(Updates throughout with information about committee markup.)
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A bill that would expand the private airport security company CLEAR’s authority to screen passengers was advanced by a Senate panel in revised form, after the first version was pulled due to objections from the Transportation Security Administration.
This time, the Registered Traveler Act (S. 3730) is going forward without TSA’s input after the agency was removed by superiors at the Department of Homeland Security from discussions with Senate Commerce, Science, and Transportation Committee staff. Ken Cuccinelli, the senior official performing the duties of the deputy DHS secretary, rebuked TSA Administrator David Pekoske for calling an earlier version of the bill “a bridge too far” in a May letter that prompted the committee to scrap a scheduled markup.
Lawmakers from both parties said they regretted not having TSA’s input on the bill.
“I hope that our TSA Administrator David Pekoske would share his views on this legislation openly,” Shelley Moore Capito (R-W.Va.), a panel member who’s also the chairwoman of the Senate Appropriations Homeland Security Subcommittee, said at the markup.
Gary Peters (D-Mich.), the Homeland Security and Government Affairs Committee’s ranking member, said DHS hasn’t been willing to engage with him or his staff on the bill.
CLEAR sought to get the bill approved by the Commerce Committee so it can ride on any year-end legislation such as the annual defense policy bill, a government funding bill, or Covid-19 relief legislation, two lobbyists familiar with the bill said.
Before approving the bill by voice vote, the committee-approved bill dropped a provision that would have given private companies direct access to Secure Flight, the database that contains the No Fly list and other personal information used to make security screening decisions about U.S. flyers.
But it would still allow participants in the Registered Traveler program — of which CLEAR is now the only one — to make the final check of someone’s security status before referring them for physical screening, said Patty Cogswell, who served as the TSA acting deputy administrator from 2018 until September of this year.
CLEAR and any other companies that might join Registered Traveler would become the single point of review of a passenger’s security status at the airport before TSA screens a passenger and their bags, removing a step currently performed by TSA. Travelers who pay for a CLEAR membership go through expedited identity screening at the airport and are currently sent to the front of the security line for a TSA secondary security status check before having their bodies and bags scanned.
“The number one problem that I still see in the bill — although they changed it from saying they have access to Secure Flight — is that it’s still giving information back to a private entity who might want to use it for other purposes other than what it is originally intended to be used for,” said Cogswell, who now works for Guidehouse Inc., a consulting firm that opposes the bill.
There’s currently no way for TSA to share passengers’ updated status information or to maintain an updated list of RT passengers to cross check, according to Cogswell. The agency would have to build out a new protocol to share screening status and continually vet RT members against its existing Secure Flight list, she said. TSA would potentially be building two different transmission mechanisms and protocols for RT members and other passengers.
CLEAR noted that the measure wouldn’t expand its access to private passenger information or give it the ability to determine passengers’ risk level. “CLEAR does not want and would not have direct access to any classified or sensitive passenger information, and all traveler-vetting assessments, determinations and physical screenings would remain with TSA — where they belong,” said Maria Comella, a spokesperson for the company.
A TSA spokesperson said the agency “is unable to comment on this legislation and must refer you to DHS for comment,” when asked whether recent changes to the legislation shifted its view of the proposal.
Allowing a private company to make the final check of someone’s security status would “significantly limit” one of TSA’s critical security functions — the ability to directly ensure that each passenger is receiving the appropriate level of physical screening based on TSA’s vetting result, Cogswell said.
Currently CLEAR looks at the security status on a boarding pass, which can be accessed as far out as 72 hours before a flight. The secondary review by TSA prior to going through physical screening is the last chance to view any up-to-the-moment changes to a person’s status. That’s what happened in 2010 when the Times Square Bomber was snagged as he boarded a flight to Dubai less than 72 hours after he had set a faulty car bomb, according to Cogswell.
TSA advised CLEAR in writing more than two years ago that the agency intends to maintain its security status review role, and is deploying a new tool — Credential Authentication Technology — to enhance its ability to conduct this review and ensure that all passengers are correctly directed for physical screening, Cogswell said.
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