An in-flight surveillance program, revealed by the Boston Globe on July 28, has drawn criticism from members of Congress as well as from privacy and civil rights advocates.

Under the program known as Quiet Skies, the TSA in March began assigning air marshals to flights to monitor individuals who are not formally under investigation by any agency and are not on a terrorist watch list.

"It's something that provides an ability to look at individuals who have exhibited patterns of travel that are not unlike what terrorists have exhibited in the past," TSA spokesman Jim Gregory said. "When those travel patterns, along with other data, are looked at, it trips an alert that places [individuals] into a category where there is a federal air marshal that might be on the flight."

While he didn't go into much detail about what constitutes "other data," Gregory did say that it could include an individual's contacts and associations.

The program marks a significant shift for the TSA, the Globe noted. Until March, the agency had used air marshals only on routes that were thought to be high-risk or to monitor individuals on terrorist watch lists. 

Quiet Skies drew scathing criticism from civil rights watchdogs.

"The arbitrary surveillance of innocent people at airports guarantees that Muslim passengers will be disproportionately harassed by federal officials based on racial and religious profiling, with no benefit to the traveling public or to our nation's security," Gadeir Abbas, senior litigation attorney for the Council on American-Islamic Relations, said in a prepared statement last week. "This is just the latest example of the federal government's counterproductive and misguided approach to aviation security." 

Abbas called for the program to be dropped immediately. 

The ACLU was among several watchdog groups to file a Freedom of Information Act request seeking documents about the Quiet Skies program.

Another was the Electronic Privacy Information Center (EPIC), which in a July 31 letter asked for a wide range of documents related to Quiet Skies, including the full list of criteria for Quiet Skies screening and all internal TSA bulletins that reference the program. 

Sen. Edward Markey (D-Mass.), a member of the Senate transportation committee, and Rep. Stephen Lynch (D-Mass.), the ranking member of the House Subcommittee on National Security, also spoke out against the surveillance program. 

In a July 30 letter to Rep. Trey Gowdy (R-S.C.), the chairman of the House Committee on Oversight and Government Reform, Lynch wrote, "While I strongly support the critical mission of the Transportation Security Administration to 'protect the nation's transportation systems,' the administration of a covert surveillance program that targets nearly 20,000 air travelers, including U.S. citizens, per year without probable cause must be subject to robust congressional oversight." 

Speaking to Travel Weekly, Gregory said the TSA did not reveal the in-flight surveillance program until it was revealed by the media because the agency did not want to undermine its effectiveness.

"It is a sensitive program," he said. "Putting too much information out there about it provides an advantage to adversaries to potentially game the system." 

Technically, Quiet Skies isn't new, having been implemented by the TSA in 2010. But until March, it involved screening and observation of targeted subjects only within airports. 

Gregory said the algorithm used by the TSA to develop targets doesn't include race or religion, which is a concern of privacy advocates. The program has undergone a privacy impact assessment, as required under law, he said. American citizens as well as foreign nationals are surveilled. 

Gregory declined to say if the in-flight surveillance program has yielded any aviation security successes. 

The Globe reported that the TSA surveils approximately 35 Quiet Skies passengers each day. Marshals use behavioral detection techniques, including monitoring whether or not the subjects use the lavatory, fidget, use a computer, scan the boarding areas from afar or wait to be last to board the plane. They record their observations in minute detail. 

Individuals on the Quiet Skies list can be surveilled on as many as three flights. They are taken off the Quiet Skies list after three months if they aren't found to be a risk, Gregory said. 

Jeramie Scott, director of EPIC's domestic surveillance project, said the TSA's explanation of how the Quiet Skies algorithm is designed raises questions. 

"The TSA says that its targets are based on destinations people have traveled to," he said, "but we've seen how algorithms can end up using information put in as proxies for race or religion."

Scott also called the very nature of the effort a "red flag."

"It's a program that treats travelers as inherently suspicious and seems to use associations in determinations of who to track, which raises questions about whether the program runs afoul of the First Amendment," he said.

Another item of concern, Scott said, is what the TSA does with its data once it closes a Quiet Skies file.

Meanwhile, air marshals themselves question the usefulness of the program, according to the Globe. In one case, an air marshal was assigned to monitor a Southwest Airlines flight attendant. 

The Globe quoted John Casaretti, president of the Air Marshal Association, as saying that his organization believes its missions should be based on recognized intelligence or in support of ongoing investigations. 

"The American public would be better served if these [air marshals] were instead assigned to airport screening and check-in areas so that active shooter events can be swiftly ended and violations of federal crimes can be properly and consistently addressed," Casaretti said. 

The Air Marshal Association did not respond to inquiries for this report. 

Gregory said the TSA briefed the four congressional committees it reports to about the Quiet Skies in-flight surveillance program in May. New briefings to each of those committees were scheduled last week in the wake of the public revelation of the program. 

The Globe was the second newspaper in two months to reveal a previously secret TSA watch list. In May, the New York Times reported that the agency had created a watch list of individuals who have engaged in disruptive or aggressive behavior at airport screening checkpoints.

JDS Travel News JDS Viewpoints JDS Africa/MI