TSA's SECOND Attempt at Profiling Fails at Logan Airport

Aug. 14, 2012 - PRLog -- The Transportation Safety Administration [TSA] has been charged with illegal profiling at Boston's Logan Airport; the second time it tried to use profiling to improve its currently inefficient screening process which treats everyone - including toddlers and elderly Asian women - as equally likely terrorist risks.  

Its earlier attempt was also both unfair and inefficient, says an expert, because it's trying so hard to avoid the stigma of "racial profiling," and has failed to recognize that "terrorist profiling" can be done both effectively and legally using a simple proven technique.

The TSA's first attempt at ethnic profiling was revealed by the inadvertent disclosure of the TSA's procedures manual which showed that the agency was then indirectly profiling on the basis of religion by automatically selecting for secondary screening all passengers from 12 (later 14) named countries.  Aside from 2 Communist nations, all of the others have large Muslim populations.

But this procedure was inefficient - as well as unfair - because it was both over-inclusive and under-inclusive.  Its scarce valuable resources available for secondary screening were employed on toddlers, mothers with infants, and elderly women from those 14 countries, even though the probability of any of them being bomb-carrying terrorists was very small - with resulting unnecessary delays.

The procedure was also under-inclusive because it did not require increased scrutiny for young Arab or Muslim males from countries other than the suspect 14, even those where there had been considerable terrorist activity. The rules also did not apply to any passenger - including young Arab males, etc. -- who are already in the U.S. and flying domestically.

Now TSA's own officers are charging that the new "behavior detection" program is causing unconstitutional racial profiling, with minorities such as African Americans and Hispanics allegedly accounting for as many as 80% of those sometimes selected for further scrutiny.

But, says public interest law professor John Banzhaf, who publicly predicted problems with the experimental "chat down" technique a year ago, the TSA is ignoring an effective search enhancement technique based upon well-established mathematical principles which would be constitutional and not subject to the same abuse.  Banzhaf is a constitutional scholar as well as the mathematician-inventor of the "Banzhaf Index."

There is a well established mathematics of selecting and testing which is used thousands of times every day to detect everything from rare genetic disorders to manufacturing defects on an assembly line.  

If used by the TSA, it would be far more effective than treating everyone equally, and giving no more scrutiny to young Muslim males than to elderly Asian females or toddlers. Not surprisingly, this technique of targeted screening is based in large part on concentrating searches where one is most likely to find a problem, rather than ineffectively treating all subjects equally.

Applied to situations like airport screening for terrorists, a very detailed mathematical study shows that treating all passengers equally - and selecting elderly Asian females and toddlers for secondary screening no more frequently than young Arabic males - is illogical as well as very inefficient in stopping terrorist attacks.

Instead, the study shows that certain groups believed to present a substantially higher risk than others should be selected for screening somewhat more frequently (but not exclusively) - a process called terrorist profiling, in contrast with racial profiling.

Unlike racial profiling, which is unconstitutionally, terrorist profiling - using characteristics like age, gender, and ethnicity along with other factors to help select passengers for additional screening measures - is not only far more effective, but completely constitutional.  

The U.S. Supreme Court has ruled that factors such as race - much less religion, gender and age - can be used in making selections, provided that it serves a compelling governmental interest, and that it is not the only factor used. That's why state universities may consider race in their admissions process, notes Banzhaf, suggesting that preventing fatal terrorist attacks is an even more compelling governmental interest than increasing racial diversity in classrooms.

Even the Justice Department has proclaimed that, while factors like race cannot ever be used in criminal investigations or to reduce drug smuggling, unless there is a clearly identified suspect of that race, race and similar factors may constitutionally be considered in preventing terrorist attacks, even if there is no specific suspect, provided only that it is not the only criteria considered.

In the case of terrorists, Banzhaf suggests, these other criteria might include age, gender, dress (e.g., wearing bulky or heavy clothing in warm weather), carrying a backpack, etc.  In short, a young Muslim male who is also carrying a backpack may constitutionally be given greater scrutiny than an elderly Asian female carrying only a small purse.

If members of groups with a higher risk potential were singled out more frequently for secondary screening, everyone would benefit, including members of those very groups. We would be more likely to stop potential terrorists, with far less delay and at a lower cost, and even innocent young Muslim males would benefit because lines - and the waiting time on them - would be much shorter for everyone (including young Muslim males) because of the decreases in the overall inspection time being spent on most low risk passengers.

After all, says Banzhaf, it's the total time spent on undergoing security procedures which is the most important concern -after a safe flight - for most passengers, and this waiting time would be reduced for everyone using a system employing targeted screening based in part on criteria like age, gender, and ethnicity.  

Everyone is concerned about not being blown up, and also about not missing their plane because of inspection delays. Concentrating on those most likely to be involved in complex terrorists conspiracies would benefit the great majority of young Muslim males who are law abiding since it would increase their chances of not dying in flight, and also of not missing their flight due to security delays.

"If I could be assured of a substantially greater probability that airline bombers would be detected - and also that waiting time on security inspection lines would be significantly reduced - if only I agreed that people in my category be subject to a longer and more intense search process, I would gladly agree," says Banzhaf.  

Prof. Banzhaf, who is white, says that he would support such a procedure if credible threats from white separatists to bomb planes were received in South Africa, and those with a white skin were then singled out for enhanced scrutiny procedures.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/