Aug 25 2008

DHS plays a “shell game” with border crossing records

Today we filed comments with the Department of Homeland Security objecting to a newly-defined DHS “system of records” containing logs of everyone who crosses U.S. borders, including those who cross by car or on foot.  “Border Crossing Information” (BCI) about innocent U.S. citizens not suspected of any crime would be kept for 15 years, while records on foreign vistors would be kept for 75 years.

DHS has, apparently, told the press that they didn’t start keeping records of land border crossings by innocent U.S. citizens until 2008.  According to a story last week in the Washington Post,

Customs and Border Protection agents only this year began to log the arrivals of all U.S. citizens across land borders.

But we know that’s not true, because we’ve seen copies — provided by CBP itself in response to individual requests for records from its Automated Targeting System (ATS) — of records of routine land border crossings by innocent U.S. citizens at least as far back as 2006.

The DHS previously considered the logs now being labeled “BCI” to be part of the ATS system of records. We’ve objected to ATS as illegal, and demanded that these dossiers be destroyed. According to our comments on BCI:

The data now being relabeled as BCI is part of the same data that was previously labeled as ATS. The collection and retention of this data was and is illegal….  Changes to the name of the system of records containing this data neither make it legal nor address our prior comments regarding its illegality. As when such data was considered a part of ATS, collection and retention of travel history data in BCI is prohibited by 5 U.S.C. 552a(e)(7). This section of the Privacy Act restricts the collection or retention of records of the exercise of rights protected by the First Amendment….  Rather than trying again, as they did with the ATS SORN, to provide retroactive notice and yet more new excuses for this illegal travel surveillance dragnet and system of “historical” travel records about the activities of innocent Americans, DHS should entirely expunge these illegal records of lawful activities protected by the First Amendment and international human rights treaties.

Why has the DHS created this new BCI label for portions of its files of travel histories?  The DHS claims they are “providing additional transparency”.  But as we point out in our comments, it’s really a “shell game” that willl do more to hide these records than to faciliate transparency:

Under the Privacy Act, “transparency” is provided by the right to obtain records about oneself. This SORN will make it more difficult to exercise that right, since to obtain the records of their travels held by DHS an individual will now need to request records from even more systems of records: at a minimum, TECS, ATS, APIS, and now also BCI. Given the absence of a clear separation or well-defined distinctions between these “systems” within DHS – as is made clear by the succession of redefined SORNs which DHS claims cover the “same” records — greater transparency would be provided by recognizing that these are all parts of a single system of “Travel Records”, and allowing individuals to obtain all such records held by all DHS components with a single request.

We’ll be revising our templates for requests for travel records, and posting new versions you can use to request your records from as many DHS “systems of records” about travelers as we know about (ATS, APIS, BCI, and TECS).

We’ll keep trying — through helping individuals request their records — to find out exactly what information ATS and these other systems of travel records contain.  The only way anyone can really know what’s in the government’s files about them is to exercise their right to review those files.  But as we say in our comments on BCI:

That right, and the transparency it should provide, are meaningless unless DHS actually responds to requests for access. Rather than issuing new SORNs that complicate the task of obtaining DHS records, the DHS Privacy Office should concentrate on processing the backlog of requests that has accumulated since the public learned of the existence of these travel records through news reports about ATS. The Identity Project has received numerous reports from individuals who have been waiting months without any response to their Privacy Act requests and appeals for ATS records (portions of which would, under this SORN, be recategorized as BCI records). One of our own appeals of the failure to provide requested ATS records has gone almost a year without any acknowledgment, assignment of a docket number, or reply.

The names of the systems of records have changed, but the crimes of the DHS in maintaining these travel histories remain the same.  We haven’t given up on our requests, and we’ll keep you posted on what we find out.