By Allison Grande

Law360 (June 2, 2020, 10:36 PM EDT) -- A member of a federal privacy oversight board is pressing the U.S. Department of Homeland Security for more details about reported plans to check commercial airline passengers' temperatures to screen for COVID-19, warning the global pandemic "is not a hall pass to disregard the privacy and civil liberties of the traveling public."

There's no doubt that "enhanced public health measures" are needed to detect and mitigate the spread of the deadly coronavirus, Travis LeBlanc, a Democrat on the five-member Privacy and Civil Liberties Oversight Board, said in a letter to DHS officials Monday. But reports that DHS is moving forward with a plan to require air travelers to submit to mandatory temperature checks or thermal imaging before boarding commercial flights raises questions about the agency's authority to collect this sensitive health information and what will be done with it, he said.

"Like many Americans, I am unconvinced that the Transportation Security Administration would have the authority and training to administer a mass surveillance program to collect sensitive biometric health data from airport passengers across the country," LeBlanc said in his letter.

LeBlanc also expressed concerns about the extent to which this health information could be combined with facial recognition and other sensitive information that the government already holds on passengers and what will happen to fliers that are found to have a fever. He requested that DHS respond to a dozen questions by June 15 about the purpose, legal authorities, operations, and privacy and civil liberties protections related to the initiative.

"It is my hope that your responses will demonstrate that any such endeavor will be taken with the well-being and safety of the traveling public in mind, and that the Department will immediately put in place policies to limit the collection, sharing, and retention of sensitive biometric health information," said LeBlanc, who is also the vice chair of Cooley LLP's privacy practice.

LeBlanc fired off Monday's letter in his capacity as a member of PCLOB, an independent agency established by Congress in 2004 that provides guidance on the development and operation of counterterrorism activities and acts as a check on government surveillance overreach. The board is already looking into the use of facial recognition and other biometric technologies in the aviation industry more generally, a review its members voted to initiate last June.

In a Tuesday interview with Law360, LeBlanc that this broader inquiry is focused on activities such as the TSA's use of facial recognition technology at security checkpoints and to aid check-ins at airports and U.S. Customs and Border Protection's collection of fingerprints to screen individuals entering the country.

LeBlanc said he's talked to his fellow board members about DHS' apparent plans to expand data collection at airports to include temperature checks and thermal imaging scans, particularly in light of questions about whether health data collected through this initiative will end up in another database of biometric information gathered through the programs that PCLOB is already reviewing.

"I would say that this is the start of a conversation, and hopefully we'll get some answers to these questions that help us at a bare minimum understand what DHS' plans are with regard to thermal screening," he said.

While DHS has yet to formally announce that it is conducting passenger temperature checks at airports or publicly post a privacy impact assessment related to these activities as required by federal law, PCLOB staff has confirmed the existence of the initiative, according to LeBlanc.

Several media outlets have also reported on a pilot program being undertaken by DHS to begin screening passengers' temperatures at 20 U.S. airports, and it appears the agency has already tried out thermal screening at Dulles International Airport just outside of Washington, D.C., LeBlanc added.

He stressed that there are a lot of "basic questions" that still need to be answered about the legal authority of the TSA, whose "fundamental mission is, as its name suggests, ensuring the security of airport travel," to collect this information in the first place, as well as about what officials intend to do with this data.

It also remains unclear how long passengers who are found to have a fever will be barred from flying, whether their names will be added to a federal no-fly list and whether they'll have any recourse to challenge the decision or get their money back, LeBlanc said.

Several studies and government agencies, including the Centers for Disease Control and Prevention, have questioned the utility of thermal screening in airports, given that passengers could have elevated temperatures due to another illness, stress or a host of other reasons, according to LeBlanc. Additionally, the CDC has found that COVID-19 severely impacts racial and ethnic minorities, raising additional concerns about how the program could disproportionately preclude people of color from being able to fly, LeBlanc said.

"My hope is that DHS will use this as an opportunity to explain this program to the public," he said.

While similar privacy concerns have been raised about temperature checks that businesses such as restaurants, grocery stores and private employers have instituted in the wake of the pandemic, DHS' move to require such data hits differently since passengers have already paid for their flights and don't have the option to just go to another business to receive the same service, according to LeBlanc.

"It is a totally different situation to have TSA denying paid passengers access to a flight without giving them any ability to challenge it and notice about what the agency is doing," he said, adding that the government needs to have the authority and a reasonable basis for restricting travel.

Given that the DHS temperature check program appears to still be in the pilot phase, LeBlanc said he's hoping that PCLOB will be able to provide the agency with advice about how to address any privacy or civil liberties shortcomings that the program may present in the long run, including how to best provide notice to passengers about what's happening.

"In my view, a comprehensive final report right now probably wouldn't be the best work product since the program isn't final yet," he said. "What would be better is to identify issues that we believe, given the information we know, that the agency needs to think about and address before making this program final."

--Editing by Breda Lund.

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