Does the TSA unfairly discriminate against private sector competitors?

In a memo released late last month, TSA administrator John Pistole decided to freeze a program that had allowed airports to use private contractors in place of TSA personnel to handle passenger screening duties at airports. The Screening Partnership Program, which had been in place at 16 airports, had several additional airports applying to the program at the time that Pistole made his decision.

This decision has been lauded and criticized by different airline security stakeholders. According to a report in FederalTimes.com, two unions vying to represent about 40,000 TSA screeners were in favor of the decision, while US House Transportation and Infrastructure Committee Chairman Rep. John Mica, who is in favor of privatization, stated that he planned to launch an investigation into the decision.

To the average air traveler, this decision does not change their airport experience, and according to the General Accounting Office, there is no real difference between the performance of the private companies and TSA when it comes to screening. Why then would something like this be of any concern to the flying public? Before answering that question, it may help to have a bit of background information about this program.

Quick overveiw of the Screening Partnership Program
The Screening Partnership Program, which was created by the TSA because it was required to by federal law, allowed airports to use private contractors to provide the kinds of screening services normally provided by the TSA. All of this would be under federal oversight, with a TSA security representative ensuring that the contractor meets the appropriate airports security standards.

Why did TSA director Pistole freeze the program?
Prior to last month's announcement by Pistole, there was no real public debate or any prior significant statement about any potential change in the program. Pistole's statement also didn't provided any hint of who within TSA leadership besides Pistole was involved in the decision. The brief statement implied that the freeze had nothing to do with performance or security screening problems at any of the 16 airports currently using the program, and also stated that airports currently using private contractors could continue to do so. The following is Pistole's full statement that was released by the TSA on January 28, 2011:

Shortly after beginning as TSA Administrator, I directed a full review of TSA policies with the goal of helping the agency evolve into a more agile, high-performing organization that can meet the security threats of today and the future. As part of that review, I examined the contractor screening program and decided not to expand the program beyond the current 16 airports as I do not see any clear or substantial advantage to do so at this time. The airports that currently use contractor screening will continue to be regulated by TSA and required to meet our high security standards.

Reading between the lines, there are two implications in this statement. First, the 16 airports currently using private contractors are currently meeting TSA's security standards. The second implication is that allowing other airports to privatize the TSA's screening function would somehow keep the TSA from improving its performance and make it less able to respond to current and future threats.

Do these reasons make sense?
There may be a substantial amount of thought and analysis that went into Pistole's decision, but the TSA has not made that part of their decision process public. Outsiders, including airport operators and the flying public are forced to evaluate this decision based on TSA's public statements and their actions.

Based on Pistole's public statements, and on the fact that the TSA is allowing the the current contractors to remain, it appears as though all the private companies involved in the Screening Partnership Program are meeting all the relevant security and screening requirements, implying that expanding the program would have no negative effects on security. Based on this admittedly scant evidence, it seems that Pistole is concerned that having more airports in this program would somehow compromise security at one or more of the airports where the TSA does the security screening.

In a recent TSA blog post from February 7th, the TSA stated that "TSA is still accepting applications, but unless a clear and substantial advantage to do so emerges in the future, the requests will not be approved." The announcement of January 28 and the blog post from February 7 imply that the TSA is arguing the following:

• The current airports participating in the Screening Partnership Program are as effective as airports that use TSA personnel and can continue to stay in the program
  
  
• Having additional airports in the Screening Partnership Program will prevent the rest of the TSA from evolving into a more effective organization
  
  
• New airports can enter the Screening Partnership Program only if they can demonstrate that they have substantial advantages over the TSA
  
  
• The 16 airports currently in the program don't have to demonstrate that they have substantial advantages over the TSA

Taken together, the TSA's statements don't clearly answer the question of whether the decision makes sense, because TSA has simply not provided enough information about the factors that went into its decision, or what factors would lead the TSA to accept or reject any new applications. More disturbing, some of TSA's statements imply that it is actively discriminating against private contractors, specifically the statement that new airports will be approved for the program only if they can demonstrate that they have substantial advantages over the TSA.

This implies that the TSA's leadership believes one of two things, either their procedures and requirements are adequate, but private competitors have a responsibility to show an extra level of competence; or that current TSA procedures and requirements are not adequate and private contractors need to be better than the TSA in order to provide an adequate level of security. In other words, TSA's statements imply that it is acceptable for their leadership to allow separate and unequal standards, with one set of standards for its own employees, and a higher one for potential private competitors.

It may be harsh to use words like discrimination and phrases like separate and unequal when describing the logic behind TSA's recent decisions on private sector alternatives to passenger screening, but given their public statements, it may be appropriate to do so.