The New York Times reported last week that the Transportation Security Administration (TSA) had “created a new secret watch list” (which is also known as a “95 list”) to “monitor people who may be targeted as potential threats at airport checkpoints simply because they have swatted away security screeners’ hands or otherwise appeared unruly.” According to the agency’s lawyer, the 95 list is meant to protect airport security screeners, who “were assaulted 34 times last year, up from 26 in 2016.” This justification for creating yet another watch list is weak, and the language of the directive is broad enough that the 95 list could easily turn into a sort of “enemies list” of people who the TSA will target at airports.
Let’s start with the justification. Obviously, no TSA screener should be assaulted for doing her job. But 34 assaults seem miniscule compared to the 771 million passengers the agency screened over the course of 2017. Then there’s the question of how the agency defines “assault.” According to the directive, any injury to a TSA employee or foiled screening lands you on a different TSA watch list and earns you automatic “enhanced screening.” So, “assault” for purposes of this new list must be something less. According to the directive, physical contact that is “offensive” or “without legal justification” can land you on the watch list, even if there is “no intent to injure or cause physical pain,” much less an actual injury. This suggests that the threshold for what the TSA counts as assault is likely pretty low.
Most troublingly, however, the directive allows for people (most likely Americans, given the scope of the TSA’s duties) to be nominated for the 95 list if they are the “subject of a credible threat of violence” or “are otherwise publicly notorious.” The logic of the former seems to be that the traveler might be attacked at the airport and TSA agents would need to be on their guard. But what are the chances that someone would choose to carry out an attack on someone at an airport where they would be surrounded by security? Amazingly, the order suggests that individuals vulnerable to violence, such as women who have been victims of domestic abuse, belong on the list.
The wide-open category of “publicly notorious” of course allows the agency to nominate pretty much anyone with even a modest public profile, such as journalists or activists, for the 95 list. We know that the TSA is concerned about how it is perceived by such people, having just solicited bids for companies to monitor news sources to identify “any and all” coverage related to the agency, as well as to compile a database of journalists, editors, bloggers and the like, to identify “media influencers.” Interestingly, the new watch list is not just based on reports of potential problem travelers coming from check points. Senior officials of the TSA’s Office of Intelligence and Analysis can add people on their own initiative, suggesting that they may be making their own judgments based on unspecified information about who belongs on the list.
In fairness, the directive does include the standard caveat that watch listing may not be based “solely” on race, religion, national origin, ethnicity etc., but does allow these attributes to be considered as part of “the totality-of-the circumstances,” where they are “both relevant and based on specific intelligence or threat information.” The use of the word “solely,” which is found in many law enforcement racial profiling guidelines, is often a way of eliding the prohibition. Police, and presumably TSA agents, can usually come up with an additional rationale (e.g., the so-called “furtive movements” used to justify the racially biased stop-and-frisk policy in New York City) to work around the policy. Given the TSA’s long history of profiling travelers, the provision is cold comfort. The directive includes somewhat stronger First Amendment protections, stating that “engaging in First amendment protected activity shall not be a basis for nominations or placements” on the 95 list. But it provides no clues on how the agency will ensure that this doesn’t happen, which is particularly troubling since the TSA previously identified “complaints of security procedures” as a behavior that could trigger greater scrutiny.
Finally, what’s the point of the new watch list? According to the directive, it’s mainly to ensure that TSA officers “remain vigilant.” Individuals on the list are not required to undergo additional screening or be denied boarding “based solely” on their inclusion on the watch list. But it defies common sense to think that TSA screeners would not use additional security measures for people who have been tagged as troublesome. Moreover, the agency has discretion to notify “appropriate law enforcement resources” of pending travel or other information about people on the 95 list, which could open these individuals up to additional consequences.
The directive provides no way for people who are wrongfully added to the 95 list to know that they have been tagged or to be removed from the list. While one can understand why the TSA might not want people to know that they are on a watch list, the history of such lists suggests that they are riddled with mistakes that ensnare people who are not security threats at all.
In sum, there appears to be little justification for this new watch list and lots of questions about how it might be used to harass and intimidate agency critics and even just rude travelers. As part of their oversight duties, members of Congress should – at a a minimum – insist that DHS do a better job of explaining the need for the list, who will be on it, and how the agency will ensure that it is not abused. Better yet, they should work to bury this patently bad idea.