The TSA's FAST Personality Screening Program Violates the Fourth Amendment

New law journal article: “A Slow March Towards Thought Crime: How the Department of Homeland Security’s FAST Program Violates the Fourth Amendment,” by Christopher A. Rogers. From the abstract:

FAST is currently designed for deployment at airports, where heightened security threats justify warrantless searches under the administrative search exception to the Fourth Amendment. FAST scans, however, exceed the scope of the administrative search exception. Under this exception, the courts would employ a balancing test, weighing the governmental need for the search versus the invasion of personal privacy of the search, to determine whether FAST scans violate the Fourth Amendment. Although the government has an acute interest in protecting the nation’s air transportation system against terrorism, FAST is not narrowly tailored to that interest because it cannot detect the presence or absence of weapons but instead detects merely a person’s frame of mind. Further, the system is capable of detecting an enormous amount of the scannee’s highly sensitive personal medical information, ranging from detection of arrhythmias and cardiovascular disease, to asthma and respiratory failures, physiological abnormalities, psychiatric conditions, or even a woman’s stage in her ovulation cycle. This personal information warrants heightened protection under the Fourth Amendment. Rather than target all persons who fly on commercial airplanes, the Department of Homeland Security should limit the use of FAST to where it has credible intelligence that a terrorist act may occur and should place those people scanned on prior notice that they will be scanned using FAST.

Tags: , , , ,

Posted on March 6, 2015 at 6:28 AM • 35 Comments

Comments

Bob S. • March 6, 2015 7:56 AM

Mr. Rogers is a bit naive. If they have the technology they will use it. It’s legal because they say so. End of report.

999999999 • March 6, 2015 9:14 AM

” detection of arrhythmias and cardiovascular disease, to asthma and respiratory failures, physiological abnormalities, psychiatric conditions, or even a woman’s stage in her ovulation cycle.”

Can we install these in Hospitals? I can see people lining up to get scanned.

Lawnerd • March 6, 2015 10:01 AM

Just as an FYI, this is a student note (in this case called a “comment”). The author hasn’t graduated from law school yet, and he is an editor of the journal that published the piece. Student notes can, of course, be great, but they vary widely in quality, even more so than scholarship by professors. It would be helpful for readers when posting stuff from law reviews to state whether the piece is an article (typically written by a professor or practicing lawyer), or a note/comment (written by a current student). You can usually figure it out by looking at the vanity footnote on the first page. If it says that the author is a JD candidate or describes the piece as a note or comment, it’s student work.

Clive Robinson • March 6, 2015 10:02 AM

Another very expensive waste of tax payer money to the favourd few…

Look at detecting “illness” at airports, for SARS and ebola, not exactly a success let alone value for money. Then there were those mega expensive scanners given “early retirment” for various official reasons but unofficialy because they were of no practical use (apart from giving people cancer if you subscribe to that unlikely thinking).

It’s about time the DHS et al stopped the “magic thinking” and came clean about what this nonsense is all about.

It does not matter how many type 1/2 errors this system has, because it’s real purpose is “liability limitation” at all levels, from the knuckle dragger in uniform to the politico puting a shine on their trouser seat in expensive restaurants etc as kick back for awarding the contract…

Put simply no matter what the failing is “it’s the machine / systems fault” thus not that of anybody paid directly from the tax take.

To think otherwise is trying to give the scofflaws credibility they do not in any way deserve.

Chuckles • March 6, 2015 10:48 AM

Faith-based security.

Under the FAST regime I would have been arrested last week after my nine-minute sprint to make — er, miss — a connecting flight at O’Hare.

ronw • March 6, 2015 12:03 PM

From the Wikipedia article: “The purpose is to detect “Mal Intent” by screening people for “psychological and physiological indicators”

I’m sure I would ping all of their ‘indicators’ as I can’t control the disgust I feel every time I must fly.

But I guess the system will be smart enough to know I’m disgusted but not violent. /sarcasm

albert • March 6, 2015 12:26 PM

Here we go again with the AI BS, the DHSs almost sexual fetish for ‘security’ data, and the absolute absurdity of it all.
.
OK, I can see how the anti-terrorism folks are a little sensitve, being that they don’t have a chance of detecting possible terrorist acts using their existing (i.e., useless) spy systems. Now, they’re trying to appease us with a system that will pick out ‘prospective’ terrorist attacks. Because there will be thousands of people to scan daily, guess what? They will have to rely on software to winnow out the ‘bad guys’, before the ‘analysts’ can review them.
.
A cheaper and better alternative, and just as effective, would be empty boxes, with ‘scientifically’ vetted ‘scanners’ and sooper-dooper advanced ‘detectors’ that folks would think were almost infallible. Faking a few ‘terrorist’ take downs would enforce the illusion. I would much prefer this to being blasted by X-rays and gamma rays. I’ve had more than my fair share of that BS.
(@CLive: there are no safe “minimum exposure levels”)
.
Remember, these guys don’t give a rats ass about you, me, or ‘terrorist’ attacks. They need to cover their own sorry asses, or they’re out of a job. If they can enrich their contractor buddies, so much the better.
.
Another WTF moment, brought to you by our out-of-control TLAs.
.
Folks used to think this stuff was science fiction; guess what? It still is!
….

Jayson • March 6, 2015 12:59 PM

@Chuckles

Under the FAST regime I would have been arrested last week after my nine-minute sprint to make — er, miss — a connecting flight at O’Hare.

And likely charged with one of the innumerable “laws” to validate the arrest.

Leon Mingo • March 6, 2015 2:07 PM

News articles about the FAST project surfaced years ago. (While the linked paper is interesting from a legal standpoint, it doesn’t provide any NEW information about the technology or TSA’s proposed use of the technology.) There was hardly any outcry then. I’m not sure what will wake the American public up to the fact that TSA continues to implement (and then double down on) technologies and procedures that undermine freedom and liberty. Virtual strip searches via the body scanners were not reprehensible enough. FAST is apparently not reprehensible enough. I don’t get it. Such practices by a government were the stuff of nightmares decades ago. Is the lack of concern by most of the public a result of the technology having a veneer of anonymity and objectivity? I mean, is being virtually strip-searched by a machine that much more palatable than being strip-searched by an actual human? While I acknowledge that there is likely to be discomfort in the latter case, the human will not remember every detail of the body that is being viewed, and the human will not generate data that can be shared with multiple other parties for purposes unknown to the subject of the search (e.g., FBI biometric databases). The human searcher is also not anonymous to the subject of the search. He/she has a name and can be held personally accountable. Do so many people think that a violation of one’s privacy and dignity easier to swallow when you don’t know who is violating it?

vas pup • March 6, 2015 3:31 PM

@999999999 • March 6, 2015 9:14 AM. Very good point!
If it real not fake technology medical applications could bring more benefits than security.
@all: sorry don’t have link, but anecdotally, in Israel analogue of TSA is developing special security chamber in airport where prospective passenger is locked for a short period of time, and if has explosive on/in, it detonates inside the chamber harmlessly for all others, and as result you have extra available sit on the next flight.

65535 • March 6, 2015 4:42 PM

“Another very expensive waste of tax payer money to the favourd few…” – Clive

That is what I see.

It is a welfare program for equipment vendors and high school educated TSA personnel [pay is about GS-14 or higher]. Worse, it looks like a huge fishing expedition into all aspects of our lives including confidential medical information.

chuck • March 6, 2015 5:49 PM

As the author barley indicates, this is about the hypothetical use of abandoned flawed research. Where it fails as legal scholarship, it aparently succeeds as an inkblot test.

Clive Robinson • March 6, 2015 6:03 PM

@ Moderator,

I’m not sure if the “ramblings” of amazombie are some form of spam or not, but they are poping up all over the blog (the new comments page shows they are aproaching a third of all posts). They appear at best to be only vaguely related to a thread topic, and more often compleatly unrelated.

This appears to be similar behaviour to a person who was asked to stop posting to the blog a short while ago.

Moderator • March 6, 2015 6:33 PM

Thanks. I’m whacking these moles as quickly as I can.

amazombie (and MIX, NZA, and any other similarly behaving visitors), please perseverate elsewhere. We’d like to encourage discussion here; marginally relevant, repetitive monologues detract from that.

Nick P • March 6, 2015 6:45 PM

@ Moderator

I emailed Bruce a nice list of preventative tricks. Get him to send them to you. A combo of hidden HTML or CSS with a script that changes the secret daily might be a good combo.

Buck • March 6, 2015 6:52 PM

From Wikipedia:

The DHS science spokesman John Verrico stated in September 2008 that preliminary testing had demonstrated 78% accuracy on mal-intent detection and 80% on deception.[6] However, this was not a controlled, double-blind study, and researchers from Lawrence University and the Federation of American Scientists have questioned its validity without further evidence.[7]

From Styx:

The problem’s plain to see – too much technology… Machines to save our lives? Machines dehumanize!

Anura • March 6, 2015 6:56 PM

@Nick P

I don’t think this is a bot. The CAPTCHA seems to have gotten the actual bots when they started spamming like mad; this person seems to start on topic then proceed to spam with gibberish (which don’t appear to be actual ads). They need to find a forum that’s setup for people to post nonsense – there are tons of them around.

MrC • March 6, 2015 7:19 PM

@ Lawnerd:

Indeed, this is student note. And I do agree with the general rule that student notes should generally not be treated as articles or cited as scholarly authority. However, there are exceptions, and I think this note is good enough to qualify.

Nick P • March 6, 2015 11:08 PM

@ Anura

It could be human troll. However, some spam bots operate whereby the automated scripts react to thread topic. If an obstacle is put up, the spammer eventually notices, modifies the script (eg the ‘fill in the blank’ part), and then the spam starts coming through. Even properties such as name or IP can be changed over time (scripted or manual) in response to a ban on those. Checking to see what’s getting through can also be automated and will look like another blog reader.

So, it can be either one. Moderator is better at classifying them due to years of experience.

GS • March 7, 2015 4:10 AM

I’m not sure how many people will be thrilled by the idea of an organization like the TSA, which through numerous incidents has gained itself a solid reputation for unprofessional behaviour, including but not limited to sexually degrading comments behind the scenes, to have access to all these conditions, especially a female relative of partners’ stage in her ovulation cycle…

Dr. I. Needtob Athe • March 8, 2015 11:54 AM

“me” wrote: You lost me when you started talking about “fourth amendment exceptions.”

That’s pretty much what I was going to say; it just doesn’t make sense. The U.S. Constitution, as I understand it, is a document authored by “We the People”, placing restrictions on what the government can do. Therefore, if there are to be any exceptions then only the document’s authors can make them. A policy that the body being restricted may rewrite those restrictions to please itself essentially empties the document of its significance to the point that it might as well not exist.

This is going to be fun • March 9, 2015 8:40 AM

Also think about people who have a type of mental illness. I personally am bi-polar and ADHD and I’m slightly misanthropic, just imagine how FAST will be reading someone like me who’s natural state is not to make too much eye contact while not really able to pay attention to one thing at a time. I feel like I would be asked to “step aside” every time I go through an airport.

Point is, this thing is trying to measure people against what the DHS determined is “normal.” Someone give me the percentage for accuracy for FAST since there is also a false positive to consider. I live in San Francisco, in 2013 SFO had passenger traffic of around 45 million people. If FAST is 99% accurate, which is VERY doubtful, then that means 450000 people are going to be falsely searched in a single year. That number is with the assumption of 99% accuracy, but level with us DHS what is the actually accuracy? The amount of tests that FAST would have to perform in a day would be staggering, and the false positive would be massive.

Those numbers are just super basic math from a google search on SFO passenger traffic, and if the actual math is done the number is probably vastly different.

Clive Robinson • March 9, 2015 10:16 AM

@ This is going to be fun,

I live in San Francisco, in 2013 SFO had passenger traffic of around 45 million people.

I suspect that is 45 million pasenger journeys not 45 million individual persons.

The difference is important because the discriminatory effect is actually worse in that you will still have just under half a million false positives, but shared between maybe as few as a hundred thousand individuals each year.

This will probably quite quickly cause these hundred thousand people to make lifestyle changes that will almost certainly reduce their life outcomes.

It’s known that mile for mile flying is about the safest way to travel long distances and driving cars are high on the list of “accidental deaths”. But the figures don’t cover a hidden factor which is far far worse than the accidental death figures portray.

Stress kills people ten or twenty years earlier than it should due to cardiovascular issues, most promenently the build up of clots on artery walls that break off under further stress and cause blockages in the heart, brain and lungs often resulting in death or serious debilitating long term illness.

Driving for many is one of the most stressful things they do on a daily basis and it appears from some studies that the effect is not linear but exponential in nature. That is each additional mile is worse than the previous mile…

Further there is evidence to suggest that long distance mileage is worse than the equivalent distance in short mileage journeys because there are more unknowns and no breaks in long distance driving to partialy de-stress in.

But there is also the drop in socioeconomic status that a regular business flyer would undergo if they could nolonger fly. That is they would be unlikely to be promoted, possibly demoted or fired, or take up less well renumerated work rather than the alternatives.

Again there is a hidden element to socioeconomic status reduction which is the ratchet effect. That is it is very easy to adjust to a step up but quite hard to take the equivalent enforced step back down. In part it is a loss of status causing a loss of self esteem and self worth, this causes hormonal changes that are the equivalent of high stress levels. This stress happens unless the choice of change is realy self chosen not inflicted, because the person then wants the change of occupation or pace of life, to what they see is an improved state.

In effect FAST will cause a significant loss of economicaly productive people, and will cause more loss to the US than it can ever hope to save. Worse the brunt of this will fall on those that are non Neuro Typical or suffering from existing mental illness and thus the level of mental illness will rise, causing significant extra health care costs etc.

Buck • March 9, 2015 10:55 PM

@Clive Robinson

This will probably quite quickly cause these hundred thousand people to make lifestyle changes that will almost certainly reduce their life outcomes.

… [snip] …

But the figures don’t cover a hidden factor which is far far worse than the accidental death figures portray.

Stress kills people ten or twenty years earlier than it should due to cardiovascular issues, most promenently the build up of clots on artery walls that break off under further stress and cause blockages in the heart, brain and lungs often resulting in death or serious debilitating long term illness.

… [snip] …

But there is also the drop in socioeconomic status that a regular business flyer would undergo if they could nolonger fly. That is they would be unlikely to be promoted, possibly demoted or fired, or take up less well renumerated work rather than the alternatives.

… [snip] …

In part it is a loss of status causing a loss of self esteem and self worth, this causes hormonal changes that are the equivalent of high stress levels. This stress happens unless the choice of change is realy self chosen not inflicted, because the person then wants the change of occupation or pace of life, to what they see is an improved state.

… [snip] …

Worse the brunt of this will fall on those that are non Neuro Typical or suffering from existing mental illness and thus the level of mental illness will rise, causing significant extra health care costs etc.

This is why the USG’s line of reasoning in AMNESTY INTERNATIONAL USA v. CLAPPER is so important right now…

without the privileged information, none of the named plaintiffs could establish standing

The Fourth Amendment ‘exceptions’ seem to be holding thus far; but, can warrentless surveillance really hold up against our Eighth Amendment right to ridicule all possible inflictions of cruel and unusual punishments..? Perhaps… Yet, there are seemingly plenty of people that think ‘torture’ is “OK” if ‘scary’ people are afoot. Where do we go from here?

Michael And Ingrid Heroux • March 10, 2015 12:17 AM

If they want to use that on us that is fine as long as it goes both ways. We have to be able to use it on them for cross examination. They are talking about adding pheromone detection also. I remember when our government was surveiling us in 2003, every time we left our house someone would walk up to us with a German Shepperd and the dog would aggressively sniff us like crazy. It used to happen all the time but with different people but the same type of dog. I wonder if they are using dogs to detect pheromone. It seems like a big gravy train to me. Don’t they have enough to do? Follow the money. Thanks

OU812 • March 10, 2015 4:55 AM

What GAO Found:

Although the Department of Homeland Security (DHS) is in the process
of validating some aspects of the SPOT program, TSA deployed SPOT
nationwide without first validating the scientific basis for
identifying suspicious passengers in an airport environment.
http://www.gao.gov/assets/310/304517.html

They aren’t using science, so why would you expect the law to help? When anybody is suspicious everybody is suspicious and guilty. Congress gave up on funding it. It should be sequestered and what have they sequestered? Defense and it uses science instead of voodoo.

OU812 • March 10, 2015 5:03 AM

$385 Million TSA Program Fails to Detect Terrorists
“With no scientific evidence its behavioral threat detection program worked or even that it could perform better than random screening, the TSA decided the pilot tests were successful. The rationale: SPOT was easy to integrate into the TSA’s overall security program at airports, states the GAO.
Since deemed successful by the TSA, SPOT’s program costs have ballooned. In fiscal year 2007, only $41 million was spent on the program. This fiscal year, the government allocated $212 million to the program, which no one can say for sure has any merit.”
http://truth-out.org/archive/component/k2/item/93533:385-million-tsa-program-fails-to-detect-terrorists

JohnP • March 10, 2015 6:30 PM

The talks I’ve had with anyone working in airport were extremely limited. My physical stance is “I’m busy, hurry up, so I can wait faster over there.”

Works for me.

The TSA needs to be privatized, like they were before 2001. All that making them government employees has do is take away our rights to sue for ineptitude.

Alex • March 12, 2015 1:34 PM

The TSA just needs to go away… between the locked, reinforced cockpit doors and passengers who are willing to take down any jerk who poses a threat on the plane, we’ve got enough security. The old metal detectors + x-raying baggage worked for 30+ years…it’ll work well again.

Boo • April 16, 2015 3:23 PM

“Mind you, this is an agency that regularly employs kleptos and perverts, an agency that handed out security badges to criminals and on at least one occasion a dog. It does not hire the best and brightest, and those with any critical faculties understand that their job—confiscating snow globes and nail clippers—is a bad joke.

“Once, in 2008, I had to confiscate a bottle of alcohol from a group of Marines coming home from Afghanistan,” former TSA screener Jason Harrington wrote in Politico Magazine. “It was celebration champagne intended for one of the men in the group — a young, decorated soldier. He was in a wheelchair, both legs lost to an I.E.D., and it fell to me to tell this kid who would never walk again that his homecoming champagne had to be taken away in the name of national security.””
http://www.washingtonpost.com/posteverything/wp/2015/04/16/abolish-the-tsa/

WD-40 strategy: Replace them with a DSA. Will work for bones.

Leave a comment

Login

Allowed HTML <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre> Markdown Extra syntax via https://michelf.ca/projects/php-markdown/extra/

Sidebar photo of Bruce Schneier by Joe MacInnis.