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95–120 PDF 2005

COMPUTER ASSISTED PASSENGER

PRESCREENING SYSTEM (CAPPS II)

(108–55)

HEARING

BEFORE THE

SUBCOMMITTEE ON

AVIATION

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MARCH 17, 2004

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

JACK QUINN, New York

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

JIM DEMINT, South Carolina

DOUG BEREUTER, Nebraska

JOHNNY ISAKSON, Georgia

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

SHELLEY MOORE CAPITO, West Virginia

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

DENNIS R. REHBERG, Montana

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

CHRIS CHOCOLA, Indiana

BOB BEAUPREZ, Colorado

MICHAEL C. BURGESS, Texas

MAX BURNS, Georgia

STEVAN PEARCE, New Mexico

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

VACANCY

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

WILLIAM O. LIPINSKI, Illinois

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

NICK LAMPSON, Texas

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

BRAD CARSON, Oklahoma

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

JOSEPH M. HOEFFEL, Pennsylvania

MIKE THOMPSON, California

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

(II)
SUBCOMMITTEE ON AVIATION

JOHN L. MICA, Florida, Chairman

THOMAS E. PETRI, Wisconsin

JOHN J. DUNCAN, JR., Tennessee

JACK QUINN, New York

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

JOHNNY ISAKSON, Georgia

ROBIN HAYES, North Carolina

TIMOTHY V. JOHNSON, Illinois

DENNIS R. REHBERG, Montana

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BUD SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

CHRIS CHOCOLA, Indiana, Vice Chairman

BOB BEAUPREZ, Colorado

STEVAN PEARCE, New Mexico

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

VACANCY

DON YOUNG, Alaska

(Ex Officio)

PETER A. DEFAZIO, Oregon

LEONARD L. BOSWELL, Iowa

WILLIAM O. LIPINSKI, Illinois

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

EDDIE BERNICE JOHNSON, Texas

JUANITA MILLENDER-MCDONALD,

California

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

TIM HOLDEN, Pennsylvania

SHELLEY BERKLEY, Nevada

BRAD CARSON, Oklahoma

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

NICK J. RAHALL II, West Virginia

BOB FILNER, California

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

May, James C., President and Chief Executive Officer of the Air Transport

Association of America, Inc. ................................................................................ 36

Mitchell, Kevin, Chairman, Business Travel Coalition ........................................ 36

Ney, Hon. Robert W., a Representative in Congress from Ohio .......................... 9

Rabkin, Norman J., Managing Director, Homeland Security and Justice

Issues, U.S. General Accounting Office, accompanied by David Powner,

Director, Information Technology Issues, U.S. GAO ......................................... 10

Rosenzweig, Paul, the Heritage Foundation, Senior Legal Research Fellow ..... 36

Sobel, David, General Counsel, Electronic Privacy Information Center ............. 36

Stone, Hon. David M., Acting Administrator, Transportation Security Administration, Department of Homeland Security .................................................... 10

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Berkley, Hon. Shelley, of Nevada ........................................................................... 49

Costello, Hon. Jerry F., of Illinois .......................................................................... 50

Johnson, Hon. Eddie Bernice, of Texas .................................................................. 52

Oberstar, Hon. James L., of Minnesota ................................................................. 72

Pearce, Hon. Stevan, of New Mexico ...................................................................... 76

PREPARED STATEMENTS SUBMITTED BY WITNESSES

May, James C ........................................................................................................... 55

Mitchell, Kevin ......................................................................................................... 68

Rabkin, Norman J ................................................................................................... 78

Rosenzweig, Paul ..................................................................................................... 101

Sobel, David ............................................................................................................. 120

Stone, Hon. David M ............................................................................................... 135

SUBMISSION FOR THE RECORD

May, James C., President and Chief Executive Officer of the Air Transport

Association of America, Inc., responses to questions ........................................ 65

Stone, Hon. David M., Acting Administrator, Transportation Security Administration, Department of Homeland Security: ...................................................

Responses to questions from Rep. Berkley ............................................................ 144

Responses to questions from Rep. Johnson of Texas ............................................ 146

ADDITIONS TO THE RECORD

American Society of Travel Agents, Inc., Paul M. Ruden, Senior Vice President, Legal and Industry Affairs, statement ..................................................... 148

Association of Corporate Travel Executives, Nancy K. Holtzman, Executive

Director, statement .............................................................................................. 151

Business Travel Association of Germany, statement ........................................... 154

Institute of Travel Management, statement ......................................................... 155

Practical Nomad, Edward Hasbrouk, statement ................................................... 156

PrivacyActivism, Deborah Pierce, Executive Director, and Linda Ackerman,

Staff Counsel, statement ..................................................................................... 159

(1)

STATUS OF THE COMPUTER-ASSISTED PASSENGER PRESCREENING SYSTEM (CAPPS II)

Wednesday, March 17, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON AVIATION, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, WASHINGTON, D.C.

The subcommittee met, pursuant to call, at 10:10 a.m. in room

2167, Rayburn House Office Building, Honorable John L. Mica

[chairman of the subcommittee] presiding.

Mr. MICA. Good morning. I would like to call this hearing of the

House Aviation Subcommittee to order.

Welcome everyone this morning. The topic of discussion at this

hearing is the status of Computer-Assisted Passenger Prescreening

System, CAPPS II.

The order of business is going to be opening statements by members and then we have two panels of witnesses. We will hear from

our witnesses when assembled.

So, with that, I have an opening statement and then I will yield

to other members.

First of all this morning, let me say that I personally strongly

favor developing a passenger profiling system. However, with one

big caveat, of course, that that profiling system does not discriminate unfairly or invade or abuse privacy.

Unfortunately, however, millions of Americans who travel by air

each year are currently subjected to a passenger profiling and

screening system that just lacks common sense. There is something

very seriously wrong when we have a passenger profiling system

that confiscates wedding cake knives and takes sewing scissors

away from little old ladies and harasses children and Medal of

Honor veterans.

We currently have in place what I call a Las Vegas roulette passenger profiling and screening system whose chances of detecting

a terrorist are less than finding, unfortunately, a needle in a haystack.

There is no question that this system that we have in place now

clearly needs to be changed. It must be altered to be effective and

it must be altered to also narrow the focus to identify people who

pose an actual threat to aviation.

We urgently need a passenger profiling system that identifies

terrorists or bad people and at the same time does not discriminate

or violate personal privacy. I believe that can be done.

However, our efforts to get there have been lagging. For sometime now we have been promised the CAPPS II is on the way, that

CAPPS II is on the way. Unfortunately, it is not here yet.
2

However, CAPPS II is an important step toward addressing the

problems by focusing attention on passengers with the higher probability of risk. That is what we have got to do with this system is

focus attention on passengers that do in fact pose a risk.

According to the Transportation Security Administration, under

CAPPS II, if and when we get it fully developed and deployed, an

estimated 1 to 3 percent of passengers will be selected for an additional checkpoint screening, compared to about 15 percent of the

passengers selected under this current Russian Roulette, Las

Vegas-style system.

People who actually pose a threat will be better identified. If we

can better detect threats with CAPPS II, then it should be implemented in fact as soon as possible.

However, I am told that TSA is again behind schedule in developing CAPPS II for several reasons. First is due to a lack of passenger data that are needed for system testing. Unfortunately, I

believe that is unacceptable.

I believe that TSA has sufficient authority under the authorizing

law that we passed and this committee helped to develop to require

airlines to provide data and that TSA should take action by rule

or whatever authority that we invested in them to do so promptly.

This issue must be resolved without further delay.

Several other issues must also be resolved before CAPPS II is actually used to screen passengers in a working system. Unquestionably, sufficient privacy protections must be in place. Data and

records must also be secured, must be limited in nature and must

not be retained any longer than necessary.

Next, and most importantly, the accuracy of databases used by

CAPPS II must be verified. Many government databases contain

incomplete and sometimes inaccurate information. A terrorist

watch list may include a single last name common to many people,

however with no other distinguishing information.

Additionally, I understand that immigration data which will also

be used by CAPPS II is often inaccurate and sometimes difficult to

correct. Database accuracy is a significant challenge to the successful implementation of a CAPPS II program.

Third, a real passenger advocate and appeal process must be established for passengers who are erroneously selected by the system. American citizens must be able to correct inaccurate information contained in the various commercial and government databases that will be used by CAPPS II.

Finally, the effectiveness of CAPPS II algorithms must be proven. If CAPPS II becomes the threshold that identifies the passengers on whom all additional screening attention is focused, then

our entire screening system will only be as effective as CAPPS II

is designed.

If a terrorist fools CAPPS II by identity theft or some other

method, then he or she will not be subject to additional security

scrutiny beyond the basic checkpoint screening. That is why better

screening technology is still absolutely critical to improving aviation security.

I might inject here, too, Mr. LoBiondo invited me up to visit Atlantic City on the morning of Monday, the 29th. That morning I

have set aside to be in Atlantic City and look at some of the prob-
3

lems we have had in developing screening technology and also certifying screening devices.

Any of the members are welcome to join me on that occasion. I

think it is an important meeting.

While CAPPS II has the potential to be helpful as part of a layered system of security, it must not be a substitute for deploying

more effective passenger and screening technology.

I also continue to be concerned about the lack of an integrated

terrorist watch list. That critical watch list is long overdue. I think

some of you may recall, we all agree, bipartisan, both sides of the

aisle, when we developed the TSA legislation, that that was one of

the first things that had to be done.

Unfortunately, I am reporting on today, St Patrick’s Day, the

17th of March, 2004, we still do not have an integrated watch list.

That critical watch list must be in place to make all this successful.

Integrating the various law enforcement and intelligence agencies watch lists is an important vital first step toward better coordination of all of our security efforts.

As recently as last month, the Department of Homeland Security

staff could not give me a timeframe for when an integrated terrorist watch list would be available. That is a very sad statement.

I want to take this opportunity to emphasize again how important it is that this information be integrated and available now.

In summary, I think that CAPPS II has the potential to significantly improve aviation security. However, it faces several challenges and must be implemented with care. I believe that open discussions of these challenges today will not only lead to an improved

CAPPS II system and passenger profiling system that we can use,

but will also help the system gain public acceptance and also answer many of the questions and concerns that have been raised.

I think this is also appropriate in that GAO just several days ago

released this report, Aviation Security Computer-Assisted Passenger Prescreening System Faces Implementation Challenges.

We rely on GAO to do some of this work in looking at how this

project from a technical standpoint is progressing. We will have

questions from that report that I think we will all want to hear answers about.

So, I look forward to the discussion today and to the testimony

of our witnesses who I think represent a good range of positions

and experience and knowledge on the issue.

Those are my opening comments. I am pleased now to yield to

our ranking member, Mr. DeFazio.

Mr. DEFAZIO. Thank you, Mr. Chairman. You know, Mr. Chairman, the CAPPS II system had promised that it was going to provide us with extraordinary security at low cost and instead it has

provided us with cost without security, with no discernible

progress.

To me, it is kind of like what we are doing in deploying the Star

Wars system, which does not work, to shoot down missiles that no

one is ever going to shoot at us, while we are leaving our borders

open, our ports open to someone smuggling in a nuclear device in

a truck or a container.

The same thing here: We want to go with this fix that will be

able to assess the threat magically of every passenger and then
4

just screen those few people, lowering the burden on the workers

at the airport, the TSA people.

But I have doubts that it is ever going to overcome the obstacles

before it, not only technological, since this administration has thus

far failed to merge the existing 11 or so lists that are out there into

a workable single list so we can at least look at something to identify who are threat persons that are known.

That has been a couple of years in the making. That has not happened. But now we are going to have this whole new construct that

will take anybody from anywhere in the world that is getting on

an airplane and somehow magically assess whether or not they are

a potential threat and merit more screening.

It’s better to improve the screening at the airport, which we are

not making a lot of progress on. I was just reading about experimental portals that are going to be used for groundside personnel

at JFK that have been used in prisons and it says in the story that

they found more contraband in one weekend than they found in a

year at that prison from people going in and out.

But we have heard, we can not use portals because they would

expose people’s bodies or an outline of their body and everybody

would be embarrassed.

Well, you can use stick figures. You can give everybody Arnold

Schwarzenegger’s body, whatever you want to do. You could have

a computer simulation, but it would just show where the threat

items are.

We are not doing anything to detect bombs, plastic explosives at

the check point or on people’s bodies. Did anybody at TSA ever

hear about suicide belts? They are widely available and in use.

Without embedded metal items to cause wounding when you only

intend to kill or take down a plane, they would be totally

undetectable with the current system. It is only a matter of time.

So, we play around, wasting money on this. I understand Lockheed is a defense contractor and this is the way they usually work,

you know, 10 or 20 times over budget, five years behind schedule

and no discernable product. But then sometimes it ends up like the

Comanche helicopter where after wasting billions of dollars we cancel the darn thing and we are no further along.

I think that’s where CAPPS II is headed. I have asked any number of times, any number of people in Admiral Stone’s and his

predecessor’s place, what about a system that we could have implemented two years ago, last year, last month, today, Trusted Traveler?

There would be no cost to the government. People would pay for

their own background checks. They would get an ID card that

would allow them to use an express line. They would still go

through the same minimal amount of screening we provide now,

but they wouldn’t be pulled out for random checks.

That happens to take a very small number of people who constitute a very large percentage of the daily passenger traffic because business travelers are small in numbers, but occupy, on a

weekly basis, a lot of the seats.

Then that would allow the TSA screeners to focus on the remaining unknown people and the unknown threats they represent. It

would also help the airlines a lot because the airlines are losing all
5

their high-end customers because they do not want to put up with

the uncertainty, the hassles like when I was an hour and ten minutes early at National a couple of weeks ago and found that the

line was more than an hour and ten minutes long to get through

security.

Most business people aren’t going to put up with that when they

have the alternative of an executive jet and that’s where they are

going. So, this would help the industry. It would help TSA. It

would help security and it would allow us to focus on those unknown people while Lockheed continues to spend money endlessly

for no product until we finally cancel the CAPPS II program or it

falls from its own weight.

Thank you, Mr. Chairman.

Mr. MICA. I thank the gentlemen. We have been joined also by

Mr. Ney, who is not a member of this committee. It is the custom

of the committee to grant, by unanimous consent, participation and

sit-in rights to Mr. Ney.

Mr. Ney, what we will do is, we go through the members and

then you will have your shot. But, without objection, Mr. Ney is

permitted to participate in this hearing.

Let’s see, Mr. Shuster? Mr. Pearce? Let me get the members on

this side then. OK, we have Ms. Norton. You are recognized.

Ms. NORTON. Thank you, Mr. Chairman. Mr. Chairman, may I

say that I agree with you? We certainly need a system. I mean we

were seeing in this country where there were 19 folks who just

walked right on in and left the other standing in their wake.

But, as you indicate, we need a system that is compatible, minimally, with the American values. That does not appear to be this

system. We need a system that makes it difficult for them, but not

for us. I am not sure how difficult this would be for them because

the system does not look like it would be very effective. But it’s

surely difficult for us and we look at the problems that still are

outstanding.

The CAPPS II system seems to be collapsing before it’s even tested. We have a real problem when the public votes no before you

even have a program because the airlines have refused to cooperate

because of the concern of the marketplace, their own public.

On the other hand, I cannot imagine what it’s going to take to

get the public to accept the screening that CAPPS II at least is offering.

If you look at the GAO report, you look at the problems that

have been raised, the problems that were raised before, the problems that continue to be raised, you know, the assumption was

that perhaps as many as a third of the public would need to be

prescreened. Then it was down to 15 percent. Now it may be even

smaller.

I recognize that no matter how small it is, we need to keep people from getting to this country who come to wreak havoc.

People are already being delayed in travel here and they are

being very patient with it. I think this committee has done a very

good job in, in fact, working with the TSA in the design of a system

that essentially has Americans saying, you know, search me, do

whatever you want to so that I can get through here. I understand

why you are doing it.
6

We already have indications that they will never understand

CAPPS II as it now exists. I mean the problems go from the most

basic problem any American will have which is what are you going

to do with my data? What are you going to do with my business?

What are you going to do with my information?

You have to begin with privacy issues that remain unaddressed.

Then, assuming you can even get through that, particularly, given

the initial response from the public, there is the question of accuracy of information. It is very, very difficult.

You know, we think that the names of Arabs are all the same.

I am here to tell you that the names of Americans are all the same.

You are all named John Jones or Mary Smith.

Finding a system that is able to differentiate all of us is a heck

of a challenge and one that CAPPS II has not begun to meet. Then,

of course, if you have a perfect system, we are imperfect beings, so

there will be mistakes.

Finding a fast way to correct inevitable mistakes is the sine qua

non of having such a system at all. This raises all kinds of due

process issues. Here we are trying to people simply through the

line and we talk about due process issues.

We have got to find another simpler way to do this. I won’t even

get to timeliness. We are already saying to people who have exercised enormous patience; it’s going to take you longer to get

through. You used to be there an hour ahead. You have to be there

two hours ahead. I cannot imagine the waste in productivity. But

it has to happen because we have to protect ourselves and our

country.

Now, add another issue, another layer and you got problems unless it goes very smoothly. I just think we thought about this problem long before in our heads, way before the technology to make

it happen was available and way before we had the expertise to do

it.

Meanwhile, we’ve got to figure out what to do. I think that our

most profound problem now, if we correct all these problems, which

seems not to even be close to happening, is will the public ever accept how the CAPPS II that has already introduced itself, what a

terrible introduction.

Having been introduced that way, how do we backtrack and say,

no, no, that is not us. CAPPS II is really something else. I remain

a profound skeptic.

I thank you, Mr. Chairman.

Mr. MICA. I thank the gentlelady. Are there further opening

statements? Mr. Pascrell?

Mr. PASCRELL. Thank you, Mr. Chairman. I associate my comments with yourself and the ranking member as well. I think it is

important that we continue to hold open and public hearings on the

issue of aviation security.

We started this right after September 11, 2001. The nature of

these hearings has been very revealing. We have come to some results. You understand our impatience and the impatience of the

public.

He have heard from a lot of critics on the CAPPS II program.

The latest GAO report confirms some of those fears. That report is

really an eye-opener to all of us.
7

Admiral Stone, the bottom line is that the TSA is going to have

to do a much better job of assuring the public that CAPPS II does

not begin to look like big brother.

We want security. We want to know if the passenger is going to

commit an act of terror, obviously. We are trying to prevent those

things, as we work with other nations in terms of our ports, even.

We cannot do this alone. We cannot check everything that comes

into the country. So, we are trying to get other nations to verify

and certify what goes into these things before they come, go on ship

and come over here.

So, cooperation is very critical to what all of us are doing. Cooperation may be harder to come by in the future.

You are two years old, and I believe you have done some very

good things. But there are too many delays and problems still outstanding that make me question my confidence in your ability to

implement the system in the near future.

After all, when the system is completed, it has to be implemented

or it is just on paper. It is frustrating that CAPPS II would not be

deployed overseas.

Secretary Ridge recommended that we cancel certain flights in

Britain and France. We know that there is a threat posed by some

foreign nationals traveling from European nations. I know you will

have access to passenger data from European countries for testing.

But I cannot see the effectiveness of a system unless the Europeans

make it seamless with their data.

Here at home people will want to know what sources TSA is tapping and why they cannot see any information the government has

on them. I think that is a very pertinent question in a democracy.

In terms of the data actually collected, CAPPS II will replace

TSA in what I think is a Catch–22 situation. CAPPS II should not

store information for too long or it would be creating the big brother scenario the public fears.

The need for data correction for passengers that trigger a false

negative will require that some passenger information is stored so

that it may be corrected. For how long?

I can only fear the outrage from those who register false, unacceptable risks and miss weddings and graduations, et cetera, sorting out what happened. These are but some of the many inconsistencies and inherent problems which must be remedied before I believe the Congress will let this program be deployed.

Frankly, I believe that we must choose our priorities wisely.

Physically securing the airplane by checking every passenger,

every piece of baggage and cargo for explosives and every employee

with air side access seems to be, to me, to be a better use of resources at this time.

It is phenomenal that, Admiral, you have to go through a screening process to get on an airplane and I have to go like every other

member of the public, which is rightful.

But employees at the airports do not go through any screening.

Hundreds of thousands of employees walk in and out, off the tarp,

off the runways every day with simply a chain around their neck.

This is preposterous. It is unacceptable. It needs to be changed immediately.
8

You know that that’s how things are put on airplanes, drugs;

need I tell you? And this is how things are stolen from airplanes.

We go through this. We just had a case on Long Island, you know

it.

Admiral Stone, you have a tough job. I wish you well. You are

up for the job. Please call on us to be helpful. Please understand

our frustrations. But we are not going to let our frustrations get

in the way of moving forward; are we?

Thank you.

Mr. MICA. I thank the gentlemen.

Mr. Boswell?

Mr. BOSWELL. Thank you, Mr. Chairman. I, too, appreciate your

having the hearing.

Mr. DeFazio, I associate myself with what you said. I just met

Admiral Stone yesterday. I am almost starting to feel sorry for

him. But he looks like he is a warrior, so I think he will be OK.

We are asking a lot. You know, I guess I have to tell you, Admiral Stone, of the years I spent in the production of agriculture. So,

I suppose that I would say this: I continue to be an eternal optimist. But I want us to move forward.

We talked about that on another subject yesterday about national and the same thing applies. So, I am very pleased. This is

a hearing going on. I want to hear from you, so I will be short.

But again, it has been 30 months. We have done a lot of things.

I appreciate that. The traveling public, most of them, appreciate it.

I tell a little story. I was in Des Moines getting ticketed and so on.

It was one of those days. Someone I had never met before came up

with her husband and I could tell by the look on her face that I

was going to get it. I got it.

She lit into me about missing her flight. I had the audacity, I

said, well, what time did you get to the airport? Well, she got there

30 minutes early. I said, well, you know, we all know we have to

get here a little earlier under these conditions. She turned to her

husband and said, I told you he wouldn’t do anything. He does not

care. And away they went, you know? So, anyway, you probably get

a lot of that, too.

You know, this CAPPS II has been under review and there are

problems with privacy, due process, accuracy, overall effectiveness

and so on. We have heard these concerns. I share many of them,

but while it is being delayed, one of the key participants in getting

the system up, I guess, is the air carriers. Apparently, they have

had some objections providing data due to privacy concerns.

So, get your arms around it. Let’s get something happening. I

think we can do better. We have a lot of people being checked that

have been already background checked and so on and so on.

You are one of them and many others that serve in the Congress

as well as people across the country. You know, they have had

clearances, top secret clearance checks, secret clearances checks

and so on.

I would hope we could get something going. Thank you, Mr.

Chairman.

Mr. MICA. I thank the gentlemen. If no other members of the

Transportation Subcommittee seek recognize, I am pleased to rec-
9

ognize my chairman on the House Administration Committee. He

does a great job over there.

Congratulations on the new signage around here. It’s great. I can

even find my way around after 24 years.

Mr. NEY. I still cannot find my way around Rayburn, but we will

work on it.

Mr. MICA. Well, that is a challenge. I figured if we leave bread

crumbs or cheese—I am pleased to recognize Mr. Ney.

TESTIMONY OF HON. ROBERT W. NEY, A REPRESENTATIVE IN

CONGRESS FROM OHIO

Mr. NEY. Thank you, Mr. Chairman. I give you credit. You are

a person, both publicly and privately, that stays on beam in the

building up and you have led the situation we have on the signs.

Thank you, also, Mr. Chairman and members of the committee

for giving me the ability for sitting on the subcommittee today. I

appreciate the important hearing that you have on CAPPS II.

I am not going to go into a long situation, but I have some concerns regarding the CAPPS II program. I think TSA has worked

very diligently under a tough situation since 9/11.

I am a little bit troubled by the plan to implement it. I am just

concerned as a lot of people are about the privacy, but also just the

potential for errors and what happens if you get the one flag and

you are banned from there and it was a mistake. I know nothing

is perfect, but as this progresses, it has just got to be thought out

to the very nth degree.

So, I, like others who have commented today, have some definite

concerns on it or also the possibility of wrong information. I know

in the computer age that can happen. So, I know you have a tough

situation ahead.

I just think that thinking this thing all the way through is going

to be important.

One other thing in conclusion, too, I fly like other members and

we hear from people. But I have called TSA and I have got to tell

you, I have had responses from your staff, Admiral. So, I give you

a lot of credit for that.

I think consistency, you know, what you do in Kansas City, if you

have to show the ID at the gate or if you have to show the ID in

one place, you should have to do it the same across the country.

That is what I hear from a lot of people. At one airport you check

in and you go down and you have the ID. Sometimes they have

asked at other airports for ID at the gates.

That’s one thing I have called TSA on. I think consistency, exact

consistency at all airports where possible will also alleviate some

of the frustration of travelers.

Thank you. Thank you, Mr. Chairman.

Mr. MICA. Thank you. Are there any additional opening statements?

Ms. Millender-McDonald, you are recognized.

Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman. Thank

you so much. It is good to see all of our guests here today. I am

happy to be here to listen to the witnesses about the status of the

computer-assisted passenger prescreening system.
10

I do represent Long Beach and kind of on the periphery Los Angeles Airport.

It is good to see you, Mr. Stone.

It is important to recognize the growth of the Long Beach Airport

and the need for ensuring that we have not only the screeners, adequate screeners, but the prescreening system. And so today’s hearing, I am sure, will illustrate the modern need for this and the importance of it.

So, Mr. Chairman and ranking member, I am just happy to be

here, rushing in from another meeting. I will listen to the witnesses and take copious notes. Thank you.

Mr. MICA. Thank you. I did get a chance to look at that Long

Beach screening process which they are doing intense and portable

facilities for the passengers. I think when you get off a plane you

are not allowed to stay in the terminal. There is not enough room.

Ms. MILLENDER-MCDONALD. It was good to see you there, Mr.

Chairman.

Mr. MICA. Are there any other opening statements this morning?

If there are no further opening statements, we will go now to our

witnesses. I thank them for their patience.

Mr. Stone, you get to do a double header yesterday and today.

Admiral David Stone is the Acting Administrator of the Transportation Security Administration.

We also have Mr. Norman Rabkin. He is managing director of

Homeland Security and Justice Division of the General Accounting

Office.

They are accompanied by David Powner, director of information

technology Issues at GAO.

So, welcome. If you have lengthy statements or material you

would like to have made part of this hearing record, please request

so through the chair.

First, we will recognize Admiral Stone. You are welcome, sir. You

are recognized.

TESTIMONY OF ADMIRAL DAVID M. STONE, ACTING ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION;

NORMAN J. RABKIN, MANAGING DIRECTOR, HOMELAND SECURITY AND JUSTICE ISSUES, U.S. GENERAL ACCOUNTING

OFFICE, ACCOMPANIED BY DAVID POWNER, DIRECTOR, INFORMATION TECHNOLOGY ISSUES, U.S. GAO

Admiral STONE. Thank you, Mr. Chairman and distinguished

members of the subcommittee. Mr. Chairman, Congressman

DeFazio, Mr. Ney and distinguished members of the subcommittee,

it is an honor be representing TSA as the acting administrator this

morning and addressing the issues related to the second generation

Computer-Assisted Passenger Prescreening system known as

CAPPS II.

This system, once fielded, will be a significant enhancement to

our overall aviation security posture. In addition to providing a

quantum leap in our ability to verify identification, the system will

offer rapid and efficient means of comparing these names against

known terrorist lists.

Of note, the terrorist screening center remains on schedule to

bring the first version of the consolidated terrorist screening data-
11

base on line by March 31, 2004 and achieve full operational capability by the end of the year.

The ability of CAPPS II to also conduct a risk assessment that

is intelligence-based is envisioned to reduce our number of selectees, these are the travelers that are selected for secondary screening, at our nation’s airports from 16 percent to approximately 4

percent.

By this I mean that we have approximately 1.8 million passengers a day going through our airports. We are looking at about

300,000 of them as secondary screening selectees and it is envisioned that CAPPS II will reduce that number from 300,000 to

75,000, a significant reduction in the hassle factor for our passengers.

This is an important benefit of smarter, intelligence-based selective screening. Not only will we see a dramatic reduction in the

hassle factor experienced by passengers, but the increased throughput at our checkpoints and thus the overall customer service experience will be improved greatly.

Having served as the Federal security director at Los Angeles

International Airport and seeing firsthand the impact of the current CAPPS II system on the traveling public, I am generally excited about the prospects of how we can both enhance security and

customer service once CAPPS II comes on line.

Secretary Ridge has provided the Department of Homeland Security with a vision statement that I talk about daily in our morning

operations and intelligence briefing. The statement reads: Preserving our freedoms, protecting America, we secure our homeland.

The fact that preserving our freedoms comes first in that statement reminds us that we must ensure that we never jeopardize

those freedoms and liberties that we all love so dearly as we go

about our business of protecting America.

The statement gets to the core of who we are and what we believe in and was in fact the focus of last week’s nationwide TSA

privacy education week. I mention this because as we go about the

business of testing and implementing CAPPS II we know full well

that the privacy, redress and oversight aspects are critical to our

success.

In order to have the trust and confidence of the American people,

we must ensure CAPPS II meets the highest standard in each of

these areas. There is an inherent goodness to CAPPS II that I believe will shine through as we examine the program more closely.

TSA welcomes the scrutiny the program is under because we understand the importance of getting it right. The delays in testing

have not caused us to waver in our commitment to this program.

We are keen to move down the road of CAPPS II, but not if it

means shortcuts or taking the most expedient path. There is too

much at stake to rush ahead without the proper privacy, redress

and oversight procedures in place and we are working hard to refine these programs and our policies to support testing.

I am confident we will move CAPPS II forward in a thoughtful

manner and provide the American people a program they will be

proud of, one in which their freedoms are preserved and our country is better protected against terrorism.
12

In closing, I would like to thank you, Mr. Chairman, for your outstanding support and that of the subcommittee members. I look

forward to answering your questions today.

Mr. MICA. Thank you. I would now like to recognize Norman

Rabkin with GAO. GAO has completed the report which I referenced in my opening statement. Welcome, sir. You are recognized.

Mr. RABKIN. Thank you, Mr. Chairman and members of the subcommittee. I have a longer statement that I would like to provide

for the record.

Mr. MICA. Without objection, the entire statement will be made

a part of the record. Please proceed.

Mr. RABKIN. I am pleased to be here this morning to talk with

you about our recent report on the CAPPS II program. With me is

Dave Powner, one of the directors of GAO’s information technology

team. Along with Cathy Barrick of my team who was out on maternity leave, Dave led the GAO team that reviewed TSA’s design of

CAPPS II.

My testimony today highlights three areas from that report that

we issued last month. First we address the status of TSA’s development of CAPPS II. Our bottom line was that TSA has not yet completed important system planning activities.

TSA is currently behind schedule in testing and developing the

initial increments of CAPPS II, due in large part to delays in obtaining needed passenger data from air carriers.

Furthermore, the target date for testing the system with data

from one airline has been postponed and the new date has not yet

been determined.

TSA also has not yet established a complete plan that identifies

specific system functions that it will deliver, the schedule for delivery and the estimated cost of the system’s development and implementation.

Secondly, TSA has not yet fully addressed seven of the eight

issues identified by the Congress as key areas of interest. One

issue has been addressed. DHS has established an internal oversight board to review the development of CAPPS II. DHS and TSA

are taking steps to address the remaining seven issues.

However, they have not yet first determined and verified the accuracy of the commercial and government databases to be used by

CAPPS II; second, stress tested CAPPS II nor demonstrated the accuracy and effectiveness of all the search tools to be used;

Third, develop sufficient operational safeguards to reduce the opportunities for abuse by authorized users;

Fourth, established substantial security measures to protect

CAPPS II from unauthorized access by hackers and other intruders;

Fifth, Adopted policies and internal controls to establish effective

oversight of the use and operation of the system;

Sixth, identified and addressed all privacy concerns; and

Seventh, developed and documented a process under which passengers can appeal decisions the system will make about their risk

level and correct erroneous information in the databases used by

CAPPS II.
13

We made seven specific recommendations to TSA. For example,

we recommended that TSA identify specific milestones for when

CAPPS II should achieve incremental functionality and at what

cost, and we recommended that TSA develop policies and procedures outlining how CAPPS II will provide passengers with the

ability to access and correct personal data.

DHS generally concurred with our findings and has agreed to address the recommendations.

Finally, CAPPS II also faces a number of additional challenges

that may impede its success. For CAPPS II to operate effectively,

it needs data on foreigners who plan to fly on domestic U.S. flights

and flights to the United States that originate in other countries.

TSA needs to develop internal cooperation to obtain these data.

The European Union in particular has objected to CAPPS II using

its citizens’ data, although the EU and DHS officials have reached

an agreement to use data for testing purposes, the EU wants to see

how Congress’ concerns about protecting privacy will be resolved

before committing further.

TSA also needs to decide how far beyond its original purpose

CAPPS II should go. TSA is considering expanding what started as

a system to try to prevent foreign terrorists from boarding U.S. aircraft to include suspected domestic terrorists, persons with outstanding Federal and state arrest warrants and persons with expired VISAs.

Finally, TSA need to ensure that CAPPS II will do all it can to

ensure identity theft in which an individual poses as and uses information of another individual cannot be used to negate the system’s security benefits.

Mr. Chairman, this completes my oral statement. Mr. Powner

and I will be glad to answer your questions.

Mr. MICA. Thank you. We will go ahead and start some questions.

First of all, Admiral Stone, you just announced March 31, 2004,

completion of—can you tell us exactly what that is? Is it the first

three integrated watch lists? What will be available on March 31st?

Admiral STONE. Currently, the terrorist screening center, after it

had stood up operations, it gave State and local law enforcement

access to over 50,000 foreign terrorist watch list entries for the first

time. So, currently, the cop on the beat can call in and do that

check.

Mr. MICA. But will we have an integrated watch list on that

date, also?

Admiral STONE. On March 31st, the first version of its consolidated terrorist screening database will be on line on that date and

it will achieve full operational capability by the end of the year. So,

this is the first version of your consolidated database being on line.

Mr. MICA. From all agencies?

Admiral STONE. For all agencies to be able to access that, yes,

sir.

Mr. MICA. That is all agencies accessing. But how about the data

on bad people, potential terrorists, that is going to be all in that

one list on the 31st?
14

Admiral STONE. In the first version, the reason why they have

caveated that is they are going to grow that through the year and

improve on that by the end of the year.

Mr. MICA. The beginning list, it will still not be all information

from all agencies on bad guys?

Admiral STONE. Right, yes, sir, that’s correct.

Mr. MICA. When do you think that will be complete; the 31st of

December?

Admiral STONE. Full operational capability by the end of this calendar year.

Mr. MICA. OK. Well, operational and integrating the list, I don’t

want to play semantics, but the watch list will be fully integrated

and available within the system by the end of the year?

Admiral STONE. That would be the definition of full operational

capability, yes, sir.

Mr. MICA. OK. There are seven issues that were raised. Congress

has expressed concerns. I think only one or two of our concerns

have been addressed.

Do you want to go through the seven real briefly?

Admiral STONE. I can touch on those, sir, yes. The privacy issue,

we have been working very closely with Newokana Kelly at the department related to privacy. The first issue was to inculcate within

the organization as a result of the Jet Blue incident as well as our

core belief that we need to ensure every employee is educated on

privacy.

Thus, the nationwide TSA privacy education week. That item

was kicked off last week and we believe deeply in that. We continue to enhance that so that we do not see reccurrences of asking

for data that would be inappropriate.

Mr. MICA. Let me interrupt you before you go on because I want

to elaborate a little bit more. One of the problems is that you have

had hesitancy—I won’t say lack of cooperation—on the part of the

airlines to participate.

Is that primarily a liability concern? Then, if you do one or two

airlines, does that sort of have them stand out?

The second part of my question, and I alluded to this in my opening statement, is I thought we gave you enough leeway in the TSA

bill, creating the TSA bill, to pass rules to deal with situations like

that, to pass a rule that mandated providing you with that information or requiring their assistance and cooperation on this.

Admiral STONE. Sure. I think the airlines are, appropriately so,

are sensitive to ensure that they are respecting privacy rights, that

the issue of liability is certainly on their scope as an item of concern when we talk. Mr. MICA. We know that now. Do you have the

authority that you need to get them to cooperate and also at least

allay some of their concerns or deal with the liability issue?

Admiral STONE. We do have that authority and believe that.

Mr. MICA. Then why haven’t you used it?

Admiral STONE. It is our intent to be using the notice of proposed

rule-making along with an SD to allow the airlines then to have

the appropriate notification through the NPRM to education the

public, their passengers on that and then to compel that data with

an SD.
15

So, that parallel effort is in our tool box and it is our intent to

work with the department on the timing of when those will be promulgated.

Mr. MICA. And when?

Admiral STONE. After we have had those discussions within the

department, that we have reassured the department that we have

met the privacy oversight redress requirement.

Mr. MICA. CAPPS II is not going to go forward until we get the

airlines to cooperate, to get the system tested and then to get the

system finalized and deployed. So, when is all this going to happen? Can you give us a timeframe?

Admiral STONE. I would anticipate here in the coming months,

the next couple of months, that we will be able to have a decision

related to the promulgation of the NPRM and the SD.

Mr. MICA. Well, that just means further delays. That is not exactly the way we envision this. I see heads sort of agreeing with

me. We did not envision it to take—I mean we are already two and

a half years out and we envisioned some of this.

Again, you are a new kid on the block. You are not a kid, but

a very new player at this level. We have had your predecessor, Admiral Lloyd before us. We have had McGaw before us. We have had

the Secretary of Transportation before that.

We just want to see if this is going to go forward that it gets implemented as soon as possible. Well, I want to give you time to respond to the rest of the concerns. Can you proceed?

Admiral STONE. Yes. It is our intent also to be hiring a privacy

officer this month to report to the DHS, the department’s privacy

officer as another initiative to ensure that we have the coordination

between what is taking place at our Office of National Risk Assessment, those actions that are falling under the purview of ANRA

and that we think that that will also result in an improvement in

terms of our privacy attention and being in compliance.

Additionally, with regard to external oversight and internal oversight, we have been working within the department and at TSA on

an aviation security advisor committee.

We envision two working groups for that. One will be focused on

privacy issues and we will deal with operational and technical

issues related to ensuring programs such as Radiant Trust, which

is the program that is used top monitor the system, the network

for improper access or intrusion.

This operational and technical oversight working group is being

set up as we speak, along with the privacy working group and reporting on in under the Federal Advisory Committee Act. So, this

energy being put forward to get the proper oversight in place is

right now an item of interest for us.

We have had additional groups come in and visit with us, the

Markle Foundation, Zoe Baird visited with us last week to provide

value added to that process. But the concept of ensuring that we

have proper oversight, both internal and external, is currently a

high-priority item for us.

This month, we anticipate being able to then present to the department where we are on the standup of those working groups

and move forward then to reinstill confidence that we have a plan

on that and it’s a good one.
16

The redress system is based on having an ombudsman and a passenger advocated designated and a process in place so that when

an individual finds that they are being repeatedly selected as a secondary screenee during their transit through the airport, that they

will have an opportunity then to contact TSA, the ombudsman and

the passenger advocate and then we will have the capability to

have a decision made at the TSA level concerning going in on that

individual and then adjusting the criteria for that individual after

we verify their name, date of birth, address to go into that and

make these decisions, we think, in a rapid matter so that it is not

a bureaucratic system of waiting forever to get a response.

Our goal is to have a redress system that has flexibility in it and

speed and scratches the itch for the traveling public regarding frustrations over being selected repeatedly.

I will note that when you have a program that is envisioned going from $300,000 to $75,000 selectees, we do not envision that

the reaction will be from the traveling public that they are being

selected for more opportunities.

We think that that will be an issue that the numbers of people

that call about being sent for secondary screening will not be a significant number.

The issue will be if we get a number of people that are referred

to law enforcement. We believe that CAPPS II, right now in our

nation’s airports when you are on a no-fly list or you are having

to be run against a paper copy by the airline, there is great frustration about that.

CAPPS II’s envisioned, because of the fact that we will have gone

from about very low, single digit probability of who you are at the

airport to something in the area of 99 percent verification of ID,

that when we run and name against known terrorists lists, that

this problem of having large numbers of people complaining about

why are they on that list will be reduced, not increased.

So, this redress system, we believe, that we have in place with

passenger advocates and a rapid ability then to input into the system if we find that there are problems that come up, we think we

have a good game plan for that.

From a program management point of view, currently this year

we have expended about $14 million on CAPPS II. That is what we

have expended.

As a result of the GAO and our own assessment, we have put

a program management approach on this. We have enhanced the

programmatic of it, watching the flow of people, money and program because we, too, are sensitive to make sure that this does not

become a program that expands and is done in a thoughtless manner.

We want to have attention to detail and where that money is

going. We have facilities now at Annapolis Junction, which is the

back-up for Colorado Springs, which is the back-up for our primary

site for the Office of National Risk Assessment which is located at

Annapolis Junction.

That has been stood up out in Colorado Springs. In fact, I will

highlight that the Office of National Risk Assessment, since December when we went to orange, has been able to do a program

separate from CAPPS II, which is cockpit crew vetting so that
17

these international flights that are coming into the United States,

that we were able to quickly run that through a terrorist database

to get another risk mitigator on who are these people that are flying on international cargo flights into the United States and departing the United States.

Part of that budget of the Office of National Risk Assessment is

also under close scrutiny on our part because that was able to take

place on a merchant call.

All of those factors, program management, oversight, redress and

privacy are at the top of our list to ensure that we are in compliance and are able to report back to the department that we are on

track and ready to move forward on a testing initiative.

The testing piece of this, as was pointed out by GAO, many of

the reasons that we were not able to verify the system and databases has been the issue of getting test data has been one that we

have been very careful and thoughtful about because of our respect

for the privacy issues related to acquiring that data.

We have worked very closely with the European Union on this.

In their sensitivity about wanting to be partners with us, they have

agreed to the providing of P&R data for testing purposes, but first

needs to have it ratified by parliament.

We find that that timeline for that ratification fits in with our

current schedule and we are confident that we will be able to work

with the European Union for not only the testing data which we

believe should be done with both European as well as U.S. domestic data.

That concept we believe, strongly sends a message that we are

going to be partners on this testing and we are told that the European Union will be very keen to see the results of the testing and

how our Congress reacts to that for the final implementation part

of that.

But that wide array of issues, be it the testing of the system, privacy redress or oversight, we think we are progressing well on

that.

Mr. MICA. Well, I appreciate your response. It did take some

time and I hope the members understand that that question is in

response to all the concerns that have been raised by Congress,

that you should address today.

Just finally, one quick question for Mr. Rabkin and GAO. Now

Congress asked you to look at this system that is being developed,

CAPPS II, for passenger profiling. Tell us today, do you think they

should continue developing and fielding this system and does it

have potential for success or are we wasting time and money, again

based on your observation, the report here and what you have

heard from TSA?

Mr. RABKIN. Mr. Chairman, I think Admiral Stone is right that

the Congress mandated that there be this kind of a system. The

current system in place is not providing the level of efficiency or

effectiveness that is acceptable. Something better is needed.

We are concerned, however, that the system that is being

planned, while in theory seems that it would be effective, that the

basic testing of it and whether it can work and whether the concerns of the Congress can be met are still major unanswered questions.
18

So, while we think that it is appropriate to have something better than what is in place now, whether CAPPS II itself is the answer, I think depends on how well the system is able to be designed and implemented. And that still remains to be seen.

Mr. MICA. Mr. DeFazio.

Mr. DEFAZIO. Thank you, Mr. Chairman. First, Admiral, I would

start off, when TSA does something right I like to compliment

them. The chairman and I both expressed concern about the new

fining program that was announced.

I went and personally checked your website and it was very unclear. From reading the website I had extraordinary concerns about

whether it was being applied uniformly or arbitrarily. The people

I met with told me it was very different than the website page you

were presenting to the public and my staff revisited the site yesterday and that saw since my meeting the page has been revised and

it is much more useful information for passengers in terms of who

might or might not be subject to fines.

I want to compliment the people I met with who did address my

concern.

Just to follow on the Chairman’s line of questioning, it is my understanding in the statute, which we authored, that we gave very

specific authority to TSA to issue security directives with no notice

of rulemaking, no public comment, et cetera.

You are familiar with that?

Admiral STONE. Yes, sir.

Mr. DEFAZIO. OK. Why wouldn’t you just use that authority with

the airlines and I would suggest you would use it with all the airlines, even though you may only want to use the data from one airline so that none of the airlines are singled out in this process as

they have been thus far, although that was voluntary.

But when you go mandatory, if it became known that you were

only mandatorily getting the records of one airline, there might be

repercussions for that particular airline from passengers who have

concern about how the data is going to be used.

But if you get it from all the airlines, even if you weren’t going

to use it and you did it through an emergency rulemaking, we

wouldn’t have any further delay in this area. Couldn’t we just do

that?

Admiral STONE. That would be an option, too, sir. Our recommendation to the department is in order to instill the trust and

confidence and to provide notification to passengers that we will be

taking data and testing it as part of CAPPS II.

It is our belief that the notice of proposed rulemaking, since that

signal that we are respecting that right to privacy and people can

make decisions about that, in fact I would like to add that our approach will be that we want to get that out and then allow the airlines time to tailor their IT systems to provide us the data which

we believe will take a couple of months to do that.

But also it will allow us time to go by with that notice of proposed rulemaking out on the street, so the traveling public knows

we are going to be doing that testing and it is our intent and we

recommend that when we do the testing we look at historical data,

that we then say that we are going to start at a—pick a particular

month and then go back and look at that month and then filter out
19

those items that would be during the actual operational test phase

so that we are not in the business then of impacting on the actual

operations of the day until we see what the impact will be.

Mr. DEFAZIO. Right. That is why I understood that you were essentially going to do a computer simulation, which is why I was

suggesting you might do it an alternative way. Well, anyway, good

luck with that.

Admiral STONE. Thank you, sir.

Mr. DEFAZIO. ID theft, it seems to me the Achilles heel of this

whole system is a sophisticated terrorist and they seem to be quite

sophisticated and that assumes an identity and that identity has

no detrimental characteristics attached to it and they assume it in

such a way that it is not going to trigger alarms.

I do not understand how we are going to deal with that unless

you are going to develop as one of the subsequent people will testify, if you are going to develop a whole bunch of new criteria that

you are going to ask the airlines to ask height, weight, color of

eyes, et cetera.

Of course, that would be, again, self-declared on the part of the

person who could already have developed this identity with that

height, weight, et cetera. But in any case, the data you are going

to get is going to be name, address, phone number, et cetera.

Does someone live at that address? Have they lived there for a

while? Do they have whatever? OK, great. But is it that person?

We do not have the foggiest idea, and we won’t have the foggiest

idea.

So, it seems to me, this is just a tremendous potential problem,

even after we go through all of this, even after you ever do resolve

the privacy concerns and the concerns of Congress and the

logistical problems.

It seems like again, kind of like Star Wars. We are going to wait

there with an effective system for missiles that are not coming.

Meanwhile, someone sneaks under it with nuclear weapons in a

container.

This is the same thing. Someone is going to sneak through the

system with a valid, you know, with an ID card with a history and

a background and all that, but it just happens that they are not

really that person.

Admiral STONE. Our view is that today when you look at where

we are on ID verification at the airport, presenting the driver’s

license——

Mr. DEFAZIO. Where you present it to someone who does not

even work for TSA, who is paid minimum wage.

Admiral STONE. Yes, sir. This is going to be a quantum leap

going from that low percentage of verification of ID with great ambiguity to a 99 percent level, determination of ID and then——

Mr. DEFAZIO. Yeah, but have you heard of ID theft and manufacture? You can buy passports on the street in Europe. In the U.S.

you can buy driver’s licenses at any college.

What are we talking about here? We have a system of national

drivers’ licenses that are easily counterfeited, what is our confidence level that that person is who they say they are or they have

not assumed an identity. I do not get where we are.
20

Admiral STONE. We believe then the pulsing of those commercial

databases, if your VISA card has been taken, will result in CAPPS

II detecting that anomaly because the card will have been reported

as stolen and that you will then have that ambiguity reflected in

your score and you will go to a secondary screening.

Mr. DEFAZIO. I don’t know much about this stuff. I am on Homeland Security. I am on this committee. I struggle with it. I read

novels. You know, you go and find someone who is dead. You assume their identity, their Social Security number. You develop an

address, use your visa card for a year or two. These are patient

people.

I still believe the only way to deal with this is to have a bulletproof or bombproof screening system for all passengers, all employees and all people who have access to the air side of the airport

and keep the threat items out.

If you get a threat individual but they have nothing to act with,

well then the other passengers will take care of them or the air

marshals. So, I just do not think we are headed down a path here

that is going to work.

If I could, I don’t have that much time, we will perhaps discuss

the ID theft issue again later. I have asked now a number of people

from TSA and it is a point that Mr. Pascrell brought up, which is

that we have observed at certain airports all of the airport vendor

employees are routinely allowed to bypass security entirely and file

in and out while you have over here the pilots, the flight attendant

and all the passengers who are having their moustaches scissors

confiscated, I am a moustache guy, or their cuticle scissors or whatever else.

But over here we have these unknown people wearing bulky

jackets, carrying things, just walking in and out of the airport. I

have asked now for months, I was told, well, it’s not really common, and some airports are doing it and some are not. We observed

it at Detroit. I have been told that we are trying to find out what

airports allow that.

It seems one simple e-mail from you to all the FSDs that says,

at your airport who is allowed access to the terminal without going

through screening? Is anybody and if so, whom? We could have the

answer. But I have been trying to get that answer for a year now,

having observed it a year ago in Detroit with the chairman.

I cannot get the answer, although, for instance, I was at Portland

last Thursday, flew in and I noted a pilot who walked up to the

people at the exit for security and he said, hi, hi, and he carried

his bag and walked around and went in.

I am pretty confident of pilots, but I didn’t even notice that they

checked his ID to see. Of course, we do not have uniform IDs. But

anyway, he just walked around security while the lines went down

the terminal with all the other people.

Now is that routine at Portland? I don’t know. Where are we allowing who to bypass security? I hear in Chicago that the flight attendants have to go through security and all the other workers do

not who are coming in on certain buses.

I mean the system is so loophole ridden, I am not sure again. We

are investing all this stuff in CAPPS II and we have all these other
21

people who are just like avoiding the system altogether who are potential threats.

So, I would really like that list and it has been promised any

number of times, but of course, it has not yet been forthcoming.

I think the chairman would like it, too. I don’t know, probably,

just so we would know.

Then finally, just to GAO, if you would like to address the ID

theft. Secondly, is CAPPS I better than nothing? We were talking

about wanting to get away from these 300,000 people a day. Well,

I figured out about the one-way tickets. The terrorists did, too. It

was published on the front of the newspaper.

So, they are going to buy round trips. If they do not have a lot

of money, they will book in advance. So, the point is this is a stupid

system and every once in a while I have to buy a one-way ticket.

Then I get the big black S and I have to go through security. Is

it better than nothing?

Mr. RABKIN. In terms of identity theft, I think you are right. I

think there are problems. It may be the one percent that Admiral

Stone referred to. It may be more than that. In terms of CAPPS

I, to the extent that it keeps people off planes that ought to be off

planes, then it is better than nothing.

Mr. DEFAZIO. Why is it better than nothing?

Mr. RABKIN. Just because it subjects some subset of people to

more intense screening.

Mr. DEFAZIO. The more intense screening is probably an efficiency issue. It just takes a little bit longer. Everybody goes

through screening. Everybody on an airplane has gone through

that. To the extent that the technology works, then prohibited

items are kept off of the airplanes.

Mr. RABKIN. Unless an employee who works at McDonalds in the

airport carried a gun around and gave it to someone on the other

side of security.

Mr. DEFAZIO. That is correct. So, go ahead. I am sorry.

Mr. RABKIN. Are there some immeasurable benefits as a deterrent, if it makes people feel more secure, is it worth the cost is a

different question that we are not prepared to answer at this point.

It is the same question that could be asked of CAPPS II, of

whether the benefits are worth the costs.

Mr. DEFAZIO. OK. Thank you. Thank you, Mr. Chairman. My

time has expired.

Mr. MICA. Thank you. Mr. Rehberg, I think you are next.

Mr. REHBERG. Thank you, Mr. Chairman.

Admiral, the one issue that I have not heard addressed is specifically about the partnership, obviously, that has to be created with

the airline industry.

I have not heard any discussion about any kind of a cost-benefit

analysis that is done to try and talk about the cost to the airline

industry to try to get your computer system to match with their

computer system. Can it in fact work?

Will you receive cooperation from the airline industry or from the

ticketing agency or expedience on the others? Could you address

the cost as you perceive it?

Admiral STONE. Yes. We have a very close partnership with Mr.

Jim May, the head of the ATA, who I believe you will be hearing
22

from him later this morning. In fact we now have a group that

meets.

An agreement has been reached which TSA, ACI, AAAE and

ATA to use the Boeing model in which we will be able to look at

our nation’s airports for three things. The three major projects we

are looking at, one is the issue that Mr. DeFazio mentioned on access at our nation’s airports.

What would be the cost to invest in guns, gates and guards versus the enhanced background checks that TSA proposes? Additionally, they are going to look at the growth of our Nation’s airports,

the ACI and AAAE and the airlines are obviously very close to that

and they are going to advise us on how that should affect the shaping of our screener workforce.

So, this partnership is alive and well. When I have talked to Jim

May and others in the airline industry about the costing of this and

the fact that the government will take the system over, in the near

term obviously, the cost to the airlines of retooling their IT and

their software to be compatible with CAPPS II is of some concern.

But the mid-to long-term benefits of that, they no longer as an

industry have to fund the system which we have mentioned here

is not as efficient and effective. It is not the system that many of

us really want. I think that has caused them to be very supportive

of CAPPS II and they have said that.

Basically, they would like to move forward as quickly as possible

on it and just make sure that the privacy and oversight redress is

in place so that in face when we direct them to provide that data,

that they are being good public servants for their passengers.

Mr. REHBERG. Thank you. My second question has to do with

Part 135, the Air Taxi and Commercial Charter. The question is:

I heard Mr. Rabkin from GAO talk about the expansion being a

problem. I don’t know if it is necessarily an expansion, but have

you put up any kind of barriers or suggestion that those passengers

are going to be checked in the same way or it this included in

CAPPS II in your envisioning more security?

Any terrorist can go and charter an airplane and jump on there

and do the same problem that we are talking about, the 300,000

that are being checked in our commercial airports.

Admiral STONE. Yes. The charter program that we have in place,

currently it is not envisioned to incorporate that into CAPPS II and

our current program that we have in place for the 12(5) program

and other measures that we take, that is our current plan for security for those type of aircraft.

Mr. REHBERG. Mr. Chairman, I won’t ask any more questions so

somebody else can ask them.

I want to thank you for staying on this issue. You know, I

haven’t been on the committee that long, just three years, but I do

remember the debate after September 11th. A lot of fingers were

pointed at the FAA for not having the screening, the testing, the

penalties.

You in Congress said do it in 1994, do it in 1995. They never got

around to it. I am hearing a lot of the same kind of bureaucratic

mumbo-jumbo of not getting this thing done. So it is going to be

incumbent upon you as chairman to stay on top of this.

I thank you for this hearing and for your continued interest.
23

Mr. MICA. Thank you. Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman. Admiral Stone, I would

say I am glad to see you again. I am not so sure you are glad to

see me or this entire committee again, two days in a row, but we

certainly appreciate the way you responded yesterday.

For you and Mr. Rabkin, I do have a question about horror stories and liability because my own concern is that we may have

failed to solve the problem at the testing gate.

Let me do that, you know, coming out of my own discipline as

a law professor by giving you a hypothetical. You know, Eleanor H.

Norton has an important business deal. So she goes to get on a

plane and she is stopped. She is stopped because there is another

Eleanor H. Norton, Washington, D.C.

Now, you have different addresses, presumably for these two Eleanor H. Norton. It says Eleanor H. Norton, let us say, Arab-American, Washington, D.C. You have perhaps different addresses. Is

that going to be enough for Eleanor H. Norton to get on a plane

so that she does not miss this million dollar deal or are you going

to need to look beyond the addresses and if she does miss, who

should pay?

I think that the reason that the airlines are fearful of doing anything, and as their lawyer I would have told them do not touch

this. If you mandate this on them, I would say sue them to keep

from having to comply.

So, how do you deal with Eleanor H. Norton, Arab-American.

Here she is not on vacation. That will just make her real mad. But

here you can give her real losses, one. How much does she have

to go through so she can make that plane?

Do you really envision that she can make it with an identical

name, and two, if she misses it, what should be the liability?

Admiral STONE. I will take that first and then follow up by GAO.

The process of CAPPS II and the ambiguity in the address or the

name will not result in that individual then being referred to law

enforcement.

In other words, the debate is that oh, that ambiguity then may

result in me having to go through secondary screening, much like

a random selection would be.

Ms. NORTON. Well, at least you do not call the law on me, which

really makes the liability question very real, until, perhaps I am

on the watch list.

Admiral STONE. If you were one of this very small group of individuals that were matched against a known terrorist list and referred to law enforcement, that would be the issue. But the ambiguity in your address would just result in a score that may make

you a selectee for secondary screening and not impact whatsoever

your making your flight.

The point which is misunderstood about CAPPS II is this

300,000 folks that we are looking at today that are delayed having

to go through secondary screening, we are stating that CAPPS II

will dramatically reduce that so that those individuals will get to

the gate quicker and help us process people through.

So, in fact, there is a benefit, a goodness to CAPPS II of not hassling individuals who we are currently doing under protocols that

we are not fully satisfied with in CAPPS I and facilitate that flow
24

out to catch your flight and get you on your way, not to make it

more difficult.

Ms. NORTON. Assuming we could ever get all the accurate data,

would both of you deal with the liability issue for me, please?

Admiral STONE. On the hypothetical of what would happen if

under CAPPS II a person was referred to law enforcement and

then found that they misinformed them and that there was a law

suit involved in that, I would like to get you a more profound answer through counsel on what would be that particular case and

what the facts were rather than give a sweeping statement on how

that particular individual case would be handled.

But I wanted to echo that web that CAPPS II, the instances of

inconvenience which we are currently finding where your people

are being delayed while we check the no-fly list and potentially

missing flights and being held, this is a reduction in that because

of the verification.

Ms. NORTON. Timeliness is going to be everything. What do you

think about that question and certainly about liability, Mr.

Rabkin?

Mr. RABKIN. In terms of timeliness of the passenger getting

through the screening, if the passenger is sent to secondary screening, it may take a little longer.

It really depends on the resource allocation decisions that TSA

makes and how many people they have and how much technology

they have there to handle that, which in turn depends on their projections of how many people are going to be sent there so they can

balance these needs, which, of course, depends on a lot of the assumptions and the planning for the system, which we are still

waiting to see.

In terms of the liability, I really do not have an answer for that,

so I am going to pass on that.

Ms. NORTON. Admiral Stone, may I suggest that this program is

going nowhere until you get an opinion on liability and the notion

of saying, hey, there is no liability and asking Congress to say

there is no liability. I also think that is a non-starter.

You have to deal with what happens to people who in fact in any

imperfect system will be misidentified and will have major losses

as a result.

Thank you very much, Mr. Chairman.

Mr. MICA. Well, I think we are going to have to recess here.

There are three votes, if members have not heard the announcement. What we will do, I am going to have to ask you to stay. It

will probably take us about 20 or 25 minutes to complete those

votes.

We will start ten minutes after the last vote has started. We will

try to wind it up pretty quickly afterwards.

There may be other members with questions, so we will stand in

recess until that time. Thank you.

[Recess.]

Mr. MICA. I would like to call the subcommittee back to order.

I apologize to our witnesses. It was a little bit longer than we expected. Sometimes we get into these extensions of time on the Floor

and that occurred.
25

We appreciate your being with us. We may have a few more

questions from members as they return. We will see. I do want to

state that since we had been interrupted, we will be submitting a

series of questions to the witnesses for their response.

Let me check with Mr. DeFazio at this time and see if he has

any questions.

Mr. DEFAZIO. Thank you, Mr. Chairman. Mr. Chairman, this is

a relatively new issue; well, not a new issue, but a new approach.

I mean one of the mandates, Admiral, as you know, of the original

legislation was that we not only screen all the passengers, flight attendants, pilots, and in my opinion, all the people who have access

to the terminal. I visited that earlier.

But also, we are supposed to be providing screening on the air

side. At many airports that is not happening.

I just have seen a story that at JFK they are going to begin implementing a system for air side employees which sounds kind of

like a breakthrough. It involves a portal, which I think I mentioned

earlier in terms of screening passengers.

I know I have asked some of your colleagues or predecessors

about that and they keep raising the privacy concern. I keep telling

them that the industry tells me they can put up any figure you

want.

It does not have to be your body that they are seeing. The idea

is to find whatever contraband you are carrying like a suicide belt,

which I think is a very real threat.

But apparently, they are going to implement this portal system

for workers out there. Are you familiar with what they are proposing and/or doing at JFK? Do you think it has potential applicability

to other airports?

Admiral STONE. I am familiar from the descriptions that I have

read of it, sort of a general overview of that concept. I am very familiar with the issue of physical security at our Nation’s airports.

Our approach to date has been to place heavy emphasis on background checks rather than in a guns, gates and guards approach.

I have met with my European counterparts to discussed how

they do it in the U.K. and in France and in Mexico to get some

comparative examples of the approaches.

I have also met with ACI, EEEA, and other partners on the security effort and discussed this very issue.

Our approach has been on enhanced background checks rather

than the approach of physically screening those on the air side. The

thought is that there are, within the confines of an airport, ample

opportunities to attain, once you have been screened, explosive materials, flammables, and build-your-own devices.

To invest large sums of money on physical screening rather than

on enhanced background checks, it is our view that that would be

a costly endeavor with not the kind of results that we would expect

because of the availability of these materials that are within the

natural work environment there.

Mr. DEFAZIO. Well, if you consulted with your colleagues in the

U.K., then you found that in fact that they do not believe background checks are adequate; that particularly static background

checks are not accurate because someone may have become compromised in some way.
26

They may have extraordinary gambling debts, may have developed a drug addiction, who knows, whatever. But they do not feel

that that is adequate. They do both. They do background checks

and they physically screen everybody.

Mr. Mica and I filed through with employees carrying their tool

boxes and things and everything in the tool box was checked in addition to the person being physically screened, as we were when we

were going in and out of security there.

So, do they agree? Who do you find that agrees with your theory

that this is adequate? I know the Brits do not, so who of your other

European thinks this is adequate?

I understand, I was just talking to ranking member Oberstar and

he tells me at Charles de Gaulle that in fact they have a very, very

high level of screening, including biometrics for people who have

access to the air side.

The French are doing something at a much more secure level.

The British are doing something at a much more secure level. So,

who is it in Europe? You said you met with European colleagues

who agree with us that the background checks are all you need to

do?

Admiral STONE. When I said I met with my colleagues, it was to

find out what their procedures are. I have met with them. They

have a different approach. When I brief them on our 445 Federalized airports and our approach on background checks, they responded that they have much more of a physical security approach

where they have invested in their very small handful of airports in

that approach.

When we look at that, TSA assesses what type of approach best

fits 445 Federalized airports. It is our view that the enhanced background checks and then the regulatory functions that we have to

review airport security plans, much like we did at LAX with inspectors to ensure that those regulatory requirements are met, we

view as the best approach for that, rather than putting large sums

of money into a program on physical security checks when in fact

after those checks are conducted, the argument is that you still

have those materials resident right in the very work environment

that those employees are in every day.

Mr. DEFAZIO. Well, yes, certain materials, fuel and those sorts of

things, but not plastic explosives, not guns, not other sorts of prohibited items. Those are not, I would hope, available inside the secure area of the airport on a daily basis.

So, I am just not certain of this and I am not certain that we

anticipated this would be the response and/or the end point for

TSA when we wrote this legislation.

OK, describe to me an enhanced background check. How often is

the person’s background checked?

Admiral STONE. The current system that we have today has the

fingerprint and the criminal history check conducted. And also we

run that against our own lists that we have at TSA for no-fly and

selectee.

However, we think a more robust background check is appropriate, to have that conducted through the NCIC with a much more

detailed look at that, then being also run against terrorist screening center and our ONRA facility which has databases unrelated
27

to CAPPS II that we are currently using for international air crews

that come and go from our country.

We think that more robust background check of employees at our

airports is of greater value to us than the physical security for the

reasons that I gave, because of the ability very easily to concoct

within the environments of a big airport, whether it is in Charles

de Gaulle, and I argued this within my counterparts, to develop

within Charles de Gaulle or Heathrow a collecting of these materials such as fuel and other items and building the device then

from within.

That was the argument that I proposed with them and they have

just chosen a different approach with regard to physical security at

eight airports than we have.

I think it is arguable that this intent and the desire to find out

about the backgrounds of those that have access is a risk mitigator

that is appropriate for that threat.

Mr. DEFAZIO. So, every person who has access on the air side,

people who work for the caterer, the cleaners all of those people,

every employee of every one of those firms is having this enhanced

background check?

Admiral STONE. We have not gone down that road. That is our

proposal when asked what would you do today with your background checks that you have at your nation’s airports to raise that

level.

Mr. DEFAZIO. So, we do not have in place a system of enhanced

background checks for people accessing planes on the air side now?

Admiral STONE. No, sir, we do not. That would be our proposal

when asked what would you do to enhance the current level of security that you have at our nation’s airports for those in the backdoor areas.

Mr. DEFAZIO. I guess given the directives from the original legislation, how is it that we have not gone to enhanced background

checks?

Admiral STONE. Because it was viewed upon initial review of airport security that the airport security plans that are tailored for

each individual airport which have in each of them the backbone

of background checks where the airport issues that badge was an

acceptable level of security based on the known risk.

So, we have evaluated that and when we look towards what

would we do to enhance that, our answers, we think, enhanced

background checks would be the way to go on that rather than——

Mr. DEFAZIO. OK, but you do not feel we need to enhance it. So,

we do not need to enhance air side security. The minimal background checks are adequate?

Admiral STONE. Our proposal from TSA is that when we have

looked at that and said we have this level of security at our Nation’s airports, what would you do to improve it, we would propose

enhanced background checks.

Mr. DEFAZIO. Right. Do you, in your opinion, think we need to

improve it? Do you believe that we need a higher level of security

on the air side and if so, when are you going to propose that?

Admiral STONE. Right now I am working on that within the department, enhanced background checks at our nation’s airports as
28

a risk mitigator to reduce the potential threats within the airport

itself.

Mr. DEFAZIO. Admiral, I think if the flying public that is standing patiently in very long lines and saying, I understand why I am

standing in a long line, I want to be safe when I fly, I think if they

knew that at some unknown number of airports, unknown people

who work for airport vendors are filing past, carrying bags, suitcases, you know, whatever, large coats, with no security; that mechanics, cleaners, people who work for catering companies who

come and go with great frequency are accessing the airplanes with

no security and without even the enhanced background checks, I

don’t think that they would feel real secure and I do not think that

they would be very happy that they are standing in line for an

hour.

Why are they the suspects? Because there was one operating pattern once where it was the passengers as opposed to employees.

These people are smart enough not to try and repeat the same

thing and maybe come at it another way.

Plus, there is still a mystery of how did some of those sheetrock

knives get on planes, et cetera, which seemed to have come on from

ground crews of some sort, cleaners, caterers, whatever.

Yet, you do not feel it is necessary to even go to enhanced background checks on those people. I realize that there is a cost involved. But it is a cost that is dwarfed by the potential for one incident and the loss of one plane and the loss of those lives. I cannot

believe that you are not moving forward.

In Europe we have enhanced background checks and physical security and here in the United States we have minimal background

checks and no security and we are the people whose planes were

hijacked and used as weapons. Now what sense does that make?

I mean no offense, but I mean to say if we needed higher security, we might do this, what are the orange alerts about and what

is all this stuff about airplanes and diverting airplanes? We are

just focused on the passengers.

Well, you have to get something to the passengers if they are

going to take over the plane or maybe it is not going to be the passengers this time. Maybe it is going to be a bomb smuggled on

board.

I just do not find that acceptable. I really have to tell you I do

not. It is just extraordinary to me that this long after that fateful

day and more than two years after we passed the legislation that

this is where we are at.

At least to this member in the minority this is not acceptable.

I don’t believe that were this widely known to the traveling public

that they would find it acceptable.

They also might say, well, why the heck am I standing in this

line for an hour and a half and having them confiscate tweezers

and things from me when these other people are filing through and

could be carrying guns, bombs, when we have no technology to detect suicide belts or explosives in briefcases when cleaners and

other vendors have free access to the airplane and nobody is checking the stuff they are carrying on.

I am just totally bemused by this, and alarmed, to tell the truth.

I am not at all satisfied, but I will apologize for the members who
29

did not come back because I had a number of members tell me that

they wanted the panel to remain because they did have questions.

I do want to at least apologize for having kept you all here and

them not having come back. Maybe there are some on the Republican side.

Mr. MICA. We have some members who have returned. Let me

recognize Mr. Shuster from Pennsylvania and then we will go down

the line here.

Mr. SHUSTER. Thank you, Mr. Chairman. Thank you for being

here today, Admiral. I have a couple of questions. First on the

CAPPS II system, originally, I believe, TSA said they were going

to put a system in place that would pull data through the reservation system of the airlines. Has that changed? Because I am hearing that they are talking about now pushing it through.

My understanding is that it is very expensive and you get less

reliability on the information when the airlines are pushing it to

you, versus TSA setting up a system that pulls the data through.

Can you comment on that?

Admiral STONE. Our initial intent is to have the airlines, during

the testing phase, push that to us and then as we develop the test

and see how that works, I am aware that the airlines would like

to discuss with us alternative means of providing that data for the

operational phase.

Mr. SHUSTER. Does not it make more sense to pull it through because then it will be a uniform system and everybody is going to

be providing the information that you want and in the configuration that you want?

Admiral STONE. I will have to get back to you for the record on

that on the pros and cons of those different approaches.

Mr. SHUSTER. OK, thank you. The second thing, when you are

going to have a rulemaking here compelling the airlines to provide

you with that information. Will travel agents also be included in

that? Will they have to provide you with the names and different

pieces of information from the passengers?

Admiral STONE. That has not been determined. In my discussions with ATA and others they have been a proponent of that approach. We have said we would study that and make sure that that

is duly considered as we look at the testing phase and then also

the operational phase.

Mr. SHUSTER. It seems to me to make some sense. About 60 or

70 percent of the reservations that are booked are through travel

agents.

Mr. DEFAZIO. Would the gentlemen yield for just a second?

Mr. SHUSTER. Yes, I would.

Mr. DEFAZIO. I would hope that you do not just go to the ATA.

The ATA represents the airlines. The airlines and the travel agents

do not necessarily have the warmest relationship, having been deprived of virtually any capability of making a good livelihood by the

airlines.

I have been told by the travel agents and their representatives

that there has been no direct contact or any consultation with them

and they still do a preponderant amount of the reservations.

I thank the gentleman.
30

Mr. SHUSTER. And I would urge you also to ask passengers if

they are willing to have background checks and pay a fee to do

that. My conversation with many, many business travelers said

they would be willing to pay that fee to help speed them through

the airport, take off some of the burden and reduce those lines.

What status is the Registered Traveler program in at this point?

Admiral STONE. TSA believes firmly in proceeding down the road

of Registered Traveler. We anticipate beginning a pilot in June of

this year. Airports under consideration are Boston Logan, Reagan

National, Dallas Love, Knoxville and Palm Beach International.

We have airlines, United Airlines, U.S. Airways, Southwest,

Northwest Delta and American that are interested in partnering

with it. This will be a voluntary program and we are looking to

focus on groups also that we think will help us address some other

risk areas at our nation’s airports and also facilitate their entry

into the sterile areas.

This includes Leos and Fades and other military personnel, but

also the target population will be one in which we are interested

in getting at frequent travelers so that we can understand what

their needs are.

A key piece of this is going to be the biometric. We think it is

critical that RT have a biometric in it so that when combined with

CAPPS II you will not only have the benefit of the increased verification of ID which CAPPS II will have a significant jump in

terms of the reduction of ambiguity in ID, when you combine it

then with a biometric, it is at the point there to address those

areas of identity theft and other things that are on our list.

So, this program of combining a biometric and ensuring that we

have a full commitment to Registered Traveler this summer is a

high priority for us and one that we are eager to move on with.

Mr. SHUSTER. That is very good to hear, that we are moving forward. I know that you are new to this assignment, but it is something I had hoped we would have seen a year ago or sooner. What

do you anticipate the testing phase will take before we can have

a full-blown program?

Admiral STONE. Our plan is the June commencement with a 90-

day pilot and then reporting those results out.

Mr. SHUSTER. That is great to hear. I think that is something

that would really help our airports and our airlines in shortening

these lines that we see, especially coming into the travel season.

Thank you very much.

Mr. MICA. I thank the gentlemen.

Let me recognize Mr. Ney.

Mr. NEY. Thank you, Mr. Chairman. I apologize. I came in a little bit late, but following up with the gentleman from Oregon’s

question, right now, as I understand it, like the airports I travel,

there are hundreds of people that go through zero screening device

that work inside the airports.

If I can follow that up, if that is the case, do we ever intend to

screen them? I mean why do anything if—and this is not to also

degrade anybody, but some of the people that are going through

are making low wages and it would be easier to pay somebody

$10,000 to carry a gun through instead of trying to pay somebody

$100,000. It could be a tempting factor.
31

Admiral STONE. The best reflective example I can give is take an

airport like LAX where you have 60 million passengers a year. So,

I got to see first-hand when I was out there, what is the airport

security plan, what is my inventory of inspectors to inspect that?

We had programs where Operation Tarmac came through and

there were 30,000 badged employees in LAX and only 30 individuals were found for that.

When you look at that percentage, it gives you a high confidence

in the credibility of the badging program. It does not mean that it

is perfect; that it is the silver bullet we are looking for. But there

is a validity to the background checks at that airport and at the

other airports that we have across our nation.

It’s not perfect, but when you combine those background checks

with an aggressive enforcement of airport security plans, I believe

that provides acceptable risk.

It is not due to luck that LAX, which is in my mind probably the

highest threat airport in this country because of the fact that it

was visited at the time of the millennium. The reason why there

has not been an attack there, I believe, is because of the deterrent

effect of having a very aggressive airport security plan and then

regulating that an inspecting it.

Mr. NEY. But they still do not go through a detector.,

Admiral STONE. No, sir, they do not.

Mr. NEY. I am not going to go into details, but here in the Capitol we have changed a lot of things over the last couple of years

because you can background all you want, but if they do not go

through a detector, you know, it causes a horrific problem.

Let me get to CAPPS II. I do not want to eat up all my time.

Let me ask you a question. Information is poured in from different

agencies, as I understand this. Let us say an individual, would

they look at their passport information or visas to places they have

gone to?

Admiral STONE. Right now we are working with CVP on the

international flight aspect of that because in fact they have had the

responsibility for ensuring that the review of the passports and the

checking of those individuals is done prior to entry and departure

from this country.

Mr. NEY. I am talking about domestic travel.

Admiral STONE. Oh, for our domestic?

Mr. NEY. Information, yes.

Admiral STONE. For us traveling——

Mr. NEY. Not if you are traveling domestically, but information

is poured into this databank and then they type in a name. Somebody is traveling from, you know, D.C. to L.A. They type in their

name. Would it show that they have had visas recently to certain

countries?

Admiral STONE. No. The concept of CAPPS II is that as a minimum you provide your name, home address, phone number and

date of birth. Those four pieces are required. Then if you have additional passenger name record information, P&R data where you

have included your VISA card or whatever it is that you have decided to provide, which is currently provided today in that passenger name record, that is the information that will be used to
32

then pulse the commercial databases in order to get verification of

ID, to find out whether there is ambiguity there.

Then that is run against the government databases, the ones

that I referred to earlier, the terrorist screening center, to see if

that is a known terrorist. So, that would be the process by which

that would be followed.

Mr. NEY. I want to go back to the point that was made earlier

about that because let’s say it is John Smith, perfect record; he has

not had anything stolen, has not had a credit card taken and it is

John Smith, you know, John Doe Street in St. Clairesville, Ohio.

I know about John Smith, so I create a fake driver’s license that

says John Smith, St. Clairesville, Ohio, and I create that.

I call in my ticket. I give the information and I walk down to a

person who is standing there and like I would, flying back from

Reagan today, and I hand them an ID and they say well, that is

John Smith. John Smith checked out, because I don’t know that is

John Smith because they do not check the IDs for fraud.

Admiral STONE. That’s right.

Mr. NEY. So, I don’t know why we are messing with all this. Why

do not we just go to an iris scan or facial identification point?

Admiral STONE. I think it is important that we have a way in

which we can identify who the individuals are today and run it

against a known terrorist list. We need that.

Mr. NEY. But the terrorist is not going to say, oh, this is whoever. Gee, you know, my name is not going to be on it. They are

not going to do that. They are going to give you a fake name. They

are going to produce an ID and go down to somebody that is standing there at the gate or at the entry point that does not have any

way to scan that ID.

They just say, oh, that is your face. A terrorist is not going to

put their name down. So, to me, you know, I think the security you

are doing at TSA is good. People are searched. But I am just not

sure this is going to do anything, anything at all.

Admiral STONE. I think, number one, it is going to significantly

enhance our ability to detect known terrorists if they are flying on

aircraft by this verification of ID and matching.

Additionally, right now when you have this ambiguity in your

identification, CAPPS I does not have that person referred to secondary screening. CAPPS II will. That ambiguity will result in

their being given additional opportunity to screen that individual.

You are not going to apprehend them as a known terrorist, but

it is that ability to factor in additional risk and then respond to

that with additional screening that we think is a significant enhancement.

Right now we are doing it to almost 300,000 travelers a day, with

the wrong people in many cases, obviously, that we are looking at.

Mr. NEY. So for the 400 that go through Pittsburgh Airport that

could have a gun?

Admiral STONE. Those people are not accessing aircraft though.

They are not going on board that flight .

Mr. NEY. I can meet him at the restaurant and I can get the gun

from him and walk on that plane. I travel out of Pittsburgh. I can

give somebody $10,000, that’s a lot of money, $20,000, $30,000.
33

They go through. They go to a restaurant. I go meet them. I take

the gun and I walk right to the plane.

I mean everybody in the country knows this. I don’t like to tell

secrets. I wouldn’t say security I oversee here in the Capitol, but

I will tell you this: The whole country knows that. I don’t know,

nothing is perfect. Neither is our system here.

But there are huge loopholes I think you can drive several Mack

trucks through in what we are doing. But I will still argue with

you that you can have the database and it is good to check databases.

But that fake ID can be created like that and that person at the

gate just looks at the ID. It is your face. It does not have to be

identity theft. They just target somebody. I think that is where the

failure of the system is.

I am not questions about databases as much as the end result.

There is nothing to verify that that is actually in the picture unless

you do an iris scan or a facial identity.

Admiral STONE. Sir, I think that the issue of each one of these

layers of having a CAPPS II system and then having hardened

cockpit doors and FAMs and FFDOs address the various gaps that

are mentioned that may exist in each one of those programs. It is

the cumulative effect of those layers that we think mitigates the

risk.

Mr. HAYES [ASSUMING CHAIR]. Admiral Stone, good day. As Representative Norton said, I’m glad to see you two days in a row. Has

TSA conducted a cost-benefit analysis to determine what the airlines have to spent to upgrade their program to meet what you are

anticipating?

Admiral STONE. I do not have the data, but I would like to submit that for the record of what the airlines are currently expending

and what the forecast costs are for that because we believe it shows

the tremendous advantage of us taking over that system and relieving the airlines of it.

Mr. HAYES. Will CAPPS II operate outside of the country and if

so, how will you handle the red passengers?

Admiral STONE. We intend on being able to reach cooperative

agreements with our international partners on passing that information to their law enforcement so that they can take appropriate

measures to mitigate that risk under their own laws and authorities.

Mr. HAYES. Thank you. Mr. Rabkin, in your opinion, do you

think that they can deliver a CAPPS II program completed in a

reasonable amount of time?

Mr. RABKIN. Well, it is a good question as to what is reasonable.

I would call on TSA to better define that, to provide some estimate

of a schedule that assuming that they get airline data to test the

system in a reasonable amount of time of whatever time they predict for that, how long it would take them to develop policies and

procedures to actually implement the program.

Mr. HAYES. Thank you. A resolution would have, among other

things to do with Congressman Shuster’s question about whether

fully appreciated data will be accomplished.
34

Another question, Mr. Rabkin, do you think that it can be delivered, CAPPS II, as it is described? Do you think it is going to have

to be pared back to make it workable?

Mr. POWNER. I will take that. Clearly, it has already been pared

back a bit, the initial operating capability. Not only are the schedules being pushed up, but the functionality is being reduced.

That’s one of the questions we have in the recommendation in

our report where we want to clearly see the functionality defined

through initial operating capability and also in those future builds

as we achieve full operating capability.

Right now that is unclear, exactly what functionality is to be delivered when and at what cost.

Mr. HAYES. A follow-up question: What level of confidence do you

have that the government security bases that are at the heart of

the system can be successfully integrated and can function without

generating an unacceptable level of false positive?

Mr. POWNER. The confidence we have in the ability to integrate

government databases really resides in the ability of TSA and their

contractors to effectively test those interfaces associated with those

government databases.

For us to predict, it is really not appropriate. We would want to

see the facts based on the results of the integration tests with

those various databases.

Mr. HAYES. Mr. Rabkin, one more question. A recent GAO report

about CAPPS II and privacy-related issues, the report said those

issues are not resolved yet. Are you confident that TSA can resolve

those issues?

Mr. RABKIN. I think that TSA ought to be able to develop policies

and procedures about how they will handle questions of privacy.

That can be done independently of the testing of the data that they

get.

We haven’t seen those policies and procedures, but we think that

they ought to be able to develop that, yes, sir.

Mr. HAYES. Thank you. Counsel just reminded me that Chairman Young has this room reserved for 1:30.

Mr. DeFazio?

Mr. DEFAZIO. Thank you. I will move along quickly, Mr. Chairman. Just a couple more points and a question, Admiral Stone.

Admiral STONE. Sure.

Mr. DEFAZIO. One of my colleagues is introducing a bill. It is

something that I have been mentioning to all your predecessors

and formally to the FAA and others, which is if we are still focused

on passengers and we are diverting flights and all that, a key vulnerability on those flights is the fact that the pilot, unlike El Al,

where they are sealed in a self-contained unit, have to come out to

use the lavatory and/or chat, which I have noticed them doing more

of again recently, and have a cup of coffee and/or get food brought

into them.

You know, United showed me more than a year ago a very, very

inexpensive device which would not require taking a plane out of

service. It could be installed overnight. It is essentially a mesh door

and weighs virtually nothing. It stretches across, blocking the cockpit area. Now, it certainly wouldn’t keep a determined group of

people out for as long as a reinforced cockpit door, but it would cer-
35

tainly give a pilot adequate time to get out of the lav and get back

up front behind that door when someone started attacking that.

I would really like to see the TSA move ahead with such a requirement. It is very minimal and I would certainly be willing to

work with my colleagues here to look for reimbursement as we did

on the cockpit doors because it is just absurd.

Hijackers are not going to be stopped by that, especially since

they haven’t gotten the training that some of them expected to get.

But beyond that, just back to this other issue that Chairman Ney

raised and I raised and others have raised about people who work

in the airport.

At LAX, a person who works at LAX, who is working, let’s not

pick on a corporation that exists, at Big Burger, they theoretically

have a background check by Big Burger. Big Burger does it or the

airport does it?

Admiral STONE. The airport does that.

Mr. HAYES. OK, so the airport does a background check and then

that person gets issued an ID card, right?

Admiral STONE. Yes, sir, a badge that allows them access.

Mr. HAYES. And the badge allows them to go around security?

Admiral STONE. Well, at each airport, as you pointed out. At LAX

the airport security plan was written that if you are going to Big

Burger you have your rotations of your employees during non-peak

hours and go through our checkpoints.

Mr. DEFAZIO. OK.

Admiral STONE. So, that is an additional risk mitigator that is

in the airport security plan for that airport.

Mr. DEFAZIO. OK, then why wouldn’t we want to have that risk

mitigator at other airports?

Admiral STONE. Right now you have asked for this list of how

each airport——

Mr. DEFAZIO. Right.

Admiral STONE. That currently is what TSA is doing, is going

into each of those airports to find out what is unique about the construction of your airport, your checkpoints. Since each airport is so

different and diverse, that precludes you from having that policy in

effect at your airport.

It is also the study of the Boeing model or what are the economic

impacts if we were to mandate that in terms of construction costs

at an airport? What does that do to the vendors that are in that

area because that complexity is part of that issue, but our intent

would be if we could have as a risk mitigator that you go through

the checkpoint. That gives us that additional layer.

Mr. DEFAZIO. I mean even TSA employees have to go through

their checkpoints, right?

Admiral STONE. That’s correct, sir.

Mr. DEFAZIO. So, these people, we know who they are, they are

Federal employees. They have been thoroughly vetted. Yet we feel

that they are a potential risk. When they come to work they have

to go through, a pilot who has had any number of background

checks and psychological exams and everything else by the airport

and has a history has to go through.

So, I think you are getting my point here. I guess the other question would be are these badges at LAX very sophisticated, non-
36

counterfeitable, a badge that couldn’t in any way be modified and

couldn’t get a different picture in it or something?

Admiral STONE. No, sir. That’s why I think we are eager to go

to the TWIC, the Transportation Worker Identification Credential

where we can have that biometric.

Mr. DEFAZIO. Thank you.

Mr. HAYES. I thank the gentlemen for his questions. I thank the

panel. We will excuse you and ask the other panel to please come

forward.

Admiral STONE. Thank you, sir.

TESTIMONY OF JAMES C. MAY, PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE AIR TRANSPORT ASSOCIATION OF

AMERICA, INC.; KEVIN MITCHELL, CHAIRMAN, BUSINESS

TRAVEL COALITION; PAUL ROSENZWEIG, THE HERITAGE

FOUNDATION, SENIOR LEGAL RESEARCH FELLOW; DAVID

SOBEL, GENERAL COUNSEL, ELECTRONIC PRIVACY INFORMATION CENTER

Mr. HAYES. I would like to welcome our second panel to this

hearing and introduce Mr. James May, president and chief executive officer of the Air Transport Association; Mr. Kevin Mitchell,

chairman Business Travel Coalition; Mr. Paul Rosenzweig, of the

Heritage Foundation, Senior Legal Research Fellow; and Mr. David

Sobel, general counsel, Electronic Privacy Information Center.

With your permission, we will start with Mr. May. Do you have

a comment at this time, Mr. DeFazio?

Mr. DEFAZIO. No. I mean with the next panel we will just move

right along.

Mr. HAYES. All right. Thank you. Mr. May.

Mr. MAY. Thank you, Mr. Chairman. I will be brief. I know that

time is precious this afternoon.

The Air Transport Association continues to express support for

the concept of the Computer-Assisted Passenger Prescreening System, CAPPS II.

As described by the Transportation Security Administration, the

goals of this system would be to enhance security and result in

fewer hassles and delays for airline passengers.

The safety and security of airline passengers and crews continues

to be our top priority and we applaud government efforts to bring

a more sophisticated, intelligence capability to aviation security.

Today, billions of dollars have been invested in an aviation system that relies on a rudimentary mix of physical and random

screening.

We believe TSA can do better by developing security systems

that scrutinize people, not things.

The TSA needs, however, to avoid the dragnet that today captures business travelers flying on multiple one-way tickets or an

83-year grandmother who is unable to even remove her shoes at

the security checkpoint.

In the future CAPPS II should improve passenger prescreening

by using smart computer systems to identify people who may pose

a threat.

U.S. airlines believe there are several operational and privacy

issues that need to be addressed.
37

In short, we believe CAPPS II needs to meet three basic tests.

First, we must improve airline security; then it must protect the

privacy rights of all airline passengers; and finally, it must be implemented without substantial disruptions to airline travelers or to

the public.

Acceptance of CAPPS II will depend on public confidence about

the legitimacy of the security system, both here and abroad. Fortunately, Congress and GAO have created several privacy and operational benchmarks for TSA to achieve before CAPPS II is implemented. I stress, before CAPPS II is implemented.

However, it is clear that to improve aviation security, CAPPS I

does need to be replaced.

Now, allow me to talk about a couple of the operational highlights. We believe the scope of CAPPS II needs to be narrowed and

in fact limited to identifying terrorist or hijack threats. This should

not be a program for general law enforcement purposes.

All airline and third-party computer systems are going to have

to be reprogrammed to work with CAPPS II. This is going to create

substantial new resource demands on our carriers and very little

coordination has occurred on that point, if any at all.

U.S. airlines need to know all of the technical requirements for

the CAPPS II system, well in advance of the setup, such as how

TSA will extract traveler information from airline reservation systems. It is the push-pull question that we talked about a moment

ago.

Now airlines do not control how third-party sellers interact with

travelers. Since more than 70 percent of all passengers book their

travel through third parties such as travel agents and online services, any CAPPS II rules should also require those travel industry

partners to collect the required passenger data information. Otherwise, you are going to have 70 percent of your passengers show up

at an airport and we have no way of knowing whether that information has been collected or not.

Privacy concerns. Our written testimony reviews in some detail

the laws and other requirements to protect traveler privacy and we

applaud those efforts.

ATA member airlines remain committed to protecting the privacy

of the traveling public as well as ensuring the security of airline

passengers. However, CAPPS II clearly raises several privacy concerns for travelers that need to be addressed.

The good news is that Congress has shared these concerns and

TSA has acknowledged there is substantial work to do.

Our members know that if the public is not comfortable with

TSA’s handling and protection of confidential information CAPPS

II may well be doomed.

For these reasons, we have developed a statement of privacy

principles for TSA to adopt as part of the CAPPS II program. A

copy has been provided to each member of the committee and our

privacy principles seek to control who is allowed access to passenger information, how that information gets used for identity

verification as well as other rules for openness, disclosure and accuracy.
38

These industry recommendations were approved by the ATA

board and are intended for the government to implement consistent

with the privacy requirements imposed by Congress.

Two last thoughts: In addition to CAPPS II, we support the Registered Traveler Program. ATA first suggested this program immediately after 9/11 and we continue to believe it should be deployed.

In fact it may well make a good test bed for CAPPS II.

International considerations: Obviously, data privacy issues are

an important international component of CAPPS II. U.S. and European officials have in fact met. We certainly hope they can agree

on data protection principles avoiding conflicts that could easily

disrupt travel and create compliance difficulties.

In summary, Mr. Chairman, we believe that the concept of

CAPPS II can advance counterterrorism efforts. However, public

acceptance of this program will depend on TSA’s embraces protections of personal privacy as well as improving the public’s understanding of these safeguards.

We also believe there are numerous operational issues that must

be addressed before CAPPS II can be launched successfully.

Thank you.

Mr. HAYES. I thank the gentleman for his testimony. Anything

that you are not able to include in your testimony will certainly be

included in the record.

Now I call on Mr. Kevin Mitchell, Chairman of the Business

Travel Coalition. Mr. Mitchell, thank you and welcome.

Mr. MITCHELL. Thank you, Mr. Chairman, and members of the

committee. I will substantially truncate my verbal remarks.

There may be rationale for revamping the current prescreening

system that BTC and other parties could support, however, we do

not yet know what CAPPS II would surely be.

That is to say, we do not understand the privacy and civil liberty

tradeoffs required in return for expectations of greater security; nor

do we know about the safeguards, remedies, costs, future program

growth, or importantly, alternatives to a CAPPS II that might be

out there.

Our concerns are explored in much more detail in our written

statement, but they fall into three categories: process, product and

protections.

First, process. A program with such a far-reaching set of consequences requires very thorough debate based upon an understanding of the projected total costs of such a program over a

multi-year time horizon. Knowing the required resources of money,

expertise and time would assist both TSA and the industry in evaluating alternative uses of these resources in other programmatic

areas of aviation, such as air side enhanced background checks and

air cargo.

Second, product. Business travelers are willing to give up some

privacy for security if it can be proven that they would truly be

more secure. The burden of proof, however, should be on the government. Identity theft is just one issue.

Another example of concern is that a U.S.-based terrorist sleeper

cell could throw 50 recruits at a CAPPS II until it identified ten

that were color-coded green. Once a person is color-coded green, it
39

follows that he would be always categorized as such until something fundamental changes in that person’s profile

Such a system could provide a false sense of security at considerable cost and actually reduce our absolutely level of security.

Timothy McVeigh, John Allen Mohammed, the Unabomber had

no links to terrorist groups. So, what we may be setting up is a

Maginot Line where the terrorists just drive right around our fortifications?

Third, protections. Specifically, how would a passenger challenge

his risk assessment score and how long would it take to correct inaccuracies in a profile? It is worrisome to business travelers that

erroneous information in notoriously unreliable commercial databases might result in their being perpetually flagged for extra

screening.

I would like to conclude with just two of the several recommendations in our written statement. One, CAPPS II should be

strictly authorized for use only in aviation system security. Adaptations of CAPPS II should not be authorized by Congress for use at

interstate toll booths, train stations, sporting events, political rallies or other venues where our freedoms are celebrated.

Secondly, the process and timeframe for both U.S. citizens and

foreigners to have their risk profiles corrected needs to be iron-clad

and sufficient to a fault. Business travelers currently have claims

before TSA for damaged luggage that are 18 months old and still

unresolved.

If TSA cannot do right by passengers with such a simple issue,

how are business travelers to have confidence that they would have

better results with correcting inaccuracies in their risk profiles?

Thank you, with three minutes to go.

Mr. MICA [RESUMING CHAIR]. Thank you for your testimony.

Let me introduce our next witness which is Paul Rosenzweig. He

is a senior Legal Research Fellow with the Heritage Foundation.

Welcome, sir. You are recognized.

Mr. ROSENZWEIG. Thank you very much, Mr. Chairman. It is a

great pleasure to be back here in this room where I served on the

staff so many years ago.

Let me just tell you a story. I was traveling with a Federal judge

sometime ago out west at a very small airport that was absolutely

no risk of terrorist infiltration. And she was selected randomly for

secondary screening, which resulted in her entire bag being

emptied and her dirty lingerie being displayed to all of her traveling companions, which mortified her terribly as she hastened us

along and said, wait, I will catch up with you because we were

waiting to go to lunch with her.

There are two things to learn from that story. The first is that

I have no doubt that at that moment she would have traded a little

bit of electronic privacy for the physical privacy that was invaded.

I am not so sure that we should so highly value electronic privacy that we do not recognize the other value of physical privacy

that we have given up and what that physical security will impose

upon us extensively throughout.

Those who would oppose CAPPS II in all of its forms are essentially making the argument that electronic privacy is a higher
40

value that must be protected absolutely, even at the cost of physical privacy.

To my mind, something like for example Trusted Traveler where

one can choose the invasion of electronic privacy or, if one wishes

to forego it, accept the heightened physical screening, is the way

to go.

But clearly CAPPS II might very well fit a middle ground there.

You could perhaps sign out of CAPPS II if you wanted, if you were

willing to accept a complete screen of your bags every time you

went through.

The other thing, though, that is really notable about this story

is that it was an absolute waste. It was a waste of time and money,

which, you know, we waste all the time. But it was more importantly a waste of resources that would be much better directed and

fixed on combating actual terrorist threats.

This Federal judge was no threat; right? This airport was generically no threat. What is vital to understand about CAPPS II in

however form it ultimately comes about and I certainly agree with

many of the criticisms about the need for redress and certainly

some of the issues about identity theft, what is vital to understand

is that this is not about individual screening per se. It is about risk

management and risk assessment.

That means that if it is successful and there is every reason to

think that it will be; those who say that it has no hope ignore, in

my judgment, its proven effectiveness in the commercial world.

The people in Las Vegas, for example, do this every day to try

and screen out, by identifying those who have stolen money from

them in the past that they do not want again.

But the proven effectiveness of this will be in allowing us to allocate our resources in a way that targets the limited resources at

the true risks, not at the Federal judge or somebody who has

passed a top-secret clearance.

One of the things I guess I would leave you with as a last

thought is that the risk assessment aspects of this can actually be,

and perhaps you might want to, disassociated from the individual

screening.

CAPPS II or some risk-assessment program of the sort that

CAPPS II is intended to be could simply target higher risk flights,

higher risk airports based upon factors of who is booking. That

would allow us to surge TSA resources to those areas, not just

screeners, but air marshals as well.

Right now screeners and air marshals are essentially randomly

distributed in the system and that is completely nonsensical. If we

can develop any sort of information system that allows us to better

target those resources, even if it does not mean individual screening, we will have gone a long way to better improving our ability

to stop terror.

I don’t think physical screening is the only answer. I think it is

part of the answer. But I think as Admiral Stone said, CAPPS II

is an additional layer on top of it.

The Congressional review committee that reviewed 9/11 said that

one of our flaws was an unwillingness to aggressively pursue new

technologies.
41

I would urge us not to make the same mistake. CAPPS II needs

a lot of work, I agree, but do not kill the baby now.

Thank you.

Mr. MICA. Thank you for your testimony.

Our last witness is David Sobel. He is general counsel of the

Electronic Privacy Information Center.

Welcome, sir. You are recognized.

Mr. SOBEL. Thank you, Mr. Chairman. I have submitted a written statement for the record.

Mr. MICA. Without objection, the entire statement will be made

part of the record. Please proceed.

Mr. SOBEL. Thank you and thank you for the opportunity to address the civil liberties implications of the CAPPS II system now

under development within the Transportation Security Administration.

The subcommittee’s inquiry is critically important and goes to

one of the most significant controversies surrounding the Government’s response to the tragic events of September 11th.

While most of the post–9/11 debate over security and liberty understandably has focused on the USA Patriot Act, the serious problems inherent in CAPPS II will have a more direct and immediate

impact on most Americans.

The CAPPS II mission to conduct background checks on millions

of citizens is unprecedented in our history.

While we all agree that there is a clear need for enhanced aviation security, there are many reasons to question whether CAPPS

II is the right approach, both from a security perspective and in

terms of the detrimental impact on our traditional liberties.

The Supreme Court has long recognized that citizens enjoy a constitutional right to travel. For that reason, any government initiative such as CAPPS II that conditions the ability to travel upon the

surrender of privacy and due process rights requires particular

scrutiny.

I hope that today’s hearing marks the beginning of a serious inquiry into the costs and claimed benefits of CAPPS II and that

there can be an informed public debate on the proposal, a debate

that has not yet really occurred.

Critical elements of that discussion which I address more fully

in my written statement include transparency, due process, and adherence to established privacy principles.

The problems that are likely to arise if and when CAPPS II is

implemented are not hypothetical. For more than two years an untold number of innocent airline passengers have been wrongly

flagged as a result of TSA’s secretive selectee and no-fly lists.

Documents obtained by my organization under the Freedom of

Information Act detailed the Kafkaesque dilemmas that scores of

citizens have confronted when they attempt to learn why they are

consistently flagged at the airport and when they attempt to clear

their names.

TSA refuses to provide these individuals with any explanations

and the agency’s claimed procedure for addressing these problems

has proven to be wholly inadequate.
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Although few details of CAPPS II have been disclosed, the Privacy Act notice for the system that TSA published last August provides a basic outline of how it would operate.

In essence, CAPPS II will be a secret, classified system that the

agency will use to conduct background checks on tens of millions

of airline passengers. The resulting risk assessments will determine whether passengers will be subject to searches of their persons and belongings or be permitted to board aircraft at all.

TSA will not inform the public of the categories of information

contained in the system. It will include information that is not relevant or necessary to accomplish its stated purpose of improving

aviation security.

Individuals will have no judicially enforceable right to access information about them contained in the system, nor to request correction of information that is inaccurate, irrelevant, untimely or incomplete.

This is precisely the sort of system that Congress sought to prohibit when it enacted the Privacy Act in 1974. When it enacted the

Privacy Act, Congress sought to restrict the amount of personal information that Federal agencies could collect and, significantly, required agencies to be transparent in their information practices.

Because—and this is a key point—because TSA has exempted

CAPPS II from most of the key Privacy Act requirements, secrecy

rather than transparency will be the rule.

This problem is exacerbated by the fact that today, more than

two years after TSA began development of CAPPS II, the agency

has still not published a privacy impact assessment for the system

as required by the E-Government Act.

As the recent GAO report found, TSA has failed to adequately

address the very real privacy and due process issues that permeate

the proposed system.

Based upon TSA’s Privacy Act notice for this system, I believe

there is reason to doubt whether the system as currently envisioned can ever function in a manner that protects privacy and provides citizens with basic rights of access and redress.

Thank you for your attention. I will be happy to take your questions.

Mr. MICA. I thank you and I thank all of our witnesses, both for

their patience and for their testimony. We have been interrupted.

I think some of you have been here before and know the process.

I have a few questions and then I will yield to the ranking member and other members.

Mr. May, I think we have one purpose in trying to develop a

CAPPS II system that does not intrude on privacy and that does

not discriminate and that is to expedite the passage of our passengers of our passengers through commercial aviation.

That is so important because again if we look at the three million

jobs that have been lost since 2001, probably half of them have

been related to the aviation industry, if not more,

One of the hurdles that you have representing the airlines is that

the airlines can be subject to liability giving out certain types of information.

If TSA does pass a rule, and we have given them complete authority to pass rules relating to our needs in this particular era in
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which we live, is that sufficient to protect you or are you going to

need additional legal coverage to satisfy your members as far as liability?

Mr. MAY. Mr. Chairman, I was pleased to her the administrator

this morning talk about the fact that he, I think, if I heard him

correctly, plans on issuing an NPRM as opposed to a security directive. I think, you know, we need to take a look at that NPRM and

figure out what the implications are, sit down with counsel and get

a feel for it.

I don’t think there is any question that we are concerned about

our liability. I don’t think there is any question that we feel far

more secure if they require that information as opposed to us volunteering it.

In fact, I think it would be safe to say the likelihood of us volunteering it in the future is somewhere between zip and zero. And

I think that finally there needs to be a privacy policy in place. Everybody is talking about it, but nobody has done it.

Mr. MICA. Well, again, the question is, and you may have to

come back with opinions from your legal counsel, with it is a security directive or a rule through the process that has been announced today, what is going to cover you and what would be the

quickest remedy and satisfy you.

Can you do that? Can you give us your opinion?

Mr. MAY. I cannot give you the answer I suspect you want today,

Mr. Chairman. I will be happy to come back to the committee.

Mr. MICA. Well, I am going to direct a question to you and your

counsel to come back to the committee.

We are going to keep the record open by unanimous consent for

a period of two weeks. I am hoping that you can come back with

us. So, without objection, it is so ordered. The record will be open

for that period of time, not only for your response, but for other responses we may be submitting to TSA and other witnesses today.

Mr. Sobel, if we can meet some of the objections which you have

cited today and which Congress has also expressed concerns about,

do you think we could develop something that is acceptable from

your perspective?

Mr. SOBEL. I think, Mr. Chairman, that TSA would really need

to be much more forthcoming about the information that is going

to form the basis of this system than they have up until now.

TSA’s position seems to be, and it is certainly reflected in the

fact that they have designated this system as sensitive and classified, that the effected citizens who are flagged by the system are

not going to have full access to the underlying information that has

resulted in some type of negative security assessment.

So, it is really a question of whether TSA is ever going to be able

to get over that hurdle that it seems to have about opening up this

process to real citizen access and a real means of a judicially enforceable right to correct inaccurate information.

That is what the Privacy Act requires. I think the key defect

thus far is that TSA does not seem to be willing to comply with

those Privacy Act requirements.

Mr. MICA. OK. Thank you. Mr. DeFazio.

Mr. DEFAZIO. Thank you, Mr. Chairman. Mr. May, have the airlines been working closely with the TSA regarding the parameters
44

that would be required of the airlines to provide and how that

might be done?

Mr. MAY. Mr. DeFazio, I think the best answer to that question

is to say that we have had a number of conversations with TSA,

with whom we do have a good cooperative relationship, on the subject of CAPPS II to identify for them what we think are numerous

operational hurdles that need to be scaled.

I am not sure that we have any real answers and I am not sure

that we have a process yet in place to resolve some of those issues

that we have identified.

Mr. DEFAZIO. As I understand it from their testimony though,

they are looking at four parameters that they would want from the

airlines, is that correct? I mean in the database.

Mr. MAY. In terms of the information?

Mr. DEFAZIO. Yes.

Mr. MAY. I don’t think there is much question in anyone’s mind,

quite frankly, as to what the information they are interested in

having is. It is full name, home address, home telephone number

and date of birth.

Mr. DEFAZIO. Right.

Mr. MAY. But, you know, that is the least of our concerns. We

talked a little bit about push and pull. We have a ton of different

IT systems that contain information, you know. If the TSA wants

to have a single system, come look at what we have, that is one

option and it may be the easiest.

What they want to do is have all of these different IT systems

push information to them, to a single resource. Well, that means

we have got to do significant reprogramming. It is a major hurdle.

We understand. I have talked about it.

You know, you suggested we do not have a warm and fuzzy relationship with our travel agent friends. I certainly think they are

fine people.

Mr. DEFAZIO. I think they are fine people, too. I think they are

under-compensated by the airlines, but that is a different story altogether.

Mr. MAY. That is a different story altogether. I think the very

real concern is that if you have 70-plus percent of the reservations

being made by someone other than the carriers, then that information has to be collected at the time the reservation is made, if we

are going to go forward with this.

Mr. DEFAZIO. Right.

Mr. MAY. And then you have to figure out how that information

gets from that travel agent or reservation center, whatever it is, to

the TSA. Otherwise, if you are talking just the airlines, you are

only going to talk about 20 percent of the flying populous.

Mr. DEFAZIO. Well, I am assuming that the way this would be

worked out, I mean you are raising the question of which way it

goes between the TSA and the airlines, but the airlines become the

repository with the reservation.

So, if a travel agent makes the reservation, they have to communicate that reservation to the airlines and at that point, apparently, they would be required to transmit that information to the

airline. So you would become the repository or the airlines would,

as far as I can tell.
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Mr. MAY. And clearly that raises all sorts of other questions, too.

Mr. DEFAZIO. Right.

Mr. MAY. They are not exactly excited about providing a lot of

the fields in P&R to the airlines.

Mr. DEFAZIO. Right.

Mr. MAY. And so I think those are clear operational concerns

that we have that have yet to be addressed in a very practical way

and must be.

Mr. DEFAZIO. You say, point four, government shall only use collected information for aviation security purposes and shall not use

the information for law enforcement purposes not directly related

to aviation security.

So, the ATA’s position is if the system, when you have provided

date of birth, home address, full name and it turns out that that

person is a wanted criminal, that the TSA should not be able to

contact law enforcement authorities and pick that person up.

Mr. MAY. I don’t think that is what we are suggesting in this

case, Mr. DeFazio. I think what we are suggesting is that there

needs to be some line drawn as to how this information will be

used.

It is collected to protect against terrorism, hijacking of airplanes

and that is how it should be used. To the extent we can eliminate

or minimize the collateral use of that information for pure law enforcement purposes, I think that needs to be done.

Carriers do not want to be in the business of law enforcement.

Mr. DEFAZIO. Right. But the point is, I just think that then perhaps you need to reword that point. I mean if the system should

uncover a known felon and that person has a reservation, it may

well be, since the law enforcement has been unable to find them,

that they would actually want the airline to cooperate; they would

want that person to show up for the flight and then they would apprehend them.

In fact, this just happened recently in Portland, Oregon, but it

had to do with Customs and some other issues for a fugitive overseas felon.

I think maybe that needs a little rewording there. I understand

what you are trying to get at, but I mean this may well turn up

law enforcement actions that are needed and we may well want to

ask for some cooperation. It is not to create a dragnet. This may

cause some concerns over here, but it does not to me.

I mean if someone is a fugitive felon and we find them, that is

great as far as I am concerned. But that is not where I am talking

about people who have other incidental sorts of things in their

background.

Mr. Sobel, when you raised the concerns, for years I have heard

concerns and frustrations from my constituents who end up having

bad information on their credit report and have to go through extraordinary efforts to correct that.

Then you are raising the issue in part, apparently this may or

may not, depending on what parameters you use, rely upon credit

reports to rate the risk of these individuals. So we may take that

information and pile it into, now, a government system.
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The point you are raising is if you had communication with TSA

and why is it they say that the person would not be able to review

the data which would deny them the capability of flying?

Mr. SOBEL. Well, certainly on the side of the equation where they

are looking at government information, presumably information obtained by other agencies, CIA, FBI, whatever it is, they seem to

take the position that that information is often going to be classified, derived from intelligence sources.

While that is understandable that there are watch lists that derive from that kind of information, the problem is a situation like

we are talking about where the government is starting to make decisions about what citizens can or cannot do without certain hurdles being placed in their way, based on that kind of information

and saying to them, sorry, we have a reason but we cannot share

it with you.

I just do not see how a system like CAPPS II as currently envisioned can avoid that basic problem. I believe that is the reason

why TSA has seen it necessary to exempt this system from many

provisions of the Privacy Act.

For instance, the one I pointed out, no judicial review of a citizen

request to correct, first of all to access and then to correct any information that might be inaccurate. That is ultimately the way

that a system like this is going to have due process built into it.

Admiral Stone, this morning, talked about the fact that there

would be an ombudsman within TSA and a passenger advocate.

That is all well and good, but unless there is some type of statutory

time limit for TSA to make a correction decision and then either

if they do not make that deadline or if the determination is against

the passenger, the passenger should have a right to go to court and

review that decision.

Otherwise, I think these things are just going to languish at

TSA, unresolved for months on end. It is going to have a real impact on people’s ability to travel.

Mr. DEFAZIO. So, Mr. Rosenzweig, would you share those concerns? I am certain Heritage, having a conservative viewpoint

would think that people should have some redress.

Mr. ROSENZWEIG. Absolutely. One of the things I have written

about is the need for an adequate redress system. That is one of

the aspects of CAPPS II that has not yet been fully planned out,

as we heard today.

I think, though, that it is sort of important to understand exactly

what Mr. Sobel is at least in theory talking about. If the watch list

that we are discussing is a CIA watch list that is developed

through covert intelligence means and somebody’s name has come

up on the list, it is going to have to be something other than fullscale judicial review in a public court to discuss the errors that

might be on that list. It has to be.

I mean we recognized that already in the Classified Information

Procedures Act. We are going to have to modify or apply graduated

transparency. I am in favor of transparency, but it cannot be that—

I mean, for one thing I think that the number of misidentified on

the watch list red cards is going to be relatively small.

So, as opposed to substantial secondary screening which may be

larger, that is where the errors are more likely to occur.
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Mr. DEFAZIO. I did not have time to go back again to Admiral

Stone, but what do you envision the secondary screen is? Right now

under CAPPS I, it just means you get diverted over here and they

search your luggage and they search you.

Here are we talking about an interrogation?

Mr. ROSENZWEIG. I think that the interrogation, as I understand

the system being built, the interrogation is for the red card. The

additional screening is going to be additionally the same form that

you or I get right now if we have too much metal on us or as is

the case when I sometimes travel, you have made a one-way reservation and you have made the absolutely useless CAPPS I system.

Mr. DEFAZIO. That is right.

Mr. ROSENZWEIG. Yes, then they pull you aside and they go

through it. It will be, you know, stick out your arms and legs.

Mr. DEFAZIO. Sure, and they wand your bare feet to make sure

there is nothing in there.

Mr. ROSENZWEIG. Yes, they wand your bare feet. It is a waste.

It really is a waste of resources. I think everybody agrees that

what we have now, except maybe the fellow from GAO, that what

we have now is worse than useless because it is costing money and

doing nothing.

So, the secondary screening for unverified identity will just be

what we have today.

Mr. DEFAZIO. But I think there may be some grounds for agreement here although perhaps Mr. Sobel wouldn’t, as you say, want

to take it further to find out. But there certainly should be protections on classified information.

But if it is a result of some other public database or any kind

of mistaken identity or something like that, that should be absolutely transparent and people should have the right to correct it,

like they do not have with their credit bureaus today.

Hopefully, the government can do a better job than the credit bureaus are doing.

With that, Mr. Chairman, thank you.

Mr. MICA. I thank the ranking member. I want to thank our witnesses for being with us today. I understand several had requested

additional information of witnesses to be included as part of the

record.

Without objection, that is so ordered.

I want to also welcome to the subcommittee students from Orangewood Christian School. We have some 11th graders from Florida who came up to enjoy the cold weather. Welcome to the aviation subcommittee this afternoon.

This is a hearing that has dealt with passenger screening and a

new passenger profiling system that is being proposed. This is the

second and last panel of witnesses.

We thank you again for your cooperation. We thank the students

for their attention, coming in at the end of the hearing here.

There being no further business before the subcommittee——

Mr. DEFAZIO. Well, Mr. Chairman, I just want your students to

know you are a very important Member of Congress. You can tell

because he gets a bigger chair than everybody else who is sitting

up here.
48

Mr. MICA. Well, I just want the students to understand that we

do, believe it or not, we do have a very bipartisan system of government. There is very little that I can do as chairman without the

ranking member, Mr. DeFazio.

And so we sort of equally share. I get to chair the hearings, but

I think we have a very good working relationship. Most of the

issues before us are not partisan issues, Republican or Democratic.

They are issues for the welfare of the country.

We do have a great working relationship on those issues. Believe

it or not, MR. DeFazio, who comes from the other side of the aisle,

and I often agree. Sometimes you see us in concert, like today, on

a number of issues, trying to improve safety and security for the

American people.

So, that is how the system works. We are graced with two great

counsels here who help us.

Mr. DEFAZIO. If we are getting warm and fuzzy, could we talk

about staff ratios and how we could use a little more money on our

side, Mr. Chairman?

Mr. MICA. Having been in the minority, just a little lesson in political science and government, it is much better to be in the majority.

With that, there being no further business before the aviation

subcommittee today, this meeting is adjourned.

[Whereupon, at 1:48 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]
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