Profiles in Terror: A Legal Framework for the Behavioral Profiling Paradigm

Authors: Justin Florence and Robert Friedman
Citation: (2010), 17 Geo. Mason L. Rev. 423

This article discusses the doctrinal legality of “SPOT” (a behavioral profiling program in operation in airports and urban mass transit systems across the United States). SPOT stands for “Screening Passengers by Observation Technique”. The program involves screening passengers based on their facial movements, body language, sweat levels and other behavioral elements. The authors consider the program’s doctrinal legality under three different U.S. constitutional provisions: the Equal Protection Clause, the Fourth Amendment, and the Due Process Clause. They argue that this program, if operated responsibly and correctly, would not violate U.S. constitutional rights and would also be consistent with core civil liberties. In support of this argument, the authors discuss the scientific merits of the techniques used in this kind of program and its benefits.

The weaknesses of the program especially in relation to concerns over racial profiling and whether such programs may simply be racial or ethnic profiling in disguise are also discussed and examined along with discussions about officer ability to interpret behaviors. The authors cite several reasons for concern about the potential that SPOT (and similar programs) may be racial or ethnic profiling programs in disguise. These reasons include: (1) the fact that behavioral profiling criteria are not made public and may therefore include criteria based on race, religion and ethnicity, (2) that for whatever reason, objective, non-racial criteria, applied evenly and appropriately by Behavior Detection Officers (BDOs), still end up targeting a disproportionately high number of people from certain classes since travelers of certain races or ethnicities may act or appear differently in airports because they are conditioned to believe there is a greater likelihood of being stopped or questioned and (3) the potential for unconscious racism by BDOs.

Furthermore, the overall reliability of such programs come into question when the authors point out that the facial expressions accompanying a terrorist's response to a BDO query might not register under the Facial Action Coding System (FACS) framework which SPOT relies on, and the fact that people can suppress their emotions to elude security personnel.

The authors conclude with the proposal of an ongoing oversight system done by the executive branch to ensure that behavioral profiling programs are designed and operated based on “sound, peer-reviewed, properly applied scientific research” that involves the use of various tools such as Scientific Validity Statements, Privacy Impact Statements, quantitative auditing as well as mechanisms for whistleblowers.

Posted by Agnes Tong (Windsor Law II)