According to the story in the Globe, based in part on descriptions and documents apparently leaked by dissident Federal Air Marshals, the “Quiet Skies” program selects certain airline passengers, who aren’t on any blacklist (“watchlist”) or under investigation for any crime, on the basis of algorithmic profiling, countries previously visited (merely traveling to Turkey has been enough to get some people selected), phone numbers or email addresses, and/or other factors in DHS files about them.
A FAM or team of FAMs is assigned to follow each targeted traveler from the time they arrive at their airport of origin (which the TSA knows from its access to airline reservations through the Secure Flight program), onto and on the plane, through any connecting airports, and until the unwitting target of their surveillance leaves the airport at their final destination.
The FAM gumshoes are required to file detailed reports on each traveler they are assigned to stalk, including a checklist of details such as whether the person being tailed used the toilet in the airport or on the plane, whether they slept for most of the flight or only briefly, and whether they had “strong body odor” or engaged in “excessive fidgeting.”
Is this the reincarnation of J. Edgar Hoover’s FBI, the (re)emergence of an American Stasi, or standard operating procedure for a government that regards travel as inherently suspicious, rather than as the exercise of human and Constitutional rights?
All of the above, unfortunately.
The story in the Globe speaks for itself, and is worth reading in full.
But lest it be misunderstood, here are some key points about what today’s news reveals, what’s new and what isn’t, and why it’s significant:
Is this a fundamentally new type of activity for the TSA or DHS or an expansion of its scope?
No, it’s nothing fundamentally new, and it’s only a modest expansion in scope.
The TSA and other DHS components with which it shares data (including CBP) have for years been keeping individualized, highly detailed, highly intimate dossiers on all travelers, regardless of whether they are or ever have been suspected of any crime.
Those dossiers include — as we have seen in copies of our own files, and those that others have shared with us, obtained in response to Privacy Act and FOIA requests — not only whether two travelers (named and identified by age, gender, etc.) asked for one bed or two in their hotel room, as recorded in reservations routinely imported and mirrored by the DHS, but also free-text comments by TSA and CBP agents about what book a traveler was reading, what clothing they were wearing, and what they were eating.
TSA Behavior Detection Officers are specifically assigned to observe, interrogate, report on, and refer for further interrogation, search, and/or denial of travel individuals who are not on any blacklist (“watchlist”) or suspected of any crime. The checklist of behaviors monitored by BDOs (which was leaked to The Intercept in 2015) includes many of the same items which FAMs are being ordered to monitor under “Quiet Skies”.
These surveillance dossiers are part of the dataset used as the basis for predictive “pre-crime” profiling which decides, according to secret algorithms, who to allow to travel or how intrusively to search and/or interrogate them if they are allowed to travel.
Within the DHS, the FAM program has been a locus of scandal, mismanagement, and whistleblowing.
Finally, Logan Airport in Boston has long been the vanguard of schemes for TSA surveillance of travelers, to a degree that has prompted previous whistleblowing to the Globe.
A program first used in the US at Logan, imported from and based on the ethnic profiling and aggressive interrogation of air travelers by Israeli authorities, was the prototype for the TSA’s “behavior detection” program and questioning of travelers. TSA whistleblowers complained to the Globe that it institutionalized and formalized the application to travelers of the racial profiling for which the police ast Logan were already notorious.
All this was already known and documented.
What has been revealed for the first time today is that FAMs have been directed to more closely watch a list of specific travelers who aren’t on any (other) watchlist, and that FAMs are watching travelers in airports (as BDOs are already doing) and not just on planes.
What’s wrong, though, is not which Federal agents or which categories of TSA staff (Behavior Detection Officers, Federal Air Marshals, etc.) are being tasked with spying on travelers, whether travelers are being watched in flight as well as in airports, or whether some additional “HUMINT” data from labor-intensive personal observations is being added to the vast amount of intimate “ELINT” data about travelers and our movements obtained by the DHS from airline reservations and other commercial sources.
What’s wrong is the overall DHS system of dragnet surveillance and control of travel, which treats travel as (1) a privilege to be exercised only by discretionary permission of the government and (2) an inherently suspicious and quasi-criminal act that provides, in and of itself, probable cause for surveillance and search, rather than the exercise of a right. What’s also wrong is (3) the fantasy of the DHS that it has “precogs” — human and/or algorithmic — that can predict who will commit future aviation-related crimes, and that these predictions are a lawful basis for surveillance, search, and/or blacklisting.
Is this legal?
We continue to believe, as we have argued for years, that suspicionless surveillance of travelers is per se illegal as a violation of the First and Fourth Amendments to the US Constitution and Federal laws and international treaties recognizing the right to travel and to freedom of movement and assembly. Targeting travelers for surveillance on the basis of travel patterns or history is targeting on the basis of the exercise of First Amendment rights, and subject to strict scrutiny which these programs cannot withstand.
The Globe report includes an internal TSA description of the “Quiet Skies” program which mentions that the targeting criteria include associations with other individuals through telephone numbers and/or email addresses in airline reservations. Even if travel were not an activity protected by the First Amendment, records of email addresses, telephone numbers, and associations with other individuals are clearly records of the exercise of rights of speech and assembly protected by the First Amendment.
The Privacy Act permits the maintenance of such records of activities protected by the First Amendment only if explicitly authorized by Congress (which this isn’t) or if it is within the scope of a law enforcement investigation (which “Quiet Skies”, being directed at travelers who are not suspected of crimes, clearly is not).
Even if this data collection had been authorized by Congress, it would be permissible only if notice of the database has been provided to the public in the form of a “System of Records Notice” (SORN) published in the Federal Register, describing the contents of the database, the sources of the data, and the purposes for which it is used.
No such notice has been published in the Federal Register for the list of targets of “Quiet Skies” surveillance by FAMs. The TSA will probably try to claim that this list is part of some larger system of records covered by a broad and vague catch-all SORN. But so far as we can tell, maintenance of this list, without prior promulgation of a valid SORN, was and is a criminal violation of the Privacy Act on the part of the responsible agency officials.
We won’t hold our breath, though, for any of them to be prosecuted for this crime.
What is the significance of the exposure of the “Quiet Skies” program?
The real news in today’s exposure of the “Quiet Skies” program is that it includes leaks of internal documents and quotes on and off the record from multiple Federal Air Marshals and from the head of the main organization of FAMs:
John Casaretti, president of the Air Marshal Association, said in a statement: “The Air Marshal Association believes that missions based on recognized intelligence, or in support of ongoing federal investigations, is the proper criteria for flight scheduling. Currently the Quiet Skies program does not meet the criteria we find acceptable.
“The American public would be better served if these [air marshals] were instead assigned to airport screening and check in areas so that active shooter events can be swiftly ended, and violations of federal crimes can be properly and consistently addressed.”
Until now, there has been no Edward Snowden from within the TSA or DHS, despite the numbers of people involved in travel surveillance and control.
Thousands of Federal Air Marshals have been ordered to inform on anyone they overhear saying anything suspicious on an airplane. Tens of thousands of TSA employees and contractors, and a similar order of magnitude of CBP staff, have been ordered to carry out suspicionless searches and profiling of travelers. An unknown number of programmers, at a cost of billions of dollars, have coded the DHS into the ecosystem of airline reservation data, giving the DHS root access to reservation data and positive control of boarding-pass issuance. An unknown number of “analysts” at the “National Targeting Center” and in airports in the US and around the world spend their days reviewing secret dossiers about innocent travelers and deciding, on the basis of secret criteria, which of them to allow to board which flights.
Until now, none of these people has spoken out against being ordered to spy on travelers or to control who is and who isn’t allowed to travel where.
Now, finally, there appears to have been collective whistleblowing, endorsed by the largest and most mainstream organization of members of one of the DHS police agencies ordered to carry out this spying on their fellow citizens. (Foreigners are also targeted, but so far as we can tell from the report in the Globe, “Quiet Skies” appears to be directed primarily at US citizens traveling on domestic flights within the US. DHS has other surveillance tools it uses against international travelers.) Federal police are saying that their job is to stop crimes, not to spy on innocent people or try to predict which of them will commit crimes.
More people need to speak up like this.
I’m writing this on a peaceful sunny Sunday morning in Berlin, in a pleasant modern hotel a few blocks east of the former course of the Berlin Wall. I’ve spent the last several weeks in the former DDR and neighboring former members of the Warsaw Pact. I’ve been talking with people I meet, visiting museums and memorials, and reading translations of local writing about the legacy of the former secret police of those countries.
Today, the Stasi isn’t bugging my East Berlin hotel room, and local people can talk with me, a foreigner, without fear that they will be called in for questioning about what we talked about or that someone who overhears our conversation will inform on them to the secret police, with subsequent adverse effects on their ability to get permission to work or travel.
But the DHS has all the details of my airline reservations home to the USA, even though I’m flying on a foreign airline by way of a third country. And data such as what phone number or email address are reported to the DHS by the airline, on this or any previous trip, could cause me to be shadowed and reported on by Federal agents, or for airlines not to receive DHS permission to transport me. Just as nobody could travel from the DDR to the West without permission from the Stasi, granted or denied on the basis of a secret dossier maintained about each individual, nobody today can leave or return to the US by air without permission from the DHS, granted or denied on the basis of a similarly secret dossier and subject to no statutory standards and, to date, to no judicial review.
East Berliners no longer have to apply to the Stasi for permission to cross to West Berlin or to travel abroad. But each US or foreign citizen who wants to travel by air to, from, or within the USA has to get permission from the DHS before the airline is allowed to issue their boarding pass. And there are DHS “advisors” permanently assigned to sit behind the scenes in German airports, making “recommendations” to German authorities, on the basis of secret DHS dossiers and secret DHS algorithms, of who those German authorities should — and should not — allow to board flights from Germany.
There are places of remembrance in Berlin and elsewhere dedicated to preserving the memory of what was wrong with the Stasi and its counterparts in neighboring countries, that their evils neither be forgotten nor be repeated. But we have nothing like that in the USA, much less a monument on the Mall in Washington to the victims of COINTELPRO — an FBI program for surveillance and suppression of dissent that was exposed only by illegal direct action, not by any mechanism for self-correction within the government.
We hope that the latest expose on the “Quiet Skies” program will be seen not as evidence of an aberration or an excess that should be “corrected” or an agency that should be “reigned in”, but as further evidence of the fundamental character of the TSA as a lawless agency dedicated in practice, notwithstanding its rhetoric of “security”, to surveillance and control of the movements of US citizens and foreigners alike.
The TSA can no more be “reformed” than could the Stasi. Nor can many other DHS components. We look forward to the day when they are abolished. Then their archives can be thrown open to the public, as those of the Stasi have been, to serve as a library of techniques of government surveillance and control against which we must be vigilant.
In the meantime, the secret police should be mocked, shamed, denounced, exposed, and defied both by those who are asked to submit to, and those who are asked to become perpetrators of, their evils.
We commend each of the Federal Air Marshals whose leaks contributed to the report in the Globe today. We celebrate their whistleblowing, and hope it will be emulated by others throughout the DHS.
And we hope that more people will say, “No,” to the entire police-state enterprise of government surveillance and control of travel of which “Quiet Skies” is just a small part.