Aviation Security: TSA Has Policies that Prohibit Unlawful Profiling But Should Improve Its Oversight of Behavior Detection Activities
Released: 2019-06-04T00:00:00

Letter

Background

DHS’s 2012 Memorandum on Addressing Allegations of Unlawful Profiling

In 2012, the Secretary of Homeland Security issued a memorandum directing TSA to take a number of actions in response to allegations of profiling by behavior detection officers. These actions included, among others, working with the DHS Office of Civil Rights and Civil Liberties to (1) review, and revise as necessary, behavior detection officer training policies, training curriculum, and supervisory guidance to ensure they adequately address and train against profiling; (2) enhance data collection to facilitate appropriate supervision and monitoring of behavior detection activities; and (3) ensure passengers are aware of complaint mechanisms and ensure complaints are appropriately handled.

TSA has taken some actions to address these directives. For example, TSA has revised its standard operating procedures and training materials to more clearly instruct personnel trained in behavior detection and other TSA personnel on how to avoid unlawful profiling; initiated a study to collect data on the race and national origin of passengers referred for behavior detection screening and examine whether disparities exist in the referral trends, and if so, whether these differences suggest discrimination or bias in the referral process; and issued a Management Directive establishing TSA policy and procedures for receiving, documenting, and referring passenger screening complaints resulting from the application of TSA security screening policies and procedures, including processes for all involved offices in headquarters and the field that handle passenger complaints.

TSA’s Use of Behavior Detection

The Aviation and Transportation Security Act established TSA as the federal agency with primary responsibility for securing the nation’s civil aviation system, which includes the screening of all passengers and property transported by commercial passenger aircraft. At the approximately 440 TSA-regulated airports in the United States, all passengers, their accessible property, and their checked baggage are screened prior to boarding an aircraft or entering the sterile area of an airport pursuant to statutory and regulatory requirements and TSA-established standard operating procedures. TSA began using behavior detection in 2006 as an added layer of security to identify potentially high- risk passengers.

Through the end of fiscal year 2016, TSA’s behavior detection screening process was a stand-alone program that used specially trained behavior detection officers to observe passengers at the screening checkpoint and engage them in brief verbal exchanges. During this period, behavior detection officers had brief interactions with passengers in the queue leading up to the screening checkpoint. If the behavior detection officers determined during this interaction that a passenger exhibited a certain number of behavioral indicators, the behavior detection officer was to refer the passenger for additional screening or, if circumstances warranted, contact a law enforcement officer. According to TSA procedures, if a passenger was referred for additional screening, one behavior detection officer conducted a pat-down of the passenger and search of his or her personal property while another checked documents and conversed with the passenger, attempting to understand why the behavioral indicators were being displayed and continuing to look for additional behavioral indicators. If a passenger did not exhibit a certain number of additional indicators, he or she was allowed to proceed to the boarding gate. If the passenger did exhibit a certain number of additional indicators, or other events occurred, such as the discovery of a fraudulent document, the behavior detection officer was to call a law enforcement officer. The law enforcement officer then would determine next steps, which could include questioning the passenger or conducting a criminal background check. The law enforcement officer then determined whether to release the passenger, refer the passenger to another law enforcement agency, or arrest him or her.

In fiscal year 2017, consistent with the Aviation Security Act of 2016, TSA eliminated the stand-alone behavior detection officer position. TSA transferred the former behavior detection officers to serve as part of the screener workforce and began assigning them to the checkpoint to screen passengers. According to TSA officials, when screeners trained in behavior detection are assigned to a position, TSA policies and procedures permit them to use behavior detection when applicable. Furthermore, TSA’s checkpoint standard operating procedures do not currently include the use of behavior detection, as behavior detection’s use continues to be guided by its own policies established in 2016.

However, some screeners trained in behavior detection continue to use behavior detection to support passenger screening canine teams as part of expedited screening. As part of this process, screeners trained in behavior detection work in conjunction with canine teams to observe passenger behavior and identify passenger behaviors that may indicate that a passenger poses a higher risk to the aviation system.

Overview of Optimized Behavior Detection Training

The Training and Development Division (Training Division), within TSA headquarters, oversees the development, delivery, and evaluation of training programs for TSA employees. The National Training Plan, developed annually by the Training Division and Security Operations, contains the core curriculum for screeners to meet their yearly training requirements. In addition, Security Operations works with the Traveler Engagement Division to develop and deliver specific training on topics such as disability profiling, racial profiling, and screening transgender persons.

In August 2017, TSA began training screeners on its new behavioral indicators. TSA revised the behavioral indicators by eliminating and combining some of the indicators used to observe passenger behavior, which TSA refers to as Optimized Behavior Detection. According to TSA officials, Optimized Behavior Detection includes 36 revised behavioral indicators—which TSA pared down from a list of 96 indicators. As of January 2019, TSA officials told us out of the approximately 43,000 screeners nationwide, a total of 2,541 screeners had been trained at 117 airports in Optimized Behavior Detection.

Screeners must be trained in passenger and accessible property screening before they are eligible to attend Optimized Behavior Detection training. Upon successful completion of Optimized Behavior Detection training, screeners are permitted to utilize behavior detection in accordance with the standard operating procedures, such as when operating in conjunction with canine teams or screening airport and airline workers. In addition, screeners must complete all requirements in the National Training Plan which includes elements of training on TSA’s mechanisms for preventing unlawful profiling.

TSA’s Oversight of Behavior Detection

TSA’s Security Operations is responsible for overseeing the use of behavior detection. TSA’s behavior detection policies and procedures prohibit screeners from selecting passengers for additional screening based on race, ethnicity, religion, and other factors, whether through behavior detection or other security measures. This responsibility includes overseeing officers trained in behavior detection to ensure they conduct behavior detection without regard to race/ethnicity, color, gender/sex, gender identity, religion, national origin, sexual orientation, or disability, in accordance with constitutional, statutory, regulatory, and other legal and DHS policy requirements to protect the civil rights and civil liberties of individuals. Although the stand-alone behavior detection officer position was eliminated and the program ended in 2017, the requirement to conduct oversight and verify compliance with TSA policies still applies when behavior detection is used, such as when behavior detection is used in conjunction with passenger screening canine teams. According to TSA’s policies and procedures, supervisors must conduct oversight observations of behavior detection activities a minimum of 8 hours every 14 days to verify and document compliance with behavior detection policies, standard operating procedures, the handbook, and training, among other things, and submit a compliance checklist documenting the review to TSA Security Operations.

Passenger Complaint Review and Referral Process

The TSA Contact Center (TCC) is the primary point of contact for collecting, documenting, and responding to public questions, concerns, or complaints regarding passengers’ screening experience; reports and claims of lost, stolen, or damaged items; and complaints submitted by TSA employees. The TCC may refer screening complaints for resolution to other TSA headquarters offices, depending on the specific allegation. For example, complete complaints alleging violations of civil rights and civil liberties, which include allegations implicating color, race, ethnicity, gender, genetic information, national origin, religion, sexual orientation, and parental status, must be referred to the Multicultural Branch. Figure 1 describes the TCC’s complaint review process.

TSA’s Multicultural Branch is responsible for collecting, monitoring, and adjudicating passenger complaints alleging civil rights and civil liberties violations at the passenger screening checkpoint, including complaints alleging unlawful profiling and discrimination, among other things. The Multicultural Branch receives complaints alleging civil rights and civil liberties violations from several sources within TSA including the TCC. When TCC officials determine a complete complaint involves a potential civil rights or civil liberties violation, they are to forward the complaint to the Multicultural Branch where staff are to input the complaint into a database and track the resolution of each complaint they receive. The Multicultural Branch, in consultation with Security Operations, determines whether a screener followed standard operating procedures while screening the complainant by reviewing available video of an incident or interviewing witnesses who saw the incident.

Depending on the nature and severity of the allegation, TSA airport staff may also elevate the complaint and evidence to the airport’s Assistant Federal Security Director (FSD) for Screening. If the investigation finds fault with the screener, the screener’s supervisor or manager is to determine the corrective action to be taken. Corrective actions specified in TSA’s guidelines for disciplinary actions to address misconduct range from mandating that the screener take additional training to correct the behavior to terminating the screener’s employment for multiple repeat offenses or a single egregious action. Following the outcome of the complaint review and any resulting corrective actions, the TSA headquarters unit or the TSA customer support manager at the airport is to communicate the status of the resolution, if any, to the complainant— such as by using a template letter that explains TSA’s policies and procedures or issuing an apology. According to Multicultural Branch protocols for reviewing passenger complaints, complaints may be resolved in three ways:

Closed-Administratively: If the complainant does not respond within 10 days to the Multicultural Branch’s first contact for additional information, such as a request for additional information on the alleged civil rights and civil liberties violation, the complaint is to be closed.

Closed-No Jurisdiction: Complaints that are not within the Multicultural Branch’s jurisdiction, such as complaints involving rude and unprofessional conduct that are not related to allegations of civil rights and civil liberties violations, are to be closed and referred to other TSA offices or the TSA designated point of contact at the airport for further handling.

Closed-Resolved: Following the outcome of the investigation, the Multicultural Branch is to send a letter to the complainant summarizing the allegations reviewed, explaining whether TSA procedures were followed, and in some cases, issuing an apology or informing the complainant of the type of training offered to the screener(s). The Multicultural Branch may recommend training and provide refresher training materials for distribution at the airport to the screener(s) involved, if identified, or for all screeners at the airport’s checkpoint at which the complaint originated. According to TSA officials, the Multicultural Branch recommends training when standard operating procedures for screening were not followed or when it determines that the proactive measure of refresher training would be useful. According to TSA, the designated TSA point of contact at the airport is required to verify when the training is completed.

Screeners Using Behavior Detection Receive Basic and Recurrent Training Related to Profiling, and TSA Evaluates Training Effectiveness Using the Kirkpatrick Model

Screeners Conducting Behavior Detection Receive Training on TSA’s Policies and Procedures That Prohibit Unlawful Profiling

Before screeners are eligible to conduct any behavior detection activities, they must first complete a 5-day Optimized Behavior Detection Basic Training course, and undergo on-the-job training at their local airport. This course includes an overview of DHS and TSA policies that prohibit unlawful profiling, and trains screeners to apply behavioral indicators to passengers without regard to race/ethnicity, color, gender/sex, gender identity, religion, national origin, sexual orientation, or disability. Participants must complete the Optimized Behavior Detection Basic Training course and pass a 40 question job knowledge test at the end of the class, in addition to completing 32 hours of on-the-job training under the supervision of an officer already trained in behavior detection. If a participant fails the job knowledge test, he or she is to receive 1 hour of remedial training before retaking the test. Screeners must pass the test in two attempts to be eligible to conduct behavior detection activities.

In the four Optimized Behavior Detection Basic Training courses we attended, the training instructors covered TSA’s policies on prohibiting unlawful profiling on day one of the course, and explained that profiling passengers based on discernible traits was not only illegal, but that such practices are ineffective at identifying potentially high-risk passengers. In addition, the course manual included a copy of DHS’s 2013 memorandum defining racial profiling, which all participants were required to review. To test their understanding of TSA policy and the Optimized Behavior Detection Standard Operating Procedures, the instructors presented various scenarios to engage participants in practicing how they would apply behavior detection at the checkpoint.

The 2018 National Training Plan required behavior detection–trained screeners to complete four recurrent technical training courses related to behavior detection, including two that contain material reinforcing DHS’s and TSA’s policies prohibiting unlawful profiling. Screeners participate in each of the four interactive training courses using a computer and the courses contain knowledge checks that the participant must answer correctly before completing the training. Table 1 describes the training courses screeners trained in behavior detection are required to complete and appendix I includes a list of additional training related to unlawful profiling.

TSA Evaluates Training Courses Using the Kirkpatrick Evaluation Model

TSA determines the effectiveness of particular training programs using the Kirkpatrick Evaluation Model, a commonly accepted training evaluation model endorsed by the Office of Personnel Management and used throughout the federal government. In May 2018, TSA updated its training standards based on the ADDIE model, a methodology comprising five phases: Analysis, Design, Development, Implementation, and Evaluation (ADDIE). TSA uses the Kirkpatrick model as part of the evaluation stage of ADDIE. The Kirkpatrick model consists of a four-level approach for soliciting feedback from training course participants and evaluating the impact the training had on individual development, among other things.

TSA conducts Levels 1 and 2 evaluations on selected training courses. Table 2 provides an overview of the Kirkpatrick model and the evaluation levels for courses related to behavior detection and unlawful profiling.

TSA officials told us they will continue to evaluate the Optimized Behavior Detection Basic Training course and Level 3 evaluations are under development, as they roll out their training evaluation process. According to TSA’s Training Standards, a review team determines the frequency of curriculum review, which should occur at least once every 5 years. As part of this review, TSA plans to leverage data reported in evaluations at Kirkpatrick Levels 1 through 3.

TSA Has Oversight Policies for Behavior Detection and Prohibits Unlawful Profiling but Does Not Specifically Assess Whether Profiling Occurs

TSA’s 2016 Optimized Behavior Detection Program Handbook and Operational Oversight Compliance Guidance require supervisors to conduct routine checks of behavior detection operations to monitor compliance with standard operating procedures. TSA’s behavior detection Operational Oversight Compliance Guidance outlines seven specific assessments of behavior detection operations and includes a checklist for each assessment for managers to document completion of these routine oversight tasks. According to TSA officials, these assessments should occur when screeners use behavior detection in conjunction with canine operations and while screening airline and airport workers, among other activities. When conducting these assessments, supervisors are to conduct 1-hour observations and use detailed checklists to document how screeners trained in behavior detection perform the behavior detection in practice. For example, one checklist requires supervisors to observe how screeners trained in behavior detection monitor passenger flow and communicate with passengers while observing for behavioral indicators, such as ensuring screeners using behavior detection do not ask passengers intrusive or offensive questions, among other activities related to the use of behavior detection.

However, our review of the oversight checklists found that they do not specifically instruct supervisors to monitor for compliance with procedures intended to prohibit unlawful profiling. According to TSA officials, TSA’s guidance and checklists do not include this type of monitoring for unlawful profiling because officials believe that the training screeners receive, adherence to the standard operating procedures, and the general supervisory oversight in place are sufficient to prevent unlawful profiling and could alert supervisors to situations where unlawful profiling happens. However, the 2013 DHS memorandum on DHS’s policy on unlawful profiling states that each component, including TSA, should both implement specific policy and procedures on racial profiling, and ensure all personnel are trained and held accountable for meeting the standards set forth in DHS policy. In addition, Standards for Internal Control in the Federal Government states that management should establish and implement activities to monitor the internal control system and evaluate the results, as well as remediate identified internal control deficiencies. Such a mechanism could be an item added to a checklist for supervisors to document, based on their observations, whether screeners selected individuals for additional scrutiny in a manner consistent with policies and procedures.

Another oversight mechanism, as noted in DOJ’s guidance on the use of race and other factors, could be studying the implementation of policies and procedures that prohibit unlawful profiling through targeted, data- driven research projects. As previously discussed, in 2013, TSA initiated a study and collected data through October 2017 on passengers referred for secondary screening to monitor compliance with policies that prohibit unlawful profiling. TSA discontinued the study and did not analyze the data collected because the stand-alone behavior detection program ended in November 2017. As a result of not conducting the analysis, TSA does not know what the data would have shown regarding compliance with policies that prohibit unlawful profiling.

TSA officials said they plan to update the behavior detection and checkpoint screening policies, procedures, and guidance during fiscal year 2019. As a part of this update, TSA officials told us they plan to include language in the standard operating procedures reinforcing the use of behavior detection simultaneously with other checkpoint duties, such as the document checker position. However, TSA officials told us they are not planning to add an oversight mechanism specific to profiling as part of the updates because, as previously noted, they believe screener training, adherence to the standard operating procedures, and general supervisory oversight are sufficient. Developing a specific oversight mechanism, such as a checklist or a data-driven study, to monitor screeners’ compliance with policies that prohibit unlawful profiling would provide TSA with greater assurance that its personnel are adhering to these policies when using behavior detection, and better position TSA to identify potential incidents of unlawful profiling.

TSA Received About 3,700 Complaints Alleging Violations of Civil Rights and Civil Liberties from October 2015 to February 2018 and Recommended Screener Training to Address Complaints

The TCC Received 3,663 Complaints Related to Passenger Screening and a Majority of the Complaints Alleged Discrimination or Profiling Based on Personal Attributes and Characteristics

The TCC received 3,663 complaints related to passenger screening alleging violations of civil rights and civil liberties from October 2015 through February 2018. These complaints are not specific to behavior detection activities and generally reflect alleged conduct occurring at the screening checkpoint through the application of screening measures. We analyzed the 3,663 complaints and found that the majority (2,251 of 3,663) of the complaints alleged discrimination or profiling based on personal attributes and characteristics. For example, the TCC received complaints alleging discrimination that involved assertions by passengers that they had been selected for pat-downs based on race and ethnicity, among other reasons, when the passengers believed they did not trigger an alarm prompting the pat-downs. The TCC also received complaints related to passengers’ transgender identity alleging selection for additional screening because of their transgender status. Additionally, the TCC received passenger complaints alleging that screening procedures were aggressive or inappropriate for senior citizens. Table 3 provides a list of complaint types based on our analysis. In addition, appendix II provides additional detail about our content analysis of complaints alleging civil rights and civil liberties violations, and appendix III provides a list of 10 airports most often identified in the complaints.

As TSA’s primary point of contact for passenger complaints, the TCC is responsible for the initial review and referral of all complaints that involve allegations of civil rights and civil liberties violations to the Multicultural Branch. According to the TCC standard operating procedures, TCC analysts review the complaints to ensure that they contain the necessary information to be considered complete, including the airport, passenger’s name, date of the incident, and description of the alleged civil rights and civil liberties violation. In addition, complaints reported over the phone or made on behalf of another person without the person’s consent are initially considered incomplete. For complaints that are not complete, the TCC sends the passenger a document request for information when the passenger has provided correct contact information. According to TCC officials, passengers often do not provide the correct contact information or do not respond with the necessary information to complete the complaint. TCC officials said that incomplete complaints are typically sent to the Multicultural Branch for informational purposes. Multicultural Branch officials told us that they consider information from incomplete complaints to inform its policy and training initiatives, and to improve how TSA engages with the public.

From October 2015 through February 2018, the TCC referred 51 percent (1,865) of the 3,663 complaints it received to the Multicultural Branch for review. The TCC reported that 48 percent (1,764) of the 3,663 complaints did not have complete information necessary for further review, such as the airport and date of the incident. According to TSA officials, these complaints were sent to the Multicultural Branch for informational purposes. TCC’s passenger complaint data show that the remaining 1 percent (34) of the complaints were from TSA employees and were referred to other TSA offices for review.

TSA’s Multicultural Branch Reviewed More Than 2,000 Complaints and Recommended a Range of Screener Training

TSA’s Multicultural Branch receives and reviews complete complaints related to allegations of violations of civil rights and civil liberties that are referred to it from the TCC, DHS’s Office of Civil Rights and Civil Liberties, TSA’s Disability Branch, and TSA personnel at airports. From October 2015 through February 2018, the Multicultural Branch received 2,059 complaints alleging violations of civil rights and civil liberties, as shown in figure 2. Multicultural Branch officials stated that the majority of these complaints were referred from the TCC.

As shown in figure 2, for 1,066 (52 percent) of the complaints, Multicultural Branch staff found indications of potential discrimination, such as instances of rude or unprofessional conduct that included the use of race or other protected characteristics. According to Multicultural Branch staff, to resolve the 1,066 complaints, they recommended a range of refresher training. Multicultural Branch staff explained that when issues are identified, their policy is to address the issues through screener training. Multicultural Branch officials reported that these trainings were provided through National Shift Briefings, which were circulated across TSA, or through training provided at a particular airport. For example: In one of the complaint cases we reviewed, a passenger alleged profiling based on headwear. Multicultural Branch officials used camera recordings and statements from officers involved in the encounter to substantiate that screening procedure violations had occurred. As a result, Multicultural Branch officials recommended refresher training to the airport on headwear screening protocols for all screeners at the airport to review.

In another complaint case we reviewed, a passenger alleged profiling based on the use of a tribal-issued photo identification card. In response, Multicultural Branch officials sent refresher training on verifying tribal identification and the screening of Native American passengers to the TSA designated point of contact at the airport involved for distribution to TSA personnel identified in the complaint.

In a third complaint reviewed, a passenger alleged being profiled at the screening checkpoint, without including any additional details. According to TSA officials, based on the particular allegations of the complaint and the lack of details, TSA was unable to substantiate the allegations made in the complaint. As a result, Multicultural Branch sent National Shift Briefings on TSA’s policies and procedures that prohibit unlawful profiling and inappropriate comments to the TSA designated point of contact at the airport involved for distribution to TSA personnel identified in the complaint.

As shown in figure 2, there were 993 complaints that the Multicultural Branch reviewed but did not address through training. The Multicultural Branch closed 121 of these complaints because it determined that the complainant did not provide sufficient information about the alleged civil rights and civil liberties violation for Multicultural Branch review and the complainant did not respond with additional information requested by the Multicultural Branch within 10 days. The Multicultural Branch determined that the remaining 872 complaints were not substantiated based on its review of the camera recording of the alleged incident, or were not within its jurisdiction. For the complaints not within its jurisdiction, the Multicultural Branch referred them to other TSA offices, to TSA officials at the airport or airports identified in the complaints for review, or to other federal agencies (e.g., U.S. Customs and Border Protection, Department of Transportation, or the Federal Aviation Administration) as appropriate. These complaints involved allegations of unprofessional conduct and other issues that did not involve allegations of civil rights and civil liberties violations.

According to Multicultural Branch guidance, the designated TSA point of contact at the airport along with the Multicultural Branch analyst are to determine appropriate next steps for resolving complaints, such as preparing a briefing for screeners that is tailored to address the concerns raised by the complainant. TSA officials stated that resolutions to the complainant are tailored to reflect the allegation, type of inquiry conducted, and investigation of the facts and evidence underlying the complaint. TSA’s responses to the complainant include, but are not limited to, apologizing for the screening experience or informing the complainant about the next steps such as the agency’s plans to address the complaint or underlying conduct that gave rise to the complaint. For example, in a letter we reviewed, TSA apologized for the “unprofessional and inappropriate personal questions” the passenger experienced during screening, and stated that refresher training would be distributed to screeners at the airport involved. According to documentation we reviewed related to this complaint, the Multicultural Branch sent refresher training materials on avoiding inappropriate comments to the designated TSA point of contact at the airport involved. In addition, TSA’s office of Human Capital Employee Relations reported that it took a range of disciplinary actions—from letters of reprimand to termination—for 100 screeners from October 2015 through February 2018, in part in response to passenger complaints alleging civil rights and civil liberties violations.

TSA’s Multicultural Branch Analyzes and Shares Passenger Complaint Data to Inform Screener Training

TSA’s Multicultural Branch regularly collects and analyzes data on passenger civil rights and civil liberties and discrimination complaints and their resolution status, and shares this information with TSA executive leadership, TSA airport customer service managers, and screeners in the field, among others. Multicultural Branch officials told us their staff are assigned to specific airports based on geographic region, and they continually analyze passenger complaints referred to their office from the TCC to identify trends. Staff members meet weekly to discuss trends in complaints for their geographic regions, and they review weekly, quarterly, and annual reports on the number and category of complaints referred to their office by the TCC. In addition, Multicultural Branch officials track the resolution of the cases for which they have jurisdiction and submit this information to their senior leadership each week. Specifically, the Multicultural Branch uses a database to track complaints by type, airport, submission date, and resolution status, such as how many cases are open, closed, or whether they have been resolved.

Multicultural Branch officials share trends in complaints throughout TSA in several ways, including conference calls, monthly briefings, reporting metrics to TSA executive leadership, and on-site training events at airports each year. For example, Multicultural Branch officials hold monthly conference calls with customer service managers at airports to review complaint trends, upcoming on-site airport trainings, and job aids they have developed to help screeners understand issues, such as screening passengers wearing religious headwear. Multicultural Branch officials stated they also share information with screeners and supervisors through National Shift Briefings that are distributed at all airports, and focus on bringing awareness to screeners on events they need to be aware of when screening passengers, such as religious observances occurring that month.

According to TSA officials, the Multicultural Branch uses its analysis of passenger complaints and the results of complaint investigations to develop training aids and materials on areas where they determine screeners need more training, such as multicultural awareness or screening of transgender passengers. For example, the Multicultural Branch has developed briefings focusing on unlawful profiling and unconscious bias which reiterated that unlawful profiling is against TSA policy, defined unconscious bias, and provided scenario-based examples. Additionally, members from the Multicultural Branch hold on-site training for screeners at selected airports each year based on complaint data analysis and other factors. These training sessions last three days, include topics stemming from complaint data TSA has analyzed, and can include webinars, role-playing, and other forms of instruction.

Conclusions

DHS and TSA have policies prohibiting unlawful profiling—using race, ethnicity, gender, or other protected characteristics to identify passengers for additional screening—when using behavior detection, as well as other screening measures. While TSA has oversight guidance and checklists to monitor screeners’ use of behavior detection, these policies and procedures do not include a specific mechanism to monitor whether screeners may be using behavior detection to unlawfully profile passengers. Although TSA officials report that they are working to update the standard operating procedures in 2019, they currently have no plan to add a specific mechanism to monitor compliance with policies that prohibit unlawful profiling. Developing a specific oversight mechanism would provide TSA with greater assurance that screeners are adhering to such policies and help TSA identify any potential incidents of unlawful profiling.

Recommendation for Executive Action

We are making the following recommendation to TSA.

The TSA Administrator should direct Security Operations to develop a specific oversight mechanism to monitor the use of behavior detection activities for compliance with DHS and TSA policies that prohibit unlawful profiling. (Recommendation 1)

Agency Comments and Our Evaluation

We provided a draft of this report to DHS for review and comment. DHS provided written comments which are reproduced in appendix IV. In its comments, DHS concurred with our recommendation and described actions planned to address it. Security Operations, TCC, and the Multicultural Branch also provided technical comments, which we incorporated as appropriate.

DHS correctly noted in its letter that GAO’s analysis of civil rights and civil liberties complaints related to every aspect of TSA’s passenger and baggage screening and is not specific to behavior detection. We agree with DHS’s observation, as this analysis provides information on what passengers alleged in their complaints and how TSA addressed them. It is important to note that the complaint data provided by TSA did not preclude behavior detection activities as a potential contributing factor to any number of the complaints submitted.

With regard to our recommendation, that the TSA Administrator should direct Security Operations to develop a specific oversight mechanism to monitor the use of behavior detection activities for compliance with DHS and TSA policies that prohibit unlawful profiling, DHS stated that TSA plans to take additional steps to continue to ensure behavior detection activities adhere to polices that prohibit unlawful profiling. In fiscal year 2019, TSA plans to modify existing oversight checklists used by managers and supervisors to include specific terminology for monitoring unlawful profiling. DHS estimated that this effort would be completed by September 30, 2019. This action, if fully implemented, should address the intent of the recommendation.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the appropriate congressional committees and the Secretary of Homeland Security. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact William Russell at (202) 512-8777 or RussellW@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix V.

Appendix I: Additional Training Related to Unlawful Profiling

The Transportation Security Administration (TSA) provided examples of refresher training materials that are provided to screeners on TSA’s prohibition on the use of unlawful profiling at the passenger screening checkpoint. Table 4 provides information on these materials, including the methods used to distribute the materials to screeners.

Appendix II: GAO Analysis of Complaints Submitted to the Transportation Security Administration Contact Center

From October 2015 through February 2018, the Transportation Security Administration (TSA) Contact Center (TCC) received 3,663 complaints that it classified as alleging violations of civil rights and civil liberties. Of the 3,663 complaints, the TCC received 707 complaints, or about 19 percent, by phone. Table 5 summarizes our analysis of the complaints the TCC received.

Appendix III: GAO Analysis of Complaints Submitted to the Transportation Security Administration Contact Center by Airport

From October 2015 through February 2018, the Transportation Security Administration (TSA) Contact Center (TCC) received 3,663 complaints that it classified as alleging violations of civil rights and civil liberties. The TCC received 707 of these complaints, or about 19 percent, by phone. Of the 3,663 complaints, Los Angeles International Airport was identified most often in the complaint data. Table 6 lists the 10 airports most often identified in these complaints.

Appendix IV: Agency Comments

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

William Russell, (202) 512-8777 or RussellW@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Ellen Wolfe (Assistant Director), Natalie Maddox (Analyst in Charge), Saida Hussain, and Brendan Kretzschmar made key contributions to this report. Also contributing to the report were Alyssa Bertoni, David Dornisch, Ben Emmel, Eric Hauswirth, Susan Hsu, Tom Lombardi, Amanda Miller, Sam Portnow, Rachel Stoiko, and Adam Vogt.