A discussion of profiling in airport passenger screening must begin by defining the term. Profiling in general refers to the law enforcement practice of viewing particular characteristics as indicators of criminal behaviour. Profiling can be carried out singularly or in conjunction with other law enforcement practices. Racial profiling is a practice where a law enforcement official relies on a passenger’s actual or perceived race or ethnicity, either alone or together with other factors, in determining whether to stop, search, question or detain him/her. In the same vein, religious profiling occurs when a law enforcement official relies on a passenger’s actual or perceived religion as the only factor, or one of several factors, in determining whether to stop, search, question and/or detain. Similarly, national origin profiling occurs when a law enforcement official relies on a passenger’s actual or perceived nationality, including where their passport was issued, as the only, or one of several factors, to determine whether to stop, search, question or detain him/her. In a post-9/11 world, the limitations on racial, religious and national origin have become slightly murkier, as not all types of profiling appear to be similarly treated under the law and relevant agency guidelines.
In the US, post-9/11 courts have generally discouraged the use of racial and religious profiling by airport officials. For example, American courts have often frowned on the use of race or religion as a factor to form sufficient reasonable suspicion to stop a passenger1 or in forming probable cause to remove a passenger from a plane and make an arrest.2 The prohibition of national origin profiling at US airports, however, is less clear-cut. In fact, while documents from the US Transportation Security Administration (TSA) appear to prohibit racial and religious profiling, profiling based on nationality or country of origin appears readily permitted. Specifically, TSA documents reveal that passengers from at least 14 countries, nearly all in the Middle East or Africa, are routinely required to undergo enhanced security screening at US airports.
The parameters of profiling at US airports were further clarified when the United States Department of Justice (DOJ) updated its profiling guidelines for federal law enforcement agencies in December 2014. The new federal rules prohibit federal officials from profiling based on race, ethnicity, gender, national origin, religion, sexual orientation, and general identity. However, the profiling guidelines provide exemptions for certain activities by the TSA at airports, as well as Immigration and Customs Enforcement agents, Border Patrol agents, and protective activities of the US Secret Service.
While legal cases and the TSA and DOJ’s guidelines offer some guidance to federal law enforcement officials at airports about the parameters of passenger profiling, a key question for airport officials is not only whether it is legally permissible to profile airline passengers based on race, religion or national origin, but also whether profiling is an effective mechanism in identifying risks to aviation security, particularly terrorism risks. When considered from that angle, the profiling of passengers at airports seems much less sensible. In fact, in the years since the 9/11 attacks, many security experts have adopted the position that passenger profiling based on race, religion or national origin is oversimplified and lazy law enforcement practice. Experts point out that focusing on profiling based on perceived external characteristics associated with race, religion or national origin distracts law enforcement officials from doing the harder work of gathering good intelligence and looking for suspicious passenger behaviour.
Moreover, there are several practical problems with relying on profiling passengers at airports. First, profiling based on race, religion or national origin is much too broad a characteristic to use to identify passengers posing potential security risks, as there are simply too many people whose perceived race, religion or national origin might make them a target for further security screening. This makes passenger profiling extremely imprecise and largely ineffective. Any actual security risks identified using such overbroad profiles based on race, religion or national origin would be more likely to result from chance than any actual really good security work.
Second, profiling airline passengers based on race, religion or national origin is ineffective because would-be terrorists and other security threats will simply alter their appearance, travel routes or cities of departure to avoid detection. Sadly we know this to be true based on significant evidence that terror groups are deliberately recruiting individuals whose appearance and passports can avoid standard profiling-based detection, and in particular are increasingly relying on Muslim coverts to carry out attacks. Such measures offer caution against relying on passenger screening profiling based on appearance, and important warnings about the adaptability of would-be terrorists and other security threats.