We’re quoted on the front page of today’s New York Times in a story by Susan Stellin, “Security Check Now Starts Long Before You Fly”:

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.”

More:

• “TSA proposes arbitrarily individualized surveillance-based searches”
• Comments filed with the DHS by the Identity Project in response to the latest proposals for the TSA’s “Pre-Check” (Pre-Crime) databases

The TSA refused to say anything to the Times on the record, but published a blog post today (with the misleading title “Expediting Screening for the Traveling Public”) responding to the Times’ story with a succession of lies and prevarications.

We call “bullshit” on the TSA:

• “We are not using “private databases.”” This is an out-and-out lie, as “Blogger Bob” and the TSA surely know. All TSA pre-secreening systems relie primarily on information from private commercial databases of airline reservations (PNRs). Since there is no requirement for a U.S. citizen to notify the government directly before taking a trip by common carrier, “pre-screening” would be impossible without access to, and reliance on, these private commercial databases. The US government has gone to great effort, through the APIS,  PNR, and Secure Flight regulations and through lobbying for changes to Canadian privacy law and exceptions to European privacy law, to implement requirements for DHS access to this data.  If these databases are no longer “private”, that is only because the TSA and other DHS components have compelled airlines and reservation hosting companies to make this data available to government agencies.
• “TSA does not monitor a passenger’s length of stay in any location.” The TSA doesn’t always retain the travel itinerary information it compels airlines to provide for domestic travel, but it claims the right to do so for anyone deemed (arbitrarily or according to secret criteria) to be “suspicious” or to “match” an entry on any of the government’s (arbitrary, secret) “watchlists”.  And for international travel, CBP (another DHS component agency) does retain complete PNR data, including travel itineraries, and comprehensive border crossing and entry/exit logs, for all travelers, in its Automated Targeting System (ATS) — and claims the right to “share” all this data with the TSA. (And that doesn’t even begin to consider the NSA’s apparently independent hacking of airlines and reservation systems and potential sharing of PNR and other travel data with DHS.)
• “We are not using car registrations.” Again, it’s CBP rather than the TSA that is logging license plates and vehicle movements (using cameras near borders and optical character recognition software), linking them to individual ATS records, and using them to generate “risk” scores and watchlist messages — which are then passed on to the TSA.  TSA is using this data, just (slightly) indirectly. According to the latest System Of Records Notice for ATS, published in the Federal Register in 2012, “ATS maintains the official record for … the combination of license plate, Department of Motor Vehicle (DMV) registration data and biographical data associated with a border crossing”.
• “[W]e rely on the same security information passengers have been required to submit at time of booking for many years…. [T]he info we rely on is the same info that passengers have provided for years when they book their flight.” Actually, we didn’t used to have to provide our ID number, date of birth, or gender in order to make an airline (or Amtrak train, or Greyhound bus) reservation. It used to be possible to hold airline reservations in “dummy” names, or with no names at all. The TSA relies on information that has only been required since the creation of the TSA. And in the past, we “provided” that information, if at all, only to airlines and travel companies. Prior to the creation of the TSA, we never had to provide any information to the government to book a flight.  (Unless we were traveling in a foreign country where a foreign government agency like the Stasi required us to show our ID cards or permission papers to book a flight.)
• “Anyone who has never traveled outside the United States would not have a passport number on file and would therefore not be subject to the rules that the agency uses to determine risk.” Nonsense. Many people have our passport numbers on file with the TSA because we’ve used our passports as ID for domestic flights.  Many people have no government-issued ID except a passport.  Despite the State Department’s moves to make it more difficult to get a passport, the REAL-ID  law sometimes makes it even more difficult to get a drivers license or other state-issued ID than to get a passport.
• “We are not expanding the type of information we use.” If that were true, why would the TSA have published formal notices in the Federal Register of new systems of records and new uses for existing systems of records?  They don’t publish these legal notices just for fun. Either (a) the TSA has already been illegally collecting and/or using this data without proper notice, in violation of the Privacy Act (as DHS did for years with the Automated Targeting System), (b) the TSA is doing what is says in the notices it is doing, and collecting and using new information in new ways, or (c) the TSA plans to do so in the future, and wants to be able to say, if someone later complains, “But we gave you fair notice that this was what we were going to do. If you wanted to object, you should have done so back in 2013 when we published that notice.”
• “[W]e are not using any new data to determine low risk passengers.” Applicants for the TSA’s Pre-Check program — i.e. people who want to be relieved of suspicion-by-default and the associated more intrusive search each time they travel — are being required to provide information that the TSA has never before requested, including fingerprints, other biometric information, and authorization for checks of criminal, financial, and other government and commercial records.  If the TSA isn’t using any of this new data, why is it compiling it? More than likely, this new data is being or will soon be used — and retained for possible additional future uses for an unknown range of purposes.

[TSA Pre-Crime graphic from Leaksource]

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. Read More →