Appendix

REPORT BY THE DEPARTMENT OF JUSTICE TO THE DEPARTMENT OF TRANSPORTATION ON THE DEPARTMENT S CIVIL RIGHTS REVIEW OF THE FEDERAL AVIATION ADMINISTRATION S PROPOSED AUTOMATED PASSENGER SCREENING SYSTEM

REPORT BY THE DEPARTMENT OF JUSTICE TO THE DEPARTMENT OF TRANSPORTATION ON THE CIVIL RIGHTS REVIEW OF THE PROPOSED AUTOMATED PASSENGER SCREENING SYSTEM

At the request of the White House Commission on Aviation Safety and Security and the Department of Transportation, the Department of Justice has conducted a civil rights review of the automated passenger screening system now under development by the Federal Aviation Administration ( FAA ) for implementation by domestic air carriers at airports located in the United States. The following constitutes the Report of the Department of Justice to the Department of Transportation on this review.

The Department of Justice's principal finding is that the FAA's proposed Computer Assisted Passenger Screening system ( CAPS ) will not discriminate on the basis of race, color, national or ethnic origin, religion, or gender. CAPS has no knowledge of, and thus does not give any consideration to, the race, color, national/ethnic origin, religion, or gender of airline passengers. CAPS similarly does not include as a screening factor any passenger traits that may be directly associated with race, color, national or ethnic origin, religion, or gender, such as a passenger's name or mode of dress.

In order to further assure that airline passenger screening is implemented in a nondiscriminatory and appropriate manner, the Department of Justice is recommending that five steps be taken by the Department of Transportation and this Department. These steps involve the following:

1) the FAA should undertake regular, periodic reviews of CAPS (and any residual manual screening system) to ensure that the screening factors continue to be reasonable predictors of risk or the absence of risk;

2) the Department of Justice, with the assistance of the Office of the Secretary of Transportation and the FAA, should undertake a post-implementation review of CAPS (and any residual manual system), approximately one year after implementation begins, to ensure that selection in fact is not impermissibly being based on race, color, national or ethnic origin, religion, or gender, and should undertake additional reviews thereafter as appropriate;

3) the Office of the Secretary of Transportation and the FAA should expand their public education and outreach efforts to inform the American public about the purpose of airline passenger screening, as well as the right of passengers to file a complaint with the Department of Transportation if they believe they were the victim of discriminatory airline security procedures;

4) the FAA should require that domestic air carriers that implement CAPS (or any residual manual system) obtain pre-approval from the FAA before implementing any passenger screening system in addition to the screening procedures prescribed by the FAA, and the FAA should consult with the Department of Justice before approving any supplemental screening procedure; and

5) the FAA should require that air carriers implementing CAPS (or any residual manual system) establish procedures to ensure appropriate interactions between air carrier employees responsible for implementing passenger screening and airline passengers, and should provide appropriate training to these employees.

The FAA has advised that it is preparing to take the regulatory actions necessary to implement CAPS, and has established a target date for initial implementation of December 31, 1997.

On February 12, 1997, the White House Commission on Aviation Safety and Security, chaired by Vice President Gore, issued its Final Report to President Clinton. The Commission was established by President Clinton immediately following the tragic crash of TWA Flight 800. The Commission made numerous recommendations regarding airline passenger security, aviation safety, air traffic control safety and efficiency, and responses to aviation disasters. The Commission concluded that among the steps that should be taken to improve airline passenger security is the implementation by the FAA of an automated system for screening airline passengers flying out of airports located in the United States, and noted with approval the efforts already underway by the FAA to develop CAPS.

The Commission understood that care must be taken in implementing automated passenger screening so that there is no infringement on the civil liberties of American citizens. The Commission, accordingly, convened a panel of civil liberties experts from outside government to provide appropriate guidance. Based on the proposals made by this panel, the Commission recommended eight civil liberties safeguards.

Most importantly, the Commission recommended that the Department of Justice review the FAA's automated passenger screening system before implementation to ensure that selection is not impermissibly based on national origin, racial, ethnic, religious or gender characteristics. [1] The Commission further recommended that the Department periodically review the FAA's screening standards following implementation. The Commission decided not to accept a proposal of its Civil Liberties Advisory Panel that an outside, independent panel be created to monitor airline passenger screening. Instead, the Commission asked that the Justice Department, working with the Department of Transportation, consider this proposal and create an outside panel if that is deemed necessary.[2]

Shortly after the White House Commission submitted its report, the Department of Transportation asked the Department of Justice to carry out the review recommended by the Commission. Responsibility for conducting the review was assigned to the Department's Civil Rights Division, with assistance to be provided by the Department's Criminal Division and the Federal Bureau of Investigation.

The FAA has provided the Justice Department with detailed briefings about the CAPS screening factors and procedures, the FAA's existing manual screening system (which has been in use since the fall of 1995 and which CAPS generally will replace), and other related matters. In addition, Northwest Airlines, which is assisting in the development of CAPS pursuant to a grant from the FAA, provided the Department with a CAPS demonstration and with data from a CAPS field test conducted by Northwest.

The Department of Justice (along with representatives from the Office of the Secretary of Transportation and the FAA) met with the White House Commission s Civil Liberties Advisory Panel and with other civil liberties and civil rights advocates. As part of those discussions, the advocates forwarded a number of recent individual airline passenger complaints that allege discrimination on the basis of national/ethnic origin, nationality or religion in the application of airport security procedures.[3] The meetings with the Advisory Panel and with advocacy groups were of great assistance in elucidating the concerns and questions that exist about airline passenger screening, and in focusing the Department on areas where recommendations for additional actions might be appropriate.

The purpose of screening passengers at domestic airports, as described by the White House Commission and the FAA, is to identify a small percentage of passengers to whom a heightened security measure should be applied. The White House Commission explained: Based on readily-available information, passengers could be separated into a very large majority about whom we know enough to conclude that they present little or no risk, and a small minority about whom we do not know enough and who merit additional attention. [5] With regard to that small minority, neither CAPS nor the FAA's existing manual screening system is designed or intended to identify persons who in any sense are likely terrorists. Clearly, on any one day, it is highly probable that all the selectees will be individuals with no connection to terrorism. Notwithstanding that fact, it is the judgment of the White House Commission and the FAA that the terrorist threat is sufficiently great, and the consequences of airline terrorism so horrendous, that security measures that cannot practically be applied to all passengers flying out of U.S. airports on domestic airlines should be applied to a portion of the passenger population. Passenger screening shrinks the number of passengers to whom an additional security measure is to be applied to a manageable size based on an intelligence judgment as to where in the sea of passengers a terrorist could be waiting.[6]

As is true for other FAA security measures implemented at U.S. airports, responsibility for implementing CAPS will rest with U.S. air carriers, and CAPS will operate on the air carriers computer reservation systems. Except for one limited category of domestic air carriers, CAPS will apply to passengers traveling on all U.S. air carriers departing on domestic flights from American airports. The exception will be those few domestic air carriers that do not utilize a computer reservation system to which CAPS can be appended; for these carriers, the FAA may require the continued use of a manual screening system. The FAA's present intent is that CAPS also will operate on a portion of the international flights by U.S. air carriers outbound from the United States; however, at least at this time CAPS will not apply to international flights by U.S. air carriers to the United States. CAPS will not apply to foreign air carriers flying from or to the United States.[7]

Like the FAA's existing manual screening system, CAPS will rely solely on information that passengers otherwise provide to air carriers in the normal course of business for reasons unrelated to screening. CAPS will not prompt the gathering of any additional information by the federal government or air carriers, and is not connected to any law enforcement or intelligence database.

Like the existing manual system, CAPS will screen passengers by analyzing passenger information relating only to the current travel of each passenger. CAPS will accomplish this by utilizing both positive and negative factors positive factors weigh against selection and negative factors weigh in favor of selection and each factor has an FAA-assigned positive or negative score.[8] In order to determine whether a passenger should be selected, the airline reservation computer identifies the factors that the passenger has hit upon and totals the positive and negative scores; those passengers who score below the FAA-prescribed cut-off are selectees. In addition, pursuant to a recommendation of the White House Commission and its Civil Liberties Advisory Panel, CAPS will include as selectees a limited number of passengers randomly chosen by the computer who were not selected by the screening factors.

When passengers either check-in or purchase a ticket at the airport, the reservation computer will inform the airline employee whether each passenger is a selectee or not. The computer will not inform the employee whether the selection was based on the screening factors or random selection, and will not inform the employee of the passenger's CAPS score. CAPS scores of individual passengers will not be retained by the air carriers or the federal government.

The FAA advises that there are several reasons why CAPS represents a significant improvement over the existing manual screening system. Computerization allows for a more sophisticated, precise, and comprehensive use of the information provided by airline passengers to their air carriers. It also permits the establishment of a more controlled system for applying the screening factors by eliminating the need for airline check-in agents to apply the selection decision rules established by the FAA; this, in turn, eliminates the possibility of an airline employee misapplying the selection rules.

The FAA's present intent is that the additional security measure applied to CAPS selectees (and selectees pursuant to any residual manual screening system) will concern their checked luggage only. Depending on the destination of the passenger (domestic or foreign) and the availability of advanced technology at particular airports, the additional security measure applied to selectees typically will involve one of the following: bag matching (the requirement that checked luggage be flown only if it is determined that the passenger who checked the luggage has boarded the airplane); examination by a certified explosive detection system (EDS); or examination using other advanced technology (such as an explosive detection device or a trace detector).

Currently, both the checked luggage and the carry-on luggage of passengers selected by the manual screening system are subjected to a heightened security examination at domestic airports. The FAA advises that the carry-on items of CAPS selectees (and selectees pursuant to any residual manual system) will not be treated differently from the carry-on items of non-selectees, due to ongoing improvements that are being made by the FAA in examining the carry-on luggage of all passengers.[9]

The findings of the civil rights review conducted by the Department of Justice are as follows:

1. CAPS fully complies with the equal protection guarantee incorporated in the Fifth Amendment to the Constitution. CAPS will not impermissibly select passengers for heightened security measures on the basis of race, color, national or ethnic origin, religion, or gender.

2. CAPS does not violate the Fourth Amendment prohibition on unreasonable searches and seizures. CAPS itself involves no "search or seizure; nor does bag matching, pursuant to CAPS, occasion any search or seizure. A search of a selectee's luggage pursuant to CAPS, such as by an EDS screening, is a permissible extension of the constitutional administrative search procedures that operate at airports today.

3. CAPS does not involve any invasion of passengers personal privacy. CAPS does not create any new database on passengers and is not linked to any database other than the existing airline computer reservation systems. CAPS selectee results will not be retained on a personally identifiable basis and the information used to calculate each CAPS result will not be retained on computer by the airline reservation systems.

4. We also conclude that the existing manual screening system, which the FAA has advised may continue in effect on a limited basis after CAPS is implemented, is constitutional and does not involve any impermissible discrimination or invasion of personal privacy.[10]

Based on the review conducted by the Department of Justice, the Department believes that there are a number of steps that the Department of Transportation and the Department of Justice should take to further ensure that passenger screening is implemented in a nondiscriminatory and appropriate manner. These recommendations (which to some extent incorporate actions that the Department of Transportation already is intending to implement) are as follows:

1. Regular and periodic reviews by the FAA: As is contemplated by the FAA, the FAA should periodically review the screening factors used in CAPS (and any residual manual screening system) to ensure that the factors continue to be reasonable predictors of risk or the absence of risk. Such reviews should occur on at least a yearly basis. Also as proposed by the FAA, the FAA should ensure that CAPS is capable of generating statistical reports on its operational results, so long as the information reported is not personally identifiable to any individual passenger.

2. Post-implementation civil rights review by the Department of Justice: The Department of Justice should undertake a post-implementation review of CAPS (and any residual manual screening system), approximately one year after implementation begins, to ensure that selection in fact is not impermissibly being based on race, color, national or ethnic origin, religion, or gender. The Office of the Secretary of Transportation and the FAA should assist in this review by providing the Department of Justice with information describing CAPS implementation. This should include: a description of any reassessment of the screening factors by the FAA, statistical data describing the population of selectees, a summary of all complaints received by the Department of Transportation alleging a discriminatory application of airport security measures, the results of the complaint investigations, and a description of any alterations in the screening factors or related security procedures that have been implemented or which are being considered for future implementation. Thereafter, additional reviews should be conducted by the Department of Justice as appropriate.

3. Education and outreach efforts: The Office of the Secretary of Transportation and the FAA should expand their public education and outreach efforts to inform the American public about the purpose of airline passenger screening, as well as the right of passengers to file a complaint with the Department of Transportation if they believe they were the victim of discriminatory airline security procedures.

4. Regulating any supplemental air carrier screening efforts: The FAA should prohibit domestic air carriers from altering CAPS (or any residual manual screening system) unless approved by the FAA. The FAA further should require domestic air carriers to obtain pre-approval from the FAA if and when any carrier proposes to implement any supplemental screening system.[11] Should the FAA receive a request from an air carrier to alter or supplement the screening procedures prescribed by the FAA, the FAA should consult with the Department of Justice with regard to whether the proposal involves any impermissible discrimination.

5. Ensuring appropriate interactions between air carrier employees and airline passengers: The FAA should require that domestic air carriers establish procedures for implementing CAPS (and any residual manual system) that ensure that screening is implemented in a nondiscriminatory manner, that selectees are treated in a courteous, respectful, and non-stigmatizing manner, and that any heightened security measure applied to selectees is effectuated so as to minimize the extent to which the selected passenger or any other member of the general public is aware of the measure being applied.

These procedures should include providing training to all personnel who interact with passengers and are involved in applying CAPS or any manual system. The training should include: an explanation of the purpose of screening (including an explanation that selection does not imply that a passenger is suspected of planning or engaging in any illegal activity); a description of the manner in which CAPS (and manual screening) has been designed to select passengers on a nondiscriminatory basis (consistent with maintaining the confidentiality of the screening factors); an advisory that CAPS selectees include some number of passengers chosen at random; an advisory that CAPS is not connected to any law enforcement or intelligence database; instruction on treating selectees in a courteous, respectful, and non-stigmatizing manner that minimizes any overt identification of the passenger as a selectee; and instruction that personnel may not implement any screening other than the FAA-prescribed system, except where the air carrier has obtained the requisite approval from the FAA for a modified or supplemental system.

In light of these findings and recommendations, the Department of Justice does not believe that there is any present need for the creation of an independent, outside panel to monitor airline passenger screening. The Department will reconsider this issue in conducting its post-implementation review of the FAA s airline passenger screening measures.

Finally, the Department of Justice joins in endorsing the civil liberties safeguards recommended by the White House Commission on Aviation Safety and Security. To a significant extent, these safeguards have been effectuated by the preparation of this Report or are reflected in this Report's recommendations.

The FAA's proposed automated airline passenger screening system, as designed, will not infringe the civil rights or civil liberties of American citizens. The FAA has taken great care in designing CAPS so as to respect Americans cherished civil rights and civil liberties, and the Department of Justice has conducted a detailed and comprehensive review of the FAA's proposal. The Department of Justice will continue to closely monitor the FAA's passenger screening procedures to ensure that they remain nondiscriminatory.

Appendix A

Civil Liberties Safeguards Recommended by the White House Commission on Aviation Safety and Security for Implementing Automated Passenger Screening

1. No profile should contain or be based on material of a constitutionally suspect nature e.g., race, religion, national origin of U.S. citizens. The Commission recommends that the elements of a profiling system be developed in consultation with the Department of Justice and other appropriate experts to ensure that selection is not impermissibly based on national origin, racial, ethnic, religious or gender characteristics.

2. Factors to be considered for elements of the profile should be based on measurable, verifiable data indicating that the factors chosen are reasonable predictors of risk, not stereotypes or generalizations. A relationship must be demonstrated between the factors chosen and the risk of illegal activity.

3. Passengers should be informed of airlines security procedures and of their right to avoid any search of their person or luggage by electing not to board the aircraft.

4. Searches arising from the use of an automated profiling system should be no more intrusive than search procedures that could be applied to all passengers. Procedures for searching the person or luggage of, or for questioning, a person who is selected by the automated profiling system should be premised on insuring respectful, non-stigmatizing, and efficient treatment of all passengers.

5. Neither the airlines nor the government should maintain permanent databases on selectees. Reasonable restrictions on the maintenance of records and strict limitations on the dissemination of records should be developed.

6. Periodic independent reviews of profiling procedures should be made. The Commission considered whether an independent panel be appointed to monitor implementation and recommends at a minimum that the DOJ, in consultation with the DOT and FAA, periodically review the profiling standards and create an outside panel should that, in their judgment, be necessary.

7. The Commission reiterates that profiling should last only until Explosive Detection Systems are reliable and fully deployed.

8. The Commission urges that these elements be embodied in FAA standards that must be strictly observed.

[1] Final Report, at 35.

[2] Appendix A to this Report quotes the White House Commission's recommended civil liberties safeguards in full.

[3] We are informed that the Department of Transportation currently is investigating these complaints.

[4] The description of CAPS and related security procedures set forth below is intended to convey the factual foundation for the Department of Justice's findings and recommendations. The description is not intended to supplant the FAA s regulatory process or in any manner pre-determine what the result of that process will be. However, the FAA advises that the key features of CAPS and related security procedures essentially are set and thus are ripe for review by the Department of Justice at this time.

[5] Final Report, at 35.

[6] The additional security measures are aimed at both searching for any terrorist that may be present and deterring terrorists from targeting our nation's air transportation system.

[7] Unlike domestic flights, international flights by both U.S. and foreign air carriers are subject to the security requirements of the International Civil Aviation Organization. The FAA also imposes security requirements on international flights to and from the United States, including screening requirements at certain foreign airports. These screening provisions are unrelated to CAPS or the existing manual screening system which the FAA has mandated for use at domestic airports.

[8] By necessity, the factors themselves must remain confidential and cannot be identified here.

[9] The FAA notes that the level of security review applied to CAPS selectees might increase if the terrorist threat were to markedly worsen. The FAA also notes that security measures may change as advancements are made in security technology and in training security personnel. For example, as recommended by the White House Commission, passenger screening could end if and when EDS is available at all domestic airports to examine all passengers checked luggage.

[10] The Department of Justice was not asked in this review to conduct an investigation of whether any air carriers (or individual employees of air carriers) may be implementing screening requirements, in addition to those mandated by the FAA, which may be discriminatory, and thus the Department makes no findings on that issue. The FAA advises that domestic air carriers generally simply follow FAA security procedures, although federal law allows air carriers to supplement those procedures subject to FAA regulation. As matters now stand, the FAA generally does not limit the air carriers discretion in this regard. As noted above and discussed in greater detail below, the Department is recommending that the FAA increase its regulation of any supplemental passenger screening procedures that U.S. air carriers may seek to enforce.

[11] This pre-approval recommendation is not meant to apply to airline security provisions that concern passengers who are acting in a manner that poses a threat to the safety of other persons, or who are acting in a manner that reasonably suggests that they may pose a threat to the safety of other persons.

U.S. Commission on Civil Rights

Appendix A