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TSA OVERSIGHT PART I: WHOLE BODY IMAGING

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

HOMELAND DEFENSE AND FOREIGN OPERATIONS

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

MARCH 16, 2011

Serial No. 112–14

Printed for the use of the Committee on Oversight and Government Reform

(

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

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL SECURITY, HOMELAND DEFENSE AND FOREIGN

OPERATIONS

JASON CHAFFETZ, Utah, Chairman

RAU ́ L R. LABRADOR, Idaho, Vice Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PAUL A. GOSAR, Arizona

BLAKE FARENTHOLD, Texas

JOHN F. TIERNEY, Massachusetts, Ranking

Minority Member

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

STEPHEN F. LYNCH, Massachusetts

MIKE QUIGLEY, Illinois

(III)

C O N T E N T S

Page

Hearing held on March 16, 2011 ............................................................................ 1

Statement of:

Cissna, Representative Sharon, Alaska State House of Representatives .... 23

Kane, Robin E., Assistant Administrator for Security Technology, Transportation Security Administration; and Lee R. Kair, Assistant Administrator for Security Operations, Transportation Security Administration 112

Kair, Lee R. ................................................................................................ 120

Kane, Robin E. ........................................................................................... 112

Rotenberg, Marc, executive director, Electronic Privacy Information Center; Dr. David J. Brenner, Center for Radiological Research, Columbia

University; Fred H. Cate, senior policy advisor, Centre for Information

Policy Leadership, Hunton & Williams; and Stewart A. Baker, partner,

Steptoe & Johnson LLP ................................................................................ 46

Baker, Stewart A. ...................................................................................... 82

Brenner, David J. ...................................................................................... 63

Cate, Fred H. ............................................................................................. 71

Rotenberg, Marc ........................................................................................ 46

Letters, statements, etc., submitted for the record by:

Baker, Stewart A., partner, Steptoe & Johnson LLP, prepared statement

of ..................................................................................................................... 84

Brenner, Dr. David J., Center for Radiological Research, Columbia University, prepared statement of ..................................................................... 65

Cate, Fred H., senior policy advisor, Centre for Information Policy Leadership, Hunton & Williams, prepared statement of ................................... 73

Chaffetz, Hon. Jason, a Representative in Congress from the State of

Utah:

Prepared statement of ............................................................................... 4

State of Alaska resolution ........................................................................ 37

Cissna, Representative Sharon, Alaska State House of Representatives,

prepared statement of ................................................................................... 26

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 13

Gosar, Hon. Paul A., a Representative in Congress from the State of

Arizona, prepared statement of ................................................................... 20

Kane, Robin E., Assistant Administrator for Security Technology, Transportation Security Administration, prepared statement of ....................... 115

Rotenberg, Marc, executive director, Electronic Privacy Information Center, prepared statement of ............................................................................ 49

(1)

TSA OVERSIGHT PART I: WHOLE BODY

IMAGING

WEDNESDAY, MARCH 16, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, HOMELAND

DEFENSE AND FOREIGN OPERATIONS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 9:30 a.m., in room

2154, Rayburn House Office Building, Hon. Jason Chaffetz (chairman of the subcommittee) presiding.

Present: Representatives Chaffetz, Mica, Gosar, Farenthold, Issa,

Tierney, Braley, Yarmuth, Lynch, Quigley, and Cummings.

Also present: Representative Jackson Lee and Holt.

Staff present: Ali Ahmad, deputy press secretary; Erin Alexander, fellow; Thomas A. Alexander, senior counsel; Robert Borden,

general counsel; Molly Boyl, parliamentarian; Kate Dunbar, staff

assistant; Adam P. Fromm, director of Member liaison and floor operations; Linda Good, chief clerk; Christopher Hixon, deputy chief

counsel, oversight; Mitchell S. Kominsky and Rafael Maryahin,

counsels; Justin LoFranco, press assistant; Mark D. Marin, senior

professional staff member; Laura L. Rush, deputy chief clerk; Jeff

Wease, deputy CIO; Sang H. Yi, professional staff member; Ronald

Allen, minority staff assistant; Carla Hultberg, minority chief clerk;

Lucinda Lessley, minority policy director; Scott Lindsay and Brian

Quinn, minority counsels; Dave Rapallo, minority staff director;

and Suzanne Sachsman Grooms, minority chief counsel.

Mr. CHAFFETZ. The committee will come to order. I would like to

thank everybody for being here today as we tackle this important

subject. I would like to begin this hearing by stating the Oversight

Committee mission statement.

We exist to secure two fundamental principles: first, Americans

have a right to know that the money Washington takes from them

is well spent and, second, Americans deserve an efficient, effective

government that works for them. Our duty on the Oversight and

Government Reform Committee is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers

because taxpayers have a right to know what they get from their

government. We will work tirelessly in partnership with citizen

watchdogs to deliver the facts to the American people and to bring

genuine reform to the Federal bureaucracy. This is the mission of

the Oversight and Government Reform Committee.

Again, I want to thank everybody for being here and our witnesses today for today’s hearing, TSA Oversight Part 1: Whole

2

Body Imaging. This is the first in a series of hearings that we will

have relating to the TSA.

In essence, one of my fundamental concerns is the need to secure

our airports. We have a true threat in the United States of America, but at the same time we also need to uphold our freedoms and

our liberties, our civil liberties. Oftentimes I think there is a false

choice that is given that we need to give up our personal privacy

in the name of security, and that is the part we are going to talk

about today.

I would like to welcome Ranking Member Tierney and members

of the subcommittee and those of you watching our live Web cast

at Oversight.House.Gov. I want to thank you all for joining us.

We will seek testimony from private sector and government witnesses on the U.S. security programs and policies and their relationship to the Fourth Amendment of our Constitution. The United

States continues to face real and serious threats from Al Qaeda

and other terrorist groups. Since 9/11, terrorists have exploded

American airport security checkpoints and, by all accounts, will

continue to try to do so.

On December 22, 2001, a terrorist boarded a flight from Paris to

Miami, where, in-flight, he attempted to detonate explosives

packed in his shoes. If not for the heroic efforts of passengers,

flight attendants, and a malfunctioning device, he may very well

have succeeded.

In 2006, British intelligence foiled a plot to detonate liquid explosives aboard 10 different transatlantic flights, plots that would

have undoubtedly caused a tremendous loss of life and terror.

On December 25, 2009, another terrorist, also known as the

Christmas Day bomber, attempted to blow up a Northwest flight

over Detroit. Again, passengers aboard the flight, along with a

faulty device, thwarted another tragedy.

On October 29, 2010, Al Qaeda operatives packed a printer cartridge full of explosives and shipped them to the United States

aboard a UPS airplane. Good intelligence, not effective screening,

saved the day.

In each of these instances brave passenger, effective intelligence,

and a little bit of luck averted mass tragedies, but this is not good

enough. The Federal Government has reacted to each of these

events with programmatic reforms and recommendations, the creation of the Department of Homeland Security being the most notable. These actions opened new lines of communication between

agencies and redirected American efforts to protect the flying public. The American public is familiar with many of these reforms enacted at our Nation’s airports. These changes are what bring us

here today.

Over the past 10 years, Americans have sacrificed freedom and

convenience for greater airport security. We remove shoes, surrender our sunscreen, submit to full body scans and enhanced patdowns. The committee has an obligation to ask whether these policies actually truly enhance security. We have an obligation to ask

tough questions and, when needed, find solutions. We must assess

whether Federal screening procedures can be done with greater efficiency and greater effectiveness. We must examine whether Federal Government has a common sense layered and threat-based apVerDate 11-MAY-2000 12:26 Aug 04, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67371.TXT KATIE PsN: KATIE
3

proach to airport security and is it truly securing the American

public. We must also determine whether the Department of Homeland Security is maximizing available resources, alternative strategies, and innovative techniques.

We need to look into behavior detection, intelligence gathering

and analysis, explosive trace detection; looking into vapor weight

dogs and how they could be effective in airports. These are some

of the other security-based techniques that should be included in

the discussion.

What separates the United States of America from the rest of the

world is our ability as a people to ask tough questions of those in

the public policy arena. We will examine effectiveness and health

risks associated with full body imaging devices. We will hear from

privacy experts and average Americans about the naked images

that are secured in those whole body imaging machines and talk

candidly about the enhanced pat-downs that are now being implemented. We will ask tough questions about alternative screening

methods and their role in the debate. We will examine the evidence

and look at what has been said by the TSA and compare it to what

is actually being done.

In short, I am proud of the United States of America and the

ability to have this type of interaction in an open and transparent

way. I appreciate everybody that is here and joining us in this discussion.

At this time I would like to recognize Mr. Tierney for his opening

statement.

[The prepared statement of Hon. Jason Chaffetz follows:]

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5

6

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Mr. TIERNEY. Thank you, Mr. Chairman, and thank all the witnesses for being present here today.

Past incidents have demonstrated that Al Qaeda and its affiliates

are looking for other more creative ways to attack the U.S.’ commercial airline industry and our traveling public. As a Nation, I

think it falls on us to determine what human, economic, and psychological costs of a terrorist attack on a commercial airline warrants extraordinary defense measures and how costly, intrusive,

and inconvenient we are willing to have those measures be. None

of us likes to take off our shoes or throw away our water bottles

or empty our pockets of change simply in order to board a plane,

but most would be willing to take the sacrifice if there is a reasonable certainty that such actions would help prevent other terrorist

attacks.

Following the Christmas Day bomber attack in 2009, with funding and some encouragement from some in Congress, TSA procured

and deployed body scanning machines on a national scale. According to the TSA administrator and two TSA witnesses that were

scheduled to be here today, these scanners represent the best available method to detect metallic and nonmetallic threat items concealed on a passenger such as the Christmas Day bomber. We

should be willing to explore whether or not that is in fact the case.

We must also weigh this technology against Americans’ legitimate privacy interests. By now we have all seen copies of body

scan images that show much more than any of us would like to

publicly reveal. Has the TSA taken significant enough steps to address these concerns? I understand that there is also additional

technology available and in testing as we speak that would likely

obviate these concerns altogether. If this is the case, I would encourage TSA to expedite the testing of that technology and deploy

it as rapidly as possible if it is effective in identifying anomalies.

It is worth nothing that according to a CBS poll conducted in November 2010, an overwhelming majority of Americans, 81 percent,

approve of the use of whole body scanning devices at U.S. airports.

That fact doesn’t take away from legitimate privacy concerns that

we all share, but it is a helpful data point about how much sacrifice

most Americans are willing to make to prevent terrorist strikes

from happening again.

One of our witnesses, Dr. Brenner, has also raised serious concerns about the potential health risks associated with wide-scale

employment of body scanners. I look forward to discussing with Dr.

Brenner his analysis that is seemingly at odds with studies conducted by the National Academy of Sciences, the Food and Drug

Administration, the American College of Radiology, and the British

Health Protection Agency.

TSA has a difficult and unenviable task. At one moment they are

criticized for not doing enough to detect and stop potential threats;

at another moment they are criticized for doing too much or not

doing it in the proper way. Our role is to provide constructive oversight that can help TSA strike the right balance of security, privacy, cost, and convenience. I encourage my colleagues and our witnesses here today to provide solutions, rather than just heap on

criticism.

Thank you, Mr. Chairman.

8

Mr. MICA. Mr. Chairman, parliamentary inquiry.

Mr. CHAFFETZ. Yes.

Mr. MICA. Mr. Chairman, I came today with the intent of questioning witnesses from the second panel, from the Transportation

Security Administration, about this subject, and I appreciate, first

of all, you and the ranking member conducting this hearing. I appreciate our first panel of witnesses, but I have since been informed that we will not have representatives today of the Transportation Security Administration.

I would like to request of the Chair and maybe in consultation

with the ranking member, how we can proceed in the future to

have—and I understand they have submitted some written testimony, but for the purposes of appearing before this subcommittee,

answering appropriate questions, and some of them will evolve

from the testimony that will be presented here today, but in-person

representatives of the TSA, either by subpoena or by, and again if

you would consult with counsel on both sides of the aisle, how we

can demand and ensure their appearance before the committee in

the future.

That is the nature of my parliamentary inquiry or my inquiry at

this time, but I think it is very important that this subcommittee

hear from those individuals who are involved with, again, the question before us today, and this is the TSA Oversight Part 1: Whole

Body Imaging, so for the future, either by subpoena or requiring

their attendance before this subcommittee.

Mr. CHAFFETZ. I appreciate the gentleman is correct that despite

early assurances, confirmation of their attendance and participation in this hearing by two members of the TSA, senior members

of their administration that they would attend, we were given notice late last night, something that I physically was able to see yesterday, that it was their intention now not to attend. I find that

to be an embarrassment to the agency, I think it is highly inappropriate, and I assure you that the TSA will appear before this committee. They should appear today.

I will give them the benefit of the doubt until we begin to swear

in the second panel, but at that time, should they choose not to attend at their own choice, after confirming that they would attend,

having people fly in from around the country as far away as Alaska

and other, I think it is inexcusable and embarrassing that it is now

their intention not to show up.

Mr. CUMMINGS. Would the gentleman yield?

Mr. CHAFFETZ. Yes.

Mr. CUMMINGS. The gentleman is well aware—he said he got a

letter yesterday. The letter is dated March 14, 2011, and the TSA

had no problem with testifying before this committee. As a matter

of fact, they wanted to testify before the committee. The problem

is that the majority insisted that they be seated alongside non-governmental witnesses who represent the Electronic Privacy Information Center, and that organization is actually engaged in multiple

lawsuits with the TSA. Now, they have assured us and have assured you that they are willing to testify. They want to testify. But

to sit at the same table where people are suing you is just probably

not appropriate. So I think with some flexibility you could have

them in here at any moment.

9

And I think that we need to be very careful and I think Mr. Issa

has been most cooperative with regard to dealing with subpoenas.

If subpoenas are necessary, that is one thing, but when you have

somebody suing you and you are sitting at the same table, as a

lawyer, I can tell you that complicates matters quite a bit down the

road. So I think there is a way to resolve this. The minority will

cooperate in working with the majority to accomplish this. We all

want them to appear. They want to appear. They have a great

story to tell.

I yield back.

Mr. CHAFFETZ. Thank you.

In response to the gentleman, if I may, if they wanted to appear,

they could, they should, and they would. The problem is that they

have elected not to appear. As the gentleman knows, members on

the panel take questions from Members of Congress; they don’t

take questions from the person seated next to them. In order to

give Members the proper opportunity to question both those that

are criticizing the TSA and then allow for a timely response from

the TSA I think is most productive for this committee and, therefore, I had elected to seat them on the same panel.

Just 2 weeks ago we had the State Department, we had the Department of Defense, we had the Special Inspector General all seated together on the same panel. Both complained, oh, they wanted

special treatment, they wanted to go first, they didn’t want to have

to wait, they didn’t want to have to—but we talked to them, explained the situation, and as was complemented, I hope this is a

fair characterization, a complement from the ranking member saying this was a swift and efficient hearing, it was a productive use

of the Members’ time. And we got through that hearing without incident. I think that is a good precedent. It happened 2 weeks ago

from people that had contradictory points of view, and it is the way

we will conduct this subcommittee.

Mr. TIERNEY. Will the gentleman yield?

Mr. CHAFFETZ. Yes, happy to yield.

Mr. TIERNEY. That is a reasonable characterization of what I

would have said. I don’t recall saying it, but I certainly would have

said that, and indicated to you that I thought the hearing went

well. When I was chair, we would go back and forth with both administrations, Bush administration and the subsequent administration, Obama administration, about their wanting to be first, they

wanted to be on a separate panel and all that, and really believe

strongly in the prerogatives of the House; it is our hearing, we control it and we go.

I think what is unique about this, and where I separate from you

on that, is the litigation issue, and I think Mr. Cummings is right.

When you are advising a client, not only do you not want them to

be on the same panel with people who are suing you, you don’t

want the optics of having to say, I am not going to answer that

question, or that is an inappropriate question given these circumstances. I don’t think that is fair to put people in that position.

I think in this case, where there is litigation, putting them on

the panel with the other litigant probably is a step too far, and I

think we can reach an accommodation on making sure the prerogatives of the House are retained in getting witnesses to take what

10

panels we want them on, in what order we want them on, but making an exception in the matter of litigation and giving them a separate opportunity. And if that were the case here today, I think they

would have come, they would have testified, we would have gotten

the information we want, and it would have been better.

So I just ask that perhaps in the future you consider that aspect

of it and we try to find a way to cooperatively move forward on that

and give the agency a chance to say its case as well. Yield back.

Mr. CHAFFETZ. Duly noted.

Mr. ISSA. Would the gentleman yield?

Mr. CHAFFETZ. Gentleman from California, sir.

Mr. ISSA. Thank you, Mr. Chairman. I will be brief, as the others

have been.

This committee has a long history of doing it right and doing it

wrong. Under two chairmen ago, the Fallujah four litigation subjects were brought in here and, quite frankly, they were brought

in to promote a lawsuit that the chairman was very well aware of.

The Pat Tillman case, the same thing happened.

It is not our intention, as the chairman knows, and as I know

he worked hard to facilitate any confrontation about a litigation.

This will not happen on my watch or the chairman’s watch. What

we will do is we will insist on our right to seat people on a panel

we believe is appropriate. We make exceptions. Current Members

of the House and Senate, current full cabinet officers, and certainly

any persons directly from the executive branch would be seated

separately out of deference to their current status. We will continue

to work with the ranking member, and Mr. Cummings has been

very reasonable in supporting us when he thought we were right

and asking for changes when he thought we were wrong.

The gentlelady from Alaska has come a long way; I want to hear

what she has to say. I would have happily had TSA sitting next

to her. My understanding is there is no lawsuit, but there certainly

is a legitimate claim that TSA is not living up to the promises they

made for how these scanners would be used and how they would

do their job. So I look forward to that. I will work with the ranking

member.

I would note that although every Member has the testimony from

TSA, it will not be placed in the record since they did not appear.

There will not be any unanimous consent to place it in the record.

You will all have the opportunity to read it and we will look forward to that testimony and appropriate rebuttal when the TSA

comes.

Mr. Chairman, I thank you for holding this hearing. Certainly,

with 57,000 and counting TSA employees, countless people, including the gentlelady from Alaska, who comes from a city in which

you can only leave the city in the winter, I guess, by dogsled, but

most of the year by ship or by aircraft, it is essential that those

air travelers have an opportunity to efficiently, effectively, and privately be able to go through screening and get onto the aircraft

that bring them to the rest of Alaska and the lower 48.

So, Mr. Chairman, this is important. As we all heard here today,

this is a very bipartisan issue that we get right after what we

after, merely a decade, have not gotten right, and I thank you for

your attention, your continued attention. As this title says, this is

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No. 1. We will be back here as long as it takes in our oversight role

to get it right.

I yield back.

Mr. CHAFFETZ. I thank the gentleman.

At this time, I would like to ask unanimous consent that Sheila

Jackson Lee and Rush Holt be allowed to participate in this hearing and ask questions of the witnesses. Without objection, so ordered.

The Chair will entertain any additional opening statements that

Members would like to make. Does any other Member wish to

make an opening statement? Mr. Cummings. The gentleman is recognized, ranking member of the full committee.

Mr. CUMMINGS. I want to thank you, Mr. Chairman, and I want

to thank you for the discussion that we just had, to you and our

ranking member, Mr. Tierney.

On the subject of today’s hearing, we all share the same goal. Let

me emphasize that. We share the same goal: keeping airline passengers safe and secure with as little inconvenience or invasion of

privacy as possible.

The whole body imaging technology we are examining was introduced following a terrorist attempt to blow up a Northwest Airlines

flight in December 2009 using nonmetallic explosives. Let that sink

in. In response to the threat posed by the so-called Christmas Day

bomber and others, TSA introduced a number of new security

measures, including whole body imaging.

By the way, Congress fully supported this effort by funding the

procurement of hundreds of these machines. Because the TSA witnesses are not here to speak for themselves, let me read from their

written testimony, which I hope that we will hear. It says that

based upon our analysis of the latest intelligence, and after studying available technologies and other processes, TSA has concluded

that advanced imaging technology is an effective method to detect

threat items concealed on passengers while maintaining efficient

checkpoint screening operations. TSA continually evaluates these

technologies, their software and associated screening procedures to

ensure that they are effective against established and anticipated

threats, while continuing to protect passenger privacy, civil rights,

and civil liberties.

Now, I think it was our ranking member of the subcommittee

who said, he didn’t say it like I am about to say it, but he said it,

that TSA is damned if they do and damned if they don’t. If you

have an incident, particularly coming after the Christmas Day

bomber incident, and if they did not try to address that issue in

the most effective and efficient way, and the most noninvasive way

as possible, and somebody was harmed or, God forbid, killed, then

people would be screaming at them.

So as we conduct our oversight, it is important to understand

that the TSA professionals charged with protecting the traveling

public have determined that this technology is necessary to detect

the very real threats posed by Al Qaeda and their affiliates. Our

role in this effort should be to provide constructive oversight to

help TSA strike the right balance between the need for security

and concerns about convenience, cost, health, and privacy.

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And I want to make it clear, as our ranking member has, every

Member on this side of the aisle, and I am sure on the other side

of the aisle, our No. 1 concern is the safety of our traveling public

and, at the same time, striking a balance so that we have procedures that protect them, but do not go too far with regard to invading their privacy and making sure that they can have a wonderful

traveling experience.

I want to thank our witnesses for being here today. Sorry that

you have gone through what you have gone through, but, again, we

need to strike this balance and get it right.

With that, Mr. Chairman, I look forward to working with you,

Mr. Chairman, and our ranking member to make sure that we get

TSA here so that they can testify appropriately. With that, I yield

back.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Mr. TIERNEY. Mr. Chairman.

Mr. CHAFFETZ. Yes.

Mr. TIERNEY. Mr. Chairman, at this time I would like to ask

unanimous consent that the statement of Robin Kane, who is the

Assistant Administrator for Operational Process and Technology,

and Lee Kair, who is the Assistant Administrator for Security Operations, Transportation Security Administration, U.S. Department

of Homeland Security, be admitted into the record.

Mr. MICA. Reserving the right to object. Well, I don’t have the

Chair here now, but I do think that since they have chosen not to

appear today, that I would prefer that when they appear we submit

that to the record. We would also, at that time, have the opportunity to examine and question those witnesses based on the submission of their testimony. So I will continue to object to the submission of their testimony at this time.

Mr. ISSA. Mr. Chairman.

Mr. CHAFFETZ. Yes.

Mr. ISSA. I too would reserve. The intention is for that to be

placed in at a time in which the witnesses can be made available,

and I look forward to that opportunity and yield back.

Mr. TIERNEY. Mr. Chairman, if I may speak to the objection.

Mr. CHAFFETZ. Yes.

Mr. TIERNEY. I think we all understand that we want the TSA

people to come back and testify. That is a given and I don’t think

anybody objects to the notion that they will be back and testify. I

think we have sort of unique circumstances that they ended up not

being here today. They did circulate their testimony last night by

email to all the Members.

I think it is helpful for us, in questioning here today, if we are

going to ask a question, to be able to refer to something that is on

the record and keep the record intact. I think it is helpful also for

people that might look back at this hearing to have a full account

of all of the different positions that might be available here and

still reserve the right to bring them back.

But I do note that it wasn’t the fact that they wouldn’t testify,

it was the fact that they had circumstances with confronting litigants on the same panel that we may or may not disagree on. I

think it is extraordinary in this case and I think for the panel itself

and for this hearing it would be appropriate to have those materials on the record.

Mr. CHAFFETZ. The chair would disagree somewhat with the

characterization, but fair enough. There has been an objection to

the unanimous consent request; therefore, it is denied. As there

has been an objection, we do not have unanimous consent. The

statements will not be entered into the record.

Mr. TIERNEY. Mr. Chairman.

Mr. CHAFFETZ. Yes.

Mr. TIERNEY. Then I would move that we enter those records on

the statement and ask for a vote.

Mr. ISSA. Mr. Chairman, point of parliamentary inquiry. Is a

vote in order during a hearing? I don’t believe it is.

Mr. CHAFFETZ. I don’t believe it is. We have not yet got to the

second panel. We have not yet confirmed whether or not they are

going to indeed show up. There was a unanimous consent request;

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there was an objection. That has been denied. Consequently, we

are still in the opening statement mode. The chair is now going to

recognize the gentleman from Florida, the chairman of the Transportation Committee, Mr. Mica.

Mr. MICA. Thank you. And I am here in the capacity as a member of 18 years spending of the Government Reform and Oversight

Committee. Again, I thank both the ranking member and the Chair

for conducting this oversight hearing. This is a very important responsibility, I think, of this committee.

Transportation security, and I started some of this as Chair of

the Aviation Subcommittee. You never know what the good Lord

has in store for us, but I was made the Chair in 2001, somewhat

later than usual in the appointment of chairs, but then we were

confronted with the attacks of September 11th and had to put in

place a security system for transportation for our country. Travel

is one of the most important things we can do, particularly for

aviation. We have seen the threat still exists. I think that these

folks have seen the damage they can do to our economy, to our society, to our way of life, and they are still determined to come after

us; and I think, therefore, it is very important that we have in

place systems that work.

I helped initiate a number of the programs, in fact, asked them

to look at advanced imaging technology, and I am supportive of

using advanced technology for determining threats and risks. My

concern is, well, first, the manner in which—and I don’t have the

opportunity to question the TSA representatives, the manner in

which these pieces of very expensive equipment were acquired, and

I would hope that the committee and committee staff, if they are

listening, would review very carefully the acquisition. This was

somewhere in the neighborhood of half a billion dollars.

Furthermore, I am very concerned about the testing. In the past,

when we worked, and I see Mr. Cummings there, we were always

consulted by TSA in the major acquisition and deployment of new

screening technologies. I don’t think that was adequately done in

this purchase.

I am concerned about the testing results, and every member of

this panel should have a classified briefing. I had the equipment

tested by GAO in December of this past year and then I had the

pat-downs tested in January. Everyone should be required, every

Member of Congress, to see the extensive failure rate, I can’t disclose it, but it really concerns me when you spend half a billion dollars and then another half a billion dollars for additional personnel

and it doesn’t work as it should.

Even the initial deployment of portals is a joke. Even a seventh

grader, I think, could come up with a better plan for deploying and

utilizing this equipment, and it doesn’t have to be used for everyone like we have seen it deployed. And then again I have great concern of the failure of its use and even implications of its use. People

in this country are protected by the Fourth Amendment. They

shouldn’t be subject to illegal search and seizure and embarrassment and assumed guilty. We can and we must do better, especially for aviation security, and I am disappointed.

There are more fundamental problems with TSA, and I ask the

members of the panel to work with me. For a long period we did

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not have an administrator. We have had five administrators in 5

years. This administration chose not to appoint someone. Actually,

I think they named several who were cast aside, but the first appointment didn’t come until about 8 or 9 months into the President’s term. That needs to be changed.

There are more than 200 personnel in TSA making more than

the administrator. The administration now has an army of 3,770

personnel in Washington, DC, making an average of $105,000 a

person. I was taken aside the other day by someone who just left

TSA. He said he worked in a department where 10 secretaries

made more than $100,000. This is an agency crying out for reform

and I think it is very sad that they would choose not to show up

today. I hope that we can get them—I know we will get them at

a future hearing, and I would be glad to participate in questioning

them at that time.

I thank you again for your convening this hearing and yield

back.

Mr. CHAFFETZ. The gentleman yields back.

The Chair will now recognize the gentleman from Iowa for 5 minutes.

Mr. BRALEY. Thank you, Mr. Chairman.

The challenges facing the TSA are not a Democratic problem or

Republican problem; they are a problem that faces every American

who travels. And those of us who travel frequently know that this

is one of those difficult balancing acts that we face in a country

that treasures its privacy, treasures its liberty, but also wants to

protect its citizens; and that is the challenge we face in this subcommittee today.

With each successive terrorist attempt against our airports and

airplanes, the TSA has responded with new and usually more inconvenient technology to address the threat, from removing our

shoes at the x-ray machines to limiting liquids and gels to advanced imaging technologies that are able to screen whole bodies

for suspect material. I don’t deny there is a clear need for security,

as the attempts by would-be terrorist Richard Reid and Umar Farouk Abdulmutallab show, but I have serious concerns over protecting the rights of our citizens and ensuring that the technologies we

use are fully effective and safe.

Recent studies suggest that the whole body imaging technology

currently in use may be ineffective at detecting concealed explosives such as those used in the Christmas Day bombing attempt in

2009, as well as suggesting that the backscatter x-ray technology

in these AIT devices could be a higher risk to health than indicated. I believe that we should work together to find more effective

screening mechanisms through the greater deployment and use of

explosive trace detection technology that could better detect explosives and preserve the modesty and personal rights of American

citizens.

That is why I was proud to introduce the Protect the Lives of

Americans Now Through Enhanced Screening [PLANES] Act, last

Congress. This legislation calls for more intelligent use of screening

technology to ensure safety at airports. I look forward to the testimony of the witnesses today and I hope that this hearing sheds

light on why technology has to be the best answer to terrorist

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threats from the TSA and how we work together to protect the

rights and health of our citizens, and I yield back.

Mr. CHAFFETZ. The gentleman yields back.

We now recognize the gentleman from Arizona for 5 minutes for

his opening statement.

Mr. GOSAR. Thank you, Mr. Chairman and ranking member, for

holding this important hearing on the Transportation Security Administration’s use of whole body imaging at airport security.

A series of hearings starting today to analyze TSA’s efforts to increase airport security since the Christmas Day bomber incident is

the type of hearing this committee should hold to ensure the Government is working on the best interests of our constituents. In

light of the thousands of constituent concerns and alarming press

accounts we have heard, it is critical this committee revisit airport

security policy. TSA must develop effective policies and processes

that keep the traveling public safe and maintain our Nation’s security, while keeping in mind passenger safety.

Air transportation is one of our Nation’s most essential infrastructures, and the policies and activities to the Transportation Security Administration have a direct impact on more of our constituents than almost any other Federal agency.

In my home State of Arizona, Phoenix Sky Harbor International

Airport is a primary airport, one of the 10 busiest in the Nation

and among the top 20 busiest in the world. Sky Harbor Airport has

a $90 million daily economic impact. Last year they saw 38,554,530

passengers come through the airport and 276,338 tons of cargo

coming in and out, and over 440,000 aircraft passing through. With

the heavy volume of passengers, cargo, and aircraft, Phoenix Sky

Airport was one of the first test sites for the whole body imaging

scanners in 2007. Today there are nearly 500 imaging technology

units at 78 airports.

The implementation of the whole body imaging scanners in Phoenix Sky Airport has not been without controversy. There have been

numerous press accounts documenting passengers and these new

scanners, and I have heard concerns from many of my constituents

directly. There have been various local press reports mentioning

that passengers are concerned with the lack of privacy and who

may be viewing these images. I think we can all agree that we

need to effectively protect air passengers while at the same time

respecting passengers’ rights.

As a medical professional practicing for over 25 years, I am also

concerned about the potential health risks posed by the machines.

TSA reports on radiation exposure have been challenged by a variety of independent studies. I look forward to hearing the witnesses’

testimony on the scientific data, as it is critical that the health of

our constituents are carefully considered when analyzing TSA’s security efforts.

It is important to note that the whole body imaging technology

is not cheap. It is estimated that the total cost for this program will

be about $50 million for 2013. At a time when everyone is forced

to cut back, I think it is only fair to ensure that if the Federal Government is going to spend the money on this initiative, it better be

very effective.

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Finally, we must ensure that we have a consistent fair and uniform policy across the board. No one airport should operate any differently when it comes to security or how to handle passengers. My

constituents are telling me that simply is not the case. The Federal

Government must strike the proper balances between security and

policy.

I would like to thank the witnesses for appearing before the committee today and contributing to the committee’s work to reexamine TSA’s travel security policies. I look forward to hearing your

testimony and discussing what is and isn’t working regarding airport security. Thank you.

I yield back.

[The prepared statement of Hon. Paul A. Gosar follows:]

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Mr. CHAFFETZ. The gentleman yields back.

We now recognize the gentleman from Massachusetts, Mr.

Lynch, for 5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman. I want to thank the

members of the panel for appearing before the committee, when

they eventually do appear.

Just a point on that. As former subcommittee chair, it has been

the practice that we have taken agencies singly to allow them to

avoid conflict with other parties, and also just to give them a basic

courtesy. But I respect the Chair’s decision on how to handle that.

It is not necessarily how it has been handled in the past.

To the substance of today’s committee hearing, I do want to amplify the concern about health risks, and not only for the traveling

public, but we have TSA workers, TSOs, as they are called, Transportation Security Officers, who may indeed screen anywhere from

200 to 400 or 500 people in a shift. We have some very, very busy

airports that handle huge volumes of people, so one of the areas of

interest that I have is on their behalf, on behalf of our TSOs, to

make sure that this repetitive exposure, even though it is alleged

to be low level exposure, to the radiation, the low level radiation

given off by these scanners, I am concerned about their safety.

I have heard from a couple of the employer groups, I guess it is

not their official union yet, but the NTEU and also the American

Federation of Government Employees, who have asked that some

of these workers, just to allay their fears, be allowed to wear a dosimeter, which is a device which will record the levels of exposure

to radiation which the wearer encounters. And I think that is a

reasonable approach; however, it has not been embraced by TSA.

That resistance is similar to the resistance that we had a couple

years ago when we had the H1N1 epidemic, which emanated in

Mexico City, it started there, and yet we would not allow our TSOs

in Brownsville and a number of the airports along the Mexico border, we would not allow them to wear masks, we would not allow

them to use Purell on their hands in between the screenings and

pat-downs of people coming across the border.

So we allowed those officers to be exposed to a hazard that I

think they should not have been exposed to. And when I say we

would not allow it, the Department of Homeland Security and TSA

leadership would not allow those workers to protect themselves.

And yet those workers were going home every day to their families.

So you see the lunacy in that policy. So that experience does not

lead me to believe that responsibility is being taken by TSA.

The other issue is the privacy issue. This is a serious issue and

there has to be a way that we can protect the public during these

imaging screens, and I think the most profound deterrent to recklessness with respect to the screening process and the images that

can be stored on these systems is to provide a cause of action for

the public.

If TSA knows that they can be sued and serious damage can result to them as a result of their lapse handling of privacy issues,

then they will be diligent about protecting the public’s privacy. If

they can do it, if they can mishandle private information like that

and these images, and there is no consequences, then they will do

exactly that. Experience and reason agree on that point.

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So on those points, health risks and privacy issues, I hope that

we will get some helpful direction and instruction from our witnesses.

Mr. Chairman, I yield back.

Mr. CHAFFETZ. The gentleman yields back.

Would any other Members wish to make an opening statement?

[No response.]

Mr. CHAFFETZ. Members may have 7 days to submit opening

statements for the record.

We will now recognize our first panel.

We are honored to have Sharon Cissna, who is a member of the

Alaska State Legislature. She represents the 22nd District there in

Alaska. She is a Democrat, and I appreciate the length and the

short notice that she has taken to travel a great distance to be here

today, so we thank you for your presence.

Pursuant to committee rules, all witnesses will be sworn before

they testify. Would you please rise and raise your right hand?

[Witness sworn.]

Mr. CHAFFETZ. Let the record reflect that the witness answered

in the affirmative. Thank you.

Thank you again for being here. We will now recognize you for

five minutes.

STATEMENT OF REPRESENTATIVE SHARON CISSNA, ALASKA

STATE HOUSE OF REPRESENTATIVES

Ms. CISSNA. Chairman Chaffetz and Ranking Member Tierney

and also fellow members of the subcommittee.

I wanted to first of all introduce myself. My name is Sharon

Cissna and, yes, I am a State representative, State House, and

have been with the legislature now seven terms, I am in my seventh, and represent District 22, which is in fact the district in the

State that has the universities and medical systems that actually

serve the whole State. So my focus really is health and education;

those are the two focuses I have.

I have another thing that actually brings me here, and that is

that I fit a profile of the people that are harmed by the present

TSA, and those are initials that I haven’t actually used very often

before, but suddenly found myself actually, starting in November

of this last year, in a situation where, like so many other Alaskans,

I went down for a second opinion to Seattle and got back that medical procedure done, went out to the airport not having a clue that

there had been any changes in the screening devices, and SeaTac

had just put it in. This was in early November. And because in fact

I am what I like to consider a veteran of breast cancer, I fit that

profile that instantly is going to have the full, very invasive hand

search.

And this is not something that I have talked to many people

about, but I am going to talk to you now about it because I think

it is really important, and I think this actually, as I have listened

to your conversation, brings something that we really don’t oftentimes look at when we are talking about the total world of our

country. We don’t often. We look at the economy, we look at statistics, we look at that kind of thing, but oftentimes we don’t look at

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the individual lives of the people that we are serving and what actually is affecting them and how.

It isn’t oftentimes in the research that we see, and we see this

especially in Alaska because we don’t have enough numbers to

really make it work, and that is the research that shows what kind

of harm is really being done when. If you have very few numbers,

it doesn’t fit into research. And yet people are being harmed.

In my case it was because, as a teenager, I experienced bad

touch, and have spent my adult life working on making sure that

assault doesn’t happen to the kids that I have come in contact

with, which, having worked in the mental health field for a number

of years, starting in, actually, 1962, which, of course, shows that

I am not new at all of this, really has been something that is a lot

larger than we ever talk about or think about or even test. I am

fairly sure of that.

So when in fact I went through the screening device, I was in

front of the woman who tried to tell me that I simultaneously was

going to go through the new hand pat. I consider it feeling up and,

I am sorry, but I am going to refer to it that way. Please accept

that. I went through this and that is the way I feel about it.

She was also telling me, very rudely, as a matter of fact, that I

had to simultaneous to whatever she was going to do to me, and

she wasn’t really explaining that because I think she was trying to

remember. She had just been trained; she was learning. It showed.

But simultaneously I was supposed to be watching my baggage,

and at that point I look over at my baggage and other people’s bags

are now piling on top of mine and someone is going through my

bag trying to figure out, I am sure, if it was theirs. I start moving

toward it and she yanks me back and very rudely tells me stand

still, keep your eye on your bags. Yet I am supposed to now sit,

stand, and put my hands in certain ways to have her feeling me

up. And it was very intensive.

All right, that happened. For several weeks after that, I would

love to know if there is someone I could bill for the time I lost because of my emotional state, that actually was, I think, the emotional state that happened after that was very similar to what happens with probably anyone who has been through assault. And I

even wonder if in fact—am I running way past the time here? I am

sorry.

Mr. CHAFFETZ. We would like to ask unanimous consent to allow

her to continue with this testimony for another 2 minutes. Without

objection.

Please.

Ms. CISSNA. OK. Thank you.

So what happens is that I went through 2 weeks of very disrupted time over the response to that.

All right, moving forward again very quickly to February the

20th, not very long ago, I suddenly find myself having gone back

to the doctor and finding myself at the airport again and thinking

something had changed at the airport, find myself with the full

body scan, which I haven’t worried about. I have heard many people worry about it. But what happened after that was I faced the

woman and my husband and I had talked about it. I had vowed

that I was not ever going to go through that again. I said no.

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What I found out, after having said no and having really felt better after that, because I actually was starting to protect myself,

and I, to this moment, feel very proud of having done that, I suddenly put myself right in with all of the huge numbers of people

who have been harmed, and I have received well over 1,000 letters,

emails, Facebook is alive with this. It is amazing how many people

have stopped me. Every single day, many times a day, with their

stories of how they have been harmed, and I sent in my statement

that I emailed you folks many of the comments that were made.

But I have also witnessed exactly how Alaska does deal with

this. And the minute that I got back to Alaska, the thing that was

amazing to me was that my legislature had passed a sense of the

House on how I had done the right thing, that it was the right

thing for me to have done, and they have put out a resolution that

is to come to you; and it goes through all of the different things

that—and the most important is how important air travel is to us,

but how our Alaskans have been harmed. We travel four times

what the rest of the United States does, all the other members of

our citizens that travel.

And I think I am supposed to be ending here. I hope you will

read the rest of my comments and any other questions, please ask.

[The prepared statement of Ms. Cissna follows:]

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Mr. CHAFFETZ. Thank you and thank you for that testimony. We

will put the balance of your testimony into the record.

I would also like to ask unanimous consent that the resolution

from the State of Alaska be entered into the record. Without objection, so ordered.

[The information referred to follows:]

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Mr. CHAFFETZ. We now move to questioning. I would like to recognize myself for 5 minutes, and then each Member will be able to

ask 5 minutes.

One of the hallmarks of the United States of America is our commitment to the Fourth Amendment, unreasonable search and seizure. From your personal viewpoint, you are also a State law

maker, how do we find that balance, and what was your personal

experience? There are many that argue, well, if you choose to go

on an airplane, then you choose to give up those rights. Can you

share with us your perspective?

Ms. CISSNA. Thank you very much, Mr. Chair. And, Mr. Chair,

it is absolutely true for Alaskans that we don’t choose. We don’t

have a choice. I did make my way back to Alaska after that event

at the airport on the 20th of February, but it took 4 days. It took

4 days and I was really lucky because I was able to find, in Canada, someone to fly me to Prince Rupert. So then I was able to take

the marine highway and get to Alaska that way.

But for people in remote parts of our State, what happens is that

oftentimes their first time away from those remote places, because

of operations, have to fly out of the State, and they are a patient

at that time. I hope that they get consideration at that time when

they go out. We don’t have the level of screening because it is metallics in the metal detector that we get screened with so far. That

is what would have them felt up.

But after they come back, after they have the operation, when

they leave the operating scene and the hospital, what happens is

they are picked up by maybe a taxi, they are taken to an airport,

and they become not a patient anymore, they are just a standard

citizen. That is part of what I have heard from many of the caregivers in remote Alaska are talking about, is that they then, not

only is it the stretcher or the wheelchair or whatever they are

brought to the hospital, that has to be searched; it is taken apart.

Then they are very invasively examined. Mine was not anything

compared to what it would be for these people. And this is Alaska.

This is the experience that they go through under the current system, and that is what the legislature is hoping we do, is revert to

the less invasive.

Mr. CHAFFETZ. Now, certainly, we have to secure airplanes. I

mean, there is a terrorist threat.

Ms. CISSNA. Absolutely.

Mr. CHAFFETZ. But you would never pass somebody who has

some sort of prosthetic device or some other implant or something

like that, in theory, should not actually pass or get through those

whole body imaging machines and others. So do you have a suggestion on what we do as an alternative?

Ms. CISSNA. The fact is that until February 20th, I really had not

thought very much about this. Actually, it was actually in October

that I really started thinking about this. Not October, pardon me,

November. But I have had many, many letters from many, many

different people who have traveled all over the world, been through

all kinds of different screening devices. As I understand, there are

two that I have had close friends go through in this last year, both

in Holland and Israel. They have extraordinarily successful screening devices that are very noninvasive. Very.

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Mr. CHAFFETZ. But from your personal experience, going back to

the Fourth Amendment, unreasonable search and seizure, these

pat-downs are invasive, to say the least, and somebody who doesn’t

have another option, there are many of us that believe that this

would be deemed a sexual assault on a person.

Ms. CISSNA. Absolutely.

Mr. CHAFFETZ. Your personal perspective, and we have just 30

seconds here, based on what you have experienced in these patdowns, how would you relate that to the Fourth Amendment and

the definition of an assault?

Ms. CISSNA. I think it is absolutely an assault, and it is the worst

kind of assault in that it is essentially very similar to PTSD and

the kinds of reactions that people get with that. What I haven’t

seen are studies. What I am not seeing is the oversight that really

gives us a chance to really look at this and find out what is happening to our Americans. I am worried about my State, but I am

also worried about my fellow Americans.

Mr. CHAFFETZ. Thank you. Thank you. Appreciate it.

We will now recognize the gentleman from Massachusetts, Mr.

Tierney, for 5 minutes.

Mr. TIERNEY. Thank you.

Representative, thank you for coming here and testifying today,

particularly the difficulty it caused you. I know it wasn’t a pleasant

experience, and it can’t be easy for you to testify, so we appreciate

you coming all this way and talking with us today.

I think you hit it on the head: everybody would like a less

invasive, but equally effective, process on that, and that is what I

think the proper oversight is going to try to get us on that path.

In my opening statement I made reference to the fact that there

is apparently a technology out there now that is being tested that

would not give a full image, full body image, but rather would put

something like a Gumby, if you remember what the Gumby background was, or stick figure, something of that basis, and then identify only an anomaly that came up, say, on your leg, if you had

something strapped to your leg or whatever, and then that would

be the only area that was patted down or investigated.

Do you have a feeling about that aspect of it? Do you think that

is still a problem?

Ms. CISSNA. The problem appears to have been not having done

adequate study for there not to have been really the time taken to

make sure that we are doing no harm. And that is the most critical

role any lawmaker has, is to do no harm. And not taking the time

is something I think we have to fix. That is doing our job.

Mr. TIERNEY. I understand your comment and I understand that

Congress has to take some responsibility for that after the so-called

underwear bomber or shoe bomber, whatever they were faced the

confrontation doing nothing, which didn’t seem, I guess in their collective wisdom, to be the way to go because the situation was there,

so they did what they thought was best at the time and were being

told that was effective.

But my real question on this particular one was if there was not

an image of your individual being up there, but some sort of a

Gumby or stick figure or whatever, and if there was an anomaly

that was detected in some isolated location on your body and that

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area was the only area inspected, what is your reaction to that sort

of examination or process?

Ms. CISSNA. I think you have to look at the whole process because one triggers the other. And the thing that is the most troubling to me is, as I look at all of the people on the airplane as I

am getting on, understand, they are all guilty before they are proven innocent, and we have to get away from that. We have to really

start respecting our people.

Mr. TIERNEY. So I guess are you saying that basically let everyone on unless they have some telltale sign?

Ms. CISSNA. Absolutely not. Absolutely we have to do the kind

of screening that gets us the best results. But it doesn’t have to be

the one—the technology that is there now is not——

Mr. TIERNEY. I know. I get that. I guess I was trying to get your

opinion on an alternative one, but you apparently don’t want to

give your opinion on that.

Ms. CISSNA. Not without a lot of facts; not without proof that it

is good. Not without proof that we have done our job.

Mr. TIERNEY. I think that goes without saying.

OK, I yield back.

Mr. CHAFFETZ. The gentleman yields back.

We now recognize the gentleman from Texas for 5 minutes.

Mr. FARENTHOLD. Thank you very much.

I can understand what you have been through. Both my daughter and I have had the misfortune of triggering these machines

with anomaly, and the search we both endured was very invasive,

and you have the greatest sympathy from me.

Let me ask you. One of the things that you have not addressed,

or if you did, I was reading through your testimony and didn’t hear

it, but my question is, would you be willing to submit to some form

of background checks, surrendering your fingerprints or retinal

data in order to get into a trusted traveler program where you are

able to undergo a less strenuous level of security? Would you consider that to be a reasonable alternative?

Ms. CISSNA. I would consider that to be reasonable. And that

kind of alternative is one. There are others also that are using psychological procedures that actually help create a profile; not a racial and not a cultural profile, but one that actually will, a scan

that identifies people who are obviously up to no good. And there

are ways of coming up with that; that has been found in other

places. But it is a matter of actually looking elsewhere and seeing

if there aren’t other options. There usually are.

Mr. FARENTHOLD. It is my understanding that the TSA profiles

boxes, but they don’t profile passengers. They will profile a box

based on its shape, its country of origin, where it was shipped from.

We take no effort at all to determine if you are flying in from middle America or a foreign country that is hostile to us; your level of

screening is the same and, to me, that defies logic. That is not a

question, that is a speech, so I will yield back the remainder of my

time.

Mr. CHAFFETZ. The gentleman yields back.

We now recognize the gentlewoman from Texas for 5 minutes.

Ms. JACKSON LEE. I thank the chairman of the subcommittee

and the ranking member of the subcommittee especially for their

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courtesies, and I thank the chairman of the full committee and, as

well, the ranking member of the full committee for their courtesies.

It is a pleasure to see you this morning. I am not on this committee, but I am the ranking member and former Chair of the Transportation Security Committee with oversight over TSA and on the

Homeland Security Committee. I will tell you that many of my

waking hours address the question of professionalism and more

training for the Transportation Security Officers, and I think you

would venture to say, as someone who needs flying as a mode of

transportation, that in most or many instances our TSO officers

work within the realm that they have and use the skills in an appropriate manner. But you are right, we have to look at those

issues that, as our colleagues have indicated, may impact the

Fourth Amendment, may impact the dignity of all travelers.

I do want to put on the record that I am going to join with the

ranking member of our committee, Homeland Security, Mr. Thompson, and will be writing a letter to ask for alternative protocols for

individuals in your situation and also individuals who are traveling

with medical devices and traveling with other medical equipment,

traveling with a caretaker; and we expect to hear from them very

soon and will be working with this committee. So I look forward

to utilizing your written testimony.

I listened to my friend and colleague from Texas about the trusted traveler, and there are a lot of options that we could look at.

My question to you would be to establish the fact that there are

threats to the United States. You still believe that is the case, is

that true, Representative? You have to be oral on the record so

they can record it.

Ms. CISSNA. Thank you very much. Thank you. Yes, I certainly

do agree with you. And it is absolutely essential, living where we

do on the northwest perimeter of our country, we are right there.

We are at the place where we really need to be constantly alert,

and that is exactly why I have the feelings I do, is that I need to

keep my population safe and strong so that they can be watchful

too. We are the ones who are going to see trouble coming from another direction.

Ms. JACKSON LEE. Well, you have the eyes and ears. So we lay

that groundwork and we know that the Transportation Security Officers play a valuable role in that, and you too watched that fateful

Christmas Day when we saw a unique effort of trying to blow up

a plane and harm the United States, the Christmas Day bomber.

That generated this enhanced review, if you will. So would you

offer to me any other thoughts you have about, just briefly, on

what enhanced security measures you think we should take?

Ms. CISSNA. Thank you very much, through the Chair. The list

of things that you are asking for, some kind of either exemption or

some kind of way that people can avoid the more intense kinds of

screening, any kind of prosthesis at all is a problem. Any kind of

not just medical, but when people have pacemakers. And the things

that people are going through is just amazingly severe. And I agree

with you that the TSA employees that I have seen are doing a really good job of improving their attitude. Their treatment of the public seems to be improving. So it is the procedure itself that is the

problem.

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Ms. JACKSON LEE. I have just a few more minutes, if I might just

say have you gone through an AIT machine? Have you gone

through those machines?

Ms. CISSNA. That is the full body?

Ms. JACKSON LEE. Yes.

Mr. CISSNA. And, through the chair, pardon me. Yes, I did twice,

actually.

Ms. JACKSON LEE. And that is when they found something. So

my point is, let me just conclude by saying on that point you willingly went through the AIT. We thank you for that. We need to

look at protocols that then respond to how we address individuals

with medical concerns, devices, prosthetics, and my commitment to

you is that we look forward to addressing that question.

With that, Mr. Chairman, I yield back. Thank you for your courtesy.

Mr. CHAFFETZ. Thank you. Glad you could join us. The gentleman yields back.

We now recognize the ranking member from Maryland, Mr.

Cummings, for 5 minutes.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

First of all, Representative, I want to thank you for being here

today. Sometimes when we are addressing issues that are very personal, it is very, very difficult because what it says is that we are

opening up ourselves to the public. Folks will be watching you on

C–SPAN tonight; some of them are watching you right now. So you

not only become exposed to a few folks, but you basically become

exposed to the whole country, and for that I thank you, because

you said some things that really touched me and there are two elements that kind of hit me.

One, you talked about the training and whether this person was

properly trained, and you talked about courtesy. Then you also

talked about the invasiveness and the medical situation. And then

you also talked about how there are some things that people just

should not have to go through. And I guess I am just trying to

make sure that we strike this balance.

Now, one thing is for sure. We certainly can try to make sure

that the TSA administrator brings some type of sensitivity training, if they don’t already, to their folks. They need to know what

people go through. I have relatives that have experienced medical

situations where they have certain devices that might send off any

machine or whatever. So I can understand that. But they need to

be sensitive to that too. And there is nothing that is worse than

somebody not being courteous to another human being.

President Obama said something that I wish I had invented myself. He said sometimes we have in our country an empathy deficit,

an empathy deficit. So what I am hoping is that your testimony

will allow us to strike the balance that I know you want, because

you fully understand safety, but you also understand privacy. You

understand making sure that a plane doesn’t come down out of the

sky, but you also know that there are millions upon millions upon

millions of people who travel who never even have an idea, even

think about trying to bring any kind of harm. So it is a tough one.

So, again, I want to thank you because I believe that your testimony will help us try to get to that balance that we need. I have

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often said this, so often when we go through something it provides

us with a passport, because we have experienced it, to help other

people and to help address their problems, because we become the

greatest witnesses. Somebody just saying it, talking about it is one

thing, but when you have been through it, that is a whole other

thing.

So I don’t really have any questions, I just wanted to thank you.

I wanted to thank you, after going through all that you have been

through and being exposed all the ways that you have been exposed, and now to even go through another exposure for the sake

of balance, for the sake of safety, for the sake of the rights of all

of our citizens, on behalf of our Congress and of our Nation, I take

this moment to simply say thank you.

With that, I yield back.

Mr. CHAFFETZ. The gentleman yields back.

Representative, we are concluding this first panel. Do you have

any concluding comment that you would like to make briefly?

Ms. CISSNA. Thank you, Mr. Chair.

Mr. Chair, actually, the comment that all of this has brought to

me over the last several weeks that I have been really the focus

of a huge number of people coming and telling me things they

haven’t told other people is that the sense I have gotten is there

are many people who have been losing the trust of their government through this kind of thing, and that doing this right, that is

one of the things that we really do, is we win back the hearts of

our people.

And I believe in government; I think government is the answer

in its own way, and it needs to keep that idea in a balance. We

need both public and private, but government can answer a lot of

problems that we have, but without trust, we are not going to keep

the kind of democracy we have. So thank you.

Mr. CHAFFETZ. Thank you. Thank you. I appreciate your time,

your bravery for being here and sharing a very personal story. You

represent the story of a lot of Americans. We thank you for the

time and effort that you have taken to be here. It is a long trek

to be here, but I assure you that it is very worthwhile. We thank

you. May God bless you.

For now, we are going to go into recess here for about 5 minutes

or so while we prepare for the second panel. Thank you.

[Recess.]

Mr. CHAFFETZ. The committee will now come to order. We will

start our second panel with a note that, by mutual agreement, we

are told that the TSA will show up at 12:15. So we are going to

try to have a third panel at 12:15. Nevertheless, we want to start

with the second panel. We appreciate all of you gentlemen for being

here this day. Let me do some brief introductions and then swear

you in, and then we will go to the 5-minute opening statements.

Mr. Marc Rotenberg is the executive director of the Electronic

Privacy Information Center [EPIC]; Dr. David Brenner is a Higgins

professor of radiation biophysics and the director of radiological research at Columbia University; Mr. Fred Cate is a senior policy advisor with the Centre for Information Policy Leadership at Hunton

& Williams; and Mr. Stewart Baker is a partner with the law firm

of Steptoe & Johnson LLP.

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We appreciate all of you gentlemen being here with us today. We

appreciate your credentials and look forward to your testimony.

Pursuant to committee rules, all witnesses will be sworn in before

they testify. Please rise and raise your right hands.

[Witnesses sworn.]

Mr. CHAFFETZ. Let the record reflect that all witnesses answered

in the affirmative.

We will now start with opening testimonies. We would appreciate

it if you would limit your comments to 5 minutes, but your entire

written statement will be made part of the record.

We will start with Mr. Rotenberg. You are recognized for 5 minutes.

STATEMENTS OF MARC ROTENBERG, EXECUTIVE DIRECTOR,

ELECTRONIC PRIVACY INFORMATION CENTER; DR. DAVID J.

BRENNER, CENTER FOR RADIOLOGICAL RESEARCH, COLUMBIA UNIVERSITY; FRED H. CATE, SENIOR POLICY ADVISOR,

CENTRE FOR INFORMATION POLICY LEADERSHIP, HUNTON

& WILLIAMS; AND STEWART A. BAKER, PARTNER, STEPTOE

& JOHNSON LLP

STATEMENT OF MARC ROTENBERG

Mr. ROTENBERG. Thank you, Mr. Chairman and members of the

committee.

I appreciate the opportunity to appear today before you. I also

wanted to thank you personally for the leadership that you have

shown on this particular issue, which is of great concern to the

American public. I also want to begin by saying that EPIC fully appreciates the important mission that the TSA has and the importance of protecting aviation security. There is no dispute about that

today.

What I would like to do is describe for the committee the work

that we have pursued over the last 5 years concerning a particular

airport screening technology that the TSA has adopted and now

hopes to widely deploy in U.S. airports, and that is the body scanner technology.

We became aware of this technology almost 6 years ago. We followed at the very beginning the concerns that had been raised

about the privacy impact, about the health impacts, and also

whether the technology would be effective. We were very cautious

at the outset; we wouldn’t make any strong statements until we

had obtained more facts to understand how the technology would

be used.

So we began a series of Freedom of Information Act requests. We

were trying to understand the technical specifications, the protocols, the contracts that had been arranged with the vendors. We

also began to work with expert organizations, civil rights groups,

groups across the political spectrum, groups that represent passengers, groups in the travel industry.

And as we became aware of the concerns that had been raised,

we joined with these organizations and submitted a petition to Secretary Napolitano in the spring of 2009, shortly after we learned

of the TSA’s plan to make these body scanners the primary screening technique in U.S. airports. This seemed to us to be a sharp deVerDate 11-MAY-2000 12:26 Aug 04, 2011 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67371.TXT KATIE PsN: KATIE
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parture from what the agency had previously said about the use of

this technology.

So 30 organizations wrote to the organization in the spring of

2009 and respectfully asked her to conduct a public rulemaking so

that there would be an opportunity for the public to express its

views on the TSA’s program and so that TSA’s decisions on those

comments would ultimately be subject to some type of judicial review. We also, in that petition, urged her to suspend further deployment of the technology for primary screening because we felt

the case had not yet been made that they were sufficiently tested.

And I will say, Mr. Chairman, it was around this time as well that

your bill which you introduced in the House passed through the

House with more than 300 votes, which was essentially trying to

drive the agency back to the same position, to keep these devices

for secondary screening, where they might be used for special

cases.

Now, the story actually gets quite a bit more interesting because

in January 2010 we obtained the first set of documents that we

had requested under the Freedom of Information Act, and I have

attached to my testimony just a couple of pages. We actually have

thousands of pages that roughly fall into two categories. The first

category is the description of the devices and the second category

is the many traveler complaints that the agency has received.

Now, the description of the devices—and now we are talking

about the procurement specifications, and the vendor contracts are

very significant because what these documents reveal because the

devices that the TSA described to the vendors, in other words, the

specifications that the agency outlined, was for devices that had

the ability to store and record and transmit images of the naked

human body.

Now, I am quite sure there is going to be some back and forth

this morning about what that means. The agency will say, for example, that they don’t save the images, they store them on a temporary basis and then they are deleted. But I need to make very

clear at this point that we have done a lot of related litigation on

this issue and we have obtained, for example, from the U.S. Marshal Service more than 100 images of a body scanner device very

similar to the one used by the TSA. This is used by the Marshal

Service in Orlando, Florida, in a courthouse. The images are routinely stored and recorded.

The TSA itself, subsequent to the documents that we obtained,

acknowledged that in fact they were storing and recording images

in test mode. And then when, last year, I believe Chairman Thompson pushed them a bit further on that, they also acknowledged that

they were storing and recording images in training mode. Now we

know that the agency has over 2,000 images, and I am referring

back to the TSA, detailed images, 2,000, they will not turn over to

us because they, for whatever reason, I think they don’t want the

public to see this.

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OK, I will conclude. There is a lot in my testimony, but just in

conclusion, the privacy issues here are enormous. The Fourth

Amendment implications are enormous. There is the harm that we

can see about these devices and then there is the harm we can’t,

and that is what I am here to discuss.

[The prepared statement of Mr. Rotenberg follows:]

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Mr. CHAFFETZ. Thank you.

We will now move to Dr. Brenner. Same thing, please pay attention to the light. If you keep your comments to 5 minutes, we

would appreciate it. We now recognize you for 5 minutes.

STATEMENT OF DAVID J. BRENNER

Mr. BRENNER. Thank you, Mr. Chairman. My name is David

Brenner and I am the Director of the Centre for Radiological Research at Columbia University and have about 30 years of experience in low dose radiation risk estimation. So I think one should

preface any comments by saying that improved scanning of humans at airports is both desirable and clearly necessary.

As you know, there are actually two different AIT, advanced imaging technologies, that are currently being deployed, that is x-ray

backscatter scanners and millimeter wave scanners. And in many

ways they operate in exactly the same way; the analogy is radar,

they bounce radiation off the individual and the reflected radiations are what are analyzed. The difference, as in the names, is

of the x-ray back scanners use x-rays; millimeter waves do not.

And, at least at higher radiation doses, it is certainly proven that

x-rays are a carcinogen. There is no such evidence for millimeter

waves. So I will focus my comments on x-ray backscatter scanners.

So let’s talk about the individual risk, the risk of one average

person going through the scanner once. The doses involved are extremely low, and that means that the risks, and the risks we are

talking about are long-term radiation-induced cancer, are also extremely low. In fact, we can actually put some numbers on those

risks. So the risk of an average person going through the scanner,

the risk of a long-term induced cancer is like 1 in 10 million. Now,

by any stretch of the imagination that is an extremely small risk.

So I think I would agree with the TSA’s characterization that in

that context these devices are safe.

Of course, there are caveats there. Frequent fliers, for example,

who can go through a scanner 200 times a year, the risk would be

200 times that. Air flight personnel can go through the scanners

300 or 400 times a year, so the risks are correspondingly higher.

And there are also populations that are more sensitive than average, and children are the biggest example there; children are more

sensitive to radiation-induced cancer than adults are.

So that is individual risk. So I would certainly go along with the

general consensus that you can consider them safe in that context.

But there is another way that we always need to think about

risk, and that is what we usually call either public health or population risk, and that is to do with both the individual risk and the

number of people exposed to that risk. If you have a small risk, but

only a few people are exposed to that risk, there is not much public

health concern. But if you have a small risk and very large numbers of people exposed, then you get a public health concern.

And, of course, the issue here is that the TSA’s plan now is the

goal is to have everybody scanned with these new technologies, and

number-wise that means 700 million scans a year at the moment,

increasing in a few years to a billion scans a year. So we are talking about an extraordinarily large number of scanners.

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And you can make a population estimate. Well, how many cancers would you think would be produced by a year’s worth of scanning if you had a billion scans? And the answer is around 100, 100

cancers a year produced by a billion scans. It is important to stress

there are a lot of uncertainties involved in that number, but it is

the best we can do, and it is done with fairly standard approaches.

So even with 100 cancers a year you could certainly make the argument, well, we are talking about risks and benefits here. The

benefits of not having our airplanes blown up would in fact counteract that relatively small risk. But because we have two technologies here, the millimeter wave scanners and the x-ray scanners, and both are apparently equally effective at doing what they

are designed to do, but the millimeter wave scanners do not have

that potential for long-term population risk, but the x-ray scanners

do. To our mind, it makes a lot of sense that we should be thinking

more about using the millimeter wave scanners and less about

using the x-ray scanners.

And I will stop my testimony there. Thank you, Mr. Chairman.

[The prepared statement of Mr. Brenner follows:]

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Mr. CHAFFETZ. We applaud anybody who leaves a good solid 8

seconds on the clock. We appreciate that. Thank you. Thank you

for your testimony.

Mr. Cate, you are now recognized for 5 minutes.

STATEMENT OF FRED H. CATE

Mr. CATE. Thank you very much, Mr. Chairman. Can I have his

8 seconds as well?

Mr. CHAFFETZ. They have come and gone. [Laughter.]

Mr. CATE. I would also like to thank you and Mr. Tierney and

your colleagues on this committee. This is an extraordinarily important subject because the TSA is an agency that touches probably

more Americans than any other agency which has the power that

it has; and now, of course, it is touching them far more intimately

and in an environment in which they either choose not to fly or to

be subject to that scrutiny. And because so much of the work they

do is governed by policies and procedures which are not made public, the review date on this equipment largely not made public, the

oversight of this committee is exceptionally critical, perhaps more

so than in any other area.

I have been asked to address AIT effectiveness, and this is a

somewhat complicated issue because we can talk about the effectiveness of machines or we can, I think, more profitably talk about

the effectiveness of the machines as they add to a system of security that the TSA is carrying out at airports; and it is in that latter

context that I think we can say quite safely that AITs have introduced a distraction into the security system that may actually be

weakening, rather than enhancing, our security at airports.

It is useful to remember what AITs do. They do not detect explosives. They do not detect firearms. They do not distinguish dangerous from ordinary materials. All they can do is identify what

they consider to be anomalies on the body of a traveler. Now, that

is a pretty limited function. It means if the traveler secretes something internally, or even in his or her mouth and closes the mouth,

they can get through security without the AIT detecting it.

It also means that if we define anomaly as the TSA currently

does, to mean anything that looks different than what they would

expect, we are generating millions of false positives a year. This is,

of course, why we have to take tissues out of our pocket and dollar

bills and candy. All of these are considered anomalies by the AIT.

So despite the fact that these have been advertised in the American public on the basis they can see through clothing to really see

if you present a risk, the opposite is in fact true. They cannot determine what a risk is. Therefore, we have turned the TSA largely

into cloakroom attendants who are trying to get all of our anomalous goods off of us so that we can go through the machine, thereby

leaving less for the TSA to have to screen.

This high rate of false positives is one reason for concern. Another is that we in fact have a very difficult time clearing the

anomalies that do go through the system, because, in fact, even

with a pat-down search, we often don’t know what those anomalies

are.

I mention in my written testimony, I was reminded of this last

week, flying through Washington National Airport, I had dropped

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an aspirin in my pocket, forgotten it was there; the machine identified this as an anomaly. You would think this billion dollar technology could tell the difference between a tiny little aspirin and

something that might pose a threat, but it cannot, so, therefore,

this required a pat-down. The agent pulled it out and said what is

this? I said an aspirin. He said, thank you, go right on through.

Of course, he had no idea what it was. Once I had been subjected

to the search, whether it was a dangerous chemical, whether it was

an explosive, no earthly idea; he simply let me put it in my pocket

and I walked through. The search had gained us nothing.

That is actually true, in following on our first witness this morning, with most medical devices. And I experience this as a diabetic

who wears an insulin pump. So I walk through. If I have the insulin pump on, I am then either subject to a complete pat-down, as

if for some reason having an insulin pump makes it more likely

that I will be a terrorist, or, if I take the insulin pump off, I am

still left with a plastic cannula in my stomach that carries the insulin.

This, of course, is an anomaly. I then become subject to another

pat-down. The agent feels it and says what is that? I say, it is a

cannula. OK, 8 out of 10 have no idea what that is anyway; they

say thank you very much, they are invariably polite, and I walk on

through. Like one out of five say, oh, you are on an insulin pump,

they are invariably polite, and I walk on through.

Now, when I asked the TSA what it is about cannulas that they

are so worried, they say, well, we are worried you might have

bombs inside of you and this would be the mechanism for setting

it off. I have no idea how great that threat is. I do know that agent

has no idea at the site of the AIT and the search whether that is

true or not. All they know is that they detected a plastic piece of

tubing coming out of my stomach and I gave them an excuse for

it.

Now, let me conclude by saying I too am enormously respectful

of the difficult and important job the TSA has, and would also comment on the extent to which so many TSA agents that I encounter

are invariably courteous and I think extremely well intentioned. I

think they are as frustrated as we are by the irrational policies

they are being asked to carry out.

Thank you.

[The prepared statement of Mr. Cate follows:]

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Mr. CHAFFETZ. And even more impressive; only 1 second on the

clock. The Chair cannot thank you enough for wrapping up your

testimony.

I challenge Mr. Baker to beat that goal here as we recognize him

now for 5 minutes.

STATEMENT OF STEWART A. BAKER

Mr. BAKER. I appreciate being here.

I would like to just make three or four points. First, we obviously

can’t start this analysis by what we would like TSA to do; we have

to start with what Al Qaeda wants to do, and Al Qaeda clearly

wants to blow up planes over the United States if it possibly can.

It is very conscious of what our security protocols are and it shapes

its weapons to meet them. If we stop looking for shoe bombs, they

are going to use shoe bombs. If we stop looking for underwear

bombs, they are going to use underwear bombs.

Given that, my second point is, with that constraint, knowing it

has to look for those weapons, and with one big caveat, TSA’s

measures are relatively effective and appropriately shaped to the

nature of the threat. They have only changed their protocols, by

and large, in response to demonstrated threats that were actual

plots that could have brought down planes, and, by and large, each

of the changes they have made is aimed at finding those particular

weapons.

I won’t go into the privacy protections that have been built into

the AIT systems; you will be hearing from the TSA about those.

But they are, by and large, effective. I have been through patdowns. I would take issue with people who describe it as akin to

a sexual assault; I thought it was very professional. And while I

would much prefer to go through a scanner, the pat-downs are not

a shocking experience, at least they were not for me.

But let me return to the caveat, because I think there is a way

in which TSA is not doing what it should and could. It is still looking for weapons. All of the measures that it has adopted since 9/

11 are focused on looking for weapons. And as Representative

Cissna said, the result is we are all treated as though we are potential terrorists. We are all suspects, we are all treated the same

way and screened in the same fashion.

We do not look for terrorists, and the reason TSA does not look

for terrorists is it doesn’t know enough about the people that it is

dealing with to actually identify even a risky traveler. It doesn’t

know as much as a State trooper who stops someone on the highway knows about the person they have just stopped. It certainly

doesn’t know as much as other DHS elements like the Customs and

Border Protection Agency know about people coming across the

border, where in fact they know more and are able to move the

travelers much faster. It doesn’t even know as much as United Airlines. If you said who is going to do a better job of using data to

find terrorists, United Airlines would have more data to use than

TSA. This does not make sense.

And that brings me to my last point, which is we probably have

taken the search for weapons as far as we can. I know there are

people who think we have taken it too far. There certainly are possibilities for weapons. I don’t think we have yet developed threat

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case aspirin bombs, but there are certainly possible weapons and

places to hide them that our search for weapons is not going to find

them.

Therefore, we are going to have to spend more time looking for

possible terrorists, risky travelers, and I would submit that most

people who travel today would say if I could give information, if the

fact that I was just discharged from the hospital after an operation

was information that was available to TSA so they could verify my

story and speed me through the line, that would be a much better

step than having everyone screened in the fashion they are currently screened.

So my suggestion for this committee, for the Homeland Security

Committee is that we allow TSA to set up some voluntary programs. Are already giving people a choice between a pat-down and

a scan. Why not let people say, you can have my travel information, you can have some basic background information on me. If

that will make the screening more effective and faster, I would

rather do that than go through the scan every time or the pat-down

every time.

So my suggestion for ways to improve the system that we have,

and potentially reduce some of the intrusiveness of some of the

screening, is to begin a process in which people can voluntarily

agree that they will give up information in exchange for faster

screening.

Thank you.

[The prepared statement of Mr. Baker follows:]

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Mr. CHAFFETZ. Thank you. I continue to be impressed by the

prompt nature of our panel. I will duly note that for future panels

going forward. Nevertheless, we would love to move to the questioning phase. I am going to start by recognizing myself for 5 minutes.

Mr. Baker, I think you make an important point, that there are

many of us that are concerned that what happens at the TSA is

more TSA screening theater than it is about truly targeting and

highlighting those that pose the greatest risk. I, for one, believe

that the challenge before this country is how do we become more

effective and less invasive; that we should not have to give up all

of our personal privacy in order to secure an airplane. Nobody

needs to look at my kid or my grandmother, whatever, naked in

order to secure an airplane. And we as Americans should demand

that we raise the bar on both and protect people’s personal privacy,

and we shouldn’t accept anything less.

I would ask unanimous consent to enter into the record three articles that deal with the same topic. This first one, $19 billion later,

the Pentagon’s best bomb detector is a dog. The Pentagon, having

spent $19 billion trying to ferret out improved explosive devices

and the components thereof, have come to the conclusion that the

very best way to actually find these bomb making materials,

whether they be in a car or on somebody’s person, is the good old

fashioned dog. There is nothing like a good German Shepherd.

They can be a whole lot less invasive, much less costly.

My fear is that what these dogs don’t have lobbyists. And I really

do worry that we have propelled ourselves into this false sense of

security that these machines work, that they are safe, and that we

are not storing any images. And I have challenges on all three of

those fronts because through my research and the information I

have seen, I don’t know that is true. So again I would ask unanimous consent to enter these three into the record.

Mr. TIERNEY. No objection, but just a question, Mr. Chairman.

Are those the actual studies or are those just articles about the

study?

Mr. CHAFFETZ. Those are the articles referencing the study.

Mr. TIERNEY. Thank you.

Mr. CHAFFETZ. Without objection, they will be entered into the

record.

Let’s talk, particularly with this panel, and I want to start with

you, Dr. Brenner, talk about the safety and efficacy. I worry about

a couple of the more vulnerable people, the 65,000 people at the

TSA that are around in close proximity to these machines on a

daily basis. We also have people, pregnant women. We probably

have pregnant TSOs that are there working at the airports. We

have people with pacemakers, for instance. There is an article that

was released that was in USA Today with a statement that came

from TSA on a Friday saying that the machines that they had tested were emitting 10 times the allowable dose of radiation, or the

normal dose of radiation.

Do you have any insight into the release of that data and that

information?

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Mr. BRENNER. Well, coming to your final comment about the factor of 10, my understanding is that it was an arithmetical error in

analyzing the data and probably——

Mr. CHAFFETZ. Are you aware of who actually conducted the test

on the machine?

Mr. BRENNER. No, I am not.

Mr. CHAFFETZ. My understanding is that the people that actually

conducted the test on the machines was the manufacturer of the

machines. Do you have any insight into whether or not, how that

strikes you?

Mr. BRENNER. Well, it doesn’t give you a great deal of confidence,

of course.

Mr. CHAFFETZ. I guess, as a Member here, this concerns me. The

people conducting the test on the machines are the manufacturers,

and even they have come to the conclusion one-third of their machines are emitting 10 times. Now, they will say that is a mathematical error, it was a training error, we didn’t calculate it properly, but we can’t make mistakes with pregnant women. You can’t

make mistakes with people with pacemakers. What would be the

effect of somebody who is repeatedly, in high doses, exposed to that

type of radiation?

Mr. BRENNER. Well, let me come at your first comment. It is very

true that the general scientific community does not have access to

a measurement from these machines, so we are reliant on studies

that are commissioned either by the TSA or by the manufacturers.

Mr. CHAFFETZ. Mr. Rotenberg, what has been your experience in

trying to access that type of data and information along the way

from the TSA?

Mr. ROTENBERG. Actually, Mr. Chairman, we recently submitted

a FOIA request to the agency to make those materials available.

We don’t have expertise in that field, but it is our view that information should be available to Dr. Brenner and others so that those

with the expertise are able to provide some independent judgment.

Mr. CHAFFETZ. Mr. Rotenberg, if I could, and Mr. Cate, very

swiftly, the 9th Circuit Court of Appeals has allowed TSA patdowns to be deemed as legal as long as it is ‘‘limited in its intrusive

as is consistent with the satisfaction of the administrative needs

that justify it.’’ Would you care to comment on that very briefly?

My time has expired.

Mr. ROTENBERG. Yes. Just very briefly, both the 9th Circuit and

the 3rd Circuit, this was an opinion by then Judge Alito, have said

that these techniques have to be minimally invasive and effective,

and our case against the TSA is that in fact they meet neither test.

Mr. CHAFFETZ. Mr. Cate.

Mr. CATE. Thank you, Mr. Chairman. I would just echo that and

add when the National Academy of Sciences panel met for 2 years

to look at the question of programs such as this, it recommended

an option of a framework that Congress would require agencies

wanting to deploy equipment like this for to determine both intrusiveness into privacy and effectiveness. It would do this on the

record to the extent consistent with national security goals and it

would do it in a way so that Congress could provide effective oversight. Despite the fact that DHS actually paid for that study, it has

not implemented the framework.

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Mr. CHAFFETZ. Thank you. My time has expired.

I now recognize the gentleman from Massachusetts, Mr. Tierney.

Mr. TIERNEY. I just want to comment, Mr. Chairman, the panel

did a much better job of keeping the time than you did. [Laughter.]

And not being a stickler for time, I don’t say that for anything

other than its humor.

Mr. CHAFFETZ. Duly noted. Guilty as charged. I agree.

Mr. TIERNEY. I think we need to take the time on this serious

issue. But you all did much better, so thank you.

Let me just follow through, Mr. Cate. First of all, I thought your

testimony was very interesting and very good, and I thank you for

it, but I thought one of the interesting parts, are you an expert on

the technical security aspect or on privacy aspect?

Mr. CATE. I am certainly an expert on the privacy aspects. I am

also an expert on security systems, but not the technical side of

this. That is why I didn’t direct my testimony to that point.

Mr. TIERNEY. I thought a number of the comments you made, I

was expecting the privacy angle, and then you hit it from the other

angle, and I thought your comments were very interesting. But

none more interesting, I think, than the last comment that you

made about there having been a recommendation by the National

Academy of Sciences for a proposed framework for evaluating the

effectiveness and privacy impact of any new systems and technologies. And your testimony is that the TSA is not doing that on

every plan that they put forward?

Mr. CATE. That is my testimony, sir. I would say, of course, if

they are doing it in a classified environment, I would not know

that.

Mr. TIERNEY. Right. I think we will have to ask them that.

Mr. Baker, do you know whether or not that is accurate?

Mr. BAKER. I don’t know whether the particular framework recommended by the National Academy of Sciences was followed, but

certainly these machines were put through substantial testing even

at the end of the Bush administration. So they have been in testing

for quite some time.

Mr. TIERNEY. But we are just not sure whether it was the NAS

protocols or not.

Mr. BAKER. Yes. And I have to say, you know, everybody has an

idea for how you could do this testing better, slower, have public

comment, have a judicial review, but we had an underwear bomber

in Christmas of 2009. These machines were deployed in Thanksgiving of 2010. That was remarkably slowly. If we had waited for

Mr. Cate’s process, we would still be standing around with our

hands in our pockets.

Mr. TIERNEY. All right.

Dr. Brenner, can I just clear one thing up with you, because I

think it is important on that. To my knowledge, nobody refutes the

fact that there was a mathematical error made by the manufacturer when he tested that. Am I right in saying that?

Mr. BRENNER. Yes, I believe so.

Mr. TIERNEY. OK. I mean, I just think it is important that we

understand what the situation is. If there was a mathematical

error and whether or not that makes them really, really, really,

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really bad on math is one question, but I think we should just get

the facts.

Now, you testimony raises really potentially serious public health

concerns, so I want to make sure I understand it correctly on this.

The American College of Radiology released a statement and it said

‘‘it was not aware of any evidence that either of the standing technologies that the TSA is considering would present significant biological risks for passengers screened.’’ Before that the Food and

Drug Administration, the National Institute for Standards and

Technology, and the Johns Hopkins University Applied Physics

Laboratory all determined that the radiation doses for individuals

being scanned by x-ray backscatter machines was minuscule and

far, far below the accepted industry guidelines.

So, according to those studies, one x-ray backscatter scan is

equivalent to roughly 2 minutes of traveling in an airplane at altitude, 1 hour spent outside, generally outdoors, or eating one banana. Do you disagree with any of those three studies that say the

total radiation exposure provided by one x-ray backscatter scan is

roughly equivalent to those basic every day activities?

Mr. BRENNER. Well, I don’t think it is equivalent to eating a banana, but I do agree in general with the comment that the individual risk from a single traversal of the machine is extremely small.

In fact, I gave you a risk estimate of one chance in 10 million,

which is, by any stretch of the imagination, extremely small. So I

don’t have any disagreement with any of those comments, really,

except the banana.

Mr. TIERNEY. Now you say that your best estimate is that one

billion x-ray backscatter whole body imaging scans will potentially

cause 100 cancers per year.

Mr. BRENNER. Yes. You multiply a billion by 1 in 10 million, and

that is what you get.

Mr. TIERNEY. So does that mean that 100 people a year will be

getting cancer from stepping outside or from taking 2 minutes in

an airplane?

Mr. BRENNER. There is no doubt that a lot of cancers that we get

in our everyday existence, 40 percent of us get cancer, are radiation-induced. We know this to be true. But those are unavoidable.

The question is, well, this is potentially avoidable.

Mr. TIERNEY. OK. No, I get it. I am just trying to understand it

better. So, yes, you might have 100 cases for being outdoors; yes,

you might have 100 cases for spending 2 minutes in an airplane

at altitude; and, yes, maybe there would be some impact for going

through these scanners on that, but it is all about the same.

Mr. BRENNER. I would agree with that. I think the general issue

is because you have one risk in your life, that doesn’t mean you

have to accept other risks in your life when you don’t have to.

Mr. TIERNEY. And you say it is perfectly possible that the individual risk could actually be significantly lower or, indeed, zero,

but that it is also quite possible the individual risk could actually

be significantly higher.

Mr. BRENNER. Yes, I think that is true. Trying to estimate with

these very low doses is very hard to do. All we can do is make a

best effort.

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Mr. TIERNEY. So did you do your own test on the emissions

caused by these x-ray backscatter machines or did you base your

estimates just on estimates of the emissions?

Mr. BRENNER. As I commented to the chairman just now, it

would be great if the scientific community actually had access to

these machines. We do not.

Mr. TIERNEY. Thank you.

Yield back, having used less time than you, Mr. Chairman.

Mr. CHAFFETZ. Without noting the time, we will go ahead and

move to recognizing the gentleman from Arizona for 5 minutes.

Mr. GOSAR. Dr. Brenner, I, in my former life, was a dentist for

25 years, so we do understand that there is all cumulative aspects

of all radiation, am I not right?

Mr. BRENNER. Yes, that is correct.

Mr. GOSAR. And so cumulatively how would you compare this to

a full series of x-rays, using the same type of radiation? Put it in

layman terms.

Mr. BRENNER. The doses are much lower than a series of even

a dental x-ray, even when they are ideally done.

Mr. GOSAR. The key is ideally done right.

Mr. BRENNER. The key is ideally done.

Mr. GOSAR. Because a lot of the scientific method is based upon

peer reviewed applications, is it not?

Mr. BRENNER. Correct.

Mr. GOSAR. And not having that availability, we are subjected to

the industry’s oversight, are we not?

Mr. BRENNER. We are in terms of estimating, trying to get a best

handle on the actual radiation exposures. Trying to then go from

radiation exposure to risk is another story that we are not particularly dependent upon industry. But the basic thing you start with

is, well, what was the radiation dose, and there is certainly uncertainty there.

Mr. GOSAR. Well, it seems to me the point that we keep bringing

up in this committee is self-reporting numbers based upon government agencies. So we are reliant on what the government gives us.

And it doesn’t seem that we are parlaying those or comparing apples to apples; a lot of times we are comparing apples to tangerines. So we are having some problems with our data, and that

seems to be the biggest problem here.

Now, Mr. Baker, you alluded to something very interesting to

me. I am from Arizona as well, and you talk about a multi-tier task

effect, that TSA is not really gifted in regards to analyzing certain

factors of passengers, and actually noted something about border

security. Isn’t there a place here for interagencies to be developing

cross-referencing of looking at passengers, and what would hold

that up?

Mr. BAKER. Absolutely there is. CBP has access to a lot of information and uses it well. They essentially scrutinize closely about

one out of 200 of the people who cross the border, and the rest just

walk through at 30 seconds or less showing their passport. And

providing more of that information to TSA so that TSA can make

decisions about the kind of screening it will do for passengers is

something that should happen.

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It has begun to happen, I understand, in the context of flights

from Europe to the United States; that is to say, it is not so much

that the information is shared, but that there are shared decisionmaking processes. I think TSA will be a little nervous about getting that information because, in the past, Congress, Fred Cate,

EPIC, have made a big fuss about them having any information

about travelers, claiming that TSA has a travel dossier on us. So

it would be very helpful if they got a certain amount of authorization or encouragement to actually use the data in a constructive

fashion rather than just try to do it on their own with CBP.

Mr. GOSAR. Mr. Brenner again, based upon the quality of the

image, you know, I am sitting here with a dental x-ray, and if I

don’t have qualifications or the parameters set on my machine,

they are worthless to me. And we have now come about seeing the

experts talking about we don’t really know what is in the general

parameters of this scan; we are looking for abnormalities. In your

opinion, does it justify the spending of almost a half a billion dollars on these machines and going further with this?

Mr. BRENNER. Well, you are asking me about the efficacy of the

machines, and I don’t think I am perhaps the right person to address that, I am no expert. There have certainly been studies

where they have analyzed the quality of the images, worked backward to figure out, well, how much radiation dose must have been

given to produce those images, actually from Arizona State, and

the conclusion was the doses had to be higher than the doses that

the manufacturers are suggesting.

Mr. GOSAR. Mr. Cate, do you have an opinion on that?

Mr. CATE. On the broader issue of whether these are ineffective,

are they worth the risk, I would say they are not worth the risk

and would in fact would, much to his annoyance, support Mr.

Baker’s earlier point, which is in fact knowing more about travelers

or certainly those that wish to have more known about them would

be a far more effective way. One of the things we always say in

security is you want to focus your resources on the greatest risk.

We have built the entire TSA system around doing the exact opposite.

Mr. GOSAR. Thank you very much.

I yield back my time.

Mr. CHAFFETZ. The gentleman yields back within an impressive

timeframe. Thank you.

Now recognize the gentleman from Maryland for 5 minutes.

Mr. CUMMINGS. Mr. Baker, I want to just followup on some of the

questions that our ranking member, Mr. Tierney, asked. If you recall, he was asking about a number of issues, and there seems to

be some—they look at these measurements in different ways, so we

are in a situation where Congress has to make critical decisions

about our Nation’s homeland security and the public health based

on scientific evidence, and there seems to be all kinds of ways they

do these measurements, and questions have come up with regard

to those measurements.

But considering the conflicting scientific estimates on this issue

and the significance of the security risk, what do you think, Mr.

Baker, should be the next steps that Congress should take? Should

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we request further scientific analysis on the actual results of these

machines, instead of just using extrapolated estimates?

Mr. BAKER. I am not a medical expert, so I am cautious about

expressing a view on that. I can tell you there are some costs to

delay. Not only are the risks to the traveling public, but for those

who are worried about waste and abuse in government. Right now

there are two competing machine suppliers to do body imaging. If

you say we are not going to buy from a people who use backscatter

x-ray, then you are giving the other machine supplier a monopoly

and you are going to get a price that reflects that monopoly. So it

will have a significant cost, and I think you need to bear that in

mind as you make a decision.

Mr. CUMMINGS. Professor Cate, a privacy law professor at Indiana University stated in his written testimony, ‘‘Advanced imaging

technology is generally not effective at contributing to greater security airplanes and airports. In fact, it appears that the way in

which the TSA has deployed these machines actually may be undermining the security of the U.S. air transportation infrastructure.’’

Mr. Baker, do you agree with Professor Cate’s estimate?

Mr. BAKER. No. I think that these clearly add to our security.

Perhaps if you compared this technology to some imaginary technology that was perfect, you would say, well, these machines are

not as good as that imaginary technology. But if you compare them

to the magnetometers that are the alternative for us, they are

clearly much more effective at finding things that now could be

used as weapons that couldn’t be used 20 years ago, and, therefore,

they are very likely the best alternative we have today.

Obviously, it would be great to find something better. I am a big

believer in dogs, but they only really work for about half an hour,

then they have to go play, and they cost $30,000 or $40,000 a year

on that basis. So it is a great solution, although I guess I have to

say I have a golden retriever whose searches of me are substantially more intrusive than the TSA ever has been. Therefore, I say

we should continue to look for new technologies. But this may be

the best we have for deployment in the next 5 years.

Mr. CUMMINGS. TSA has evaluated and tested advanced imaging

technology in the field since 2007 and deployed the machines widely in 2010. Mr. Baker, in your experience, have the AIT systems

been adequately tested for field use and are you aware of any other

technology that is readily deployable on a mass scale and has a

reasonable chance of preventing a terrorist attack from explosives

brought on to an airplane?

Mr. BAKER. I am not. You know, we did do quite a bit of testing

in 2007, 2008. We had high hopes for the puffer machines which

would use explosive detection, basically an electronic nose, and

they just didn’t work reliably enough. The AITs are much more reliable. They are not perfect, and I would be happier if we could use

chemical sampling than the technique that AIT uses, but we

haven’t found a way to make that work effectively yet.

Mr. CUMMINGS. Finally, in his testimony, Mr. Rotenberg advocates that TSA or Congress should suspend the use of AIT for primary screening. In 2009, legislation passed the House that would

restrict the use of AIT to secondary screening only. In other words,

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only if the change in your pocket set off the metal detector would

you be directed to a whole body scanner. Mr. Baker, based on your

experience, does it make sense to use the AIT only for secondary

screening?

Mr. BAKER. No. I think that is nuts. The whole point of the underwear bomb is that it didn’t set off the magnetometer because it

was designed not to set off the magnetometer. So only using a technology that would find an underwear bomb when somebody has set

off the magnetometer is to basically use it in context where it

doesn’t matter.

Mr. CUMMINGS. I see my time has expired. Thank you, Mr.

Chairman.

Mr. CHAFFETZ. The gentleman yields back.

Now we recognize the gentleman from Texas for 5 minutes.

Mr. FARENTHOLD. Thank you. I would appreciate it if the witnesses would indulge me as I kind of bounce around with several

different questions.

Mr. Baker, you have indicated that you have undergone the patdown and did not find them intrusive. Was this just the pat-down

you took when you opted down, or have you triggered an anomaly

in one of the machines and received the secondary, more intrusive

pat-down?

Mr. BAKER. I have gotten the opt-out search and I have set off

the anomalies with change in my pocket, but the search consisted

of having to show what had set off the anomalies. So I am confident there are certain kinds of anomalies that would produce a

more detailed search, but I haven’t been through it.

Mr. FARENTHOLD. I have. You don’t want to be through it.

This one is to Dr. Brenner. Have you done any studies in regard

to exposure of the TSA agents who are there? I know in typical radiological applications x-ray technicians are required to wear detection devices to determine their cumulative exposure to radiation.

Are we doing anything to protect our TSA agents from radiation

that may spill out of these machines?

Mr. BRENNER. Well, of course, a film badge, film monitor won’t

protect the TSA agents, but it will certainly give an estimate for

future use as to whether they are being exposed, and it makes no

sense to me at all that they are not wearing film badges. In any

academic setting, in any medical setting, anybody who has any association with ionizing radiation wears a film badge.

Mr. FARENTHOLD. I don’t know if you are married or not, but I

am going to assume you are. Would you let your pregnant wife go

through one of these machines?

Mr. BRENNER. I probably would not.

Mr. FARENTHOLD. OK. And you indicate that the backscatter xray is more dangerous than the millimeter wave technology. Are

there any risks associated with the millimeter wave technology we

are aware of at this point in time?

Mr. BRENNER. Well, as scientists, we are trained never to say

something is perfectly safe, but there is no evidence of risks associated with a millimeter wave and there are no biological mechanisms that are established that would lead us to conclude that

there are risks associated with them, which is in contrast to the

x-ray situation, where we know exactly how x-rays cause cancer.

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Mr. FARENTHOLD. Great.

Mr. Rotenberg, your EPIC organization is a privacy advocacy

group that I have been familiar with for some time, and I understand your stance of the intrusiveness of these, especially the ones

that show the images, not the Gumbies. What would your organization’s stance be or, if you can’t speak for your organization, your

personal stance be on actual voluntary trusted traveler program

where the government is able to data base certain information

about you to allow you to bypass this type of invasive scanning?

Mr. FARENTHOLD. We have studied those programs as well, and

I think what we have concluded is that there is simply no silver

bullet. For example, the clear traveler program, which was a registered traveler program, that company, which collected a lot of biometrics on frequent fliers, over 100,000 deep background checks so

that they could get that certification, go through the lines more

quickly, actually found themselves in financial trouble.

Mr. FARENTHOLD. They went out of business right after I gave

them my credit card.

Mr. ROTENBERG. Yes.

Mr. FARENTHOLD. I can sympathize with that.

Mr. ROTENBERG. But, you see, the story gets worse, because having collected this extraordinary amount of personal information

used to conduct the authentication at the airport, that was their

chief business asset, and they turned around and wanted to sell the

data base that they had acquired on American travelers, and it

took a class of the customers of the company to actually go into

court in New York and say you can’t do that, you can’t sell our personal information that way.

So my warning here, and while I don’t actually disagree that I

think a lot could be done to improve the assessment of passengers,

it is one of the recommendations of the IATA, this particular approach has been tried and there are some risks.

Mr. FARENTHOLD. Do you think the airlines might be a better organization to do it? I know Continental Airlines keeps pretty good

track of me, and every time I get 35,000 miles they give me a free

trip.

Mr. ROTENBERG. I think it is 25,000 on United, by the way.

Mr. FARENTHOLD. Well, hopefully we will get the better end in

the merger there.

Mr. ROTENBERG. That may be. Well, yes, this is one of the things

that has always seemed a little odd to me. In other words, if the

concern is trying to make sure that the people you know, which is

another way of saying the people you can trust, go through more

quickly, the airlines do have that information; those are the frequent fliers. And the people you know less well are the ones you

probably want to look over a little bit more closely. That is actually

the basis of the approach that is now recommended by the International Aviation Transportation Association.

Mr. FARENTHOLD. Thank you.

I yield back my negative 2 seconds.

Mr. CHAFFETZ. I thank the gentleman. The gentleman yields

back.

We now recognize the gentlewoman from Texas for 5 minutes.

Ms. JACKSON LEE. Mr. Chairman, thank you very much.

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Gentlemen, thank you for your testimony. I am going to ask

some rapid-fire questions, if I might.

Dr. Brenner, is there anything that we can do to fix the AIT machines, in your opinion?

Mr. BRENNER. Well, recall there are two different types of machines, the millimeter waves, that as far as we don’t have longterm cancer risks associated with them.

Ms. JACKSON LEE. Right, and the present ones?

Mr. BRENNER. The x-ray machines potentially do. And certainly

one of the things that we should do is have these machines available to the general scientific community to study them, rather than

just have to use secondhand information.

Ms. JACKSON LEE. And you concede the point that some of the

filings and reporting were incorrect in term of the amount of radiation? You concede that point?

Mr. BRENNER. Well, I think there is a more general suggestion

that the doses are rather higher than the manufacturers are stating, apart from this recent issue.

Ms. JACKSON LEE. Well, you have heard the testimony that some

of the reporting was incorrect, right?

Mr. BRENNER. Yes, I have.

Ms. JACKSON LEE. And they have corrected it and, therefore, it

would be under what might be damaging or troubling.

Mr. BRENNER. Well, certainly in the x-ray world we believe there

is actually no threshold below which the risk becomes zero.

Ms. JACKSON LEE. And your comment is, as you talked about the

two distinctive aspects of radiation, your concern with the present

current technology, AIT, is what?

Mr. BRENNER. The concern is that although the risk is very, very

small, as I think everybody agrees, for any individual going

through the scanner, if you have a billion scans a year, which is

where we are heading, a very large number of scans, each with a

small individual risk, will ultimately lead to a population——

Ms. JACKSON LEE. Well, would you concede—and I take issue

with the billion, though I know that our previous witness indicated

that travel for her is airplane, would you concede that it would be

important to mend it and not end it, to try to mend the situation

that we are addressing? Is security an equal concern as well?

Mr. BRENNER. Of course we are trying to make a risk-benefit balance and that is, hence, my comment about millimeter waves relative to x-rays.

Ms. JACKSON LEE. And I thank you. Amend it, not end it.

Dr. Baker, excuse me, Mr. Baker, are you familiar with the lone

wolf concept? I know that we have seen each other before. How are

you?

Mr. BAKER. Very good, thank you.

Ms. JACKSON LEE. Are you familiar with the individual acts of

terrorism don’t need to be in a crowd? Have we ever seen before

the shoe bomber that kind of incident? Was that a first for the

United States?

Mr. BAKER. That was a first.

Ms. JACKSON LEE. Was it a first for the United States on Mr.

Abdullah on that fateful Christmas Day, when we discovered someone had enhanced their body?

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Mr. BAKER. That was a first as well.

Ms. JACKSON LEE. Then can you suggest, if I could very quickly,

refer you to Administrator Pistole’s comment about the idea of a

multilayered concept of imaging, advanced imaging technology fits

into the multilayered approach of security? Is that important?

Mr. BAKER. I think it is. We have to give Al Qaeda a strong

sense that their old tactics won’t work, and the advanced imaging

technology is the only approach, other than some very intrusive

pat-downs, that make us reasonably comfortable that Al Qaeda

can’t slip bombs into their underwear and get onto planes. So, yes,

I think it is our best current use in the context of a broad layered

approach.

Ms. JACKSON LEE. And you concede that we live in a new world,

a different world?

Mr. BAKER. Absolutely.

Ms. JACKSON LEE. Mr. Rotenberg, I have been a strong champion

of the Fourth Amendment and the opposition to unreasonable

search and seizure. You testified that AIT may be capable of storing and transmitting images of passengers. TSA has testified that

both types of machines employed by TSA are currently incapable

of storing or transmitting images. Do you dispute TSA’s testimony

that the machines are currently incapable of storing or transmitting images?

Mr. ROTENBERG. Absolutely.

Ms. JACKSON LEE. On what basis?

Mr. ROTENBERG. Page 9 of my testimony. That is the technical

specifications for the devices.

Ms. JACKSON LEE. Are you suggesting that you want to completely eliminate a major force in security or would you suggest

that we amend it and not end it?

Mr. ROTENBERG. Well, to be clear, I think our techniques have

to be effective and I think they have to comply with the Fourth

Amendment.

Ms. JACKSON LEE. Let me just indicate to you that I am introducing legislation that will require TSA to retain, but also indicate

that they cannot in any way hold these images or they have no capacity to do so. Would that be of comfort to you?

Mr. ROTENBERG. I would like to see the technical specifications.

I am saying if you look at page 9, it will tell you exactly what they

can do. They can enable/disable the image filters; they can access

the test mode; they can export raw image data in test mode. That

is what the TSA required that the vendors provide to them.

Ms. JACKSON LEE. Well, the TSA disputes that.

Mr. Chairman, I would just end on saying that I think Mr.

Rotenberg’s representation is his, and we will look forward to making sure that we fix, but not end, this problem, and yield back.

Mr. CHAFFETZ. Thank you. The gentlewoman yields back.

We now recognize the gentleman from Florida, the chairman of

the Transportation Committee, Mr. Mica, for 5 minutes.

Mr. MICA. Thank you.

When I had the responsibility for putting together a transportation security system for the United States after the 9/11 attacks,

of course, I looked for different models. The British probably were

the best in advising us because they are the only country that had

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a countrywide system for screening and also they had been plagued

by terrorists, attacked domestically for years.

Additionally, I contacted various Federal agencies and I talked to

those who run the Federal maximum security prisons and other

State organizations who also dealt with probably the most invasive

types of screening of both prisoners and people who visited them,

and I was told by them that even with body cavity searches, which

I don’t even want to describe here, with screening with electronic

equipment, that both drugs, contraband, weapons all penetrated

the system. I have been a strong advocate of using whatever means

we can put in place that would provide us security, and I do believe

in a layered system, but we have launched several efforts, very expensive.

When the Chechen women bombers destroyed aircraft, we were

seeking a quick solution. We knew we didn’t have deployed at the

airports the equipment, and I was told the puffer would be the answer. I went to New Jersey and they tested the puffer. Went

through the puffer at least three times with some material that

should have set it off; none of the three times did it set it off.

But I was assured it was just a technical problem and that they

would be used. They started, as you know, an expensive deployment; was not advised when they were deploying the backscatter

and the millimeter wave, although I did encourage them to look at

millimeter wave, I must say, and have been supportive of using advanced technology. But I think the important thing is testing.

Now, I was told the puffers would work and they didn’t work.

God only knows where they are sitting. I ask the committee staff

to look at that fiasco. Now we are buying half a billion dollars

worth of equipment. I have had that equipment tested. The results

are classified and I ask the Members to review that.

I can tell you the equipment is badly flawed; it can be subverted.

Our staff went out and our staff subverted the equipment, they inform me, in a very simple manner. Mr. Pistole said, well, it may

require more training or something, and GAO was clever. What the

hell does he think the terrorists are? Terrorists have gone from a

very sophisticated shoe device, and I visited, orally interviewed

people, saw what took place.

I was awakened in Texas the morning of the liquid bombers and

we put in measures to try to deal with that. The diaper. I had, in

January, tested the system for the pat-down, which is supposed to

catch what this equipment doesn’t catch, or be another device. I

can tell you I can thwart the system not only visually, and not that

cleverly, but most folks know that they are not going to touch your

junk, and more than enough dangerous material can get through

because that system is flawed too.

I am very concerned again about the testing of this equipment

before it was deployed. It looks like we have a bigger puffer fiasco

on our hands in buying this. If it wasn’t just the half a billion, it

is going to be another half a billion because TSA couldn’t possibly

use existing personnel or transfer some of the positions, the 3,770

bureaucratic positions in Washington to get their butts out working

online. Of course, they are making $105,000, on average, a year,

and Mr. Pistole told me yesterday, in testimony, when I went beVerDate 11-MAY-2000 12:26 Aug 04, 2011 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67371.TXT KATIE PsN: KATIE
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fore the Appropriations Committee, that they start the average

screener at $28,000 a year. Something seems out of kilter.

We have also seen them move from diapers now to cargo, so I

think they are slightly bypassing these machines, would you say,

if they are planning to blow up planes over the sky with electronic

remote devices? Would you say that would be effective deterrent

with these machines? I see all negative. Let the record reflect all

negative head shakes there.

Finally, with surgical implants, I leave this question with you.

We know that now the folks that gave us some of these devices and

attempts are moving to body cavity inserts, which we saw in Saudi

Arabia, and surgical implants. Does this equipment, can you tell

me, will that detect that kind of a threat?

I see Mr. Cate and Mr. Brenner, you need to verbalize this for

the record.

Mr. CATE. No, it cannot.

Mr. MICA. Mr. Brenner.

Mr. BRENNER. I would confirm that, no, it cannot, it can’t penetrate.

Mr. MICA. Mr. Rotenberg.

Mr. ROTENBERG. No, it would not.

Mr. MICA. Mr. Baker, you care to answer?

Mr. BAKER. I agree.

Mr. MICA. Thank you. I yield back.

Mr. CHAFFETZ. The gentleman’s time has expired.

We now recognize the gentleman from Massachusetts for 5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman. I want to thank the witnesses for their help with the committee.

There are real privacy concerns raised by the use of the advanced

imaging technology and we are all looking for ways to maximize security while minimizing intrusions on that privacy. I understand

that TSA is currently testing software commonly used in Europe on

AIT machines that shows only a screen with a human stick figure

on it, something like this. Actually, it looks more like Gumby than

a stick figure.

But this is a way of identifying an anomaly on a passenger without revealing particular details of that person’s body, and I think

it is a better way, from a privacy standpoint, to allow an officer to

physically inspect the area of the body where the anomaly occurred. But at no point in this system would any human being ever

see an actual picture of the passenger being screened, and, once approved, TSA would be capable of deploying this software across

many of its machines in a matter of weeks or months.

Mr. Rotenberg, would the employment of this software resolve

the principal AIT privacy concerns raised by EPIC in your litigation against TSA?

Mr. Rotenberg. Mr. Lynch, it wouldn’t. And let me just make a

few brief points. First of all, regarding the European experience, it

is important to note that very few European countries are adopting

AIT. Manchester Airport has it; Schiphol has it, which is where the

automatic target recognition software is being deployed. Italy tried

it and then dropped it.

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We are really alone right now, at this point, in treating air travelers as we do in this country. But people do point to Schiphol because they have deployed ATR. Now, it is a different configuration.

The other thing that you need to know about this is that the TSO

will not be in a remote viewing location; the TSO will actually be

standing now in front of the passenger, looking at the so-called

Gumby image, and then identifying on the person now in front of

them, by the way, those areas of the body that alert for an anomaly, and that will then lead to the subsequent pat-down to try to

resolve what the anomaly is.

Now, you could say that is less intrusive because the image is

not as detailed, but, of course, what the TSA told us previously was

that the reason they had the TSO in a remote viewing facility was

to avoid the problem of the TSO viewing the passenger. Now you

are back into that realm with the ATR. The other problem is that

the devices will still record the image in its unfiltered form.

All of these techniques, the ATR is simply a photo processing

technique. It is a bit like when you have a digital camera. You take

a color photo; you can make it black and white, you can invert it,

you can add sepia tone, if you want to. But what you started with

is the actual image, and that is still what TSA will have, and that

remains our concern. We think more needs to be done to try to resolve the problem of the unfiltered image that the devices will capture.

Mr. LYNCH. I see. Well, if there is no need, if they are not using

the detailed image to make their assessment, I am assuming that

it would be less problematic to get rid of that part of it, then.

Mr. ROTENBERG. Well, you see, it is a bit of a tradeoff. The image

that is displayed on the screen will be less detailed, no dispute. On

the other hand, the image that is captured will be the same, and

the TSO, instead of being in a remote room, will now be in front

of the passenger. So that is roughly where you will end up.

Mr. LYNCH. Well, the current system, the TSO is in front of the

passenger.

Mr. ROTENBERG. They have two, actually. There is the TSO in

front of the passenger, and he is communicating by headset with

another TSO who is in the remote viewing room, and the TSO in

the remote viewing room says we have a problem under the right

arm, you need to look there.

Mr. LYNCH. But what I am saying is that neither TSO under this

scenario would be looking at the detailed image of the passenger.

Mr. ROTENBERG. That is correct; it will be a generic figure.

Mr. LYNCH. I don’t see how the privacy dimension is encountered

here if both TSOs are looking at this.

Mr. ROTENBERG. Right.

Mr. LYNCH. What does it matter whether the person is in front

of the passenger or not if they are not looking at a detailed image

of the passenger?

Mr. ROTENBERG. Well, because the device will capture——

Mr. LYNCH. I understand that part of it. The technology. And

they are not using the detailed imaging for any purpose in this

process, so I imagine that could be deleted.

Mr. ROTENBERG. It could be. I want to point out also, in terms

of the rollout of the ATR, when Administrator Pistole was asked

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about the use of this technique last November, I think this was in

front of the Senate Commerce Committee, he expressed a lot of

concern. He said it was, at least in testing, creating a lot of false

positives. Now, it may be that TSA has solved this.

Mr. LYNCH. My time has expired. Thank you.

Mr. CHAFFETZ. The gentleman yields back.

We now recognize the gentleman from California, the chairman

of this committee, Mr. Issa, for 5 minutes.

Mr. ISSA. Thank you, Mr. Chairman.

It has really been helpful to hear the questions and answers coming before this, particularly, Mr. Lynch, I appreciate yours, and I

certainly appreciate the Transportation chairman, because I think

a lot of people have worked hard in understanding how thoroughly

useless this technology currently is. Now, that is an assumption I

am making, but let’s walk through it so that I make sure that I

have an agreement.

At the current time, with 57,000 TSA professionals, we only

check a small fraction of the passengers, isn’t that true? If you look

at all the places, including San Diego, where, to be honest, we have

all of them, all the stations are there, except in order to not back

up well passed downtown San Diego, they do random, they do anecdotal, if you will. So, first of all, from a security standpoint, we

are not secure if the vast majority of passengers do not go through

these if they are necessary. Do you all agree with that?

Mr. CATE. Yes.

Mr. ISSA. OK.

Mr. BAKER. No. I am sorry, I do not agree with that.

Mr. ISSA. You don’t agree? You think if we just pick up half of

the people we are going to stop a bomb?

Mr. BAKER. Random screening has a real value for deterring terrorists; they don’t want to take the risk that they will get picked

up by the random——

Mr. ISSA. These people are willing to blow themselves up and you

think they are scared of getting caught?

Mr. BAKER. Absolutely. They do not want to get arrested and fail.

So, you know, random screening does have a place. I would prefer

that——

Mr. ISSA. OK, let’s continue along because this is the old problem

we have. You take away all of our civil rights and you say, but it

has some value, but certainly not enough. Crazy people who put

shoes in their bombs, you are saying that they wouldn’t have done

it if they thought they might be caught, is that right, Mr. Baker?

They wouldn’t have done it if they thought they might be caught?

Mr. BAKER. Much less likely to try that, yes.

Mr. ISSA. OK. So we will assume that these products cut in half

the likelihood of a bomb blowing up an airplane. We will give you

that. Is it worth 57,000 TSA individuals and the countless billions

of dollars to cut in half, but not even come close to eliminating?

That would be my rhetorical question.

Mr. Rotenberg, I want to go through a couple of items with you.

If it is possible to have technology do completely automated check,

using something similar to these products, so that there is no

human element except an X in the case of a high likelihood of

something which is a legitimate anomaly, would you say that when

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that technology is ready to be used you would consider it, if it met

all of those requirements? I just want to quantify that you are not

being unreasonable; you simply want a technology that currently

doesn’t exist, is that right?

Mr. ROTENBERG. Mr. Chairman, I don’t think the technology has

to be perfect. I don’t think it would be realistic to expect a technology to be perfect. I think what I have suggested, as Mr. Chaffetz

has, is that the technology should be effective, I think that is reasonable, and I think it should be minimally invasive, because that

is what the courts have told us at the Fourth Amendment.

Mr. ISSA. And at the current time the false positives are huge.

I have watched them. It doesn’t take much to go through these

lines and see every third or fourth person who actually goes

through the machine in a secondary. And, by the way, that is after

they pause and wait for quite a while before they are allowed to

go forward.

Dr. Brenner, I am particularly interested because of your knowledge and experience. Do you remember the fluoroscope of yesteryear and what they did to people who had their shoes fitted using

that technology?

Mr. BRENNER. Oh, yes. And those devices continued to be used

well after it was pretty well established that there was a risk associated with them.

Mr. ISSA. And my understanding is not only did they increase the

likelihood of cancer for those who were having their shoes fitted or

those who were using it more often, but they created almost certainty that a shoe salesperson, over time, would have doses likely

to give them cancer and some other problems, isn’t that true?

Mr. BRENNER. You are right. The biggest doses were to the salespersons rather than the individuals getting the foot examination.

Mr. ISSA. So clearly these products, although they may be less

than the fluoroscope of old, they are showing about the same thing;

they are designed to show about the same thing. They, in fact, represent a high likelihood that our 57,000 TSA individuals, who are

not badged to see if they are getting excess dosage, are getting dosage far higher than the rest of us would, even as frequent travelers.

Mr. BRENNER. Well, I am not sure I know the answer to your

question as to whether it is really a high likelihood——

Mr. ISSA. But they are getting higher dosage.

Mr. BRENNER. Almost certainly so. But I think we need to measure those doses.

Mr. ISSA. Well, and that is one of the points I think this committee has an obligation to do, is to see that the measurement begins

immediately, even if these things are not going to be stopped.

Let me go through one more item. Like Mr. Farenthold, I was

a clear passenger; I gave them my retina scan, I gave them all my

fingerprints, and I was dismayed when I found out that they

thought they were going to sell their asset that, in fact, I had paid

to give them, which is what made me a little worried about things

more than I had been in this cyber era.

But let me just ask the simple question. Including you, Mr.

Baker, since you think that everything helps a little, false ID is

easy to get. People get it every day and they come to this country

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in vast amounts over the Mexican border, a few miles from my district. The IDs that will let you come through the country illegally

are the same IDs that TSA looks at with some level of does the picture match.

Anyone can print out a boarding pass; anyone can take a boarding pass and effectively make a new boarding pass once you have

a few of them. From the standpoint of actually is the person who

they say they are and are they actually on the flight that they say

they are in, isn’t one of the gaping flaws right now that when you

go through security anywhere in America, they don’t actually know

for sure that you are who you say you are, because the ID is questionable, and they don’t even know that the ticket you have is valid

for the flight you are on? Haven’t we left gaping holes that should

be filled first, at a fraction of the cost of what we are looking at

today? Just quick answers from anyone that wants to partake, particularly you, Mr. Baker.

Mr. BAKER. Yes, for sure. Bad ID is a problem. TSA has done a

much better job than the airlines did of checking those IDs. That

is why they have the loops; that is why they have the fluorescent

lights. They are checking ID and they are finding fake ID much

more than was the cases prior to TSA taking over that responsibility.

Mr. ISSA. Yes, I remember they claimed that my government ID

as a Congressman was fake, and they wanted to see backup, California driver’s license, which anybody can get, even if they are not

a citizen.

Mr. Chairman, thank you for your indulgence. I yield back.

Mr. CHAFFETZ. Thanks. The gentleman yields back.

With the gentleman’s privilege here, I am going to recognize myself and then Mr. Tierney here, as we wrap up this panel. And

again, do appreciate all of your participation.

Mr. Baker, would you agree or disagree that layered security is

really the only way to move forward? There is no foolproof solution.

Mr. BAKER. Absolutely.

Mr. CHAFFETZ. My concern is that these whole body imaging machines, as they have been deployed, do give us a false sense of security and, in fact, are, in part, security theater, as I call it, that

don’t necessarily give the degree of confidence that I would like in

securing that airplane. Your concern is just by going through the

metal detector there are things that go undetected. But, conversely,

aren’t there things that go through a whole body imaging machine

that go undetected?

Mr. BAKER. Absolutely. None of this technology is perfect, it is

just that these body imagers are much more effective ats finding

the kinds of weapons we are worried about than magnetometers.

Mr. CHAFFETZ. Are you familiar with the Government Accountability Office, who issued an unclassified report in March 2010 that

said, ‘‘it remains unclear whether the AIT would have detected the

weapon used in the December 2009 incident?’’

Mr. BAKER. I am aware of that and I understand the argument

that they are making. It remains unclear to Al Qaeda as well, I

would point out. The important thing to say here is since there is

no perfect solution, we have to find a solution that is better than

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what we have, and we don’t have something better than these machines today.

Mr. CHAFFETZ. And while you mock the idea of using a dog, because you have an overly aggressive Schnauzer or some sort of dog?

Mr. BAKER. No, no, I think it is a great idea. I don’t mean to

mock it. It is a great idea; it is just that it doesn’t——

Mr. CHAFFETZ. Would you agree or disagree with the Pentagon,

who says that this is a more effective way than the current AIT?

In fact, do we have up the slide here? I just returned from Afghanistan 2, 3 weeks ago. If we could pull up that slide. How many

whole body imaging machines do you think we have deployed to Afghanistan?

Mr. BAKER. I have no idea.

Mr. CHAFFETZ. How many have we deployed to Iraq or Pakistan,

where we have literally over 100,000 of our men and women in

harm’s way, where we have to deal with the threat on a daily

basis? What I am looking at is people who are really truly concerned about what is going on in the green zones, they are dealing

with these improvised explosive devices which come at them in

every way, shape, or form, we are not deploying whole body imaging machines, we are deploying dogs. And to suggest that they only

work for 20 minutes I believe is wholly inaccurate.

I think the TSA is failing us because they are so insistent on

technology. Technology for technology sake doesn’t work. Technology is great, but if it doesn’t work it is not so good. And what

I worry about, as the gentleman from Massachusetts pointed out,

it going to a Gumby like type of thing, what if the technology is

not working?

So, again, I wish there was a fool-proof solution. I wish we didn’t

have to deal with the reality of the threat that there is truly terrorists that want to kill our people and blow things up. I worry,

though, that the TSA is maybe a little too anxious to deploy technology, even though we know from a parallel experience in Afghanistan and Pakistan and whatnot, they are so quick to deploy technology at an enormous cost, at invasion of privacy, when there are

things out there that will make us more secure.

I show you this picture because, again, 3 years ago they weren’t

importing whole body imaging machines; they had dogs. When we

had the State of the Union here, one of the most highly secure

events out there, they bring in the dogs. That is the point I guess

I would like to make. And I worry that we spent $30 million bringing in puffers with the suggestion that they would work, only to

find out that they really didn’t work.

My last point, and, Mr. Baker, I appreciate all of you being here.

There was one part of your testimony that did trouble me, it was

this part that you found that ‘‘critics are making a privacy mountain out of a mole hill.’’ You also said that privacy concerns are

‘‘counterproductive.’’ In this day and age, when we are trying to

balance the Fourth Amendment, the right of Americans to be secure, how do you justify saying that the privacy concerns are counterproductive? We heard testimony from Representative Cissna

here. To say that critics are making a privacy mountain out of a

mole hill?

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Mr. BAKER. Absolutely, because if we had listened to the privacy

advocates, we would have no machines deployed, we would have no

protection against the kind of bombs that were used on December

25th, other than magnetometers that do not work. That is the result of privacy lobbying, and I think it is counterproductive.

Mr. CHAFFETZ. Well, I, for one, wholeheartedly disagree with

you. I think that a lot of people have offered a reasonable use of

certain machines in certain instances. I, for one, believe that as a

secondary screening device, that the whole body imaging machine

does have a certain place. Somebody has a hip replacement, a knee

replacement, I think that is a productive use of this.

I guess the question or the encouragement I would have moving

forward is to try to find the balances between the Fourth Amendment that we have, increasing the security of the airport, lessening

the invasiveness. That is, I think, what we should all be striving

for.

I now recognize the gentleman from Massachusetts, the ranking

member, Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman. I thank our witnesses,

again.

Interesting idea on this. I don’t know if anybody on the panel has

the technical expertise that warrants this as a fair question of

them, but I think, Mr. Baker, you may either have it or be as close

as anybody on this. Would the AIT detect or would it have detected

a powder or a liquid explosive?

Mr. BAKER. My understanding is that it can detect unusual bulks

and volumes and different textures don’t match the body or that

don’t fit the body profile, but to some extent there is an amount

of judgment in that, and one of the things I worry about with these

Gumby figures is the judgment is going to be made by the machine,

and we have to be sure that they can do that right.

Mr. TIERNEY. So, at any rate, it wouldn’t identify it as a powder

explosive or a liquid, something that isn’t normally on the body, to

explore further?

Mr. ROTENBERG. Could I speak to that, Mr. Tierney?

Mr. TIERNEY. Sure, if you have the expertise.

Mr. ROTENBERG. Well, we have had the time to review the procurement specifications, and the question that you ask is actually

on page 10 of my testimony; it is the key excerpt. And I can tell

you, looking through the documents, that the problem, the threat

assessment when the TSA began the AIT was plastic knives, ceramic guns, plastique, C–4, dense nonmetallic images. That is what

these devices are designed to detect.

And, you see, the problem with PETM, which is the powder that

was used by the trouser bomber and the shoe bomber, the devices

were not designed to detect. So when you look at the research that

came out post-December 25th, the GAO report and the academic

studies, I mean, they are largely inconclusive, but they are inconclusive as to the fact that the powder would not have been located,

and that is in the procurement design.

Mr. TIERNEY. Thank you.

Mr. Baker, I heard you make a comment about the millimeter

wave versus the x-ray backscatter on that. Assuming, because I

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fective in detecting whatever it is they are detecting, the millimeter

wave apparently doesn’t raise any evidence that there be a public

health safety problem here, but we buy both of them, if I understand your testimony, because going to one supplier would keep the

cost lower, so we may use one that has a public safety question and

one that doesn’t as a cost-effectiveness measure as opposed to any

other reason to have both of them?

Mr. BAKER. As I said, there will be a cost to going to a single

sole supplier for something as significant as this purchase.

Mr. TIERNEY. So we have to decide whether or not that cost outweighs the risk of one of——

Mr. BAKER. Absolutely. And I think the TSA view has been that

they think all the studies suggest the risk is——

Mr. TIERNEY. So we should explore that, I think, a little.

Finally, not to be contentious, Mr. Chairman, but just to, I think,

raise the point that, again, we should go back to having some sort

of framework for evaluating the effectiveness and privacy on everything, I know two things. One is that there are 300 AIT machines

currently deployed in Iraq and Afghanistan, it is not like there are

just dogs over there, that have been used for the past 6 years.

And I just quote from an article that appeared on March 1st of

2003 that examined the possibility of replacing bomb-sniffing dogs

with handheld chemical systems. Among the drawbacks of using

dogs, the article stated, is that they require rigorous training, testing, and validation exercises in various operational scenarios and

with different types of explosives. The animals’ performance, which

requires constant retraining, frequently declines over time and

after extensive field work, according to the articles, the dogs became tired of the 30 to 120 minutes, which means using more than

one dog at each location.

Dogs also exhibit behavioral variations and changing moods

which might affect performance. In addition, dogs often trigger

false alarms because they are trained to detect chemicals which

may appear in other forms than just explosives; and, finally, terrorists also may turn to certain stable explosives that emit very little

chemical vapor and therefore harder for dogs to detect.

So while I wouldn’t totally exclude dogs, from the equation of a

layered system or whatever, I think they ought to be put through

the same evaluation process for effectiveness and for privacy indications on that. As we move forward we will, I assume, try to do

that.

Yield back.

Mr. CHAFFETZ. The gentleman yields back.

Are any other Members seeking to ask questions of this panel?

[No response.]

Mr. CHAFFETZ. With that, we will thank the panel members for

their participation, your efforts, your time in preparation of this

testimony. We would allow also for 5 legislative days for Members

to submit other information. We would also ask, and hope that you

would cooperate, if Members have additional questions, that they

be able to submit those to you. If you can provide those answers

back to us, we will make sure that the other members of the committee have that. We thank you for your expertise, for your insight

into this, and thank you for your time and effort to be here today.

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The second panel is adjourned.

We had talked about, as they dismiss here, we would need some

time to set up the third panel, but I have also come to learn that

this committee room has been scheduled and has been committed

to the needs to set up and whatnot, from 1:15 on. Consequently,

it is going to be this chairman’s prerogative to delay what was supposed to be two gentlemen from the TSA that were going to be here

as part of the second panel, insisting that they have to have their

own separate hearing and they can’t be sitting next to somebody

that they disagreed with, that we are going to delay that third

panel and we will reschedule it. We are hoping to do that the first

week of April.

Mr. TIERNEY. Mr. Chairman, may I be heard on this?

Mr. CHAFFETZ. Sure.

Mr. TIERNEY. Mr. Chairman, I don’t understand this at all. First

of all, we had this whole discussion; we resolved the issue. We have

asked the TSA to come over here today; they are here. So they

came across to accommodate the chairman and the rest of this committee. Having them on this panel now or putting them on separately now is not going to be a time factor at all; it will take about

a minute and a half to put up new name tags, and then we would

have 45 minutes, minimally, to have this hearing, which would

have only extended this current panel 45 minutes. I don’t think

there is any real rationale for that.

I am a little upset that we went through the whole process trying

to be cooperative. TSA did come downtown. It would be effective to

have them testify at this hearing. I just think it is totally appropriate and I don’t think your reasoning is sound enough to give us

a real true matter of why it is you won’t let them proceed. I ask

that the chairman reconsider, that he allow them to come out right

now. They will have 45 minutes. If you want to bring them back

again if you feel that it hasn’t given you satisfactory opportunity

to question them, I will agree to that and we will work that out

for another return.

But to send them away after having gone through that whole

process this morning, bringing the chairman and the ranking member of the full committee in, discussing it out, having an agreement

and inviting them down here, and then sending them away I just

think is totally inappropriate and disrespectful, frankly.

Mr. CHAFFETZ. Well, I appreciate the gentleman’s comments. I

appreciate the working nature that our staff and the Members

have here together. Nevertheless, I do believe that this is of keen

interest to most every member that is on this committee. I want

to allow adequate time to hear their testimony and allow Members

to question them. We are also, under committee rules, allowed to

have multiple rounds of questioning. We certainly have, right now,

just a handful of Members here, without any sort of notice that

would give them adequate time. We have run over by a good 15

minutes longer from the time that we thought we would start the

third panel.

In deference to those Members who do want to participate on

this panel and ask questions, given the late nature of which this

second panel was there, and given the fact that they had notice,

we had planned on, they had committed to being here for this

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panel No. 2, they certainly had adequate time to do that. I don’t

want to——

Mr. TIERNEY. Mr. Chairman, rather than relitigate that

issue——

Mr. CHAFFETZ. The gentleman will suspend. The gentleman will

suspend——

Mr. TIERNEY. We had that issue litigated.

Mr. CHAFFETZ. The gentleman will suspend.

Mr. TIERNEY. Well, I have a difficult time suspending.

Mr. CHAFFETZ. The gentleman will suspend.

Mr. TIERNEY. If you are not going to follow the rules and adhere

to our agreement——

Mr. CHAFFETZ. The gentleman will suspend.

Mr. TIERNEY [continuing]. Then I am not sure why I should

agree to this.

Mr. CHAFFETZ. We did not—no. The gentleman will suspend. The

agreement was that they were going to come here and participate

on the second panel. Now, they refused to do so and they came to

that election by themselves.

Mr. TIERNEY. Was the chairman present this morning——

Mr. CHAFFETZ. The gentleman will suspend.

Mr. TIERNEY [continuing]. When the agreement was made that

they would come to testify?

Mr. CHAFFETZ. I would be happy to yield. I would be happy to

yield.

Mr. TIERNEY. Would the chairman yield?

Mr. CHAFFETZ. No, not until I finish——

Mr. TIERNEY. I guess you are not that happy.

Mr. CHAFFETZ. I am not very happy. Until we finish—until I

make these comments.

We had anticipated that this panel would reconvene for panel

No. 3 at 12:15. It is past 12:15. It is, in fact, well past 12:15. The

other thing that has come to light is we have another committee

that has done research and work and preparation, and Members

have adjusted their schedules in order to accommodate that hearing, which is going to start, which would be less than an hour from

now.

Consequently, I want to do this the right way. I want to do it

the right way for the TSA. I want to do it the right way for every

member on this panel. So we have adequate time to get to the

issues that need to be got at.

So, with that, I am suggesting, in fact, I am ruling that we are

going to move this third panel to another day.

Mr. TIERNEY. You said you would yield. Will you yield?

Mr. CHAFFETZ. I am sorry?

Mr. TIERNEY. You said you would yield. Will you yield?

Mr. CHAFFETZ. Yes, please.

Mr. TIERNEY. Rather than keep this going on so that you actually

make it a reality that there is not enough time, let me just say one

more time that there is 45 minutes. You don’t know that the panel

was going to go an hour with these people anyway. Forty-five minutes could be entirely adequate.

Let’s get them started. Let’s get them out here. If you want to

bring them back at some other point in time, you can do that. You

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have essentially all the Members that you had earlier here, and

they were all made aware that we had come to some agreement

this morning that TSA would come on the last panel. This is no

surprise to anybody. Everybody had their testimony from last

night.

I just find your whole reasoning behind this totally lame and inappropriate, and I am not pleased at all, with having come to an

agreement this morning on that and have you come up with a rather lame excuse to put that agreement aside. I would ask you one

last time to reconsider and let’s do this the right way, keep your

working relationship as we have had on this, as the only cooperative idea, one that we can rely on each other’s word.

Mr. ISSA. Would the gentleman yield?

Mr. TIERNEY. Yes.

Mr. ISSA. Mr. Chairman, I know we may not complete this. I

have been assured that the next subcommittee could move a little

to give us a little additional time. I have also been assured we

won’t have votes before 1:15 to 1:30. My concern, which I share

with the chairman, is that we will need to ask the TSA to be willing to come back if we do not conclude by the time of the vote. If

that can be agreed to, I would join with the other gentleman to try

to start, but we would need that agreement from TSA.

Mr. TIERNEY. Reclaiming my time. I would in no way impede

that and would support that effort to have them back, if that is appropriate and we need more time to finish.

Mr. LYNCH. Point of order.

Mr. CHAFFETZ. Does any other Member wish to—the gentleman

from Massachusetts.

Mr. LYNCH. Mr. Chairman, not to eat up more of our valuable

time, but we have them here and I just want to point out that your

hearing, our hearing was in conflict with a lot of other hearings

when we originally scheduled it, that is why Members are back and

forth. There is no guarantee that won’t happen again when we reschedule it, it is just the way things work here.

I do like the comprehensive aspect of this, where you had a

bunch of good panels in here, and I would like to hear from the

TSA. I would just hate to waste time. We have 45 minutes we

could go at these folks, and I have some questions I would like to

ask of them, as I am sure you are; and if we have to bring them

back, we will bring them back.

I yield back.

Mr. CHAFFETZ. Does any other Member wish to speak to this?

[No response.]

Mr. CHAFFETZ. This committee will stand in recess for 5 minutes

while we redress and we will make a ruling at that time. Thank

you.

[Recess.]

Mr. CHAFFETZ. We will start our unanticipated third panel. Appreciate the two of you being here to answer questions before this

committee. It is my understanding, having worked with both sides,

and my understanding from the two of you, who I have yet to

speak with, that should this panel run short, that is, Members not

be allowed to fully ask all the questions that we have here today,

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that you both will personally agree to come back and participate

in another hearing as a followup.

We will call this Part 1 of Part 1 of this hearing. And I would

hope and expect that the two of you would also be able to attend

that second hearing. We will come to it by mutual agreement in

terms of the date; it will be your own panel so you are not offended

by anybody. Is that your understanding of how we are going to proceed? Mr. Kane.

Mr. KANE. Mr. Chairman, yes, it is.

Mr. CHAFFETZ. Mr. Kair.

Mr. KAIR. Yes, Mr. Chairman.

Mr. CHAFFETZ. As long as we have the ranking member here and

we have an understanding of how that is going to proceed, we will

proceed.

Mr. Lee Kair is the Assistant Administrator for Security Operations at the TSA and Mr. Robin Kane is the Assistant Administrator for Security Technology at the TSA.

Pursuant to committee rules, all witnesses will be sworn in before they testify. If you would please rise and raise your right

hands.

[Witnesses sworn.]

Mr. CHAFFETZ. Let the record reflect that all witnesses answered

in the affirmative.

In order to allow time for discussion, we would ask is allow you

to each take 5 minutes for your opening statements. Please adhere

to the red light that will appear before you. We will give you some

leeway with that. Keep your comments to 5 minutes, and then we

will allow you to submit any additional testimony that you are not

able to give verbally into the record for the full committee.

So at this time we will recognize first Mr. Kane for 5 minutes.

STATEMENTS OF ROBIN E. KANE, ASSISTANT ADMINISTRATOR

FOR SECURITY TECHNOLOGY, TRANSPORTATION SECURITY

ADMINISTRATION; AND LEE R. KAIR, ASSISTANT ADMINISTRATOR FOR SECURITY OPERATIONS, TRANSPORTATION

SECURITY ADMINISTRATION

STATEMENT OF ROBIN E. KANE

Mr. KANE. Good afternoon, Chairman Chaffetz, Ranking Member

Tierney, Ranking Member Cummings, and distinguished members

of the subcommittee. We appreciate the opportunity to appear before you today to discuss the Transportation Security Administration’s risk-based intelligence-driven approach to aviation security,

and specifically the use of advanced imaging technology. As the

Chief Technology Officer, I will focus on the technical aspects, and

our Director of Security Operations, Lee Kair, will discuss the

human aspect.

Before going into more detail, let me state it clearly: the technology is vital to our Nation’s ability to keep air travelers safe in

this post-9/11 world. Mr. Chairman, the United States faces a determined, creative enemy bent on the destruction of our way of life.

The threat is everywhere.

Last year the FBI arrested a man planning an attack on the D.C.

subway system. A few weeks ago a young Saudi man was arrested

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under suspicion of plotting terror attacks in Texas, a lone wolf

jihadist. And whether it was a failed attack on Christmas Day

2009, the disrupted cargo plot last October, or the latest intelligence we see every day, we know Al Qaeda and other terrorist

groups continue to target our aviation system.

Our security measures must focus on detecting and disrupting today’s threat, not yesterday’s. Today we have a nimble aviation security system that deploys multiple layers of risk-based, intelligence-driven security measures. The checkpoint is a central piece

of the puzzle, and one aspect of the checkpoint is what we are here

to discuss today.

Mr. Chairman, well concealed, nonmetallic improvised explosive

devices are now among the gravest threat to security. And while

there is no silver bullet, AIT, the advanced imaging technology,

gives us the best opportunity to detect these threats. We first piloted the advanced imaging technology in early 2007 knowing of

these threats. Following testing and analysis, we began deploying

the technology nationwide. After the failed Christmas Day 2009 attack, we accelerated it. In our ongoing testing and development, we

know that well concealed devices like those used on Christmas Day

2009 can be detected by AIT. It is then up to the image operator

to recognize the anomaly.

Beyond effectiveness, there are two other issues I will address,

privacy and safety. AIT units in airports cannot store, print, or

transmit images. The system would require different software to

make this a possibility. Anonymity is also paramount. The officer

reviewing the image does not see the passenger and the officer assisting the passenger cannot see the image. AIT also does not

produce photographic quality images that would permit personal

identification.

We are now testing other detection software that further enhance

privacy by eliminating passenger-specific images and, instead,

highlighting anomalies on a generic outline. Testing is ongoing to

ensure that this software provides the same detection capability as

previous versions of the advanced imaging technology. Passengers

appreciate it and we hope to roll it out nationwide in the near future.

On safety, this technology is safe for all passengers and employees. The radiation dose from backscatter advanced imaging technology machines has been independently confirmed by the Food

and Drug Administration, the National Institute of Standards and

Technology, Johns Hopkins University, and the U.S. Army, among

others. All this testing confirmed that the radiation dose is well

within established standards. As constructed, backscatter AIT is

incapable of producing the energy required to generate radiation at

a level that would exceed the established standards. Failsafe mechanisms are installed to automatically shut the machines down

should they begin operating in unexpected ways.

Multiple tests occur on each individual unit before it is ever used

to screen passengers. Ongoing testing occurs on every unit consistent with national standards to confirm continued safe operation.

Additional testing is conducted if a machine is relocated or requires

other maintenance. Contractors are required to notify both TSA

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cently committed to publishing all future radiation tests online so

the public will be able to see for themselves that their home airports have safe technology.

While reviewing old reports, we identified errors in some of the

contractors’ recordkeeping. These errors are unacceptable and we

are taking steps to ensure they are not repeated, including we are

retesting those where they had an error, we are retraining the

work force that are doing those surveys, we are expanding our

independent evaluation of the safety protocols, and we are having

increased expertise in our own staffs in TSA to be able to have subject matter experts review the surveys as they come in. We believe

these significant steps will enhance our ability to assure the public

that all technology is safe.

With that, I will turn it over to Lee.

[The prepared statement of Mr. Kane follows:]

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Mr. CHAFFETZ. Thank you, Mr. Kane.

We now recognize Mr. Kair for 5 minutes.

STATEMENT OF LEE R. KAIR

Mr. KAIR. Good afternoon, Chairman Chaffetz, Ranking Member

Tierney, and distinguished members of the subcommittee. Thank

you for the opportunity to appear before you today regarding the

Transportation Security Administration’s use of imaging technology

at airport security checkpoints.

As my colleague stated, current intelligence reminders us that

commercial aviation remains a top terrorist target. On Christmas

Day 2009, Umar Farouk Abdulmutallab attempted to blow up a

plane bound for the United States using a nonmetallic explosive device that was not and could not have been discovered by a metal

detector.

Our success in staying ahead of dedicated adversaries is dependent upon our ability to utilize the latest technologies and procedures. As the head of TSA’s Security Operations overseeing the

work of TSA’s frontline security employees, I can assure you that

our nearly 50,000 officers and managers at over 450 airports nationwide are dedicated to our important security mission. Every

day TSA screens nearly 2 million passengers to ensure they arrive

safely at their destinations. We use a variety of security techniques

to ensure our transportation systems remain secure, including advanced imaging technology [AIT].

I want to reemphasize that while there is no silver bullet when

it comes to aviation security, advanced imaging technology, in combination with our checkpoint procedures and the work of our dedicated work force provides us with the best tools to detect dangerous

threats. Advanced imaging technology remains optional to all passengers who may request alternate screening, to include a patdown. As we have deployed advanced imaging technology, TSA has

continued to evolve its pat-down procedures, as well as to mitigate

threats.

There are a few things I want to clarify regarding TSA’s patdown procedures. First, only a small percentage of passengers require a pat-down during the secondary screening process. Patdowns are conducted by same gender officers, and all passengers

have the right to request private screening at any time during the

screening process. In addition, any passenger may choose to be accompanied by an individual of their choosing, such as a parent,

guardian, or traveling companion throughout the screening process.

While it is necessary to ensure that all passengers are properly

screened, TSA is sensitive to passenger needs. For example, our officers are trained to work with parents and passengers with special

needs to ensure a respectful screening process for the entire family.

Additionally, TSA’s Office of Civil Rights and Civil Liberties maintains a coalition of more than 70 disability-related groups who

partner with TSA to inform our checkpoint screening procedures,

including the use of advanced imaging technology. We continue to

work closely with these groups to ensure we are constantly improving the training we provide to our officers, which ultimately enhances the passenger experience.

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While we continue to work with stakeholders and partners, we

are dedicated to also continuing to engage and inform the traveling

public regarding the use of technologies such as AIT, as well as our

procedures. We want to ensure the traveling public understands

the screening process, while protecting the information terrorists

could use in an attempt to circumvent screening protocols.

As part of that effort, we have worked with our airport partners

to post signage at airports regarding AIT, on our Web site, through

the media, and via hundreds of press conferences, as well as social

networking platforms. Through these mechanisms, TSA has

reached millions of individuals nationwide to inform them about

airport security policies and procedures. Additionally, TSA is committed to answering questions and receiving feedback from the

public regarding their screening experience. To achieve this, TSA

utilizes a number of communication tools, including the TSA Contact Center, the Talk to TSA Web feedback tool, local customer

service managers, and input on the TSA blog, among other avenues.

TSA is committed to building upon best practices to mitigate risk

and make our transportation systems as safe as possible. Earlier

this month Administrator Pistole outlined his vision for the future

of airport security screening as we develop additional risk-based

initiatives that shift away from a one-size-fits-all approach at airport checkpoints. TSA anticipates that this type of innovative approach will enable TSA to better focus its resources, while enhancing the passenger experience.

We want to thank the subcommittee for holding this hearing on

TSA’s use of advanced imaging technology and for its diligent work

in overseeing the agency’s efforts to ensure the transportation security. We are pleased to answer any questions you might have.

Mr. CHAFFETZ. Thank you. I will now recognize myself for 5 minutes.

We have a great need in this country to secure aircraft and

transportation in general. The threat is real. Let there be no mistake from anybody anywhere; the threat is very real. I appreciate

the good hard work that the tens of thousands of TSA agents do.

I think most are trying to do a good job; they are working hard;

they are placed in a difficult situation.

In fact, I think a lot of them who probably signed up to do this

didn’t envision that they were suddenly going to have to be involved in some very invasive pat-downs and doing some things

that, when they probably first signed up, they weren’t anticipating

to do. And I appreciate both of you in your degree of participation

with public service. Mr. Kane, for instance, your 20 years in the

Coast Guard and what-not. We appreciate that.

Nevertheless, I am very frustrated by the lack of candor coming

from the Transportation Security Administration. The TSA has

earned a notorious reputation of doing things a bit different than

the way they say they are doing it. That is not a personal attack

on you two as individuals, and I want to note at the beginning it

is not a direct criticism on any one of you personally.

But given that you are sitting here, and I am glad you are sitting

here, and we are going to have this discussion, I just want to note

that it is our role and responsibility to make sure that we improve

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security and still protect people with their Fourth Amendment

rights; that we minimize the invasive nature in which this technology is being deployed; not just the technology, but the pat-downs

as well.

With that said, I want to start to dive in here a little deeper on

these machines and start, I guess, for instance, with you, Mr.

Kane. These machines, as I understand it, were built to the specifications, correct?

Mr. KANE. Yes, Mr. Chairman.

Mr. CHAFFETZ. Yet I have heard repeatedly that ‘‘the imaging

technology that we use cannot store, export, print, or transmit images.’’ That came from Secretary Napolitano. Is that true?

Mr. KANE. The machines in the airports cannot store, transmit

images. The software packages on those machines does not allow

that in the airport. We do have machines in our testing environment where we do have that capability——

Mr. CHAFFETZ. Same machines, though, right?

Mr. KANE. Same machines hardware-wise.

Mr. CHAFFETZ. Same machines. OK.

Mr. KANE. Hardware-wise.

Mr. CHAFFETZ. My understanding—I am looking at this Freedom

of Information Act that was put out there and the specifications

were put out. Let me read a few things. Enabling and disabling of

imaging filter shall be modified by users as defined by the User Access Levels and Capabilities Index. Let me go on. When in test

mode, the whole body imaging machine, the WBI, shall allow exporting of image data in real time; shall provide secure means of

high speed transfer of image data; shall allow exporting of image

data, raw and reconstructed. Did I misread anything here? Is that

accurate?

Mr. KANE. I believe you are referring to probably a prior specification, some of which we have cleaned up in subsequent engineering change proposals to make sure that those test modes are separate. So you reference, Mr. Chairman, a test mode. That mode does

not exist in the airport environment; the machines in those airports

have a different software package. That does not exist——

Mr. CHAFFETZ. You said the same machines have those capabilities. My understanding is the network, that each of them are built

with a ‘‘network interface with an ethernet interface connection.

Network interface shall be configured with an IP address,’’ which

would suggest that it is actually transferring images, is it not?

Mr. KANE. None of the machines today are networked in the airports. That capability is in the hardware of those machines; they

are not networked in the airport.

Mr. CHAFFETZ. So they do have the capabilities of doing it, and

you actually do capture and transmit images, right? Just think

about this. From the very standpoint of the fact that somebody

goes through the machine, you capture the image, it is then transferred electronically to another room, correct? That image then appears on their screen.

Mr. KANE. That is correct.

Mr. CHAFFETZ. How is that not capturing, transmitting, or storing the image?

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Mr. KANE. I think our point is we don’t save those images; we

don’t retain them; we don’t transmit them. I would argue that is

the same part of the machine and that image review station is part

and parcel of that advanced imaging technology machine and, of

course, we have a display monitor on that machine to be able to

look at the images, for the image operators to be able to identify

anomalies to be resolved.

Mr. CHAFFETZ. Under oath, I want to ask you both, do you transmit images that you have captured in airports ever? Have you done

that?

Mr. KANE. Captured in airports? I am completely unaware of us

ever having done that, so I would say no, under oath, we do not

transmit images from the airport.

Mr. CHAFFETZ. Have you ever done that?

Mr. KANE. I am unaware of us having ever done that.

Mr. CHAFFETZ. Mr. Kair.

Mr. KAIR. I am unaware of us ever doing that, sir.

Mr. CHAFFETZ. You have in your specifications that you have to

have these capabilities. Why was that in there in the first place?

Mr. KANE. Clearly, when we developed this type of technology,

like any other piece of technology we have, we have to do extensive

testing, we have to do extensive training to be able to deploy those

machines. Therefore, we have the capability on those machines to

operate in the test mode, to capture images, to be able to transmit

those images to other machines in our networks that we use in

testing facilities, we have that capability.

We don’t have that capability in the airports; we separated that

capability completely out from anything that is in the airport. And

the other piece, we do have images that we use that were taken

from volunteers, and typically those are paid volunteers that we

use in our testing processes to capture those images.

Mr. CHAFFETZ. What about this so-called Level Z access? Capabilities under ‘‘Level Z access’’ enable and disable image filters; export raw image data in test mode; modify access level capabilities;

download data.

First of all, Mr. Kair, how many people have user access Level

Z capability?

Mr. KAIR. Sir, that is actually a question for Mr. Kane.

Mr. CHAFFETZ. Sorry. Mr. Kane.

Mr. KANE. Mr. Chairman, I am not sure of the exact number, but

I would like to just say the specification to make sure we gave

greater confidence to people that we were not doing the things that

people are talking about, we removed some of those capabilities

from the Z user access. Typically, those are maintenance technicians and some of my folks in my labs have that type of user access.

Mr. CHAFFETZ. Can you provide this committee the email or the

paperwork that would verify that you have actually changed that

and when it was changed?

Mr. KANE. Mr. Chairman, I certainly will do that for the record.

Mr. CHAFFETZ. So when I see under the TSA Web site ‘‘The

image cannot be stored, transmitted, or printed, and deleted immediately once viewed,’’ that is fundamentally false, is it not? It does

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have that capability; it is a matter of flipping the switch, turning

it off and on.

Mr. KANE. It is not a matter of flipping a switch and turning it

off and on. The software that is on the airport machines does not

allow that capability in the airport. The software in our testing machines is a completely separate software and has that capability in

our labs.

Mr. CHAFFETZ. Has it ever had that capability? When you first

deployed it did it have that capability?

Mr. KANE. In those initial, the first, I believe, 47 that we rolled

out, that capability was on the machines to flip that switch at that

Z user level access that you are referring to. We recognize that we

wanted to change that and we made a change on the machines that

are in the airports and retrofitted it to all those machines that are

in the airports.

Mr. CHAFFETZ. The committee would appreciate it if you would

provide that paperwork.

My apologies to the ranking member; I did not realize how far

over time I was. I will now recognize the gentleman from Massachusetts for 5 minutes and some more if he would like it.

Mr. TIERNEY. Thank you, Mr. Chairman. Mr. Chairman, I think

it is important that you get the questions that you have answered,

so I have no objection to using the time on that.

I don’t mean to just pound this thing to death, but I want to

make sure that we are clear on it, because there seems to be a

trust issue here, clearly, on that. I am reading the requirements on

sensitive security information and it says, ‘‘TSA policy dictates that

passenger privacy is maintained and protected during passenger

screening. To ensure passenger privacy safeguards in place, AIT

systems will prohibit the storage and exporting of passenger images during normal screening operations. While not being used for

normal screening operations, the capability to capture images of

non-passengers for training and evaluation purposes is needed. To

ensure that image capturing maintains passenger privacy, the AIT

systems will provide two distinct modes of operation, screening

mode and test mode. During screening mode, the AIT system shall

be prohibited from exporting passenger image data, including via

STIP. During test mode, the AIT systems shall not be capable of

conducting passenger screening.’’

Does that sound accurate to you?

Mr. KANE. Yes, Congressman.

Mr. TIERNEY. So what we need to do is somehow give assurances

to people that are doubtful on that, and how do you suggest we do

that?

Mr. KANE. It is very difficult at times to do that. We have talked

about it. We have offered up the specifications. We have made

some of those changes that you referred to. We have actually

changed in the specification to make it more clear of how we intend

to operate the machines. We put out a private impact assessment

that talks about how we intend to operate the machines and we try

to be very straightforward with the public, with the signage and

the other messaging mechanisms we have to make it clear to the

public how we intend to operate the machines and the fact that we

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leted when they leave the machines, once we have resolved any

anomalies.

Mr. TIERNEY. Is the ability to do all of those things you just said

basically contained in the software, as opposed to the hardware?

Mr. KANE. At this point, yes, Congressman.

Mr. TIERNEY. Do you have plans to do it otherwise?

Mr. KANE. No. At one point they were kind of together, where

you could flip a switch as a Z user level. We have separated that

capability and the airport machines don’t have that capability.

Mr. TIERNEY. So if Mr. Chaffetz wanted to go to the airport, he

would see that the software at any given airport is disabling all of

the problems or concerns that he has.

Mr. KANE. It is probably difficult to see that at the airport from

a nonexpert, but we could certainly endeavor to show people that.

Mr. TIERNEY. Take an expert with him on that.

Now, can you tell me whether or not the millimeter wave scanners are as effective or more effective than the x-ray backscatter

scanners?

Mr. KANE. I can’t talk about the specific requirements and capabilities in an open hearing; I am happy to share——

Mr. TIERNEY. Sure you can. I mean, you can’t tell me whether

or not they are as effective as the others?

Mr. KANE. So what I would say is both have met our specifications. So we have specifications that we put out and both met those

specifications in very near similar levels, and they flipped a big depending on where you were using them.

Mr. TIERNEY. I don’t accept your answer that you can’t tell us in

open session, but I am going to for the moment on that, because

my basic point here is that you are saying they are interchangeable

and the TSA would be satisfied with whatever machine happened

to be at a given airport that it was doing the job you wanted done.

Mr. KANE. That is a fair statement, Congressman.

Mr. TIERNEY. OK. Now, the only reason you don’t go just to the

wave scanners, where there is no issue at all with respect to radiation is that it is TSA’s contention that the levels are so low in the

x-ray backscatter that it is not a problem?

Mr. KANE. That is one of the reasons. It is a very safe technology

and it is very, very low radiation, as we have tested it independently many times. But the other is it is useful for us to have multiple technologies. As we talked about, we do need to address the

threat. Having a number of people working on the problems of addressing the threat is useful to us. Having competition in our marketplace, where we are the primary buyer in the world of technologies is useful to us as well.

Mr. TIERNEY. Well, I understand. I am all about competition on

that, as the F–136 debate will indicate. But the fact of the matter

is here, if you thought it was a risk, a danger, you would just take

the chance of going with a monopoly, as opposed to having one area

out there that was a competitor, but dangerous.

Mr. KANE. We think the technology is very safe, yes, Congressman.

Mr. TIERNEY. So will you make available to the public your evaluation studies and make the equipment available for independent

testing?

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Mr. KANE. We have never really made the equipment available

for independent testing; that would expose it to a lot of public information that we wouldn’t share publicly in terms of its capabilities.

Mr. TIERNEY. You don’t think there is a way to do that and not

expose it? I mean, it is done all the time.

Mr. KANE. Radiation-wise, we certainly have done that with

independent validators; we have had Johns Hopkins, we had National Institute of Standards and Technology. Just making it available to the public to look at those machines, no, we wouldn’t be

able to do that.

Mr. TIERNEY. But other than making it generally available to the

public, you would make it available to other independent sources

that were qualified to make an evaluation? You have done it and

you would do it again if it was set up appropriately?

Mr. KANE. Yes, sir.

Mr. TIERNEY. OK. Do you know whether or not the materials

that were used by the shoe bomber and the underwear bomber,

whatever you want to call them, could have been detected or would

have been detected by the AIT machines?

Mr. KANE. Those types of materials, what advanced imaging

technology does is detect anomalies on the body. Those types of materials are anomalous to the body and so, yes, it does detect those

types of materials. We tested against similar types of materials in

the labs and certainly in their operation on the day-to-day use. Lee

could speak to a number of things that you find that are similar

to those types of materials as well.

Mr. TIERNEY. One of our previous witnesses testified that the Department of Homeland Security and TSA had basically funded a

National Academy of Sciences report where it made a recommendation at the end for evaluating the effectiveness of all initiatives in

a systematic way, and then had a whole process out there. Do you

follow that process when you are evaluating the different techniques?

Mr. KANE. I think if you are talking about the process we use

for developing our technologies, yes, we use a systematic process in

doing that.

Mr. TIERNEY. Did you use the one that was recommended by the

National Academy of Sciences, for which you paid?

Mr. KANE. We use our process as mandated by the Department

of Homeland Security in their acquisition guidelines. We use that

process.

Mr. TIERNEY. Do you know how that measures up to the——

Mr. KANE. I apologize, I don’t know that.

Mr. TIERNEY. Would you get that for the record for us——

Mr. KANE. Certainly.

Mr. TIERNEY [continuing]. And give us an indication of how your

policy, your standards and your evaluation process line up with the

recommendations made by the National Academy of Sciences in the

2008 report that was paid for by the Homeland Security and TSA?

Mr. KANE. Yes, sir.

Mr. TIERNEY. Thank you very much.

Yield back, Mr. Chairman.

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Mr. CHAFFETZ. The chair now recognizes the gentleman from

Texas for 5 minutes.

Mr. FARENTHOLD. Thank you very much.

In response to privacy concerns, you implemented the pat-down

search, as well as a secondary pat-down search for the anomalies,

and the 9th Court of Appeals has allowed you all to do administrative searches at airports and held that the pat-downs are illegal.

I think their words were limited in its intrusiveness as it is consistent with satisfactory of the administrative need that justifies it. So

limited in the intrusiveness I think is kind of key there.

But take a look at some of these slides we have up here. I am

concerned. These are not even the secondary pat-downs, these are

the primary pat-downs. This is a child. Another child. There are

people who would go to jail for touching a child like that. Do you

really think these are the least intrusive means you can come up

with to ensure security?

Mr. KAIR. Sir, Mr. Kane and I actually sit every morning in an

intelligence briefing where we learn what is coming at us from our

attackers, and what is evident to us is that those that wish to do

us harm are very willing to use techniques which go against our

social norms and try to use things that will use our process against

us, and that was proven out actually in Flight 253 with the placement of a bomb that used all nonmetallic components. So we have

done extensive testing in what techniques we can use in order to

be able to detect items like that using both process and technology

so that we can mitigate that threat, while also being as conscious

as possible about the passengers’ experiences coming through, as

well as allowing passengers to expeditiously get to——

Mr. FARENTHOLD. And you also indicate in your testimony that

only a small percentage of passengers have undergone a secondary

screening. I have had the misfortune of being one of those passengers, and I was taken into a private room, not offered the opportunity to stay in public or have anyone accompany me, and was

thoroughly searched. I was not offered the opportunity to rescan in

the event I moved.

The TSA agent indicated, you probably moved; that’s why there

were the anomalies. A rescan would have avoided that. Wouldn’t

that have been a less intrusive option, to offer me a rescan, when

they had I think it was five anomalies detected on my body?

Mr. KAIR. Sir, without getting too much into the sensitive security part of when we do which type of screening, when we do have

an anomaly in a sensitive area, we do want to make sure that we

properly screen that area using a pat-down. Any passenger is authorized to have a companion in that private screening room with

them and we use whatever technique we can——

Mr. FARENTHOLD. I mean, I would rather have had this happen,

sunshine is the best disinfectant. Despite as embarrassing as it

was, I would have preferred to stand out there and let the rest of

the people at the airport see what I was subjected to.

Let me move on. I am concerned also about the safety of your

hardworking TSA officers. Why should none of those officers that

work around these x-ray machines, in particular, not wear the

same safety badges that any body who works at a hospital is reVerDate 11-MAY-2000 12:26 Aug 04, 2011 Jkt 000000 PO 00000 Frm 00131 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67371.TXT KATIE PsN: KATIE
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quired to wear? This seems like a low cost way to ensure the safety

of the people working for you.

Mr. KANE. Congressman, these are different and they are very,

very low levels of radiation used by these machines, and they are

well within public use limits, and there are national standards for

when you would implement a dosimeter type of program that you

are referring to, and we are well, well below any of those levels

that would cause us to look at putting the radiation badges on the

workers.

Mr. FARENTHOLD. I can understand why you also are not willing

to open up the entire software and process to peer review, but

would you be willing to allow independent agencies or the scientific

community to test the amount of radiation that these machines

emit?

Mr. KANE. Sir, we have done a number of independent tests and

we have ongoing independent tests for all of these machines in the

airports. Johns Hopkins did the study on the backscatter advanced

imaging technology as an independent body; the Army’s Public

Health Command comes into airports, they look at our radiating

machines in airports and they use test and survey methods, including dosimeters in some cases, and they have done extensive independent testing of the machines and clearly and consistently show

very, very low levels of radiation.

Mr. FARENTHOLD. I see my time has expired. I will wait around

for the next round of questions. I have a whole other page.

Mr. CHAFFETZ. Thank you. The gentleman yields back.

We now recognize the gentleman from Illinois for 5 minutes, Mr.

Quigley.

Mr. QUIGLEY. Thank you, Mr. Chairman.

Thanks for being here. How many of these machines are in place

now?

Mr. KANE. There are nearly 500 in 78 different airports.

Mr. QUIGLEY. And how many do you need if you are going to use

them at every location, at every gate?

Mr. KANE. We are working through what that would be. Some

of it depends on what the final capability of the machines is, especially with this automated target recognition software. You can get

more people through those types of machines than you can with the

image operator. We think that number is going to be something

less than 1,800. Eighteen hundred is the number that we have

used, but it will probably be something less than that. To give you

some concept of scope, we have around 2,200 airport lanes in the

country.

Mr. QUIGLEY. And is there a concern that you have, if those were

all in place with the new technology and the time to get through,

it would not change the time that it takes to get X number of people through an airport in a day at every one of those entrances?

Mr. KANE. Congressman, we are very sensitive to that. That is

why I say the final number will depend on what the technology becomes capable of and how fast it can process a passenger. Right

now you see it in an airport, you see it sitting next to a walkthrough metal detector to alleviate just that concern. We are going

to keep that configuration until we know we don’t have that concern and we won’t cause that to be the impact at the checkpoints.

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Mr. QUIGLEY. Is there a projected timeframe now to have all

these in place, a range?

Mr. KANE. I can tell you that we have nearly 500 in the airports

today. We had 500 in the President’s fiscal year 2011 budget request. How the CR plays out or how the fiscal year 2011 budget

plays out we will see, but we think there is 500 within that level;

and then the fiscal year 2012 request is for 275 additional machines. So that would bring the total to 1,275 at that point.

Mr. QUIGLEY. You mentioned the new capabilities and the new

technology that would be less, would be more generic, I guess, in

terms of what body images are shown.

Mr. KANE. Yes. You would see, at the machine itself, a very generic outline. It is the same outline for everyone, and you would

just see that, and any anomalies would show up on that outline,

and that allows for one to just do the resolution right at the machine and to a very limited pat-down or targeted pat-down. So if

I keep my BlackBerry in my pocket, you know, it is going to show

on my pocket and the officer will just have to resolve that alarm

right there in my pocket.

Mr. QUIGLEY. And the reason I am asking is if it seems like it

is a reasonable period of time before that technology will be available, you would want to start shifting over to those right away, before you purchase 2,200 of them.

Mr. KANE. We think it is a reasonable amount of time that technology will be available, and we have stated a number of times

that we expect our next procurement to have that capability.

Mr. QUIGLEY. Very good. Thank you.

I yield back.

Mr. CHAFFETZ. Will the gentleman yield to me?

Mr. QUIGLEY. Yes.

Mr. CHAFFETZ. I just want to make sure, Mr. Kane, I heard exactly what you said. Have any of these machines transmitted, have

you emailed, have you sent anything back to the headquarters?

And I believe your answer to that was that you were unaware of

any, right?

Mr. KANE. Correct.

Mr. CHAFFETZ. Why isn’t the answer to that no, it doesn’t even

have the capability? See, that gives me a pause to think you had

to think about that and you came to the conclusion, when I gave

you a few more minutes to think about it, well, not that I am

aware of isn’t quite definitive as no, it is not even capable of doing

it. It is like if I said did you fly to New York in your airplane? No,

it can’t even fly, are you crazy?

Mr. KANE. I can tell you no, authoritatively, since we started

rolling them out in airports. I was not involved with the program

from its inception and I don’t know some of what occurred earlier

in the program’s inception. I am virtually certain, but I can’t say

for certain because I wasn’t the one who would have been witness

to what was in the airports and how they were used in the airports. But TSA has always been on the record as saying, no, we

don’t do this, we have never had this capability. So I couldn’t say

authoritatively, though, from before my time there.

Mr. CHAFFETZ. I appreciate that, but just because you are ‘‘on the

record,’’ that is the concern, that I find the inconsistency between

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sometimes what the record is, and I have some personal experiences that I won’t take the time of this committee, but that is the

concern. Instead of hearing a definitive no, it is not even capable,

what I read are specifications that say, well, we have an ethernet

cable, we have an IP address, we have an ability, it basically has

all the capabilities you say it doesn’t have, and that is the fundamental challenge.

I have taken this gentleman’s time. I will yield back my time and

now recognize the gentleman from Maryland for 5 minutes.

Mr. CUMMINGS. Mr. Chairman, I just noted you had stopped the

clock for about 2 or 3 minutes. Did you know that?

Let me just say, gentlemen, you all have a very tough job. You

have a very, very tough job. You weren’t here a little bit earlier

when I said that you have to protect the public and at the same

time you have to try to make sure you have a fair balance so that

you are not intruding into people’s lives unreasonably and their

bodies, and that is a tough one.

And as I listen to all of what has been said so far, there has

been, overhanging this hearing, and I think with the chairman’s

statement just now, there is a very, very significant shadow hanging over TSA, and that is clearly, and it goes to a five letter word,

trust. When I listen to all the discussion, there is a lot of information you cannot divulge. And I am not an intelligence expert, but

I would imagine that part of the problem is that you don’t want

to let people know what certain things are happening with these

machines so that they can get around them, I guess. Is that right?

Does that make sense?

Mr. KAIR. Yes, sir.

Mr. CUMMINGS. On the other hand, you have a Congress which

wants to know and the public wants to know, and that is a tough

situation. I guess what I want to get to is I want to have that trust.

I want to believe that just like Members of Congress raise their

hand and swear to protect the people we represent, that you all go

in there every day trying to figure out how you can best protect

every single person that use our airways.

So how would you all suggest, given all that I just said and what

you know, that we get that trust back? And the more I think about

it, it is so easy to lose the trust when you give up but so much information, when you have millions of opportunities for something

to go wrong.

But how do we get back there? Because that is what it is all

about. First of all, you have to have the trust. Then there is another piece, which is you have to do things in a way that is least

intrusive, but there has to be a level of trust for people to believe

that you are doing it in the least intrusive way. So help me with

that.

Mr. KAIR. Mr. Congressman, all I can say is when you look back

at previous attacks, even since 9/11, our adversary does look for

processes or items which are not prohibited at the time, such as 9/

11 they used an item that was not prohibited at the time, or I

think they look at what our process is and try to use that process

against us, such as the Richard Reid shoe bomb. They recognized

at the time that using a nonmetallic improvised explosive device

going through a metal detector was a viable way of going through.

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So from a TSA perspective we have to look every day at what are

we seeing from a threat perspective and trying to put processes or

technology in place to be able to thwart that type of a risk or

threat, and at the same time be able to communicate with the traveling public so they know what to expect when they come through

the checkpoint. So it is a balancing act that we have to balance

every day, and it boils down to having a very active dialog with the

American public. We use a variety of ways of trying to do that, including pretty robust dialog on the Internet. We have an awardwinning blog, for example, where we encourage the American people to have that discussion with them about why it is that we are

doing what it is we do every day, and we want to make sure that

the traveling public is able to navigate our screening process——

Mr. CUMMINGS. I am running out of time, but I want to ask you

this. When I heard the representative earlier, she testified, one of

the things that she talked about was training, and that there

seemed to be—I think part of the trust, too, is that people feel that

they are treated with respect, that they may be going through some

difficulty, but somebody hears them, somebody understands them,

somebody has empathy. I think that goes a long way toward trust

also. Just comment, and my time is up.

Mr. KAIR. Yes, sir. I couldn’t agree with you more on that. We

emphasize to our officers—I think our officers are probably some

of the most trained and tested of any profession out there, and one

of the things that we do emphasize with our officers is proper communication to de-escalate the traveling process. Just traveling,

much less screening, is a stressful proposition for particularly like

a family going through. So our officers are trained and, for the

most part, do a very good job of de-escalating stresses of going

through that process.

We actually retrained our entire work force about 21⁄2 years ago

to emphasize customer service as well as security, because the two

actually go hand in hand. We also have another training initiative

this year to get at that same exact issue of good communication

which de-escalates stress to assist them in getting through. It is a

partnership with the American public, where we want them to help

us in the screening process as they are going through our checkpoints.

Mr. CHAFFETZ. The gentleman yields back.

We now recognize the chairman of the overall committee, Mr.

Issa from California, for 5 minutes.

Mr. ISSA. Thank you, Mr. Chairman.

And thank you for your patience in getting through a long day.

This is an important panel. We have waited for you two because

this committee has serious doubts about the effectiveness and efficiency and authority for some of the things you are doing. I think

that is pretty clear.

The chairman is particularly interested in the full body scanners.

I am interested in the overall process. So as someone who was here

on 9/11, who remembers President George W. Bush telling us it

wouldn’t change America, I am concerned that it has. You represent 57,000 well meaning people. I debate well trained because

your turnover is still pretty darn high and it is awful hard to have

that many newbies and all we say they are well trained. Almost

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every time I go through security I see training, which is a good

thing. But the bad thing is I see the need for training every time

I go through.

Mr. Kair, let me go through something that isn’t full body scanners. I will give you a little relief. I fly more than 40 round-trips

a year, plus many overseas trips. For more than 6 years I carried

in my carry-on baggage on every single flight a pair of folding scissors. That pair of folding scissors was taken away 2 weeks ago.

That pair of folding scissors, if you open them up and elongate

them, has one inch of blade times two, and its overall length is two

inches.

I have researched and cannot find a basis for taking that away.

Do you have an explanation for that kind of subjectivity? Were they

wrong 200—let me rephrase that—40 times 2 is 80; 320 times they

were wrong or were they right one time and I can’t find proof that

is a prohibited item?

Mr. KAIR. Sir, we actually did an analysis on the prohibited

items list I want to say November 2005, that timeframe, where we

did a risk-based analysis of what was prohibited——

Mr. ISSA. I remember my toothpaste being taken away after we

discovered that liquids could be a problem in the British situation.

You didn’t have an answer, you just took them all away. Then you

made the answer three ounces. But specifically the scissors as I described, are they prohibited?

Mr. KAIR. During that analysis in November 2005, that timeframe, we actually changed the prohibited items list and scissors

with a length of less than four inches from the fulcrum are not prohibited. So I don’t have an explanation for why they would have

been removed 2 weeks ago.

Mr. ISSA. Eight weeks earlier I had a 12 millimeter open-end box

wrench taken away; it was five inches long. Can you explain that

one?

Mr. KAIR. Sir, small tools was another piece of the analysis that

was done, and there is some discretion on tools, where, if it could

be used as a bludgeon in the discretion of the TSO, then it would

be prohibited. If it is just a normal tool, I believe less than seven

inches, it would be allowable. All of that information is actually up

on TSA.gov.

Mr. ISSA. Oh, I went there, but when you say, you have to be kidding, you get threatened, you get people who make it very clear

they are law enforcement. So I am concerned about something. I

am concerned that some people think a less than five inch 12-millimeter open-end box wrench is a bludgeoning tool. I am concerned

that a one inch worth of point and cutting, plus another two inches

of the rest of a scissors are somehow dangerous. But they only do

it very infrequently. And, please, as a guy with a motorcycle, don’t

ask me to explain how I had a 12-millimeter open-box that I had

gotten on the wrong coast, but these things happen.

The fact is you don’t have a consistent system to test. Today you

are saying we are safer while in fact only a fraction of the people

are going through these full body scanners, and the full body scanners are repeatedly false positiving in huge numbers. Isn’t that

true? I understand all the good at work and the improvement and

the trying, but isn’t it true that my statement is fair, that only a

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fraction of the people go through them and they have huge false

positives today?

Mr. KANE. Today, only a fraction of the people go through them.

They have false positives. Not a huge number of false positives.

Mr. ISSA. How about in San Diego it is about every fifth person

that goes through gets a secondary?

Mr. KANE. That would be possible.

Mr. ISSA. OK. So 20 percent is not huge, but it is close enough

to huge if you are one of the people getting a pat-down. You have

heard testimony here today that in fact low level x-ray is longstanding to be a problem. What assurance do we have here today

that you are not going to be the next fluoroscope, you are not going

to be the next situation in which you say, well, it is not a problem,

but Members on the dais who go back and forth across this country

literally 40, 50 round-trips a year aren’t getting overexposed, if in

fact you eventually get to implementing full-time this procedure?

Mr. KANE. The machines have been tested repeatedly to show

how safe they are, and independently to show how safe they are,

and they are tested against national standards that are set by

standards-making body who have a host of experts on them, and

they set those standards that we work toward. We are well below

those standards for this technology, backscatter in particular I believe you are referring to, Mr. Chairman.

Mr. ISSA. I am referring to people involuntarily getting x-rays or

being forced into a secondary because now they have said, no, I

don’t want to. The elimination of the trusted traveler, granted, it

went bankrupt. All of that contributes to the whole question that

year after year after year, each time you find out what you didn’t

know, which right now includes you can’t detect a bomb sewn into

a human being. As a result, you are not going to pick up the bomber willing to have surgery to implant explosives under their skin.

That has been said here today; it has been well documented.

I am just going to close with one thing. Would you please report

back to the committee the following: earlier today, in Mr. Kair’s

opening statement, you talked about what people can have and not

have, and the consistency. I go through those checkpoints all over

the country regularly. What I don’t see is I don’t see anything that

says here is a traveler’s right. You have a right to a private thing,

you have a right—and I know, Mr. Chairman, I have gone over, but

I know a lot of us have.

I have seen repeatedly TSA individuals tell people who are traveling with another person that is being held for secondary, stand

back, go over there. They are deliberately denying what you said

was a right here today. And I hold you to post, the TSA to post

that I have a right to have my spouse, you have a right to have

your child or whatever with you during any secondary, and not be

told they must go over there, stand over there, you could be arrested if you don’t move away. The exact opposite has happened in

the experience of thousands of travelers. Will you agree to post so

travelers know that your TSA people are wrong if they try to say

stand back, you can’t be there?

Mr. KAIR. Sir, I believe the description about being able to have

a traveling companion or family member with you, particularly in

a private screening area, is up on our TSA Web site——

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Mr. ISSA. Web site doesn’t make it when your people are saying

the opposite.

Mr. CHAFFETZ. All right, we will need to move on here.

Mr. ISSA. Will you commit to make sure that it is available to

the public at the point at which they may be being told that they

cannot have that person with them?

Mr. KAIR. Part of the challenge that we have is that signage, we

run into having too many signs out there, so having a posting at

the checkpoint is difficult for us because we have requirements for

so many signs.

Mr. CHAFFETZ. The Chair will recognize that is a no. If you want

to continue to add testimony, this is the problem with trying to fit

this in.

Mr. ISSA. Thank you, Mr. Chairman.

Mr. CHAFFETZ. We are about to be called for votes. We have two

other Members. It is the policy of this committee to first recognize

those who actually sit on the subcommittee first, so I am going to

recognize the chairman of the Transportation Committee, full

member of this committee and subcommittee first, Mr. Mica, for 5

minutes.

Mr. MICA. Mr. Kair and Mr. Kane, have we bought 250 of the

rapid scan backscatters, is that either purchased or being purchased, is that correct?

Mr. KANE. That is correct.

Mr. MICA. What is the estimated cost of that equipment, $100

million?

Mr. KANE. I believe, all told for all the equipment we have pur- chased so far, and I don’t know the split, is around $122 million.

Mr. MICA. For rapid scan?

Mr. KANE. For both, the rapid scan and the L3, for the 500 machines.

Mr. MICA. OK. L3. Did former Secretary Chertoff talk, consult,

or communicate with either of you two?

Mr. KANE. No, Congressman, he did not.

Mr. KAIR. No for me, sir.

Mr. MICA. Can you provide to the committee records of any of his

communications between those involved in the acquisition of the

equipment?

Mr. KANE. I am not sure how I would locate records. There was

no one in TSA involved with him in the acquisition of the equipment, so I think the record would be zero from TSA’s perspective.

Mr. MICA. Can you check the records of representatives of, what

is it, L3, that you purchased that equipment from?

Mr. KANE. I am sorry, Congressman, I didn’t——

Mr. MICA. The equipment was purchased. We talked about rapid

scan and there is millimeter wave. I am interested in finding out

the contacts of the former secretary with TSA, either prior to, during, or at some time of the acquisition. Can you check your records?

Mr. KANE. Congressman, we can do that. I can tell you he was

not involved from the acquisition perspective of those machines any

time after being secretary, at least, and clearly as his oversight of

the department he would have had some involvement before that.

Mr. MICA. All right. Actually, the backscatter is nothing new. I

remember at least 5 years ago we had stick devices that you could

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deploy or software that would give you a stick image, rather than

the full body scan. Is that correct? Are you aware that they had

that?

Mr. KANE. No, I am not.

Mr. MICA. Mr. Kair.

Mr. KAIR. I am not familiar with that, sir.

Mr. MICA. Well, they have had it. I understand you are now testing that?

Mr. KANE. Yes, we are testing the automated target recognition

software, which is the generic outline of a person.

Mr. MICA. And when do you expect those tests to be finished?

Mr. KANE. We have them on the millimeter wave, the L3 machines, we have them in the airports today. We will finish up with

the specific testing we have to do on those probably by the end of

this month. There is about a 45 to 60 day test.

Mr. MICA. Well, I can’t believe it, because 5 years ago that software was available, so we didn’t have to have—and objections were

raised 5 years ago and we were told that technology was available.

You have testing in your testimony, testing began 2007, included

testing and evaluation in both laboratory and airports. When did

you first notify Congress that you were going to deploy the equipment and it was fully tested?

Mr. KANE. I am not sure there was a specific timeframe that we

did that, Congressman. I know in our budget request, clearly, when

we requested the machines and the funding for the machines, we

communicated to Congress——

Mr. MICA. Did you provide any evaluation of your testing at

those airports?

Mr. KANE. We have provided very substantial briefings and——

Mr. MICA. That was after the deployment, at least to my staff.

Mr. KANE. And that is possible, Congressman. I don’t know that

we came up in advance of deploying to everyone on the Hill. I am

not sure.

Mr. MICA. Are you aware of the latest testing of the equipment

that GAO conducted in December?

Mr. KANE. We are aware of GAO’s testing, as well as the other

ongoing testing we have in airports every day——

Mr. MICA. Again, what this reminds me of is the puffers. The

failure rate was totally unacceptable. Would you concur with that

evaluation?

Mr. KANE. I think we look at different types of testing and we

think the machines are very effective against the types of threats

we are looking at. We do daily testing in airports across the country.

Mr. MICA. That is your self-testing. You have been briefed by

GAO on their testing?

Mr. KANE. Yes, I have.

Mr. MICA. And you find that acceptable level of performance?

Mr. KANE. I would like to think that we could perform very well

at 100 percent——

Mr. MICA. Do you find the level of failure acceptable that GAO

has reported, now that you have the equipment in place?

Mr. KANE. So the specific number?

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Mr. MICA. Well, first of all, we are not going to talk about numbers because it is classified, but the failure has been pronounced;

Mr. Pistole talked to it. Mr. Pistole said that GAO was clever. Do

you feel that, again, having reviewed this, is that failure rate acceptable? We are going to spend a quarter of a billion dollars on

deploying this equipment and staffing it, and I have had it tested,

and to me it is not acceptable.

Mr. KANE. I would like to see us do better against GAO testing.

I don’t think that is representative of the effectiveness of the technology.

Mr. MICA. If the American public, if we could reveal the failure

rate, the American public would be outraged at that expenditure,

but it seems that you have opted for sort of a popularity poll. You

said that 80 percent of the people do not object to, accept the use

of that technology, even though it doesn’t work. So that is the basis

on which we deploy expensive screening technology?

Mr. KANE. No, Congressman. I think that is a partial basis, but

I think the other extensive testing that we did in the labs, that we

did in the field, and that we do in the airports every day——

Mr. MICA. Well, the public may accept it, but I am telling you

I will not. Thank you.

I yield back.

Mr. CHAFFETZ. The gentleman yields back.

We have a vote on the floor. We have a committee that has now

run past its time it was going to start. We have other Members

who have joined us here who want to ask questions, but with 12

minutes to go we are going to have to stand in recess, with the expectation that both of you will come back to further testify and answer Members’ questions. Is that your understanding, Mr. Kane?

Mr. KANE. Mr. Chairman, yes, it is.

Mr. CHAFFETZ. Mr. Kair.

Mr. KAIR. Yes, Mr. Chairman.

Mr. CHAFFETZ. My apologies to the Members. This is not the way

we were going to conduct this. This is not right and fair to the

Members. I appreciate the public and those that have traveled here

to do this. Nevertheless, we will continue this hearing at a date to

be determined. We stand in recess. Thank you.

[Whereupon, at 1:38 p.m., the subcommittee was adjourned.]

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