BEHAVIORAL PROFILING MUST BE BALANCED
With the Transportation Security Administration’s new behavioral profiling system — termed SPOT, for Screening of Passengers by Observation Techniques — going on-line in many major airports in the U.S., we must be vigilant to not allow this threat detection program to deprive us of our inalienable constitutional rights.
While Rachel Patron’s opinion piece in the Aug. 21 South Florida Sun-Sentinel highlights some obviously absurd searches by TSA officials, the new program employs a smarter system. By training TSA officials in behavioral psychology, we hope to give them the tools needed to spot a person who acts in a “suspicious” manner, rather than fits a particular profile.
This, of course, makes the selection of a “suspicious” person a highly subjective matter. Just as the 1970s-era “drug trafficker” profile became a very subjectively applied test, the SPOT program will necessarily evolve into a program that is based more upon appearances, stereotypes and perceived fears rather than on actual behavior.
Aside from this inherent flaw, there are two other significant areas of concern that must be considered with this or any “profiling” program.
First, from a legal standpoint, in order to avoid the U.S. Constitution’s Fourth Amendment protections from “unreasonable searches and seizures,” airport searches generally fall under the rubric of “administrative searches.” Here, airport searches are considered part of border protection and must be authorized by statute. The SPOT program, however, has no statutory authority or foundation. The Supreme Court also required that such programs devise a systematic way to identify and then process the person, to avoid a violation of their rights. The old drug trafficker profile had certain objective triggers (i.e., setting off the metal detector more than twice), which resulted in specific action by law enforcement (i.e., asking for ID and asking other questions). The SPOT program appears to have no such objective and easily identifiable triggers, but is based on the perception of a person’s behavior.
Secondly, what of the numerous possible noncriminal stresses — fear of flying, poor health, etc. — that may cause a person to act nervous, shifty, worried, sweaty or, in other words, “suspicious”?
SPOT will allow TSA and law enforcement to focus on persons who look Middle Eastern or “Muslim,” while justifying it through a subjective psychological impression. And despite the fact that there is no specific way to “look” Muslim, it is interesting to note that none of our current profiles and prohibitions would have prevented the 9-11 attackers from boarding those planes in 2001 (aside from the restriction on box cutters). The video from Dulles Airport’s security shows Mohamed Atta and his buddies smiling, talking calmly and not acting in any way other than normal.
The solution, at least in the short term, is to do what the British authorities did — work with the local Muslim community. Although only Reuters reported that the U.K. investigation was initiated after a tip from a local British Muslim, we see no other reports in the media highlighting this essential role of the Islamic community. (MORE)
[Asad Ba-Yunus is a lawyer, former prosecutor and a member of the Board of Directors of the Florida Muslim Bar Association.]