TSA proposes arbitrarily individualized surveillance-based searches

TSA-Pre-Crime

In the latest version of TSA’s endless series of “trusted traveler” (or “less mistrusted traveler”) schemes, the agency is currently proposing to impose more intrusive searches on any traveler who doesn’t “voluntarily” enrolled in the TSA Pre-Check program and authorize the TSA to create a new permanent file with everything from your fingerprints to any “other information provided by … government agencies or other entities”.

These files would be exempted from the normal requirements of the Privacy Act that records used as the basis for decisions about individuals’ exercise of our rights be made available to us and be limited to information that is sufficiently accurate, complete, and relevant to form a legitimate basis for such decisions.

The proposal is contained in a package of three regulatory filings (one new and one revised “System of Records Notice” and a “Notice of Proposed Rulemaking” proposing Privacy Act exemptions) published last month in the Federal Register.  All three have to be read in combination to appreciate their full implications.

The deadline for public comments on two of these proposals is today, and for the third is tomorrow. We filed consolidated comments today objecting to all three of these proposals:

Read in combination, this new and revised SORN and these proposed regulations describe a system in which an essentially unlimited range of personal information collected from an essentially unlimited range of sources, and known to include inaccurate and irrelevant information, would be (or perhaps already is being) compiled into the “TSA Pre-Check Application Program” system of records.

These records would be used – either according to criteria which are illegally being kept secret, or in an entirely arbitrary manner at the “discretion” of the TSA – to determine who is and who is not deemed “eligible” to exercise the right to travel without being subject to unreasonable searches.

The results of that decision-making would be incorporated into the “Secure Flight” system of records, and used as part of the basis (also either pursuant to secret rules or entirely arbitrarily) for deciding to issue or withhold the issuance of individualized “boarding pass printing results”, including instructions to TSA staff and contractors as to the degree of intrusiveness of the search to which each would-be traveler is to be subjected as a condition of exercising our right to travel.

Maintenance and use of these systems of records in the manner contemplated by these SORNs and the proposed exemptions would violate the 1st, 4th, and 5th Amendments to the U.S. Constitution, the presumption of innocence, due process, the Freedom Of Information Act (FOIA), the Privacy Act, and Article 12 (Freedom of Movement) of the International Covenant on Civil and Political Rights (ICCPR.

These records should be expunged, and the proposed regulations should be withdrawn….

We also point out that the TSA is only pretending to give the required consideration to public comments:

According to the “TSA Pre-Check Application Program” SORN published on September 10, 2013, “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act because it may contain records or information related to law enforcement or national security purposes.”

This claim was, and is, false. As of the date of the SORN, no such exemption had even been proposed: the NPRM proposing such an exemption, and requesting public comments (such as this one) concerning that proposed exemption for consideration by the DHS, was not published until a day later, on September 11, 2013. Even now, the Secretary has promulgated no final rule for such an exemption. Nor could he or she promulgate any such final rule, consistent with the Administrative Procedure Act, unless and until the current period for public comment on the proposed exemption rule has concluded and the comments submitted (including these comments) have been considered by the DHS.

The false claim that “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act”, when in fact the Secretary has not done so, appears to be intended to mislead individuals about what rights we have, and to dissuade us from attempting to exercise our rights.  In addition, by stating the outcome of the current exemption rulemaking as a fait accompli, it constitutes prima facie evidence of bad faith in the consideration of public comments. It is not enough for an agency to accept submissions of comments from the public to the circular file, after making a decision. An agency must give genuine consideration to public comments before deciding whether to finalize, modify, or withdraw a proposed rule.

You can read our complete comments here. You can submit comments at Regulations gov (here, here , and here) but your comments won’t be processed or visible online until after the DHS Privacy Office re-opens.

[TSA Pre-Crime graphic from Leaksource]

14 Responses to “TSA proposes arbitrarily individualized surveillance-based searches”

  1. Edward Hasbrouck Says:

    “Security Check Now Starts Long Before You Fly” (by Susan Stellin, The New York Times):

    http://www.nytimes.com/2013/10/22/business/security-check-now-starts-long-before-you-fly.html

    The Transportation Security Administration is expanding its screening of passengers before they arrive at the airport by searching a wide array of government and private databases that can include records like car registrations and employment information….

    “I think the best way to look at it is as a pre-crime assessment every time you fly,” said Edward Hasbrouck, a consultant to the Identity Project, one of the groups that oppose the prescreening initiatives. “The default will be the highest, most intrusive level of search, and anything less will be conditioned on providing some additional information in some fashion.”

  2. “Security Check Now Starts Long Before You Fly” » Travel Insights 100 Says:

    [...] (Click here for more background from the Identity Project) Posted by Edward, 21 October 2013, 19:15 [...]

  3. Richard Weil Says:

    “For the person who is highly frightened, every shadow is a ghost.”–Tamil proverb.
    You are dealing with people whose very justification is fear, and who have been given virtually unlimited power. This is a very dangerous combination, since each step they take will justify and support the next one. Until Congress (ha!) or the public (questionable) have the courage to start asking serious questions, or the system collapses under its own weight and futility (as the “War on Drugs” is hopefully doing), all we can do is keep attention on this situation. Many of the people in the TSA may be decent and sincerely believe in what they are doing, but the end result is a horror. If we do not keep shouting about their actions we will end with an America into which a lot of effort has been put to defend what is no longer worth much to anyone.

  4. Papers, Please! » Blog Archive » TSA’s lying “response” to today’s story in the New York Times Says:

    [...] Papers, Please! Challenging ID Demands The Identity Project explores and defends the fundamental American right to move freely around our country and to live without constantly having to prove who we are or why we are here. Home The Issue Who We Are What We Do Secure Flight Featured Cases Policy Analysis Lawyer’s Corner Take Action Press Room Contact Us Friends « TSA proposes arbitrarily individualized surveillance-based searches [...]

  5. Edward Hasbrouck Says:

    TSA accessing government and private databases to pre-screen everyone (RT.com):

    http://rt.com/usa/tsa-databases-passenger-info-555/

  6. Edward Hasbrouck Says:

    TSA Knows All About You (by Kurt Nimmo, Infowars.com):

    http://www.infowars.com/tsa-knows-all-about-you/

    …The initiative is part of an ongoing and escalating effort to condition the American people into passively surrendering any sense of privacy and actively eroding their resistance to a full-blown high-tech Stasi surveillance state. It is the next level of intrusion under the cover of security as the police state works to acclimate citizens to panopticon-like surveillance at all levels.

  7. Edward Hasbrouck Says:

    “TSA Airport Screenings Now Start Before You Arrive At the Airport” (Slashdot):

    http://yro.slashdot.org/story/13/10/22/1328256/tsa-airport-screenings-now-start-before-you-arrive-at-the-airport

  8. Security Checks Start Long Before You Fly: TSA Accessing Government and Private Databases to Pre-Screen Everyone | LeakSource Says:

    [...] TSA Proposes Arbitrarily Individualized Surveillance-Based Searches [...]

  9. Edward Hasbrouck Says:

    “Today in the Surveillance State: The TSA’s Big Blue Glove Reaches Deep Into Your… Past” (by Brendan Kiley, The Stranger):

    http://slog.thestranger.com/slog/archives/2013/10/22/today-in-the-surveillance-state-now-the-tsas-big-blue-glove-reaches-deep-into-your-past

    … If you’re interested in ways to push back against this—or if you need some help because your rights have been infringed or your (legitimate) activities impeded by demands for identification—check out The Identity Project at http://www.papersplease.org. (Gotta love that URL.)

    One easy thing you can do—help the Identity Project with their investigation to see what kinds of information the TSA and DHS are keeping by being a “freedom flier” and requesting your travel records.

  10. Edward Hasbrouck Says:

    OMG WTF TSA (BoingBoing.net):

    http://boingboing.net/2013/10/22/omg-wtf-tsa.html

  11. Edward Hasbrouck Says:

    “Give the Gov’t Your Fingerprints, and the TSA May Let You Keep Your Shoes on at the Airport” (by Mike Flacy, DigitalTrends.com):

    http://www.digitaltrends.com/international/tsa-is-now-searching-multiple-digital-databases-to-prescreen-flyers/

  12. Edward Hasbrouck Says:

    World Journal:

    http://worldjournal.com/bookmark/23902674–TSA-

  13. Papers, Please! » Blog Archive » Who will steal and reveal the “secrets” of the DHS? Says:

    [...] explicitly and publicly that its decisions should be exempt from judicial review, and that it has limitless “discretion” to collect secret dossiers about us and our movements and to use those secret files, again at its [...]

  14. Papers, Please! » Blog Archive » TSA thinks Congress can override international treaties Says:

    [...] formal objections filed by the Identity Project and other organizations, the TSA has decided to go ahead with its [...]

Leave a Reply