Earlier this month Sen. Chuck Schumer (D-NY) proposed that the TSA’s “Secure Flight” system be extended to passengers on domestic Amtrak trains. That would mean that Amtrak would be required to send passenger information to the government, and receive a “cleared” message for each passenger before allowing them to board a train.

Summary denial of transport by a common carrier, much less a government-operated carrier like Amtrak, would violate both the First Amendment right to assemble and the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights.

But extending “Secure Flight” to train travelers would be a stupid idea even if it were legal. Rail sabotage has often been a tactic of war, but it has rarely been carried out by passengers. Sabotage can be carried out anywhere along the tracks, or anywhere saboteurs can get access to rolling stock, including freight cars.

Even the Chicago Tribune, the conservative and usually hawkish newspaper-of-record of Amtrak’s main hub and the hub of America’s freight rail system, immediately responded to Schumer’s proposal with an editorial characterizing it as “security theater for Amtrak.”

Most press reports incorrectly characterized Schumer’s proposal as calling for the “creation” of a no-ride list for Amtrak trains.  That’s indicative of how little awareness there is of the scope of existing systems of ID-based prior restraint on common carrier travel, including international Amtrak trains.

Under the “Advance Passenger Information System” (APIS) used for international flights, passenger trains, and cruise ships, Amtrak already requires passengers on its international trains to and from Canada to provide personal information (beyond anything needed by Amtrak for operational purposes), and passes that information on to U.S. Customs and Border Protection (CBP) for inclusion in the Automated Targeting System (ATS) which is used to decide whether or not to give each passenger government permission to travel.

At many Amtrak stations and flag stops, including flag stops on some routes to and from Canada, access to platforms is uncontrolled and passengers board trains before they are even asked for tickets. One some trains, passengers can travel without advance reservations, and can purchase tickets on board. The security directives from CBP and TSA to Amtrak are secret, so it’s not clear whether Amtrak isn’t supposed to allow people to board international trains before getting APIS clearance, or whether Amtrak is supposed to put them off the train, detain them, or call the police if they don’t get a “clearance” message from CBP for a particular passenger. But it’s clear that there is already a government permission requirement for international Amtrak trains.

Just as the APIS system for international flights preceded the Secure Flight system for domestic flights, so Schumer’s “no-ride” proposal is not for the creation of something new but for the extension of ID-based control and surveillance systems already used for international rail travel to domestic rail travel within the U.S.

Amtrak’s conditions of carriage purport to require all passengers, domestic or international, to show government-issued ID credentials. So far as we know, whether a government-operated common carrier can Constitutionally impose such a condition has not yet been adjudicated. In practice, Amtrak has gained enormous competitive benefits since 9/11 from having less onerous and time-consuming “security” procedures, and not generally requiring ID.

Amtrak and Greyhound are the cross-country carriers of last resort. Many people choose Amtrak or buses over airlines because they don’t want to submit to virtual-strip searches or groping by the TSA, and/or because they don’t have (for many legal reasons) or don’t wish to show government-issued ID credentials.

Most Amtrak staff we have encountered recognize ID requirements for rail passengers as security theater, and resent the TSA’s and CBP’s harassment of Amtrak passengers. Despite the notices and announcements, Amtrak conductors rarely actually check passengers’ ID.  We commend Amtrak’s staff for their continuing, courageous, systemwide refusal to carry out illegal orders to interfere with Americans’ freedom of travel. (We welcome whistleblowers and leaks, especially as to what those illegal orders are, and will do our best to keep them confidential.) As a government-operated common carrier, Amtrak should be open to all, regardless of whether they have chosen to get ID credentials from the government, or whether the government has chosen to give them “permission” to move about the country.

As a corporation chartered directly by the Federal government, Amtrak has been determined to be subject to the Freedom of Information Act (FOIA) but not to the Privacy Act.  Data Amtrak passes on to the DHS, however, is subject to both of those laws. Our forms for requesting your ATS and APIS data explicitly include APIS and PNR data obtained from Amtrak and Greyhound as well as airlines, and our ongoing lawsuit against CBP for failing to respond to our requests covers this data as well.

While CBP continues to withhold many of the records we have requested, and to ignore many of our requests entirely, we have already received some partial responses showing reservation and other APIS data obtained from Amtrak in ATS files about travelers being maintained by CBP.  We’re continuing to try to find out more about Amtrak’s role in government control of travel, the degree of access the DHS has to Amtrak reservations, and the purposes (including enforcement of drug laws and as a general law enforcement dragnet) for which this data is used.