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



 
  TSA'S RECENT SCANNER SHUFFLE: REAL STRATEGY OR WASTEFUL SMOKESCREEN? 

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

                                HEARING

                               before the

                SUBCOMMITTEE ON TRANSPORTATION SECURITY

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 15, 2012

                               __________

                           Serial No. 112-121

                               __________

       Printed for the use of the Committee on Homeland Security
                                     

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                     COMMITTEE ON HOMELAND SECURITY

                   Peter T. King, New York, Chairman
Lamar Smith, Texas                   Bennie G. Thompson, Mississippi
Daniel E. Lungren, California        Loretta Sanchez, California
Mike Rogers, Alabama                 Sheila Jackson Lee, Texas
Michael T. McCaul, Texas             Henry Cuellar, Texas
Gus M. Bilirakis, Florida            Yvette D. Clarke, New York
Paul C. Broun, Georgia               Laura Richardson, California
Candice S. Miller, Michigan          Danny K. Davis, Illinois
Tim Walberg, Michigan                Brian Higgins, New York
Chip Cravaack, Minnesota             Cedric L. Richmond, Louisiana
Joe Walsh, Illinois                  Hansen Clarke, Michigan
Patrick Meehan, Pennsylvania         William R. Keating, Massachusetts
Ben Quayle, Arizona                  Kathleen C. Hochul, New York
Scott Rigell, Virginia               Janice Hahn, California
Billy Long, Missouri                 Ron Barber, Arizona
Jeff Duncan, South Carolina
Tom Marino, Pennsylvania
Blake Farenthold, Texas
Robert L. Turner, New York
            Michael J. Russell, Staff Director/Chief Counsel
               Kerry Ann Watkins, Senior Policy Director
                    Michael S. Twinchek, Chief Clerk
                I. Lanier Avant, Minority Staff Director
                                 ------                                

                SUBCOMMITTEE ON TRANSPORTATION SECURITY

                     Mike Rogers, Alabama, Chairman
Daniel E. Lungren, California        Sheila Jackson Lee, Texas
Tim Walberg, Michigan                Danny K. Davis, Illinois
Chip Cravaack, Minnesota             Cedric L. Richmond, Louisiana
Joe Walsh, Illinois, Vice Chair      Ron Barber, Arizona
Robert L. Turner, New York           Bennie G. Thompson, Mississippi 
Peter T. King, New York (Ex              (Ex Officio)
    Officio)
                     Amanda Parikh, Staff Director
                   Natalie Nixon, Deputy Chief Clerk
                 Vacant, Minority Subcommittee Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Mike Rogers, a Representative in Congress From the 
  State of Alabama, and Chairman, Subcommittee on Transportation 
  Security.......................................................     1
The Honorable Danny K. Davis, a Representative in Congress From 
  the State of Illinois..........................................     3

                               Witnesses

Mr. Jonathan R. Cantor, Acting Chief Privacy Officer, U.S. 
  Department of Homeland Security:
  Oral Statement.................................................     3
  Joint Prepared Statement.......................................     5
Mr. John Sanders, Assistant Administrator, Office of Security 
  Capabilities, Transportation Security Administration:
  Oral Statement.................................................     7
  Joint Prepared Statement.......................................     5

                             For the Record

The Honorable Mike Rogers, a Representative in Congress From the 
  State of Alabama, and Chairman, Subcommittee on Transportation 
  Security:
  Letter From Chairman Mike Rogers to Hon. John S. Pistole.......     2
The Honorable Danny K. Davis, a Representative in Congress From 
  the State of Illinois:
  Joint Statement of Marc Rotenberg, President, EPIC; Ginger P. 
    McCall, Director, EPIC Open Government Project; and Jeramie 
    Scott, EPIC National Security Fellow.........................    10


  TSA'S RECENT SCANNER SHUFFLE: REAL STRATEGY OR WASTEFUL SMOKESCREEN?

                              ----------                              


                      Thursday, November 15, 2012

             U.S. House of Representatives,
           Subcommittee on Transportation Security,
                            Committee on Homeland Security,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10 a.m., in Room 
311, Cannon House Office Building, Hon. Mike Rogers [Chairman 
of the subcommittee] presiding.
    Present: Representatives Rogers and Davis.
    Also present: Representatives Walberg and Richmond.
    Mr. Rogers. The Committee on Homeland Security, 
Subcommittee on Transportation Security will come to order. 
This committee meeting today is to discuss TSA's use of 
backscatter AIT machines, and I would like to take this 
opportunity to welcome our witnesses, thank them for taking the 
time to prepare for this hearing and being here with us today. 
I really appreciate it.
    Are you all getting feedback? It sounds like this 
microphone is being strange.
    All right, thank you.
    Three weeks ago TSA notified the public it was removing 
backscatter AIT machines from several large airports and 
replacing them with millimeter wave AIT machines. TSA initially 
said it would deploy these backscatter machines to smaller 
airports; however, TSA could not produce a list of small 
airports when prompted by the subcommittee. That is because the 
machines won't be going to smaller airports any time soon. 
Instead, TSA is moving those 91 backscatter machines worth $14 
million of taxpayer money to its storage warehouse in Texas. 
According to TSA, this is because the testing of backscatter 
privacy software suddenly failed, and smaller airports don't 
have enough space to support the backscatter machines without 
privacy software.
    At this time I would like to insert a letter for the 
hearing record that I sent to Administrator Pistole yesterday 
expressing concerns about the recent allegations of contractor 
malfeasance that may have led to the failed test that put us in 
this situation. Without objection, it is so ordered.
    [The information follows:]
        Letter From Chairman Mike Rogers to Hon. John S. Pistole
                                 November 13, 2012.
Honorable John S. Pistole,
Administrator, Transportation Security Administration, 601 South 12th 
        Street, Arlington, VA 20598.
    Dear Administrator Pistole: I am deeply troubled by recent 
allegations of contractor malfeasance as it relates to the 
Transportation Security Administration's (TSA) use of backscatter 
Advanced Imaging Technology (AIT). According to information received by 
the subcommittee, it appears the manufacturer of backscatter AIT 
machines may have attempted to defraud the Government by knowingly 
manipulating an operational test of Automated Target Recognition (ATR) 
software in the field in order to have a successful outcome. In 
addition to these concerning allegations, I am extremely disturbed by 
TSA's apparent lack of oversight throughout the testing and evaluation 
of this technology.
    I fully expect to discuss this situation at our previously 
scheduled subcommittee hearing on November 15, 2012, entitled: ``TSA's 
Recent Scanner Shuffle: Real Strategy or Wasteful Smokescreen?'' As 
such, please ensure that John Sanders, who will testify on behalf of 
your agency, is prepared to answer the following questions:
    1. When did TSA first discover that the contractor might have 
        manipulated an operational test?
    2. What impact, if any, could the contractor's actions have on 
        aviation security?
    3. What actions has TSA taken to deal with the potential 
        manipulation of an operational test?
    4. What level of oversight does TSA provide during the testing 
        process?
    5. Who was responsible for conducting the operational test and 
        certifying its success?
    6. At the time TSA decided to move 91 backscatter AIT machines from 
        large airports to small airports, when did the agency believe 
        ATR software would be ready to install on those machines?
    7. How long will those 91 backscatter AIT machines sit in storage?
    8. Do you plan to remove the remaining backscatter AIT machines 
        from the field? If so, when?
    Thank you for your prompt and personal attention to this matter. I 
appreciate your continuing efforts to secure the Nation's 
transportation systems.
            Sincerely,
                                               Mike Rogers,
                 Chairman, Subcommittee on Transportation Security.

    Mr. Rogers. I hope we can get some answers today on this 
extremely disturbing situation.
    Now, the reality is that TSA is squeezing backscatter 
machines into its warehouse next to useless puffer machines 
that we are all too familiar with. Perhaps the backscatter 
machines will be put to good use eventually, but that is the 
point: We just don't know.
    In the mean time the subcommittee has some serious 
questions: How did the testing of privacy software for 
backscatter go so wrong? What level of oversight did TSA 
provide during the testing process? Why did TSA move 
backscatter machines out of the big airports before knowing 
which smaller airports to put them in? When will ATR be ready 
to install on backscatter?
    Congress mandated that this software be installed by June. 
In addition, TSA still has not complied with the D.C. circuit 
court ruling to allow for public comment on the AIT, nor has 
the agency agreed to sponsor an independent third-party 
evaluation of the AIT's health effects, despite bipartisan 
consensus that an independent study would be beneficial. To me, 
it appears we not only are having a technology problem, but a 
significant transparency problem on our hands.
    Today I hope we can get a logical answer to some basic 
questions about AIT and its future. I also look forward to 
getting a better understanding of the coordination that exists 
between DHS and TSA when it comes to assessing passenger 
privacy issues up front to avoid these types of costly, 
convoluted situations where we shuffle machines around and then 
stick them in a warehouse.
    With that, I now recognize the Ranking Member of the 
subcommittee, the gentleman from Illinois Mr. Davis, for his 
opening statement he may have.
    Mr. Davis. Thank you very much, Mr. Chairman, and I want to 
thank our witnesses for being with us this morning.
    The subcommittee has closely followed advanced imaging 
technology for several Congresses under both Democratic and 
Republican leadership. On this side of the aisle, my colleagues 
have questioned both the effectiveness of the technology and 
the cost of the machines. I have a few issues that cause us as 
much concern as to whether these machines undermine the 
fundamental right of privacy. It is gratifying to see that the 
Chairman shares both our concerns and our commitment to 
privacy.
    On March 17, 2009, under the leadership of Congresswoman 
Jackson Lee, this subcommittee held a hearing evaluating the 
detection and screening technologies being used by the 
Department of Homeland Security. That hearing offered Members a 
chance to understand the enhanced screening technologies, 
protocols, and procedures. In the aftermath of the Christmas 
day bomber, also known as the underwear bomber, we expressed 
our support for the deployment of these advanced imaging 
technologies and were assured that these new machines would 
effectively diminish the threats that continue to put aviation 
security at risk.
    Since 2009, DHS and TSA have taken steps to implement the 
AIT devices in most of the major airports in the United States. 
However, we know that no technology is perfect. Based on a 
conservative estimate, it appears that the Department has 
invested at least $80 million on this technology so far. Given 
the challenges that TSA faced in assuring privacy protections 
in these machines, and the forward movement of technology, we 
must consider where we go from here.
    So again, I want to thank our witnesses for being here, and 
I want to thank you, Mr. Chairman, and look forward to the 
hearing.
    Mr. Rogers. I thank the gentleman.
    We are pleased to have several distinguished witnesses with 
us today on this important topic. Let me remind the witnesses 
that their entire written statements will appear in the record. 
Our first witness, Mr. Jonathan Cantor, currently serves as 
acting chief privacy officer to the Department of Homeland 
Security, a position he assumed in August 2012. Mr. Cantor 
previously served as a senior policy official at both the 
Department of Commerce, and the Social Security Administration.
    The Chairman now recognizes Mr. Cantor for his opening 
statement.

STATEMENT OF JONATHAN R. CANTOR, ACTING CHIEF PRIVACY OFFICER, 
              U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Cantor. Good morning, Chairman Rogers, and thank you. 
Thank you, Ranking Member Davis and distinguished Members of 
the subcommittee. Thank you for the opportunity today to 
testify about advanced imaging technology, or AIT.
    As you know, the Department of Homeland Security is the 
first department in the Federal Government to have a 
statutorily mandated privacy officer. I joined the Department 
in July of this year as deputy chief privacy officer, and I 
previously served as the chief privacy officer for the 
Department of Commerce and in an equivalent position at the 
Social Security Administration. I have had the pleasure of 
serving as acting chief privacy officer since the departure of 
my predecessor Mary Ellen Callahan in early August.
    The mission of the DHS Privacy Office is to protect the 
privacy of individuals and their personal information by 
embedding and enforcing privacy protections and transparency 
throughout the Department. The Privacy Office works to achieve 
this mission by fostering a culture of privacy and 
transparency; demonstrating leadership through policy and 
partnerships; providing outreach, education, training, and 
reports; conducting robust oversight and compliance reviews; 
and ensuring that DHS complies with Federal privacy, 
confidentiality, and disclosure laws, policies, and principles.
    The Privacy Office works with the Department's robust 
network of component privacy officers to ensure that Department 
activities incorporate privacy from the earliest stages of 
system and program development. Component privacy officers 
provide operational insight, support, and privacy expertise for 
component activities that require privacy compliance 
documentation.
    The privacy impact assessment, or PIA, is a public document 
in the privacy compliance process that serves as a decision-
making tool to identify and mitigate privacy risks. The PIA 
uses the Fair Information Practice Principles to assess and 
mitigate impacts on an individual's privacy. It also helps the 
public understand what information the Department is 
collecting, the purpose for collection, and how DHS will use, 
share, access, and store the information.
    The DHS Privacy Office works collaboratively with TSA to 
develop the Department's PIA on AIT screening. DHS published 
its original PIA in January 2008 to cover AIT screening of 
passengers at the checkpoint and has subsequently updated it 
three times to address improvements in technology.
    Prior to initial deployment, DHS instituted several 
safeguards to protect the privacy of individuals who are 
screened using AIT. These measures included providing signage 
at all AIT locations to inform the passenger of what the 
scanned image looked like and of their option to decline AIT 
screening in favor of a physical screening.
    DHS also instituted robust privacy protections for handling 
AIT images. Privacy protections in places where automated 
target recognition, or ATR, is not yet available include 
filters to make AIT images not personally identifiable, and 
officer review of the image in a remote location to preserve 
passenger anonymity. These steps ensure that the passenger and 
other travelers cannot see the image, and the officer viewing 
the image cannot see the passenger. Once an officer clears an 
individual, the image is not stored in the system and is no 
longer viewable.
    ATR software upgrades enhance passenger privacy by 
eliminating passenger-specific images. Machines upgraded with 
ATR software generate a generic outline that is displayed on 
the screen located on the AIT machine and viewable by the 
public. ATR-enabled units are not capable of storing or 
printing the generic image produced during screening.
    It is important to note that both with backscatter and 
millimeter wave machines, a passenger may always decline the 
AIT scan and receive a pat-down as an alternative.
    To provide additional awareness of the privacy protection 
DHS implements for AIT, the DHS Privacy Office, in 
collaboration with TSA, has engaged with the public through 
multiple methods. We briefed the Department's Data Privacy and 
Integrity Advisory Committee on AIT and provided a site visit 
that included demonstration of AIT technology. We provided a 
similar demonstration of AIT at a TSA test facility for members 
of the privacy advocacy community. In addition, my predecessor 
hosted quarterly roundtable meetings with privacy advocates to 
discuss AIT and other timely topics.
    For the 3 months that I have served as acting chief privacy 
officer, my office has continued to embed privacy protections 
throughout the Department. I am happy to answer any questions 
you may have.
    [The joint prepared statement of Mr. Cantor and Mr. Sanders 
follows:]
    Joint Prepared Statement of Jonathan R. Cantor and John Sanders
                           November 15, 2012
    Good morning Chairman Rogers, Ranking Member Jackson Lee, and 
distinguished Members of the subcommittee. Thank you for the 
opportunity to testify today about Advanced Imaging Technology (AIT).
    As we have often stated, the Transportation Security Administration 
(TSA) screens approximately 1.8 million people who travel each day 
through 450 U.S. airports. We employ risk-based, intelligence-driven 
operations to prevent terrorist attacks and to reduce the vulnerability 
of the Nation's transportation system to terrorism. The TSA workforce 
is vigilant in ensuring the security of passengers that travel through 
our Nation's vast transportation networks. We continue to evolve our 
security approach by examining the procedures and technologies we use, 
how we carry out specific security procedures, and how we conduct 
screening.
           using the best technology at our nation's airports
    History shows that the threat to our transportation networks 
continues to evolve, as demonstrated by devices used by the underwear 
bomber on Christmas day 2009 and the improved underwear bomb device 
discovered in the disrupted plot this past May. TSA works in 
partnership with private industry to develop and deploy innovative and 
effective screening technologies across the Nation's transportation 
system. For example, TSA and private industry's collaboration to deploy 
AIT units has resulted in Transportation Security Officers having the 
best technology available to detect both metallic and non-metallic 
threats.
    TSA deploys two types of AIT: Millimeter wave and general-use 
backscatter X-ray. Currently, there are AIT units in use at 200 U.S. 
airports. TSA has installed automated target recognition (ATR) software 
on all currently deployed millimeter wave imaging technology units and 
has tested similar software for use on its general-use backscatter 
units. ATR software upgrades enhance passenger privacy by eliminating 
passenger-specific images. ATR also improves throughput capabilities by 
increasing the efficiency of the checkpoint screening technology. 
Machines upgraded with ATR software generate a generic outline that is 
displayed on a screen located on the AIT machine and viewable by the 
public. The software auto-detects anomalies concealed on the body that 
are then resolved through additional screening.
    ATR-enabled units deployed at airports are not capable of storing 
or printing the generic image produced during screening and don't 
produce a unique image for each individual. It is important to note 
that a passenger may always decline to be scanned by AIT and will 
receive a pat-down as an alternative.
    While significant progress has been made, our AIT general-use 
backscatter technology vendor has faced challenges in developing and 
refining its ATR software, thus leading to additional lab testing and 
extensions in certifying and deploying its ATR software. In September 
2012, contract awards were made to three vendors for the purchase and 
testing of next generation AIT units. TSA anticipates that next 
generation AIT units will have enhanced detection capabilities and a 
smaller footprint, enabling faster passenger throughput; all next 
generation AIT units will have ATR software. Based on analysis of 
processing time, size of the units, passenger throughput, staffing 
requirements, and AIT allocations, TSA has begun to install ATR-
equipped millimeter wave AIT units at several airports that had 
previously been equipped with general-use backscatter AIT units.
                      protecting passenger privacy
    The Department of Homeland Security (DHS) is committed to 
protecting the privacy of all individuals by embedding and enforcing 
privacy safeguards and transparency in all DHS activities. The 
Department's network of Component Privacy Officers work with the DHS 
Privacy Office to ensure Department activities and incorporate privacy 
from the earliest stages of system and program development. DHS 
systems, initiatives, and programs are subject to a rigorous privacy 
compliance process, and undergo periodic reviews to ensure continued 
compliance. The DHS Privacy Office works closely with Component Privacy 
Officers, who provide operational insight, support, and privacy 
expertise for component activities that require privacy compliance 
documentation.
    The Privacy Impact Assessment (PIA) is a key document in the 
privacy compliance process and serves as a decision-making tool to 
identify and mitigate privacy risks throughout the development life 
cycle of a program or system. Using the Fair Information Practice 
Principles to assess and mitigate impacts on an individual's privacy, 
the PIA helps the public understand what information the Department is 
collecting; the purpose for collection; and how DHS will use, share, 
access, and store the information.
    TSA worked collaboratively with the DHS Privacy Office in 
developing its PIA on AIT screening. TSA published its original PIA in 
January 2008 to cover AIT screening of passengers at the checkpoint, 
and has subsequently updated it three times to address improvements in 
the technology. The PIA provides transparency into the Department's 
operations and privacy protections related to AIT.
    As described in its 2008 PIA (http://www.dhs.gov/xlibrary/assets/
privacy/privacy-pia-tsa-wbi-jan2008.pdf), TSA instituted several 
safeguards prior to initial deployment to protect the privacy of 
individuals who are screened using AIT. TSA implemented a variety of 
measures, both technical and operational, to integrate and incorporate 
privacy considerations from the start, including providing signage at 
all AIT locations to inform the passenger of what the scanned image 
looked like and of their option to decline AIT screening in favor of 
physical screening.
    TSA also instituted robust privacy protections for handling AIT 
images. Privacy protections in place where ATR is not yet available 
include filters to make AIT images not personally identifiable and 
officer review of the image in a remote location to preserve passenger 
anonymity. Images are transmitted securely between the unit and the 
viewing room to prevent them from being lost, modified, or disclosed. 
In short, the passenger and other travelers cannot see the image, and 
the officer viewing the image cannot see the passenger. Once an officer 
clears an individual, the image is no longer viewable or stored in the 
system. ATR-enabled units are not capable of storing or printing the 
generic image produced during screening. Both types of AITs transmit 
the images securely--the general-use backscatter units encrypt images 
during transmission, whereas the millimeter wave units transmit images 
in a proprietary format viewable only with proprietary equipment.
    To provide additional public awareness of the privacy protections 
DHS implements for AIT, the DHS Chief Privacy Officer and TSA Privacy 
Officer have regularly communicated with privacy advocates and the Data 
Privacy and Integrity Advisory Committee regarding AIT. In addition, in 
February 2010, TSA submitted a Report to Congress on privacy 
protections and deployment of AIT entitled ``Advanced Imaging 
Technologies: Passenger Privacy Protections.''
              meeting national health and safety standards
    TSA places a premium on the safety of the traveling public. Both 
types of AITs have been evaluated and found to meet all applicable 
National health and safety standards, including those published by the 
Institute of Electrical and Electronics Engineers for millimeter wave 
systems, and those published by the American National Standards 
Institute/Health Physics Society and the National Council on Radiation 
Protection and Measurements (NCRP) for general-use backscatter X-ray 
systems. In addition, the ATR software upgrade has no effect on the 
radiation emissions from AITs.
    Each TSA general-use backscatter X-ray AIT system undergoes a 
radiation survey upon initial installation at an airport and every 6 
months thereafter to ensure it stays in top working condition. TSA also 
performs radiation surveys after maintenance on components that affect 
radiation safety and at the request of employees. These surveys and 
periodic maintenance activities ensure the equipment operates properly 
and meets all emission limits, thus providing a high level of 
confidence in the safety of the equipment.
    Testing by independent entities, including the Johns Hopkins 
University Applied Physics Laboratory, the Food and Drug 
Administration's Center for Devices and Radiological Health, the 
National Institute of Standards and Technology, and the U.S. Army 
Public Health Command have demonstrated that the radiation dose from a 
TSA general use backscatter AIT unit is well below established safety 
limits for passengers, operators, and bystanders, including children, 
pregnant women, frequent flyers, and individuals with medical implants. 
These safety limits are based on recommendations published by NCRP. In 
fact, the average person receives more radiation naturally each hour 
than they do from one screening by a general-use backscatter X-ray AIT 
system and receives the same amount of radiation exposure from 2 
minutes of flight. These independent entities had full and direct 
access to TSA's currently deployed general-use backscatter AITs during 
their evaluation and/or testing.
                               conclusion
    AIT has proven to be the most effective available technology to 
protect the traveling public from evolving threats including non-
metallic explosive devices, has a strong array of privacy protections, 
is being efficiently deployed, and has been documented by experts 
independent from TSA as safe for passengers and our own employees.
    Thank you, Chairman Rogers, Ranking Member Jackson Lee, and Members 
of the subcommittee, for the opportunity to appear before you today. We 
look forward to answering your questions.

    Mr. Rogers. Thank you, Mr. Cantor, for your testimony. We 
appreciation you being here, and know your time is valuable.
    Our second witness Mr. John Sanders currently serves as the 
assistant administrator for the Office of Security Capabilities 
at TSA. Mr. Sanders joined TSA in 2010 and served as the deputy 
assistant administrator for the Office of Security 
Technologies, where he focused on day-to-day operations and 
assisted TSA senior leadership in the development and execution 
of risk-based security. Prior to joining TSA, Mr. Sanders 
worked in the private sector. He has more than 20 years of 
experience in the aviation industry.
    Mr. Sanders you are recognized for 5 minutes.

 STATEMENT OF JOHN SANDERS, ASSISTANT ADMINISTRATOR, OFFICE OF 
 SECURITY CAPABILITIES, TRANSPORTATION SECURITY ADMINISTRATION

    Mr. Sanders. Good morning, Chairman Rogers, Mr. Davis--or, 
sorry, Congressman Davis, and Congressman Richmond. Thank you 
for the opportunity to testify today.
    The Transportation Security Administration screens 
approximately 1.8 million people at 450 airports every day, 
employing risk-based, intelligence-driven operations to prevent 
terrorist attacks and reduce our vulnerability to terrorism. We 
continue to evolve our approach by examining the policies, 
procedures, and technologies we use to conduct screening.
    TSA works with the private industry to develop and deploy 
the best technology available to detect metallic and 
nonmetallic threats, such as the explosive devices used by the 
underwear bomber on Christmas day 2009 and the improved device 
discovered in the disrupted plot this past May. These are 
threats that walk-through metal detectors cannot detect.
    TSA currently operates a mix of millimeter wave and 
general-use backscatter AIT units at 200 airports. All of the 
millimeter wave AIT units have been upgraded with automatic 
target recognition functionality, and testing is under way for 
ATR in general-use backscatter machines.
    Since the beginning of the AIT program, TSA worked closely 
with the DHS Privacy Office to ensure that this program was a 
model for passenger privacy protections. ATR software further 
enhances passenger privacy by eliminating passenger-specific 
images and improves throughput at the checkpoint. The software 
autodetects anomalies concealed on the body. They are then 
resolved through additional screening.
    TSA places a premium on passenger safety with respect to 
AIT. Both types of AIT have been repeatedly evaluated and 
determined to meet all applicable National health and safety 
standards. These tests have demonstrated that the radiation 
from a TSA general-use backscatter AIT screening is well below 
established safety limits for individuals being screened, 
operators, and bystanders, including children, pregnant women, 
frequent flyers, and individuals with medical implants. In 
fact, the average person receives more radiation naturally each 
hour than they do from one screening by a general-use 
backscatter X-ray AIT system, and receives the same amount of 
X-ray exposure from 2 minutes of flight at altitude on the 
aircraft they are boarding. General-use backscatter X-ray AIT 
systems undergo a radiation survey upon initial installation 
and every 6 months thereafter to ensure it stays in top working 
condition. The surveys and periodic maintenance activities 
ensure the equipment operates properly and meets all emission 
limits.
    I would like to close by emphasizing the AIT is the best 
available technology to protect the traveling public from 
nonmetallic explosive devices, has a robust array of privacy 
protections, is being efficiently deployed, and has been 
documented by experts independent from TSA as safe for 
passengers and our own employees.
    I look forward to answering your questions.
    Mr. Rogers. Did I just hear you say that it has been 
efficiently deployed?
    Mr. Sanders. Yes, sir.
    Mr. Rogers. We are taking 91 of these things worth $14 
million and going to put them in a warehouse. That is 
efficient?
    Mr. Sanders. When we look at the number of passengers that 
we are screening, if you look at the redeployment, right now we 
are scanning with those machines about 26 percent of the 
passengers that are walking through the checkpoints. With the 
redeployment it allows us to increase that AIT utilization from 
26 percent to 76 percent, which equates at those 7 airports to 
about 180,000 more passengers per day through our most 
effective technology.
    Mr. Rogers. So what is going to happen with these 91 
machines?
    Mr. Sanders. It is my hope that the contractor that we are 
working with will be able to develop the ATR software. We will 
be able to put them on those machines and then redeploy them at 
a later date.
    Mr. Rogers. Now, you know, it was announced 2 or 3 weeks 
ago, thereabouts, that TSA was going to move these to smaller 
airports, and that has changed. They are going to go to the 
warehouse. What happened? What happened with the software 
upgrade that was supposed to be done? Were you all expecting to 
do a software upgrade before you put them in the smaller 
airports?
    Mr. Sanders. We made a decision in May of this year to do a 
redeployment, as I said, to provide the most effective and 
efficient solution. In the May-through-July time frame, the 
systems were undergoing operational test and evaluation, which 
completed at the end of July. Then there is a period where a 
systems evaluation report as well as a letter of assessment is 
written by DHS Test and Evaluation Group, and we were expecting 
to start the redeployment of those eight AIT systems, the 
general-use millimeter waves or the general-use backscatter 
systems, to smaller airports starting in October through the 
end of the year.
    Mr. Rogers. When did TSA first discover that the 
backscatter AIT vendor might have manipulated the operational 
test?
    Mr. Sanders. I wouldn't say, sir, that we believe--that we 
have any evidence that--documents that they absolutely did.
    Mr. Rogers. But my understanding is that you suspect it.
    Mr. Sanders. We have information that we have contacted the 
manufacturer to ask for additional information so that we can 
look into the matter further.
    Mr. Rogers. You said in your opening statement that these 
machines had been independently evaluated. Was that just as to 
the health risks, or was it to the efficacy of the machine?
    Mr. Sanders. Both, sir. With regards to the health effects, 
we have had numerous independent tests performed. They include 
the Food and Drug Administration, the Johns Hopkins University 
Applied Physics Laboratory, the U.S. Army Public Health 
Command, and the National Institute of Standards and Technology 
have all looked at them with regards to the safety, and all of 
those have independently verified----
    Mr. Rogers. What about the efficacy?
    Mr. Sanders. The efficacy has done--is being performed by 
both GAO, the DHS inspector general, as well as TSA's own 
covert testing.
    Mr. Rogers. Well, that is my concern, is how could the 
vendor manipulate the outcome if, in fact, a third party is 
doing the evaluation?
    Mr. Sanders. Again, sir, I don't have any concrete 
information at this point that the vendor absolutely did 
anything that would lead to malfeasance. I think right now it 
is predecisional. We are in possession of the information, and 
we have contacted the vendor to provide us additional 
information with regards to that so that we can actually 
determine if that did occur.
    Mr. Rogers. I understand that, but my question is this: If 
the vendor is not doing the evaluation, a third party is, how 
could the vendor manipulate the results, even assuming that 
that happened? How could they if there is a third party? The 
vendor wouldn't have any ability to manipulate them, would 
they?
    Mr. Sanders. No, sir, they would not have. Once the 
operational test and evaluation begins, the system is under 
configuration control, and there is no opportunity for the 
vendor to make any changes to the system. Again, at the 
beginning of the program, before something gets under way, we 
might believe that the system is in one configuration when it 
is not in that particular configuration.
    At this point we don't know what has occurred, and as I 
have said, we are--we have contacted the vendor, and we are 
working with them to get to the bottom of it to see if there is 
any----
    Mr. Rogers. When you all made the announcement that you all 
were going to move these to smaller airports, was it your 
expectation to move them to the smaller airports with the 
current software configuration?
    Mr. Sanders. No, sir, it was----
    Mr. Rogers. It was only if you could upgrade the software 
to the stickman image.
    Mr. Sanders. Yes, sir, that is correct.
    Mr. Rogers. You really thought that it was going to be 
able--you were going to be able to do that?
    Mr. Sanders. Yes, sir, we did.
    Mr. Rogers. You didn't know at that time that you made the 
announcement that it was not possible?
    Mr. Sanders. No, sir, we had every belief that the 
contractor would be able to meet their commitments and provide 
the ATR, and we would have it in the field.
    Mr. Rogers. My time is expired. I got some more questions. 
We will do another round in a few minutes.
    Mr. Davis is recognized.
    Mr. Davis. Thank you, Mr. Chairman.
    Before I begin with my questioning, I would like to ask 
unanimous consent that the prepared testimony of EPIC, the 
Democrat witness denied by the Majority, be inserted into the 
record.
    Mr. Rogers. Without objection, so ordered.
    [The joint statement of Mr. Rotenberg, Ms. McCall, and Mr. 
Scott follows:]
 Joint Statement of Marc Rotenberg, President, EPIC; Ginger P. McCall, 
    Director, EPIC Open Government Project; and Jeramie Scott, EPIC 
                        National Security Fellow
                           November 15, 2012
    Mr. Chairman and Members of the subcommittee: Thank you for holding 
this hearing and for the invitation to EPIC to submit a statement for 
the record. The Electronic Privacy Information Center (``EPIC'') is a 
non-partisan research organization, focused on emerging privacy and 
civil liberty issues. For the last several years, EPIC has devoted 
considerable attention to the problems with the Transportation Security 
Administration's (``TSA'') airport screening procedures. In the course 
of this work, we have uncovered a great deal of information that we 
believe will be of interest to the Subcommittee on Transportation 
Security.
    This statement summarizes several of our major findings, as well as 
the recent decision from the D.C. Circuit Court of Appeals in EPIC v. 
DHS, which held that the agency failed to undertake a public rulemaking 
as required by law. We believe that if the agency had pursued the 
public comment process at the outset, the decision to deploy 
backscatter X-ray devices could have been averted, taxpayer dollars 
saved, privacy and health risks avoided, and more effective techniques 
to safeguard air travel developed.
         the public concerns about airport screening procedures
    In the aftermath of 9/11, it was clear that steps needed to be 
taken to improve aviation security. However, not all measures developed 
were equally effective. Protecting cockpits on commercial aircraft was 
critical. But many of the devices developed for screening passengers, 
such as the ``puffer'' devices, proved ineffective. Among the most 
controversial was the deployment of Whole Body Imaging (``WBI'') 
devices, designed to reveal the air traveler stripped naked.
    In 2005, EPIC published the first report that examined the privacy 
and health impacts of the TSA's proposed body scanner technology.\1\ 
Since that time we have organized public conferences, received 
complaints from the traveling public, and worked with other 
organizations that share our concern about this program.\2\
---------------------------------------------------------------------------
    \1\ EPIC, ``Spotlight on Surveillance: Transportation Agency's Plan 
to X-Ray Travelers Should Be Stripped of Funding'' (June 2005), http://
epic.org/privacy/surveillance/spotlight/0605/.
    \2\ See, e.g., EPIC, ``Whole Body Imaging Technology and Body 
Scanners (`Backscatter' X-Ray and Millimeter Wave Screening),'' http://
epic.org/privacy/airtravel/backscatter/; EPIC, ``EPIC v. DHS 
(Suspension of Body Scanner Program)'' http://epic.org/privacy/
body_scanners/epic_v_dhs_suspension_of_body.html; EPIC, ``EPIC v. 
Department of Homeland Security--Body Scanners'' http://epic.org/
privacy/airtravel/backscatter/epic_v_dhs.html; and EPIC, ``The 
Stripping of Freedom: A Careful Scan of TSA Security Procedures'' 
(Public Conference) (Jan. 6, 2011), http://epic.org/events/tsa/. EPIC 
also maintains a webpage where travelers can fill out a Body Scanner 
Incident Report (http://epic.org/bodyscanner/incident_report/).
---------------------------------------------------------------------------
    EPIC has also pursued Freedom of Information Act (``FOIA'') cases 
to learn more about the body scanner devices. We believe it is 
essential to assess the actual operation of the devices. When we say 
that there are on-going privacy risks to American travelers and that 
the TSA has not done enough to safeguard privacy, we are not 
speculating. We are pointing to facts about the devices that are known 
to the TSA, which the agency has been reluctant to discuss with 
Congress or the American public.
    Following two FOIA lawsuits against the agency, EPIC received the 
TSA's Procurement Specifications for body scanners.\3\ The Procurement 
Specifications provided specific stipulations made by the agency for 
the vendors L3 and Rapiscan, which showed: (1) TSA required the body 
scanners to have the capability to store, record, transmit images of 
the naked human body, (2) that the machines were not designed to detect 
powdered explosives, and (3) that the privacy filters could be turned 
off.\4\
---------------------------------------------------------------------------
    \3\ TSA Office of Security Technology System Planning and 
Evaluation, Procurement Specification for Whole Body Imager Devices for 
Checkpoint Operations, Sept. 23, 2008 (``TSA Procurement Specifications 
Document''), available at http://epic.org/open_gov/foia/
TSA_Procurement_Specs.pdf.
    \4\ TSA Procurement Specifications Document at 5 (stating ``[w]hen 
in Test Mode, the WBI: shall allow exporting of image data in real 
time; . . . shall provide a secure means for high-speed transfer of 
image data; [and] shall allow exporting of image data (raw and 
reconstructed)''); Several reports and articles reach a similar 
conclusion. See, e.g., Leon Kaufman and Joseph Carlson, An Evaluation 
of Airport X-ray Backscatter Units Based on Image Characteristics, 
Journal of Transportation Security, http://springerlink.com/content/
g6620thk08679160/fulltext.pdf; GAO, ``Aviation Security: TSA Is 
Increasing Procurement and Deployment of the Advanced Imaging 
Technology, but Challenges to This Effort and Other Areas of Aviation 
Security Remain'' (Mar. 17, 2010), http://www.gao.gov/assets/130/
124207.pdf.
---------------------------------------------------------------------------
    In the spring of 2009, when we became aware that the TSA was 
planning to deploy the body scanner for primary screening in U.S. 
airports, we worked with a broad range of organizations and 
respectfully petitioned Secretary Napolitano to postpone the planned 
deployment until the public was given the opportunity to express its 
views on this dramatic change in agency procedure.\5\ We asked the 
Department of Homeland Security (``DHS'') to suspend the body scanner 
program while conducting ``a rulemaking process to receive public input 
on the agency's use of `Whole Body Imaging' technologies.''\6\ While 
DHS began to aggressively deploy full-body scanners, EPIC received no 
response to our initial petition. In spring of 2010, EPIC submitted a 
second petition to Secretary Napolitano and DHS Chief Privacy Officer 
Mary Ellen Callahan and urged DHS to suspend the body scanner program 
in light of questions about the effectiveness of body scanners, 
traveler complaints, privacy risks, and religious objections.\7\
---------------------------------------------------------------------------
    \5\ Letter from EPIC and 33 organizations to Secretary Janet 
Napolitano, U.S. Dep't of Homeland Security (May 31, 2009), http://
epic.org/privacy/airtravel/backscatter/Napolitano_ltrwbi-6-09.pdf.
    \6\ Id.
    \7\ Letter from EPIC, et. al. to Secretary Napolitano and Chief 
Privacy Officer Callahan, U.S. Dept. of Homeland Security (Apr. 21, 
2010), http://epic.org/privacy/airtravel/backscatter/
petition_042110.pdf.
---------------------------------------------------------------------------
                              epic v. dhs
    Following the Secretary's failure to respond to either of our 
petitions calling for public rulemaking, EPIC filed a lawsuit against 
DHS in the D.C. Circuit Court of Appeals. In the suit, we argued that 
the airport body scanner program violated several privacy laws, the 
Administrative Procedure Act, and the Fourth Amendment. We said that 
the Department of Homeland Security ``has initiated the most sweeping, 
the most invasive, and the most unaccountable suspicionless search of 
American travelers in history.''\8\
---------------------------------------------------------------------------
    \8\ Opening Br. For Petitioners EPIC Chip Pitts, Bruce Schneier, 
and Nadhira Al-Khalili, available at http://epic.org/
EPIC_Body_Scanner_OB.pdf.
---------------------------------------------------------------------------
    The D.C. Circuit Court of Appeals ruled that the TSA failed to 
undertake the required notice-and-comment rulemaking when the agency 
chose to make body scanners the primary screening method at U.S. 
airports.\9\ The Court ordered TSA to ``act promptly'' in conducting a 
notice-and-comment rulemaking.\10\ Since that decision in July of 2011 
we have sought to have the agency comply with the Order of the court.
---------------------------------------------------------------------------
    \9\ EPIC v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 8 (D.C. Cir. 
2011).
    \10\ Id.
---------------------------------------------------------------------------
    With respect to the other claims, the D.C. Circuit Court of Appeals 
determined that there was no substantive violation of privacy rights 
because ``[n]o passenger is ever required to submit to an AIT [Advanced 
Imaging Technology] scan.'' The Court expressed further concern about 
the agency's conduct:

``Signs at the security checkpoint notify passengers they may opt 
instead for a patdown, which the TSA claims is the only effective 
alternative method of screening passengers. A passenger who does not 
want to pass through an AIT scanner may ask that the patdown be 
performed by an officer of the same sex and in private. Many passengers 
nonetheless remain unaware of this right, and some who have exercised 
the right have complained that the resulting patdown was unnecessarily 
aggressive.''

    EPIC, 653 F.3d at 3.\11\ Even with this clear determination from 
the court, we continue to receive complaints from passengers that they 
are not told they can opt out or that they receive overly aggressive 
pat-downs when they do.
---------------------------------------------------------------------------
    \11\ The Court further stated ``any passenger may opt out of AIT 
screening in favor of a patdown, which allows him to decide which of 
two options for detecting a concealed, nonmetallic weapon or explosive 
is least invasive.'' EPIC, 653 F.3d at 10.
---------------------------------------------------------------------------
  the risk of more widespread deployment of whole body imaging devices
    EPIC pursued additional efforts regarding the development of mobile 
body scanners, the use of body scanners at courthouses, and the 
radiation risks presented by backscatter X-ray body scanners. 
Additionally, EPIC continued to push for TSA to do the court-ordered 
notice-and-comment rulemaking in the face of persistent delay by the 
agency.
Mobile Body Scanners
    The use of body-scanner technology has expanded beyond air travel 
to include use at other venues and the use of mobile scanning 
technology. In March 2010, the DHS released a ``Surface Transportation 
Security Priority Assessment,'' which detailed the agency's plans to 
conduct risk assessments and implement new body-scanner technology in 
America's surface transportation system.\12\ In 2006 and again in 2009, 
body-scanner technology was tested on Port Authority Trans-Hudson New 
York/New Jersey train riders. Moreover, mobile body scanners 
traditionally used in the warzones of Afghanistan and Iraq, have now 
been deployed on U.S. streets.\13\
---------------------------------------------------------------------------
    \12\ TSA, Surface Transportation Security Priority Assessment, 
available at http://www.whitehouse.gov/sites/default/files/rss_viewer/
STSA.pdf.
    \13\ Andy Greenberg, Full-Body Scan Technology Deployed in Street-
Roving Vans, FORBES, Aug. 24, 2010, http://www.forbes.com/sites/
andygreenberg/2010/08/24/full-body-scan-technology-deployed-in-street-
roving-vans/.
---------------------------------------------------------------------------
    In response to a 2010 Freedom of Information Act request and 
subsequent lawsuit, EPIC obtained documents from the DHS indicating 
that the agency has spent millions of dollars developing and acquiring 
mobile body-scanner technology to be used in surface transit and other 
high-occupancy venues.\14\ According to the documents obtained by EPIC, 
the Federal agency plans to expand the use of these systems to monitor 
crowds--peering under cloths and inside bags away from airports.
---------------------------------------------------------------------------
    \14\ DHS, ``Privacy Impact Assessment for the Rail Security Pilot 
Study Phase II at PATH'' (July 12, 2006), available at http://epic.org/
privacy/body_scanners/EPIC_Body_Scan_FOIA_Docs_Feb_2011.pdf.
---------------------------------------------------------------------------
Scanners in Courthouses
    In another example of body scanners being used outside the context 
of airport security, EPIC filed a FOIA request with the United States 
Marshalls Service to obtain information about the agency's use of full-
body scanners for courthouse security. EPIC pursued the case in Federal 
court, and has obtained acknowledgement by the U.S. Marshalls Service 
that a single machine has stored ``approximately 35,314 images'' of the 
full-body scans of courthouse visitors over a 6-month period.\15\
---------------------------------------------------------------------------
    \15\ EPIC Press Release, Documents Reveal that Body Scanners 
Routinely Store and Record Images, Aug. 3, 2010, http://epic.org/press/
EPIC_Body_Scanner_Press_Release_08- _03_10.pdf.
---------------------------------------------------------------------------
Notice-and-Comment Rulemaking
    After the D.C. Circuit Court of Appeals' 2011 ruling mandating that 
the TSA ``promptly'' undertake notice and comment rulemaking,\16\ a 
year passed without agency action. EPIC then urged the Court to require 
the Secretary of Homeland Security to begin a public comment process or 
suspend the program.\17\ The agency subsequently replied that it will 
``finalize documents'' by February 2013.\18\ The D.C. Circuit Court of 
Appeals' then laid out a firm deadline for the TSA, stating that it 
expects the agency to publish the rule before the end of March 
2013.\19\
---------------------------------------------------------------------------
    \16\ EPIC., 653 F.3d 1 (D.C. Cir. 2011).
    \17\ EPIC's Petition for a Writ of Mandamus to Enforce This Court's 
Mandate, July 17, 2012, available at http://epic.org/privacy/
body_scanners/EPIC-Petition-for-Writ-of-Mandamus.pdf.
    \18\ Resp't Resp to Opp'n to Pet. For Writ of Mandamus at 2 (Aug. 
30. 2012), available at http://epic.org/privacy/body_scanners/DHS-
Response-in-Opposition.pdf.
    \19\ United States Court of Appeals for the District of Columbia 
Circuit Court Order (Sept. 25, 2012), available at http://epic.org/
privacy/body_scanners/DC-Cir-Mandamus-Order.pdf.
---------------------------------------------------------------------------
          rejection of body scanners outside the united states
    The United States remains one of the very few countries in the 
world that subjects air travelers to body screening technology and 
perhaps the only country that continues to use backscatter X-ray 
devices. The European Union, and the 27 member countries it represents, 
rejected the use of backscatter X-ray devices at airports.\20\ 
Additionally, the European Union adopted strict operational and 
technical requirements for the use of body scanners generally.\21\ The 
additional conditions include, for example, not linking the image to 
the screened person, informing passengers of the conditions under which 
the scanning takes place, and giving passengers the right to opt 
out.\22\
---------------------------------------------------------------------------
    \20\ European Commission Press Release, Aviation Security: 
Commission Adopts New Rules on the Use of Security Scanners at European 
Airports, Nov. 14, 2011, http://europa.eu/rapid/pressrelease_IP-11-
1343_en.pdf.
    \21\ Id.
    \22\ Id.
---------------------------------------------------------------------------
                               conclusion
    The TSA's decision to remove the backscatter X-ray devices from 
major airports in the United States lends considerable support to the 
objections that EPIC and others have raised about the airport screening 
program. Perhaps if the agency had undertaken the public rulemaking 
when many organizations and air travelers asked them to do so, money 
would have been saved and risks to health, privacy, and religious 
interests of travelers diminished.
    Still, the subcommittee should press the agency to begin the public 
comment process. Travelers have the right to express their views about 
the agency program.

    Mr. Davis. Thank you, thank you very much, Mr. Chairman.
    Mr. Sanders, there was an article published earlier this 
week regarding sensitive information you provided to Congress 
regarding potential vendor misconduct. Could you explain for 
the committee why it is important that sensitive information 
regarding potential misconduct by a vendor not be leaked 
publicly before the vendor has the opportunity to respond?
    Mr. Sanders. Yes, sir, if I could answer that question with 
regards to my experience from private industry. I can say as a 
former small business owner, it can be devastating to the 
business to have allegations made that have not--the proper due 
process has not been allowed to take place so that you can 
respond to those before it gets into the press, and it becomes 
a discussion, if you will, in a public forum that does not 
allow the company to defend themselves.
    Mr. Davis. So it is very possible that the allegations not 
necessarily be proven, and unnecessary damage then would have 
been done to the vendor as well as to the users as well?
    Mr. Sanders. Yes, sir, that is a possibility.
    Mr. Davis. While I am asking, a February 2012 DHS OIG 
report on TSA's use of backscatter AIT units reviewed previous 
TSA radiation studies, but did not include the results of any 
of the new tests. My question: Has TSA ever conducted testing 
on the day-to-day and the cumulative effect of workplace 
``zinging'' radiation on TSOs and other TSA employees, and if 
not, why? If so, can we provide the results of those tests?
    Mr. Sanders. Yes, sir. We have conducted both independent 
and--independent tests as well as tests by TSA, and we would be 
happy to share those with you.
    Mr. Davis. Then while integrating ATR software into its AIT 
devices, TSA has moved older backscatter X-ray machines out of 
the major airports with a high volume of passengers. Please 
explain the rationale behind this and the efforts that will be 
taken to ensure privacy and security requirements are met at 
locations receiving the backscatter X-ray machines.
    Mr. Sanders. So the redeployment was done to provide the 
most effective and efficient security possible to the traveling 
public. When we moved those machines out, we knew that we could 
increase, dramatically increase, the AIT utilization as well as 
the number of passengers that would be screened by our most 
effective technology to detect nonmetallic threats.
    As I said earlier, the number of passengers at those 7 
airports that we are now screening as a result of that 
redeployment has increased by 180,000 passengers per day. In 
response to your question with regards to the security of and 
the safety when it comes to the smaller airports, it was always 
our intention in the redeployment to ensure that ATR was on 
those systems before they were redeployed to the smaller 
airports.
    Mr. Davis. Well, let me ask you, to date how much money has 
been invested in AIT machines, and how much will we need to 
invest before TSA gets to its target deployment numbers?
    Mr. Sanders. To date we have spent about $140 million on 
AIT equipment, but $100 million of that is for the millimeter 
wave system, and about $40 million is for the general-use 
backscatter systems.
    With regards to your question on how do we--how much 
additional money will we have to spend? I can't answer that 
question right now. It is something that we are looking at, and 
the reason I can't answer that is TSA is transforming into a 
risk-based, intelligence-driven organization, as this committee 
is aware. As part of that, we are making decisions that--with 
regards to PreCheck and what we do with risk-based security. As 
part of that, we are looking at the business case around AIT 
equipment, understanding that it is critically important that 
we use AIT technology because it is the best technology that we 
have available to mitigate against known and evolving threats. 
But we don't have a final number with regards to how many we 
will have to put in--how many systems we will need once we move 
forward with the risk-based security initiatives.
    Mr. Davis. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Rogers. I thank the gentleman.
    The gentleman from New Orleans Mr. Richmond is recognized 
for 5 minutes.
    Mr. Richmond. Thank you.
    Mr. Sanders, I think earlier this year it was mentioned 
that you all wanted to purchase an additional 200 AIT machines. 
How many did you purchase, and how many do you think you need 
to have full coverage?
    Mr. Sanders. In May of this year, Mr. Richmond, we 
purchased an additional 200 systems, bringing the total that we 
have purchased to 1,000 systems. Right now our stated full 
operational capability is 1,800 systems to cover all of our 
lanes at all of the airports. As I said, though, that we are 
reevaluating what that full operational capability is going to 
be given the initiative that Mr. Pistole kicked off with 
regards to risk-based security.
    Mr. Richmond. You mentioned, and the Chairman asked you a 
question about it also--you mentioned efficiency, and I think 
you can talk about the machines and make sure they are 
deployed, but when you are talking about efficiency, tell me 
what you are talking about.
    Mr. Sanders. I am talking about a couple of things. I am 
talking about the number of passengers that we can put through 
our most effective technology to look for nonmetallic threats. 
Also I am talking about the passenger experience. If you look 
at the amount of time it takes for a pat-down right now, it 
takes about 80 seconds to do a pat-down. If you put an 
individual through an AIT system with an image operator 
attached to it, that takes a certain amount of time as well. 
But when we move to ATR, we can get that processing time down 
to 12 seconds, which allows us to put more people through them, 
thereby using our most beneficial technology to detect a 
threat.
    Mr. Richmond. So you are strictly limiting that to 
efficiency in terms of technology. I understand you are saying 
that a pat-down is 80 seconds compared to 12 seconds going 
through the machine, but that doesn't calculate the human 
decisions that are made going through checkpoints. Part of, I 
guess, my question to you is do you all coordinate from the 
technology side with the actual people who guide people 
through, and do all of those things to make sure that things 
are working efficiently?
    Let me just give you my short frustration. You can have all 
of the machines in the world, but if you don't have two or 
three tables put together so people can put their items into 
those things to go through the machine so that they can walk 
through the AIT, then we are not becoming more efficient. The 
technology is more efficient, but the incompetence reduces the 
efficiency of the machine.
    So have you all--and I guess from the technology 
standpoint, have you all worked with the human factors and the 
people who make the decisions to tell them what an optimal site 
should look like in terms of being efficient so people can get 
through in the 12 seconds? The machine is 12 seconds, but not 
the process to get through it. So that is my question.
    Mr. Sanders. Yes, sir, we work very closely with the Office 
of Security Capabilities on that very point.
    I misunderstood your question. So when we deployed the AIT 
systems originally, we never had the full staffing to allow us 
to handle that. So what we had to do is make some risk-based 
decisions, and what we decided at the time, because of the 
intelligence, is to move FTEs away from other layers of 
security and apply them to the AIT systems.
    Now that we have the ATR, it allows us to process people. 
It also allows us to make decisions to move those FTE to other 
security layers so that we are getting the efficiencies that 
you are referring to.
    Mr. Richmond. Well, and I would just say that in terms of 
technology, I don't have many complaints, and I think that you 
all are putting a good effort in trying. But my experience 
now--and I guess the new word is ``evolving.'' I am evolving on 
privatizing of TSA, because I just am getting increasingly 
frustrated with the incompetency of the checkpoints, and not 
just--not the people at the checkpoint, but the management at 
the checkpoint.
    So I would just ask you to take that back to TSA, that the 
staunch supporters that they have had they are losing over 
small decisions that any business person or person with common 
sense would make at checkpoints. The management is increasingly 
frustrating not only in my home airport, but at other airports 
also.
    Thank you, Mr. Chairman. With that I yield back.
    Mr. Rogers. I completely concur with Mr. Richmond's 
observations, and I have conveyed that to Mr. Pistole that the 
Department has a real problem with the public level of 
confidence, but it is penetrating the Congress pretty badly, 
and you all have got to remedy that. You really do.
    I am really aggravated about this $91 million being wasted. 
You know, we have made the mistake with the--you all made the 
mistake with the puffer machines, and now you are going to have 
to move them over in the warehouse to put these machines in. It 
is like you spend money on the latest technology first and then 
test it later, and we are broke. I mean, the country, we are 
really struggling with some tough budgetary decisions, and it 
is just really hard to understand how this happens. Now I 
understand that TSA has spent $5 million developing this ATR 
software for the backscatter machines, and it is not working. 
Do you know how much more money you are going to spend to get 
this software right?
    Mr. Sanders. Sir, we have no intention to spend additional 
money on the ATR software.
    Mr. Rogers. Okay, good. I am glad to hear that.
    Mr. Cantor, you talked a little bit a while ago about you 
put the signs up letting people know they have got a choice 
between going through the AIT machines or a pat-down. Have you 
all thought about giving them another alternative, that if they 
don't have a problem with the software, they can go through a 
lane that has these? Because some people like me don't care. If 
I can get through that line faster, it doesn't matter to me. 
Rather than put these things in a warehouse, have you thought 
about just allowing the public that option?
    Mr. Cantor. Matters about how the machines are actually 
deployed----
    Mr. Rogers. The privacy issue.
    Mr. Cantor. Okay.
    Mr. Rogers. I mean, some people just don't care. I mean, 
some people are very sensitive to it, and I understand and 
appreciate that. But I can tell you that if you had a lane that 
said, you know, this is the stickman lane, and the line is 
twice as long as this lane, and if you don't--if you are not 
concerned about the privacy issue, you can go through this 
lane, a lot of folks are going to say, let us do it. Why put 
the things in a warehouse when you can give us that option?
    Mr. Cantor. From a privacy perspective we designed the 
operational protocols for the original machines; for example, 
the TSO in a separate room and obscuring of the image. Those 
operational proposals from a Privacy Office's perspective are 
still valid for those machines. The ATR-enabled devices are 
also a valid, you know, implementation of that, so the 
operational usage would be a decision on that TSA would make.
    Mr. Rogers. But to your knowledge, as the privacy officer, 
you are not aware that that has been discussed?
    Mr. Cantor. Not with my office.
    Mr. Rogers. How about you, Mr. Sanders?
    Mr. Sanders. Sir, I would say that these--it has never been 
a question whether these machines are effective from a security 
performance perspective.
    Mr. Rogers. That is my point. So why are you going to put 
them in a warehouse when you can give consumers another option 
and still use the machines? I mean, $91 million is a lot of 
money. Or is it--how much? Fourteen million dollars.
    Mr. Sanders. Fourteen million dollars.
    Mr. Rogers. For 91 machines.
    Mr. Sanders. Yes, sir. We are putting them in the warehouse 
waiting to see how the ATR deployment--or development works out 
so that we can deploy them with ATR. That decision is primarily 
based on the mandate to have ATR in all the machines by June 1 
of this year, or of 2013.
    Mr. Rogers. Okay. According--so are you going to make that 
deadline, the mandate?
    Mr. Sanders. Yes, sir. We will make the deadline that all 
of the machines in the field have ATR software on them.
    Mr. Rogers. By June 2013.
    Mr. Sanders. Yes, sir.
    Mr. Rogers. Okay. How long would it take for the 91--or how 
long do you expect the 91 machines to sit in storage?
    Mr. Sanders. Sir, at this point I cannot answer that. We 
are talking to the manufacturer on the time line to get to the 
ATR, and we are waiting to hear back from them.
    Mr. Rogers. What about the remaining 155 backscatter 
machines? What is going to happen with them?
    Mr. Sanders. That goes back to your earlier question, sir. 
If we are not able to make the--we are going to make the 
deadline of June 1, 2013, to have ATR in all of the AIT systems 
in the field, so we will have to make business decisions with 
regards to that as we progress and learn additional 
information.
    Mr. Rogers. My understanding is you have the next 
generation of AIT, which is AIT-2, coming out soon; is that 
correct?
    Mr. Sanders. Yes, sir.
    Mr. Rogers. What developments, if any, can you share with 
us on that technology?
    Mr. Sanders. We awarded three contracts to three different 
companies. One of them--we have awarded three contracts to 
three companies. The total value of each of those contracts is 
about $1 million for low-rate initial production. We are going 
through the testing process now to ensure that they are 
suitable and effective, and then we will make decisions on the 
procurement once we have those results.
    Mr. Rogers. All right. Thank you very much. My time is 
expired.
    Mr. Davis, if you have any additional questions, you are 
recognized.
    Mr. Davis. Thank you very much, Mr. Chairman.
    Mr. Sanders, let me just ask, do you know how much--what 
the total dollar value is of security devices and machines that 
we have in storage?
    Mr. Sanders. Yes, sir. It is roughly about $155 million 
that is in storage waiting for redeployment, or waiting to be 
disposed.
    Mr. Davis. We do expect that much of that is going to be 
used; that it is just a matter of when we are able to 
effectively do so.
    Mr. Sanders. Yes, sir. It is a combination of machines or 
equipment that has to be disposed because it has served its 
purpose and it has come to the end of its useful life, as well 
as equipment that we are waiting to deploy. We expect that in 
2013 that that number will be down closer to about $75 million.
    Mr. Davis. Thank you very much.
    Mr. Cantor, could you describe for us the role the DHS 
Privacy Office plays in responding and addressing privacy 
complaints pertaining to airport screening operations? Please 
speak to the procedures and policies used by the DHS Privacy 
Office in assessing and investigating privacy complaints made 
by travelers.
    Mr. Cantor. Yes. As you know, the DHS Travelers Redress 
Inquiry Program, more commonly known as DHS TRIP, serves as a 
one-stop shop for traveler redress for all of the DHS 
components. DHS TRIP provides a mechanism through which 
passengers can voice their concern about particular travel 
experiences, including their experience with AIT or pat-downs.
    If the TRIP system tasks a complaint involving AIT or a 
pat-down to the Privacy Office for review, we would refer it to 
TSA's contact center and to the TSA Privacy Office as required 
by TSA's policies. The DHS Chief Privacy Officer serves as a 
member of the TRIP advisory board, and my office's privacy 
oversight team works with any relevant component as well as the 
DHS Office of Civil Rights and Civil Liberties to effectively 
address TRIP complaints tasked to the Privacy Office.
    Mr. Davis. Does the DHS Privacy Office have a position on 
the deployment and continued use of AIT machines that are not 
equipped with the ATR privacy software?
    Mr. Cantor. Our position with the deployment of non-ATR-
enabled machines is that as long as they follow the approved 
privacy protocols that we went through with TSA and developed 
in our privacy impact assessment, that is okay from our 
perspective.
    Mr. Davis. Thank you very much.
    Mr. Chairman, I have no further questions and yield back.
    Mr. Rogers. I thank the gentleman.
    I just got a few remaining questions, and this is for Mr. 
Cantor. Would you agree that DHS and TSA underestimated the 
privacy concerns with AIT machines when that technology was 
moved into the marketplace?
    Mr. Cantor. No, I don't think so. We understood from the 
outset that many people would find this technology 
uncomfortable, and that is why the Department took its 
responsibility to protect the privacy of each and every 
passenger very seriously. We deployed AIT only after we were 
fully confident it would work in an operational environment, 
and with the appropriate privacy safeguards in place.
    As threats changed and the technology evolved to meet those 
threats, we continue to update the privacy protections while 
fulfilling our missions, and we continue that rigorous process 
of considering the available technology and updating our 
privacy protections as appropriate.
    Mr. Rogers. Are you suggesting that you all moved to the 
ATR just--and it wasn't in response to the privacy concerns?
    Mr. Cantor. It would be my view that we moved to the ATR as 
a happy combination of both. It has operational benefits for 
TSA in addition to having an added privacy benefit. However, at 
the time that the initial procurements took place to deploy the 
AIT machines, there was no option of satisfactory ATR-enabled 
devices.
    Mr. Rogers. What kind of review or evaluation did you do 
before deployment of the machines to kind of gain a perspective 
on how people may react to them before you made the purchase?
    Mr. Cantor. Sir, the way that we traditionally work with 
components is we partner with the component. The components 
would come to us with the proposal or an idea to move 
something. We would work together with them, evaluate their 
proposal, talk to them about privacy-mitigation strategies, 
working through the component privacy officer.
    In this case that is exactly what we did. We worked through 
the TSA Privacy Office with TSA and closely evaluated the 
technology, you know, responded to their concerns about the 
threat and their operational realities in terms of dealing with 
that threat, and helped, working with them, design operational 
protocols and technological protocols that we could put in 
place to help mitigate the risks to privacy.
    Mr. Rogers. How closely does your Department work with TSA 
on these issues?
    Mr. Cantor. Very closely.
    Mr. Rogers. Can you give us some assurance based on that 
working relationship that you are going to be able to avoid 
this kind of situation in the future?
    Mr. Cantor. Yes. I mean, as a matter of process, we subject 
every program throughout the Department with privacy 
implications to rigorous review. I don't sign PIAs unless I am 
satisfied that, you know, the component has sufficient privacy 
protections in place. Indeed, the initial deployment of AIT 
incorporate many privacy protections, some of which we have 
already gone through, such as the signage, the remote viewer of 
the TSO, and no ability, you know, to see the person going 
through the screening. That evolution that you have seen in AIT 
to AIT with ATR-enabled devices demonstrates that we are 
dedicated to continually improving our technologies, including 
the screening technologies, and how we protect privacy.
    You know, we have reviewed our privacy safeguards for AIT 
as the technology has changed, and we will continue to do so to 
ensure future screening technologies----
    Mr. Rogers. Let me ask you, do you believe that smaller 
airports are going to have the physical capacity to take these 
machines once the ATR software upgrades are possible? There is 
a lot of--you know, when you think about some of the smaller 
airports, these things take up a lot of room. Do you think it 
is realistic to expect to move them into these smaller 
airports?
    Mr. Cantor. I would have to defer to my colleague on the 
size of the airports and their operational capabilities.
    Mr. Rogers. Mr. Sanders.
    Mr. Sanders. Yes, sir, I do.
    Mr. Rogers. We may have to have a hearing. We will get some 
airport people in here to talk about that. I am real concerned 
about that.
    But I will close with this: You know, $155 million is a lot 
of money, and I want you all to understand you are making it 
really tough on the Congress to fund this kind of stuff when we 
find out you keep putting it in a warehouse after you find out 
it is not working or working the way it ought to work. These 
are just large sums of money, and it is just hard.
    I would also point out, I have been a little surprised at 
the way you have pushed back on this thought about the 
manipulation of the operational test. It was not us that 
suggested that happened; it was TSA. You know, I find it 
difficult to understand how that could happen given that you 
have acknowledged that there were third parties doing the test. 
It seems to me the Department, you know, is trying to find a 
scapegoat.
    But I just hope that you take back to the Department you 
have all got to get a handle on this kind of procurement and 
acquisition process, because it is really killing your ability 
on Capitol Hill to continue to get funded for these kinds of 
projects.
    With that, do you have any more questions, Mr. Davis?
    Mr. Davis. No. Mr. Walberg is here.
    Mr. Rogers. Mr. Walberg is recognized for any questions he 
may have. Welcome to the committee.
    Mr. Walberg. Thank you, sir. Sorry to be late. I think I 
will defer the questions for now, since I don't know what has 
been asked.
    Mr. Rogers. Okay. All right. With that, I want to thank the 
witnesses for their testimony, their preparation and their 
time. I know it take a lot of time and energy to get ready for 
these things, and I really do appreciate it.
    I will remind the witnesses that we will leave the official 
record of the committee open for 10 days. There may be some 
Members that weren't here, or, like Mr. Walberg, that just got 
here, that may have some additional questions, or I may, that 
we will submit to you, and we ask that you reply to those in 
writing if you could.
    And with that, this hearing is adjourned.
    [Whereupon, at 10:45 a.m., the subcommittee was adjourned.]

                                 
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