34th Annual Airports Conference Hershey, PA

Kelly D. Wheaton

Deputy Chief Counsel, Enforcement

March 2, 2011

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Overview TSA Authorities Law Enforcement at Airports TSA Airport Personnel Pre-Checkpoint Security: Secure Flight Screening Checkpoint

TSA’s Search Authority SPOT Technology Pat Downs

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Overview (cont’d)

Playbook and Risk Emphasized Flight Screening (REFS) Plays

Airport Security Program VIPR (Visible Intermodal Prevention and Response) Air Cargo Security Directives SSI Civil Penalties Voluntary Disclosure Program

DHS Organization Chart

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TSA Authorities The Aviation and Transportation Security Act

(ATSA), P.L. 107-71 (Nov. 19, 2001)

ATSA established TSA. 49 USC § 114

TSA has responsibility for over-seeing security in any mode of transportation that was regulated by Department of Transportation. 49 USC § 114(d)

TSA serves as the primary liaison for transportation security to law enforcement, intelligence and stakeholder communities, helping to coordinate the flow of information. 49 USC § 114(f)(5)

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TSA Authorities

TSA handles day to day screening in airports. 49 USC § 44901

TSA requires background checks for personnel with access to secure areas of the airport. 49 USC § 114(f)(12)

TSA has authority to improve secured area access control and airport perimeter’s access security. 49 USC § 44903(g)-(h)

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TSA Airport Personnel

Federal Security Director (FSD). FSDs oversee airport screening and carry out other duties prescribed by the Administrator. 49 USC § 44933.

Assistant FSD for Law Enforcement (AFSD-LE). The AFSD-LE, who is a Federal law enforcement officer, helps coordinate law enforcement activities at the airport. Very few.

FAM. TSA deploy Federal Air Marshals (FAMs) on passenger flights. ATSA requires air carriers to provide seating for FAMs on any flight. 49 USC § 44917

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TSA Airport Personnel (cont’d) Screeners. Transportation Security Officers (TSOs)

conduct administrative searches of individuals and baggage entering the sterile area of the airport.

Transportation Security Inspectors (TSIs). TSIs

investigate security incidents and compliance with TSA regulations and, where appropriate, recommend civil enforcement actions.

TSA Field Counsel. TSA Field Counsel provide legal support to FSDs on issues involving criminal and civil enforcement, liability, legal training, airport security, and personnel issues.

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Law Enforcement at Airports

TSA “shall order the deployment of law enforcement personnel authorized to carry firearms at each airport security screening location to ensure passenger safety and national security” § 44901(g)

Head of TSA may designate any employee a LEO to carry a firearm, make arrests, execute search warrants § 114

TSA may deputize state or local LEOs to carry out any Federal airport security duty § 44922

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Airport Law Enforcement Obligations 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” § 44903(c)

Uniformed law enforcement personnel must be provided “in the number and manner adequate to support each system for screening persons and accessible property” 49 CFR 1542.215(a)(2)

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Pre-Checkpoint Security: Secure Flight

Intelligence Reform and Terrorism Prevention Act (IRTPA). Enacted 9/11 Commission to have the government assume watch-list matching from air carriers. IRTPA, P.L. 108-458

Secure Flight Rulemaking. NPRM published on August 23, 2007. 72 Fed. Reg.

48356 Final Rule issued on October 28, 2008 Rule became effective on December 29, 2008

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Pre-Checkpoint Security: Secure Flight

Secure Flight Requirements.

Watch-list. Pre-flight comparisons of airline passenger information and non-traveling individuals seeking authorization to enter the sterile area of a U.S. airport

Redress. DHS Traveler Redress Inquiry Program (TRIP) is available for passengers who feel they have been improperly delayed or prohibited from boarding an aircraft

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Screening Checkpoint Primary Screening. The process all individuals must

undergo to enter the sterile boarding area. Primary screening involves: Walk through Metal Detector Advanced Imaging Technology (AIT) Pat-Down Submitting carry-on baggage to x-ray.

Secondary Screening. Involves more rigorous screening procedures that some individuals must undergo following primary screening.

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TSA’s Airport Search Authority All TSA screening falls under the authority of the Fourth

Amendment 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.”

According to the U.S. Supreme Court, airport searches do not need to be based on reasonable suspicion or probable cause because they are special needs searches. Chandler v. Miller, 520 U.S. 305 (1997) NTEU v. Von Raab, 489 U.S. 656, 675 n.3 (1989)

State law is wholly consistent Contraband. TSOs may come across contraband material that

is not security-related; results in referral to LEO

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Screening Checkpoint: SPOT BDOs. Behavior Detection Officers (BDOs) use observation

techniques to screen passengers for behaviors that may indicate deception at 162 airports.

9/11 Act directs Specialized Training. Section 1611 directs the Administrator to “provide advanced training for behavior observation and analysis.”

Fourth Amendment and Civil Liberty Concerns are Addressed Behavioral indicators not based on race, ethnicity, gender, or

religion Referrals are neutral, incremental means of identifying candidates

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Checkpoint Security: Technology

Strategic Plan. The Secretary is required to develop a strategic plan for deploying explosive detection system (EDS) equipment at airport screening checkpoints. 49 U.S.C. §44925(b)

Research and Development. TSA is continuing to develop, test, improve, and deploy, at airport screening checkpoints, equipment that detects chemical, biological, and radiological weapons and explosives, on individuals and in their personal property. 9/11 Commission Act § 1607, 49 USC § 44925(a).

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Advanced Imaging Technology

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AIT Sample Images

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Checkpoint Security: Advanced Imaging Technology (AIT)

TSA addressed privacy concerns for Imaging Technology Remote TSOs. Only remotely located TSOs view images Faces. Faces obscured by filters Storage. Images cannot be saved, transmitted, printed,

or otherwise stored PII. Privacy Impact Assessment published on October

2008 Signage. Signage at airports informs passengers that

alternative screening is available (pat-down by TSO, hand-held magnetometers)

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Checkpoint Security: Pat Downs• Why are pat downs important?

Standard pat down

Resolution pat down

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Beyond the Screening Checkpoint: Playbook

In General. Provides a menu of security countermeasures to be employed in a flexible and unpredictable manner

Voluntary. Participation is voluntary for airport authorities

Collaboration. Encourages coordination and collaboration among airport security partners on the ground to address local threats

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Beyond the Screening Checkpoint: Playbook

Alternative Means to Comply. Provides means to comply with required Security Directives and Airport Security Programs

Risk-Emphasized Flight Screening (REFS) Plays. The REFS Suite of Plays includes a range of activities to mitigate threats such as insider threats or threats to high-risk flights.

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Why Playbook?Insider Threats

Abdulhakim Mujahid Muhammad, 23, (aka Carlos Bledsoe) drove anairport shuttle for hotel guests and would also take patrons on tours. He attacked a recruiting center in Little Rock, Arkansas.

Najibullah Zazi ,24, was licensed in early 2009 to operate an airport shuttle. Zazi worked for ABC Transportation for six months. Prior to that he worked for another shuttle company at DEN.

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Airport Security Program (ASP) Regulations. Airport security regulations can be found in

49 CFR part 1542.

Security Program Parameters at 49 CFR § 1542.103 require airports to: Describe secured area Describe measures to perform access control or to

control movement within secured area Evacuation plans to be reviewed

Approval by TSA. The ASP and any amendments to it must be approved by TSA. 49 CFR § 1542.105

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Beyond the Screening Checkpoint: (VIPR) 9/11 Commission Act (Section 1303, codified at 6 U.S.C.

§ 1112)

Augment security. Visible Intermodal Prevention and Response (VIPR) teams developed to augment security in any mode of transportation.

Deployment. TSA has the authority to determine the timing, location, and duration of a VIPR deployment; operational protocols are to be developed with local law enforcement and transportation entities.

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Beyond the Screening Checkpoint: (VIPR)

Unpredictability and Randomness. Flexibility in VIPR activities enables the operations to best meet the needs of each airport.

Special Needs Searches. VIPR teams searches are special needs or administrative searches; searches are conducted to ensure traveling public’s safety.

Vehicle searches. Occur at or before entry into the secured area and automobile parking facilities within airport perimeters or adjacent to secured facilities

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Air Cargo Screening under 9/11 Act

9/11 Commission Act § 1602, codified at 49 U.S.C. § 44901(g)

Screen 50% of cargo transported on passenger aircraft not later than February 3, 2009; 100% of such cargo not later than August 3, 2010.

Screening must be commensurate with level of security for checked baggage

TSA believes that industry has met the mandate for domestically uplifted cargo; international inbound cargo remains a challenge.

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Air Cargo Screening under 9/11 Act Interim Final Rule. On September 16, 2009, TSA

published an Interim Final Rule (IFR) which established the regulatory framework for the CCSP. TSA will likely publish a Final Rule this summer.

Certified Cargo Screening Program (CCSP). TSA certifies entities such as shippers and manufacturers as Certified Cargo Screening Facilities (CCSFs) to screen cargo off-airport prior to transport on a passenger aircraft.

Certified Cargo Screening Facilities (CCSFs). TSA has certified more than 1000 CCSFs.

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Air Cargo Screening under 9/11 Act

CCSP requirements:

Each facility must apply for and implement a TSA-approved security program, and screen cargo according to TSA standards.

A CCSF must initiate chain of custody measures to protect cargo from the time it is screened until it is loaded on passenger aircraft.

A CCSF’s key individuals must successfully undergo Security Threat Assessments (STA).

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Security Directives (SD) Standard for Issuing 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 CFR § 1542.303 (airport operators).

SSI. SDs are sensitive security information 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. 49 CFR § 1542.303

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Security Directives (cont’d)SD 1542-04-08G Issued May 28, 2009 in response to ongoing ID media

compliance issues. Applies to an airport with a full security program, but

does not apply to an airport operating under a supporting program unless the airport voluntarily includes a SIDA area in its security program.

Improves identification/work authorization verification procedures, expanding biographic info collected for STAs to improve turn-around time, redress.

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Security Directives (cont’d)

SD 1542-04-08G

Establishes minimum audit procedures for identification media.

Airport is not required to issue ID to transient pilots who do not have aircraft-leased space or unescorted access authority in the AOA of the airport. This is significant for the General Aviation (GA) community, since transient pilots with IDs issued at their home airport can be in the AOA of an airport they visit for refueling or accessing a Fixed-Based Operator (FBO) without obtaining an ID for that airport.

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Sensitive Security Information (SSI) Definition of SSI (49 CFR § 1520.5). SSI is information

obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA determines would:

constitute an unwarranted invasion of privacy

reveal trade secrets or privileged confidential information

be detrimental to the security of transportation

Includes Airport Security Programs (ASPs) and Security Directives (SD)

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SSI: Covered Persons and SSI Handling

Covered persons (e.g. airport and aircraft operators) are authorized to have access to SSI. 49 CFR § 1520.7

Duty to protect. Covered persons have a duty to protect SSI (49 CFR § 1520.9). Covered persons must:

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.

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SSI Handling (cont’d)

Refer requests for SSI to TSA or applicable agency in DOT or DHS.

Mark SSI (1520.13) and dispose of SSI (1520.19) in accordance with regulations.

Deal with unmarked SSI by marking and informing sender it must be marked.

Report unauthorized disclosure of SSI to TSA or applicable agency.

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Civil Penalties

Civil Penalties Amounts. Civil penalty liability may arise from a violation of TSA statutes and regulations. 49 USC § 46301. $27,500 per violation against aircraft operators. $11,000 per violation against all other violators. No administrative assessment of civil penalty may

exceed $50,000 in a single action against an individual or small business, or $400,000 against all others.

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Civil Penalties (cont’d) Inflation Adjustment. TSA published a rule making inflation

adjustments to the maximum TSA civil penalty amounts, in accordance with the Federal Civil Penalty Inflation Adjustment Act of 1990. See 74 Fed. Reg. 36030.

Rule became effective on August 20, 2009. $27,500 per violation against aircraft operators $10,000 per violation against surface transportation

modes $11,000 per violation against all other violators

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Voluntary Disclosure ProgramImmunity for Reporting Suspicious Activity

• Voluntary Disclosure. Individuals who make a voluntary disclosure of any suspicious transaction relating to air piracy, a threat to aircraft or passenger safety, or terrorism, shall not be civilly liable to any person under any law or regulation of the U.S. 49 USC § 44941.

Questions?

Contact information:

Kelly.Wheaton@dhs.gov

571-227-4721

Backup Slides

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Additional Case Law Airport screening does not violate 4th Amendment. Courts

have consistently upheld airport screening as reasonable administrative searches.

U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005). Random screening upheld.

United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006). Passengers must complete screening.

United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc). Attempted entry into secure area triggers screening.