Papers, Please!

Even before the Secure Flight proposal goes into effect (and before there is any experience of whether it can be implemented or how it will work), the TSA is proposing to extend its air travel control and surveillance principles from passenger airlines to general aviation and all-cargo flights.

On October 9, 2008, the TSA issued a press release and a Notice of Proposed Rulemaking (NPRM) for a so-called “Large Aircraft Security Program” (LASP) for unscheduled and noncommerical flights.  LASP is explicitly modeled on Secure Flight, but with an additional twist: Instead of being required to submit personal information about each passenger to, and receive permisison from, the TSA, operators of “large” general aviation and cargo aircraft will be required to submit this data to, and get permisison from, a new class of private commercial data aggregation companies: “Watch-List Service Providers”.

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The DHS and TSA announced their final rule for the Secure Flight program for the control and surveillance of airline passengers during a photo op today at Reagan National Airport.

We aren’t among the journalists to whom the TSA’s anonymous spin doctors chose to leak their plans.  We’ll have more comments after we have reviewed the complete 195-page regulatory notice in more detail.

But our first reading of the “final rule” released today, as well as recent TSA and DHS comments about Secure Flight, including their press release today and testimony at a Congressional hearing we attended last month, suggest that their plans remain essentially unchanged from the Secure Flight proposal announced last year, and which we urged the TSA to withdraw as illegal in our testimony at the TSA’s public hearing and our more detailed written comments.

The DHS’s current spin on why we should love Big Brother and welcome Secure Flight is that it would reduce the number of people who are improperly prevented from flying or improperly subjected to more intrusive “secondary” search and/or interrogation, by “transferring watchlist matching from the airlines to the government”.

But the solution to the problems with “watchlists” is not to tighten their enforcement, but to replace secret administrative “no-fly” and “selectee” determinations with judicial determinations of dangerousness, made by judges in response to government motions for injunctions or restraining orders, and presentation of evidence sufficient to show that they pose a danger to aviation so great as to warrant restriction of their Constitutional and human rights to freedom of travel, assembly, and movement.  We don’t need to establish a new system of (secret) administrative pseudo-justice.  That’s what the courts are for, and they already have an established system of due process and review, including procedures for dealing safely with classified evidence related to national security. (more…)