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AAAE Basics of Airport Law WorkshopTSA Legal Update
Denver, CO
Francine J. Kerner
TSA Chief Counsel
October 15, 2019
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Leadership at TSA
• Administrator – David P. Pekoske
• Acting Deputy Administrator – Patricia Cogswell
• Chief of Staff – Ryan Propis
• Operations Support – Stacey Fitzmaurice
• Security Operations – Darby LaJoye
• Enterprise Support – Kimberly Walton
• Law Enforcement/Federal Air Marshal Service – David Kohl
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TSA Created in Response to 9/11
Pre 9/11
• Private sector screeners
• FAA oversaw safety and security for civil aviation and regulated airports and air carriers
Post 9/11
• Federal screeners
• TSA responsible to screen passengers and checked baggage
• John Magaw stood up TSA with highly diverse group of professionals
• Initially part of DOT; moved to DHS under Homeland Security Act of 2002
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The Threat Continues TodayThreat Items
Explosive Devices and Incendiaries
Firearms
Powders
Non-metallic
Social Engineering
Wreckage of Metrojet Flight 9268 source: https://static.independent.co.uk/s3fs-public/thumbnails/image/2015/11/06/16/Sharm-el-Sheikh-plane-crash.jpg?w968
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Current Threat Environment Terrorists continue to target airports and commercial aviation, using IEDs
concealed in household items and armed assaults on public areas
• 2015 → bombing of Metrojet Flight 9268 by ISIS
• 2016 → bombing of a Daallo Airlines flight by al Shabaab
→ airport attack in Brussels by ISIS
→ airport attack in Istanbul
• 2017 → Australian authorities disrupted a plot involving an attempted attack on a flight between Sydney and the UAE using a meat grinder assembled with parts sent by ISIS via air cargo from Syria through Turkey
TSA is also concerned with:
• The threat posed by unauthorized UAS activities that disrupt airports, as seen in London in December 2018
• Access by terrorist groups operating overseas to various types of man-portable air-defense systems (MANPADS)
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Public Area Security New Era of Terrorism – “Today, the United States faces an evolving
threat environment, and a threat of terrorism and targeted violence within our borders that is more diverse than at any time since the 9/11 attacks.”
- Former DHS Acting Secretary Kevin K. McAleenan, September 20, 2019
Focus on Threat Environment – holistic analysis instead of just drawing the next perimeter line
Promote Unity of Effort – coordination between all stakeholders
Public Education– “If You See Something, Say Something”TM
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Aviation and Transportation Security Act (ATSA), P.L. 107-71 (Nov. 19, 2001)
• TSA’s Mission – Oversee security in any mode of transportation that was regulated by DOT
• Administrator’s Responsibilities – Listed in 49 U.S.C. § 114
• TSA’s Liaison Role – “Serve as the primary liaison for transportation security to the intelligence and law enforcement communities” (49 U.S.C. § 114(f)(5))
Addressing the Threats: TSA’s Authority
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TSA Authority (cont’d)
Screening – TSA “shall provide for the screening of all passengers and property” (49 U.S.C. § 44901)
• Screening “shall be carried out by a Federal Government employee”
• Exception for Screening Partnership Program (49 U.S.C. § 44919-20)
Background Checks – Required for personnel with access to secure areas of the airport (49 U.S.C. § 114(f)(12))
Secured Area and Perimeter Access – TSA regulates secured area access control and airport perimeter access security (49 U.S.C. §44903(g)-(h))
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TSA Authority (cont’d) Federal Air Marshal Service (FAMS) – Air carriers required to provide
seating on any flight (49 U.S.C. § 44917)
National Emergencies – Administrator responsible for coordinating all domestic transportation, including “transportation-related responsibilities of other departments and agencies” (49 U.S.C. § 114(g))
Visible Intermodal Prevention and Response (VIPR) Teams –Administrator may develop “to augment the security of any mode of transportation at any location” (6 U.S.C. § 1112)
Surge Capacity Force – Employees may be deployed (led by FEMA) in the aftermath of a catastrophic event to help support response and recovery efforts. (6 U.S.C. § 711)
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Aviation Security Screening Magnitude larger than you may realize
• 43,000 Transportation Security Officers (TSOs) at 440 airports
• 2.8 million passengers daily; 965 million every year
• 1.4 million checked items daily; 5.1 million carry-on items daily
• 23,000 domestic flights per day; 2,600 outbound international flights per day
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TSA Airport Personnel
Federal Security Director (FSD) – Oversees airport screening and carries out other duties prescribed by the Administrator (49 U.S.C. § 44933)
Assistant FSD for Law Enforcement (AFSD-LE) – Works with Federal Law Enforcement Officers (LEOs) and helps coordinate law enforcement activities at the airport
TSA Field Counsel – Provides legal support to FSDs on issues involving criminal and civil enforcement, liability, legal training, airport security, and personnel issues
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TSA Airport Personnel (cont’d)
Transportation Security Officers (TSOs) – Conduct administrative searches of individuals and baggage entering the sterile area of the airport and checked baggage
Transportation Security Managers (TSMs) – Supervise TSO workforce and help resolve issues that arise during screening
Transportation Security Inspectors (TSIs) – Investigate security incidents and compliance with regulations and, where appropriate, recommend civil enforcement actions
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LEO Support for Checkpoint Screening
Deployment of LEOs – LEOs shall be “at each airport security screening location to ensure passenger safety and national security” (49 U.S.C. § 44901(h))
Airport operator responsibility – Required to provide LEO presence (49 U.S.C. § 44903(c))
• LEOs can be state, local, or private
• Uniformed LEOs must be provided “in the number and manner adequate to support” each checkpoint (49 C.F.R. § 1542.215(a)(2))
Administrator’s authority to ensure LEO presence
• May designate any Federal employee as a LEO (49 U.S.C. § 114(p))
• May deputize state or local LEOs to carry out any Federal airport security duty, 49 U.S.C. § 44922 (currently using to deputize canine teams)
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Key Elements of Screening to Keep Threats Out of the System
Before the Airport: Pre-Screening
After Check-In: Screening Begins In Queue
At the Checkpoint: Screening Technology
In the Plane: Cargo Screening
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Before the Airport: Pre-Screening Risk-Based Security (RBS) Premises
• Majority of passengers are low risk, some suspected of being high risk
• Passengers who voluntarily provide more information can be better evaluated for risk
• Expediting trusted travelers improves security by allowing TSA to focus on unknown and higher risk/watchlisted travelers
Sorting Passengers Based on Known Information
• Known and Trusted Travelers – expedited screening (may leave on shoes, light outerwear, and belt, and keep laptop and 3-1-1 liquids in carry-on bag; may be screened with WTMD instead of AIT)
• Unknown Travelers – standard screening (generally screened with AIT when available)
• Watchlisted Travelers – enhanced screening (AIT screening mandatory; other additional procedures)
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Secure Flight Secure Flight Passenger Data (SFPD) – 49 C.F.R. part 1560
• Collected by air carriers; transmitted to TSA up to 72 hours before flight
• Consists of (at a minimum) name, DOB, gender
TSA Prescreening
• Matching against Federal government watch lists, including Terrorist Screening Center (TSC) No-Fly and Selectee Lists (49 U.S.C. §44903(j)(2))
• Passenger-specific risk assessments (PIA Update, September 4, 2013)
Boarding Pass Printing Result
• TSA sends Secure Fight pre-screening results back to air carrier
• Carriers print results on boarding passes
• No-Fly matches denied boarding; Selectee matches designated for enhanced screening; TSA Pre✓® passengers designated for expedited screening
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Redress Process DHS Traveler Redress Inquiry Program (DHS TRIP)
• Single point of contact for travelers believing that they were unfairly or incorrectly denied boarding or selected for enhanced screening
• Less than 2% of cases have a connection to the watchlist
Watchlist Status is Sensitive Security Information (SSI)
• Generally, whether a passenger is on or off the No-Fly List or Selectee List is SSI that cannot be disclosed
• As part of the redress process, the government may be able to disclose status on No-Fly List to U.S. Persons
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After Check-In: Screening Begins in Queue
Passenger Screening Canines (PSC)
• TSA maximizing capacity to train and certify TSA PSC teams
• PSC operates under an Other Transaction Agreement (OTA) between their law enforcement agency and the National Explosives Detection Canine Team Program (NEDCTP)
• Deputized local Law Enforcement Officer (LEO) canine teams are conducting screening to augment current PSC operations
• Perform Federal airport security duties with TSA supervision (49 U.S.C. § 44922)
• Current locations: Bradley, Louisville, Seattle-Tacoma, Sacramento, Ontario, Dulles, Ronald Reagan Washington
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Passenger Screening Canines
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At the TDC, TSA confirms passenger identity to boarding pass and determines designated level of screening
• Identity Verification (49 U.S.C. § 114(e) & (f))
• TSOs must have specialized document examination training (9/11 Commission Act § 1611)
Credential Authentication Technology (CAT) will enable near real-time ID verification, cross-checking of passenger ID and reservation data, and Secure Flight data
• Full CAT deployment in Standard and TSA √® lanes will continue throughout 2020 and include the ability to recognize REAL ID-compliant IDs
Travel Document Checker (TDC)
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Credential Authentication Technology (CAT)
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REAL ID Act of 2005 REAL ID Act of 2005
• Sets minimum requirements for secure issuance and production of state-issued
driver’s licenses and identification cards (DL/ID)
• Currently, TSA does not accept DL/ID from noncompliant states that do not have
an extension (all states compliant, have extension, or under review)
Upcoming Enforcement Deadline
• October 1, 2020 every commercial air traveler will need a REAL ID-compliant
DL/ID, or another acceptable form of identification, for domestic air travel; list
of acceptable IDs available at tsa.gov
• REAL ID Act allows states and territories to issue both REAL ID-compliant cards
and noncompliant cards
• REAL ID compliant cards generally marked with star in upper portion of card
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Real ID Compliant Card Example
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Facial Recognition Technology
TSA/CBP Pilot
• Developing facial recognition technology will support statutorily mandated biometric entry-exit mission (8 U.S.C. § 1365b(b)(4))
• TSA and CBP piloting CBP technology for identity verification of international travelers at TSA checkpoint
• Passenger participation voluntary; public is advised through signs, website etc.
Verification Process
• Photos taken at TSA checkpoint are compared to photos the passenger has already provided to government, or REAL ID
• If no match, TSA uses standard identity verification procedures
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Facial Recognition Technology
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TSA Pre✓®
TSA Pre✓® – Voluntary provision of biometric information and completion of criminal history background and watchlist checks
Benefits – Members are eligible to receive expedited physical screening at checkpoints & TSA is able to focus resources on passengers more likely to pose a threat
Current Airport and Airline Participation
• TSA Pre✓® in place at approximately 200 airports
• 73 participating domestic and international air carriers
• Over 400 application centers
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Future Lane Experience (FLEx) TSA Modernization Act, sec. 1938, PreCheck Expedited Screening
• TSA must restrict TSA Pre✓® Lanes to members of trusted traveler programs and
begin pilot using risk-modified screening protocol for lanes other than TSA Pre✓®
• TSA must consider: level of risk; availability of space; passenger throughput levels;
checkpoint configuration; and adequate resources for TSA Pre✓® lane
FLEx Pilot
• Separate lane for low-risk passengers to expedite screening; TSA using CAT to
validate credential and vetting status of passenger
• Piloted at Boston Logan International Airport (BOS) (March 2019) and Nashville
International Airport (BNA) in (April 2019); Other pilot locations expected
• TSA must ensure TSA Pre✓® lanes are only used by KTN-holders by April 2020
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Registered Traveler (RT)
Background
• TSA program for private firms to provide identity verification services pursuant to statutory authority (Pub. L. No. 114-4, § 536)
• RT Service Providers operate under sponsorship of TSA-regulated entities, through amendments to sponsor’s TSA-approved security program
• RT Service Providers must comply with TSA requirements for information systems security; must operate at NIST HIGH level (absent TSA exception)
CLEAR
• Currently, only RT Service Provider; operating at 31 airports
• After verifying a customer/passenger’s identity, CLEAR may escort to head of the line but may not bypass TDC
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At the Checkpoint: Screening Technology
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Automated Screening Lanes (ASL) Help mitigate checkpoint security vulnerabilities, reduce passenger
congestion, and increase potential throughput of accessible property in standard screening lanes
Passenger Throughput – Initial results demonstrate that ASLs can, at times, improve passenger throughput up to 30%
Deployment Status – 179 ASLs at 16 airports
Reimbursement of Services – ASLs deployed in collaboration with private sector partners leveraging TSA’s reimbursement of services authority under ATSA (allows TSA to accept equipment, personnel services, and facilities from private and public partners (49 U.S.C. §114(m))
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Automated Screening Lanes (ASLs)
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Computed Tomography (CT) Baggage Screening Technology – 3D-imaging and detection software helps
operators automatically identify threats; eliminates need to divest certain items
Security and Efficiency Enhancements
• Detects reduced threat mass and homemade explosives
• Allows passengers to leave laptops, and eventually liquids, in carry-on bags
• Increases overall checkpoint security effectiveness
• Processes an extra 50 bags an hour
TSA Modernization Act, sec. 1925, Computed Tomography Pilot Programs
• Must conduct pilot program testing use of CT screening equipment at
passenger screening checkpoints
• Currently piloting 20 units at 14 airports
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Computed Tomography (CT)
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Known Crewmember (KCM) Program Background
• Platform that validates identity and employment status of eligible crewmembers, allowing
them to use KCM lanes
• KCM information technology system owned by Airlines for America (A4A), operates
under a Memorandum of Understanding (MOU) between A4A and TSA
• Authorized under 9/11 Commission Act, sec. 1614
Program Changes
• Prompted by ASAC’s insider threat review and TSA’s recent assessment
• Covers identification required to be presented at the KCM lane, unpredictable
screening, and system audits
• Implemented through Operations Directive, effective September 6, 2019; notification to
industry through A4A
Next Steps
• KCM system and program undergoing further TSA review and evaluation
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Reimbursable Screening Services Pilot Program Provides TSA authority to establish 8 pilot program locations to provide
passenger screening services outside of primary passenger screening
terminals through FY’21 (Consolidated Appropriations Act, 2019, sec. 225)
Pilots conducted pursuant to reimbursement agreement with public or private
entity, regulated by TSA
Addresses industry interest to provide different locations for security screening
services
• e.g., dedicated premium flyer lanes or terminals, or off-airport passenger
screening
• No compromise of TSA’s staffing and screening operations at primary passenger
screening locations
Cannot seek reimbursement for overtime or staffing increases
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In the Plane: Cargo Screening ICAO Standard
• To prevent the introduction of IEDs, all cargo must be subjected to screening or security controls before being loaded onto a commercial aircraft, per ICAO Annex 17 Standard 4.6.
• Must be implemented by June 30, 2021.
To meet the ICAO Standard, TSA is:
Reviewing draft language to the full all-cargo program with trade groups and stakeholders; and
Expanding options available to commercial aircrafts:• Canine Certified Cargo Screening Program;
• Accelerating review of CT screening equipment for cargo to be included in the Air Cargo Screening Technology List; and
• Expanding the Shipper CCSF options to incorporate ICAO’s known consignor regime.
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Canine Certified Cargo Screening Program (K9)
Program Overview
• New TSA security program allows contracted canine teams certified to TSA
standards to screen cargo transported on passenger and all-cargo flights
• All canine teams trained under same operational requirements for TSA-owned and
operated canines
• Regulated parties may use CCSP-K9 to meet U.S. and international security
screening standards
Key Issues
• Canine teams must be assessed and certified by TSA-approved certifying
organizations, which are governed by TSA Order
• Regulated parties must request security program amendment to use canine
screening teams
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Regulation of Airport Operators
Obligation Prior/Post 9/11
• Ensure security at airport through shared responsibility
Airport Security Program Required Content
• Access Control and Entry Points
• Perimeter Security
• Security Identification Display Area (SIDA) Badges
• Employee Vetting and Screening
Security Directives
Protection of SSI
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Airport Security Program
Security program is required – 49 U.S.C. § 44903(c)
Implementing Regulation – 49 C.F.R. § 1542.101• No person may operate an airport subject to this part unless it adopts
and carries out a security program that — (1) Provides for the safety and security of persons and property on an aircraft . . . against an act of criminal violence, aircraft piracy, and the introduction of an unauthorized weapon, explosive, or incendiary onto an aircraft
49 U.S.C. § 44903(c)• Airport operators are required to maintain an air transportation
security program and must provide “a law enforcement presence and capability” that “is adequate to ensure the safety of passengers”
Regulations – Airport regulations can be found in 49 C.F.R. Part 1542
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Airport Security Program (cont’d)
Security Programs are Enforceable
• Programs may be adopted and tailored to specific operational needs but requirements must be met
Security Program Required Content – 49 C.F.R. § 1542.103
• Describe sterile, SIDA, and secured areas• Describe measures to perform access control or to control movement
within secured area• Develop procedures for personnel IDs, criminal history checks for persons
with unescorted access
Approval by TSA – Airport Security Program (ASP) and any amendments must be approved by TSA under 49 C.F.R. § 1542.105
Sensitive Security Information (SSI) – Security Programs are non-public documents and are considered SSI pursuant to 49 C.F.R. Part 1520
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Security Directives/Regulations
Standard for Issuing Security Directives (SDs) – “When TSA determines that additional security measures are necessary to respond to a threat assessment or to a specific threat against civil aviation, TSA issues a Security Directive setting forth mandatory measures.” (49 C.F.R. §1542.303(a) (airport operators))
Need to Know – SDs are SSI and are available only to persons with a need to know
SDs are Mandatory – SDs supersede Security Program provisions and have the force and effect of a regulation
Reporting to Congress – Aviation Security Act of 2016 § 3409 requires informing Congress of all SDs and how they respond to specific threats
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Secured Area and Perimeter Security
49 U.S.C. § 44903(g)–(h) – TSA has authority to improve secured area access control and airport perimeter access security
Access Control – Airport operators control access to many areas, such as from the public areas to the sterile area or secured area, and from the secured area to the sterile area. Persons are allowed access based on airport-issued ID and/or access media. Human guards and/or technology such as electronic locks can be used to secure area
• Secure Identification Display Area (SIDA) Badges
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Unmanned Aircraft Systems (UAS) Emerging UAS Threat
• United Kingdom: Unauthorized UAS incursions near London Heathrow and Gatwick Airports caused over 1,000 flight cancelations affecting more than 140,000 passengers (December 2018)
• United States: Airport operations at Newark Liberty International Airport disrupted for 90 minutes due to reported UAS flying near airport (January 2019)
Federal C-UAS Authority
• TSA authorized to use counter unmanned aircraft system (C-UAS) to protect airports under limited circumstances under Preventing Emerging Threats Act of 2018
• Preparing for Incursions at Airports
• U.S. Government drafting Interagency Concept of Operations (CONOPS) governing response to UAS incursions at Core 30 Airports
• TSA created airport-specific Tactical Response Plans (TRPs) outlining TSA roles and responsibilities during UAS incident
C-UAS Authority at Airports
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Personnel Access Control Background Checks – TSA requires background checks for personnel
with access to secure areas of the airport. 49 U.S.C. § 114(f)(12)
Rap Back Program – Improves criminal vetting by providing real-time notification of new
criminal activity (arrests, convictions, some warrants) without need to submit new fingerprints
(FAA Extension, Safety, and Security Act of 2016, section 3405(b))
• Currently, voluntary participation of 170 airports and 6 airlines; an individual is “enrolled” in
Rap Back when participating airports/airlines submit fingerprints to FBI
• Next, mandatory Rap Back through proposed security program amendments. Final draft in
TSA clearance process. Comments adjudicated by TSA received generally asked:
o How to enroll individuals without fingerprints or unclassifiable fingerprints;
o Requirements before being allowed to subscribe covered individuals;
o Recordkeeping procedures surrounding CHRC records and Rap Back subscriptions
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Insider Threat Examples
Seattle-Tacoma International Airport Plane Theft
• August 10, 2018, Horizon air ground service agent, without authorization, removed empty aircraft from maintenance position at Seattle-Tacoma International Airport
• Employee flew for about an hour, pursued by two F-15 fighter jets, and crashed about 30 miles from the airport on Ketron Island
• Employee had a valid Security Identification Display Area (SIDA) credential
American Airlines Mechanic Accused of Flight Sabotage
• On July 17, 2019, surveillance footage captured employee driving up to the plane and working on the navigation system under the cockpit
• The employee admitted to trying to disable the aircraft’s air data module system which reports aircraft speed, pitch and other critical data
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Protecting Sensitive Security Information
Definition (49 C.F.R. § 1520.5) – SSI is information obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA has determined would:
• Constitute an unwarranted invasion of privacy• Reveal trade secrets or privileged or confidential information• Be detrimental to the security of transportation
Covered persons – authorized to access SSI (49 C.F.R. § 1520)
• Airport and aircraft operators • Indirect air carriers (IACs)
Duty to protect – Covered persons have a duty to protect SSI
Requests for SSI – TSA works closely with airports to protect SSI when there are 3rd party requests for information
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SSI Handling Proper Handling of SSI (49 C.F.R. § 1520.9)
• Take reasonable steps to safeguard SSI – store in a secure container or locked room
• Disclose only to covered persons with a need to know – covered persons must disclose, or otherwise provide access to, SSI only to covered persons who have a need to know, unless otherwise authorized in writing
Requests for SSI – Refer to TSA or applicable agency in DOT or DHS
• Consulting with the responsible agency is required under 49 U.S.C. § 1520.9(a)(3)
Marking and Disposal of SSI – Follow 49 C.F.R. § § 1520.13 & 1520.19
Dealing with Unmarked SSI – Mark and inform sender
Unauthorized Disclosure of SSI – Report to TSA or applicable agency
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How Courts View Security Screening
Fourth Amendment – All TSA screening falls under the ambit of the Fourth Amendment
Administrative Searches – The U.S. Supreme Court has applied the Fourth Amendment to a wide range of searches that go beyond criminal law enforcement to meet administrative or “special needs”
Legal Standard – Airport searches do not need to be based on reasonable suspicion or probable cause
• Chandler v. Miller, 520 U.S. 305 (1997)
• NTEU v. Von Raab, 489 U.S. 656, 675 n.3 (1989)
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Case Law on Basic Screening Authority
The TDC• Gilmore v. Gonzalez, 425 F. 3d 1125 (9th Cir. 2006) – Requirement
for travelers to present identification does not violate First or Fourth Amendment
Passengers Must Complete Screening
• U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc) – The choice to attempt entry into secure area triggers screening
• U.S. v. Hartwell, 436 F.3d 174 (3rd Cir. 2006) – Passengers must complete screening once they begin
Random Screening is Permissible
• U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005)
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AIT Reasonable Fourth Amendment Search
Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014)
• AIT scans “are reasonable administrative searches because the governmental interest in preventing terrorism outweighs the degree of intrusion” on privacy
• AIT with Automated Target Recognition (ATR) software poses “only a slight intrusion on an individual’s privacy”
EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011)
• Even without ATR, first generation AIT was reasonable
• Need to search is “acute” and AIT is crucial for detecting non-metallics such as “explosives in liquid or powder form”
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Selectee List Case Law Selectee List
• Beydoun & Bazzi v. Sessions, 2017 WL 4001336 (6th Cir. 2017)
o Inconvenience, inspections or delays at the airport do not amount to a constitutionally cognizable violation of the right to travel
o Stigma claim dismissed because heightened screening at airports does not necessarily signify inclusion on a watchlist
o The weight of district court case law agrees
• Elhady v. Kable, 303 F. Supp. 3d 453 (E.D. Va. 2017)
o Permitted Selectee List claims to proceed concluding that plaintiffs adequately alleged a procedurally protected liberty interest in travel and that additional airport screening is “liberty-constraining” and suggesting plaintiffs were “deterred from traveling.”
o Note: The existence of a protected interest in travel is not the question; the question is whether that interest has been deprived and, as other courts have recognized, deterrence is not deprivation
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No Fly List Survives Strict Scrutiny
Mohamed v. Holder, 2017 WL 3086644 (E.D. Va. 2017)
• “[T]here can be no doubt that the government has the right and obligation to identify . . . and stop those who present such a [terrorist] threat . . . Indeed, it is ‘the most compelling of government duties.’”
• The No Fly List is sufficiently necessary and, under properly applied procedural protections, narrowly tailored to further the government interest
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Redress Process for U.S. Persons on No-Fly List: Constitutional
Latif v. Sessions, 2017 WL 1434648 (D. Or. 2017)
• The No Fly List criteria are not impermissibly vague. They are “reasonably clear” in their application to the specific conduct alleged (associating with and financing terrorists, training with militant groups overseas and advocating terrorist violence).
• The revised redress process of U.S. Persons on the No Fly List is constitutionally sufficient (it provides notice of status and reasons for placement (consistent with national security concerns), an opportunity to respond, and review by TSA Administrator)
• Under the revised process, the TSA Administrator issues a final order maintaining or removing a traveler from the No Fly List, therefore, courts of appeals have exclusive jurisdiction over substantive challenges to No Fly List determinations pursuant to 49 U.S.C. § 46110
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Redress for Individuals in the TSDB
Most courts dismiss procedural due process challenges to the DHS TRIP process for individuals who allege they are on the Selectee List (a subset of the TSDB) but the Elhady court permitted such a challenge to proceed where plaintiffs challenged their placement in the TSDB. At summary judgment, the court found the process inadequate because:
• the standard for inclusion in the TSDB is vague (a reasonable suspicion that an individual is engaging, has engaged, or intends to engage in terrorist activities)
• there no meaningful review of a person’s TSDB status by a neutral decision maker
• the limited disclosures and opportunity to respond creates a substantial risk of erroneous deprivation (unlike U.S. Persons on the No Fly List individuals on the TSDB do no receive notice of/reasons for their status)
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Pending No-Fly List Litigation
El Ali, et al. v. Sessions, et al. (D. Md.) – Challenges several aspects of Government’s watchlisting regime, including standards for placement in TSDB and DHS’s rules-based initiatives (Quiet Skies). Plaintiffs allege sweeping impacts of watchlisting and claim that the existing oversight and redress mechanisms – including DHS TRIP – are inadequate. The Government has filed a motion to dismiss and a decision is pending.
Jibril, et al. v. McAleenan, et al. (D. DC.) (recently filed) – Family of seven (including three minor children) allege they have received treatment consistent with placement in the TSDB (pat down searches, prolonged detentions at the border, warrantless searches of cell phones) and bring claims based upon the Fourth and Fifth Amendments.
Coker v. Kable, (D. Col.) (recently filed) – Former law enforcement officer alleges he lost his ability to travel unencumbered, as well as his ability to work in the field of public law enforcement, because of inclusion on the TSDB.
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TSA Modernization Act Statutory Overview
• Signed into law as part of FAA Reauthorization Act of 2018
• First reauthorization since TSA’s creation
• Includes more than 90 sections and 175 requirements
• Key areas:
o TSA’s Organization
o Promotion of Innovation and Technology
o Improvement of Public Area Security
o Passenger and Cargo Security
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TSA Modernization Act Select Provisions
• TSA Administrator – Five-year term for TSA Administrator (2022 for David
Pekoske) (sec. 1904)
• TSA Pre✓® – Establish risk modified screening lanes (sec. 1938)
• Wait Times – TSA must make airport security wait times publicly available (sec.
1922)
• Canine Standards – Working group to develop standards to produce high quality
explosive detection canines (sec. 1927)
• Public Area Security Working Group– Publish best practices for protecting and
enhancing the security of public areas of transportation facilities (sec. 1931)
