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Perspectives on Tsa's Policies to Prevent Unlawful Profiling Hearing Committee on Homeland Security House of Representatives

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Perspectives on Tsa's Policies to Prevent Unlawful Profiling Hearing Committee on Homeland Security House of Representatives PERSPECTIVES ON TSA’S POLICIES TO PREVENT UNLAWFUL PROFILING HEARING BEFORE THE COMMITTEE ON HOMELAND SECURITY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION JUNE 4, 2019 Serial No. 116–24 Printed for the use of the Committee on Homeland Security Available via the World Wide Web: http://www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–870 PDF WASHINGTON : 2019 VerDate Mar 15 2010 12:33 Nov 26, 2019 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\116TH\19FL0604\19FL0604 HEATH Congress.#13 COMMITTEE ON HOMELAND SECURITY BENNIE G. THOMPSON, Mississippi, Chairman SHEILA JACKSON LEE, Texas MIKE ROGERS, Alabama JAMES R. LANGEVIN, Rhode Island PETER T. KING, New York CEDRIC L. RICHMOND, Louisiana MICHAEL T. MCCAUL, Texas DONALD M. PAYNE, JR., New Jersey JOHN KATKO, New York KATHLEEN M. RICE, New York JOHN RATCLIFFE, Texas J. LUIS CORREA, California MARK WALKER, North Carolina XOCHITL TORRES SMALL, New Mexico CLAY HIGGINS, Louisiana MAX ROSE, New York DEBBIE LESKO, Arizona LAUREN UNDERWOOD, Illinois MARK GREEN, Tennessee ELISSA SLOTKIN, Michigan VAN TAYLOR, Texas EMANUEL CLEAVER, Missouri JOHN JOYCE, Pennsylvania AL GREEN, Texas DAN CRENSHAW, Texas YVETTE D. CLARKE, New York MICHAEL GUEST, Mississippi DINA TITUS, Nevada BONNIE WATSON COLEMAN, New Jersey NANETTE DIAZ BARRAGA´ N, California VAL BUTLER DEMINGS, Florida HOPE GOINS, Staff Director CHRIS VIESON, Minority Staff Director (II) VerDate Mar 15 2010 12:33 Nov 26, 2019 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 H:\116TH\19FL0604\19FL0604 HEATH C O N T E N T S Page STATEMENTS The Honorable Bennie G. Thompson, a Representative in Congress From the State of Mississippi, and Chairman, Committee on Homeland Security: Oral Statement ..................................................................................................... 1 Prepared Statement ............................................................................................. 3 The Honorable Mike Rogers, a Representative in Congress From the State of Alabama, and Ranking Member, Committee on Homeland Security: Oral Statement ..................................................................................................... 4 Prepared Statement ............................................................................................. 5 The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas: Prepared Statement ............................................................................................. 6 WITNESSES Mr. W. William Russell, Acting Director, Homeland Security and Justice Team, U.S. Government Accountability Office: Oral Statement ..................................................................................................... 8 Prepared Statement ............................................................................................. 10 Mr. Sim J. Singh, Senior Manager of Policy and Advocacy, The Sikh Coali- tion: Oral Statement ..................................................................................................... 17 Prepared Statement ............................................................................................. 19 Ms. Janai S. Nelson, Associate Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.: Oral Statement ..................................................................................................... 32 Prepared Statement ............................................................................................. 34 FOR THE RECORD The Honorable Bennie G. Thompson, a Representative in Congress From the State of Mississippi, and Chairman, Committee on Homeland Security: Report From the National Center for Transgender Equity .............................. 64 APPENDIX Questions for W. William Russell From Chairman Bennie G. Thompson .......... 69 Questions for Sim J. Singh From Chairman Bennie G. Thompson ..................... 70 Question for Janai S. Nelson From Chairman Bennie G. Thompson ................. 71 (III) VerDate Mar 15 2010 12:33 Nov 26, 2019 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\116TH\19FL0604\19FL0604 HEATH VerDate Mar 15 2010 12:33 Nov 26, 2019 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\116TH\19FL0604\19FL0604 HEATH PERSPECTIVES ON TSA’S POLICIES TO PREVENT UNLAWFUL PROFILING Tuesday, June 4, 2019 U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON HOMELAND SECURITY, Washington, DC. The committee met, pursuant to notice, at 10 a.m., in room 310, Cannon House Office Building, Hon. Bennie G. Thompson (Chair- man of the committee) presiding. Present: Representatives Thompson, Jackson Lee, Payne, Correa, Rose, Underwood, Slotkin, Cleaver, Green of Texas, Clarke, Titus, Barraga´n, Demings, Rogers, King, McCaul, Katko, Walker, Hig- gins, Lesko, Taylor, Joyce, and Crenshaw. Chairman THOMPSON. The Committee on Homeland Security will come to order. The committee is meeting today to receive testimony on perspec- tives on TSA’s process to prevent unlawful profiling. Good morning. Thank you to our witnesses for joining us today. We are meeting to examine whether TSA’s policies and screening processes allow for unlawful profiling and discrimination. TSA has a difficult security mission. Terrorists continue to target the transportation sector and would like nothing better than to take a plane out of the sky. Every Member of this committee appre- ciates the need to protect against that threat. This committee is focused on ensuring that TSA continues to ma- ture into an effective, professionalized agency that fulfills its secu- rity mission in a manner that does not allow unlawful profiling or discrimination. The report GAO is releasing today shows that TSA’s current op- erations do not meet the mark. GAO found that TSA has antiprofiling policies in place for its behavioral detection program, yet lacks an oversight mechanism to ensure antiprofiling policies are actually followed. Given the concerns this committee and others have voiced for more than a decade regarding TSA’s behavior detection program and the door it opens to unlawful profiling, it is unconscionable that TSA has not developed better oversight procedures. GAO’s new report follows a 2013 report that recommended that Congress limit future funding for TSA’s behavior detection activi- ties. It also follows GAO’s 2017 finding that TSA lacks valid sci- entific evidence to support nearly 80 percent of the behaviors it re- lies upon to identify suspicious travelers for additional screening. Meanwhile, TSA has not provided sufficient evidence of the secu- rity benefits of behavior detection. TSA has scaled back the scope (1) VerDate Mar 15 2010 12:33 Nov 26, 2019 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6602 H:\116TH\19FL0604\19FL0604 HEATH 2 of its behavior detection program, but the logical conclusion from years of evidence is clear: It is time to end the program entirely. For today’s report, GAO also looked at 3,700 complaints related to civil rights and civil liberties filed against the agency over 21⁄2 years and found over 1,000 complaints with potential indicators of discrimination. These complaints allege a variety of discriminatory incidents and practices encompassing all of TSA’s screening oper- ations. DHS’s response to GAO’s findings shows the Department does not understand the gravity of the allegations it faces. DHS stated it was ‘‘pleased to note’’ that GAO identified ‘‘only 3,700 complaints related to passenger screening alleging civil rights and civil lib- erties violations’’ during the relevant time period. DHS has missed the point entirely. First, 3,700 is not an insig- nificant number. A single incident where a traveler feels trauma- tized as a result of allegedly discriminatory treatment is certainly not insignificant to that person and should not be considered insig- nificant to anyone. Under my leadership, this committee will not ignore or downplay the significance of any American making a credible allegation of discrimination by their Government. As TSA says: ‘‘Not on our watch.’’ Moreover, incidents are likely unreported, as people who are dis- criminated against in various ways throughout society may not have the time or resources to lodge formal complaints in every in- stance. It is clear from the complaints GAO has documented and recent media reports that TSA’s screening processes disproportionately impact minority populations. In particular, Advanced Imaging Technology, or AIT machines, regularly alarm on certain popu- lations, such as Sikh passengers, African American women, and transgender people, leading to increased delays and pat-downs. AIT machines rely on algorithms that define what TSA considers normal, and religious headwear, hairstyles, or bodies that fall out- side that definition are flagged for further inspection. TSA must improve its technology to address this issue while con- sidering the diversity of the public when it solicits and tests new technology. Finally, I want to make clear my concerns are not with the TSA work force. TSA’s front-line officers have proven their commitment to TSA’s mission, despite insufficient pay and during the Govern- ment shutdown missed paychecks. Over and over again TSA has made the news due to a poor pas- senger screening experience, and after an investigation TSA’s statement has almost always noted that officers followed security protocols appropriately. By and large, TSA’s problems lie with its procedures, not its officers. As for the agency, I commend TSA for the work it has done to engage advocacy groups and improve
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