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Tuesday, August 16, 2005

Babies on the No Fly List

Over at Balkinization, I just posted about an interesting story by the AP about how babies are being flagged by the Do Not Fly list.  I argue that the debate must shift from merely pointing out the privacy and civil liberties costs of various security measures to also pointing out just how dumb, badly-conceived, and poorly-executed these measures often are. 

Posted by Daniel Solove on August 16, 2005 at 01:04 PM in Daniel Solove, Information and Technology | Permalink

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I share many of the concerns voiced here. I have written about the due process issues in watch lists and other name matches in a forthcoming article, Data Matching, Data Mining, and Due Process, which Dan Solove kindly mentioned on this blog a couple of weeks ago. It's posted on SSRN at: http://ssrn.com/abstract=763504.

I also have a piece entitled "From Blacklists to Watchlists," which should be posted in a week or two, that describes what I could find about the compilation of terrorist watchlists and compares them to McCarthy era labeling.

On the question of what it takes to get on a watchlist, nothing approaching probable cause appears to be necessary. My favorite quote is from the Director of the Terrorist Screening Center that, “to err on the side of caution, individuals with any degree of a terrorism nexus were included in the TSDB [Terrorist Screening Database], as long as minimum criteria was met (at least part of the person’s name was known plus one other identifying piece of information, such as the date of birth).” Each listing is accompanied by a "handling code" for law enforcement response. While the handling codes are not public (I have an FOIA request for them pending), there are four of them, and my guess is that arrest is only one of the possibilities.

Posted by: Dan Steinbock | Aug 17, 2005 11:43:16 AM

Orin: I think part of Dan's point was that there's no crime that the people on the no-fly list can be tied to, and so it's at least dubious to be punishing them -- a point you quite concisely made in your "for what?"

Have we just decided, as a society, that the people on this list are the eggs that we have to break in order to make the proverbial omelette of a false sense of security to keep the populace quiet? (Or perhaps -- more likely -- the omelette is a continuious miasma of intimidation and scrutiny and constant reminders of 9/11 to keep fear and state power salient in the public minds and keep them cowed and angry, a la 1984.) If so, on what basis? Ethically, I mean. Some kind of sharp-toothed utilitarianism?

Can you imagine what it must be like? Put yourself in the place of this poor fellow, going to visit your grandchildren (or on an important business trip that you can't miss), suddenly confronted with a bureaucrat who informs you, totally businesslike, that you're not permitted on this flight or on any other. Or that you've given your newborn baby the wrong name -- for heaven's sake -- so the whole family stays on the ground. You protest, outraged, but are met with a wall of officialdom. "I'm sorry sir, it's the rules. I'm just doing my job." And so on that goes -- from the airport geek's manager, from anyone who you might talk to at the TSA -- if you get to talk to the TSA. They won't tell what you're accused of. The won't tell you who accused you. They won't tell you how to reach whichever agency put you on the list to get off. They won't tell you anything, except "no." Maybe -- maybe if you're lucky, you can, after weeks and months of fighting bureaucracy, get them to move you from the "absolute ban" section of the no-fly list to the "hassle for hours" section of the list, but that's the only hope you're allowed to hold. In the meanwhile, maybe you lose your job because you couldn't go to the meeting. Maybe you miss your uncle's funeral, because they wouldn't delay it long enough for you to take a greyhound across the country. (Assuming you can even get on a greyhound -- the first terrorist bomb on a bus or train in this country and we'll have "no-ride" lists to match the "no-fly" list, and our sex offenders terror suspect infants will have to drive -- assuming they can get a license.)

Welcome to America, Josef K.

Joe: I think they do. In fact, I think the model suit would be a procedural due process challenge based on the idea that the right to travel is a liberty interest which is substantially impaired by the no-fly list. (Possibly also a taking or a contract clause thing based on the fact that the TSA is depriving its "listees" of the benefit of their tickets?)

Posted by: Paul Gowder | Aug 17, 2005 9:42:23 AM

Do no fly lists raise any right to travel problems, especially for domestic flights by citizens?

Posted by: Joe | Aug 16, 2005 10:06:13 PM

Paul,

How have I made Dan's point? I don't understand.

Dan,

I think a "no fly" list is quite sensible as a general matter. I agree that there should be some kind of administrative process whereby a person can go and attempt to clear their name. As for limiting the list to people can be arrested based on PC for a criminal offense, wouldn't that reduce the no fly list to a check to see if a particular suspect has an outstanding warrant for their arrest? I think most people would quite sensibly want more protection than that.

Posted by: Orin Kerr | Aug 16, 2005 9:40:25 PM

Orin,

It would be probable cause to arrest -- either as a material witness, a crime, etc. But now some questions for you: What do you think about the government singling out a group of people, based potentially on associations or some other factors not revealed to the person (or to the public or to any court), and not allowing them to fly when there's not sufficient evidence to suspect them of committing or plotting a crime? Moreover, what kind of appeal mechanism would you suggest be devised for people who appear on the list but contend that they're not terrorists? What kind of oversight would you require for the list itself? What kinds of things beyond being a wanted suspect that can be arrested should get a person on the list? Should we trust the FBI to just come up with names of people who can't fly and leave it at that?

The problem is that the No Fly lists opens up a really difficult can of worms for a very dubious security benefit. So I'm ok with the TSA administering a "wanted terrorist suspect list" for people who should be immediately arrested. Beyond that, I think that a more general No Fly list is a big mistake. Perhaps you can figure out the answers to my questions above, and provide a compelling justification for why people, without probable cause to suspect them of any crime, should be denied the ability to fly even if they pass through screening and have no weapons or other explosives.

Dan

Posted by: Daniel Solove | Aug 16, 2005 5:38:42 PM

Orin, I think you've made exactly Dan's point. Since when is the United States allowed to impose civil disabilities on people who it can't tie to any crime??? (Korematsu and McCarthy come to mind, but surely these aren't consistent with our values, Ackerman's totally misguided ideas notwithstanding.) There's really a ground-level due process issue here: the United States requires that private businesses deny services to certain people, seriously impairing their fundamental right of interstate travel etc., without probable cause to believe they have committed any crime nor any due process.

Posted by: Paul Gowder | Aug 16, 2005 5:25:32 PM

Dan,

Probable cause to arrest *for what?*

Orin

Posted by: Orin Kerr | Aug 16, 2005 4:51:24 PM

Orin,

For wanted suspects, where there's probable cause to arrest, then supply lots of info and arrest.

For others, screen them and let them on through. I don't know what a No Fly List for these others really adds to security. First, it tips off people that they are under investigation. Second, as I've argued before, we have a lot of screening of airline passengers already -- a ton of security here compared to almost any other target. Enough's enough. I've yet to hear of any instance of the No Fly List leading to any arrest of a terrorist; all I hear are stories about Ted Kennedy and babies being flagged.

But perhaps Matt is right -- perhaps the best function of the No Fly List is that there will be fewer crying babies on flights. :)

Dan

Posted by: Daniel Solove | Aug 16, 2005 3:11:48 PM

Dan,

So what system would you design, and how much information would you allow the TSA to have?

Orin

Posted by: Orin Kerr | Aug 16, 2005 2:34:31 PM

Matt: that's hilarious. Nice off-point contribution. :)

PS, 30 is really really old. (apropos of http://blog.qiken.org/archives/2004/04/age_update.html, which a google of you produces)

Posted by: Eh Nonymous | Aug 16, 2005 2:22:46 PM

I never liked babies on air planes anyway, especically the screaming ones. (I know that doesn't make for a small list.)

Posted by: Matt | Aug 16, 2005 2:16:08 PM

Orin,

I think that if you have a wanted suspect, the personal information should be given out. But why is it necessary to give TSA "massive databases fileld with lots of very personal information" about everybody? So we need more data about the suspects, but I don't see why that means more data about everybody else.

The problem with the system I'm pointing out in my post is that its goal isn't really well-defined. Is it to engage in some pattern-based data mining? To locate suspects for arrest? Who are the 100,000 people? Is there enough evidence to arrest them? Or enough suspicion to warrant their questioning? My objection is that it's really unclear what the goal is. If there's 100,000 people who should be arrested, then give the TSA the information, and if one is flagged, then arrest them pronto. After all, if these folks are proven to be really dangerous, then why would we just let them walk away. And if they're just suspected, then what degree of suspicion warrants their inclusion on the list? How can they get off of it? Do they have any rights not to be blacklisted? Some clear rules and procedures -- and more transparency -- are in order. Right now, the list seems haphazard, ill-defined, and poorly-executed.

Dan

Posted by: Daniel Solove | Aug 16, 2005 2:03:45 PM

Orin: be that as it may, which is more abusive? Invasion of privacy or clapping people on secret lists that they can't get off?

This guy's story exemplifies the consequences of being put on the watch list: one's career etc. can be screwed with no appeal possible. (How does this not violate the due process clause?)

Moreover, someone has massive databases filled with lots of personal information. The TSA has to get its names from someone, and, indeed, it gets them from other federal agencies. Presumably, those other agencies are the FBI, etc., which do indeed have massive files and databases.

So we've really got the worst of both worlds here! Panoptic surveillance-by-data in the hands of the FBI, combined with blithering incompetence in name-listing in the hands of the TSA!


(Assuming it survives peer review, I'll have something appearing on this subject very shortly.)

Posted by: Paul Gowder | Aug 16, 2005 1:53:50 PM

Dan,

The obvious question is, why is the Do Not Fly list based only on the person's name? My understanding has been (quite possibly incorrectly) that this is to avoid the risk of civil liberties abuses that might follow from giving the TSA massive databases filled with lots of very personal information. The trade off is between more accurate information and the risk of abuse, and the current system focuses on the latter. That's been my understanding, at least. Is that wrong?

Posted by: Orin Kerr | Aug 16, 2005 1:33:50 PM

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