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Airport Policy and Security Newsletter #63

TSA's incoherent screening policy, airport recommendations from LaHood, the case for profiling, and more

Robert Poole
December 10, 2010

In this issue:


The Incoherence of TSA Screening Policy


There are many things wrong with current U.S. airport security policy, but here I want to focus on the sheer incoherence of the new policy aimed at keeping PETN explosives off passenger planes. That is the underlying rationale for the roll-out of body scanning machines as primary screening-and the aggressive pat-downs for those who refuse to be body-scanned. Given its premise that PETN is the threat, and that every air traveler is a potential carrier, the TSA is in a bind. As Bruce Schneier pointed out in a recent post at theatlantic.com, given its investment in body scanners for primary screening, the agency must continue its invasive pat-downs for everyone who opts out, despite protests; otherwise, critics could argue, terrorists would simply adapt, recruiting 12-year-olds or the disabled to carry their PETN.

However, as Schneier and other experts have pointed out, body scanners cannot, per se, detect PETN-only dogs and swabbing have been shown to do that. PETN can be shaped to match body contours and worn like a vest that is unlikely to be spotted. And then there is the next logical step for terrorists: body cavities. By the same logic that TSA has used to justify shoe-removal and liquid bans, if a would-be aviation terrorist is caught with PETN concealed in a body cavity, TSA's only logical next step would be body-cavity searches. Given its premises and previous actions, how could it not do so?

Beyond these holes in TSA's case for its new screening policy, I discovered another one that calls into question its seriousness. Remember, the agency's rationale is that PETN is such a serious threat that body-scans or aggressive pat-downs must now be used as primary screening, with no exceptions. Except, as Ashley Halsey reported on Dec. 2nd in the Washington Post, the TSA plans to equip only 1,800 screening lanes with body scanners. There are 2300 such lanes at all airports where screening is in force. That means 500 lanes, at smaller airports, will rely on previous screening methods-metal detectors plus wanding for those who cause the metal detector to beep. And even that 1800 target will not be reached until sometime in 2012. Only 500 of the body scanners will be in place by the end of this year, with the total rising to just 1,000 by the end of 2011.

So let's get this straight. The PETN threat is so great that everyone-no exceptions-must go through either a body scanner or an aggressive pat-down. Except that neither actually detects PETN. And TSA is leaving the majority of screening lanes unprotected from this threat for another year or two. And even then, well, let's just ignore the smaller airports-surely terrorists will choose the larger and busier airports.

It's this kind of incoherence that leads critics, with some justification, to refer to TSA screening efforts as "security theater."

Airport Recommendation's from LaHood's Committee: Mostly Ho-Hum

Last week the Future of Aviation Advisory Committee (FAAC), called into being by DOT Secretary Ray LaHood, issued 23 recommendations. Given the FAAC's wide-ranging membership and its rather vague charge, I was not expecting anything very dramatic. And I'm sorry to report that my expectations were not exceeded.

Only a handful of recommendations deal directly with airports (the others dealing mostly with airlines and air traffic control). Recommendation #3 calls for establishing a ground taxi delay management program for airports as well as other efforts to increase efficient energy use and reduce emissions at airports. OK. Recommendation #5 calls for extending the current exemption of airport private activity bonds from the Alternative Minimum Tax for four years-a good idea, but why not for as long as the hated AMT lasts?

Recommendation #8 calls for the FAA to "consider whether investing AIP and PFC dollars in NextGen" is needed to improve airport performance. I realize that not everyone in the airport community is sold on NextGen, but all that's really required here is to make such airport-specific investments eligible for funding from those two sources. Is that really such a stretch? And of course, since both airlines and airports were represented on FAAC, we have the usual fence-sitting on whether expanded uses should be accompanied by a larger AIP budget and an increase in the allowable level of airport-determined PFCs (airports yes, airlines no).

Recommendations 12 and 13 at least raise the issue of whether the subsidy program for air service to small communities-which was created as a 10-years-only transition program for the first decade of airline deregulation in 1978, but is still with us, better-funded than ever-should perhaps, maybe, be rethought. Number 13 makes the good suggestion that the criteria for eligibility should be "updated," because many communities "can be efficiently served by other modes of transportation . . . to nearby airports that provide good connections."

Unfortunately, that's it. Let's step back a few paces and think about major issues facing airports today and see what FAAC ignored. Well, there's that minor issue of airport security, which has already devastated the short-haul air service market and now threatens to drive away passengers from longer-haul markets. And there's the enormous problem of congestion and delays, especially at many of the several dozen largest and busiest U.S. airports. How about airport privatization (wherein the United States is missing out on large-scale investment going into airports in Europe, Latin America, and the Australia/Pacific region)? And there is also the issue of airport deregulation, with airports as just about the last transportation sector still subject to extensive economic regulation by the federal government.

Oh, well; in this day and age, I suppose we should be grateful the recommendations don't generally call for any large new government interventions in aviation.

Airports Considering Outsourced Screening

Last month Rep. John Mica (R, FL), incoming chair of the House Transportation & Infrastructure Committee, urged airports to consider privatizing their passenger and baggage screening, as permitted under the 2001 Aviation & Transportation Security Act (ATSA), which created TSA. As part of House-Senate conference committee negotiations on that bill's provisions, Mica negotiated the right of airports to opt out of TSA-provided screening. Initially, only five airports were allowed to do so, as a pilot program. But two years after TSA was up and running, the law allowed all airports to opt out.

Until now, however, few airports have taken advantage of it. All five of the original pilot program airport (San Francisco, Kansas City, Rochester, Tupelo, and Jackson Hole) have stayed with private security companies, but only 12 other (small) airports have chosen to join them. Some were just beginning passenger service and had not had TSA screening, while a few others actually "kicked TSA out" because the agency could not cope very well with seasonal variations in air traffic.

But in the six weeks or so since Mica raised the opt-out flag, a number of good-sized airports have expressed interest-Albuquerque, Indianapolis, Minneapolis/St. Paul, Orlando International. But only one-Orlando Sanford (in Mica's district)-has actually decided to take this course.

Given the furor over TSA's new screening policies, why isn't there more interest? I can see two reasons. First, the TSA is both the major screening provider and the airports' aviation security regulator. Airport directors and their boards will likely think carefully about the implications of "kicking out the TSA" as their screening provider, since it will still be there regulating every aspect of airport security.

Second, airport directors understand (even if their city council members might not) that the kind of outsourcing permitted under ATSA is not like what a city or state government does when it decides to outsource a function previously provided in-house. A city in such circumstances would typically define the tasks to be performed and the qualifications needed for a company to be eligible, issue an RFP, and then select the best-qualified or least-costly firm, as the case may be. But under ATSA, the only decision the airport gets to make is to tell the TSA it wants them replaced as the screening provider. Everything else is up to the TSA. The TSA itself selects from its list of approved screening companies and assigns a company to the airport. The TSA manages the contract and enforces the ATSA law's provision requiring the identical pay and benefits for contract screeners as for TSA screeners. And the same set of screening equipment and policies (i.e., body scanners and aggressive pat-downs) must be used by the screening company.

With all those constraints, why does anyone outsource airport screening? Aviation Daily's James Ott recently asked airport managers with private contractors that question. First and foremost, they replied that private companies were better able to maintain high-quality screening (in the customer-service sense) by being able to terminate poorly performing employees. This also leads, they said, to lower turnover rates. Other studies have noted that screening companies are better able to match screener numbers to changing levels of passenger activity, on both an hourly basis and a seasonal basis, thanks to greater ability to use part-time as well as full-time employees. And in terms of screening performance, several outside studies (by GAO and others) have found that security companies do as well as or better than TSA screeners at detecting prohibited objects.

With the 10th anniversary of 9/11and the ATSA legislation coming up next year, it's high time Congress revisited the whole airport security question. Among the items on its reform agenda should be a more decentralized approach to passenger and baggage screening. In Europe, as I found out writing a research paper for the OECD's International Transport Forum two years ago, most countries delegate screening to the airport level, setting qualifications for screening firms and performance requirements for screening at the national level, and providing regulatory oversight of how airports carry out those functions. Most large EU airports outsource screening to certified security companies, though some provide screening themselves, using airport employees.

As I have written before in this newsletter, for TSA to be both the aviation security regulator and the principal provider of airport screening services is a conflict of interest. I hope Congress will take seriously the need to reform this serious flaw in the legislation hastily enacted following 9/11.

Should TSA Screeners Unionize?

The issue of unionization for transportation security officers (TSOs) is rapidly coming to a head. In 2007 a newly Democratic Congress eliminated the provision from the legislation creating the Department of Homeland Security that barred unionization of the TSA's workforce. And last month, the Federal Labor Relations Authority voted to give TSOs the legal right to have exclusive union representation but not the right to strike (comparable to the legal status of air traffic controllers). So we can expect full-scale organizing efforts very soon from the two unions that have long wanted to add TSOs to their membership-the American Federation of Government Employees and the National Treasury Employees Union.

A rather different Congress will be taking office in January, and the question for them will be whether to re-impose something like the original unionization provision or to let unionization of screeners proceed. Sen. Kay Bailey Hutchison has been outspoken on the subject, telling a November hearing that "If you decide to...allow for collective bargaining among the TSA workforce, there would be an upheaval in Congress and serious efforts to prevent that from happening."

Long debates over issues of management flexibility were a major part of the negotiations between the Bush White House and leaders of the House and Senate in 2002 when the DHS legislation was being put together. As recounted by Steven Brill in his book After: How America Confronted the September 12 Era, the three main management flexibility issues were (1) performance-based pay rather than civil service scales, (2) flexibility to reassign people around the country, as needed, and (3) the ability to remove people for misconduct and poor performance. Senate advocates of unions tried, but failed, to reduce the long-standing presidential authority to suspend collective bargaining for functions judged critical to national security. The House added whistle-blower protection and the ability to challenge personnel actions not based on merit. And with those changes, the DHS legislation was enacted.

I agree with those who think it's unwise to make it much harder to terminate bad employees, as unionization would surely do, and to reduce the already limited flexibility of TSA to match screener numbers to passenger traffic in the very dynamic airline industry. I'm also not pacified by the no-strike provision in FLRA's decision, since as Sen. Hutchison points out, that does not preclude slowdowns or sickouts.

If unionization does proceed over the next several months, I think two things will happen in response. First, there will be legislative attempts to reinstate the original no-union provisions in federal security law. Second, especially if legislative attempts don't succeed, we will see a significant increase in airports opting out of TSA-provided screening.
 
The Case for Profiling

In recent years when discussing a risk-based airport screening system, I have avoided using the word profiling, even though it's a legitimate concept. Since most people hear the word "profiling" and immediately think "racial," "ethnic," or "religious," I decided that the term itself confused more than it clarified.

But recent online discussions, including an attack on me by two writers for The Nation as a "high-profile charlatan pushing racial profiling as the alternative to TSA pat-downs and body scans," has led me to change my mind. In a blog post last week for Reason magazine's "Hit & Run" blog, I explained the legitimate meaning of evidence-based profiling, both positive and negative. (http://reason.com/blog/2010/12/10/the-case-for-profiling-air-tra)

Rather than repeat that argument here (please read the blog post), I'd like to elaborate a bit on how I envision negative profiling (i.e., identifying the high-risk category of travelers) would work. The idea would be to make full use of the various databases the government already maintains, using various intelligence sources, to assign more people to the "selectee" category for which secondary screening is mandatory. Only high-risk travelers, so defined, would be required to face body scans or intrusive pat-downs. Stewart Baker, a former DHS official, points out in National Review (Dec. 20, 2010) that the TSA's sister agency, Customs & Border Protection, "knows a lot about [people's] travel plans and uses a database ten or twenty times larger than the selectee list to decide who will be screened closely. And yet for 99 travelers out of 100, border screening is far less hassle-and far less of a privacy invasion-than air security."

The original anti-skyjacking system developed by an FAA task force in 1969-70 used a characteristics-based profile that was not challenged by the ACLU and was ruled constitutional by a New York Federal court. It included 23 elements, of which only half of one percent of air travelers met as many as six, according to David Brown, one of the task force's members. But according to Brown, all 19 of the 9/11 hijackers would have been flagged by that system-had it still been in use in 2001.

Shifting aviation security from looking for dangerous objects to looking for dangerous people should be high on the agenda of the new Congress.

News Notes

Spain to Privatize Madrid and Barcelona Airports

As part of an effort to reduce its budget deficits and national debt, Spanish prime minister Zapatero has unveiled an agenda to raise €14 billion from asset sales in 2011. Included in the plan is to auction off 40-year concessions to Madrid's Barajas and Barcelona's El Prat airports. The Financial Times reported that the government will sell 49% of AENA, currently the owner/operator of airports and air traffic control in Spain. Privatization of Madrid and Barcelona would be among the largest European airport privatizations in recent years.

Chicago Midway Privatization Still on Hold
With Mayor Daley declining to run for re-election and mayoral candidates divided over the issue, the city of Chicago applied for and received from the FAA a fifth extension of its deadline to submit a schedule for carrying out the privatization of Midway Airport. The newly approved due date is July 31; Daley leaves office in May. Former White House staffer Rahm Emanuel, considered by many to be the front-runner to succeed Daley, has announced his opposition to the privatization plan.

New ACRP Report on Airport/Airline Agreements
The Transportation Research Board's Airport Cooperative Research Program has released ACRP Report 36: "Airport/Airline Agreements-Practices and Characterisics." It appears to be a comprehensive (92 pages plus appendices) primer on the various types of agreements, their operational, legal and financial implications, etc. (http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_036.pdf)

TSA Adopts Medical Notification Card
In response to well-justified outrage over various checkpoint incidents involving those with medical conditions (e.g., colostomy bags), the TSA has produced a medical notification card which affected travelers can present to checkpoint screeners; space is provided on the card for travelers to identify their medical condition that may affect screening. The TSA says it worked with a coalition of disability and health organizations to develop the card. While the card does not exempt the holder from screening, it may result in fewer humiliating incidents.

New Aviation Policy Think Tank

Aviation researchers Darryl Jenkins and Joshua Marks have launched the American Aviation Institute, affiliated with George Washington University (where Jenkins used to teach). AAI describes itself as "the commercial aviation industry's first independent business and policy-oriented think tank." Jenkins is serving as AAI's chairman while former airline executive Marks is executive director. Also joining AAI is former Aviation Daily editor Michael Miller, as VP of strategy.

Czech Republic to Merge Airport and Airline
In what looks something like a throwback to the Communist era, the Czech Republic, which has failed in efforts to privatize state-owned Czech Airlines (CSA) and state-owned Prague Airport, has announced that it will merge the two entities into Cesky Aeroholding (CA). The government says that CA will be self-supporting and that the reorganization will be completed by 2012. And it has also suggested that it may seek to privatize both entities sometime in the future, mentioning 2015 as a possible date. The European Commission competition office has so far declined comment on whether the merger conflicts with EU competition policy.

Using Heat to De-Ice Runways?
Wouldn't it be nice if airports could largely dispense with chemicals and snow-plows to keep runways in operation during the winter? That idea underlies several FAA-funded university research projects that have come to light this month. SUNY Binghamton has designed a project to use geothermal heat from below the freeze line to warm ramps and pavements. And the University of Arkansas is testing solar energy to heat a concrete panel. The research grants come from the FAA's annual Design Competition for Universities. These are outside-the-box ideas that may prove too costly or inefficient as replacement for current practices, but I can't fault the idea of research into such alternatives.

Quotable Quotes

"You may have noticed, as I have, how remarkably professional and patient TSA workers have become, despite their frequent encounters with grumpy passengers. That's not exactly typical of government work forces, and it didn't happen by accident. It required a commitment to disciplining and culling workers who aren't temperamentally suited to the job. Such culling is precisely what government unions are in business to prevent. They bargain for work rules that reduce managers' flexibility, and for endless grievance procedures that make disciplining the work force almost impossible."
--Stewart Baker, "Groping Toward Security," National Review, Dec. 20, 2010
 
"Where we haven't succeeded (or even made much of an attempt) is in disarming the political imperative behind 'security theater.' No politician can yet afford to be seen as doing less than everything possible to prevent a repetition of the last attack, however ineffectual and costly those steps."
--Holman Jenkins, "Al Qaeda Discovers the Mail Bomb," Wall Street Journal, Nov. 13, 2010

"Only President Obama and Congress can tame this beast before it starts eating its own citizens. The federal department, with its dozens of agencies and units, is growing like a mushroom with increases in Homeland and TSA funding that are justified based on securing our country. But at what cost do these increases come to our freedom, privacy, and our country in terms of economic vitality and job growth? It's an opportunity-cost analysis that this administration has not completed, most likely because it's the bureaucracy itself that is driving decision-making . . . . As a nation, we risk bankruptcy if we attempt to control and manage all risks without understanding that risk is a part of living, and that living free is not possible if the state becomes too big and intrusive."
--Vaughn Cordle, "Taming the TSA Beast and the Federal Bureaucracy," Aviation Daily, Nov. 23, 2010.

"The truth is that exactly two things have made air travel safer since 9/11: reinforcing cockpit doors and convincing passengers that they need to fight back. The TSA should continue to screen checked luggage. They should start screening airport workers. And then they should return airport security to pre-9/11 levels and let the rest of their budget be used for better purposes. Investigation and intelligence is how we're going to prevent terrorism, on airplanes and elsewhere. It's how we caught the liquid bombers. It's how we found the Yemeni printer-cartridge bombs. And it's out best chance at stopping the next serious plot."
--Bruce Schneier, "Why the TSA Can't Back Down," TheAtlantic.com, December 2010 (www.theatlantic.com/national/print/2010/12/why-the-tsa-cant-back-down/67337)

"For politicians . . . the logic flows like this:

A bomb was found in a printer's toner cartridge, so all toner cartridges are banned. A bomb was found in a bottle; all bottles are banned. A bomb was found in a shoe; all shoes go off. And so it goes. Maybe instead of spending a fortune trying to spot Mr. Bin Laden in those remote Pakistan caves, using advanced satellite observer technology, we should invest in advanced, super-sensitive listening devices. Listen out for the laughter. They must be killing themselves with laughter at the west's reactions."
--"Aviation Security: Banning Logic as Well as Logistics," Aviation Intelligence Reporter, December 2010. (www.aviationadvocacy.aero)

"Operation Hemorrhage will without a doubt cost America and other countries billions of dollars in new security measures. That is what we call leverage. It is such a good bargain for us to spread fear amongst the enemy and keep him in his toes in exchange for a few months of work and a few thousand bucks. . . . To bring down America, we do not need to strike big. In such an environment of security phobia that is sweeping America, it is more feasible to stage smaller attacks that involve less players and less time to launch, and thus we may circumvent the security barriers America worked so hard to erect."
--Inspire (the online Al Qaeda magazine, mid-November 2010)


Robert Poole is Searle Freedom Trust Transportation Fellow and Director of Transportation Policy


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