Dec 02 2012

TSA updates its “notice” of Secure Flight records

The TSA published a revised System of Records Notice in the Federal Register on November 19th, updating its disclosures of what information about our “travel histories” it collects, retains, and uses through its Secure Flight program for airline passenger surveillance and control.

The new notice is both better and worse than it might appear at first glance. The new “Secure Flight” SORN describes some disturbing TSA practices that were not explicitly disclosed in the previous “Secure Flight” SORN published in 2008.

In particular, the new SORN discloses that if you are turned down or predetermined to be ineligible for the TSA’s “Pre-Check” or other “Registered Traveler” (a/k/a “Possibly Slightly Less Mistrusted Traveler”) programs, you can be placed on a new watchlist, as a result of which logs of your air travel will be retained by the TSA for 99 years. That’s especially problematic because applicants for the Pre-Check program aren’t told that being turned down could leave them worse off than if they had never applied, and subject to lifetime TSA air travel monitoring and itinerary logging.

Bad as this is, however, it isn’t really a change in what data TSA claims the right to collect, or how long it claims the right to retain and use it. These practices were already covered under “catch-all” clauses of the prior SORN, which are retained in the revised SORN, and that actually purport to authorize a much wider range of even worse practices.

Specifically, the “Secure Flight” SORN already disclosed that “Secure Flight” records might contain:

Records obtained from the TSC [Terrorist Screening Center] of known or suspected terrorists in the TSDB [Terrorist Screening Database] and records regarding individuals identified on classified and unclassified governmental watch lists

There’s no definition or limitation on the sources or purposes of these additional “watch lists”. But it’s clear from the description quoted above that these are watch lists other than those of suspected terrorists: lists of people who are to be watched, and whose air travel itineraries are to be logged for life, for (secret, unrestricted) reasons other than that they are suspected of terrorism.

In other words, the “Secure Flight” program is already being used as a general-purpose surveillance dragnet, under which anyone any government agency wants to “watch”, for any reason, can be placed on a (secret) “watch list” that amounts to a lifetime, warrantless, and possibly suspicionless (secret) surveillance order.

Apologists for the TSA might try to claim that one’s travels are in “plain view” and/or have already been “voluntarily” disclosed to airlines. But in accordance with the Supreme Court’s decision in Hiibel v. Nevada, even if police (neither TSA checkpoint staff nor airlines are police) had a reasonable suspicion of a traveler (the Secure Flight rules require no suspicion for placement on a watchlist), the most they could require would be verbal self-identification to the police, not possession or display of ID credentials or disclosure of an ID number (much less disclosure to a third party such as an airline), as is required by the Secure Flight rules.

In this respect, the surveillance and travel history logging component of the “Secure Flight” program looks similar to, but worse than, government use of “pen registers” for logging the origin, destination, and times (but not the contents) of telephone calls — except that “Secure Flight” is entirely standardless and records your own movements rather than merely the movements of your messages.

Being on any “watch list” could also be used as the basis for denial of air transportation. In this respect, the revised “Secure Flight” SORN continues to ignore the applicable Federal and international laws which make travel by air a right and require the TSA to take that right into consideration in TSA rulemaking.

In the 2008 final rule for the “Secure Flight” program, which remains in effect, the TSA responded to our complaint that the program would violate the right to travel by claiming that, “travelers do not have a constitutional right to travel by a single mode or the most convenient form of travel.”

That ignores, however, 49 USC 40101, part of the Airline Deregulation Act of 1978, which explicitly recognizes a specific “public right of freedom of transit through the navigable airspace” and expressly directs the Secretary of Transportation (whose authority under this law has since been reassigned to the TSA) to consider this specific right of travel by air when issuing aviation regulations.

In its final rule for “Secure Flight”, the TSA went on to dismiss our complaint that the program would violate Article 12 on freedom of movement of the International Covenant on Civil and Political Rights by claiming that, “Article 12 of the ICCPR does not apply to laws that are necessary to protect national security. Because the purpose of the Secure Flight program is to protect national security, Article 12 would not apply even if the Secure Flight program did somehow restrict liberty of movement.”

That’s a shocking claim by the TSA of exemption from black-letter human rights treaty law.  And it’s just wrong, as the U.N. Human Rights Committee has made clear in its General Comment No. 27 on the meaning of this article of the treaty. Governments that want to restrict freedom of movement or other rights almost always claim that the purpose of such measures is “national security” rather than political repression. The mere claim that a program is subjectively intended for such a purpose does not make it objectively or demonstrably “necessary” for that purpose or exempt it from the ICCPR.

We’ll be raising these issues with the U.N. Human Rights Committee next year when it reviews U.S. compliance with the ICCPR, including Article 12.

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