MICHEL MARTIN, HOST:
You may have taken a flight sometime and thought or hoped there was a U.S. air marshal on the plane. These are undercover officers working for the Transportation Security Administration who are charged with keeping the skies safe. Now there's a new report in The Boston Globe that says that, as part of a program called Quiet Skies, air marshals are keeping tabs on ordinary travelers who are not suspected of any crime or included on any terrorist watchlist. Some of those travelers could be flight attendants or even fellow law enforcement agents, according to Air Marshals interviewed for this article.
To hear more about this, we called Jonathan Turley. He is a professor at the George Washington University's law school, and he's with us now.
Professor Turley, thanks so much for talking with us.
JONATHAN TURLEY: It's my great pleasure.
MARTIN: What do you know about this program? Does this comport with previous ways that the TSA has engaged in surveillance?
TURLEY: Well, it is something that's different in a number of respects, and it's also quite chilling in a number of respects. What we know about the program is that TSA flags American citizens who are often coming into the country and asks marshals and others to keep them under observation. And that includes looking at what magazines they're reading, whether they're sleeping, their behaviors, even potentially what is on their laptops. All of those types of observations are then inputted into a databank, which is apparently preserved. And so it creates a type of dossier system that raises serious privacy concerns.
MARTIN: According to the reporter who broke this story, Jana Winter - she says that several air marshals involved in the program have themselves raised concerns over the legality and the constitutionality of this kind of surveillance and that they presumably raised these concerns internally. Do they have a legitimate concern? And, if so, what is it?
TURLEY: Well, it is interesting to read the objections from the air marshals and others. I mean, first of all, there's an obvious feeling that they're wasting their time in trying to find out what some Southwest flight attendant is buying for magazines. But there's also a palpable concern about whether this is all legal. And there, I think, is to their great credit. You know, one of the greatest protections for civil liberties is indeed law enforcement, who do on occasion raise with their supervisors concerns about whether what they're doing is entirely comporting with the Constitution.
MARTIN: Even before this program came to light because of the Boston Globe's reporting, the TSA air marshal program has come under scrutiny from Congress. I mean, they have raised questions in the past about how effective this program may be. How does this revelation fit into the picture of air marshals' effectiveness?
TURLEY: Well, there's a real question of whether our air marshals have better things to do. But there's also a concern about how intrusive and how restrictive this program may prove. If they are trying to see what's on the screen of a computer or take more intrusive steps, it could raise serious privacy issues under the Constitution. Also, if they're using these types of digital dossiers to restrict people, putting them on flight lists or putting them under some type of other limitation, that could also raise a serious matter under the Constitution. We simply don't know.
What we know is that the TSA seems to be sort of vacuuming up a lot of these observations, putting them into databanks, and that creates some obvious concerns. We don't want to live in a fishbowl society where we feel that, wherever we move, the government is watching and recording our conduct.
MARTIN: Is there some controlling legal authority here that specifies how an agency like this can gather information about citizens and how long they can keep it and what they can do with it?
TURLEY: Well, perhaps the most dangerous aspect of this program is it falls in a gray area of the Constitution. You generally do not have a reasonable expectation of privacy in your public movements - things that can be observed by other citizens. If other citizens can see you, the government and the police are allowed to see you. They're also allowed to keep notes on what they observe. So, from that standpoint, this is all conduct in the public domain.
But the court has come down in favor of privacy in some marginal areas that relate to this. You know, for example, the court is particularly concerned about the use of technology, even in public spaces. So, for example, the court struck down the use of thermosensors that could see heat movements within a home from public streets. They also have restricted the use of high-powered cameras that can penetrate to a much closer image than you could from regular observations.
But this is an area where the TSA may feel that it is on terra firma in the Constitution. You know, they can argue that a plane is one of the most public of public places. You don't know who is sitting on either side of you or in front of you or in back of you, and your expectations of privacy are quite limited.
MARTIN: That's Jonathan Turley. He's a professor of law at George Washington University, which is here in Washington, D.C.
Professor Turley, thanks so much for talking with us.
TURLEY: Thank you for having me.
MARTIN: We'd like to add that when the Boston Globe asked TSA for comment, it declined to confirm the program exists but broadly defended the agency's efforts to deter acts of terror. Transcript provided by NPR, Copyright NPR.