The Transportation Security Administration is engaging in covert surveillance of innocent fliers — and raising a host of disturbing questions in the process.

Internal TSA documents uncovered by The Boston Globe reveal that under a program called “Quiet Skies,” every day federal air marshals are tracking and shadowing dozens of U.S. citizens who are not under investigation or suspected of any actual wrongdoing. We aim to find out more by filing a Freedom of Information Act request with the Trump administration.

The documents show that the TSA is using secret criteria that include travel patterns and specific behaviors to determine which travelers to target. The marshals then secretly follow the passengers and document their conduct in granular detail, going so far as to fly with them on subsequent flights. The agency retains the marshals’ observations and reports in its internal files.

The red flags here are plentiful. First, federal law enforcement shouldn’t be tracking and monitoring travelers and then logging detailed information about them without any basis to believe that they’ve done anything wrong. That the TSA appears to be doing exactly that through the Quiet Skies program is at once troubling and illogical — it needlessly invades the privacy of thousands of Americans while flooding the agency’s databases with useless information on innocent activity.

This program also raises serious constitutional concerns. If the TSA’s secret targeting criteria rely on race or religion, it could amount to unconstitutional profiling.

The TSA appears to be using algorithms to decide who to target, which only aggravates these concerns. This is a problem because such artificial intelligence incorporates human biases and often operates without adequate oversight and accountability. We’ve called out the agency in the past for using a targeting algorithm to sort passengers according to the purported risk they pose because it’s at odds with fairness and due process.

Finally, the TSA refuses to learn its lesson on roundly discredited “behavior detection” techniques, which Quiet Skies also uses. While spying on passengers, air marshals note whether they exhibit any of a series of behaviors — “excessive fidgeting,” “exaggerated emotions,” or a “cold penetrating stare,” to name a few — that the TSA insists on viewing as suspicious. In reality, they are subjective, often commonplace, and can easily be skewed by marshals’ biases.

Experts, legislators, and the Department of Homeland Security’s inspector general have sharply criticized these methods. TSA documents that the ACLU obtained through a lawsuit revealed that the “behavior detection” techniques were unscientific and unreliable. Their use in Quiet Skies or any other TSA program is unacceptable.

Like the old, debunked “behavior detection” program, Quiet Skies looks like the worst kind of waste. It expends the time and focus of federal officers while at the same time threatening our civil liberties. The Globe reports that numerous federal air marshals have complained about the program, with one calling it “nonsense,” and in a very unusual move, the Air Marshal Association criticized it publicly.

From what we know about the TSA’s secret surveillance program, it’s a bad idea. Now we need to know much more about how Quiet Skies works in order to make sure that the TSA is respecting the Constitution and Americans’ rights. 

Esha Bhandari, Staff Attorney, ACLU Speech, Privacy, and Technology Project & Stephen Kang, Detention Attorney, ACLU Immigrants’ Rights Project

Last week, the Trump administration failed to satisfy a court order to reunify thousands of parents and children who were inhumanely separated at the U.S. border. In addition to the terrible and lasting trauma that the separations have already inflicted, the family reunification process has raised the specter of an additional set of civil liberties concerns: mass DNA collection and testing.

The government created chaos by taking children from their parents without thinking about how those families would later be reunified. The lack of recordkeeping and tracking has made it difficult to pair children with their parents. Our priority right now is to make sure these families are reunified as quickly as possible. But this goal can be achieved while respecting the civil liberties of these families.

Mandatory DNA testing by the government raises significant issues of privacy and bodily intrusion, which is why the ACLU has argued that its use in the family reunification process should only be as a last resort and with stringent safeguards attached. 

The government had proposed doing DNA tests as a matter of routine on separated parents and children before reuniting family members. The ACLU position is that parents should not be required to submit to DNA testing to get back the children that were unlawfully taken from them unless there really is no other way of verifying parentage. The court agreed with us and ordered the use of DNA testing “only when necessary to verify a legitimate, good-faith concern about parentage or to meet a reunification deadline.”

DNA testing is extraordinarily invasive. It reveals information about our genetic makeup, including details about our ancestry, biological relationships, genetic diseases, and health. It can reveal this deeply sensitive information not only about ourselves but about our relatives — including those who haven’t been born yet.

This deeply private information is also immutable, meaning that individuals cannot change it. Once someone’s DNA information is in a government or corporate databank, there is always the risk that it will be hacked or used for other purposes, with no ability for individuals to protect their privacy or guard against identity theft once they no longer have control over their DNA information. These concerns have been raised in the context of law enforcement collecting DNA samples from people in a coercive setting.

Moreover, not all parental relationships are biological ones. A negative DNA match should not be taken as conclusive proof that no parent-child relationship exists.

At our request, the court imposed some simple requirements on the government where it engages in DNA collection and testing:

1. Exhaust all other means of establishing a parent-child relationship by allowing people to submit other evidence, like official documents and testimony.
2. Only conduct DNA tests on adults who consent.
3. Make sure samples, data, or results are not shared with other federal agencies for purposes other than family reunification.
4. Ensure that all samples, data, and results are destroyed within seven days. This last condition is critical to ensuring that neither the government nor private contractors who assist with the testing are able to retain DNA information in a database.

These families have already undergone the heartbreaking pain of separation. The safeguards we are advocating for are the minimum necessary to ensure that we don’t compound the families’ hardships by violating their privacy rights.

The Kentucky attorney general and a state judge have already told the Lexington’s police department to release documents about its 29 surveillance cameras. But instead of simply adhering to the good-government practices of transparency and public oversight, the city is pressing ahead with absurd arguments in an effort to hide basic information.

It started last summer when a local resident noticed that new surveillance cameras had been installed in a public park without prior notice. With the help of the ACLU of Kentucky, privacy activist Michael Maharrey filed an Open Records Act request with the Lexington Police Department to learn several things, including the types of surveillance technologies the department owns and operates, the camera models deployed, operator’s manuals, and department policies on data storage and sharing.

Maharrey simply wanted to know how tax dollars were being spent on surveillance in public spaces and ensure some accountability exists. But the police department denied his request, claiming that releasing the camera models and manuals would endanger “the life or physical safety of law enforcement personnel” and compromise criminal investigations and confidential informants. The city also claimed a homeland security exemption from releasing the documents, arguing releasing the information would result in the “reasonable likelihood of a threat to public safety in the form of a terrorist act,” endangering law enforcement not only in Lexington but police officers around the country that use similar technology. 

These preposterous claims have been rejected at every turn. The state attorney general found the department in violation of Open Records Law and told officials to release all records. The city released some records that were heavily redacted, and when Maharrey protested, the city fought back in court.

In June, a judge ordered the documents released, denying the exemptions and finding that officials were shirking their responsibility to provide records as required by the law. The city asked the judge to reconsider and it lost again. And in the final week of July, the city appealed to a higher court, so our fight for transparency will continue.

No one in Lexington or anywhere else in the country should have to live under the specter of unchecked surveillance technologies that can violate our most basic privacy rights. History has shown that powerful, secret surveillance tools are inevitably abused.

It’s past time for the city of Lexington to lift the veil of secrecy. The Constitution and democratic system demand that the government be transparent and accountable to the people, not the other way around.