How many of these would be false positives,
false negatives?
Mr. Russell. Well, that is where our work has shown big
concerns around the usefulness of those indicators. When we
looked at the--how many of them had valid support for use in
the aviation environment, it was only a few out of the 36 that
they currently employ.
Mr. Correa. So it is not really significant in terms of
their job----
Mr. Russell. Right.
Mr. Correa [continuing]. Performance, effectiveness.
I am running out of time but my--my further thought is, in
terms of the reports of abuse, reports from citizens, this is a
very diverse country, a very multiethnic country, a lot of
religions. So, to me, every time you go through one of these
situations, if you feel that you have been discriminated
against, racially profiled, I think most passengers will just
say: You know what? Let me the heck out of here. I just want to
get out of here.
They would not file a complaint.
So I am hoping somehow we get to a process where, if a
passenger feels that there is something wrong here, ``I have
been wronged,'' that they can immediately report a situation,
as opposed to give me that slip of paper. I have got to go on-
line and have to write you a letter to express my concerns.
Any thoughts on that?
Mr. Russell. That is certainly something we saw. You know,
about a third of the civil rights, civil liberty complaints
that came in did not get further reviewed because they were
missing some key piece of information. Someone had to provide,
you know----
Mr. Correa. Those are the ones that are actually reported.
Mr. Russell. These are the rules that are in place to
investigate a complaint further at TSA.
Mr. Correa. Mr. Chairman, I just want to say we need to
follow up on this and make sure that there is a robust
complaint system so that we get a good picture of what is going
on.
I want to thank again our TSA officers for the good job
they have done. I just want to make sure that they are focusing
on the right job.
Thank you, Mr. Chair.
I yield.
Chairman Thompson. Absolutely. I think just about everyone
who has commented understands that TSA is missing in action
with this hearing and that they knew well in advance of our
intent to it have and our interest to have them. So we will go
forward and have them come and answer some questions.
I am really concerned, Mr. Russell, that, you know, we
spoke very clearly that there was not enough science behind the
behavioral detective program, BDO program, and somehow, on one
hand, they say, OK, we have done away with it, but from what
you have said today, they are still using it.
Mr. Russell. In a more limited way, yes. That is correct.
Chairman Thompson. Well, and that is what Mr. Katko was
talking about, too, because it was his bill.
Mr. Correa. Mr. Chair, we need to follow up on this. I want
to make sure if there is a validity to this kind of behavior,
testing, use, let's hear about it. If not, let's move on to
something that makes sense.
Chairman Thompson. Absolutely.
Chair recognizes the gentlelady from Arizona, Mrs. Lesko.
Mrs. Lesko. Thank you, Mr. Chair.
Thank all of you for coming today and sharing your insight
onto this most important issue.
I have a couple questions. The first one is for Mr.
Russell.
From what I have read, there is--and what has been
testified--there are 1,066 complaints that TSA recommended
additional training due to potential discrimination, and then
we got testimony from our other witnesses about different
aspects of possible discrimination.
Do you have a breakdown of how many people, how many of
these complaints were because of turbans or other headwear or
hair so that I get a better idea of the--how many of these--
this stuff happens?
Mr. Russell. Sure. So, of the--going back to that larger
universe of the 3,700 complaints that dealt with civil rights
or civil liberty issues, passenger screening, really,
complaints, about 1,500 of those were related just to general
discrimination or profiling concerns; 493 had to do with some
aspect of pat-downs, so when you are in the secondary screening
process; 279 dealt with hair, issues around hair; and just to
name a few others, 200 dealt with religion; and then another
169 dealt with transgender issues, just to give you a----
Mrs. Lesko. Yes, that is helpful.
Ms. Nelson, you had--I just want to understand this more.
You had said that African American women's hair, sometimes they
cannot detect the difference between contraband and the hair.
Is that accurate? That is after they go through the screening,
through the X-rays, or the--when does that happen?
Ms. Nelson. So the full body scanner does not always
accurately detect or screen Black women's hair. It can be in an
Afro. It can be in braids or twists or the locks that I wear on
my head. Those scanners cannot properly detect that it is hair
and not contraband. So it signals to the TSOs that there should
be an additional screening. That then disproportionately
affects Black women, who have to go through a more invasive
hair pat-down whereas, if someone had straight hair or
flattened hair, it is less likely to go off.
Mrs. Lesko. Thank you. Thank you.
My other--I guess I am just kind of confused about this
behavioral screening, this specialized behavioral detection
training that Mr. Katko, apparently, I don't know if he got rid
of it or not, but from what I read, it said that it is
integrated now into other TSO officers and especially those
that have K-9s.
Now, the airport that I come from, the K-9s are usually at
the front of the line. So, how does a K-9 officer that is using
this specialized behavioral detection, I mean, how do they then
say, ``Oh, you need a special pat-down''? Because normally
doesn't the pat-down, they take you after you get through, you
know, the luggage area, and then the TSO officer there, you
know, puts you aside and has you do a pat-down.
So help me understand this. I don't get it.
Mr. Russell. Yes, so, with the passenger screening, K-9
teams, that could be right around the checkpoint. Think about
the, you know, in the queue area, depending on the
circumstance. Then the Behavior Detection Officers would
support the K-9. So, as you are engaging passengers, you can
ask them questions and look for some of the indicators. If you
see a certain number, then you would refer that person for
later to the secondary screening.
Mrs. Lesko. So they walk them over to the screening area
and----
Mr. Russell. Right.
Mrs. Lesko [continuing]. Hand them over to another TSA--TSO
officer? Is that what you are saying?
Mr. Russell. That is my understanding.
Mrs. Lesko. OK. All right. Yes, that is what I read is that
it--they integrated these specialized behavioral detection
people into the TSAs, TSOs, and they are usually the ones that
deal with K-9s. That is what I read anyway. So I don't know if
that was specifically banned in Representative Katko's bill or
not. We are going to have to find out.
So thank you very much, all of you. I appreciate the
insight.
Chairman Thompson. I think that the reason we got to the
bill is we could not find the science behind being able to look
at somebody and tell that they are terrorists or something like
that in a matter of seconds and, because nobody could come back
and clarify the issue, we said it is not working, but, again,
we will have TSA to come here and tell us why, for whatever
reason, the intent of Congress to do away with this program has
somehow resurfaced somewhere else.
The Chair recognizes gentlelady from Nevada, Ms. Titus, for
5 minutes.
Ms. Titus. Thank you, Mr. Chairman.
I represent Las Vegas, and so it distresses me to see
McCarran on this list of top airports where you have
complaints. We welcome visitors from all over the world, and we
want their experience from the minute they land or the minute
they leave to always be a good one. So I hate to see us here.
But I do think that this chart really only tells us which
airports are the busiest. It doesn't really give us much more
information than that, and there may be a smaller airport where
you have a much higher percentage of incidents of this. One is
too many, but you mentioned Honolulu, for example, that you had
heard stories and that is--I don't see that on here. So I think
a better chart would give us percentages or break it down by--I
don't know what, but this doesn't really give me too much
information.
One thing I would ask all of you to maybe address: We have
heard you need more technology. You need better training. You
also need more accountability. How about more diversity among
the TSO staff themselves? If you are coming through an airport
and you are a Sikh and there is a Sikh TSO officer, maybe that
would be some more understanding. Did you look at the TSO, the
TSA staff to see if they are diverse or there is any attempt to
hire diversity, not just train people but bring all kinds of
people into the professional, where they can then reflect some
of these concerns themselves?
Mr. Russell. So that wasn't within the scope of what we
looked at for this review.
Then just one note on the airports, so there were a total
of 240 that had at least one complaint related to civil rights
and civil liberties. But we just listed the top 10.
Ms. Titus. But go back to the fact that, even if it is not
part of the scope, do you think that would be a good thing to
look into that with more diversity of hiring or just at least
have some idea of who works on the other side?
Mr. Russell. Yes, I would feel uncomfortable to answer for
TSA on that, but, you know, certainly a diverse and inclusive
work force is always a good thing.
Ms. Titus. OK. Mr. Singh.
Mr. Singh. We know of some Sikh TSOs in the field. However,
without the appropriate input at the leadership level and at
the policymaking level, no matter how diverse, are still going
to be implementing problematic procedures and protocols that
are not clear and would still unfortunately leave people
feeling violated against their own people, it may be, at best
or just a more diverse face.
Ms. Titus. I understand about the technology, but I was
hoping maybe there would be some personal connection, but I see
your point.
Ms. Nelson. I think a diverse and inclusive work force is
always a good thing, and it is something that we should look
for in TSA and elsewhere. However, we have found that even
African American TSOs will implement a policy that is
discriminatory, and it also doesn't account for the technology
that itself perpetuates racial profiling and racial bias.
So that can't be solved by just diversifying the work
force, although I do think that is an important step. But it
does not fully solve the issue. Anecdotally, you know, there
has been some commentary that perhaps people who understand
your hair, understand your religious garb better will not
engage in as invasive or as humiliating a search, but it
doesn't eliminate that disproportionate impact of technology
and of these practices and policies.
Ms. Titus. Thank you.
I note, in the report, you also talked to some members of
TSA and some managers. Did you reach out to their union, AFSCME
and have any conversations with them? Do you think that would
be a good idea? Do you think that could be a vehicle for trying
to maybe bring about some of these changes that you all have
suggested that we so desperately need?
Mr. Russell. We looked really at the coordination part that
TSA's civil rights, civil liberties branch has with community
groups and did note that they have a relationship with I
believe the Sikh Coalition and others to have a dialog on these
issues. That is as far as it went is just to report some of
that information.
Ms. Titus. Mr. Chairman, maybe if you bring TSA in, we
could also bring in their union to see how they might be
helpful in implementing some of these changes.
Chairman Thompson. Absolutely. We look forward to having
both.
Ms. Titus. Thank you.
I yield back.
Chairman Thompson. Thank you.
The Chair recognizes the gentleman from Texas, Mr. Taylor.
Mr. Taylor. Thank you, Mr. Chairman.
I appreciate this hearing. I think this is an important
topic. I just wanted to--and I am a new Member of Congress. So
I am trying to figure out.
Can you give me like a--Mr. Russell, can you give me a
trend of what has transpired here? So it has been--TSA has been
around for 18 years, since 9/11. You know, it is in their
policies they are not supposed to do profiling. Has that always
been in there? Has that changed at some point? Then can you
give me some kind of context of the numbers of complaints about
racial profiling? Has that gone up? Gone down? I mean, because
I think it can be a snapshot in time, which is helpful to know
where we are. But where have we been?
Mr. Russell. Yes, a couple of points on that. So some
prohibition against profiling, I think, has been around for a
long time.
Specifically in 2013, though, the DHS Secretary sent a memo
to TSA to really take a second look at that to make sure that
they had specific policies in place around profiling and then,
where feasible, to try to collect some information to make sure
that wasn't happening. So it got reinforced there.
In terms of the complaint data itself, you know, for our
review, we looked at the 3,700 that are just civil rights,
civil liberties-related complaints. But just to give you some
context, I think in 2017, TSA received a total of about 100,000
complaints in one form or fashion. So, 3,700 would be a subset,
and that is over, you know, a little bit more extended period
of time, if that is helpful.
Mr. Taylor. But what was that 10 years ago? I mean, what
trend line are we on, or do you know? I am not trying to put
you on the spot.
Mr. Russell. Yes, no, I don't have extended data just for
civil rights, civil liberties complaints. But I think typically
there are half a million to 600,000 comments that come in, in a
year based on the TSA data we have seen, and then typically it
is around 100,000 that are complaints.
Mr. Taylor. OK. Then something that is important to me is
mothers who are breastfeeding and trying to take milk through
TSA, and that is something that has come up in my townhalls.
Mothers have said: Hey, I show up. I show the piece of paper to
TSA. This is how I am supposed to be screened, and they do it
their own way anyway. They take the piece of paper and throw it
away.
It is pretty upsetting to me because, I mean, you want to
look out for mothers. So that is a piece of legislation I am
working on with committee staff. So it is important to me.
But just going back to that kind of idea of showing up and
saying, ``Hey, this is your policy,'' Mr. Singh, have you had a
chance to review TSA's policy and how--I see that there is
something in our briefing about policy, but it is not very
helpful to me anyway. But have you reviewed their policy? There
is a specific--is there written documentation somewhere that
people can point to and say this is how you are supposed to--
you know, go back to the self-inspection for a turban, which
seems to be the key question here. Is there something written?
Is there a written policy on that? Or is this just catch-as-
catch-can, depending on what terminal you show up at Newark?
Mr. Singh. So they have developed a know-before-you-go
document. However, it is not accessible on the TSA's website.
So I don't quite know how they are distributing and
disseminating, other than working with community organizations
like the Sikh Coalition and others, which is kind-of
frustrating because we don't have access to every Sikh in
America. So the guidance is not clear. Their website, TSA's
website, doesn't really have any clear policies and procedures
of what a religious headwear traveler can expect and,
therefore, when they go to present themselves for screening,
they are left wondering, what does this process and procedure
look like? Really the onus is on organizations like us and our
travelers to know what to generally expect.
There is a lot of deviation and variations as what people
can expect. It is not exactly clear. When we try to get clarity
from TSA, we are always told that they cannot provide any
clarity on guidance in terms of pat-downs, the procedures and
process, if you're allowed to do a self-pat-down, or if the TSO
will do it because of SSI.
Mr. Taylor. Well, it certainly seems reasonable to have
clearly-written expectations and that, you know, helps the work
force, the people that are actually on the ground, doing it, to
actually do whatever it is we want them to do, rather than
leaving them out to not know what they are supposed to do, and
then the traveler doesn't know what to do either.
Ms. Nelson, do you have any comment on that, on reviewing?
Is there anything you have read as you reviewed TSA's policies
that you are concerned about? It seems to me that what should
be written is correct, but there is just not enough
specificity.
Ms. Nelson. Yes, I mean, I talked about the deficiencies in
the complaint process, but I also think that transparency in
what these guidelines and protocols are is key. They could be
posted in airports so that every airline passenger knows his or
her rights when traveling and knows what can and cannot happen
in a security interaction. There are many ways in which we can
create much more transparency and accountability in this
process, but right now, it is cloaked in secrecy. The Legal
Defense Fund has a FOIA request to get some of this
information, but it is far from transparent.
Mr. Taylor. OK. Thank you.
Mr. Chairman, I just want to concur with my colleague from
New York, Mr. Katko. I mean, it is really imperative TSA come
to a hearing like this. Whatever we need to do to make them
show up, I am for that.
Chairman Thompson. I agree that it is the written guidance.
It is the training that goes with it.
I was just talking with the Ranking Member. You know, we
have Congressional IDs. Every now and then, if you present it
at certain airports, they will ask you if you have a driver's
license. So that is--and that picture of the ID is in the
manual, but it is the training that goes with the written
guidance that is so important that could probably alleviate a
number of the problems we are talking about here.
We will--the gentleman from Texas, Mr. Green, for 5
minutes.
Mr. Green of Texas. Thank you, Mr. Chairman.
Thank the Ranking Member and the witnesses for appearing
today.
Mr. Chairman, if I may say so, I concur with what you said
about the Congressional ID. I happen to have had that
experience. In the interest of full disclosure, I would like to
announce that I was a branch President of the NAACP in Houston,
Texas, for approximately 10 years.
Now, further disclosure would require that I indicate that
the Legal Defense Fund and the NAACP, as we know it, they are
separate entities. But they have a special kinship and a
special relationship.
Ms. Nelson, I am honored that you are here today----
Ms. Nelson. Thank you.
Mr. Green of Texas [continuing]. To speak on behalf of not
only an organization but on behalf of millions of people
because you make a difference in their lives, and I appreciate
you. Thank you.
I am concerned about the deployment of the technology. Was
there some exigency that required deployment without the
necessity to have proper field testing before it was allowed to
become a part of the traveling public's experience? Maybe this
was the test.
Mr. Russell, was this the test, or did we test it before
deploying?
Mr. Russell. So, back in 2014, we actually took a look at
some of the initial AIT deployments, in particular, the body
scanners and one of the things that----
Mr. Green of Texas. Excuse me. I have to interrupt. I am
not sure I understand what ``took a look at'' means. Did you--
--
Mr. Russell. We did a report.
Mr. Green of Texas. Did you actually do a field testing?
Did you actually have live bodies have an experience with the
technology before deploying it?
Mr. Russell. We looked at what TSA was doing specifically
to test the technologies.
Mr. Green of Texas. Did they test this on live bodies at
airports?
Mr. Russell. One of the things that we found was that there
were issues.
Mr. Green of Texas. I am not sure that I understand that
answer. Did they test it at airports on live bodies?
Mr. Russell. I don't--I don't know for sure if they did
that.
Mr. Green of Texas. How did we deploy the technology that
is defective? There must be protocols that we have to adhere to
that would prevent this sort of circumstance from manifesting
itself. How did we get here?
Mr. Russell. One of the things from that 2014 review was it
was noted that the technology itself had a higher incident of
false alarms when it came to transgender wigs, hair type
issues, and body mass index.
Mr. Green of Texas. But this is after deployment. Is this
correct?
Mr. Russell. Right.
Mr. Green of Texas. After it was being used in airports.
Mr. Russell. That is right.
Mr. Green of Texas. How did we get to this point? Does
anybody have some indication as to what was required? What was
the protocol that was adhered to, to allow it to be deployed?
Anyone?
Have we bothered to--in your various capacities, have you
made an inquiry as to what happened? Because I am just amazed
that we deployed this technology. There had to be an exigency
or some circumstance that would require deployment without
testing it properly. I don't want anyone to be singled out
unnecessarily in this country. We value our privacy, and we
value our ability to associate freely and move about without
impediments. So how can we find out what happened? Can someone
give me some indication, please?
Ms. Nelson. I think that is an excellent question, and
there does need to be some historical discovery as to how this
technology was acquired and implemented in view of the
discriminatory impact that it is now shown to have. But I also
think this is an important moment to flag that, before any
additional technology is used by TSA--and we have grave
concerns about the potential use of facial recognition
technology which is already being used in some airports across
the country--that we do--we do not repeat the same mistake,
that we make sure that we account for the potential
discriminatory impact of that technology before we spend
millions of dollars implementing and deploying it and at the
expense of various American travelers, particularly people of
color.
Mr. Green of Texas. Thank you.
Do you all agree there should be some deployment protocols
that we can access to ascertain what the standard is that is
being utilized before deployment? Do we all agree?
Mr. Singh. Yes.
Mr. Green of Texas. Anyone differ?
Ms. Nelson. Absolutely.
Mr. Green of Texas. I will try to as best as I can help us
achieve this level of perfection, and I thank you for your
testimony.
I yield back.
Chairman Thompson. Thank you.
The Chair recognizes the gentlelady from Florida, Mrs.
Demings.
Mrs. Demings. Thank you so much, Mr. Chairman, to our
Ranking Member, and to our witnesses for joining us today.
This is a very important hearing, and I am glad to see us
having it.
If we could just go back to, Mr. Russell, the question is
for you.
But, Ms. Nelson, you talked about the need for
transparency. For example, airports, TSA could post information
in the various airports, notifying the traveling public
regarding complaints.
Mr. Russell, if you could, please tell me: What steps does
the TSA take to ensure that passengers are even aware of the
complaint process? I think Mr. Correa from California talked a
little bit about this, that many times passengers are just
trying to get through the airport. They may have been--their
rights may have been violated at the time, but by the time they
get through and are home, they have just said, ``Let it go.''
What steps do you take to make sure the traveling public
knows that if they feel that laws have been violated as it
pertains to their civil liberties, that this is the way that
they can make a complaint?
Mr. Russell. The main mechanisms that we saw was that there
is a portal, a TSA website, where you can file information.
There are comment cards that can be utilized at the airports,
and then airports have what are called customer service
representatives that can assist passengers with that process.
But as a traveler, you would have to, you know have the time to
engage with the customer service representative to do something
at the airport. So, for the most part, there is that 180-day
window after the incident occurs where you can phone it in; or
you can file it via the website.
Mrs. Demings. They would have to go to the website to----
Mr. Russell. Correct.
Mrs. Demings [continuing]. Get that information about the--
--
Mr. Russell. That is correct.
Mrs. Demings. OK. All right. How does the TSA use complaint
data and trend analysis to change its policies regarding
complaints?
Mr. Russell. So the multicultural branch does analysis of
the complaints that come in with respect to civil rights and
civil liberties issues. They can use that to work with the more
operational part of TSA. The security operations, that is
really responsible for the checkpoint to inform updates to the
standard operating procedures or to send information to
particular airports where there has been a spike in certain
number of incidents or types of complaints.
Mrs. Demings. So, if a recommendation is made regarding,
you know, violation occurs and a recommendation is made
regarding additional training.
Mr. Russell. Right.
Mrs. Demings. I am sure it has been. Could you talk a
little bit about what kind of training has been recommended to
TSA that has actually been implemented?
Mr. Russell. Right. It could go to the individual screener
involved in a complaint incident, and they might need refresher
training, depending on what the issue was. It could be
something that is a National shift brief, is what they call it,
where it is information that is provided to all screeners
across the 440 airports on a particular issue. Head gear is
one. That has happened in the past. Then sometimes it can be
just a heads-up awareness: Hey, we are seeing a particular
issue in the complaint data. Here is some information around it
like religious clothing was one that we saw.
Mrs. Demings. So, if that occurs at a--or that
recommendation is made at a particular airport, is that
information shared with all airports?
Mr. Russell. It depends on the situation. So it can be
shared with all airports. Sometimes it is dedicated to the
particular airport that where the incident occurred.
Mrs. Demings. So back to the question about there are about
10 airports that account for, like, a third of the complaints.
My colleague from Nevada asked the question about, is this just
based on passenger volume, or would you say these particular
airports, there is a lack of training--there is a training
deficiency or some other bias that may exist? What--is it just
passenger volume or more than that?
Mr. Russell. Yes, this is just pure data. When you looked
at the 3,700 complaints, where did they happen to occur? That
list was the top 10 but----
Mrs. Demings. How do you get a real--an accurate account of
where problems exist----
Mr. Russell. Uh-huh.
Mrs. Demings [continuing]. Specifically if you are not
looking at percentage of passenger volume and just looking at
passenger volume?
Mr. Russell. Right. So but that is what we had in our
report is just that data. Our understanding is TSA does look
for those types of trends, but that is all I can say. I mean,
TSA would have to answer more on that.
Mrs. Demings. Do they generate a report of their
conclusions or the results of those evaluations?
Mr. Russell. So what we have is a number of the training
materials they have developed based on the complaints, and then
we were able to see some of the complaint trends that they
monitored. So, for example, there could be a range of
complaints related to handling of baggage or PreCheck, as well
as civil rights and civil liberty-type complaints.
Mrs. Demings. OK. Thank you, Mr. Chairman.
I yield back.
Chairman Thompson. Thank you very much.
The Chair recognizes the gentlelady from New York, Ms.
Clarke, for 5 minutes.
Ms. Clarke. Thank you very much, Mr. Chairman.
I thank our Ranking Member for today's hearing. I thank our
expert witnesses for bringing your testimony today, and please
excuse the in and out. We have conflicting hearings but wanted
to make sure that I had a conversation with this panel.
The TSA screens over 2 million passengers every day, and
these passengers are as diverse as America itself. TSA must
have policies in place that prevent profiling, ensure each and
every passenger is judged solely on their security profile and
never based on their race or religion. TSA screenings must rely
on science, not prejudice, not bias, and not baked algorithms
programmed by individuals who harbor either implicit or
explicit bias. So, having said that, my first question is for
Ms. Nelson.
If screening machines alarm disproportionately on Black
women, it would follow that Black women are also subjected to a
disproportionate number of invasive pat-downs. How does TSA
pat-downs affect process--process affect African American
passengers, given the context in history of policing of African
Americans?
Ms. Nelson. Thank you for that question.
The disproportionate number of pat-downs and secondary
screening processes reinforces the stereotype that African
Americans and African American women in particular are
connected with being suspicious individuals or potentially
dangerous. It is a public viewing of that selective process.
Many accounts by African American women describe being deeply
humiliated, being delayed in their travel. There is an
additional burden and cost to them personally and
professionally often in traveling and being subjected to these
processes and procedures.
Again, I underscore that we have yet to receive any
indication that this is, in fact, improving our National
security.
Ms. Clarke. Building upon that, that answer, according to
the Department of Justice statistics, African American girls
and women, 12 and older, experience higher rates of rape,
sexual assault than White, Asian, Latina girls and women from
1999 to 2010. How might a survivor of sexual assault react to
being pat-down?
Ms. Nelson. It can be an extraordinarily traumatic
experience for anyone who has been a victim of sexual assault
or who has the fear of potentially being a victim of sexual
assault.
We know from our studies that African American girls are
often adultified in ways that bring unwarranted scrutiny and
criticism and invasive practices to them as they travel and as
they just go about their daily lives.
Ms. Clarke. Screening machines alarm frequently due to
thick hair and hairstyles popular among African American women
and girls, making African American women more prone to invasive
pat-downs. TSA has been trying to be responsive to concerns by
African American women about the pat-down process, but the
problem won't fully--won't be fully solved until TSA fields
better technology.
In the mean time, what recommendations do you have for the
TSA for improving the pat-down process for Black hair?
Ms. Nelson. Well, first, the TSA should replace the current
technology with technology that can accurately screen Black
hair. It is unacceptable to have technology funded by taxpayer
dollars that cannot recognize and discern the hair of the
people in its population. So, first and foremost, it needs to
remove and revise its technology.
In terms of the on-going pat-down, there are ways in which
they can be done less invasively. For example, there can be
self-pat-downs. There can be ways in which African American
travelers are able to have more agency in the process. So there
are some near-term improvements, but our longer-term
recommendation is that we scrap the technology that perpetuates
racial profiling.
Ms. Clarke. Very well.
A--I am sorry. Mr. Singh, many religious minorities
including Muslim Americans and Sikh Americans feel they are
targeted for random screening by the TSA. The program is
supposed to generate--to operate without regard to ethnicity,
color, gender, identity, religion, natural--national origin,
sexual orientation, or disability. But how do we ensure that
TSA is living up to this promise? Do you have concerns about
TSA's use of behavioral detection?
Mr. Singh. We are extremely concerned about the use of
behavioral detection. It is technically a junk science. You
know, there is no scientific evidence to support that it is
effective. Neither has TSA shown any metrics that validate that
it is a useful deterrence mechanism, and also we believe that
there needs to be sensible limitations on TSO discretion. It is
farfetched and unfettered in terms of any other law enforcement
official. They typically have to articulate some kind of
standard or basis that warrants the suspicion for a secondary
search. TSOs are not subject to such discretion, and that is
problematic. As a result, there are many instances of TSOs
using their wide discretion for pretextual bases to secondarily
screen Sikhs, Muslims, African Americans, and transgender
individuals.
Ms. Clarke. Thank you very much, Mr. Chairman.
I thank our panelists once again.
I yield back.
Chairman Thompson. Thank you.
The Chair recognizes the gentleman from Missouri, Mr.
Cleaver, for 5 minutes.
Mr. Cleaver. Thank you, Mr. Chairman.
Mr. Russell, is there some kind of process that TSA uses
when they see a name, a name that is a suspicious name? Is
there anything in your policies that would direct attention to
people based on their name?
Mr. Russell. If there--it would be through the secure
flight process, which happens for every traveler, where you
would match the name against different watch lists to determine
if someone would need secondary screening based on that
process.
Mr. Cleaver. I was elected to the House in 2004, and I
could barely make it to Washington each week and, but for an
American Airline Washington bureau chief, I am not sure I would
have even wanted to stay. I was stopped every week and harassed
because of my last name because I have relatives who are rather
famous with that last name, and I am not one of the famous
Cleavers, but there are relatives with that name.
I mean, it was an awful experience that I went through
every single week. I mean, they take me there in the back room.
You have to undress. Let us go through your hair. Let us tickle
you, I mean, what--just about anything, and I was developing a
resentment that I have gotten over.
I ran into this American Airline person at an event here in
Washington about 3 weeks ago, and she just kind-of jokingly in
front of some other folks just said: Are you still having
problems?
So, I am still not comfortable, but I had--what I have done
is I have TSA. I go through CLEAR, everything, trying to reduce
the fact that somebody sees the name Cleaver and, all of a
sudden, I am a member of the Black Panthers, and I am harassed.
I am not--I haven't gone through that recently, but I don't
want anybody else to go through it.
What guarantee, I mean--I mean, my name didn't match. I
mean, my name is Emanuel. My cousin's name is Eldridge. They
don't even--they are not even spelled alike. I mean, can you
help me?
Mr. Russell. Yes.
Mr. Cleaver. There are 4 children.
Mr. Russell. Right. No, from a GAO perspective, I mean, we
have taken a look at some of the secure flight programs over
the years that are supposed to be a process to go through
redress for these types of situations that the Department of
Homeland Security manages.
Mr. Cleaver. Well, maybe it is because Homeland Security
was only a couple of years old at the time. Maybe it is better.
Let me ask another question. My concern is, you know, you
say that we have information about the complaints. Are the
complaints--this is, Ms. Nelson or Mr. Singh, are the
complaints only at the airports that are involved with TSA? I
live in Kansas City, Missouri. Our airport is privately
contracted. It is not a part of the Federal contract with TSA.
So are there records being kept there as well?
Mr. Singh. I am not aware of non-Federalized complaints.
Typically, they tend to be for TSA specifically, and I don't
know if TSA subcontracts and those----
Mr. Cleaver. Two cities, Kansas City and San Francisco.
Mr. Singh. We can go back and take a look.
Mr. Cleaver. I would really, really appreciate it because,
with the passing of each week, I become more and more inclined
to try to begin a movement to force the Kansas City system into
the Federal program, and I am trying to collect data, and that
is one of the things that is--that has my attention.
Thank you very much. You can get that to my office, or
somebody can. Can somebody get that information to me, please?
Ms. Nelson. We will do what we can to supplement the
record, yes, thank you.
Mr. Cleaver. Thank you.
I yield back the balance of my time.
Chairman Thompson. Thank you very much.
I thank the witnesses for their valuable testimony and the
Members for their questions. I ask unanimous consent to enter
into the record a report from the National Center for
Transgender Equity without objections.
[The information follows:]
Report of National Center for Transgender Equality
June 4, 2019
The National Center for Transgender Equality (NCTE) is a Nation-
wide, non-profit, non-partisan organization founded in 2003 to promote
public understanding, opportunity, and well-being for the nearly 2
million Americans who are transgender. In addition to conducting public
education and ground-breaking National survey research, NCTE works with
Federal, State, and local agencies on a wide range of issues, and we
have been in dialog with the TSA during my entire 9-year tenure at the
organization. While NCTE's statement will focus on the challenges
facing transgender travelers, we see these concerns as part of a
spectrum of civil rights and privacy concerns that affect the traveling
public more broadly, including particular problems faced by travelers
with disabilities and members of racial and religious minorities.
TSA's important mission of protecting lives can and should be
advanced without compromising the dignity, privacy, and personal
liberty of the traveling public or our Nation's commitment to civil
rights. As Hofstra Law School professor Irina Manta has argued in the
NYU Journal of Legislation and Public Policy, passenger screening must
be based on a robust analysis of the privacy, dignity, and liberty
costs and the actual security benefits of particular screening
measures.\1\ Traveler outreach and engagement should continually inform
this analysis and drive improvements. As described extensively in our
testimony last year to the Transportation Security Subcommittee NCTE
has engaged extensively with TSA for nearly a decade to describe and
seek to address the problems faced by transgender travelers.\2\
Unfortunately, we have seen little improvement.
---------------------------------------------------------------------------
\1\ Irina D. Manta, Choosing Privacy, 20 N.Y.U. J. LEG. & PUB. POL.
649 (2017).
\2\ The Public Face of TSA: Examining the Agency's Outreach and
Traveler Engagement Efforts, Before the House Transportation Security
Subcomm., 115th Cong. (2018).
---------------------------------------------------------------------------
The core of the problem NCTE hears about almost daily from
travelers is this: TSA has made it its business to know what's in
Americans' pants, every time they fly. It is entirely possible to keep
Americans safe without innocent travelers being asked questions about
the contents of their underpants by Government officials, or having
their private parts touched by uniformed strangers every time they get
on a plane. That is not in line with our values or the freedom TSA is
charged to protect. The travelers we hear from don't just want to get
to their gate more quickly, or make sure TSOs have a heads-up to expect
someone whose body may cause an alarm, or have a kinder, gentler
conversation with TSOs about their body parts or undergarments--they
want to get on a plane without discussing their private parts or having
them touched by Government officials, period.
transgender travelers regularly face humiliation at tsa checkpoints
The current system of passenger training seriously compromises
civil rights and privacy, and transgender travelers are affected
particularly harshly. As TSA works to pursue innovation in passenger
screening--including in screening technology, procedures, and
straining--we strongly urge the agency to prioritize the privacy, civil
rights, and civil liberties of all passengers, including by ensuring
that the use of AIT is gender-neutral and eliminating alarms caused
solely by sensitive parts of the body--namely, the chest or genitals--
or by undergarments.
An award-winning 2018 essay in MIT's Journal of Design and Science
used the author's own TSA experiences as an illustration of the need to
employing Design Justice principles in advanced technology:

``The TSA agent motions me to step into the millimeter wave scanner. I
raise my arms and place my hands in a triangle shape, palms facing
forward, above my head. The scanner spins around my body, and then the
agent signals for me to step forward out of the machine and wait with
my feet on the pad just past the scanner exit. I glance to the left,
where a screen displays an abstracted outline of a human body. As I
expected, bright fluorescent yellow blocks on the diagram highlight my
chest and groin areas. You see, when I entered the scanner, the TSA
operator on the other side was prompted by the UI to select `Male' or
`Female.' . . . If the agent selects `male,' my breasts are large
enough, statistically speaking, in comparison to the normative `male'
body-shape construct in the database, to trigger an anomalous warning
and a highlight around my chest area. If they select `female,' my groin
area deviates enough from the statistical `female' norm to trigger the
risk alert, and bright yellow pixels highlight my groin, as visible on
the flat panel display. In other words, I can't win. I'm sure to be
marked as `risky,' and that will trigger an escalation to the next
level in the TSA security protocol.
``This is, in fact, what happens: I've been flagged, the screen shows a
fluorescent yellow highlight around my groin. Next, the agent asks me
to step aside, and (as usual) asks for my consent to a physical body
search. Typically at this point, once I am close enough to the agent,
they become confused about my gender. This presents a problem, because
the next step in the security protocol is for either a male or female
TSA agent to conduct a body search by running their hands across my
arms and armpits, chest, hips and legs, and inner thighs. The agent is
supposed to be male or female, depending on whether I am male or
female. . . . Sometimes, the agent will assume I prefer to be searched
by a female agent; sometimes, male. Occasionally, they ask whether I
prefer a search by a male or female agent. Unfortunately, `neither' is
an honest but not an acceptable response. Today, I'm particularly
unlucky: A nearby male agent, observing the interaction, loudly states
`I'll do it!' and strides over to me. I say `Aren't you going to ask me
what I prefer?' He pauses, seems angry, and begins to move toward me
again, but the female agent stops him. She asks me what I would prefer.
Now I'm standing in public, surrounded by two TSA agents, with a line
of curious travelers watching the whole interaction.
``Ultimately, the aggressive male agent backs off and the female
agent searches me, making a face as if she's as uncomfortable as I am,
and I'm cleared to continue on to my gate.''\3\
---------------------------------------------------------------------------
\3\ Sasha Costanza-Chock, ``Design Justice, A.I., and Escape from
the Matrix of Domination,'' Journal of Design and Science 3.5 (2018),
https://jods.mitpress.mit.edu/pub/costanza-chock.

TSA's current Advanced Imaging Technology (AIT) and screening
procedures seriously compromise the privacy and dignity of transgender
travelers. In particular, transgender men routinely encounter alarms
caused by their chest compression vests or by their chests themselves,
while transgender women frequently encounter alarms caused solely by
their private parts. These alarms and resulting additional screening--
no matter how professionally conducted--are unnecessary, humiliating,
and unacceptable, especially for travelers who experience them again
and again. That's true whether you're a transgender woman like Shadi
Petosky, who tearfully live-tweeted her TSA ordeal in Orlando in
2015,\4\ or CNN commentator Angela Rye (who is not transgender), whose
video of her genital pat-down in Detroit made for queasy viral viewing
in late 2016,\5\ or just a month ago American icon Diana Ross claiming
she felt ``violated'' by an ``over the top'' screening in New Orleans
that according to TSA, ``correctly followed all protocols.''\6\ Whether
transgender or not, the screening process can be especially harrowing
for children, and for survivors of sexual trauma. Some parents of
transgender children are quite afraid of air travel because of the
humiliation their child could face in the case of an alarm in a
sensitive area, a pat-down, or being publicly mis-gendered.
---------------------------------------------------------------------------
\4\ Katie Rogers, TSA Defends Treatment of Transgender Air
Traveler, N.Y. TIMES (Sept. 22, 2015), https://www.nytimes.com/2015/09/
23/us/shadi-petosky-tsa-transgender.html.
\5\ Angela T. Rye, Dear TSA: The country is not safer because you
grab vaginas, CNN.com (Dec. 22, 2016), https://www.cnn.com/2016/12/16/
opinions/tsa-invasive-pat-down-rye/index.html.
\6\ Melinda Daffin, Diana Ross says TSA made her want to cry at the
New Orleans airport, New Orleans Times-Picayune (May 5, 2019), https://
www.nola.com/jazzfest/2019/05/diana-ross-says-tsa-made-her-want-to-cry-
at-the-new-orleans-airport.html.
---------------------------------------------------------------------------
In 2015 NCTE conducted a ground-breaking survey of nearly 28,000
transgender adults across all 50 States, and 53 percent of our
respondents had gone through airport security in the previous year.\7\
Of those, 43 percent of transgender travelers reported at least one
negative experience with passenger screening related to being
transgender in the previous year. These negative experiences included
being referred to as the wrong gender or verbally harassed by
Transportation Security Officers; receiving additional screening
including pat-downs because of gender-related clothing; being subjected
to a pat-down by an officer of the wrong gender; being loudly
questioned about their gender or their body parts at the checkpoint;
and being asked to remove or lift clothing to show an undergarment or
sensitive area of the body. Some respondents reported being detained
for over an hour or missing their flight due to gender-related
screening issues. Some reported having to go through scanners multiple
times; receiving multiple pat-downs; having TSOs refuse to pat them
down because they were transgender; being questioned about their gender
in front of their children; and leaving the checkpoint in tears. Some
said they were simply too afraid to fly, or wracked with nerves every
time. Some demanded to speak to supervisors or filed complaints and
felt TSA was very responsive to complaints about insensitive or
harassing treatment, while others were told nothing could be done
because their bad experience was inherent in the current screening
procedures.
---------------------------------------------------------------------------
\7\ James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet,
L., & Anafi, M. (2016). The Report of the 2015 U.S. Transgender Survey,
221-22. Washington, DC: National Center for Transgender Equality.
---------------------------------------------------------------------------
While the U.S. Transgender Survey did not ask specifically about
issues related to AIT, these are the most common issues NCTE hears
about from travelers today. The AIT currently in use require TSOs to
input a traveler's gender, making it a part of their job to scrutinize
and guess, or ask, the gender of every traveler. Many travelers--some
who are transgender, and some who are not--find themselves having to
correct TSOs and be scanned again. This not only delays travelers, it
can be embarrassing.
Even more concerning is the very common problem of alarms based on
sensitive body parts, or on sensitive undergarments such as chest
binders or personal prostheses that transgender travelers may wear.
Alarms lead to pat-downs, which many travelers find inherently
humiliating. We have heard from many travelers that they routinely
experience alarms in the chest or groin or both, leading to intimate
pat-downs and excruciating conversations when they travel. NCTE's own
staff, interns, board members, and their friends, colleagues, and
family members experience these problems routinely. For example, one of
our survey respondents told us the following:

``Going through TSA, I am repeatedly asked to go back through the scan
because there is an anomaly with my chest or groin. It is not resolved
with a second scan, and I am subjected to a TSA agent's hands on my
chest and up in my groin.''\8\
---------------------------------------------------------------------------
\8\ Submitted to NCTE by a respondent to the 2015 US Transgender
Survey.

One of NCTE's former board members, who is also a senior citizen,
---------------------------------------------------------------------------
wrote to us the following last year:

``I flew from Baltimore-Washington International Airport (BWI) to San
Francisco today for a [business] meeting. After I went through the
scanner, TSA screeners pulled me out of line, and said there was an
`anomaly in the groin area,' and that they would have to pat me down. I
was concerned about making my flight, so I said OK. I was then patted
down (or groped) by two women, followed by one man--buttocks, groin and
legs. When they had finished, they made no further reference to the
`anomaly,' but said they would have to swab my hands; they did that,
and after checking the swab, they sent me through.''\9\
---------------------------------------------------------------------------
\9\ Personal correspondence, Jan. 26, 2018.

A close colleague of the NCTE staff, attorney Carl Charles,
published an op-ed in October 2015 describing his traveling experiences
as a transgender man.\10\ Mr. Charles, then a law student traveling to
the District of Columbia for a summer internship, wrote that his
excitement over the trip was quickly squelched when he heard a TSO
shout, ``We have anomalies in the chest and groin area. Private
screening, female agent requested.'' Now, the agency has been
responsive to complaints that about individual officers mis-gendering
travelers, and we appreciate that. It has also since retired the term
``anomaly'' in favor of the term, ``alarm''--leading to reports of TSOs
stating, ``There is something alarming in your groin.'' But the problem
here is more basic than terminology or even who is conducting a pat-
down. The next thing Mr. Charles was asked was told [sic] was, ``Sir,
we need to know what's in your pants.'' The conversation that followed
was, inevitably, extremely uncomfortable.
---------------------------------------------------------------------------
\10\ Carl Charles, Dear TSA, My Body Is Not an Anomaly, ADVOCATE
(Oct. 1, 2015), https://www.advocate.com/commentary/2015/10/01/dear-
tsa-my-body-not-anomaly.
---------------------------------------------------------------------------
While several of the above incidents were discussed in NCTE's
testimony before the Transportation Security Subcommittee in February
2018, little has changed.\11\ Recent press coverage featuring
additional personal stories of transgender and gender non-conforming
travelers' problems hardships with passenger screening are appended to
this statement.\12\
---------------------------------------------------------------------------
\11\ The Public Face of TSA: Examining the Agency's Outreach and
Traveler Engagement Efforts, Before the House Transportation Security
Subcomm., 115th Cong. (2018).
\12\ Alex Marzano-Lesnevich, Flying While Trans, N.Y. TIMES (April
17, 2019), https://www.nytimes.com/2019/04/17/opinion/tsa-
transgender.html; Allison Hope, Transgender travel: The complications
and tips for dealing with them, CNN (April 12, 2019), https://
www.cnn.com/travel/article/transgender-travel-complications-tips/
index.html; Arjee Restar, Airlines Are Becoming Inclusive, But Airports
Remain A Mess, ADVOCATE (Mar. 26, 2019), https://www.advocate.com/
commentary/2019/3/26/airlines-are-becoming-inclusive-airports-remain-
mess; Carina Julig, How Airport Security Makes Travel Traumatic for
Butches and Trans Folks, SLATE (June 25, 2018), https://slate.com/
human-interest/2018/06/gendered-airport-security-makes-travel-
traumatic-for-butches-and-trans-folks.html.
---------------------------------------------------------------------------
We appreciate the intent of some of the initiatives TSA has
undertaken in recent years to improve the passenger experience,
including the TSA Cares hotline, the use of Passenger Support
Specialists, and the TSA Pre-Check programs. We know that these
programs have been helpful for some passengers, but they have not
addressed the basic concerns transgender travelers have. The travelers
we hear from don't just want to get to their gate more quickly, or make
sure TSOs have a heads-up to expect someone whose body may cause an
alarm, or have a kinder, gentler conversation with TSOs about their
body parts or undergarments--they want to get on a plane without
discussing their private parts or having them touched by Government
officials, period.
gao's findings underscore the need for reform
According to the complaint data in GAO's new report, more than 1 in
6 passenger complaints in recent years has been related to gender-based
discrimination.\13\ These are not only transgender travelers but also
many others who don't conform to the stereotypes that current
procedures and AIT algorithms are based on. Moreover, we know that
these complaint numbers are just the tip of the iceberg. Many travelers
do not know where or how to file a complaint, or even why it's worth
sharing their story. Many travelers have filed a complaint once but
don't bother when they have the same bad experience again and again. By
any measure, far too many Americans are being singled out and having
their privacy invaded simply because of who they are or what their
bodies look like.
---------------------------------------------------------------------------
\13\ Government Accountability Office, Aviation Security: TSA Has
Policies that Prohibit Unlawful Profiling But Should Improve Its
Oversight of Behavior Detection Activities (April 2019).
---------------------------------------------------------------------------
GAO also found that, while TSA trains screeners on its profiling
policy, it does not have systems in place to assess whether
discriminatory profiling is actually occurring at checkpoints. We
support GAO's recommendations for internal controls to actually monitor
whether discriminatory profiling is occurring. However, the combination
of screening procedures that are intrusive and explicitly gender-based
with broad officer discretion creates too many openings for conscious
and unconscious bias. Procedures and technology too must be reformed,
including by establishing clear, consistent, and transparent standards
for the use of officer discretion.
Similarly, given its reach into the everyday lives of millions of
travelers, TSA should go beyond the broad Fourth Amendment standards
articulated by Federal courts and require that physical pat-downs or
requests to lift or remove clothing be no more intrusive than necessary
to clear an alarm. For example, absent any other articulable basis of
individual suspicion, an AIT alarm in one area of the body should not
generally require a pat-down of a completely different, sensitive area
of the body.
screening with dignity means reforming technology, procedures,
training, and oversight
There is abundant evidence that the current screening model imposes
a huge burden on passengers based on false alarms while missing a great
deal of what it is meant to detect. Before investing millions more
taxpayer dollars in new AIT with a lifespan of many years, TSA should
explore a larger role for less invasive screening methods such as
explosive trace detection, canines, and other emerging technologies.
While there may be a role for AIT and pat-downs in screening, they need
not be the primary methods for most travelers.
Any new technology for primary or secondary passenger screening
should meet two fundamental standards:
(1) Ensure gender-neutral screening, eliminating not only the
infamous pink and blue buttons TSOs must select for each traveler but
also gender-based algorithms.
(2) Substantially reduce false alarms caused by body parts,
undergarments, hair, or religious headwear. Alarms caused solely by
these factors, no matter how courteously handled by TSOs, invariably
lead to intrusive and embarrassing questions and pat-downs. Any
technology that does not fix this problem cannot be considered a real
improvement.
These basic principles should be part of any new procurement
program and standards for passenger screening. Technology that can meet
these goals should replace current AIT; technology that doesn't meet
these goals shouldn't be procured.
TSA's current exploration of face recognition software for use in
airports also raises serious privacy and civil liberties concerns. Such
concerns with this technology were highlighted in a recent hearing by
the House Committee on Oversight and Government Reform.\14\ In addition
to many other concerns, face recognition technology is subject to
serious inaccuracies with respect to gender, potentially subjecting
transgender people and others who do not conform to gender stereotypes
to additional discrimination.\15\ For this reason, civil rights and
civil liberties advocates have called for a Federal moratorium on these
technologies in law enforcement contexts.
---------------------------------------------------------------------------
\14\ Facial Recognition Technology (Part 1): Its Impact on our
Civil Rights and Liberties Before the House Oversight and Reform Comm.,
116th Cong. (2019). See also U.S. Gov't Accountability Office, GAO-16-
267, Face Recognition Technology: FBI Should Better Ensure Privacy and
Accuracy (May 2016), available at https://www.gao.gov/assets/680/
677098.pdf.
\15\ Os Keyes, ``The Misgendering Machines: Trans/HCI Implications
of Automatic Gender Recognition,'' Proceedings of the ACM on Human
Computer Interaction 2, CSCW, Article 88 (Nov. 2018), https://doi.org/
10.1145/3274357.
---------------------------------------------------------------------------
Recommendations:
NCTE makes the following policy recommendations:
Reconsider the reliance on AIT and pat-downs as primary
screening methods.--TSA's goal should be to make it a rare
occurrence for uniformed officials to touch passengers' bodies
or ask intrusive questions about their body parts or
undergarments.
Ensure any new procurement program and standards for AIT:
(1) ensure gender-neutral screening and (2) substantially
reduce false alarms based on body parts, undergarments, hair,
or religious headwear.--Procurement programs and standards will
drive the passenger experience for years to come--it would be a
serious mistake for them to perpetuate the current ineffective
and intrusive gender-based screening process.
Ensure any new AIT hardware or software procured by TSA
actually meets these two fundamental goals.
Ensure new technology or procedures reduce the use of pat-
downs and ensure travelers aren't singled out based on their
race, religion, or gender.
Require TSOs to adhere to consistent and transparent
standards of discretionary criteria that reduce the likelihood
of profiling and ensure secondary screening is no more
intrusive than necessary to clear an alarm.
Mandate regular and independent Civil Liberties Impact
Assessments at all airports Nation-wide.
Mandate random TSO screener audits to prevent and detect
discriminatory profiling and harassment and ensure effective
responses by supervisors.
Congress should re-introduce and pass the End Racial
Profiling Act to comprehensively address discriminatory law
enforcement practices, including in TSA. This bill would
explicitly prohibit discriminatory law enforcement practices
based on race, color, national origin, religion, or sex
(including on the basis of gender identity or sexual
orientation). These protections are critical to address
profiling and other biased practices and build public trust.
Congress should re-introduce and pass the Screening with
Dignity Act to codify existing passenger protections and
require TSA to improve its technology, procedures, and
training..--This legislation should be strengthened to provide
a definite time line for phasing out gender-based AIT
screening.
Congress should adopt a Federal moratorium on the use of
face recognition technology for law enforcement, immigration,
or security purposes.
NCTE will, of course, continue to engage with TSA and encourage
travelers to share their experiences and their complaints. We urge this
committee to take decisive action through oversight and legislation to
ensure that no traveler must sacrifice their dignity, privacy, or civil
rights in order to travel.

Chairman Thompson. The Members of the committee may have
additional questions for the witnesses, and we ask that you
respond expeditiously in writing to those questions.
Without objection, the committee record shall be kept open
for a 10 days.
Hearing no further business, the committee stands
adjourned.
[Whereupon, at 11:48 a.m., the committee was adjourned.]

A P P E N D I X

----------

Questions for W. William Russell From Chairman Bennie G. Thompson

Question 1. DHS's response to GAO's report noted that the
Department was ``pleased to note'' that GAO's analysis of civil
rights complaint data ``identified only 3,700 complaints
related to passenger screening alleging civil rights and civil
liberties violations.''
Do you believe the Department treats allegations of civil
rights and civil liberties violations with the seriousness they
deserve?
Answer. Over the course of our recent review, our
observation was that TSA generally treated the civil rights and
civil liberties complaints received in a professional manner.
We reviewed about 3,700 complaints received by TSA from October
2015 through February 2018 alleging civil rights and civil
liberties violations related to passenger screening.\1\ For the
2,059 complaints with complete information, we found that TSA's
Multicultural Branch--the office responsible for reviewing
complaints alleging civil rights and civil liberties
violations--reviewed the complaints to determine if the
complaint included indications of discrimination. Through this
process, the Multicultural Branch found indications of
potential discrimination and unprofessional conduct that
involved race or other factors in 1,066 complaints. In
response, TSA recommended a range of refresher training across
airports or for screeners at individual airports identified in
these complaints. In addition, TSA's Office of Human Capital
Employee Relations reported that it took a range of
disciplinary actions--from letters of reprimand to
termination--for 100 screeners from October 2015 through
February 2018, in part in response to passenger complaints
alleging civil rights and civil liberties violations.\2\
---------------------------------------------------------------------------
\1\ GAO, Aviation Security: TSA Has Policies that Prohibit Unlawful
Profiling But Should Improve Its Oversight of Behavior Detection
Activities, GAO-19-268 (Washington, DC: June 4, 2019).
\2\ TSA officials stated that none of the complaints that resulted
in the disciplinary actions were specific to behavior detection. TSA's
Human Capital Employee Relations officials determined that more than 60
percent of the 100 screeners used inappropriate comments or were
engaged in misconduct, including offensive comments or actions based on
another's race, national origin, and/or sex, among other factors.
---------------------------------------------------------------------------
Question 2. Has GAO studied the extent to which DHS and TSA
focus on civil rights and civil liberties compliance when
developing technologies and procedures?
Answer. GAO has not studied this issue directly. However,
in 2014, we found that test results on TSA's advanced imaging
technology (AIT) screening systems indicated that certain
factors had an effect on false alarm rates.\3\ According to
Transportation Security Laboratory test results of AITs with
automated target recognition (ATR) system from 2009 through
2012, certain factors, such as body mass index (BMI) and
headgear, such as turbans and wigs, may contribute to greater
fluctuations in the false alarm rate, either above or below
that threshold.\4\
---------------------------------------------------------------------------
\3\ GAO, Advanced Imaging Technology: TSA Needs Additional
Information Before Procuring Next-Generation Systems, GAO-14-357
(Washington, DC: March 31, 2014).
\4\ AIT systems equipped with ATR (AIT-ATR) automatically interpret
the image and display anomalies on a generic outline of a passenger
instead of displaying images of actual passenger bodies like the AIT
systems that used IOs (AIT-IO). Screening officers (SO) use the generic
image of a passenger to identify and resolve anomalies on site in the
presence of the passenger. BMI is a number calculated from a person's
weight and height and is considered a fairly reliable indicator of body
fatness by the Centers for Disease Control and Prevention. BMI
categories include underweight (BMI below 18.5), normal (BMI from 18.5
to 24.9), overweight (BMI from 25.0 to 29.9), and obese (BMI over
30.0).
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In the course of work, we also found that in August 2018,
as part of a Broad Agency Announcement (BAA), TSA invited
vendors to submit proposals for AIT improvements that promote
Federal Civil Rights compliance.\5\ Vendors were also
encouraged to submit solutions that addressed capability gaps
in civil rights compliance, including upgrades to improve
screening of transgender passengers.
---------------------------------------------------------------------------
\5\ TSA Innovation Task Force: Innovative Demonstrations for
Enterprise Advancement (IDEA) 2018 BAA (August 2, 2018) https://
www.fbo.gov/index.php?s=opportunity&-
mode=form&id=7f581e20fe1e865a60437d733c14992b&tab=core&_cview=1.
---------------------------------------------------------------------------
The BAA stated that submissions ``should ensure access and
equal opportunity as required by Section 504 of the
Rehabilitation Act, 6 C.F.R. Part 15, and DHS Directive No.
065-01 (Sept. 25, 2013) and DHS Instruction No. 065-01-001
(Mar. 13, 2015) for individuals with disabilities, and to
improve screening of headwear and hair in compliance with Title
VI of the Civil Rights Act.''
Question 3. Has GAO studied whether the DHS and TSA Office
for Civil Rights and Civil Liberties are appropriately
empowered within their respective organizations?
Answer. GAO has not studied this issue.

Questions for Sim J. Singh From Chairman Bennie G. Thompson

Question 1a. What interactions has the Sikh Coalition had
with TSA's Multicultural Branch?
Has TSA been willing to meet with you and listen to your
concerns?
Answer. The TSA Multicultural Branch has met with the Sikh
Coalition in the past and invited us to participate in
coalition conference calls. Our most recent TSA Multicultural
Coalition conference call occurred on June 7, 2019, where the
Sikh Coalition and other civil rights advocacy groups listened
to the TSA's presentation on progress it was making towards
addressing concerns raised by passenger complaints.
During the last call with TSA, the Sikh Coalition discussed
complaints we received from several Sikh passengers who were
subjected to secondary screenings because of their turbans
based on ``local rules''. We expressed concerns about the
inconsistency of TSA's policies at different airports.
Multicultural Branch officials stated that they did not believe
any such ``local rules'' existed but assured us they would look
into the issue. Subsequently, the Sikh Coalition filed a
complaint (see attached) on this issue regarding a Sikh
passenger who was subjected to secondary screening based on an
alleged ``local rule'' after he had already been cleared from
the screening area. The individual in question originally filed
a FlyRights complaint but was asked by TSA to provide
additional information before they would review his complaint.
We learned on the Multicultural Coalition conference call that
responses to these requests for additional information must be
submitted within 10 days. However, the email requesting that
additional information does not provide a time line for
submitting responses, nor does it provide a contact email to
submit this supplemental information. Our client, therefore,
submitted a new complaint through TSA's website. We are still
waiting to learn the results of the investigation into his
complaint. Additionally, TSA has not yet provided us with any
information about the steps it will take to ensure that agents
are not relying on local rules to subvert civil rights of
travelers with turbans.
Question 1b. Do you believe the Multicultural Branch is
appropriately empowered to drive change within TSA?
Answer. The Multicultural Branch at the TSA has frequently
attempted to resolve all traveler concerns with all known civil
rights stakeholders participating in the same events. Events
such as the Annual Disability and Multicultural Coalition
Conference or periodic Coalition Conference Calls are well-
attended by disparate community interest groups. As a result,
specific concerns experienced by community groups are not
provided adequate consideration by the Multicultural Branch as
attendees are severely constrained in time to address wide-
ranging community concerns. The infrequency of these meetings
contributes to competition amongst civil rights groups to flag
their concerns with the TSA. The Multicultural Branch should
seek to institute quarterly meetings for community groups with
similar concerns. One such model to follow is the DOJ
Interagency regular meetings with civil rights organizations of
the Muslim, Arab, Sikh, and South Asian (MASSA) community to
narrowly tailor discussions and solutions pertinent to the
specific community.
Question 2a. The Sikh Coalition developed the FlyRights App
to help passengers file complaints with TSA.
Why was it necessary to create your own app for this
purpose?
Answer. In the third quarter of 2011, the TSA claimed to
have received a mere 11 complaints, and as such the agency was
able to claim it did not profile travelers. The Sikh Coalition
received many more incidents of TSA profiling from travelers
during this time period and it became abundantly clear action
was required to help address the under-counting of reports.
While the TSA was accepting email complaints and complaints
submitted through the TSA's website, many travelers were unsure
of how to file a complaint, felt intimidated, or would forget
details and lose motivation as time passed following an
incident. FlyRights was launched in April 2012 to give
travelers a quick and easy way to file their complaints. The
App was also able to add a layer of transparency that the TSA
lacked. Travelers are able to track the frequency of complaints
at specific airports and gain access to know your rights
materials. The application has been used hundreds of times
since its launch, and the data further supports our previous
claim that Sikhs remain disproportionately targeted in cases of
profiling at airports.
Question 2b. Please describe the range of travelers that
have used FlyRights App besides Sikh travelers.
Answer. Travelers from all walks of life and identities
have used the FlyRights App. Reports submitted through
FlyRights do not track an individual's specific identity but
track whether the traveler believes that they were
discriminated against based on a category of race, ethnicity,
religion, nationality, gender, and/or disability. The FlyRights
App has been promoted within various community stakeholder
groups that are not Sikh and used by non-Sikh travelers,
including travelers with disabilities, transgender, and/or
African Americans.
Question 2c. What types of complaints have you seen from
other communities, and are these shared experiences?
Answer. We have received profiling complaints from Muslim
travelers who were subject to secondary screening, including
one instance where the traveler had already been cleared from
the screening area and boarded his flight, yet was taken off
the plane because he was allegedly ``chosen for extra
screening.'' Similarly, we have seen complaints from African-
American travelers being subject to secondary screening of
their hair and subsequently having their bags thoroughly
searched. We have also received complaints from transgender
travelers who reported they were told by TSA officers that they
had to go through a heightened security screening--including a
full body pat-down and a thorough search of all their personal
belongings. Other complaints from transgender travelers report
being denied a pat-down by an officer of the same gender as
they present themselves. Lastly, we have seen complaints of
gender discrimination, where a female passenger who maintains
short hair was designated as male and subsequently subject to a
pat-down by a male officer. On numerous occasions, nursing
mothers have also filed complaints about attempting to bring
breast milk through security.
Although complaints filed by Members of other communities
are not always identical to the complaints filed by Sikh
travelers, there is a clear pattern of heightened security
screening for minority communities.

Question for Janai S. Nelson From Chairman Bennie G. Thompson

Question. TSA says it has strengthened training for TSO's
in recent years, including for working with diverse passenger
populations.
What aspects of these civil rights and civil liberties
complaints can be addressed solely through increased officer
training and professional development? Which aspects of these
complaints would instead require changes to TSA's technologies
or standard operating procedures?
Answer.
1. No aspects of hair discrimination and other civil rights
complaints against TSA can be addressed solely through
increased officer training and professional development.
With respect to discriminatory hair pat-downs that
disproportionately burden Black people, the subject of my
testimony on June 4, 2019, increased officer training and
professional development are necessary but, unfortunately, not
sufficient to address this problem. Training and professional
development are essential to constrain some of the potentially
discriminatory and/or unconstitutional aspects and effects of
Transportation Security Administration (TSA) policies,
practices, and technologies. However, while training, including
anti-bias training and professional development, must be funded
and required, they are insufficient on their own to eliminate
most aspects of civil rights concerns. As long as TSA maintains
policies and practices such as requiring screeners to conduct
unscientific behavior detection activities and using
technologies like facial recognition \1\ and full-body scanners
that cannot distinguish between contraband and Black hair, the
disparate and disproportionate harm will continue. Training and
professional development can help mitigate that harm, but it
will not eliminate the sources of the harm, which are the
technologies, policies, and practices that perpetuate racial
discrimination.
---------------------------------------------------------------------------
\1\ Facial recognition technology or systems are ``computer-based
security systems that are able to automatically detect and identify
human faces'' based on a ``recognition algorithm.'' Electronic Privacy
Info. Ctr., Face Recognition, https://www.epic.org/privacy/
facerecognition/ (last visited July 5, 2019). The dangers of both
facial recognition technology and TSA's behavior detection procedures
are discussed further in response to Question 2, infra.
---------------------------------------------------------------------------
In addition to eliminating the sources of the harm, TSA
should immediately evaluate its current anti-bias and anti-
discrimination training and assess the data it is has
collected, particularly with respect to hair pat-down
complaints filed by Black women. In 2015, a lawsuit filed by
the ACLU of Northern California against TSA because of TSA's
racially discriminatory hair searches resulted in TSA agreeing
to ``make certain that current training related to
nondiscrimination is clear and consistent for TSA's workforce''
and to ensure that its Multicultural Branch ``will specifically
track hair pat-down complaints filed . . . [by] African-
American females throughout the country to assess whether a
discriminatory impact may be occurring at a specific TSA
secured location.''\2\ The agreement also stipulated that two
airports, Los Angeles International Airport (LAX) and
Minneapolis St. Paul International Airport (MSP), will retrain
their TSA workforces ``to stress TSA's commitment to race
neutrality in its security screening activities with special
emphasis on hair pat-downs of African-American female
travelers.''\3\
---------------------------------------------------------------------------
\2\ Letter from Bryan W. Hudson, TSA, to Novella Coleman, ACLU
(Jan. 12, 2015), https://www.aclunc.org/sites/default/files/
2015.01.12%20Singleton%20TSA%20resolution_0.pdf (setting forth terms of
agreement).
\3\ Id.
---------------------------------------------------------------------------
Given that this agreement was executed in 2015, TSA should
have already begun implementing a plan to evaluate its training
with respect to racial discrimination and hair pat-downs. This
plan should have included consistently reviewing and assessing
complaints regarding hair pat-downs and whether the increased
and more-targeted trainings were having an impact on the
quantity or the substance of the complaints, both on a National
level and specifically with respect to LAX and MSP. There is no
evidence, though, that TSA has in fact implemented such a plan,
or that TSA is treating the issue with the appropriate level of
attention and importance. As a result, it is difficult to have
any confidence in TSA's record keeping or its transparency with
the public.
At bottom, the burdens that Black passengers face when
traveling by air as a result of TSA's technology, policies, and
practices are unacceptable. Responsive training and
professional development that are informed by complaint data
and comprehensive evaluation can help ensure that, when full-
body scanners single out Black women for hair pat-downs, for
example, these searches are done in the least invasive and most
culturally competent ways that preserve the passenger's dignity
and privacy. However, mitigating the harm visited upon Black
travelers through improved training and professional
development is a short-term and ultimately inadequate goal.
Instead, TSA must eliminate fully the discriminatory burdens on
Black passengers.
2. Aspects of hair discrimination and other civil rights
complaints against TSA that require changes to TSA's
technologies or standard operating procedures.
As an initial matter, while it is essential for TSA to pay
attention and act responsively to discrimination complaints,
the focus must be on rooting out and addressing the underlying
discrimination and civil rights violations--not simply on
minimizing the number of complaints. First, there are many
indicators that discriminatory searches, including hair pat-
downs, are under-reported. Some frequent flyers may notice that
they are being disproportionately selected for searches; others
may not. In addition, there are many instances of
discriminatory hair pat-downs that are reported or are not
advanced in the complaint process.\4\ Reports also suggest that
Black women are subjected to hair pat-downs at far greater
rates than other passengers.\5\ Second, even the best training
may minimize the number of complaints, but it is not a
substitute for addressing the root problem. For example,
through effective training, it is possible for TSA screeners to
interact with Black women flagged for a hair pat-down in a
manner that treats them with fairness, dignity, respect, and
privacy. Relatedly, the number of complaints submitted to TSA
could conceivably decrease even though the full-body scanners
continue to misidentify Black hair as potential contraband. The
potentially hidden nature of this discrimination underscores
the need for a sustained effort to bring transparency and
reform to the technologies and policies that have a
discriminatory impact on Black women, other people of color,
and the LGBTQ community.
---------------------------------------------------------------------------
\4\ Brenda Medina, TSA Agents Say They're Not Discriminating
Against Black Women, but Their Body Scanners Might Be, ProPublica (Apr.
17, 2019), https://www.propublica.org/article/tsa-not-discriminating-
against-black-women-but-their-body-scanners-might-be (``Most people we
heard from said they had not known they could file a complaint.'').
\5\ See id.; Tatiana Walk-Morris, Why is the TSA Still Searching
Black Women?, Cosmopolitan (Apr. 24, 2018), https://
www.cosmopolitan.com/lifestyle/a18666534/tsa-black-women-hair-searches/
; Gaby Del Valle, How Airport Scanners Discriminate Against Passengers
of Color, Vox (Apr. 17, 2019), https://www.vox.com/the-goods/2019/4/17/
18412450/tsa-airport-full-body-scanners-racist.
---------------------------------------------------------------------------
My testimony on June 4 focused largely on the effects of
full-body scanners and called for, among other things,
increased transparency, more robust data collection, a more
publicized and navigable complaint process, an explanation from
TSA regarding how the many false-positive results from full-
body scanners are justified by a security need, and a
revisiting of the programming and algorithms used in the full-
body scanners to make clearer the distinction between Black
hair and actual security threats. I stress again here that it
is unacceptable for technological flaws to perpetuate racism.
Agencies must be held accountable when the systems they
sanction and oversee reflect racial bias and impermissibly
discriminatory decision making. If TSA would not tolerate a
screener who disproportionately and with no basis singles out
Black women for hair pat-downs, there is no excuse for TSA to
continue relying on a technology that consistently does the
same. TSA must provide the necessary fixes to full-body
scanners or use a non-discriminatory alternative.
Other TSA security technologies and procedures are equally
concerning. For example, TSA's plan for a sweeping expansion of
its use of facial recognition technology,\6\ with little public
oversight, has drawn censure from many, including Senators
concerned about, among other things, the technology's
potentially discriminatory effects and TSA's refusal to submit
its plan to formal rulemaking before beginning to roll it
out.\7\ TSA's facial recognition technology is part of its
expansive biometrics plan, which also includes collecting and
storing fingerprint data from TSA Pre-Check passengers to
perform criminal background checks.\8\ TSA also plans to share
passenger biometrics data with other DHS agencies.\9\ It does
not appear that TSA has adequately responded to concerns raised
about the ways in which facial recognition technology operates
in a racially discriminatory manner. The Department of Homeland
Security's Office of the Inspector General published a 2018
report in which it questioned the U.S. Customs and Border
Protection's (CBP) use of facial recognition and biometric
technology, noting that ``CBP could not consistently match
individuals of certain age groups or nationalities'' and that
``biometric confirmation'' was ``limited . . . to only 85
percent of all passengers processed.''\10\ Ample research
reveals race-based disparities in the accuracy of facial
recognition.\11\ It would be a hollow achievement to have a
workforce adequately trained in anti-bias and anti-
discrimination principles when race-based discrimination
continues unchecked through automation and algorithms.
---------------------------------------------------------------------------
\6\ Transp. Sec. Admin., TSA Biometrics Roadmap 5, (Sept. 2018),
https://www.tsa.gov/sites/default/files/tsa_biometrics_roadmap.pdf
[hereinafter TSA Biometrics Roadmap] (``Facial recognition has long
been TSA's modality of choice in aviation security operations. . . .The
TSA Biometrics Roadmap seeks to leverage facial recognition technology
to automate that process to enhance security effectiveness, improve
operational efficiency, and streamline the passenger experience.'').
\7\ Electronic Privacy Info. Ctr., Comments to the Transp. Sec.
Admin., Review of the 2018 National Strategy for Transportation
Security (Apr. 25, 2019), https://epic.org/apa/comments/EPIC-Comments-
TSA-National-Strategy-for-Transportation-Security-Apr-2019.pdf (quoting
Senator Udall (`` `it is unclear . . . whether the software treats all
travelers and Americans equally in practice . . . '') and Senator
Markey (`` `I'm very disappointed that [TSA] will not commit to
ensuring these fundamental protections are in place through a formal
rulemaking . . . ' '')).
\8\ TSA Biometrics Plan at 12.
\9\ Id. at 13 (``TSA will integrate existing biometric holdings and
newly collected biometric data with the DHS enterprise biometric system
of record (IDENT/HART) and gain access to additional biometric services
in accordance with applicable laws, regulations, and policy.'').
\10\ U.S. Dep't of Homeland Sec., Office of Inspector Gen., OIG-18-
80, Progress Made, but CBP Faces Challenges Implementing a Biometric
Capability to Track Air Passenger Departures Nation-wide 2 (Sept. 21,
2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-09/OIG-
18-80-Sep18.pdf.
\11\ See, e.g., James Vincent, Gender and racial bias found in
Amazon's facial recognition technology (again), The Verge (Jan. 25,
2019), https://www.theverge.com/2019/1/25/18197137/amazon-rekognition-
facial-recognition-bias-race-gender); Joy Buolamwini and Timnit Gebru,
Gender Shades: Intersectional Accuracy Disparities in Commercial Gender
Classification, Proceedings of Machine Learning Research 81:1-15, 1
(2018), http://proceedings.mlr.press/v81/buolamwini18a/
buolamwini18a.pdf (noting that ``[r]ecent studies demonstrate that
machine learning algorithms can discriminate based on classes like race
and gender,'' using an evaluation tool to determine ``bias present in
automated facial analysis algorithms,'' and finding ``substantial
disparities in the accuracy of classifying'' people of color).
---------------------------------------------------------------------------
In addition to problematic technologies like facial
recognition, biometrics, and the full-body scanners, TSA has
employed pseudo-scientific ``behavior detection'' procedures
for well over a decade.\12\ Under these procedures, screeners
rely on a checklist of behavioral indicators to assess whether
a passenger is acting suspiciously. After years of growing
concerns from Congressmembers and others over ineffectiveness
and misuse, TSA eliminated its Behavior Detection Officer
position consistent with a Congressional mandate and, in
November 2017, eliminated its stand-alone behavior detection
program.\13\ In August 2017, the behavior detection program was
revised and the behavior indicator list was cut down from 96
indicators to 36. TSA now refers to the procedures as
``Optimized Behavior Detection''\14\--essentially a secret risk
assessment tool that TSA claims is scientifically proven to
identify people who pose security threats. Despite the
persistent racial profiling claims and complaints from
passengers over the years, TSA ``rapidly expanded'' its
behavior detection program while ``never produc[ing] empirical
data in support of the program'' and ``costing taxpayers a
total of $1.5 billion between 2007 and 2015.''\15\ In 2013, the
Government Accountability Office found that ``TSA was unable to
demonstrate that the agency's behavior detection activities
could reliably and effectively identify high-risk passengers. .
. .''\16\ Worse, TSA's own scientific record not only shows
behavior detection to be unreliable, but also shows ``an
unacceptable risk of racial and religious profiling'' while
containing ``materials that range from culturally insensitive
to racially and religiously biased and sexist.''\17\
---------------------------------------------------------------------------
\12\ U.S. Gov't Accountability Office, Aviation Sec., TSA has
policies that prohibit unlawful profiling but should improve its
oversight of behavior detection activities 1 (Apr. 2019) [hereinafter
GAO Report].
\13\ See GAO Report at 7-9; Michael Nunez, TSA knows its racist
profiling system doesn't work, Gizmodo (Feb. 8, 2017), https://
gizmodo.com/the-tsa-knows-its-racist-profiling-program-doesnt-work-
1792129898).
\14\ Id. at 9-10.
\15\ Nunez, supra note 13.
\16\ GAO Report at 1.
\17\ ACLU, Bad Trip: Debunking the TSA's `Behavior Detection'
Program 1 (2017).
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In multiple contexts, we have seen technology (e.g., social
media platforms) develop at a rapid pace while executives and
decision makers ignore certain warning signs along the way,
creating intractable problems that would have been more
manageable to address earlier in the process. We hope that TSA
is not intent on taking this path and is listening to critical
concerns, including those about racial discrimination, as it
makes its security decisions. According to TSA, it is
adequately training its screeners on TSA's policies against
racial profiling,\18\ and, since the 2015 agreement with the
ACLU of Northern California, TSA should have been ensuring that
training related to nondiscrimination is clear and consistent
for all of its employees. Instead of simply promising more
trainings, TSA should evaluate what it is currently offering
and assess why it has been insufficient. Most importantly, TSA
should be fully transparent with its technologies, such as
full-body scanners and facial recognition technology, as well
as its procedures, such as behavior detection. It must also
undertake the work necessary to understand the risks of
discriminatory effects, and then develop the technology and
procedures in a way that eliminates those risks.
---------------------------------------------------------------------------
\18\ GAO Report at 14-15.
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As a Government agency that interacts with millions of
people of color each year as they navigate air travel in the
United States, it is TSA's responsibility to ensure that they
are safe, treated fairly, and can travel by air without civil
rights violations. These problems have persisted for too long,
and TSA or an oversight body must strike at their root before
the spread of untested and unchecked technology causes them to
grow out of reach.

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