[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                TSA OVERSIGHT PART I: WHOLE BODY IMAGING

=======================================================================



                                HEARING

                               before the

                   SUBCOMMITTEE ON NATIONAL SECURITY,
                HOMELAND DEFENSE AND FOREIGN OPERATIONS

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 16, 2011

                               __________

                           Serial No. 112-14

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform



                  U.S. GOVERNMENT PRINTING OFFICE
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland, 
JOHN L. MICA, Florida                    Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida              JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                     Robert Borden, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

    Subcommittee on National Security, Homeland Defense and Foreign 
                               Operations

                     JASON CHAFFETZ, Utah, Chairman
RAUL R. LABRADOR, Idaho, Vice        JOHN F. TIERNEY, Massachusetts, 
    Chairman                             Ranking Minority Member
DAN BURTON, Indiana                  BRUCE L. BRALEY, Iowa
JOHN L. MICA, Florida                PETER WELCH, Vermont
TODD RUSSELL PLATTS, Pennsylvania    JOHN A. YARMUTH, Kentucky
MICHAEL R. TURNER, Ohio              STEPHEN F. LYNCH, Massachusetts
PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
BLAKE FARENTHOLD, Texas
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 16, 2011...................................     1
Statement of:
    Cissna, Representative Sharon, Alaska State House of 
      Representatives............................................    23
    Kane, Robin E., Assistant Administrator for Security 
      Technology, Transportation Security Administration; and Lee 
      R. Kair, Assistant Administrator for Security Operations, 
      Transportation Security Administration.....................   112
        Kair, Lee R..............................................   120
        Kane, Robin E............................................   112
    Rotenberg, Marc, executive director, Electronic Privacy 
      Information Center; Dr. David J. Brenner, Center for 
      Radiological Research, Columbia University; Fred H. Cate, 
      senior policy advisor, Centre for Information Policy 
      Leadership, Hunton & Williams; and Stewart A. Baker, 
      partner, Steptoe & Johnson LLP.............................    46
        Baker, Stewart A.........................................    82
        Brenner, David J.........................................    63
        Cate, Fred H.............................................    71
        Rotenberg, Marc..........................................    46
Letters, statements, etc., submitted for the record by:
    Baker, Stewart A., partner, Steptoe & Johnson LLP, prepared 
      statement of...............................................    84
    Brenner, Dr. David J., Center for Radiological Research, 
      Columbia University, prepared statement of.................    65
    Cate, Fred H., senior policy advisor, Centre for Information 
      Policy Leadership, Hunton & Williams, prepared statement of    73
    Chaffetz, Hon. Jason, a Representative in Congress from the 
      State of Utah:
        Prepared statement of....................................     4
        State of Alaska resolution...............................    37
    Cissna, Representative Sharon, Alaska State House of 
      Representatives, prepared statement of.....................    26
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............    13
    Gosar, Hon. Paul A., a Representative in Congress from the 
      State of Arizona, prepared statement of....................    20
    Kane, Robin E., Assistant Administrator for Security 
      Technology, Transportation Security Administration, 
      prepared statement of......................................   115
    Rotenberg, Marc, executive director, Electronic Privacy 
      Information Center, prepared statement of..................    49


                TSA OVERSIGHT PART I: WHOLE BODY IMAGING

                              ----------                              


                       WEDNESDAY, MARCH 16, 2011

                  House of Representatives,
Subcommittee on National Security, Homeland Defense 
                            and Foreign Operations,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:30 a.m., in 
room 2154, Rayburn House Office Building, Hon. Jason Chaffetz 
(chairman of the subcommittee) presiding.
    Present: Representatives Chaffetz, Mica, Gosar, Farenthold, 
Issa, Tierney, Braley, Yarmuth, Lynch, Quigley, and Cummings.
    Also present: Representative Jackson Lee and Holt.
    Staff present: Ali Ahmad, deputy press secretary; Erin 
Alexander, fellow; Thomas A. Alexander, senior counsel; Robert 
Borden, general counsel; Molly Boyl, parliamentarian; Kate 
Dunbar, staff assistant; Adam P. Fromm, director of Member 
liaison and floor operations; Linda Good, chief clerk; 
Christopher Hixon, deputy chief counsel, oversight; Mitchell S. 
Kominsky and Rafael Maryahin, counsels; Justin LoFranco, press 
assistant; Mark D. Marin, senior professional staff member; 
Laura L. Rush, deputy chief clerk; Jeff Wease, deputy CIO; Sang 
H. Yi, professional staff member; Ronald Allen, minority staff 
assistant; Carla Hultberg, minority chief clerk; Lucinda 
Lessley, minority policy director; Scott Lindsay and Brian 
Quinn, minority counsels; Dave Rapallo, minority staff 
director; and Suzanne Sachsman Grooms, minority chief counsel.
    Mr. Chaffetz. The committee will come to order. I would 
like to thank everybody for being here today as we tackle this 
important subject. I would like to begin this hearing by 
stating the Oversight Committee mission statement.
    We exist to secure two fundamental principles: first, 
Americans have a right to know that the money Washington takes 
from them is well spent and, second, Americans deserve an 
efficient, effective government that works for them. Our duty 
on the Oversight and Government Reform Committee is to protect 
these rights. Our solemn responsibility is to hold government 
accountable to taxpayers because taxpayers have a right to know 
what they get from their government. We will work tirelessly in 
partnership with citizen watchdogs to deliver the facts to the 
American people and to bring genuine reform to the Federal 
bureaucracy. This is the mission of the Oversight and 
Government Reform Committee.
    Again, I want to thank everybody for being here and our 
witnesses today for today's hearing, TSA Oversight Part 1: 
Whole Body Imaging. This is the first in a series of hearings 
that we will have relating to the TSA.
    In essence, one of my fundamental concerns is the need to 
secure our airports. We have a true threat in the United States 
of America, but at the same time we also need to uphold our 
freedoms and our liberties, our civil liberties. Oftentimes I 
think there is a false choice that is given that we need to 
give up our personal privacy in the name of security, and that 
is the part we are going to talk about today.
    I would like to welcome Ranking Member Tierney and members 
of the subcommittee and those of you watching our live Web cast 
at Oversight.House.Gov. I want to thank you all for joining us.
    We will seek testimony from private sector and government 
witnesses on the U.S. security programs and policies and their 
relationship to the Fourth Amendment of our Constitution. The 
United States continues to face real and serious threats from 
Al Qaeda and other terrorist groups. Since 9/11, terrorists 
have exploded American airport security checkpoints and, by all 
accounts, will continue to try to do so.
    On December 22, 2001, a terrorist boarded a flight from 
Paris to Miami, where, in-flight, he attempted to detonate 
explosives packed in his shoes. If not for the heroic efforts 
of passengers, flight attendants, and a malfunctioning device, 
he may very well have succeeded.
    In 2006, British intelligence foiled a plot to detonate 
liquid explosives aboard 10 different transatlantic flights, 
plots that would have undoubtedly caused a tremendous loss of 
life and terror.
    On December 25, 2009, another terrorist, also known as the 
Christmas Day bomber, attempted to blow up a Northwest flight 
over Detroit. Again, passengers aboard the flight, along with a 
faulty device, thwarted another tragedy.
    On October 29, 2010, Al Qaeda operatives packed a printer 
cartridge full of explosives and shipped them to the United 
States aboard a UPS airplane. Good intelligence, not effective 
screening, saved the day.
    In each of these instances brave passenger, effective 
intelligence, and a little bit of luck averted mass tragedies, 
but this is not good enough. The Federal Government has reacted 
to each of these events with programmatic reforms and 
recommendations, the creation of the Department of Homeland 
Security being the most notable. These actions opened new lines 
of communication between agencies and redirected American 
efforts to protect the flying public. The American public is 
familiar with many of these reforms enacted at our Nation's 
airports. These changes are what bring us here today.
    Over the past 10 years, Americans have sacrificed freedom 
and convenience for greater airport security. We remove shoes, 
surrender our sunscreen, submit to full body scans and enhanced 
pat-downs. The committee has an obligation to ask whether these 
policies actually truly enhance security. We have an obligation 
to ask tough questions and, when needed, find solutions. We 
must assess whether Federal screening procedures can be done 
with greater efficiency and greater effectiveness. We must 
examine whether Federal Government has a common sense layered 
and threat-based approach to airport security and is it truly 
securing the American public. We must also determine whether 
the Department of Homeland Security is maximizing available 
resources, alternative strategies, and innovative techniques.
    We need to look into behavior detection, intelligence 
gathering and analysis, explosive trace detection; looking into 
vapor weight dogs and how they could be effective in airports. 
These are some of the other security-based techniques that 
should be included in the discussion.
    What separates the United States of America from the rest 
of the world is our ability as a people to ask tough questions 
of those in the public policy arena. We will examine 
effectiveness and health risks associated with full body 
imaging devices. We will hear from privacy experts and average 
Americans about the naked images that are secured in those 
whole body imaging machines and talk candidly about the 
enhanced pat-downs that are now being implemented. We will ask 
tough questions about alternative screening methods and their 
role in the debate. We will examine the evidence and look at 
what has been said by the TSA and compare it to what is 
actually being done.
    In short, I am proud of the United States of America and 
the ability to have this type of interaction in an open and 
transparent way. I appreciate everybody that is here and 
joining us in this discussion.
    At this time I would like to recognize Mr. Tierney for his 
opening statement.
    [The prepared statement of Hon. Jason Chaffetz follows:]
    [GRAPHIC] [TIFF OMITTED] 67371.001
    
    [GRAPHIC] [TIFF OMITTED] 67371.002
    
    [GRAPHIC] [TIFF OMITTED] 67371.003
    
    Mr. Tierney. Thank you, Mr. Chairman, and thank all the 
witnesses for being present here today.
    Past incidents have demonstrated that Al Qaeda and its 
affiliates are looking for other more creative ways to attack 
the U.S.' commercial airline industry and our traveling public. 
As a Nation, I think it falls on us to determine what human, 
economic, and psychological costs of a terrorist attack on a 
commercial airline warrants extraordinary defense measures and 
how costly, intrusive, and inconvenient we are willing to have 
those measures be. None of us likes to take off our shoes or 
throw away our water bottles or empty our pockets of change 
simply in order to board a plane, but most would be willing to 
take the sacrifice if there is a reasonable certainty that such 
actions would help prevent other terrorist attacks.
    Following the Christmas Day bomber attack in 2009, with 
funding and some encouragement from some in Congress, TSA 
procured and deployed body scanning machines on a national 
scale. According to the TSA administrator and two TSA witnesses 
that were scheduled to be here today, these scanners represent 
the best available method to detect metallic and nonmetallic 
threat items concealed on a passenger such as the Christmas Day 
bomber. We should be willing to explore whether or not that is 
in fact the case.
    We must also weigh this technology against Americans' 
legitimate privacy interests. By now we have all seen copies of 
body scan images that show much more than any of us would like 
to publicly reveal. Has the TSA taken significant enough steps 
to address these concerns? I understand that there is also 
additional technology available and in testing as we speak that 
would likely obviate these concerns altogether. If this is the 
case, I would encourage TSA to expedite the testing of that 
technology and deploy it as rapidly as possible if it is 
effective in identifying anomalies.
    It is worth nothing that according to a CBS poll conducted 
in November 2010, an overwhelming majority of Americans, 81 
percent, approve of the use of whole body scanning devices at 
U.S. airports. That fact doesn't take away from legitimate 
privacy concerns that we all share, but it is a helpful data 
point about how much sacrifice most Americans are willing to 
make to prevent terrorist strikes from happening again.
    One of our witnesses, Dr. Brenner, has also raised serious 
concerns about the potential health risks associated with wide-
scale employment of body scanners. I look forward to discussing 
with Dr. Brenner his analysis that is seemingly at odds with 
studies conducted by the National Academy of Sciences, the Food 
and Drug Administration, the American College of Radiology, and 
the British Health Protection Agency.
    TSA has a difficult and unenviable task. At one moment they 
are criticized for not doing enough to detect and stop 
potential threats; at another moment they are criticized for 
doing too much or not doing it in the proper way. Our role is 
to provide constructive oversight that can help TSA strike the 
right balance of security, privacy, cost, and convenience. I 
encourage my colleagues and our witnesses here today to provide 
solutions, rather than just heap on criticism.
    Thank you, Mr. Chairman.
    Mr. Mica. Mr. Chairman, parliamentary inquiry.
    Mr. Chaffetz. Yes.
    Mr. Mica. Mr. Chairman, I came today with the intent of 
questioning witnesses from the second panel, from the 
Transportation Security Administration, about this subject, and 
I appreciate, first of all, you and the ranking member 
conducting this hearing. I appreciate our first panel of 
witnesses, but I have since been informed that we will not have 
representatives today of the Transportation Security 
Administration.
    I would like to request of the Chair and maybe in 
consultation with the ranking member, how we can proceed in the 
future to have--and I understand they have submitted some 
written testimony, but for the purposes of appearing before 
this subcommittee, answering appropriate questions, and some of 
them will evolve from the testimony that will be presented here 
today, but in-person representatives of the TSA, either by 
subpoena or by, and again if you would consult with counsel on 
both sides of the aisle, how we can demand and ensure their 
appearance before the committee in the future.
    That is the nature of my parliamentary inquiry or my 
inquiry at this time, but I think it is very important that 
this subcommittee hear from those individuals who are involved 
with, again, the question before us today, and this is the TSA 
Oversight Part 1: Whole Body Imaging, so for the future, either 
by subpoena or requiring their attendance before this 
subcommittee.
    Mr. Chaffetz. I appreciate the gentleman is correct that 
despite early assurances, confirmation of their attendance and 
participation in this hearing by two members of the TSA, senior 
members of their administration that they would attend, we were 
given notice late last night, something that I physically was 
able to see yesterday, that it was their intention now not to 
attend. I find that to be an embarrassment to the agency, I 
think it is highly inappropriate, and I assure you that the TSA 
will appear before this committee. They should appear today.
    I will give them the benefit of the doubt until we begin to 
swear in the second panel, but at that time, should they choose 
not to attend at their own choice, after confirming that they 
would attend, having people fly in from around the country as 
far away as Alaska and other, I think it is inexcusable and 
embarrassing that it is now their intention not to show up.
    Mr. Cummings. Would the gentleman yield?
    Mr. Chaffetz. Yes.
    Mr. Cummings. The gentleman is well aware--he said he got a 
letter yesterday. The letter is dated March 14, 2011, and the 
TSA had no problem with testifying before this committee. As a 
matter of fact, they wanted to testify before the committee. 
The problem is that the majority insisted that they be seated 
alongside non-governmental witnesses who represent the 
Electronic Privacy Information Center, and that organization is 
actually engaged in multiple lawsuits with the TSA. Now, they 
have assured us and have assured you that they are willing to 
testify. They want to testify. But to sit at the same table 
where people are suing you is just probably not appropriate. So 
I think with some flexibility you could have them in here at 
any moment.
    And I think that we need to be very careful and I think Mr. 
Issa has been most cooperative with regard to dealing with 
subpoenas. If subpoenas are necessary, that is one thing, but 
when you have somebody suing you and you are sitting at the 
same table, as a lawyer, I can tell you that complicates 
matters quite a bit down the road. So I think there is a way to 
resolve this. The minority will cooperate in working with the 
majority to accomplish this. We all want them to appear. They 
want to appear. They have a great story to tell.
    I yield back.
    Mr. Chaffetz. Thank you.
    In response to the gentleman, if I may, if they wanted to 
appear, they could, they should, and they would. The problem is 
that they have elected not to appear. As the gentleman knows, 
members on the panel take questions from Members of Congress; 
they don't take questions from the person seated next to them. 
In order to give Members the proper opportunity to question 
both those that are criticizing the TSA and then allow for a 
timely response from the TSA I think is most productive for 
this committee and, therefore, I had elected to seat them on 
the same panel.
    Just 2 weeks ago we had the State Department, we had the 
Department of Defense, we had the Special Inspector General all 
seated together on the same panel. Both complained, oh, they 
wanted special treatment, they wanted to go first, they didn't 
want to have to wait, they didn't want to have to--but we 
talked to them, explained the situation, and as was 
complemented, I hope this is a fair characterization, a 
complement from the ranking member saying this was a swift and 
efficient hearing, it was a productive use of the Members' 
time. And we got through that hearing without incident. I think 
that is a good precedent. It happened 2 weeks ago from people 
that had contradictory points of view, and it is the way we 
will conduct this subcommittee.
    Mr. Tierney. Will the gentleman yield?
    Mr. Chaffetz. Yes, happy to yield.
    Mr. Tierney. That is a reasonable characterization of what 
I would have said. I don't recall saying it, but I certainly 
would have said that, and indicated to you that I thought the 
hearing went well. When I was chair, we would go back and forth 
with both administrations, Bush administration and the 
subsequent administration, Obama administration, about their 
wanting to be first, they wanted to be on a separate panel and 
all that, and really believe strongly in the prerogatives of 
the House; it is our hearing, we control it and we go.
    I think what is unique about this, and where I separate 
from you on that, is the litigation issue, and I think Mr. 
Cummings is right. When you are advising a client, not only do 
you not want them to be on the same panel with people who are 
suing you, you don't want the optics of having to say, I am not 
going to answer that question, or that is an inappropriate 
question given these circumstances. I don't think that is fair 
to put people in that position.
    I think in this case, where there is litigation, putting 
them on the panel with the other litigant probably is a step 
too far, and I think we can reach an accommodation on making 
sure the prerogatives of the House are retained in getting 
witnesses to take what panels we want them on, in what order we 
want them on, but making an exception in the matter of 
litigation and giving them a separate opportunity. And if that 
were the case here today, I think they would have come, they 
would have testified, we would have gotten the information we 
want, and it would have been better.
    So I just ask that perhaps in the future you consider that 
aspect of it and we try to find a way to cooperatively move 
forward on that and give the agency a chance to say its case as 
well. Yield back.
    Mr. Chaffetz. Duly noted.
    Mr. Issa. Would the gentleman yield?
    Mr. Chaffetz. Gentleman from California, sir.
    Mr. Issa. Thank you, Mr. Chairman. I will be brief, as the 
others have been.
    This committee has a long history of doing it right and 
doing it wrong. Under two chairmen ago, the Fallujah four 
litigation subjects were brought in here and, quite frankly, 
they were brought in to promote a lawsuit that the chairman was 
very well aware of. The Pat Tillman case, the same thing 
happened.
    It is not our intention, as the chairman knows, and as I 
know he worked hard to facilitate any confrontation about a 
litigation. This will not happen on my watch or the chairman's 
watch. What we will do is we will insist on our right to seat 
people on a panel we believe is appropriate. We make 
exceptions. Current Members of the House and Senate, current 
full cabinet officers, and certainly any persons directly from 
the executive branch would be seated separately out of 
deference to their current status. We will continue to work 
with the ranking member, and Mr. Cummings has been very 
reasonable in supporting us when he thought we were right and 
asking for changes when he thought we were wrong.
    The gentlelady from Alaska has come a long way; I want to 
hear what she has to say. I would have happily had TSA sitting 
next to her. My understanding is there is no lawsuit, but there 
certainly is a legitimate claim that TSA is not living up to 
the promises they made for how these scanners would be used and 
how they would do their job. So I look forward to that. I will 
work with the ranking member.
    I would note that although every Member has the testimony 
from TSA, it will not be placed in the record since they did 
not appear. There will not be any unanimous consent to place it 
in the record. You will all have the opportunity to read it and 
we will look forward to that testimony and appropriate rebuttal 
when the TSA comes.
    Mr. Chairman, I thank you for holding this hearing. 
Certainly, with 57,000 and counting TSA employees, countless 
people, including the gentlelady from Alaska, who comes from a 
city in which you can only leave the city in the winter, I 
guess, by dogsled, but most of the year by ship or by aircraft, 
it is essential that those air travelers have an opportunity to 
efficiently, effectively, and privately be able to go through 
screening and get onto the aircraft that bring them to the rest 
of Alaska and the lower 48.
    So, Mr. Chairman, this is important. As we all heard here 
today, this is a very bipartisan issue that we get right after 
what we after, merely a decade, have not gotten right, and I 
thank you for your attention, your continued attention. As this 
title says, this is No. 1. We will be back here as long as it 
takes in our oversight role to get it right.
    I yield back.
    Mr. Chaffetz. I thank the gentleman.
    At this time, I would like to ask unanimous consent that 
Sheila Jackson Lee and Rush Holt be allowed to participate in 
this hearing and ask questions of the witnesses. Without 
objection, so ordered.
    The Chair will entertain any additional opening statements 
that Members would like to make. Does any other Member wish to 
make an opening statement? Mr. Cummings. The gentleman is 
recognized, ranking member of the full committee.
    Mr. Cummings. I want to thank you, Mr. Chairman, and I want 
to thank you for the discussion that we just had, to you and 
our ranking member, Mr. Tierney.
    On the subject of today's hearing, we all share the same 
goal. Let me emphasize that. We share the same goal: keeping 
airline passengers safe and secure with as little inconvenience 
or invasion of privacy as possible.
    The whole body imaging technology we are examining was 
introduced following a terrorist attempt to blow up a Northwest 
Airlines flight in December 2009 using nonmetallic explosives. 
Let that sink in. In response to the threat posed by the so-
called Christmas Day bomber and others, TSA introduced a number 
of new security measures, including whole body imaging.
    By the way, Congress fully supported this effort by funding 
the procurement of hundreds of these machines. Because the TSA 
witnesses are not here to speak for themselves, let me read 
from their written testimony, which I hope that we will hear. 
It says that based upon our analysis of the latest 
intelligence, and after studying available technologies and 
other processes, TSA has concluded that advanced imaging 
technology is an effective method to detect threat items 
concealed on passengers while maintaining efficient checkpoint 
screening operations. TSA continually evaluates these 
technologies, their software and associated screening 
procedures to ensure that they are effective against 
established and anticipated threats, while continuing to 
protect passenger privacy, civil rights, and civil liberties.
    Now, I think it was our ranking member of the subcommittee 
who said, he didn't say it like I am about to say it, but he 
said it, that TSA is damned if they do and damned if they 
don't. If you have an incident, particularly coming after the 
Christmas Day bomber incident, and if they did not try to 
address that issue in the most effective and efficient way, and 
the most noninvasive way as possible, and somebody was harmed 
or, God forbid, killed, then people would be screaming at them.
    So as we conduct our oversight, it is important to 
understand that the TSA professionals charged with protecting 
the traveling public have determined that this technology is 
necessary to detect the very real threats posed by Al Qaeda and 
their affiliates. Our role in this effort should be to provide 
constructive oversight to help TSA strike the right balance 
between the need for security and concerns about convenience, 
cost, health, and privacy.
    And I want to make it clear, as our ranking member has, 
every Member on this side of the aisle, and I am sure on the 
other side of the aisle, our No. 1 concern is the safety of our 
traveling public and, at the same time, striking a balance so 
that we have procedures that protect them, but do not go too 
far with regard to invading their privacy and making sure that 
they can have a wonderful traveling experience.
    I want to thank our witnesses for being here today. Sorry 
that you have gone through what you have gone through, but, 
again, we need to strike this balance and get it right.
    With that, Mr. Chairman, I look forward to working with 
you, Mr. Chairman, and our ranking member to make sure that we 
get TSA here so that they can testify appropriately. With that, 
I yield back.
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]
[GRAPHIC] [TIFF OMITTED] 67371.004

[GRAPHIC] [TIFF OMITTED] 67371.005

    Mr. Tierney. Mr. Chairman.
    Mr. Chaffetz. Yes.
    Mr. Tierney. Mr. Chairman, at this time I would like to ask 
unanimous consent that the statement of Robin Kane, who is the 
Assistant Administrator for Operational Process and Technology, 
and Lee Kair, who is the Assistant Administrator for Security 
Operations, Transportation Security Administration, U.S. 
Department of Homeland Security, be admitted into the record.
    Mr. Mica. Reserving the right to object. Well, I don't have 
the Chair here now, but I do think that since they have chosen 
not to appear today, that I would prefer that when they appear 
we submit that to the record. We would also, at that time, have 
the opportunity to examine and question those witnesses based 
on the submission of their testimony. So I will continue to 
object to the submission of their testimony at this time.
    Mr. Issa. Mr. Chairman.
    Mr. Chaffetz. Yes.
    Mr. Issa. I too would reserve. The intention is for that to 
be placed in at a time in which the witnesses can be made 
available, and I look forward to that opportunity and yield 
back.
    Mr. Tierney. Mr. Chairman, if I may speak to the objection.
    Mr. Chaffetz. Yes.
    Mr. Tierney. I think we all understand that we want the TSA 
people to come back and testify. That is a given and I don't 
think anybody objects to the notion that they will be back and 
testify. I think we have sort of unique circumstances that they 
ended up not being here today. They did circulate their 
testimony last night by email to all the Members.
    I think it is helpful for us, in questioning here today, if 
we are going to ask a question, to be able to refer to 
something that is on the record and keep the record intact. I 
think it is helpful also for people that might look back at 
this hearing to have a full account of all of the different 
positions that might be available here and still reserve the 
right to bring them back.
    But I do note that it wasn't the fact that they wouldn't 
testify, it was the fact that they had circumstances with 
confronting litigants on the same panel that we may or may not 
disagree on. I think it is extraordinary in this case and I 
think for the panel itself and for this hearing it would be 
appropriate to have those materials on the record.
    Mr. Chaffetz. The chair would disagree somewhat with the 
characterization, but fair enough. There has been an objection 
to the unanimous consent request; therefore, it is denied. As 
there has been an objection, we do not have unanimous consent. 
The statements will not be entered into the record.
    Mr. Tierney. Mr. Chairman.
    Mr. Chaffetz. Yes.
    Mr. Tierney. Then I would move that we enter those records 
on the statement and ask for a vote.
    Mr. Issa. Mr. Chairman, point of parliamentary inquiry. Is 
a vote in order during a hearing? I don't believe it is.
    Mr. Chaffetz. I don't believe it is. We have not yet got to 
the second panel. We have not yet confirmed whether or not they 
are going to indeed show up. There was a unanimous consent 
request; there was an objection. That has been denied. 
Consequently, we are still in the opening statement mode. The 
chair is now going to recognize the gentleman from Florida, the 
chairman of the Transportation Committee, Mr. Mica.
    Mr. Mica. Thank you. And I am here in the capacity as a 
member of 18 years spending of the Government Reform and 
Oversight Committee. Again, I thank both the ranking member and 
the Chair for conducting this oversight hearing. This is a very 
important responsibility, I think, of this committee.
    Transportation security, and I started some of this as 
Chair of the Aviation Subcommittee. You never know what the 
good Lord has in store for us, but I was made the Chair in 
2001, somewhat later than usual in the appointment of chairs, 
but then we were confronted with the attacks of September 11th 
and had to put in place a security system for transportation 
for our country. Travel is one of the most important things we 
can do, particularly for aviation. We have seen the threat 
still exists. I think that these folks have seen the damage 
they can do to our economy, to our society, to our way of life, 
and they are still determined to come after us; and I think, 
therefore, it is very important that we have in place systems 
that work.
    I helped initiate a number of the programs, in fact, asked 
them to look at advanced imaging technology, and I am 
supportive of using advanced technology for determining threats 
and risks. My concern is, well, first, the manner in which--and 
I don't have the opportunity to question the TSA 
representatives, the manner in which these pieces of very 
expensive equipment were acquired, and I would hope that the 
committee and committee staff, if they are listening, would 
review very carefully the acquisition. This was somewhere in 
the neighborhood of half a billion dollars.
    Furthermore, I am very concerned about the testing. In the 
past, when we worked, and I see Mr. Cummings there, we were 
always consulted by TSA in the major acquisition and deployment 
of new screening technologies. I don't think that was 
adequately done in this purchase.
    I am concerned about the testing results, and every member 
of this panel should have a classified briefing. I had the 
equipment tested by GAO in December of this past year and then 
I had the pat-downs tested in January. Everyone should be 
required, every Member of Congress, to see the extensive 
failure rate, I can't disclose it, but it really concerns me 
when you spend half a billion dollars and then another half a 
billion dollars for additional personnel and it doesn't work as 
it should.
    Even the initial deployment of portals is a joke. Even a 
seventh grader, I think, could come up with a better plan for 
deploying and utilizing this equipment, and it doesn't have to 
be used for everyone like we have seen it deployed. And then 
again I have great concern of the failure of its use and even 
implications of its use. People in this country are protected 
by the Fourth Amendment. They shouldn't be subject to illegal 
search and seizure and embarrassment and assumed guilty. We can 
and we must do better, especially for aviation security, and I 
am disappointed.
    There are more fundamental problems with TSA, and I ask the 
members of the panel to work with me. For a long period we did 
not have an administrator. We have had five administrators in 5 
years. This administration chose not to appoint someone. 
Actually, I think they named several who were cast aside, but 
the first appointment didn't come until about 8 or 9 months 
into the President's term. That needs to be changed.
    There are more than 200 personnel in TSA making more than 
the administrator. The administration now has an army of 3,770 
personnel in Washington, DC, making an average of $105,000 a 
person. I was taken aside the other day by someone who just 
left TSA. He said he worked in a department where 10 
secretaries made more than $100,000. This is an agency crying 
out for reform and I think it is very sad that they would 
choose not to show up today. I hope that we can get them--I 
know we will get them at a future hearing, and I would be glad 
to participate in questioning them at that time.
    I thank you again for your convening this hearing and yield 
back.
    Mr. Chaffetz. The gentleman yields back.
    The Chair will now recognize the gentleman from Iowa for 5 
minutes.
    Mr. Braley. Thank you, Mr. Chairman.
    The challenges facing the TSA are not a Democratic problem 
or Republican problem; they are a problem that faces every 
American who travels. And those of us who travel frequently 
know that this is one of those difficult balancing acts that we 
face in a country that treasures its privacy, treasures its 
liberty, but also wants to protect its citizens; and that is 
the challenge we face in this subcommittee today.
    With each successive terrorist attempt against our airports 
and airplanes, the TSA has responded with new and usually more 
inconvenient technology to address the threat, from removing 
our shoes at the x-ray machines to limiting liquids and gels to 
advanced imaging technologies that are able to screen whole 
bodies for suspect material. I don't deny there is a clear need 
for security, as the attempts by would-be terrorist Richard 
Reid and Umar Farouk Abdulmutallab show, but I have serious 
concerns over protecting the rights of our citizens and 
ensuring that the technologies we use are fully effective and 
safe.
    Recent studies suggest that the whole body imaging 
technology currently in use may be ineffective at detecting 
concealed explosives such as those used in the Christmas Day 
bombing attempt in 2009, as well as suggesting that the 
backscatter x-ray technology in these AIT devices could be a 
higher risk to health than indicated. I believe that we should 
work together to find more effective screening mechanisms 
through the greater deployment and use of explosive trace 
detection technology that could better detect explosives and 
preserve the modesty and personal rights of American citizens.
    That is why I was proud to introduce the Protect the Lives 
of Americans Now Through Enhanced Screening [PLANES] Act, last 
Congress. This legislation calls for more intelligent use of 
screening technology to ensure safety at airports. I look 
forward to the testimony of the witnesses today and I hope that 
this hearing sheds light on why technology has to be the best 
answer to terrorist threats from the TSA and how we work 
together to protect the rights and health of our citizens, and 
I yield back.
    Mr. Chaffetz. The gentleman yields back.
    We now recognize the gentleman from Arizona for 5 minutes 
for his opening statement.
    Mr. Gosar. Thank you, Mr. Chairman and ranking member, for 
holding this important hearing on the Transportation Security 
Administration's use of whole body imaging at airport security.
    A series of hearings starting today to analyze TSA's 
efforts to increase airport security since the Christmas Day 
bomber incident is the type of hearing this committee should 
hold to ensure the Government is working on the best interests 
of our constituents. In light of the thousands of constituent 
concerns and alarming press accounts we have heard, it is 
critical this committee revisit airport security policy. TSA 
must develop effective policies and processes that keep the 
traveling public safe and maintain our Nation's security, while 
keeping in mind passenger safety.
    Air transportation is one of our Nation's most essential 
infrastructures, and the policies and activities to the 
Transportation Security Administration have a direct impact on 
more of our constituents than almost any other Federal agency.
    In my home State of Arizona, Phoenix Sky Harbor 
International Airport is a primary airport, one of the 10 
busiest in the Nation and among the top 20 busiest in the 
world. Sky Harbor Airport has a $90 million daily economic 
impact. Last year they saw 38,554,530 passengers come through 
the airport and 276,338 tons of cargo coming in and out, and 
over 440,000 aircraft passing through. With the heavy volume of 
passengers, cargo, and aircraft, Phoenix Sky Airport was one of 
the first test sites for the whole body imaging scanners in 
2007. Today there are nearly 500 imaging technology units at 78 
airports.
    The implementation of the whole body imaging scanners in 
Phoenix Sky Airport has not been without controversy. There 
have been numerous press accounts documenting passengers and 
these new scanners, and I have heard concerns from many of my 
constituents directly. There have been various local press 
reports mentioning that passengers are concerned with the lack 
of privacy and who may be viewing these images. I think we can 
all agree that we need to effectively protect air passengers 
while at the same time respecting passengers' rights.
    As a medical professional practicing for over 25 years, I 
am also concerned about the potential health risks posed by the 
machines. TSA reports on radiation exposure have been 
challenged by a variety of independent studies. I look forward 
to hearing the witnesses' testimony on the scientific data, as 
it is critical that the health of our constituents are 
carefully considered when analyzing TSA's security efforts.
    It is important to note that the whole body imaging 
technology is not cheap. It is estimated that the total cost 
for this program will be about $50 million for 2013. At a time 
when everyone is forced to cut back, I think it is only fair to 
ensure that if the Federal Government is going to spend the 
money on this initiative, it better be very effective.
    Finally, we must ensure that we have a consistent fair and 
uniform policy across the board. No one airport should operate 
any differently when it comes to security or how to handle 
passengers. My constituents are telling me that simply is not 
the case. The Federal Government must strike the proper 
balances between security and policy.
    I would like to thank the witnesses for appearing before 
the committee today and contributing to the committee's work to 
reexamine TSA's travel security policies. I look forward to 
hearing your testimony and discussing what is and isn't working 
regarding airport security. Thank you.
    I yield back.
    [The prepared statement of Hon. Paul A. Gosar follows:]
    [GRAPHIC] [TIFF OMITTED] 67371.006
    
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    Mr. Chaffetz. The gentleman yields back.
    We now recognize the gentleman from Massachusetts, Mr. 
Lynch, for 5 minutes.
    Mr. Lynch. Thank you, Mr. Chairman. I want to thank the 
members of the panel for appearing before the committee, when 
they eventually do appear.
    Just a point on that. As former subcommittee chair, it has 
been the practice that we have taken agencies singly to allow 
them to avoid conflict with other parties, and also just to 
give them a basic courtesy. But I respect the Chair's decision 
on how to handle that. It is not necessarily how it has been 
handled in the past.
    To the substance of today's committee hearing, I do want to 
amplify the concern about health risks, and not only for the 
traveling public, but we have TSA workers, TSOs, as they are 
called, Transportation Security Officers, who may indeed screen 
anywhere from 200 to 400 or 500 people in a shift. We have some 
very, very busy airports that handle huge volumes of people, so 
one of the areas of interest that I have is on their behalf, on 
behalf of our TSOs, to make sure that this repetitive exposure, 
even though it is alleged to be low level exposure, to the 
radiation, the low level radiation given off by these scanners, 
I am concerned about their safety.
    I have heard from a couple of the employer groups, I guess 
it is not their official union yet, but the NTEU and also the 
American Federation of Government Employees, who have asked 
that some of these workers, just to allay their fears, be 
allowed to wear a dosimeter, which is a device which will 
record the levels of exposure to radiation which the wearer 
encounters. And I think that is a reasonable approach; however, 
it has not been embraced by TSA.
    That resistance is similar to the resistance that we had a 
couple years ago when we had the H1N1 epidemic, which emanated 
in Mexico City, it started there, and yet we would not allow 
our TSOs in Brownsville and a number of the airports along the 
Mexico border, we would not allow them to wear masks, we would 
not allow them to use Purell on their hands in between the 
screenings and pat-downs of people coming across the border.
    So we allowed those officers to be exposed to a hazard that 
I think they should not have been exposed to. And when I say we 
would not allow it, the Department of Homeland Security and TSA 
leadership would not allow those workers to protect themselves. 
And yet those workers were going home every day to their 
families. So you see the lunacy in that policy. So that 
experience does not lead me to believe that responsibility is 
being taken by TSA.
    The other issue is the privacy issue. This is a serious 
issue and there has to be a way that we can protect the public 
during these imaging screens, and I think the most profound 
deterrent to recklessness with respect to the screening process 
and the images that can be stored on these systems is to 
provide a cause of action for the public.
    If TSA knows that they can be sued and serious damage can 
result to them as a result of their lapse handling of privacy 
issues, then they will be diligent about protecting the 
public's privacy. If they can do it, if they can mishandle 
private information like that and these images, and there is no 
consequences, then they will do exactly that. Experience and 
reason agree on that point.
    So on those points, health risks and privacy issues, I hope 
that we will get some helpful direction and instruction from 
our witnesses.
    Mr. Chairman, I yield back.
    Mr. Chaffetz. The gentleman yields back.
    Would any other Members wish to make an opening statement?
    [No response.]
    Mr. Chaffetz. Members may have 7 days to submit opening 
statements for the record.
    We will now recognize our first panel.
    We are honored to have Sharon Cissna, who is a member of 
the Alaska State Legislature. She represents the 22nd District 
there in Alaska. She is a Democrat, and I appreciate the length 
and the short notice that she has taken to travel a great 
distance to be here today, so we thank you for your presence.
    Pursuant to committee rules, all witnesses will be sworn 
before they testify. Would you please rise and raise your right 
hand?
    [Witness sworn.]
    Mr. Chaffetz. Let the record reflect that the witness 
answered in the affirmative. Thank you.
    Thank you again for being here. We will now recognize you 
for five minutes.

 STATEMENT OF REPRESENTATIVE SHARON CISSNA, ALASKA STATE HOUSE 
                       OF REPRESENTATIVES

    Ms. Cissna. Chairman Chaffetz and Ranking Member Tierney 
and also fellow members of the subcommittee.
    I wanted to first of all introduce myself. My name is 
Sharon Cissna and, yes, I am a State representative, State 
House, and have been with the legislature now seven terms, I am 
in my seventh, and represent District 22, which is in fact the 
district in the State that has the universities and medical 
systems that actually serve the whole State. So my focus really 
is health and education; those are the two focuses I have.
    I have another thing that actually brings me here, and that 
is that I fit a profile of the people that are harmed by the 
present TSA, and those are initials that I haven't actually 
used very often before, but suddenly found myself actually, 
starting in November of this last year, in a situation where, 
like so many other Alaskans, I went down for a second opinion 
to Seattle and got back that medical procedure done, went out 
to the airport not having a clue that there had been any 
changes in the screening devices, and SeaTac had just put it 
in. This was in early November. And because in fact I am what I 
like to consider a veteran of breast cancer, I fit that profile 
that instantly is going to have the full, very invasive hand 
search.
    And this is not something that I have talked to many people 
about, but I am going to talk to you now about it because I 
think it is really important, and I think this actually, as I 
have listened to your conversation, brings something that we 
really don't oftentimes look at when we are talking about the 
total world of our country. We don't often. We look at the 
economy, we look at statistics, we look at that kind of thing, 
but oftentimes we don't look at the individual lives of the 
people that we are serving and what actually is affecting them 
and how.
    It isn't oftentimes in the research that we see, and we see 
this especially in Alaska because we don't have enough numbers 
to really make it work, and that is the research that shows 
what kind of harm is really being done when. If you have very 
few numbers, it doesn't fit into research. And yet people are 
being harmed.
    In my case it was because, as a teenager, I experienced bad 
touch, and have spent my adult life working on making sure that 
assault doesn't happen to the kids that I have come in contact 
with, which, having worked in the mental health field for a 
number of years, starting in, actually, 1962, which, of course, 
shows that I am not new at all of this, really has been 
something that is a lot larger than we ever talk about or think 
about or even test. I am fairly sure of that.
    So when in fact I went through the screening device, I was 
in front of the woman who tried to tell me that I 
simultaneously was going to go through the new hand pat. I 
consider it feeling up and, I am sorry, but I am going to refer 
to it that way. Please accept that. I went through this and 
that is the way I feel about it.
    She was also telling me, very rudely, as a matter of fact, 
that I had to simultaneous to whatever she was going to do to 
me, and she wasn't really explaining that because I think she 
was trying to remember. She had just been trained; she was 
learning. It showed. But simultaneously I was supposed to be 
watching my baggage, and at that point I look over at my 
baggage and other people's bags are now piling on top of mine 
and someone is going through my bag trying to figure out, I am 
sure, if it was theirs. I start moving toward it and she yanks 
me back and very rudely tells me stand still, keep your eye on 
your bags. Yet I am supposed to now sit, stand, and put my 
hands in certain ways to have her feeling me up. And it was 
very intensive.
    All right, that happened. For several weeks after that, I 
would love to know if there is someone I could bill for the 
time I lost because of my emotional state, that actually was, I 
think, the emotional state that happened after that was very 
similar to what happens with probably anyone who has been 
through assault. And I even wonder if in fact--am I running way 
past the time here? I am sorry.
    Mr. Chaffetz. We would like to ask unanimous consent to 
allow her to continue with this testimony for another 2 
minutes. Without objection.
    Please.
    Ms. Cissna. OK. Thank you.
    So what happens is that I went through 2 weeks of very 
disrupted time over the response to that.
    All right, moving forward again very quickly to February 
the 20th, not very long ago, I suddenly find myself having gone 
back to the doctor and finding myself at the airport again and 
thinking something had changed at the airport, find myself with 
the full body scan, which I haven't worried about. I have heard 
many people worry about it. But what happened after that was I 
faced the woman and my husband and I had talked about it. I had 
vowed that I was not ever going to go through that again. I 
said no.
    What I found out, after having said no and having really 
felt better after that, because I actually was starting to 
protect myself, and I, to this moment, feel very proud of 
having done that, I suddenly put myself right in with all of 
the huge numbers of people who have been harmed, and I have 
received well over 1,000 letters, emails, Facebook is alive 
with this. It is amazing how many people have stopped me. Every 
single day, many times a day, with their stories of how they 
have been harmed, and I sent in my statement that I emailed you 
folks many of the comments that were made.
    But I have also witnessed exactly how Alaska does deal with 
this. And the minute that I got back to Alaska, the thing that 
was amazing to me was that my legislature had passed a sense of 
the House on how I had done the right thing, that it was the 
right thing for me to have done, and they have put out a 
resolution that is to come to you; and it goes through all of 
the different things that--and the most important is how 
important air travel is to us, but how our Alaskans have been 
harmed. We travel four times what the rest of the United States 
does, all the other members of our citizens that travel.
    And I think I am supposed to be ending here. I hope you 
will read the rest of my comments and any other questions, 
please ask.
    [The prepared statement of Ms. Cissna follows:]
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    Mr. Chaffetz. Thank you and thank you for that testimony. 
We will put the balance of your testimony into the record.
    I would also like to ask unanimous consent that the 
resolution from the State of Alaska be entered into the record. 
Without objection, so ordered.
    [The information referred to follows:]
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    Mr. Chaffetz. We now move to questioning. I would like to 
recognize myself for 5 minutes, and then each Member will be 
able to ask 5 minutes.
    One of the hallmarks of the United States of America is our 
commitment to the Fourth Amendment, unreasonable search and 
seizure. From your personal viewpoint, you are also a State law 
maker, how do we find that balance, and what was your personal 
experience? There are many that argue, well, if you choose to 
go on an airplane, then you choose to give up those rights. Can 
you share with us your perspective?
    Ms. Cissna. Thank you very much, Mr. Chair. And, Mr. Chair, 
it is absolutely true for Alaskans that we don't choose. We 
don't have a choice. I did make my way back to Alaska after 
that event at the airport on the 20th of February, but it took 
4 days. It took 4 days and I was really lucky because I was 
able to find, in Canada, someone to fly me to Prince Rupert. So 
then I was able to take the marine highway and get to Alaska 
that way.
    But for people in remote parts of our State, what happens 
is that oftentimes their first time away from those remote 
places, because of operations, have to fly out of the State, 
and they are a patient at that time. I hope that they get 
consideration at that time when they go out. We don't have the 
level of screening because it is metallics in the metal 
detector that we get screened with so far. That is what would 
have them felt up.
    But after they come back, after they have the operation, 
when they leave the operating scene and the hospital, what 
happens is they are picked up by maybe a taxi, they are taken 
to an airport, and they become not a patient anymore, they are 
just a standard citizen. That is part of what I have heard from 
many of the caregivers in remote Alaska are talking about, is 
that they then, not only is it the stretcher or the wheelchair 
or whatever they are brought to the hospital, that has to be 
searched; it is taken apart. Then they are very invasively 
examined. Mine was not anything compared to what it would be 
for these people. And this is Alaska. This is the experience 
that they go through under the current system, and that is what 
the legislature is hoping we do, is revert to the less 
invasive.
    Mr. Chaffetz. Now, certainly, we have to secure airplanes. 
I mean, there is a terrorist threat.
    Ms. Cissna. Absolutely.
    Mr. Chaffetz. But you would never pass somebody who has 
some sort of prosthetic device or some other implant or 
something like that, in theory, should not actually pass or get 
through those whole body imaging machines and others. So do you 
have a suggestion on what we do as an alternative?
    Ms. Cissna. The fact is that until February 20th, I really 
had not thought very much about this. Actually, it was actually 
in October that I really started thinking about this. Not 
October, pardon me, November. But I have had many, many letters 
from many, many different people who have traveled all over the 
world, been through all kinds of different screening devices. 
As I understand, there are two that I have had close friends go 
through in this last year, both in Holland and Israel. They 
have extraordinarily successful screening devices that are very 
noninvasive. Very.
    Mr. Chaffetz. But from your personal experience, going back 
to the Fourth Amendment, unreasonable search and seizure, these 
pat-downs are invasive, to say the least, and somebody who 
doesn't have another option, there are many of us that believe 
that this would be deemed a sexual assault on a person.
    Ms. Cissna. Absolutely.
    Mr. Chaffetz. Your personal perspective, and we have just 
30 seconds here, based on what you have experienced in these 
pat-downs, how would you relate that to the Fourth Amendment 
and the definition of an assault?
    Ms. Cissna. I think it is absolutely an assault, and it is 
the worst kind of assault in that it is essentially very 
similar to PTSD and the kinds of reactions that people get with 
that. What I haven't seen are studies. What I am not seeing is 
the oversight that really gives us a chance to really look at 
this and find out what is happening to our Americans. I am 
worried about my State, but I am also worried about my fellow 
Americans.
    Mr. Chaffetz. Thank you. Thank you. Appreciate it.
    We will now recognize the gentleman from Massachusetts, Mr. 
Tierney, for 5 minutes.
    Mr. Tierney. Thank you.
    Representative, thank you for coming here and testifying 
today, particularly the difficulty it caused you. I know it 
wasn't a pleasant experience, and it can't be easy for you to 
testify, so we appreciate you coming all this way and talking 
with us today.
    I think you hit it on the head: everybody would like a less 
invasive, but equally effective, process on that, and that is 
what I think the proper oversight is going to try to get us on 
that path. In my opening statement I made reference to the fact 
that there is apparently a technology out there now that is 
being tested that would not give a full image, full body image, 
but rather would put something like a Gumby, if you remember 
what the Gumby background was, or stick figure, something of 
that basis, and then identify only an anomaly that came up, 
say, on your leg, if you had something strapped to your leg or 
whatever, and then that would be the only area that was patted 
down or investigated.
    Do you have a feeling about that aspect of it? Do you think 
that is still a problem?
    Ms. Cissna. The problem appears to have been not having 
done adequate study for there not to have been really the time 
taken to make sure that we are doing no harm. And that is the 
most critical role any lawmaker has, is to do no harm. And not 
taking the time is something I think we have to fix. That is 
doing our job.
    Mr. Tierney. I understand your comment and I understand 
that Congress has to take some responsibility for that after 
the so-called underwear bomber or shoe bomber, whatever they 
were faced the confrontation doing nothing, which didn't seem, 
I guess in their collective wisdom, to be the way to go because 
the situation was there, so they did what they thought was best 
at the time and were being told that was effective.
    But my real question on this particular one was if there 
was not an image of your individual being up there, but some 
sort of a Gumby or stick figure or whatever, and if there was 
an anomaly that was detected in some isolated location on your 
body and that area was the only area inspected, what is your 
reaction to that sort of examination or process?
    Ms. Cissna. I think you have to look at the whole process 
because one triggers the other. And the thing that is the most 
troubling to me is, as I look at all of the people on the 
airplane as I am getting on, understand, they are all guilty 
before they are proven innocent, and we have to get away from 
that. We have to really start respecting our people.
    Mr. Tierney. So I guess are you saying that basically let 
everyone on unless they have some telltale sign?
    Ms. Cissna. Absolutely not. Absolutely we have to do the 
kind of screening that gets us the best results. But it doesn't 
have to be the one--the technology that is there now is not----
    Mr. Tierney. I know. I get that. I guess I was trying to 
get your opinion on an alternative one, but you apparently 
don't want to give your opinion on that.
    Ms. Cissna. Not without a lot of facts; not without proof 
that it is good. Not without proof that we have done our job.
    Mr. Tierney. I think that goes without saying.
    OK, I yield back.
    Mr. Chaffetz. The gentleman yields back.
    We now recognize the gentleman from Texas for 5 minutes.
    Mr. Farenthold. Thank you very much.
    I can understand what you have been through. Both my 
daughter and I have had the misfortune of triggering these 
machines with anomaly, and the search we both endured was very 
invasive, and you have the greatest sympathy from me.
    Let me ask you. One of the things that you have not 
addressed, or if you did, I was reading through your testimony 
and didn't hear it, but my question is, would you be willing to 
submit to some form of background checks, surrendering your 
fingerprints or retinal data in order to get into a trusted 
traveler program where you are able to undergo a less strenuous 
level of security? Would you consider that to be a reasonable 
alternative?
    Ms. Cissna. I would consider that to be reasonable. And 
that kind of alternative is one. There are others also that are 
using psychological procedures that actually help create a 
profile; not a racial and not a cultural profile, but one that 
actually will, a scan that identifies people who are obviously 
up to no good. And there are ways of coming up with that; that 
has been found in other places. But it is a matter of actually 
looking elsewhere and seeing if there aren't other options. 
There usually are.
    Mr. Farenthold. It is my understanding that the TSA 
profiles boxes, but they don't profile passengers. They will 
profile a box based on its shape, its country of origin, where 
it was shipped from. We take no effort at all to determine if 
you are flying in from middle America or a foreign country that 
is hostile to us; your level of screening is the same and, to 
me, that defies logic. That is not a question, that is a 
speech, so I will yield back the remainder of my time.
    Mr. Chaffetz. The gentleman yields back.
    We now recognize the gentlewoman from Texas for 5 minutes.
    Ms. Jackson Lee. I thank the chairman of the subcommittee 
and the ranking member of the subcommittee especially for their 
courtesies, and I thank the chairman of the full committee and, 
as well, the ranking member of the full committee for their 
courtesies.
    It is a pleasure to see you this morning. I am not on this 
committee, but I am the ranking member and former Chair of the 
Transportation Security Committee with oversight over TSA and 
on the Homeland Security Committee. I will tell you that many 
of my waking hours address the question of professionalism and 
more training for the Transportation Security Officers, and I 
think you would venture to say, as someone who needs flying as 
a mode of transportation, that in most or many instances our 
TSO officers work within the realm that they have and use the 
skills in an appropriate manner. But you are right, we have to 
look at those issues that, as our colleagues have indicated, 
may impact the Fourth Amendment, may impact the dignity of all 
travelers.
    I do want to put on the record that I am going to join with 
the ranking member of our committee, Homeland Security, Mr. 
Thompson, and will be writing a letter to ask for alternative 
protocols for individuals in your situation and also 
individuals who are traveling with medical devices and 
traveling with other medical equipment, traveling with a 
caretaker; and we expect to hear from them very soon and will 
be working with this committee. So I look forward to utilizing 
your written testimony.
    I listened to my friend and colleague from Texas about the 
trusted traveler, and there are a lot of options that we could 
look at. My question to you would be to establish the fact that 
there are threats to the United States. You still believe that 
is the case, is that true, Representative? You have to be oral 
on the record so they can record it.
    Ms. Cissna. Thank you very much. Thank you. Yes, I 
certainly do agree with you. And it is absolutely essential, 
living where we do on the northwest perimeter of our country, 
we are right there. We are at the place where we really need to 
be constantly alert, and that is exactly why I have the 
feelings I do, is that I need to keep my population safe and 
strong so that they can be watchful too. We are the ones who 
are going to see trouble coming from another direction.
    Ms. Jackson Lee. Well, you have the eyes and ears. So we 
lay that groundwork and we know that the Transportation 
Security Officers play a valuable role in that, and you too 
watched that fateful Christmas Day when we saw a unique effort 
of trying to blow up a plane and harm the United States, the 
Christmas Day bomber. That generated this enhanced review, if 
you will. So would you offer to me any other thoughts you have 
about, just briefly, on what enhanced security measures you 
think we should take?
    Ms. Cissna. Thank you very much, through the Chair. The 
list of things that you are asking for, some kind of either 
exemption or some kind of way that people can avoid the more 
intense kinds of screening, any kind of prosthesis at all is a 
problem. Any kind of not just medical, but when people have 
pacemakers. And the things that people are going through is 
just amazingly severe. And I agree with you that the TSA 
employees that I have seen are doing a really good job of 
improving their attitude. Their treatment of the public seems 
to be improving. So it is the procedure itself that is the 
problem.
    Ms. Jackson Lee. I have just a few more minutes, if I might 
just say have you gone through an AIT machine? Have you gone 
through those machines?
    Ms. Cissna. That is the full body?
    Ms. Jackson Lee. Yes.
    Mr. Cissna. And, through the chair, pardon me. Yes, I did 
twice, actually.
    Ms. Jackson Lee. And that is when they found something. So 
my point is, let me just conclude by saying on that point you 
willingly went through the AIT. We thank you for that. We need 
to look at protocols that then respond to how we address 
individuals with medical concerns, devices, prosthetics, and my 
commitment to you is that we look forward to addressing that 
question.
    With that, Mr. Chairman, I yield back. Thank you for your 
courtesy.
    Mr. Chaffetz. Thank you. Glad you could join us. The 
gentleman yields back.
    We now recognize the ranking member from Maryland, Mr. 
Cummings, for 5 minutes.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    First of all, Representative, I want to thank you for being 
here today. Sometimes when we are addressing issues that are 
very personal, it is very, very difficult because what it says 
is that we are opening up ourselves to the public. Folks will 
be watching you on C-SPAN tonight; some of them are watching 
you right now. So you not only become exposed to a few folks, 
but you basically become exposed to the whole country, and for 
that I thank you, because you said some things that really 
touched me and there are two elements that kind of hit me.
    One, you talked about the training and whether this person 
was properly trained, and you talked about courtesy. Then you 
also talked about the invasiveness and the medical situation. 
And then you also talked about how there are some things that 
people just should not have to go through. And I guess I am 
just trying to make sure that we strike this balance.
    Now, one thing is for sure. We certainly can try to make 
sure that the TSA administrator brings some type of sensitivity 
training, if they don't already, to their folks. They need to 
know what people go through. I have relatives that have 
experienced medical situations where they have certain devices 
that might send off any machine or whatever. So I can 
understand that. But they need to be sensitive to that too. And 
there is nothing that is worse than somebody not being 
courteous to another human being.
    President Obama said something that I wish I had invented 
myself. He said sometimes we have in our country an empathy 
deficit, an empathy deficit. So what I am hoping is that your 
testimony will allow us to strike the balance that I know you 
want, because you fully understand safety, but you also 
understand privacy. You understand making sure that a plane 
doesn't come down out of the sky, but you also know that there 
are millions upon millions upon millions of people who travel 
who never even have an idea, even think about trying to bring 
any kind of harm. So it is a tough one.
    So, again, I want to thank you because I believe that your 
testimony will help us try to get to that balance that we need. 
I have often said this, so often when we go through something 
it provides us with a passport, because we have experienced it, 
to help other people and to help address their problems, 
because we become the greatest witnesses. Somebody just saying 
it, talking about it is one thing, but when you have been 
through it, that is a whole other thing.
    So I don't really have any questions, I just wanted to 
thank you. I wanted to thank you, after going through all that 
you have been through and being exposed all the ways that you 
have been exposed, and now to even go through another exposure 
for the sake of balance, for the sake of safety, for the sake 
of the rights of all of our citizens, on behalf of our Congress 
and of our Nation, I take this moment to simply say thank you.
    With that, I yield back.
    Mr. Chaffetz. The gentleman yields back.
    Representative, we are concluding this first panel. Do you 
have any concluding comment that you would like to make 
briefly?
    Ms. Cissna. Thank you, Mr. Chair.
    Mr. Chair, actually, the comment that all of this has 
brought to me over the last several weeks that I have been 
really the focus of a huge number of people coming and telling 
me things they haven't told other people is that the sense I 
have gotten is there are many people who have been losing the 
trust of their government through this kind of thing, and that 
doing this right, that is one of the things that we really do, 
is we win back the hearts of our people.
    And I believe in government; I think government is the 
answer in its own way, and it needs to keep that idea in a 
balance. We need both public and private, but government can 
answer a lot of problems that we have, but without trust, we 
are not going to keep the kind of democracy we have. So thank 
you.
    Mr. Chaffetz. Thank you. Thank you. I appreciate your time, 
your bravery for being here and sharing a very personal story. 
You represent the story of a lot of Americans. We thank you for 
the time and effort that you have taken to be here. It is a 
long trek to be here, but I assure you that it is very 
worthwhile. We thank you. May God bless you.
    For now, we are going to go into recess here for about 5 
minutes or so while we prepare for the second panel. Thank you.
    [Recess.]
    Mr. Chaffetz. The committee will now come to order. We will 
start our second panel with a note that, by mutual agreement, 
we are told that the TSA will show up at 12:15. So we are going 
to try to have a third panel at 12:15. Nevertheless, we want to 
start with the second panel. We appreciate all of you gentlemen 
for being here this day. Let me do some brief introductions and 
then swear you in, and then we will go to the 5-minute opening 
statements.
    Mr. Marc Rotenberg is the executive director of the 
Electronic Privacy Information Center [EPIC]; Dr. David Brenner 
is a Higgins professor of radiation biophysics and the director 
of radiological research at Columbia University; Mr. Fred Cate 
is a senior policy advisor with the Centre for Information 
Policy Leadership at Hunton & Williams; and Mr. Stewart Baker 
is a partner with the law firm of Steptoe & Johnson LLP.
    We appreciate all of you gentlemen being here with us 
today. We appreciate your credentials and look forward to your 
testimony. Pursuant to committee rules, all witnesses will be 
sworn in before they testify. Please rise and raise your right 
hands.
    [Witnesses sworn.]
    Mr. Chaffetz. Let the record reflect that all witnesses 
answered in the affirmative.
    We will now start with opening testimonies. We would 
appreciate it if you would limit your comments to 5 minutes, 
but your entire written statement will be made part of the 
record.
    We will start with Mr. Rotenberg. You are recognized for 5 
minutes.

 STATEMENTS OF MARC ROTENBERG, EXECUTIVE DIRECTOR, ELECTRONIC 
 PRIVACY INFORMATION CENTER; DR. DAVID J. BRENNER, CENTER FOR 
   RADIOLOGICAL RESEARCH, COLUMBIA UNIVERSITY; FRED H. CATE, 
     SENIOR POLICY ADVISOR, CENTRE FOR INFORMATION POLICY 
 LEADERSHIP, HUNTON & WILLIAMS; AND STEWART A. BAKER, PARTNER, 
                     STEPTOE & JOHNSON LLP

                  STATEMENT OF MARC ROTENBERG

    Mr. Rotenberg. Thank you, Mr. Chairman and members of the 
committee.
    I appreciate the opportunity to appear today before you. I 
also wanted to thank you personally for the leadership that you 
have shown on this particular issue, which is of great concern 
to the American public. I also want to begin by saying that 
EPIC fully appreciates the important mission that the TSA has 
and the importance of protecting aviation security. There is no 
dispute about that today.
    What I would like to do is describe for the committee the 
work that we have pursued over the last 5 years concerning a 
particular airport screening technology that the TSA has 
adopted and now hopes to widely deploy in U.S. airports, and 
that is the body scanner technology.
    We became aware of this technology almost 6 years ago. We 
followed at the very beginning the concerns that had been 
raised about the privacy impact, about the health impacts, and 
also whether the technology would be effective. We were very 
cautious at the outset; we wouldn't make any strong statements 
until we had obtained more facts to understand how the 
technology would be used.
    So we began a series of Freedom of Information Act 
requests. We were trying to understand the technical 
specifications, the protocols, the contracts that had been 
arranged with the vendors. We also began to work with expert 
organizations, civil rights groups, groups across the political 
spectrum, groups that represent passengers, groups in the 
travel industry.
    And as we became aware of the concerns that had been 
raised, we joined with these organizations and submitted a 
petition to Secretary Napolitano in the spring of 2009, shortly 
after we learned of the TSA's plan to make these body scanners 
the primary screening technique in U.S. airports. This seemed 
to us to be a sharp departure from what the agency had 
previously said about the use of this technology.
    So 30 organizations wrote to the organization in the spring 
of 2009 and respectfully asked her to conduct a public 
rulemaking so that there would be an opportunity for the public 
to express its views on the TSA's program and so that TSA's 
decisions on those comments would ultimately be subject to some 
type of judicial review. We also, in that petition, urged her 
to suspend further deployment of the technology for primary 
screening because we felt the case had not yet been made that 
they were sufficiently tested. And I will say, Mr. Chairman, it 
was around this time as well that your bill which you 
introduced in the House passed through the House with more than 
300 votes, which was essentially trying to drive the agency 
back to the same position, to keep these devices for secondary 
screening, where they might be used for special cases.
    Now, the story actually gets quite a bit more interesting 
because in January 2010 we obtained the first set of documents 
that we had requested under the Freedom of Information Act, and 
I have attached to my testimony just a couple of pages. We 
actually have thousands of pages that roughly fall into two 
categories. The first category is the description of the 
devices and the second category is the many traveler complaints 
that the agency has received.
    Now, the description of the devices--and now we are talking 
about the procurement specifications, and the vendor contracts 
are very significant because what these documents reveal 
because the devices that the TSA described to the vendors, in 
other words, the specifications that the agency outlined, was 
for devices that had the ability to store and record and 
transmit images of the naked human body.
    Now, I am quite sure there is going to be some back and 
forth this morning about what that means. The agency will say, 
for example, that they don't save the images, they store them 
on a temporary basis and then they are deleted. But I need to 
make very clear at this point that we have done a lot of 
related litigation on this issue and we have obtained, for 
example, from the U.S. Marshal Service more than 100 images of 
a body scanner device very similar to the one used by the TSA. 
This is used by the Marshal Service in Orlando, Florida, in a 
courthouse. The images are routinely stored and recorded.
    The TSA itself, subsequent to the documents that we 
obtained, acknowledged that in fact they were storing and 
recording images in test mode. And then when, last year, I 
believe Chairman Thompson pushed them a bit further on that, 
they also acknowledged that they were storing and recording 
images in training mode. Now we know that the agency has over 
2,000 images, and I am referring back to the TSA, detailed 
images, 2,000, they will not turn over to us because they, for 
whatever reason, I think they don't want the public to see 
this.
    OK, I will conclude. There is a lot in my testimony, but 
just in conclusion, the privacy issues here are enormous. The 
Fourth Amendment implications are enormous. There is the harm 
that we can see about these devices and then there is the harm 
we can't, and that is what I am here to discuss.
    [The prepared statement of Mr. Rotenberg follows:]
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    Mr. Chaffetz. Thank you.
    We will now move to Dr. Brenner. Same thing, please pay 
attention to the light. If you keep your comments to 5 minutes, 
we would appreciate it. We now recognize you for 5 minutes.

                 STATEMENT OF DAVID J. BRENNER

    Mr. Brenner. Thank you, Mr. Chairman. My name is David 
Brenner and I am the Director of the Centre for Radiological 
Research at Columbia University and have about 30 years of 
experience in low dose radiation risk estimation. So I think 
one should preface any comments by saying that improved 
scanning of humans at airports is both desirable and clearly 
necessary.
    As you know, there are actually two different AIT, advanced 
imaging technologies, that are currently being deployed, that 
is x-ray backscatter scanners and millimeter wave scanners. And 
in many ways they operate in exactly the same way; the analogy 
is radar, they bounce radiation off the individual and the 
reflected radiations are what are analyzed. The difference, as 
in the names, is of the x-ray back scanners use x-rays; 
millimeter waves do not. And, at least at higher radiation 
doses, it is certainly proven that x-rays are a carcinogen. 
There is no such evidence for millimeter waves. So I will focus 
my comments on x-ray backscatter scanners.
    So let's talk about the individual risk, the risk of one 
average person going through the scanner once. The doses 
involved are extremely low, and that means that the risks, and 
the risks we are talking about are long-term radiation-induced 
cancer, are also extremely low. In fact, we can actually put 
some numbers on those risks. So the risk of an average person 
going through the scanner, the risk of a long-term induced 
cancer is like 1 in 10 million. Now, by any stretch of the 
imagination that is an extremely small risk. So I think I would 
agree with the TSA's characterization that in that context 
these devices are safe.
    Of course, there are caveats there. Frequent fliers, for 
example, who can go through a scanner 200 times a year, the 
risk would be 200 times that. Air flight personnel can go 
through the scanners 300 or 400 times a year, so the risks are 
correspondingly higher. And there are also populations that are 
more sensitive than average, and children are the biggest 
example there; children are more sensitive to radiation-induced 
cancer than adults are.
    So that is individual risk. So I would certainly go along 
with the general consensus that you can consider them safe in 
that context.
    But there is another way that we always need to think about 
risk, and that is what we usually call either public health or 
population risk, and that is to do with both the individual 
risk and the number of people exposed to that risk. If you have 
a small risk, but only a few people are exposed to that risk, 
there is not much public health concern. But if you have a 
small risk and very large numbers of people exposed, then you 
get a public health concern.
    And, of course, the issue here is that the TSA's plan now 
is the goal is to have everybody scanned with these new 
technologies, and number-wise that means 700 million scans a 
year at the moment, increasing in a few years to a billion 
scans a year. So we are talking about an extraordinarily large 
number of scanners.
    And you can make a population estimate. Well, how many 
cancers would you think would be produced by a year's worth of 
scanning if you had a billion scans? And the answer is around 
100, 100 cancers a year produced by a billion scans. It is 
important to stress there are a lot of uncertainties involved 
in that number, but it is the best we can do, and it is done 
with fairly standard approaches.
    So even with 100 cancers a year you could certainly make 
the argument, well, we are talking about risks and benefits 
here. The benefits of not having our airplanes blown up would 
in fact counteract that relatively small risk. But because we 
have two technologies here, the millimeter wave scanners and 
the x-ray scanners, and both are apparently equally effective 
at doing what they are designed to do, but the millimeter wave 
scanners do not have that potential for long-term population 
risk, but the x-ray scanners do. To our mind, it makes a lot of 
sense that we should be thinking more about using the 
millimeter wave scanners and less about using the x-ray 
scanners.
    And I will stop my testimony there. Thank you, Mr. 
Chairman.
    [The prepared statement of Mr. Brenner follows:]
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    Mr. Chaffetz. We applaud anybody who leaves a good solid 8 
seconds on the clock. We appreciate that. Thank you. Thank you 
for your testimony.
    Mr. Cate, you are now recognized for 5 minutes.

                   STATEMENT OF FRED H. CATE

    Mr. Cate. Thank you very much, Mr. Chairman. Can I have his 
8 seconds as well?
    Mr. Chaffetz. They have come and gone. [Laughter.]
    Mr. Cate. I would also like to thank you and Mr. Tierney 
and your colleagues on this committee. This is an 
extraordinarily important subject because the TSA is an agency 
that touches probably more Americans than any other agency 
which has the power that it has; and now, of course, it is 
touching them far more intimately and in an environment in 
which they either choose not to fly or to be subject to that 
scrutiny. And because so much of the work they do is governed 
by policies and procedures which are not made public, the 
review date on this equipment largely not made public, the 
oversight of this committee is exceptionally critical, perhaps 
more so than in any other area.
    I have been asked to address AIT effectiveness, and this is 
a somewhat complicated issue because we can talk about the 
effectiveness of machines or we can, I think, more profitably 
talk about the effectiveness of the machines as they add to a 
system of security that the TSA is carrying out at airports; 
and it is in that latter context that I think we can say quite 
safely that AITs have introduced a distraction into the 
security system that may actually be weakening, rather than 
enhancing, our security at airports.
    It is useful to remember what AITs do. They do not detect 
explosives. They do not detect firearms. They do not 
distinguish dangerous from ordinary materials. All they can do 
is identify what they consider to be anomalies on the body of a 
traveler. Now, that is a pretty limited function. It means if 
the traveler secretes something internally, or even in his or 
her mouth and closes the mouth, they can get through security 
without the AIT detecting it.
    It also means that if we define anomaly as the TSA 
currently does, to mean anything that looks different than what 
they would expect, we are generating millions of false 
positives a year. This is, of course, why we have to take 
tissues out of our pocket and dollar bills and candy. All of 
these are considered anomalies by the AIT.
    So despite the fact that these have been advertised in the 
American public on the basis they can see through clothing to 
really see if you present a risk, the opposite is in fact true. 
They cannot determine what a risk is. Therefore, we have turned 
the TSA largely into cloakroom attendants who are trying to get 
all of our anomalous goods off of us so that we can go through 
the machine, thereby leaving less for the TSA to have to 
screen.
    This high rate of false positives is one reason for 
concern. Another is that we in fact have a very difficult time 
clearing the anomalies that do go through the system, because, 
in fact, even with a pat-down search, we often don't know what 
those anomalies are.
    I mention in my written testimony, I was reminded of this 
last week, flying through Washington National Airport, I had 
dropped an aspirin in my pocket, forgotten it was there; the 
machine identified this as an anomaly. You would think this 
billion dollar technology could tell the difference between a 
tiny little aspirin and something that might pose a threat, but 
it cannot, so, therefore, this required a pat-down. The agent 
pulled it out and said what is this? I said an aspirin. He 
said, thank you, go right on through.
    Of course, he had no idea what it was. Once I had been 
subjected to the search, whether it was a dangerous chemical, 
whether it was an explosive, no earthly idea; he simply let me 
put it in my pocket and I walked through. The search had gained 
us nothing.
    That is actually true, in following on our first witness 
this morning, with most medical devices. And I experience this 
as a diabetic who wears an insulin pump. So I walk through. If 
I have the insulin pump on, I am then either subject to a 
complete pat-down, as if for some reason having an insulin pump 
makes it more likely that I will be a terrorist, or, if I take 
the insulin pump off, I am still left with a plastic cannula in 
my stomach that carries the insulin.
    This, of course, is an anomaly. I then become subject to 
another pat-down. The agent feels it and says what is that? I 
say, it is a cannula. OK, 8 out of 10 have no idea what that is 
anyway; they say thank you very much, they are invariably 
polite, and I walk on through. Like one out of five say, oh, 
you are on an insulin pump, they are invariably polite, and I 
walk on through.
    Now, when I asked the TSA what it is about cannulas that 
they are so worried, they say, well, we are worried you might 
have bombs inside of you and this would be the mechanism for 
setting it off. I have no idea how great that threat is. I do 
know that agent has no idea at the site of the AIT and the 
search whether that is true or not. All they know is that they 
detected a plastic piece of tubing coming out of my stomach and 
I gave them an excuse for it.
    Now, let me conclude by saying I too am enormously 
respectful of the difficult and important job the TSA has, and 
would also comment on the extent to which so many TSA agents 
that I encounter are invariably courteous and I think extremely 
well intentioned. I think they are as frustrated as we are by 
the irrational policies they are being asked to carry out.
    Thank you.
    [The prepared statement of Mr. Cate follows:]
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    Mr. Chaffetz. And even more impressive; only 1 second on 
the clock. The Chair cannot thank you enough for wrapping up 
your testimony.
    I challenge Mr. Baker to beat that goal here as we 
recognize him now for 5 minutes.

                 STATEMENT OF STEWART A. BAKER

    Mr. Baker. I appreciate being here.
    I would like to just make three or four points. First, we 
obviously can't start this analysis by what we would like TSA 
to do; we have to start with what Al Qaeda wants to do, and Al 
Qaeda clearly wants to blow up planes over the United States if 
it possibly can. It is very conscious of what our security 
protocols are and it shapes its weapons to meet them. If we 
stop looking for shoe bombs, they are going to use shoe bombs. 
If we stop looking for underwear bombs, they are going to use 
underwear bombs.
    Given that, my second point is, with that constraint, 
knowing it has to look for those weapons, and with one big 
caveat, TSA's measures are relatively effective and 
appropriately shaped to the nature of the threat. They have 
only changed their protocols, by and large, in response to 
demonstrated threats that were actual plots that could have 
brought down planes, and, by and large, each of the changes 
they have made is aimed at finding those particular weapons.
    I won't go into the privacy protections that have been 
built into the AIT systems; you will be hearing from the TSA 
about those. But they are, by and large, effective. I have been 
through pat-downs. I would take issue with people who describe 
it as akin to a sexual assault; I thought it was very 
professional. And while I would much prefer to go through a 
scanner, the pat-downs are not a shocking experience, at least 
they were not for me.
    But let me return to the caveat, because I think there is a 
way in which TSA is not doing what it should and could. It is 
still looking for weapons. All of the measures that it has 
adopted since 9/11 are focused on looking for weapons. And as 
Representative Cissna said, the result is we are all treated as 
though we are potential terrorists. We are all suspects, we are 
all treated the same way and screened in the same fashion.
    We do not look for terrorists, and the reason TSA does not 
look for terrorists is it doesn't know enough about the people 
that it is dealing with to actually identify even a risky 
traveler. It doesn't know as much as a State trooper who stops 
someone on the highway knows about the person they have just 
stopped. It certainly doesn't know as much as other DHS 
elements like the Customs and Border Protection Agency know 
about people coming across the border, where in fact they know 
more and are able to move the travelers much faster. It doesn't 
even know as much as United Airlines. If you said who is going 
to do a better job of using data to find terrorists, United 
Airlines would have more data to use than TSA. This does not 
make sense.
    And that brings me to my last point, which is we probably 
have taken the search for weapons as far as we can. I know 
there are people who think we have taken it too far. There 
certainly are possibilities for weapons. I don't think we have 
yet developed threat case aspirin bombs, but there are 
certainly possible weapons and places to hide them that our 
search for weapons is not going to find them.
    Therefore, we are going to have to spend more time looking 
for possible terrorists, risky travelers, and I would submit 
that most people who travel today would say if I could give 
information, if the fact that I was just discharged from the 
hospital after an operation was information that was available 
to TSA so they could verify my story and speed me through the 
line, that would be a much better step than having everyone 
screened in the fashion they are currently screened.
    So my suggestion for this committee, for the Homeland 
Security Committee is that we allow TSA to set up some 
voluntary programs. Are already giving people a choice between 
a pat-down and a scan. Why not let people say, you can have my 
travel information, you can have some basic background 
information on me. If that will make the screening more 
effective and faster, I would rather do that than go through 
the scan every time or the pat-down every time.
    So my suggestion for ways to improve the system that we 
have, and potentially reduce some of the intrusiveness of some 
of the screening, is to begin a process in which people can 
voluntarily agree that they will give up information in 
exchange for faster screening.
    Thank you.
    [The prepared statement of Mr. Baker follows:]
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    Mr. Chaffetz. Thank you. I continue to be impressed by the 
prompt nature of our panel. I will duly note that for future 
panels going forward. Nevertheless, we would love to move to 
the questioning phase. I am going to start by recognizing 
myself for 5 minutes.
    Mr. Baker, I think you make an important point, that there 
are many of us that are concerned that what happens at the TSA 
is more TSA screening theater than it is about truly targeting 
and highlighting those that pose the greatest risk. I, for one, 
believe that the challenge before this country is how do we 
become more effective and less invasive; that we should not 
have to give up all of our personal privacy in order to secure 
an airplane. Nobody needs to look at my kid or my grandmother, 
whatever, naked in order to secure an airplane. And we as 
Americans should demand that we raise the bar on both and 
protect people's personal privacy, and we shouldn't accept 
anything less.
    I would ask unanimous consent to enter into the record 
three articles that deal with the same topic. This first one, 
$19 billion later, the Pentagon's best bomb detector is a dog. 
The Pentagon, having spent $19 billion trying to ferret out 
improved explosive devices and the components thereof, have 
come to the conclusion that the very best way to actually find 
these bomb making materials, whether they be in a car or on 
somebody's person, is the good old fashioned dog. There is 
nothing like a good German Shepherd. They can be a whole lot 
less invasive, much less costly.
    My fear is that what these dogs don't have lobbyists. And I 
really do worry that we have propelled ourselves into this 
false sense of security that these machines work, that they are 
safe, and that we are not storing any images. And I have 
challenges on all three of those fronts because through my 
research and the information I have seen, I don't know that is 
true. So again I would ask unanimous consent to enter these 
three into the record.
    Mr. Tierney. No objection, but just a question, Mr. 
Chairman. Are those the actual studies or are those just 
articles about the study?
    Mr. Chaffetz. Those are the articles referencing the study.
    Mr. Tierney. Thank you.
    Mr. Chaffetz. Without objection, they will be entered into 
the record.
    Let's talk, particularly with this panel, and I want to 
start with you, Dr. Brenner, talk about the safety and 
efficacy. I worry about a couple of the more vulnerable people, 
the 65,000 people at the TSA that are around in close proximity 
to these machines on a daily basis. We also have people, 
pregnant women. We probably have pregnant TSOs that are there 
working at the airports. We have people with pacemakers, for 
instance. There is an article that was released that was in USA 
Today with a statement that came from TSA on a Friday saying 
that the machines that they had tested were emitting 10 times 
the allowable dose of radiation, or the normal dose of 
radiation.
    Do you have any insight into the release of that data and 
that information?
    Mr. Brenner. Well, coming to your final comment about the 
factor of 10, my understanding is that it was an arithmetical 
error in analyzing the data and probably----
    Mr. Chaffetz. Are you aware of who actually conducted the 
test on the machine?
    Mr. Brenner. No, I am not.
    Mr. Chaffetz. My understanding is that the people that 
actually conducted the test on the machines was the 
manufacturer of the machines. Do you have any insight into 
whether or not, how that strikes you?
    Mr. Brenner. Well, it doesn't give you a great deal of 
confidence, of course.
    Mr. Chaffetz. I guess, as a Member here, this concerns me. 
The people conducting the test on the machines are the 
manufacturers, and even they have come to the conclusion one-
third of their machines are emitting 10 times. Now, they will 
say that is a mathematical error, it was a training error, we 
didn't calculate it properly, but we can't make mistakes with 
pregnant women. You can't make mistakes with people with 
pacemakers. What would be the effect of somebody who is 
repeatedly, in high doses, exposed to that type of radiation?
    Mr. Brenner. Well, let me come at your first comment. It is 
very true that the general scientific community does not have 
access to a measurement from these machines, so we are reliant 
on studies that are commissioned either by the TSA or by the 
manufacturers.
    Mr. Chaffetz. Mr. Rotenberg, what has been your experience 
in trying to access that type of data and information along the 
way from the TSA?
    Mr. Rotenberg. Actually, Mr. Chairman, we recently 
submitted a FOIA request to the agency to make those materials 
available. We don't have expertise in that field, but it is our 
view that information should be available to Dr. Brenner and 
others so that those with the expertise are able to provide 
some independent judgment.
    Mr. Chaffetz. Mr. Rotenberg, if I could, and Mr. Cate, very 
swiftly, the 9th Circuit Court of Appeals has allowed TSA pat-
downs to be deemed as legal as long as it is ``limited in its 
intrusive as is consistent with the satisfaction of the 
administrative needs that justify it.'' Would you care to 
comment on that very briefly? My time has expired.
    Mr. Rotenberg. Yes. Just very briefly, both the 9th Circuit 
and the 3rd Circuit, this was an opinion by then Judge Alito, 
have said that these techniques have to be minimally invasive 
and effective, and our case against the TSA is that in fact 
they meet neither test.
    Mr. Chaffetz. Mr. Cate.
    Mr. Cate. Thank you, Mr. Chairman. I would just echo that 
and add when the National Academy of Sciences panel met for 2 
years to look at the question of programs such as this, it 
recommended an option of a framework that Congress would 
require agencies wanting to deploy equipment like this for to 
determine both intrusiveness into privacy and effectiveness. It 
would do this on the record to the extent consistent with 
national security goals and it would do it in a way so that 
Congress could provide effective oversight. Despite the fact 
that DHS actually paid for that study, it has not implemented 
the framework.
    Mr. Chaffetz. Thank you. My time has expired.
    I now recognize the gentleman from Massachusetts, Mr. 
Tierney.
    Mr. Tierney. I just want to comment, Mr. Chairman, the 
panel did a much better job of keeping the time than you did. 
[Laughter.]
    And not being a stickler for time, I don't say that for 
anything other than its humor.
    Mr. Chaffetz. Duly noted. Guilty as charged. I agree.
    Mr. Tierney. I think we need to take the time on this 
serious issue. But you all did much better, so thank you.
    Let me just follow through, Mr. Cate. First of all, I 
thought your testimony was very interesting and very good, and 
I thank you for it, but I thought one of the interesting parts, 
are you an expert on the technical security aspect or on 
privacy aspect?
    Mr. Cate. I am certainly an expert on the privacy aspects. 
I am also an expert on security systems, but not the technical 
side of this. That is why I didn't direct my testimony to that 
point.
    Mr. Tierney. I thought a number of the comments you made, I 
was expecting the privacy angle, and then you hit it from the 
other angle, and I thought your comments were very interesting. 
But none more interesting, I think, than the last comment that 
you made about there having been a recommendation by the 
National Academy of Sciences for a proposed framework for 
evaluating the effectiveness and privacy impact of any new 
systems and technologies. And your testimony is that the TSA is 
not doing that on every plan that they put forward?
    Mr. Cate. That is my testimony, sir. I would say, of 
course, if they are doing it in a classified environment, I 
would not know that.
    Mr. Tierney. Right. I think we will have to ask them that.
    Mr. Baker, do you know whether or not that is accurate?
    Mr. Baker. I don't know whether the particular framework 
recommended by the National Academy of Sciences was followed, 
but certainly these machines were put through substantial 
testing even at the end of the Bush administration. So they 
have been in testing for quite some time.
    Mr. Tierney. But we are just not sure whether it was the 
NAS protocols or not.
    Mr. Baker. Yes. And I have to say, you know, everybody has 
an idea for how you could do this testing better, slower, have 
public comment, have a judicial review, but we had an underwear 
bomber in Christmas of 2009. These machines were deployed in 
Thanksgiving of 2010. That was remarkably slowly. If we had 
waited for Mr. Cate's process, we would still be standing 
around with our hands in our pockets.
    Mr. Tierney. All right.
    Dr. Brenner, can I just clear one thing up with you, 
because I think it is important on that. To my knowledge, 
nobody refutes the fact that there was a mathematical error 
made by the manufacturer when he tested that. Am I right in 
saying that?
    Mr. Brenner. Yes, I believe so.
    Mr. Tierney. OK. I mean, I just think it is important that 
we understand what the situation is. If there was a 
mathematical error and whether or not that makes them really, 
really, really, really bad on math is one question, but I think 
we should just get the facts.
    Now, you testimony raises really potentially serious public 
health concerns, so I want to make sure I understand it 
correctly on this. The American College of Radiology released a 
statement and it said ``it was not aware of any evidence that 
either of the standing technologies that the TSA is considering 
would present significant biological risks for passengers 
screened.'' Before that the Food and Drug Administration, the 
National Institute for Standards and Technology, and the Johns 
Hopkins University Applied Physics Laboratory all determined 
that the radiation doses for individuals being scanned by x-ray 
backscatter machines was minuscule and far, far below the 
accepted industry guidelines.
    So, according to those studies, one x-ray backscatter scan 
is equivalent to roughly 2 minutes of traveling in an airplane 
at altitude, 1 hour spent outside, generally outdoors, or 
eating one banana. Do you disagree with any of those three 
studies that say the total radiation exposure provided by one 
x-ray backscatter scan is roughly equivalent to those basic 
every day activities?
    Mr. Brenner. Well, I don't think it is equivalent to eating 
a banana, but I do agree in general with the comment that the 
individual risk from a single traversal of the machine is 
extremely small. In fact, I gave you a risk estimate of one 
chance in 10 million, which is, by any stretch of the 
imagination, extremely small. So I don't have any disagreement 
with any of those comments, really, except the banana.
    Mr. Tierney. Now you say that your best estimate is that 
one billion x-ray backscatter whole body imaging scans will 
potentially cause 100 cancers per year.
    Mr. Brenner. Yes. You multiply a billion by 1 in 10 
million, and that is what you get.
    Mr. Tierney. So does that mean that 100 people a year will 
be getting cancer from stepping outside or from taking 2 
minutes in an airplane?
    Mr. Brenner. There is no doubt that a lot of cancers that 
we get in our everyday existence, 40 percent of us get cancer, 
are radiation-induced. We know this to be true. But those are 
unavoidable. The question is, well, this is potentially 
avoidable.
    Mr. Tierney. OK. No, I get it. I am just trying to 
understand it better. So, yes, you might have 100 cases for 
being outdoors; yes, you might have 100 cases for spending 2 
minutes in an airplane at altitude; and, yes, maybe there would 
be some impact for going through these scanners on that, but it 
is all about the same.
    Mr. Brenner. I would agree with that. I think the general 
issue is because you have one risk in your life, that doesn't 
mean you have to accept other risks in your life when you don't 
have to.
    Mr. Tierney. And you say it is perfectly possible that the 
individual risk could actually be significantly lower or, 
indeed, zero, but that it is also quite possible the individual 
risk could actually be significantly higher.
    Mr. Brenner. Yes, I think that is true. Trying to estimate 
with these very low doses is very hard to do. All we can do is 
make a best effort.
    Mr. Tierney. So did you do your own test on the emissions 
caused by these x-ray backscatter machines or did you base your 
estimates just on estimates of the emissions?
    Mr. Brenner. As I commented to the chairman just now, it 
would be great if the scientific community actually had access 
to these machines. We do not.
    Mr. Tierney. Thank you.
    Yield back, having used less time than you, Mr. Chairman.
    Mr. Chaffetz. Without noting the time, we will go ahead and 
move to recognizing the gentleman from Arizona for 5 minutes.
    Mr. Gosar. Dr. Brenner, I, in my former life, was a dentist 
for 25 years, so we do understand that there is all cumulative 
aspects of all radiation, am I not right?
    Mr. Brenner. Yes, that is correct.
    Mr. Gosar. And so cumulatively how would you compare this 
to a full series of x-rays, using the same type of radiation? 
Put it in layman terms.
    Mr. Brenner. The doses are much lower than a series of even 
a dental x-ray, even when they are ideally done.
    Mr. Gosar. The key is ideally done right.
    Mr. Brenner. The key is ideally done.
    Mr. Gosar. Because a lot of the scientific method is based 
upon peer reviewed applications, is it not?
    Mr. Brenner. Correct.
    Mr. Gosar. And not having that availability, we are 
subjected to the industry's oversight, are we not?
    Mr. Brenner. We are in terms of estimating, trying to get a 
best handle on the actual radiation exposures. Trying to then 
go from radiation exposure to risk is another story that we are 
not particularly dependent upon industry. But the basic thing 
you start with is, well, what was the radiation dose, and there 
is certainly uncertainty there.
    Mr. Gosar. Well, it seems to me the point that we keep 
bringing up in this committee is self-reporting numbers based 
upon government agencies. So we are reliant on what the 
government gives us. And it doesn't seem that we are parlaying 
those or comparing apples to apples; a lot of times we are 
comparing apples to tangerines. So we are having some problems 
with our data, and that seems to be the biggest problem here.
    Now, Mr. Baker, you alluded to something very interesting 
to me. I am from Arizona as well, and you talk about a multi-
tier task effect, that TSA is not really gifted in regards to 
analyzing certain factors of passengers, and actually noted 
something about border security. Isn't there a place here for 
interagencies to be developing cross-referencing of looking at 
passengers, and what would hold that up?
    Mr. Baker. Absolutely there is. CBP has access to a lot of 
information and uses it well. They essentially scrutinize 
closely about one out of 200 of the people who cross the 
border, and the rest just walk through at 30 seconds or less 
showing their passport. And providing more of that information 
to TSA so that TSA can make decisions about the kind of 
screening it will do for passengers is something that should 
happen.
    It has begun to happen, I understand, in the context of 
flights from Europe to the United States; that is to say, it is 
not so much that the information is shared, but that there are 
shared decisionmaking processes. I think TSA will be a little 
nervous about getting that information because, in the past, 
Congress, Fred Cate, EPIC, have made a big fuss about them 
having any information about travelers, claiming that TSA has a 
travel dossier on us. So it would be very helpful if they got a 
certain amount of authorization or encouragement to actually 
use the data in a constructive fashion rather than just try to 
do it on their own with CBP.
    Mr. Gosar. Mr. Brenner again, based upon the quality of the 
image, you know, I am sitting here with a dental x-ray, and if 
I don't have qualifications or the parameters set on my 
machine, they are worthless to me. And we have now come about 
seeing the experts talking about we don't really know what is 
in the general parameters of this scan; we are looking for 
abnormalities. In your opinion, does it justify the spending of 
almost a half a billion dollars on these machines and going 
further with this?
    Mr. Brenner. Well, you are asking me about the efficacy of 
the machines, and I don't think I am perhaps the right person 
to address that, I am no expert. There have certainly been 
studies where they have analyzed the quality of the images, 
worked backward to figure out, well, how much radiation dose 
must have been given to produce those images, actually from 
Arizona State, and the conclusion was the doses had to be 
higher than the doses that the manufacturers are suggesting.
    Mr. Gosar. Mr. Cate, do you have an opinion on that?
    Mr. Cate. On the broader issue of whether these are 
ineffective, are they worth the risk, I would say they are not 
worth the risk and would in fact would, much to his annoyance, 
support Mr. Baker's earlier point, which is in fact knowing 
more about travelers or certainly those that wish to have more 
known about them would be a far more effective way. One of the 
things we always say in security is you want to focus your 
resources on the greatest risk. We have built the entire TSA 
system around doing the exact opposite.
    Mr. Gosar. Thank you very much.
    I yield back my time.
    Mr. Chaffetz. The gentleman yields back within an 
impressive timeframe. Thank you.
    Now recognize the gentleman from Maryland for 5 minutes.
    Mr. Cummings. Mr. Baker, I want to just followup on some of 
the questions that our ranking member, Mr. Tierney, asked. If 
you recall, he was asking about a number of issues, and there 
seems to be some--they look at these measurements in different 
ways, so we are in a situation where Congress has to make 
critical decisions about our Nation's homeland security and the 
public health based on scientific evidence, and there seems to 
be all kinds of ways they do these measurements, and questions 
have come up with regard to those measurements.
    But considering the conflicting scientific estimates on 
this issue and the significance of the security risk, what do 
you think, Mr. Baker, should be the next steps that Congress 
should take? Should we request further scientific analysis on 
the actual results of these machines, instead of just using 
extrapolated estimates?
    Mr. Baker. I am not a medical expert, so I am cautious 
about expressing a view on that. I can tell you there are some 
costs to delay. Not only are the risks to the traveling public, 
but for those who are worried about waste and abuse in 
government. Right now there are two competing machine suppliers 
to do body imaging. If you say we are not going to buy from a 
people who use backscatter x-ray, then you are giving the other 
machine supplier a monopoly and you are going to get a price 
that reflects that monopoly. So it will have a significant 
cost, and I think you need to bear that in mind as you make a 
decision.
    Mr. Cummings. Professor Cate, a privacy law professor at 
Indiana University stated in his written testimony, ``Advanced 
imaging technology is generally not effective at contributing 
to greater security airplanes and airports. In fact, it appears 
that the way in which the TSA has deployed these machines 
actually may be undermining the security of the U.S. air 
transportation infrastructure.''
    Mr. Baker, do you agree with Professor Cate's estimate?
    Mr. Baker. No. I think that these clearly add to our 
security. Perhaps if you compared this technology to some 
imaginary technology that was perfect, you would say, well, 
these machines are not as good as that imaginary technology. 
But if you compare them to the magnetometers that are the 
alternative for us, they are clearly much more effective at 
finding things that now could be used as weapons that couldn't 
be used 20 years ago, and, therefore, they are very likely the 
best alternative we have today.
    Obviously, it would be great to find something better. I am 
a big believer in dogs, but they only really work for about 
half an hour, then they have to go play, and they cost $30,000 
or $40,000 a year on that basis. So it is a great solution, 
although I guess I have to say I have a golden retriever whose 
searches of me are substantially more intrusive than the TSA 
ever has been. Therefore, I say we should continue to look for 
new technologies. But this may be the best we have for 
deployment in the next 5 years.
    Mr. Cummings. TSA has evaluated and tested advanced imaging 
technology in the field since 2007 and deployed the machines 
widely in 2010. Mr. Baker, in your experience, have the AIT 
systems been adequately tested for field use and are you aware 
of any other technology that is readily deployable on a mass 
scale and has a reasonable chance of preventing a terrorist 
attack from explosives brought on to an airplane?
    Mr. Baker. I am not. You know, we did do quite a bit of 
testing in 2007, 2008. We had high hopes for the puffer 
machines which would use explosive detection, basically an 
electronic nose, and they just didn't work reliably enough. The 
AITs are much more reliable. They are not perfect, and I would 
be happier if we could use chemical sampling than the technique 
that AIT uses, but we haven't found a way to make that work 
effectively yet.
    Mr. Cummings. Finally, in his testimony, Mr. Rotenberg 
advocates that TSA or Congress should suspend the use of AIT 
for primary screening. In 2009, legislation passed the House 
that would restrict the use of AIT to secondary screening only. 
In other words, only if the change in your pocket set off the 
metal detector would you be directed to a whole body scanner. 
Mr. Baker, based on your experience, does it make sense to use 
the AIT only for secondary screening?
    Mr. Baker. No. I think that is nuts. The whole point of the 
underwear bomb is that it didn't set off the magnetometer 
because it was designed not to set off the magnetometer. So 
only using a technology that would find an underwear bomb when 
somebody has set off the magnetometer is to basically use it in 
context where it doesn't matter.
    Mr. Cummings. I see my time has expired. Thank you, Mr. 
Chairman.
    Mr. Chaffetz. The gentleman yields back.
    Now we recognize the gentleman from Texas for 5 minutes.
    Mr. Farenthold. Thank you. I would appreciate it if the 
witnesses would indulge me as I kind of bounce around with 
several different questions.
    Mr. Baker, you have indicated that you have undergone the 
pat-down and did not find them intrusive. Was this just the 
pat-down you took when you opted down, or have you triggered an 
anomaly in one of the machines and received the secondary, more 
intrusive pat-down?
    Mr. Baker. I have gotten the opt-out search and I have set 
off the anomalies with change in my pocket, but the search 
consisted of having to show what had set off the anomalies. So 
I am confident there are certain kinds of anomalies that would 
produce a more detailed search, but I haven't been through it.
    Mr. Farenthold. I have. You don't want to be through it.
    This one is to Dr. Brenner. Have you done any studies in 
regard to exposure of the TSA agents who are there? I know in 
typical radiological applications x-ray technicians are 
required to wear detection devices to determine their 
cumulative exposure to radiation. Are we doing anything to 
protect our TSA agents from radiation that may spill out of 
these machines?
    Mr. Brenner. Well, of course, a film badge, film monitor 
won't protect the TSA agents, but it will certainly give an 
estimate for future use as to whether they are being exposed, 
and it makes no sense to me at all that they are not wearing 
film badges. In any academic setting, in any medical setting, 
anybody who has any association with ionizing radiation wears a 
film badge.
    Mr. Farenthold. I don't know if you are married or not, but 
I am going to assume you are. Would you let your pregnant wife 
go through one of these machines?
    Mr. Brenner. I probably would not.
    Mr. Farenthold. OK. And you indicate that the backscatter 
x-ray is more dangerous than the millimeter wave technology. 
Are there any risks associated with the millimeter wave 
technology we are aware of at this point in time?
    Mr. Brenner. Well, as scientists, we are trained never to 
say something is perfectly safe, but there is no evidence of 
risks associated with a millimeter wave and there are no 
biological mechanisms that are established that would lead us 
to conclude that there are risks associated with them, which is 
in contrast to the x-ray situation, where we know exactly how 
x-rays cause cancer.
    Mr. Farenthold. Great.
    Mr. Rotenberg, your EPIC organization is a privacy advocacy 
group that I have been familiar with for some time, and I 
understand your stance of the intrusiveness of these, 
especially the ones that show the images, not the Gumbies. What 
would your organization's stance be or, if you can't speak for 
your organization, your personal stance be on actual voluntary 
trusted traveler program where the government is able to data 
base certain information about you to allow you to bypass this 
type of invasive scanning?
    Mr. Farenthold. We have studied those programs as well, and 
I think what we have concluded is that there is simply no 
silver bullet. For example, the clear traveler program, which 
was a registered traveler program, that company, which 
collected a lot of biometrics on frequent fliers, over 100,000 
deep background checks so that they could get that 
certification, go through the lines more quickly, actually 
found themselves in financial trouble.
    Mr. Farenthold. They went out of business right after I 
gave them my credit card.
    Mr. Rotenberg. Yes.
    Mr. Farenthold. I can sympathize with that.
    Mr. Rotenberg. But, you see, the story gets worse, because 
having collected this extraordinary amount of personal 
information used to conduct the authentication at the airport, 
that was their chief business asset, and they turned around and 
wanted to sell the data base that they had acquired on American 
travelers, and it took a class of the customers of the company 
to actually go into court in New York and say you can't do 
that, you can't sell our personal information that way.
    So my warning here, and while I don't actually disagree 
that I think a lot could be done to improve the assessment of 
passengers, it is one of the recommendations of the IATA, this 
particular approach has been tried and there are some risks.
    Mr. Farenthold. Do you think the airlines might be a better 
organization to do it? I know Continental Airlines keeps pretty 
good track of me, and every time I get 35,000 miles they give 
me a free trip.
    Mr. Rotenberg. I think it is 25,000 on United, by the way.
    Mr. Farenthold. Well, hopefully we will get the better end 
in the merger there.
    Mr. Rotenberg. That may be. Well, yes, this is one of the 
things that has always seemed a little odd to me. In other 
words, if the concern is trying to make sure that the people 
you know, which is another way of saying the people you can 
trust, go through more quickly, the airlines do have that 
information; those are the frequent fliers. And the people you 
know less well are the ones you probably want to look over a 
little bit more closely. That is actually the basis of the 
approach that is now recommended by the International Aviation 
Transportation Association.
    Mr. Farenthold. Thank you.
    I yield back my negative 2 seconds.
    Mr. Chaffetz. I thank the gentleman. The gentleman yields 
back.
    We now recognize the gentlewoman from Texas for 5 minutes.
    Ms. Jackson Lee. Mr. Chairman, thank you very much.
    Gentlemen, thank you for your testimony. I am going to ask 
some rapid-fire questions, if I might.
    Dr. Brenner, is there anything that we can do to fix the 
AIT machines, in your opinion?
    Mr. Brenner. Well, recall there are two different types of 
machines, the millimeter waves, that as far as we don't have 
long-term cancer risks associated with them.
    Ms. Jackson Lee. Right, and the present ones?
    Mr. Brenner. The x-ray machines potentially do. And 
certainly one of the things that we should do is have these 
machines available to the general scientific community to study 
them, rather than just have to use secondhand information.
    Ms. Jackson Lee. And you concede the point that some of the 
filings and reporting were incorrect in term of the amount of 
radiation? You concede that point?
    Mr. Brenner. Well, I think there is a more general 
suggestion that the doses are rather higher than the 
manufacturers are stating, apart from this recent issue.
    Ms. Jackson Lee. Well, you have heard the testimony that 
some of the reporting was incorrect, right?
    Mr. Brenner. Yes, I have.
    Ms. Jackson Lee. And they have corrected it and, therefore, 
it would be under what might be damaging or troubling.
    Mr. Brenner. Well, certainly in the x-ray world we believe 
there is actually no threshold below which the risk becomes 
zero.
    Ms. Jackson Lee. And your comment is, as you talked about 
the two distinctive aspects of radiation, your concern with the 
present current technology, AIT, is what?
    Mr. Brenner. The concern is that although the risk is very, 
very small, as I think everybody agrees, for any individual 
going through the scanner, if you have a billion scans a year, 
which is where we are heading, a very large number of scans, 
each with a small individual risk, will ultimately lead to a 
population----
    Ms. Jackson Lee. Well, would you concede--and I take issue 
with the billion, though I know that our previous witness 
indicated that travel for her is airplane, would you concede 
that it would be important to mend it and not end it, to try to 
mend the situation that we are addressing? Is security an equal 
concern as well?
    Mr. Brenner. Of course we are trying to make a risk-benefit 
balance and that is, hence, my comment about millimeter waves 
relative to x-rays.
    Ms. Jackson Lee. And I thank you. Amend it, not end it.
    Dr. Baker, excuse me, Mr. Baker, are you familiar with the 
lone wolf concept? I know that we have seen each other before. 
How are you?
    Mr. Baker. Very good, thank you.
    Ms. Jackson Lee. Are you familiar with the individual acts 
of terrorism don't need to be in a crowd? Have we ever seen 
before the shoe bomber that kind of incident? Was that a first 
for the United States?
    Mr. Baker. That was a first.
    Ms. Jackson Lee. Was it a first for the United States on 
Mr. Abdullah on that fateful Christmas Day, when we discovered 
someone had enhanced their body?
    Mr. Baker. That was a first as well.
    Ms. Jackson Lee. Then can you suggest, if I could very 
quickly, refer you to Administrator Pistole's comment about the 
idea of a multilayered concept of imaging, advanced imaging 
technology fits into the multilayered approach of security? Is 
that important?
    Mr. Baker. I think it is. We have to give Al Qaeda a strong 
sense that their old tactics won't work, and the advanced 
imaging technology is the only approach, other than some very 
intrusive pat-downs, that make us reasonably comfortable that 
Al Qaeda can't slip bombs into their underwear and get onto 
planes. So, yes, I think it is our best current use in the 
context of a broad layered approach.
    Ms. Jackson Lee. And you concede that we live in a new 
world, a different world?
    Mr. Baker. Absolutely.
    Ms. Jackson Lee. Mr. Rotenberg, I have been a strong 
champion of the Fourth Amendment and the opposition to 
unreasonable search and seizure. You testified that AIT may be 
capable of storing and transmitting images of passengers. TSA 
has testified that both types of machines employed by TSA are 
currently incapable of storing or transmitting images. Do you 
dispute TSA's testimony that the machines are currently 
incapable of storing or transmitting images?
    Mr. Rotenberg. Absolutely.
    Ms. Jackson Lee. On what basis?
    Mr. Rotenberg. Page 9 of my testimony. That is the 
technical specifications for the devices.
    Ms. Jackson Lee. Are you suggesting that you want to 
completely eliminate a major force in security or would you 
suggest that we amend it and not end it?
    Mr. Rotenberg. Well, to be clear, I think our techniques 
have to be effective and I think they have to comply with the 
Fourth Amendment.
    Ms. Jackson Lee. Let me just indicate to you that I am 
introducing legislation that will require TSA to retain, but 
also indicate that they cannot in any way hold these images or 
they have no capacity to do so. Would that be of comfort to 
you?
    Mr. Rotenberg. I would like to see the technical 
specifications. I am saying if you look at page 9, it will tell 
you exactly what they can do. They can enable/disable the image 
filters; they can access the test mode; they can export raw 
image data in test mode. That is what the TSA required that the 
vendors provide to them.
    Ms. Jackson Lee. Well, the TSA disputes that.
    Mr. Chairman, I would just end on saying that I think Mr. 
Rotenberg's representation is his, and we will look forward to 
making sure that we fix, but not end, this problem, and yield 
back.
    Mr. Chaffetz. Thank you. The gentlewoman yields back.
    We now recognize the gentleman from Florida, the chairman 
of the Transportation Committee, Mr. Mica, for 5 minutes.
    Mr. Mica. Thank you.
    When I had the responsibility for putting together a 
transportation security system for the United States after the 
9/11 attacks, of course, I looked for different models. The 
British probably were the best in advising us because they are 
the only country that had a countrywide system for screening 
and also they had been plagued by terrorists, attacked 
domestically for years.
    Additionally, I contacted various Federal agencies and I 
talked to those who run the Federal maximum security prisons 
and other State organizations who also dealt with probably the 
most invasive types of screening of both prisoners and people 
who visited them, and I was told by them that even with body 
cavity searches, which I don't even want to describe here, with 
screening with electronic equipment, that both drugs, 
contraband, weapons all penetrated the system. I have been a 
strong advocate of using whatever means we can put in place 
that would provide us security, and I do believe in a layered 
system, but we have launched several efforts, very expensive.
    When the Chechen women bombers destroyed aircraft, we were 
seeking a quick solution. We knew we didn't have deployed at 
the airports the equipment, and I was told the puffer would be 
the answer. I went to New Jersey and they tested the puffer. 
Went through the puffer at least three times with some material 
that should have set it off; none of the three times did it set 
it off.
    But I was assured it was just a technical problem and that 
they would be used. They started, as you know, an expensive 
deployment; was not advised when they were deploying the 
backscatter and the millimeter wave, although I did encourage 
them to look at millimeter wave, I must say, and have been 
supportive of using advanced technology. But I think the 
important thing is testing.
    Now, I was told the puffers would work and they didn't 
work. God only knows where they are sitting. I ask the 
committee staff to look at that fiasco. Now we are buying half 
a billion dollars worth of equipment. I have had that equipment 
tested. The results are classified and I ask the Members to 
review that.
    I can tell you the equipment is badly flawed; it can be 
subverted. Our staff went out and our staff subverted the 
equipment, they inform me, in a very simple manner. Mr. Pistole 
said, well, it may require more training or something, and GAO 
was clever. What the hell does he think the terrorists are? 
Terrorists have gone from a very sophisticated shoe device, and 
I visited, orally interviewed people, saw what took place.
    I was awakened in Texas the morning of the liquid bombers 
and we put in measures to try to deal with that. The diaper. I 
had, in January, tested the system for the pat-down, which is 
supposed to catch what this equipment doesn't catch, or be 
another device. I can tell you I can thwart the system not only 
visually, and not that cleverly, but most folks know that they 
are not going to touch your junk, and more than enough 
dangerous material can get through because that system is 
flawed too.
    I am very concerned again about the testing of this 
equipment before it was deployed. It looks like we have a 
bigger puffer fiasco on our hands in buying this. If it wasn't 
just the half a billion, it is going to be another half a 
billion because TSA couldn't possibly use existing personnel or 
transfer some of the positions, the 3,770 bureaucratic 
positions in Washington to get their butts out working online. 
Of course, they are making $105,000, on average, a year, and 
Mr. Pistole told me yesterday, in testimony, when I went before 
the Appropriations Committee, that they start the average 
screener at $28,000 a year. Something seems out of kilter.
    We have also seen them move from diapers now to cargo, so I 
think they are slightly bypassing these machines, would you 
say, if they are planning to blow up planes over the sky with 
electronic remote devices? Would you say that would be 
effective deterrent with these machines? I see all negative. 
Let the record reflect all negative head shakes there.
    Finally, with surgical implants, I leave this question with 
you. We know that now the folks that gave us some of these 
devices and attempts are moving to body cavity inserts, which 
we saw in Saudi Arabia, and surgical implants. Does this 
equipment, can you tell me, will that detect that kind of a 
threat?
    I see Mr. Cate and Mr. Brenner, you need to verbalize this 
for the record.
    Mr. Cate. No, it cannot.
    Mr. Mica. Mr. Brenner.
    Mr. Brenner. I would confirm that, no, it cannot, it can't 
penetrate.
    Mr. Mica. Mr. Rotenberg.
    Mr. Rotenberg. No, it would not.
    Mr. Mica. Mr. Baker, you care to answer?
    Mr. Baker. I agree.
    Mr. Mica. Thank you. I yield back.
    Mr. Chaffetz. The gentleman's time has expired.
    We now recognize the gentleman from Massachusetts for 5 
minutes.
    Mr. Lynch. Thank you, Mr. Chairman. I want to thank the 
witnesses for their help with the committee.
    There are real privacy concerns raised by the use of the 
advanced imaging technology and we are all looking for ways to 
maximize security while minimizing intrusions on that privacy. 
I understand that TSA is currently testing software commonly 
used in Europe on AIT machines that shows only a screen with a 
human stick figure on it, something like this. Actually, it 
looks more like Gumby than a stick figure.
    But this is a way of identifying an anomaly on a passenger 
without revealing particular details of that person's body, and 
I think it is a better way, from a privacy standpoint, to allow 
an officer to physically inspect the area of the body where the 
anomaly occurred. But at no point in this system would any 
human being ever see an actual picture of the passenger being 
screened, and, once approved, TSA would be capable of deploying 
this software across many of its machines in a matter of weeks 
or months.
    Mr. Rotenberg, would the employment of this software 
resolve the principal AIT privacy concerns raised by EPIC in 
your litigation against TSA?
    Mr. Rotenberg. Mr. Lynch, it wouldn't. And let me just make 
a few brief points. First of all, regarding the European 
experience, it is important to note that very few European 
countries are adopting AIT. Manchester Airport has it; Schiphol 
has it, which is where the automatic target recognition 
software is being deployed. Italy tried it and then dropped it.
    We are really alone right now, at this point, in treating 
air travelers as we do in this country. But people do point to 
Schiphol because they have deployed ATR. Now, it is a different 
configuration. The other thing that you need to know about this 
is that the TSO will not be in a remote viewing location; the 
TSO will actually be standing now in front of the passenger, 
looking at the so-called Gumby image, and then identifying on 
the person now in front of them, by the way, those areas of the 
body that alert for an anomaly, and that will then lead to the 
subsequent pat-down to try to resolve what the anomaly is.
    Now, you could say that is less intrusive because the image 
is not as detailed, but, of course, what the TSA told us 
previously was that the reason they had the TSO in a remote 
viewing facility was to avoid the problem of the TSO viewing 
the passenger. Now you are back into that realm with the ATR. 
The other problem is that the devices will still record the 
image in its unfiltered form.
    All of these techniques, the ATR is simply a photo 
processing technique. It is a bit like when you have a digital 
camera. You take a color photo; you can make it black and 
white, you can invert it, you can add sepia tone, if you want 
to. But what you started with is the actual image, and that is 
still what TSA will have, and that remains our concern. We 
think more needs to be done to try to resolve the problem of 
the unfiltered image that the devices will capture.
    Mr. Lynch. I see. Well, if there is no need, if they are 
not using the detailed image to make their assessment, I am 
assuming that it would be less problematic to get rid of that 
part of it, then.
    Mr. Rotenberg. Well, you see, it is a bit of a tradeoff. 
The image that is displayed on the screen will be less 
detailed, no dispute. On the other hand, the image that is 
captured will be the same, and the TSO, instead of being in a 
remote room, will now be in front of the passenger. So that is 
roughly where you will end up.
    Mr. Lynch. Well, the current system, the TSO is in front of 
the passenger.
    Mr. Rotenberg. They have two, actually. There is the TSO in 
front of the passenger, and he is communicating by headset with 
another TSO who is in the remote viewing room, and the TSO in 
the remote viewing room says we have a problem under the right 
arm, you need to look there.
    Mr. Lynch. But what I am saying is that neither TSO under 
this scenario would be looking at the detailed image of the 
passenger.
    Mr. Rotenberg. That is correct; it will be a generic 
figure.
    Mr. Lynch. I don't see how the privacy dimension is 
encountered here if both TSOs are looking at this.
    Mr. Rotenberg. Right.
    Mr. Lynch. What does it matter whether the person is in 
front of the passenger or not if they are not looking at a 
detailed image of the passenger?
    Mr. Rotenberg. Well, because the device will capture----
    Mr. Lynch. I understand that part of it. The technology. 
And they are not using the detailed imaging for any purpose in 
this process, so I imagine that could be deleted.
    Mr. Rotenberg. It could be. I want to point out also, in 
terms of the rollout of the ATR, when Administrator Pistole was 
asked about the use of this technique last November, I think 
this was in front of the Senate Commerce Committee, he 
expressed a lot of concern. He said it was, at least in 
testing, creating a lot of false positives. Now, it may be that 
TSA has solved this.
    Mr. Lynch. My time has expired. Thank you.
    Mr. Chaffetz. The gentleman yields back.
    We now recognize the gentleman from California, the 
chairman of this committee, Mr. Issa, for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    It has really been helpful to hear the questions and 
answers coming before this, particularly, Mr. Lynch, I 
appreciate yours, and I certainly appreciate the Transportation 
chairman, because I think a lot of people have worked hard in 
understanding how thoroughly useless this technology currently 
is. Now, that is an assumption I am making, but let's walk 
through it so that I make sure that I have an agreement.
    At the current time, with 57,000 TSA professionals, we only 
check a small fraction of the passengers, isn't that true? If 
you look at all the places, including San Diego, where, to be 
honest, we have all of them, all the stations are there, except 
in order to not back up well passed downtown San Diego, they do 
random, they do anecdotal, if you will. So, first of all, from 
a security standpoint, we are not secure if the vast majority 
of passengers do not go through these if they are necessary. Do 
you all agree with that?
    Mr. Cate. Yes.
    Mr. Issa. OK.
    Mr. Baker. No. I am sorry, I do not agree with that.
    Mr. Issa. You don't agree? You think if we just pick up 
half of the people we are going to stop a bomb?
    Mr. Baker. Random screening has a real value for deterring 
terrorists; they don't want to take the risk that they will get 
picked up by the random----
    Mr. Issa. These people are willing to blow themselves up 
and you think they are scared of getting caught?
    Mr. Baker. Absolutely. They do not want to get arrested and 
fail. So, you know, random screening does have a place. I would 
prefer that----
    Mr. Issa. OK, let's continue along because this is the old 
problem we have. You take away all of our civil rights and you 
say, but it has some value, but certainly not enough. Crazy 
people who put shoes in their bombs, you are saying that they 
wouldn't have done it if they thought they might be caught, is 
that right, Mr. Baker? They wouldn't have done it if they 
thought they might be caught?
    Mr. Baker. Much less likely to try that, yes.
    Mr. Issa. OK. So we will assume that these products cut in 
half the likelihood of a bomb blowing up an airplane. We will 
give you that. Is it worth 57,000 TSA individuals and the 
countless billions of dollars to cut in half, but not even come 
close to eliminating? That would be my rhetorical question.
    Mr. Rotenberg, I want to go through a couple of items with 
you. If it is possible to have technology do completely 
automated check, using something similar to these products, so 
that there is no human element except an X in the case of a 
high likelihood of something which is a legitimate anomaly, 
would you say that when that technology is ready to be used you 
would consider it, if it met all of those requirements? I just 
want to quantify that you are not being unreasonable; you 
simply want a technology that currently doesn't exist, is that 
right?
    Mr. Rotenberg. Mr. Chairman, I don't think the technology 
has to be perfect. I don't think it would be realistic to 
expect a technology to be perfect. I think what I have 
suggested, as Mr. Chaffetz has, is that the technology should 
be effective, I think that is reasonable, and I think it should 
be minimally invasive, because that is what the courts have 
told us at the Fourth Amendment.
    Mr. Issa. And at the current time the false positives are 
huge. I have watched them. It doesn't take much to go through 
these lines and see every third or fourth person who actually 
goes through the machine in a secondary. And, by the way, that 
is after they pause and wait for quite a while before they are 
allowed to go forward.
    Dr. Brenner, I am particularly interested because of your 
knowledge and experience. Do you remember the fluoroscope of 
yesteryear and what they did to people who had their shoes 
fitted using that technology?
    Mr. Brenner. Oh, yes. And those devices continued to be 
used well after it was pretty well established that there was a 
risk associated with them.
    Mr. Issa. And my understanding is not only did they 
increase the likelihood of cancer for those who were having 
their shoes fitted or those who were using it more often, but 
they created almost certainty that a shoe salesperson, over 
time, would have doses likely to give them cancer and some 
other problems, isn't that true?
    Mr. Brenner. You are right. The biggest doses were to the 
salespersons rather than the individuals getting the foot 
examination.
    Mr. Issa. So clearly these products, although they may be 
less than the fluoroscope of old, they are showing about the 
same thing; they are designed to show about the same thing. 
They, in fact, represent a high likelihood that our 57,000 TSA 
individuals, who are not badged to see if they are getting 
excess dosage, are getting dosage far higher than the rest of 
us would, even as frequent travelers.
    Mr. Brenner. Well, I am not sure I know the answer to your 
question as to whether it is really a high likelihood----
    Mr. Issa. But they are getting higher dosage.
    Mr. Brenner. Almost certainly so. But I think we need to 
measure those doses.
    Mr. Issa. Well, and that is one of the points I think this 
committee has an obligation to do, is to see that the 
measurement begins immediately, even if these things are not 
going to be stopped.
    Let me go through one more item. Like Mr. Farenthold, I was 
a clear passenger; I gave them my retina scan, I gave them all 
my fingerprints, and I was dismayed when I found out that they 
thought they were going to sell their asset that, in fact, I 
had paid to give them, which is what made me a little worried 
about things more than I had been in this cyber era.
    But let me just ask the simple question. Including you, Mr. 
Baker, since you think that everything helps a little, false ID 
is easy to get. People get it every day and they come to this 
country in vast amounts over the Mexican border, a few miles 
from my district. The IDs that will let you come through the 
country illegally are the same IDs that TSA looks at with some 
level of does the picture match.
    Anyone can print out a boarding pass; anyone can take a 
boarding pass and effectively make a new boarding pass once you 
have a few of them. From the standpoint of actually is the 
person who they say they are and are they actually on the 
flight that they say they are in, isn't one of the gaping flaws 
right now that when you go through security anywhere in 
America, they don't actually know for sure that you are who you 
say you are, because the ID is questionable, and they don't 
even know that the ticket you have is valid for the flight you 
are on? Haven't we left gaping holes that should be filled 
first, at a fraction of the cost of what we are looking at 
today? Just quick answers from anyone that wants to partake, 
particularly you, Mr. Baker.
    Mr. Baker. Yes, for sure. Bad ID is a problem. TSA has done 
a much better job than the airlines did of checking those IDs. 
That is why they have the loops; that is why they have the 
fluorescent lights. They are checking ID and they are finding 
fake ID much more than was the cases prior to TSA taking over 
that responsibility.
    Mr. Issa. Yes, I remember they claimed that my government 
ID as a Congressman was fake, and they wanted to see backup, 
California driver's license, which anybody can get, even if 
they are not a citizen.
    Mr. Chairman, thank you for your indulgence. I yield back.
    Mr. Chaffetz. Thanks. The gentleman yields back.
    With the gentleman's privilege here, I am going to 
recognize myself and then Mr. Tierney here, as we wrap up this 
panel. And again, do appreciate all of your participation.
    Mr. Baker, would you agree or disagree that layered 
security is really the only way to move forward? There is no 
foolproof solution.
    Mr. Baker. Absolutely.
    Mr. Chaffetz. My concern is that these whole body imaging 
machines, as they have been deployed, do give us a false sense 
of security and, in fact, are, in part, security theater, as I 
call it, that don't necessarily give the degree of confidence 
that I would like in securing that airplane. Your concern is 
just by going through the metal detector there are things that 
go undetected. But, conversely, aren't there things that go 
through a whole body imaging machine that go undetected?
    Mr. Baker. Absolutely. None of this technology is perfect, 
it is just that these body imagers are much more effective ats 
finding the kinds of weapons we are worried about than 
magnetometers.
    Mr. Chaffetz. Are you familiar with the Government 
Accountability Office, who issued an unclassified report in 
March 2010 that said, ``it remains unclear whether the AIT 
would have detected the weapon used in the December 2009 
incident?''
    Mr. Baker. I am aware of that and I understand the argument 
that they are making. It remains unclear to Al Qaeda as well, I 
would point out. The important thing to say here is since there 
is no perfect solution, we have to find a solution that is 
better than what we have, and we don't have something better 
than these machines today.
    Mr. Chaffetz. And while you mock the idea of using a dog, 
because you have an overly aggressive Schnauzer or some sort of 
dog?
    Mr. Baker. No, no, I think it is a great idea. I don't mean 
to mock it. It is a great idea; it is just that it doesn't----
    Mr. Chaffetz. Would you agree or disagree with the 
Pentagon, who says that this is a more effective way than the 
current AIT? In fact, do we have up the slide here? I just 
returned from Afghanistan 2, 3 weeks ago. If we could pull up 
that slide. How many whole body imaging machines do you think 
we have deployed to Afghanistan?
    Mr. Baker. I have no idea.
    Mr. Chaffetz. How many have we deployed to Iraq or 
Pakistan, where we have literally over 100,000 of our men and 
women in harm's way, where we have to deal with the threat on a 
daily basis? What I am looking at is people who are really 
truly concerned about what is going on in the green zones, they 
are dealing with these improvised explosive devices which come 
at them in every way, shape, or form, we are not deploying 
whole body imaging machines, we are deploying dogs. And to 
suggest that they only work for 20 minutes I believe is wholly 
inaccurate.
    I think the TSA is failing us because they are so insistent 
on technology. Technology for technology sake doesn't work. 
Technology is great, but if it doesn't work it is not so good. 
And what I worry about, as the gentleman from Massachusetts 
pointed out, it going to a Gumby like type of thing, what if 
the technology is not working?
    So, again, I wish there was a fool-proof solution. I wish 
we didn't have to deal with the reality of the threat that 
there is truly terrorists that want to kill our people and blow 
things up. I worry, though, that the TSA is maybe a little too 
anxious to deploy technology, even though we know from a 
parallel experience in Afghanistan and Pakistan and whatnot, 
they are so quick to deploy technology at an enormous cost, at 
invasion of privacy, when there are things out there that will 
make us more secure.
    I show you this picture because, again, 3 years ago they 
weren't importing whole body imaging machines; they had dogs. 
When we had the State of the Union here, one of the most highly 
secure events out there, they bring in the dogs. That is the 
point I guess I would like to make. And I worry that we spent 
$30 million bringing in puffers with the suggestion that they 
would work, only to find out that they really didn't work.
    My last point, and, Mr. Baker, I appreciate all of you 
being here. There was one part of your testimony that did 
trouble me, it was this part that you found that ``critics are 
making a privacy mountain out of a mole hill.'' You also said 
that privacy concerns are ``counterproductive.'' In this day 
and age, when we are trying to balance the Fourth Amendment, 
the right of Americans to be secure, how do you justify saying 
that the privacy concerns are counterproductive? We heard 
testimony from Representative Cissna here. To say that critics 
are making a privacy mountain out of a mole hill?
    Mr. Baker. Absolutely, because if we had listened to the 
privacy advocates, we would have no machines deployed, we would 
have no protection against the kind of bombs that were used on 
December 25th, other than magnetometers that do not work. That 
is the result of privacy lobbying, and I think it is 
counterproductive.
    Mr. Chaffetz. Well, I, for one, wholeheartedly disagree 
with you. I think that a lot of people have offered a 
reasonable use of certain machines in certain instances. I, for 
one, believe that as a secondary screening device, that the 
whole body imaging machine does have a certain place. Somebody 
has a hip replacement, a knee replacement, I think that is a 
productive use of this.
    I guess the question or the encouragement I would have 
moving forward is to try to find the balances between the 
Fourth Amendment that we have, increasing the security of the 
airport, lessening the invasiveness. That is, I think, what we 
should all be striving for.
    I now recognize the gentleman from Massachusetts, the 
ranking member, Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. I thank our 
witnesses, again.
    Interesting idea on this. I don't know if anybody on the 
panel has the technical expertise that warrants this as a fair 
question of them, but I think, Mr. Baker, you may either have 
it or be as close as anybody on this. Would the AIT detect or 
would it have detected a powder or a liquid explosive?
    Mr. Baker. My understanding is that it can detect unusual 
bulks and volumes and different textures don't match the body 
or that don't fit the body profile, but to some extent there is 
an amount of judgment in that, and one of the things I worry 
about with these Gumby figures is the judgment is going to be 
made by the machine, and we have to be sure that they can do 
that right.
    Mr. Tierney. So, at any rate, it wouldn't identify it as a 
powder explosive or a liquid, something that isn't normally on 
the body, to explore further?
    Mr. Rotenberg. Could I speak to that, Mr. Tierney?
    Mr. Tierney. Sure, if you have the expertise.
    Mr. Rotenberg. Well, we have had the time to review the 
procurement specifications, and the question that you ask is 
actually on page 10 of my testimony; it is the key excerpt. And 
I can tell you, looking through the documents, that the 
problem, the threat assessment when the TSA began the AIT was 
plastic knives, ceramic guns, plastique, C-4, dense nonmetallic 
images. That is what these devices are designed to detect.
    And, you see, the problem with PETM, which is the powder 
that was used by the trouser bomber and the shoe bomber, the 
devices were not designed to detect. So when you look at the 
research that came out post-December 25th, the GAO report and 
the academic studies, I mean, they are largely inconclusive, 
but they are inconclusive as to the fact that the powder would 
not have been located, and that is in the procurement design.
    Mr. Tierney. Thank you.
    Mr. Baker, I heard you make a comment about the millimeter 
wave versus the x-ray backscatter on that. Assuming, because I 
haven't heard it contrary here, that both of them are equally 
as effective in detecting whatever it is they are detecting, 
the millimeter wave apparently doesn't raise any evidence that 
there be a public health safety problem here, but we buy both 
of them, if I understand your testimony, because going to one 
supplier would keep the cost lower, so we may use one that has 
a public safety question and one that doesn't as a cost-
effectiveness measure as opposed to any other reason to have 
both of them?
    Mr. Baker. As I said, there will be a cost to going to a 
single sole supplier for something as significant as this 
purchase.
    Mr. Tierney. So we have to decide whether or not that cost 
outweighs the risk of one of----
    Mr. Baker. Absolutely. And I think the TSA view has been 
that they think all the studies suggest the risk is----
    Mr. Tierney. So we should explore that, I think, a little.
    Finally, not to be contentious, Mr. Chairman, but just to, 
I think, raise the point that, again, we should go back to 
having some sort of framework for evaluating the effectiveness 
and privacy on everything, I know two things. One is that there 
are 300 AIT machines currently deployed in Iraq and 
Afghanistan, it is not like there are just dogs over there, 
that have been used for the past 6 years.
    And I just quote from an article that appeared on March 1st 
of 2003 that examined the possibility of replacing bomb-
sniffing dogs with handheld chemical systems. Among the 
drawbacks of using dogs, the article stated, is that they 
require rigorous training, testing, and validation exercises in 
various operational scenarios and with different types of 
explosives. The animals' performance, which requires constant 
retraining, frequently declines over time and after extensive 
field work, according to the articles, the dogs became tired of 
the 30 to 120 minutes, which means using more than one dog at 
each location.
    Dogs also exhibit behavioral variations and changing moods 
which might affect performance. In addition, dogs often trigger 
false alarms because they are trained to detect chemicals which 
may appear in other forms than just explosives; and, finally, 
terrorists also may turn to certain stable explosives that emit 
very little chemical vapor and therefore harder for dogs to 
detect.
    So while I wouldn't totally exclude dogs, from the equation 
of a layered system or whatever, I think they ought to be put 
through the same evaluation process for effectiveness and for 
privacy indications on that. As we move forward we will, I 
assume, try to do that.
    Yield back.
    Mr. Chaffetz. The gentleman yields back.
    Are any other Members seeking to ask questions of this 
panel?
    [No response.]
    Mr. Chaffetz. With that, we will thank the panel members 
for their participation, your efforts, your time in preparation 
of this testimony. We would allow also for 5 legislative days 
for Members to submit other information. We would also ask, and 
hope that you would cooperate, if Members have additional 
questions, that they be able to submit those to you. If you can 
provide those answers back to us, we will make sure that the 
other members of the committee have that. We thank you for your 
expertise, for your insight into this, and thank you for your 
time and effort to be here today.
    The second panel is adjourned.
    We had talked about, as they dismiss here, we would need 
some time to set up the third panel, but I have also come to 
learn that this committee room has been scheduled and has been 
committed to the needs to set up and whatnot, from 1:15 on. 
Consequently, it is going to be this chairman's prerogative to 
delay what was supposed to be two gentlemen from the TSA that 
were going to be here as part of the second panel, insisting 
that they have to have their own separate hearing and they 
can't be sitting next to somebody that they disagreed with, 
that we are going to delay that third panel and we will 
reschedule it. We are hoping to do that the first week of 
April.
    Mr. Tierney. Mr. Chairman, may I be heard on this?
    Mr. Chaffetz. Sure.
    Mr. Tierney. Mr. Chairman, I don't understand this at all. 
First of all, we had this whole discussion; we resolved the 
issue. We have asked the TSA to come over here today; they are 
here. So they came across to accommodate the chairman and the 
rest of this committee. Having them on this panel now or 
putting them on separately now is not going to be a time factor 
at all; it will take about a minute and a half to put up new 
name tags, and then we would have 45 minutes, minimally, to 
have this hearing, which would have only extended this current 
panel 45 minutes. I don't think there is any real rationale for 
that.
    I am a little upset that we went through the whole process 
trying to be cooperative. TSA did come downtown. It would be 
effective to have them testify at this hearing. I just think it 
is totally appropriate and I don't think your reasoning is 
sound enough to give us a real true matter of why it is you 
won't let them proceed. I ask that the chairman reconsider, 
that he allow them to come out right now. They will have 45 
minutes. If you want to bring them back again if you feel that 
it hasn't given you satisfactory opportunity to question them, 
I will agree to that and we will work that out for another 
return.
    But to send them away after having gone through that whole 
process this morning, bringing the chairman and the ranking 
member of the full committee in, discussing it out, having an 
agreement and inviting them down here, and then sending them 
away I just think is totally inappropriate and disrespectful, 
frankly.
    Mr. Chaffetz. Well, I appreciate the gentleman's comments. 
I appreciate the working nature that our staff and the Members 
have here together. Nevertheless, I do believe that this is of 
keen interest to most every member that is on this committee. I 
want to allow adequate time to hear their testimony and allow 
Members to question them. We are also, under committee rules, 
allowed to have multiple rounds of questioning. We certainly 
have, right now, just a handful of Members here, without any 
sort of notice that would give them adequate time. We have run 
over by a good 15 minutes longer from the time that we thought 
we would start the third panel.
    In deference to those Members who do want to participate on 
this panel and ask questions, given the late nature of which 
this second panel was there, and given the fact that they had 
notice, we had planned on, they had committed to being here for 
this panel No. 2, they certainly had adequate time to do that. 
I don't want to----
    Mr. Tierney. Mr. Chairman, rather than relitigate that 
issue----
    Mr. Chaffetz. The gentleman will suspend. The gentleman 
will suspend----
    Mr. Tierney. We had that issue litigated.
    Mr. Chaffetz. The gentleman will suspend.
    Mr. Tierney. Well, I have a difficult time suspending.
    Mr. Chaffetz. The gentleman will suspend.
    Mr. Tierney. If you are not going to follow the rules and 
adhere to our agreement----
    Mr. Chaffetz. The gentleman will suspend.
    Mr. Tierney [continuing]. Then I am not sure why I should 
agree to this.
    Mr. Chaffetz. We did not--no. The gentleman will suspend. 
The agreement was that they were going to come here and 
participate on the second panel. Now, they refused to do so and 
they came to that election by themselves.
    Mr. Tierney. Was the chairman present this morning----
    Mr. Chaffetz. The gentleman will suspend.
    Mr. Tierney [continuing]. When the agreement was made that 
they would come to testify?
    Mr. Chaffetz. I would be happy to yield. I would be happy 
to yield.
    Mr. Tierney. Would the chairman yield?
    Mr. Chaffetz. No, not until I finish----
    Mr. Tierney. I guess you are not that happy.
    Mr. Chaffetz. I am not very happy. Until we finish--until I 
make these comments.
    We had anticipated that this panel would reconvene for 
panel No. 3 at 12:15. It is past 12:15. It is, in fact, well 
past 12:15. The other thing that has come to light is we have 
another committee that has done research and work and 
preparation, and Members have adjusted their schedules in order 
to accommodate that hearing, which is going to start, which 
would be less than an hour from now.
    Consequently, I want to do this the right way. I want to do 
it the right way for the TSA. I want to do it the right way for 
every member on this panel. So we have adequate time to get to 
the issues that need to be got at.
    So, with that, I am suggesting, in fact, I am ruling that 
we are going to move this third panel to another day.
    Mr. Tierney. You said you would yield. Will you yield?
    Mr. Chaffetz. I am sorry?
    Mr. Tierney. You said you would yield. Will you yield?
    Mr. Chaffetz. Yes, please.
    Mr. Tierney. Rather than keep this going on so that you 
actually make it a reality that there is not enough time, let 
me just say one more time that there is 45 minutes. You don't 
know that the panel was going to go an hour with these people 
anyway. Forty-five minutes could be entirely adequate.
    Let's get them started. Let's get them out here. If you 
want to bring them back at some other point in time, you can do 
that. You have essentially all the Members that you had earlier 
here, and they were all made aware that we had come to some 
agreement this morning that TSA would come on the last panel. 
This is no surprise to anybody. Everybody had their testimony 
from last night.
    I just find your whole reasoning behind this totally lame 
and inappropriate, and I am not pleased at all, with having 
come to an agreement this morning on that and have you come up 
with a rather lame excuse to put that agreement aside. I would 
ask you one last time to reconsider and let's do this the right 
way, keep your working relationship as we have had on this, as 
the only cooperative idea, one that we can rely on each other's 
word.
    Mr. Issa. Would the gentleman yield?
    Mr. Tierney. Yes.
    Mr. Issa. Mr. Chairman, I know we may not complete this. I 
have been assured that the next subcommittee could move a 
little to give us a little additional time. I have also been 
assured we won't have votes before 1:15 to 1:30. My concern, 
which I share with the chairman, is that we will need to ask 
the TSA to be willing to come back if we do not conclude by the 
time of the vote. If that can be agreed to, I would join with 
the other gentleman to try to start, but we would need that 
agreement from TSA.
    Mr. Tierney. Reclaiming my time. I would in no way impede 
that and would support that effort to have them back, if that 
is appropriate and we need more time to finish.
    Mr. Lynch. Point of order.
    Mr. Chaffetz. Does any other Member wish to--the gentleman 
from Massachusetts.
    Mr. Lynch. Mr. Chairman, not to eat up more of our valuable 
time, but we have them here and I just want to point out that 
your hearing, our hearing was in conflict with a lot of other 
hearings when we originally scheduled it, that is why Members 
are back and forth. There is no guarantee that won't happen 
again when we reschedule it, it is just the way things work 
here.
    I do like the comprehensive aspect of this, where you had a 
bunch of good panels in here, and I would like to hear from the 
TSA. I would just hate to waste time. We have 45 minutes we 
could go at these folks, and I have some questions I would like 
to ask of them, as I am sure you are; and if we have to bring 
them back, we will bring them back.
    I yield back.
    Mr. Chaffetz. Does any other Member wish to speak to this?
    [No response.]
    Mr. Chaffetz. This committee will stand in recess for 5 
minutes while we redress and we will make a ruling at that 
time. Thank you.
    [Recess.]
    Mr. Chaffetz. We will start our unanticipated third panel. 
Appreciate the two of you being here to answer questions before 
this committee. It is my understanding, having worked with both 
sides, and my understanding from the two of you, who I have yet 
to speak with, that should this panel run short, that is, 
Members not be allowed to fully ask all the questions that we 
have here today, that you both will personally agree to come 
back and participate in another hearing as a followup.
    We will call this Part 1 of Part 1 of this hearing. And I 
would hope and expect that the two of you would also be able to 
attend that second hearing. We will come to it by mutual 
agreement in terms of the date; it will be your own panel so 
you are not offended by anybody. Is that your understanding of 
how we are going to proceed? Mr. Kane.
    Mr. Kane. Mr. Chairman, yes, it is.
    Mr. Chaffetz. Mr. Kair.
    Mr. Kair. Yes, Mr. Chairman.
    Mr. Chaffetz. As long as we have the ranking member here 
and we have an understanding of how that is going to proceed, 
we will proceed.
    Mr. Lee Kair is the Assistant Administrator for Security 
Operations at the TSA and Mr. Robin Kane is the Assistant 
Administrator for Security Technology at the TSA.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testify. If you would please rise and raise your 
right hands.
    [Witnesses sworn.]
    Mr. Chaffetz. Let the record reflect that all witnesses 
answered in the affirmative.
    In order to allow time for discussion, we would ask is 
allow you to each take 5 minutes for your opening statements. 
Please adhere to the red light that will appear before you. We 
will give you some leeway with that. Keep your comments to 5 
minutes, and then we will allow you to submit any additional 
testimony that you are not able to give verbally into the 
record for the full committee.
    So at this time we will recognize first Mr. Kane for 5 
minutes.

   STATEMENTS OF ROBIN E. KANE, ASSISTANT ADMINISTRATOR FOR 
 SECURITY TECHNOLOGY, TRANSPORTATION SECURITY ADMINISTRATION; 
     AND LEE R. KAIR, ASSISTANT ADMINISTRATOR FOR SECURITY 
       OPERATIONS, TRANSPORTATION SECURITY ADMINISTRATION

                   STATEMENT OF ROBIN E. KANE

    Mr. Kane. Good afternoon, Chairman Chaffetz, Ranking Member 
Tierney, Ranking Member Cummings, and distinguished members of 
the subcommittee. We appreciate the opportunity to appear 
before you today to discuss the Transportation Security 
Administration's risk-based intelligence-driven approach to 
aviation security, and specifically the use of advanced imaging 
technology. As the Chief Technology Officer, I will focus on 
the technical aspects, and our Director of Security Operations, 
Lee Kair, will discuss the human aspect.
    Before going into more detail, let me state it clearly: the 
technology is vital to our Nation's ability to keep air 
travelers safe in this post-9/11 world. Mr. Chairman, the 
United States faces a determined, creative enemy bent on the 
destruction of our way of life. The threat is everywhere.
    Last year the FBI arrested a man planning an attack on the 
D.C. subway system. A few weeks ago a young Saudi man was 
arrested under suspicion of plotting terror attacks in Texas, a 
lone wolf jihadist. And whether it was a failed attack on 
Christmas Day 2009, the disrupted cargo plot last October, or 
the latest intelligence we see every day, we know Al Qaeda and 
other terrorist groups continue to target our aviation system.
    Our security measures must focus on detecting and 
disrupting today's threat, not yesterday's. Today we have a 
nimble aviation security system that deploys multiple layers of 
risk-based, intelligence-driven security measures. The 
checkpoint is a central piece of the puzzle, and one aspect of 
the checkpoint is what we are here to discuss today.
    Mr. Chairman, well concealed, nonmetallic improvised 
explosive devices are now among the gravest threat to security. 
And while there is no silver bullet, AIT, the advanced imaging 
technology, gives us the best opportunity to detect these 
threats. We first piloted the advanced imaging technology in 
early 2007 knowing of these threats. Following testing and 
analysis, we began deploying the technology nationwide. After 
the failed Christmas Day 2009 attack, we accelerated it. In our 
ongoing testing and development, we know that well concealed 
devices like those used on Christmas Day 2009 can be detected 
by AIT. It is then up to the image operator to recognize the 
anomaly.
    Beyond effectiveness, there are two other issues I will 
address, privacy and safety. AIT units in airports cannot 
store, print, or transmit images. The system would require 
different software to make this a possibility. Anonymity is 
also paramount. The officer reviewing the image does not see 
the passenger and the officer assisting the passenger cannot 
see the image. AIT also does not produce photographic quality 
images that would permit personal identification.
    We are now testing other detection software that further 
enhance privacy by eliminating passenger-specific images and, 
instead, highlighting anomalies on a generic outline. Testing 
is ongoing to ensure that this software provides the same 
detection capability as previous versions of the advanced 
imaging technology. Passengers appreciate it and we hope to 
roll it out nationwide in the near future.
    On safety, this technology is safe for all passengers and 
employees. The radiation dose from backscatter advanced imaging 
technology machines has been independently confirmed by the 
Food and Drug Administration, the National Institute of 
Standards and Technology, Johns Hopkins University, and the 
U.S. Army, among others. All this testing confirmed that the 
radiation dose is well within established standards. As 
constructed, backscatter AIT is incapable of producing the 
energy required to generate radiation at a level that would 
exceed the established standards. Failsafe mechanisms are 
installed to automatically shut the machines down should they 
begin operating in unexpected ways.
    Multiple tests occur on each individual unit before it is 
ever used to screen passengers. Ongoing testing occurs on every 
unit consistent with national standards to confirm continued 
safe operation. Additional testing is conducted if a machine is 
relocated or requires other maintenance. Contractors are 
required to notify both TSA and FDA if they find radiation 
levels above the standard. We recently committed to publishing 
all future radiation tests online so the public will be able to 
see for themselves that their home airports have safe 
technology.
    While reviewing old reports, we identified errors in some 
of the contractors' recordkeeping. These errors are 
unacceptable and we are taking steps to ensure they are not 
repeated, including we are retesting those where they had an 
error, we are retraining the work force that are doing those 
surveys, we are expanding our independent evaluation of the 
safety protocols, and we are having increased expertise in our 
own staffs in TSA to be able to have subject matter experts 
review the surveys as they come in. We believe these 
significant steps will enhance our ability to assure the public 
that all technology is safe.
    With that, I will turn it over to Lee.
    [The prepared statement of Mr. Kane follows:]
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    Mr. Chaffetz. Thank you, Mr. Kane.
    We now recognize Mr. Kair for 5 minutes.

                    STATEMENT OF LEE R. KAIR

    Mr. Kair. Good afternoon, Chairman Chaffetz, Ranking Member 
Tierney, and distinguished members of the subcommittee. Thank 
you for the opportunity to appear before you today regarding 
the Transportation Security Administration's use of imaging 
technology at airport security checkpoints.
    As my colleague stated, current intelligence reminders us 
that commercial aviation remains a top terrorist target. On 
Christmas Day 2009, Umar Farouk Abdulmutallab attempted to blow 
up a plane bound for the United States using a nonmetallic 
explosive device that was not and could not have been 
discovered by a metal detector.
    Our success in staying ahead of dedicated adversaries is 
dependent upon our ability to utilize the latest technologies 
and procedures. As the head of TSA's Security Operations 
overseeing the work of TSA's frontline security employees, I 
can assure you that our nearly 50,000 officers and managers at 
over 450 airports nationwide are dedicated to our important 
security mission. Every day TSA screens nearly 2 million 
passengers to ensure they arrive safely at their destinations. 
We use a variety of security techniques to ensure our 
transportation systems remain secure, including advanced 
imaging technology [AIT].
    I want to reemphasize that while there is no silver bullet 
when it comes to aviation security, advanced imaging 
technology, in combination with our checkpoint procedures and 
the work of our dedicated work force provides us with the best 
tools to detect dangerous threats. Advanced imaging technology 
remains optional to all passengers who may request alternate 
screening, to include a pat-down. As we have deployed advanced 
imaging technology, TSA has continued to evolve its pat-down 
procedures, as well as to mitigate threats.
    There are a few things I want to clarify regarding TSA's 
pat-down procedures. First, only a small percentage of 
passengers require a pat-down during the secondary screening 
process. Pat-downs are conducted by same gender officers, and 
all passengers have the right to request private screening at 
any time during the screening process. In addition, any 
passenger may choose to be accompanied by an individual of 
their choosing, such as a parent, guardian, or traveling 
companion throughout the screening process.
    While it is necessary to ensure that all passengers are 
properly screened, TSA is sensitive to passenger needs. For 
example, our officers are trained to work with parents and 
passengers with special needs to ensure a respectful screening 
process for the entire family. Additionally, TSA's Office of 
Civil Rights and Civil Liberties maintains a coalition of more 
than 70 disability-related groups who partner with TSA to 
inform our checkpoint screening procedures, including the use 
of advanced imaging technology. We continue to work closely 
with these groups to ensure we are constantly improving the 
training we provide to our officers, which ultimately enhances 
the passenger experience.
    While we continue to work with stakeholders and partners, 
we are dedicated to also continuing to engage and inform the 
traveling public regarding the use of technologies such as AIT, 
as well as our procedures. We want to ensure the traveling 
public understands the screening process, while protecting the 
information terrorists could use in an attempt to circumvent 
screening protocols.
    As part of that effort, we have worked with our airport 
partners to post signage at airports regarding AIT, on our Web 
site, through the media, and via hundreds of press conferences, 
as well as social networking platforms. Through these 
mechanisms, TSA has reached millions of individuals nationwide 
to inform them about airport security policies and procedures. 
Additionally, TSA is committed to answering questions and 
receiving feedback from the public regarding their screening 
experience. To achieve this, TSA utilizes a number of 
communication tools, including the TSA Contact Center, the Talk 
to TSA Web feedback tool, local customer service managers, and 
input on the TSA blog, among other avenues.
    TSA is committed to building upon best practices to 
mitigate risk and make our transportation systems as safe as 
possible. Earlier this month Administrator Pistole outlined his 
vision for the future of airport security screening as we 
develop additional risk-based initiatives that shift away from 
a one-size-fits-all approach at airport checkpoints. TSA 
anticipates that this type of innovative approach will enable 
TSA to better focus its resources, while enhancing the 
passenger experience.
    We want to thank the subcommittee for holding this hearing 
on TSA's use of advanced imaging technology and for its 
diligent work in overseeing the agency's efforts to ensure the 
transportation security. We are pleased to answer any questions 
you might have.
    Mr. Chaffetz. Thank you. I will now recognize myself for 5 
minutes.
    We have a great need in this country to secure aircraft and 
transportation in general. The threat is real. Let there be no 
mistake from anybody anywhere; the threat is very real. I 
appreciate the good hard work that the tens of thousands of TSA 
agents do. I think most are trying to do a good job; they are 
working hard; they are placed in a difficult situation.
    In fact, I think a lot of them who probably signed up to do 
this didn't envision that they were suddenly going to have to 
be involved in some very invasive pat-downs and doing some 
things that, when they probably first signed up, they weren't 
anticipating to do. And I appreciate both of you in your degree 
of participation with public service. Mr. Kane, for instance, 
your 20 years in the Coast Guard and what-not. We appreciate 
that.
    Nevertheless, I am very frustrated by the lack of candor 
coming from the Transportation Security Administration. The TSA 
has earned a notorious reputation of doing things a bit 
different than the way they say they are doing it. That is not 
a personal attack on you two as individuals, and I want to note 
at the beginning it is not a direct criticism on any one of you 
personally.
    But given that you are sitting here, and I am glad you are 
sitting here, and we are going to have this discussion, I just 
want to note that it is our role and responsibility to make 
sure that we improve security and still protect people with 
their Fourth Amendment rights; that we minimize the invasive 
nature in which this technology is being deployed; not just the 
technology, but the pat-downs as well.
    With that said, I want to start to dive in here a little 
deeper on these machines and start, I guess, for instance, with 
you, Mr. Kane. These machines, as I understand it, were built 
to the specifications, correct?
    Mr. Kane. Yes, Mr. Chairman.
    Mr. Chaffetz. Yet I have heard repeatedly that ``the 
imaging technology that we use cannot store, export, print, or 
transmit images.'' That came from Secretary Napolitano. Is that 
true?
    Mr. Kane. The machines in the airports cannot store, 
transmit images. The software packages on those machines does 
not allow that in the airport. We do have machines in our 
testing environment where we do have that capability----
    Mr. Chaffetz. Same machines, though, right?
    Mr. Kane. Same machines hardware-wise.
    Mr. Chaffetz. Same machines. OK.
    Mr. Kane. Hardware-wise.
    Mr. Chaffetz. My understanding--I am looking at this 
Freedom of Information Act that was put out there and the 
specifications were put out. Let me read a few things. Enabling 
and disabling of imaging filter shall be modified by users as 
defined by the User Access Levels and Capabilities Index. Let 
me go on. When in test mode, the whole body imaging machine, 
the WBI, shall allow exporting of image data in real time; 
shall provide secure means of high speed transfer of image 
data; shall allow exporting of image data, raw and 
reconstructed. Did I misread anything here? Is that accurate?
    Mr. Kane. I believe you are referring to probably a prior 
specification, some of which we have cleaned up in subsequent 
engineering change proposals to make sure that those test modes 
are separate. So you reference, Mr. Chairman, a test mode. That 
mode does not exist in the airport environment; the machines in 
those airports have a different software package. That does not 
exist----
    Mr. Chaffetz. You said the same machines have those 
capabilities. My understanding is the network, that each of 
them are built with a ``network interface with an ethernet 
interface connection. Network interface shall be configured 
with an IP address,'' which would suggest that it is actually 
transferring images, is it not?
    Mr. Kane. None of the machines today are networked in the 
airports. That capability is in the hardware of those machines; 
they are not networked in the airport.
    Mr. Chaffetz. So they do have the capabilities of doing it, 
and you actually do capture and transmit images, right? Just 
think about this. From the very standpoint of the fact that 
somebody goes through the machine, you capture the image, it is 
then transferred electronically to another room, correct? That 
image then appears on their screen.
    Mr. Kane. That is correct.
    Mr. Chaffetz. How is that not capturing, transmitting, or 
storing the image?
    Mr. Kane. I think our point is we don't save those images; 
we don't retain them; we don't transmit them. I would argue 
that is the same part of the machine and that image review 
station is part and parcel of that advanced imaging technology 
machine and, of course, we have a display monitor on that 
machine to be able to look at the images, for the image 
operators to be able to identify anomalies to be resolved.
    Mr. Chaffetz. Under oath, I want to ask you both, do you 
transmit images that you have captured in airports ever? Have 
you done that?
    Mr. Kane. Captured in airports? I am completely unaware of 
us ever having done that, so I would say no, under oath, we do 
not transmit images from the airport.
    Mr. Chaffetz. Have you ever done that?
    Mr. Kane. I am unaware of us having ever done that.
    Mr. Chaffetz. Mr. Kair.
    Mr. Kair. I am unaware of us ever doing that, sir.
    Mr. Chaffetz. You have in your specifications that you have 
to have these capabilities. Why was that in there in the first 
place?
    Mr. Kane. Clearly, when we developed this type of 
technology, like any other piece of technology we have, we have 
to do extensive testing, we have to do extensive training to be 
able to deploy those machines. Therefore, we have the 
capability on those machines to operate in the test mode, to 
capture images, to be able to transmit those images to other 
machines in our networks that we use in testing facilities, we 
have that capability.
    We don't have that capability in the airports; we separated 
that capability completely out from anything that is in the 
airport. And the other piece, we do have images that we use 
that were taken from volunteers, and typically those are paid 
volunteers that we use in our testing processes to capture 
those images.
    Mr. Chaffetz. What about this so-called Level Z access? 
Capabilities under ``Level Z access'' enable and disable image 
filters; export raw image data in test mode; modify access 
level capabilities; download data.
    First of all, Mr. Kair, how many people have user access 
Level Z capability?
    Mr. Kair. Sir, that is actually a question for Mr. Kane.
    Mr. Chaffetz. Sorry. Mr. Kane.
    Mr. Kane. Mr. Chairman, I am not sure of the exact number, 
but I would like to just say the specification to make sure we 
gave greater confidence to people that we were not doing the 
things that people are talking about, we removed some of those 
capabilities from the Z user access. Typically, those are 
maintenance technicians and some of my folks in my labs have 
that type of user access.
    Mr. Chaffetz. Can you provide this committee the email or 
the paperwork that would verify that you have actually changed 
that and when it was changed?
    Mr. Kane. Mr. Chairman, I certainly will do that for the 
record.
    Mr. Chaffetz. So when I see under the TSA Web site ``The 
image cannot be stored, transmitted, or printed, and deleted 
immediately once viewed,'' that is fundamentally false, is it 
not? It does have that capability; it is a matter of flipping 
the switch, turning it off and on.
    Mr. Kane. It is not a matter of flipping a switch and 
turning it off and on. The software that is on the airport 
machines does not allow that capability in the airport. The 
software in our testing machines is a completely separate 
software and has that capability in our labs.
    Mr. Chaffetz. Has it ever had that capability? When you 
first deployed it did it have that capability?
    Mr. Kane. In those initial, the first, I believe, 47 that 
we rolled out, that capability was on the machines to flip that 
switch at that Z user level access that you are referring to. 
We recognize that we wanted to change that and we made a change 
on the machines that are in the airports and retrofitted it to 
all those machines that are in the airports.
    Mr. Chaffetz. The committee would appreciate it if you 
would provide that paperwork.
    My apologies to the ranking member; I did not realize how 
far over time I was. I will now recognize the gentleman from 
Massachusetts for 5 minutes and some more if he would like it.
    Mr. Tierney. Thank you, Mr. Chairman. Mr. Chairman, I think 
it is important that you get the questions that you have 
answered, so I have no objection to using the time on that.
    I don't mean to just pound this thing to death, but I want 
to make sure that we are clear on it, because there seems to be 
a trust issue here, clearly, on that. I am reading the 
requirements on sensitive security information and it says, 
``TSA policy dictates that passenger privacy is maintained and 
protected during passenger screening. To ensure passenger 
privacy safeguards in place, AIT systems will prohibit the 
storage and exporting of passenger images during normal 
screening operations. While not being used for normal screening 
operations, the capability to capture images of non-passengers 
for training and evaluation purposes is needed. To ensure that 
image capturing maintains passenger privacy, the AIT systems 
will provide two distinct modes of operation, screening mode 
and test mode. During screening mode, the AIT system shall be 
prohibited from exporting passenger image data, including via 
STIP. During test mode, the AIT systems shall not be capable of 
conducting passenger screening.''
    Does that sound accurate to you?
    Mr. Kane. Yes, Congressman.
    Mr. Tierney. So what we need to do is somehow give 
assurances to people that are doubtful on that, and how do you 
suggest we do that?
    Mr. Kane. It is very difficult at times to do that. We have 
talked about it. We have offered up the specifications. We have 
made some of those changes that you referred to. We have 
actually changed in the specification to make it more clear of 
how we intend to operate the machines. We put out a private 
impact assessment that talks about how we intend to operate the 
machines and we try to be very straightforward with the public, 
with the signage and the other messaging mechanisms we have to 
make it clear to the public how we intend to operate the 
machines and the fact that we don't store, transmit, retain any 
of the images, and they are deleted when they leave the 
machines, once we have resolved any anomalies.
    Mr. Tierney. Is the ability to do all of those things you 
just said basically contained in the software, as opposed to 
the hardware?
    Mr. Kane. At this point, yes, Congressman.
    Mr. Tierney. Do you have plans to do it otherwise?
    Mr. Kane. No. At one point they were kind of together, 
where you could flip a switch as a Z user level. We have 
separated that capability and the airport machines don't have 
that capability.
    Mr. Tierney. So if Mr. Chaffetz wanted to go to the 
airport, he would see that the software at any given airport is 
disabling all of the problems or concerns that he has.
    Mr. Kane. It is probably difficult to see that at the 
airport from a nonexpert, but we could certainly endeavor to 
show people that.
    Mr. Tierney. Take an expert with him on that.
    Now, can you tell me whether or not the millimeter wave 
scanners are as effective or more effective than the x-ray 
backscatter scanners?
    Mr. Kane. I can't talk about the specific requirements and 
capabilities in an open hearing; I am happy to share----
    Mr. Tierney. Sure you can. I mean, you can't tell me 
whether or not they are as effective as the others?
    Mr. Kane. So what I would say is both have met our 
specifications. So we have specifications that we put out and 
both met those specifications in very near similar levels, and 
they flipped a big depending on where you were using them.
    Mr. Tierney. I don't accept your answer that you can't tell 
us in open session, but I am going to for the moment on that, 
because my basic point here is that you are saying they are 
interchangeable and the TSA would be satisfied with whatever 
machine happened to be at a given airport that it was doing the 
job you wanted done.
    Mr. Kane. That is a fair statement, Congressman.
    Mr. Tierney. OK. Now, the only reason you don't go just to 
the wave scanners, where there is no issue at all with respect 
to radiation is that it is TSA's contention that the levels are 
so low in the x-ray backscatter that it is not a problem?
    Mr. Kane. That is one of the reasons. It is a very safe 
technology and it is very, very low radiation, as we have 
tested it independently many times. But the other is it is 
useful for us to have multiple technologies. As we talked 
about, we do need to address the threat. Having a number of 
people working on the problems of addressing the threat is 
useful to us. Having competition in our marketplace, where we 
are the primary buyer in the world of technologies is useful to 
us as well.
    Mr. Tierney. Well, I understand. I am all about competition 
on that, as the F-136 debate will indicate. But the fact of the 
matter is here, if you thought it was a risk, a danger, you 
would just take the chance of going with a monopoly, as opposed 
to having one area out there that was a competitor, but 
dangerous.
    Mr. Kane. We think the technology is very safe, yes, 
Congressman.
    Mr. Tierney. So will you make available to the public your 
evaluation studies and make the equipment available for 
independent testing?
    Mr. Kane. We have never really made the equipment available 
for independent testing; that would expose it to a lot of 
public information that we wouldn't share publicly in terms of 
its capabilities.
    Mr. Tierney. You don't think there is a way to do that and 
not expose it? I mean, it is done all the time.
    Mr. Kane. Radiation-wise, we certainly have done that with 
independent validators; we have had Johns Hopkins, we had 
National Institute of Standards and Technology. Just making it 
available to the public to look at those machines, no, we 
wouldn't be able to do that.
    Mr. Tierney. But other than making it generally available 
to the public, you would make it available to other independent 
sources that were qualified to make an evaluation? You have 
done it and you would do it again if it was set up 
appropriately?
    Mr. Kane. Yes, sir.
    Mr. Tierney. OK. Do you know whether or not the materials 
that were used by the shoe bomber and the underwear bomber, 
whatever you want to call them, could have been detected or 
would have been detected by the AIT machines?
    Mr. Kane. Those types of materials, what advanced imaging 
technology does is detect anomalies on the body. Those types of 
materials are anomalous to the body and so, yes, it does detect 
those types of materials. We tested against similar types of 
materials in the labs and certainly in their operation on the 
day-to-day use. Lee could speak to a number of things that you 
find that are similar to those types of materials as well.
    Mr. Tierney. One of our previous witnesses testified that 
the Department of Homeland Security and TSA had basically 
funded a National Academy of Sciences report where it made a 
recommendation at the end for evaluating the effectiveness of 
all initiatives in a systematic way, and then had a whole 
process out there. Do you follow that process when you are 
evaluating the different techniques?
    Mr. Kane. I think if you are talking about the process we 
use for developing our technologies, yes, we use a systematic 
process in doing that.
    Mr. Tierney. Did you use the one that was recommended by 
the National Academy of Sciences, for which you paid?
    Mr. Kane. We use our process as mandated by the Department 
of Homeland Security in their acquisition guidelines. We use 
that process.
    Mr. Tierney. Do you know how that measures up to the----
    Mr. Kane. I apologize, I don't know that.
    Mr. Tierney. Would you get that for the record for us----
    Mr. Kane. Certainly.
    Mr. Tierney [continuing]. And give us an indication of how 
your policy, your standards and your evaluation process line up 
with the recommendations made by the National Academy of 
Sciences in the 2008 report that was paid for by the Homeland 
Security and TSA?
    Mr. Kane. Yes, sir.
    Mr. Tierney. Thank you very much.
    Yield back, Mr. Chairman.
    Mr. Chaffetz. The chair now recognizes the gentleman from 
Texas for 5 minutes.
    Mr. Farenthold. Thank you very much.
    In response to privacy concerns, you implemented the pat-
down search, as well as a secondary pat-down search for the 
anomalies, and the 9th Court of Appeals has allowed you all to 
do administrative searches at airports and held that the pat-
downs are illegal. I think their words were limited in its 
intrusiveness as it is consistent with satisfactory of the 
administrative need that justifies it. So limited in the 
intrusiveness I think is kind of key there.
    But take a look at some of these slides we have up here. I 
am concerned. These are not even the secondary pat-downs, these 
are the primary pat-downs. This is a child. Another child. 
There are people who would go to jail for touching a child like 
that. Do you really think these are the least intrusive means 
you can come up with to ensure security?
    Mr. Kair. Sir, Mr. Kane and I actually sit every morning in 
an intelligence briefing where we learn what is coming at us 
from our attackers, and what is evident to us is that those 
that wish to do us harm are very willing to use techniques 
which go against our social norms and try to use things that 
will use our process against us, and that was proven out 
actually in Flight 253 with the placement of a bomb that used 
all nonmetallic components. So we have done extensive testing 
in what techniques we can use in order to be able to detect 
items like that using both process and technology so that we 
can mitigate that threat, while also being as conscious as 
possible about the passengers' experiences coming through, as 
well as allowing passengers to expeditiously get to----
    Mr. Farenthold. And you also indicate in your testimony 
that only a small percentage of passengers have undergone a 
secondary screening. I have had the misfortune of being one of 
those passengers, and I was taken into a private room, not 
offered the opportunity to stay in public or have anyone 
accompany me, and was thoroughly searched. I was not offered 
the opportunity to rescan in the event I moved.
    The TSA agent indicated, you probably moved; that's why 
there were the anomalies. A rescan would have avoided that. 
Wouldn't that have been a less intrusive option, to offer me a 
rescan, when they had I think it was five anomalies detected on 
my body?
    Mr. Kair. Sir, without getting too much into the sensitive 
security part of when we do which type of screening, when we do 
have an anomaly in a sensitive area, we do want to make sure 
that we properly screen that area using a pat-down. Any 
passenger is authorized to have a companion in that private 
screening room with them and we use whatever technique we can--
--
    Mr. Farenthold. I mean, I would rather have had this 
happen, sunshine is the best disinfectant. Despite as 
embarrassing as it was, I would have preferred to stand out 
there and let the rest of the people at the airport see what I 
was subjected to.
    Let me move on. I am concerned also about the safety of 
your hardworking TSA officers. Why should none of those 
officers that work around these x-ray machines, in particular, 
not wear the same safety badges that any body who works at a 
hospital is required to wear? This seems like a low cost way to 
ensure the safety of the people working for you.
    Mr. Kane. Congressman, these are different and they are 
very, very low levels of radiation used by these machines, and 
they are well within public use limits, and there are national 
standards for when you would implement a dosimeter type of 
program that you are referring to, and we are well, well below 
any of those levels that would cause us to look at putting the 
radiation badges on the workers.
    Mr. Farenthold. I can understand why you also are not 
willing to open up the entire software and process to peer 
review, but would you be willing to allow independent agencies 
or the scientific community to test the amount of radiation 
that these machines emit?
    Mr. Kane. Sir, we have done a number of independent tests 
and we have ongoing independent tests for all of these machines 
in the airports. Johns Hopkins did the study on the backscatter 
advanced imaging technology as an independent body; the Army's 
Public Health Command comes into airports, they look at our 
radiating machines in airports and they use test and survey 
methods, including dosimeters in some cases, and they have done 
extensive independent testing of the machines and clearly and 
consistently show very, very low levels of radiation.
    Mr. Farenthold. I see my time has expired. I will wait 
around for the next round of questions. I have a whole other 
page.
    Mr. Chaffetz. Thank you. The gentleman yields back.
    We now recognize the gentleman from Illinois for 5 minutes, 
Mr. Quigley.
    Mr. Quigley. Thank you, Mr. Chairman.
    Thanks for being here. How many of these machines are in 
place now?
    Mr. Kane. There are nearly 500 in 78 different airports.
    Mr. Quigley. And how many do you need if you are going to 
use them at every location, at every gate?
    Mr. Kane. We are working through what that would be. Some 
of it depends on what the final capability of the machines is, 
especially with this automated target recognition software. You 
can get more people through those types of machines than you 
can with the image operator. We think that number is going to 
be something less than 1,800. Eighteen hundred is the number 
that we have used, but it will probably be something less than 
that. To give you some concept of scope, we have around 2,200 
airport lanes in the country.
    Mr. Quigley. And is there a concern that you have, if those 
were all in place with the new technology and the time to get 
through, it would not change the time that it takes to get X 
number of people through an airport in a day at every one of 
those entrances?
    Mr. Kane. Congressman, we are very sensitive to that. That 
is why I say the final number will depend on what the 
technology becomes capable of and how fast it can process a 
passenger. Right now you see it in an airport, you see it 
sitting next to a walk-through metal detector to alleviate just 
that concern. We are going to keep that configuration until we 
know we don't have that concern and we won't cause that to be 
the impact at the checkpoints.
    Mr. Quigley. Is there a projected timeframe now to have all 
these in place, a range?
    Mr. Kane. I can tell you that we have nearly 500 in the 
airports today. We had 500 in the President's fiscal year 2011 
budget request. How the CR plays out or how the fiscal year 
2011 budget plays out we will see, but we think there is 500 
within that level; and then the fiscal year 2012 request is for 
275 additional machines. So that would bring the total to 1,275 
at that point.
    Mr. Quigley. You mentioned the new capabilities and the new 
technology that would be less, would be more generic, I guess, 
in terms of what body images are shown.
    Mr. Kane. Yes. You would see, at the machine itself, a very 
generic outline. It is the same outline for everyone, and you 
would just see that, and any anomalies would show up on that 
outline, and that allows for one to just do the resolution 
right at the machine and to a very limited pat-down or targeted 
pat-down. So if I keep my BlackBerry in my pocket, you know, it 
is going to show on my pocket and the officer will just have to 
resolve that alarm right there in my pocket.
    Mr. Quigley. And the reason I am asking is if it seems like 
it is a reasonable period of time before that technology will 
be available, you would want to start shifting over to those 
right away, before you purchase 2,200 of them.
    Mr. Kane. We think it is a reasonable amount of time that 
technology will be available, and we have stated a number of 
times that we expect our next procurement to have that 
capability.
    Mr. Quigley. Very good. Thank you.
    I yield back.
    Mr. Chaffetz. Will the gentleman yield to me?
    Mr. Quigley. Yes.
    Mr. Chaffetz. I just want to make sure, Mr. Kane, I heard 
exactly what you said. Have any of these machines transmitted, 
have you emailed, have you sent anything back to the 
headquarters? And I believe your answer to that was that you 
were unaware of any, right?
    Mr. Kane. Correct.
    Mr. Chaffetz. Why isn't the answer to that no, it doesn't 
even have the capability? See, that gives me a pause to think 
you had to think about that and you came to the conclusion, 
when I gave you a few more minutes to think about it, well, not 
that I am aware of isn't quite definitive as no, it is not even 
capable of doing it. It is like if I said did you fly to New 
York in your airplane? No, it can't even fly, are you crazy?
    Mr. Kane. I can tell you no, authoritatively, since we 
started rolling them out in airports. I was not involved with 
the program from its inception and I don't know some of what 
occurred earlier in the program's inception. I am virtually 
certain, but I can't say for certain because I wasn't the one 
who would have been witness to what was in the airports and how 
they were used in the airports. But TSA has always been on the 
record as saying, no, we don't do this, we have never had this 
capability. So I couldn't say authoritatively, though, from 
before my time there.
    Mr. Chaffetz. I appreciate that, but just because you are 
``on the record,'' that is the concern, that I find the 
inconsistency between sometimes what the record is, and I have 
some personal experiences that I won't take the time of this 
committee, but that is the concern. Instead of hearing a 
definitive no, it is not even capable, what I read are 
specifications that say, well, we have an ethernet cable, we 
have an IP address, we have an ability, it basically has all 
the capabilities you say it doesn't have, and that is the 
fundamental challenge.
    I have taken this gentleman's time. I will yield back my 
time and now recognize the gentleman from Maryland for 5 
minutes.
    Mr. Cummings. Mr. Chairman, I just noted you had stopped 
the clock for about 2 or 3 minutes. Did you know that?
    Let me just say, gentlemen, you all have a very tough job. 
You have a very, very tough job. You weren't here a little bit 
earlier when I said that you have to protect the public and at 
the same time you have to try to make sure you have a fair 
balance so that you are not intruding into people's lives 
unreasonably and their bodies, and that is a tough one.
    And as I listen to all of what has been said so far, there 
has been, overhanging this hearing, and I think with the 
chairman's statement just now, there is a very, very 
significant shadow hanging over TSA, and that is clearly, and 
it goes to a five letter word, trust. When I listen to all the 
discussion, there is a lot of information you cannot divulge. 
And I am not an intelligence expert, but I would imagine that 
part of the problem is that you don't want to let people know 
what certain things are happening with these machines so that 
they can get around them, I guess. Is that right? Does that 
make sense?
    Mr. Kair. Yes, sir.
    Mr. Cummings. On the other hand, you have a Congress which 
wants to know and the public wants to know, and that is a tough 
situation. I guess what I want to get to is I want to have that 
trust. I want to believe that just like Members of Congress 
raise their hand and swear to protect the people we represent, 
that you all go in there every day trying to figure out how you 
can best protect every single person that use our airways.
    So how would you all suggest, given all that I just said 
and what you know, that we get that trust back? And the more I 
think about it, it is so easy to lose the trust when you give 
up but so much information, when you have millions of 
opportunities for something to go wrong.
    But how do we get back there? Because that is what it is 
all about. First of all, you have to have the trust. Then there 
is another piece, which is you have to do things in a way that 
is least intrusive, but there has to be a level of trust for 
people to believe that you are doing it in the least intrusive 
way. So help me with that.
    Mr. Kair. Mr. Congressman, all I can say is when you look 
back at previous attacks, even since 9/11, our adversary does 
look for processes or items which are not prohibited at the 
time, such as 9/11 they used an item that was not prohibited at 
the time, or I think they look at what our process is and try 
to use that process against us, such as the Richard Reid shoe 
bomb. They recognized at the time that using a nonmetallic 
improvised explosive device going through a metal detector was 
a viable way of going through.
    So from a TSA perspective we have to look every day at what 
are we seeing from a threat perspective and trying to put 
processes or technology in place to be able to thwart that type 
of a risk or threat, and at the same time be able to 
communicate with the traveling public so they know what to 
expect when they come through the checkpoint. So it is a 
balancing act that we have to balance every day, and it boils 
down to having a very active dialog with the American public. 
We use a variety of ways of trying to do that, including pretty 
robust dialog on the Internet. We have an award-winning blog, 
for example, where we encourage the American people to have 
that discussion with them about why it is that we are doing 
what it is we do every day, and we want to make sure that the 
traveling public is able to navigate our screening process----
    Mr. Cummings. I am running out of time, but I want to ask 
you this. When I heard the representative earlier, she 
testified, one of the things that she talked about was 
training, and that there seemed to be--I think part of the 
trust, too, is that people feel that they are treated with 
respect, that they may be going through some difficulty, but 
somebody hears them, somebody understands them, somebody has 
empathy. I think that goes a long way toward trust also. Just 
comment, and my time is up.
    Mr. Kair. Yes, sir. I couldn't agree with you more on that. 
We emphasize to our officers--I think our officers are probably 
some of the most trained and tested of any profession out 
there, and one of the things that we do emphasize with our 
officers is proper communication to de-escalate the traveling 
process. Just traveling, much less screening, is a stressful 
proposition for particularly like a family going through. So 
our officers are trained and, for the most part, do a very good 
job of de-escalating stresses of going through that process.
    We actually retrained our entire work force about 2\1/2\ 
years ago to emphasize customer service as well as security, 
because the two actually go hand in hand. We also have another 
training initiative this year to get at that same exact issue 
of good communication which de-escalates stress to assist them 
in getting through. It is a partnership with the American 
public, where we want them to help us in the screening process 
as they are going through our checkpoints.
    Mr. Chaffetz. The gentleman yields back.
    We now recognize the chairman of the overall committee, Mr. 
Issa from California, for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    And thank you for your patience in getting through a long 
day. This is an important panel. We have waited for you two 
because this committee has serious doubts about the 
effectiveness and efficiency and authority for some of the 
things you are doing. I think that is pretty clear.
    The chairman is particularly interested in the full body 
scanners. I am interested in the overall process. So as someone 
who was here on 9/11, who remembers President George W. Bush 
telling us it wouldn't change America, I am concerned that it 
has. You represent 57,000 well meaning people. I debate well 
trained because your turnover is still pretty darn high and it 
is awful hard to have that many newbies and all we say they are 
well trained. Almost every time I go through security I see 
training, which is a good thing. But the bad thing is I see the 
need for training every time I go through.
    Mr. Kair, let me go through something that isn't full body 
scanners. I will give you a little relief. I fly more than 40 
round-trips a year, plus many overseas trips. For more than 6 
years I carried in my carry-on baggage on every single flight a 
pair of folding scissors. That pair of folding scissors was 
taken away 2 weeks ago. That pair of folding scissors, if you 
open them up and elongate them, has one inch of blade times 
two, and its overall length is two inches.
    I have researched and cannot find a basis for taking that 
away. Do you have an explanation for that kind of subjectivity? 
Were they wrong 200--let me rephrase that--40 times 2 is 80; 
320 times they were wrong or were they right one time and I 
can't find proof that is a prohibited item?
    Mr. Kair. Sir, we actually did an analysis on the 
prohibited items list I want to say November 2005, that 
timeframe, where we did a risk-based analysis of what was 
prohibited----
    Mr. Issa. I remember my toothpaste being taken away after 
we discovered that liquids could be a problem in the British 
situation. You didn't have an answer, you just took them all 
away. Then you made the answer three ounces. But specifically 
the scissors as I described, are they prohibited?
    Mr. Kair. During that analysis in November 2005, that 
timeframe, we actually changed the prohibited items list and 
scissors with a length of less than four inches from the 
fulcrum are not prohibited. So I don't have an explanation for 
why they would have been removed 2 weeks ago.
    Mr. Issa. Eight weeks earlier I had a 12 millimeter open-
end box wrench taken away; it was five inches long. Can you 
explain that one?
    Mr. Kair. Sir, small tools was another piece of the 
analysis that was done, and there is some discretion on tools, 
where, if it could be used as a bludgeon in the discretion of 
the TSO, then it would be prohibited. If it is just a normal 
tool, I believe less than seven inches, it would be allowable. 
All of that information is actually up on TSA.gov.
    Mr. Issa. Oh, I went there, but when you say, you have to 
be kidding, you get threatened, you get people who make it very 
clear they are law enforcement. So I am concerned about 
something. I am concerned that some people think a less than 
five inch 12-millimeter open-end box wrench is a bludgeoning 
tool. I am concerned that a one inch worth of point and 
cutting, plus another two inches of the rest of a scissors are 
somehow dangerous. But they only do it very infrequently. And, 
please, as a guy with a motorcycle, don't ask me to explain how 
I had a 12-millimeter open-box that I had gotten on the wrong 
coast, but these things happen.
    The fact is you don't have a consistent system to test. 
Today you are saying we are safer while in fact only a fraction 
of the people are going through these full body scanners, and 
the full body scanners are repeatedly false positiving in huge 
numbers. Isn't that true? I understand all the good at work and 
the improvement and the trying, but isn't it true that my 
statement is fair, that only a fraction of the people go 
through them and they have huge false positives today?
    Mr. Kane. Today, only a fraction of the people go through 
them. They have false positives. Not a huge number of false 
positives.
    Mr. Issa. How about in San Diego it is about every fifth 
person that goes through gets a secondary?
    Mr. Kane. That would be possible.
    Mr. Issa. OK. So 20 percent is not huge, but it is close 
enough to huge if you are one of the people getting a pat-down. 
You have heard testimony here today that in fact low level x-
ray is longstanding to be a problem. What assurance do we have 
here today that you are not going to be the next fluoroscope, 
you are not going to be the next situation in which you say, 
well, it is not a problem, but Members on the dais who go back 
and forth across this country literally 40, 50 round-trips a 
year aren't getting overexposed, if in fact you eventually get 
to implementing full-time this procedure?
    Mr. Kane. The machines have been tested repeatedly to show 
how safe they are, and independently to show how safe they are, 
and they are tested against national standards that are set by 
standards-making body who have a host of experts on them, and 
they set those standards that we work toward. We are well below 
those standards for this technology, backscatter in particular 
I believe you are referring to, Mr. Chairman.
    Mr. Issa. I am referring to people involuntarily getting x-
rays or being forced into a secondary because now they have 
said, no, I don't want to. The elimination of the trusted 
traveler, granted, it went bankrupt. All of that contributes to 
the whole question that year after year after year, each time 
you find out what you didn't know, which right now includes you 
can't detect a bomb sewn into a human being. As a result, you 
are not going to pick up the bomber willing to have surgery to 
implant explosives under their skin. That has been said here 
today; it has been well documented.
    I am just going to close with one thing. Would you please 
report back to the committee the following: earlier today, in 
Mr. Kair's opening statement, you talked about what people can 
have and not have, and the consistency. I go through those 
checkpoints all over the country regularly. What I don't see is 
I don't see anything that says here is a traveler's right. You 
have a right to a private thing, you have a right--and I know, 
Mr. Chairman, I have gone over, but I know a lot of us have.
    I have seen repeatedly TSA individuals tell people who are 
traveling with another person that is being held for secondary, 
stand back, go over there. They are deliberately denying what 
you said was a right here today. And I hold you to post, the 
TSA to post that I have a right to have my spouse, you have a 
right to have your child or whatever with you during any 
secondary, and not be told they must go over there, stand over 
there, you could be arrested if you don't move away. The exact 
opposite has happened in the experience of thousands of 
travelers. Will you agree to post so travelers know that your 
TSA people are wrong if they try to say stand back, you can't 
be there?
    Mr. Kair. Sir, I believe the description about being able 
to have a traveling companion or family member with you, 
particularly in a private screening area, is up on our TSA Web 
site----
    Mr. Issa. Web site doesn't make it when your people are 
saying the opposite.
    Mr. Chaffetz. All right, we will need to move on here.
    Mr. Issa. Will you commit to make sure that it is available 
to the public at the point at which they may be being told that 
they cannot have that person with them?
    Mr. Kair. Part of the challenge that we have is that 
signage, we run into having too many signs out there, so having 
a posting at the checkpoint is difficult for us because we have 
requirements for so many signs.
    Mr. Chaffetz. The Chair will recognize that is a no. If you 
want to continue to add testimony, this is the problem with 
trying to fit this in.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Chaffetz. We are about to be called for votes. We have 
two other Members. It is the policy of this committee to first 
recognize those who actually sit on the subcommittee first, so 
I am going to recognize the chairman of the Transportation 
Committee, full member of this committee and subcommittee 
first, Mr. Mica, for 5 minutes.
    Mr. Mica. Mr. Kair and Mr. Kane, have we bought 250 of the 
rapid scan backscatters, is that either purchased or being 
purchased, is that correct?
    Mr. Kane. That is correct.
    Mr. Mica. What is the estimated cost of that equipment, 
$100 million?
    Mr. Kane. I believe, all told for all the equipment we have 
purchased so far, and I don't know the split, is around $122 
million.
    Mr. Mica. For rapid scan?
    Mr. Kane. For both, the rapid scan and the L3, for the 500 
machines.
    Mr. Mica. OK. L3. Did former Secretary Chertoff talk, 
consult, or communicate with either of you two?
    Mr. Kane. No, Congressman, he did not.
    Mr. Kair. No for me, sir.
    Mr. Mica. Can you provide to the committee records of any 
of his communications between those involved in the acquisition 
of the equipment?
    Mr. Kane. I am not sure how I would locate records. There 
was no one in TSA involved with him in the acquisition of the 
equipment, so I think the record would be zero from TSA's 
perspective.
    Mr. Mica. Can you check the records of representatives of, 
what is it, L3, that you purchased that equipment from?
    Mr. Kane. I am sorry, Congressman, I didn't----
    Mr. Mica. The equipment was purchased. We talked about 
rapid scan and there is millimeter wave. I am interested in 
finding out the contacts of the former secretary with TSA, 
either prior to, during, or at some time of the acquisition. 
Can you check your records?
    Mr. Kane. Congressman, we can do that. I can tell you he 
was not involved from the acquisition perspective of those 
machines any time after being secretary, at least, and clearly 
as his oversight of the department he would have had some 
involvement before that.
    Mr. Mica. All right. Actually, the backscatter is nothing 
new. I remember at least 5 years ago we had stick devices that 
you could deploy or software that would give you a stick image, 
rather than the full body scan. Is that correct? Are you aware 
that they had that?
    Mr. Kane. No, I am not.
    Mr. Mica. Mr. Kair.
    Mr. Kair. I am not familiar with that, sir.
    Mr. Mica. Well, they have had it. I understand you are now 
testing that?
    Mr. Kane. Yes, we are testing the automated target 
recognition software, which is the generic outline of a person.
    Mr. Mica. And when do you expect those tests to be 
finished?
    Mr. Kane. We have them on the millimeter wave, the L3 
machines, we have them in the airports today. We will finish up 
with the specific testing we have to do on those probably by 
the end of this month. There is about a 45 to 60 day test.
    Mr. Mica. Well, I can't believe it, because 5 years ago 
that software was available, so we didn't have to have--and 
objections were raised 5 years ago and we were told that 
technology was available. You have testing in your testimony, 
testing began 2007, included testing and evaluation in both 
laboratory and airports. When did you first notify Congress 
that you were going to deploy the equipment and it was fully 
tested?
    Mr. Kane. I am not sure there was a specific timeframe that 
we did that, Congressman. I know in our budget request, 
clearly, when we requested the machines and the funding for the 
machines, we communicated to Congress----
    Mr. Mica. Did you provide any evaluation of your testing at 
those airports?
    Mr. Kane. We have provided very substantial briefings and--
--
    Mr. Mica. That was after the deployment, at least to my 
staff.
    Mr. Kane. And that is possible, Congressman. I don't know 
that we came up in advance of deploying to everyone on the 
Hill. I am not sure.
    Mr. Mica. Are you aware of the latest testing of the 
equipment that GAO conducted in December?
    Mr. Kane. We are aware of GAO's testing, as well as the 
other ongoing testing we have in airports every day----
    Mr. Mica. Again, what this reminds me of is the puffers. 
The failure rate was totally unacceptable. Would you concur 
with that evaluation?
    Mr. Kane. I think we look at different types of testing and 
we think the machines are very effective against the types of 
threats we are looking at. We do daily testing in airports 
across the country.
    Mr. Mica. That is your self-testing. You have been briefed 
by GAO on their testing?
    Mr. Kane. Yes, I have.
    Mr. Mica. And you find that acceptable level of 
performance?
    Mr. Kane. I would like to think that we could perform very 
well at 100 percent----
    Mr. Mica. Do you find the level of failure acceptable that 
GAO has reported, now that you have the equipment in place?
    Mr. Kane. So the specific number?
    Mr. Mica. Well, first of all, we are not going to talk 
about numbers because it is classified, but the failure has 
been pronounced; Mr. Pistole talked to it. Mr. Pistole said 
that GAO was clever. Do you feel that, again, having reviewed 
this, is that failure rate acceptable? We are going to spend a 
quarter of a billion dollars on deploying this equipment and 
staffing it, and I have had it tested, and to me it is not 
acceptable.
    Mr. Kane. I would like to see us do better against GAO 
testing. I don't think that is representative of the 
effectiveness of the technology.
    Mr. Mica. If the American public, if we could reveal the 
failure rate, the American public would be outraged at that 
expenditure, but it seems that you have opted for sort of a 
popularity poll. You said that 80 percent of the people do not 
object to, accept the use of that technology, even though it 
doesn't work. So that is the basis on which we deploy expensive 
screening technology?
    Mr. Kane. No, Congressman. I think that is a partial basis, 
but I think the other extensive testing that we did in the 
labs, that we did in the field, and that we do in the airports 
every day----
    Mr. Mica. Well, the public may accept it, but I am telling 
you I will not. Thank you.
    I yield back.
    Mr. Chaffetz. The gentleman yields back.
    We have a vote on the floor. We have a committee that has 
now run past its time it was going to start. We have other 
Members who have joined us here who want to ask questions, but 
with 12 minutes to go we are going to have to stand in recess, 
with the expectation that both of you will come back to further 
testify and answer Members' questions. Is that your 
understanding, Mr. Kane?
    Mr. Kane. Mr. Chairman, yes, it is.
    Mr. Chaffetz. Mr. Kair.
    Mr. Kair. Yes, Mr. Chairman.
    Mr. Chaffetz. My apologies to the Members. This is not the 
way we were going to conduct this. This is not right and fair 
to the Members. I appreciate the public and those that have 
traveled here to do this. Nevertheless, we will continue this 
hearing at a date to be determined. We stand in recess. Thank 
you.
    [Whereupon, at 1:38 p.m., the subcommittee was adjourned.]

                                 
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