November 10, 2004 | Hunches Hunches

The ACLU of Massachusetts is suing to stop a homeland security pilot project in Boston that encourages screeners and cops to use hunches and suspicious behavior to apprehend terrorists.

As I wrote last month, when the program first came to light, there are some very interesting legal questions about the program, regardless of one's take on the usefulness or appropriateness of the program.

If a police officer questions a passenger, and does not like their answers or encounters a person who won't answer the questions, what are they to do?

Can they themselves prevent the passenger from proceeding to their plane? from leaving the airport?

Can they tell a screener not to let the person board?

If so, what authority are either of them invoking?

According to the press release, the ACLU is suing since one of its own was singled out by officers:

The lawsuit was filed on behalf of King Downing, the National Coordinator of the ACLU's Campaign Against Racial Profiling, who was approached by law enforcement officials after arriving at Logan Airport on October 16, 2003 to attend a meeting on racial profiling in Boston. Upon arriving at the airport, Downing, an African-American who wears a short beard, left the gate area and was making a phone call in the public terminal when he was stopped by a state police trooper who demanded that he produce some identification. When Downing declined to do so without knowing the basis for the request, he was first told that he would have to leave the airport. However, when he attempted to leave the terminal building, Downing was stopped again, surrounded by four troopers and told that he was being placed under arrest for failing to produce identification. When Downing finally agreed to produce his driver's license, the troopers then demanded to see his airline ticket. Downing was told by the police that he could be barred from the airport if he did not cooperate. After the police inspected Downing's identification and travel documents, he was allowed to leave. No charges were ever filed against him.

"This is a dangerous extension of police power," said Downing. "I was stopped and held for no legal reason by armed State Police troopers. I was told I could not leave unless I proved who I was and why I was at the airport, and that if I did not cooperate, I would be arrested or banned from the airport. This is racial profiling, and not the action of a government that stands for freedom and the rights of all its people."

Still, I wonder why did Downing show the police his airline ticket if he thought they didn't have a right to see it? I mean, he's an ACLU lawyer, right?

Here's why clearing up these questions is important:

Behavioral profiling has been used as the basis for stopping passengers since 2002 when Massport announced that State Police troopers at Logan Airport were being trained by an outside security consultant. The procedures were subsequently incorporated into the state police "Behavior Assessment Screening System" used at Logan and other locations. It was recently reported that B.A.S.S. is being used as a model by the Transportation Security Administration, which will soon launch a similar program nationwide, entitled SPOT ("Screening of Passengers by Observation Techniques").

Update: Edward Hasbrouck argues with my questioning of why Downing showed his airline ticket to the police, writing that it is "pretty obvious why an African-American man -- even an ACLU staff lawyer -- surrounded by Mass. troopers would hand over his papers, once he was told that he was already under arrest and explicitly threatened that he would otherwise be 'going downtown', rather than trying to stand on his rights. On the street, or in the airport, a bar card is no match for guns and clubs."

No doubt, Edward has a good point and I did not mean to impugn Downing.

That said, my point was really that the suit would be even more interesting in terms of clarifying the authority of the police to demand someone's plane ticket, if Downing had actually been arrested for not turning it over.

I'm not so sure it is illegal for the police to claim to have powers they do not have.

In lieu of an arrest, that (along with the related question of whether or not he was actually detained at the airport until he produced the ticket) seems to be one of the two main legal issues in the lawsuit. (The other being, of course, whether the hunch system is simply racial profiling by another name.)

Posted by Ryan Singel at November 10, 2004 01:20 PM

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» Does "behaviorial profiling" have to be racist to be wrong? from The Practical Nomad
The widely-reprinted Associated Press report about the lawsuit filed yesterday against warrantless interrogations, demands for identification credentials, and detentions at Boston's Logan International Airport (IATA code "BOS"), as well as the editoria... [Read More]

Tracked on November 11, 2004 11:42 AM