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Public Enemy Number Yawn
James Moore's been placed on the No Fly Watch List, but nobody can tell him why:

"Well, let me get this straight then," I said. "Our government is looking for a guy who may have a mundane Anglo name, who pays tens of thousands of dollars every year in taxes, has never been arrested or even late on a credit card payment, is more uninteresting than a Tupperware party, and cries after the first two notes of the national anthem? We need to find this guy. He sounds dangerous to me."

"I'm sorry, sir, I've already told you everything I can."

"Oh, wait," I said. "One last thing: this guy they are looking for? Did he write books critical of the Bush administration, too?"

I have been on the No Fly Watch List for a year. I will never be told the official reason. No one ever is. You cannot sue to get the information. Nothing I have done has moved me any closer to getting off the list. There were 35,000 Americans in that database last year. According to a European government that screens hundreds of thousands of American travelers every year, the list they have been given to work from has since grown to 80,000.

My friends tell me it is just more government incompetence. A tech buddy said there's no one in government smart enough to write a search algorithm that will find actual terrorists, so they end up with authors of books criticizing the Bush White House. I have no idea what's going on.

I suppose I should think of it as a minor sacrifice to help keep my country safe. Not being able to print out boarding passes in advance and having to get to the airport three hours early for every flight is hardly an imposition compared to what Americans are enduring in Iraq. I can force myself to get used to all that extra attention from the guy with the wand whenever I walk through the electronic arches. I'm just doing my patriotic duty.

Of course, there's always the chance that the No Fly Watch List is one of many enemies lists maintained by the Bush White House. If that's the case, I am happy to be on that list. I am in good company with people who expect more out of their president and their government.

Hell, maybe I'll start thinking of it as an honor roll.

Whether he was a victim of something sinister, or simply, bureaucractic incompetence, it's impossible to know. But, more and more people are getting caught up in the net Moore is, and having a very hard time getting out. According to the Electronic Privacy Information Center:

...The TSA administers two lists: a "no fly" list and a "selectee" list, which requires the passenger to go through additional security measures. The names are provided to air carriers through Security Directives or Emergency Amendments and are stored in their computer systems so that an individual with a name that matches the list can be flagged when getting a boarding pass. A "no fly" match requires the agent to call a law enforcement officer to detain and question the passenger. In the case of a Selectee, an "S" or special mark is printed on their boarding pass and the person receives additional screening at security. The TSA has withheld the number of names on each of the lists.

The watch list was created in 1990, with a list of individuals who have been "determined to pose a direct threat to U.S. civil aviation." This list was administered by the FBI before the Federal Aviation Administration and the TSA assumed full administrative responsibility in November 2001. The Transportation Security Intelligence Service (TSIS) currently serves as the clearinghouse for the addition of names to the lists. Since the TSA took over, the watch list "has expanded almost daily as Intelligence Community agencies and the Office of Homeland Security continue to request the addition of individuals to the No-Fly and Selectee lists." (TSA Watchlists memo) The names are approved for inclusion on the basis of a secret criteria. The Watchlists memo notes that "all individuals have been added or removed ... based on the request of and information provided, almost exclusively by [redacted]."

There are two primary principles that guide the placement on the lists, but these principles have been withheld. The documents do not show whether there is a formal approval process where an independent third party entity is charged with verifying that the names are selected appropriately and that the information is accurate. Furthermore there is no reference to compliance with the Privacy Act of 1974, which imposes certain record keeping obligations on the agency.

It appears from the 2002 FOIA documents obtained by EPIC that TSA directed individuals to their local FBI offices to clear their names. More recent documents obtained in 2005 show that an ombudspersom within TSA is responsible for handling requests to be removed from the lists.

EPIC has also obtained more than a hundred complaints filed by irate passengers who felt they had been incorrectly identified for additional security or were denied boarding. The complaints describe the bureaucratic maze passengers find themselves in if they happen to be mistaken for individuals on the lists. In one case the TSA notified a passenger that airlines are responsible for administering the first generation Computer Assisted Passenger Pre-Screening System that flagged the individual as a risk for additional screening and directed the passenger to contact the airline. In an another case an airline said that the CAPPS program is run by the government, and complaints should be directed to the TSA. A local FBI office in New Jersey, at the behest of Congressman Bill Pascrell, wrote (pdf) to the TSA in August 2002 to ask it to take a woman off the list who was being flagged because of her name's similarity to a wanted Australian man. In an email dated July 2002, an FBI counter-terrorism officer acknowledged that different airlines have different procedures when the passenger's name is a similar to one on the list. The litany of problems is long, but all point to a lack of transparency and due process in the operation of the watch lists.

Policy Implications

As the TSA contemplates ever more intrusive passenger profiling schemes, the agency documents uncovered through EPIC's FOIA work raise important questions about how the TSA currently operates. The concerns surrounding the agency's administration of the watch lists preview several potential problems with the proposed roll out of passenger prescreening systems such as Secure Flight. The TSA should provide answers to the following questions:

o How many people are on the "no fly" and "selectee" lists? How many are American citizens or legal permanent residents?
o Who is responsible for oversight of the list? Who verifies that the names are selected appropriately and whether the information accurate?
o How does the operation of the watch lists comply with the Privacy Act of 1974?
o How effective have the watch lists been?
o How can individuals who have been misidentified as watch list matches clear their names?
o Why is there a need for a new passenger prescreening program if intelligence agencies are already coordinating to ensure that certain high risk individuals on government watch lists do not board planes?
o How will Secure Flight respect individuals' due process rights?

Will the demand that we show our papers -- clearly unconstitutional -- continue? Wait for the decision on Gilmore v. Gonzales to find out.

Posted by aalkon at January 9, 2006 7:54 AM

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If your name is on a TSA watch list, you can go to
http://www.tsa.gov/public/display?theme=157&content=09000519800fb8af
and obtain a Passenger Identity Verification Form to be distinguished from another with a similar name who is correctly on the watch list.

I'm sorry if Mr. Moore feels that someone with "a mundane Anglo name" should be exempt. Maybe he thinks only people with Arabic names should be scrutenized? Of course, being white does not automatically mean you're not a threat, and keep in mind that when one wants to change his/her name to conceal identity, "a mundane Anglo name" is the usual choice for an alias.

Most of these inconveniences can be avoided if flight reservations are booked using a person's full name instead of just first and last, since a middle name is often what distinguishes one from that of someone on the watch lists.

There isn't anything unconstitutional about requiring documents and security checks for air travel, since travelling via air is a choice. If someone can't take it, they have the option of taking a train or boat, or driving (assuming, of course, that they can handle providing proof of identity in order to obtain a driver's license).

Posted by: Bear at January 13, 2006 9:40 AM

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