Message-Id: <200309301931.h8UJVUEK026159@new.toad.com> To: privacy@dhs.gov, gnu@tsa-capps21.toad.com Subject: CAPPS-2 comment: Docket DHS/TSA-2003-1 Date: Tue, 30 Sep 2003 12:31:30 -0700 John Gilmore PO Box 170608 San Francisco, California, USA 94117 +1 415 221 6524 voice +1 415 221 7251 fax gnu@tsa-capps21.toad.com September 29, 2003 Totalitarian Security Administration Department of Fatherland Security Untied States of Amerika Docket No. DHS/TSA-2003-1 I respectfully submit these comments in opposition to the Privacy Act Notice ("Notice") published at 68 F.R. 45265-45269 on 1 August 2003. My opposition also extends to the Department of Homeland Security’s intention to establish a system of records under the Privacy Act of 1974 to be used to facilitate the conduct of an aviation security-screening program (PASSR or CAPPS-2), to "test" this system without fulfilling the requirements of the Privacy Act, to exempt this system from the open government safeguards contained within the Privacy Act and to add further exemptions to the Privacy Act. ELIMINATING CONTROLS OVER THE DOMESTIC TRAVEL OF US PERSONS IS WHAT A FREE SOCIETY DEMANDS "Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States."  Aptheker v. Secretary of State, 378 U.S. 500, 519 (1964) (Douglas, J, concurring). Supreme Court Justice Douglas's 1964 decision correctly identified the United States of 2003 as a "totalitarian regime" because its "ticketing of people and the use of identification papers are routine matters". He also correctly characterized this regime as abhorrent. Though neither TSA nor the Bush Administration started this process, the TSA of today is driving this totalitarian technique to further excesses, and the instant docket is a central part of that drive. I urge TSA and DHS to abandon their efforts to establish a system of records containing a history of American citizens' domestic travel, or controlling American citizens' domestic travel, or tracking or controlling the travels of foreign visitors. Such a system is even more inappropriate to a free society because it is administered by imposing an identification requirement as a precondition to travel. On July 4th, 2002, I was prevented from boarding two commercial aircraft because I refused to produce identification at the request of Southwest and United Airlines, and because I refused to consent to a more intrusive search as a result of my refusal to produce identification. I am challenging the constitutionality of the I.D. requirement and the Watch List, the No Fly list and the CAPPS-2 program. Gilmore v. Ashcroft et al (Case No. C-02 3334 SI) is presently before Judge Susan Illston in California’s Northern District Court, and the complete pleadings are available at http://freetotravel.org. TSA and DHS are defendants in this case, and already have copies of these pleadings. I hereby refer TSA and DHS to the filings in the case as relevant material for this docket, and incorporate them by reference herein. In my February 22, 2003 comments, I made many similar points. TSA has not responded to most of my previous criticisms of its plans, particularly the constitutional questions. TSA is already on notice that its actions are unconstitutional and that further action on the part of TSA employees to restrict fundamental rights will subject those employees to significant individual liability. Each airline whose role in CAPPS-2 has been exposed has decided "not to help", because CAPPS-2 is very unpopular with their customers. Admiral Loy has been reduced to proposing that the industry come to "consensus" to help with CAPPS-2, to shield each individual airline from consumer wrath for its actions. I respectfully suggest that the uncoerced industry consensus is that CAPPS-2 should not be deployed. I further respectfully suggest that the TSA employees promoting CAPPS-2 (and/or their collaborators at Acxiom who stand to profit from the program) consider abandoning the proposal, and foregoing all regulations which purport to restrict citizens' right to travel and right to anonymity. THE PURPOSE OF CAPPS-2 IS NOT APPROPRIATELY LIMITED TO SECURING AIR TRAVEL The statutory purpose of airport searches (including CAPPS-2 and its predecessor CAPPS, as well as magnetometer, x-ray, CAT-scan and physical searches) is to detect weapons and explosives and prevent them from being brought aboard aircraft. This limited safety-related purpose is all that makes airport searches even remotely constitutional under the Fourth Amendment. The Notice states, among other things, that the CAPPS-II system will be used for purposes of "the detection of outstanding state or federal warrants" (p. 5). A further law enforcement purpose is revealed (p. 6) by the intent to link CAPPS-II with the US-VISIT system for checking the validity of immigration and visitor visas. Such a link is a repugnant attempt to convert every domestic airport to a "border" where people can be arbitrarily identified, searched and/or seized. These purposes violate the limits imposed in United States v. Davis, 482 US 893, 910 (9th Cir. 1973), stating that for an administrative screening to be a "reasonable search", it must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. They also conflict with Torbet v. United Airlines, 298 F.3d 1087, 1089 (9th Cir. 2002) (in searches to prevent airline hijacking or detect the presence of weapons and explosives, such a search must be "confined in good faith to that purpose"). Airport searches are currently conducted without probable cause to believe that a crime has been committed, and without obtaining a warrant from an independent judicial officer. The only reason that airport searches have been allowed a narrow exemption from the Fourth Amendment is because in the past they were restricted to the narrow purpose of locating weapons and explosives before they were taken aboard aircraft. TO THE EXTENT THAT AIRPORT SEARCHES BECOME AN EXCUSE TO FORCE CITIZENS TO IDENTIFY THEMSELVES SO THE GOVERNMENT CAN KEEP TRACK OF THEM -- OR AS A "CHECKPOINT" FOR ENFORCING WARRANTS -- OR FOR ENFORCING THE IMMIGRATION LAWS, OR THE DRUG LAWS -- OR FOR ANY OTHER PURPOSE UNRELATED TO THE ORIGINAL NARROW PURPOSE -- THEN AIRPORT SEARCHES MUST COMPORT WITH FULL FOURTH AMENDMENT REQUIREMENTS. The proposed CAPPS-2 system does not even nod in the general direction of the Fourth Amendment. It is written with the mindset of a dictatorship; the government authors assume that they can make up a rule and everyone will be required to follow it, constitution or no constitution. The rule need not even be published; it can be kept secret from the public. TSA INCORRECTLY BELIEVES IT CAN IMPOSE THESE RULES REGARDLESS OF THE PRIVACY ACT TSA head Admiral Loy almost directly admitted this in the last week. "The potential always exists for me to issue a security directive to say we need the data," Loy said to reporters gathered on Sept 26, 2003 at the agency's Arlington headquarters. ("TSA May Try to Force Airlines to Share Data", by Sara Kehaulani Goo, Washington Post, Saturday, September 27, 2003; Page A11; http://www.washingtonpost.com/wp-dyn/articles/A7382-2003Sep26.html) "Security directives" are secret orders from TSA to airlines, which numerous citizens have tried and failed to even see, let alone challenge. Loy's point is that he thinks he has the power to impose CAPPS-2 by fiat -- so the airlines should stop complaining and start following orders. If not, the democratic charade is going to stop. Like the bandit leader in the movie "Treasure of the Sierra Madre", Loy might as well have said, "Privacy Act notice? We don't need no stinking Privacy Act notice!" TSA SHOULD NOT DEMAND BY IMPLICATION THAT THE AIRLINES COLLECT NEW INFORMATION FROM EVERY TRAVELER The Notice demands that airlines collect more identifying information from every traveler and report it to the government (p. 4). The requirement is stated circuitously, but creates a new requirement that airlines collect each traveler's full name, home address, home telephone number, and date of birth - information that is not currently collected. It states that "No additional information beyond this data is required to be collected from passengers" (p. 4), implying but not stating that this data IS required to be collected from passengers -- for the first time. Similarly, page 11 states that "For the vast majority of passengers, the CAPPS II system, when active, will maintain only the routine information that all individuals provide when making reservations, as contained in the PNR, including full name, date of birth, home address and home phone number, to the extent available." Currently, "all individuals" never provide a full name, date of birth, home address, or home telephone number -- yet these items are called out yet again. This notice further muddies the waters by ending "to the extent available". Page 13 specifies that PNRs "will include at least the following passenger information: full name, date of birth, home phone number, home address, and travel itinerary". None of this information is currently collected in existing PNRs. TSA should not be treating so cavalierly the subject of what information citizens are required by the government to provide before being permitted to travel. Rights that are foundational to free societies are at stake in this little exercise. If the intent is to establish a new requirement that airlines, travel agents, reservation systems, and personal secretaries must collect new items of information in order to book travel for citizens, then say so plainly. If the intent is to establish a new requirement that citizens must provide certain items of information to airlines in order to travel, then say so plainly. If TSA's intent is to establish a police state, where government permission and documentation is required in order to move about the country, it should have the decency to tell the citizens directly. If TSA does not intend these effects, then it should also disavow them plainly, rather than letting them be easily inferred from sloppy drafting. The Notice says nothing about verifying this information against the traveler's ID card, continuing the government's long-standing practice of never documenting (or even referring to) the ubiquitously enforced ID requirement in any published regulation. A reasonable supposition is that airlines will be required by a new secret security directive to deny boarding to travelers whose ID card does not match the information in the PNR, just as in today's CAPPS-1 system the airlines are required to validate the name and picture from an ID against the traveler's PNR and face. This supposition is supported by the statement in the Notice that "This [database matching against provided information] will enable TSA to have a reasonable degree of confidence that each passenger is who he or she claims to be." If the airlines were not required to validate the provided information against the provided ID card, then anyone with the same name as someone in the database could fly as that person, merely by obtaining and providing the other person's home address, date of birth, and phone number. The Notice should be changed to be explicit about how this information about traveling citizens is to be verified, including what forms of identification will be acceptable, and what the penalties are for providing information that does not match the ID or which cannot be verified. The Notice is silent on whether citizens who do not have a home telephone number will be permitted to travel. The Notice is silent on whether citizens who decline to reveal their date of birth will be permitted to travel. The Notice is silent on whether citizens who are homeless, or who do not have or are not carrying identification papers, will be permitted to travel. (While some may wonder how a "homeless person" could afford to travel by air, there are certainly many such situations. One's family could pay to fly one home for the holidays. Someone who has some income but prefers to spend it on travel rather than on living at a fixed address could afford to travel. And the CAPPS-2 system is not merely being designed for air travel; very similar rules are already in place on passenger trains, on cruise ships, and on many intercity buses. A rule that stated that a homeless person would be unable to take any form of transportation, even a cheap bus, due to their lack of a home address, would be a violation of their fundamental rights.) The answer to this last set of questions is crucial to the determination of whether the United States has become a "totalitarian regime" under Justice Douglas's definition. To the extent that citizens are required to obtain or carry identification papers in order to travel peaceably about the country, this country loses any claim it ever had to being a "bastion of freedom". THE SYSTEM DOES NOT DIRECTLY COLLECT INFORMATION FROM THE SUBJECT, NOR INFORM THE SUBJECT OF THEIR RIGHTS, AS THE PRIVACY ACT REQUIRES TSA is required under 5 USC 552a(e)(2) and (e)(3) to collect information to the greatest extent practicable directly from the subject, and to give that individual at that time a privacy act notice stating the authority for collecting the information, whether the information is mandatory or voluntary, the purposes and routine uses which may be made of the information, and a statement of the effects on the traveler, if any, of not providing all or any part of the requested information. The CAPPS-2 system can not exempt itself from these requirements, since this system definitely "may result in adverse determinations about an individuals rights, benefits, and privileges under Federal programs". Yet TSA has done nothing to satisfy these requirements, which are designed to reduce the error rate of government determinations, such as the determination of whether someone can travel or is to be "subjected" to an intrusive search. Instead, TSA proposes to collect information from airlines, from ID cards shown to airline employees, and from external databases. Under the Notice, TSA never plans to interact with the traveler themself to obtain this information. However, TSA has an easy opportunity to obtain this information directly from travelers as they pass through airports; TSA has a physical presence in each airport in the country. TSA should obtain this information physically from each traveler, rather than demanding it from indirect sources. This might be more inconvenient or expensive for TSA (compared to pushing the job and the expense onto airlines and travel agents), but is certainly "practicable". Also, tellingly, under the Notice, no notice is provided to the traveler at the time that any of this information is collected. Physical interaction between each traveler and TSA would enable TSA to meet this statutory notice requirement. The lack of notice at the time of collection is telling because the people currently collecting the information under CAPPS-1 (the airlines) regularly lie to the public about whether it is mandatory or voluntary. They say it's mandatory and that it's mandated by the government, but there is no published regulation requiring people to provide it, and FAA and TSA consistently deny that travelers are required to provide it. (The Notice doesn't ever clearly state that this information must be mandatorily provided by travelers, either.) The current information collectors also do not clearly spell out either the statutory authority to collect this information, nor the consequences of not providing it. In my own experience, the people collecting this information DO NOT KNOW the statutory authority, nor the consequences of not providing it; indeed, I had to escalate to the head of Ground Security at United at SFO to get an answer to this question, and the incomplete, unwritten, and probably inaccurate answer (without any statutory authority cited) came only after about twenty minutes of behind-the-scenes research on that person's part. It is a reasonable supposition, in the absence of a statement to the contrary in the Notice, that this failure to provide timely and accurate notice will continue unabated under CAPPS-2. THE STATUTES CITED DO NOT AUTHORIZE THE COLLECTION OF IDENTIFYING INFORMATION, BEYOND A LIST OF PASSENGER NAMES, OR THE DEMAND FOR IDENTIFYING DOCUMENTS 49 USC 114 does not authorize the collection of personal information from every traveler, nor the requirement that citizens identify themselves before traveling. Its section (h) merely permits TSA to share the government's own information with airlines, and to "consider requiring passenger air carriers to share passenger lists with appropriate Federal agencies for the purpose of identifying individuals who may pose a threat to aviation safety or national security" -- not to collect new information from either travelers or airlines. 49 USC 44901 requires "screening" of passengers, but does not require or authorize the collection of identifying information from travelers, nor require its provision to the government, nor authorize its collection by the government. Nor does it authorize a demand for ID by the government. 49 USC 44903 requires TSA to promulgate "a uniform procedure for searching and detaining passengers and property", but does not authorize or require the collection of identifying information from any traveler, nor the building of a system of records to store that identifying information, nor a demand for ID from any traveler. It also provides that "The Secretary of Transportation shall ensure that the Computer-Assisted Passenger Prescreening System, or any successor system-- (i) is used to evaluate all passengers before they board an aircraft; and (ii) includes procedures to ensure that individuals selected by the system and their carry-on and checked baggage are adequately screened." However, this statute does not authorize the collection of any identifying information from any passenger, nor the building of a system of records to hold any such information, nor any demand that citizens present any ID documents. The statutory authority cited in the Notice is inadequate to support the procedures required in the Notice. The Notice constitutes "ultra vires" action by the government. THE TORCH PROTOTYPE OF CAPPS-2 READILY SHOWS THE ABANDONMENT OF THE PRESUMPTION OF INNOCENCE The "Airline Passenger Risk Assessment" slides presented by government subcontractor Torch Concepts at the Southeastern Software Engineering Conference on April 2, 2003 illustrate prototypes of the system that would use travelers' information plus commercial databases to single out "suspicious" travelers for denial of their constitutional rights. These slides are available at http://cryptome.org/jetblue-spy.pdf, at http://www.abditum.com/~rabbi/S3B3_Roark.pdf, or at http://www.auchdieserschwachsinnmussinsinternet.de/jetblue-spy.pdf (all are identical copies). Page 8 describes the involvement of TSA, and Torch's connection with the CAPPS-2 program. Page 23 concludes by recommending that "Passenger Stability Indicators" such as social security number, length of residence, income, and home ownership would be viable candidates for selecting who to search. A system designed from this prototype would physically search those who take care to guard their SSN, who move frequently, who have low incomes, or who rent their homes. None of these people deserve any worse treatment from the government than any other citizen, yet CAPPS-2 would search them more frequently than it searches other citizens. The presumption of innocence is absent from the Torch calculations. The same callousness toward the rights of innocent citizens is apparent in the Notice. On page 6, it states that "each traveling passenger will be identified with a ... determination of low, high, or unknown risk... In ...'unknown risk'...cases, the passengers in question will be subjected to heightened security screening prior to boarding their flights." In other words, these people will be physically searched by government agents, either because their demographics don't fit some government-imagined pattern, or because these people prefer to protect their privacy against intrusion by the government or the airlines. Other people who seem more middle-class or upper-class, or who willingly bend over and present their private parts when the bully gestures at them, will be allowed to travel free of search. Such a system is not even appropriate to a prison, let alone a free society. The recent discovery of the Torch presentation has resulted in extensive news coverage, focused on both the privacy rights of travelers and on the expansion of the air passenger profiling system. The editorial "Betraying One's Passengers" on page A30 of the September 23, 2003 New York Times is representative. GOVERNMENT OFFICIALS WILL TRAVEL FREELY, WHILE ORDINARY CITIZENS CANNOT As proposed in the Notice, the system exempts people with a "high level of security clearance" from searches, treating them all as "low risk" (page 5). Page 14 states that the database will hold "names of and other identifying information about government officials or other persons holding security clearance or positions of trust and confidence, such as not to warrant heightened scrutiny." This is the ultimate in chutzpah. TSA is building a classified system under secret laws, and subjecting every traveler in America to its depradations -- except people with security clearances, and people who have friends on the inside. YOU SELF-SERVING SCUM ARE GOING TO HAVE TO GO THROUGH THE SAME CRAP THAT YOU ARE PUTTING US THROUGH. If you think it's too intrusive for busy, innocent government employees like yourselves to be delayed or searched without cause, then you should not inflict delay or searches on busy, innocent citizens either. I know it wouldn't be right for Massa to have to go through the same ordeal as his beloved Darkies, but the Darkies are in revolt here and they're looking for some show of equality. And anytime a CIA mole needs to flee to their foreign controllers, all they'd have to do is use their special exemption to hijack a plane. It would be amusing that the government grants the presumption of innocence to its own employees while denying it to citizens, if it wasn't so infuriating. It makes it quite clear what TSA's opinion is on whether the government should serve the people, or the people should serve the government. Perhaps ex-Soviet proles watching from some remote dacha (long since reclaimed from Party functionaries) can find some humor in it. THE PRIVACY PROMISES MADE BY THE GOVERNMENT DO NOT APPLY TO THE AIRLINES OR THEIR RESERVATION SYSTEMS Under the system in the Notice, airlines and their reservation agents will collect all the information the government desires and put it in the traveler's PNR ("Passenger Name Record" -- which contains a large amount of data, not just the passenger's name). The government then promises that IT will not abuse this information, but it has made no such promise about the travel agents, airlines, and global distribution systems that contain the PNR. Under existing statutes, as well as under the Notice, the data in these PNRs is not restricted, and can be used for any purpose. The Notice purports to require more information, which has never been collected by these private businesses, and which is irrelevant to the commercial transaction being processed. That sensitive personal information, including home addresses, unlisted phone numbers, and dates of birth, could easily be sold to third parties (such as Acxiom, the database integrator who would also receive that data -- under a separate contract -- from TSA). Given the fees that Acxiom will charge TSA for this service, they might well decide to "rebate" a portion of that fee to the airlines in return for getting unrestricted access to the data "voluntarily" provided to them by US travelers. The other "privacy protections" offered in the Notice are laudatory but hardly provide any real protection. There are many cases when even specific Congressional statutes restricted the amount of time and the purposes for which sensitive personal information could be kept -- yet Executive Branch agencies ignored the statute and kept the information as long as they wanted. (The FBI's retention of the personal data from the Instant Check system for gun purchasers was only one of many such instances; in that case, it took a regime change before the illegal practice was overturned, despite many court cases.) Ultimately, the only way to guarantee that information will not be abused (i.e. used for purposes beyond those it was collected for) is to never collect the information in the first place. THERE ARE NO CONTROLS ON THE SYSTEM TO PREVENT POLITICAL ABUSE Any system that restricts or tracks the free movement of citizens around the country is a likely target for political abuse. Any government that would wiretap its major-party opposition (in the Watergate scandal) would have no qualms about monitoring the movements of its political opposition. The current Bush administration has already done just that, when it used the databases of the FAA to monitor the movement of Texas congressmen who sought to frustrate a Republican scheme to redistrict Texas to disenfranchise Democrats. Another likely scenario for political abuse would be to prevent the movement of demonstrators opposed to Administration policy. If the government had a database of everyone who had flown to Seattle during the WTO protests, it could add all those people "temporarily" to the no-fly lists for flights leading toward a later WTO meeting. If the government wanted to start another war of aggression against another defenseless country, and did not want to be inconvenienced by domestic protests, it could ban travel by anyone who was known to be a political opponent of the war -- such as everyone who had signed petitions against the war. Travel restrictions on political candidates opposed to the current administration, and their staffs and supporters, would make it hard for those candidates to win elections, since they would not be able to speak with the public outside a small geographical area. In an extreme case, such as a directive by a sitting president abolishing future elections and declaring a dictatorship, a pervasive CAPPS-2 system could be used to prevent the spontaneous movement of citizens toward the seat of government to retake control of their own government. It would also track the movements and associations of patriots seeking to overturn a successful coup. This would enable a new dictatorship to neutralize small, organized opposition groups. (There is no technical difference between tracking and neutralizing small groups of terrorists, versus small groups of patriotic freedom fighters.) Such coup attempts happen all the time in other countries; there is no reason to assume that the United States is immune to such diseases of the body politic. The Constitution provides many safeguards to make such coup attempts likely to fail -- but CAPPS-2, among many other recent infringements on the Constitution, weaken those safeguards to the point where a corrupt administration would be tempted to try. It's a Catch-22: the systems put into place to make us "safer" from outsiders make us more vulnerable to insiders. Political information about citizen opposition to government policies has routinely been designated as "national security information", which the Notice says will be kept in the CAPPS-2 database. Governments historically have had a hard time distinguishing between loyal citizens who merely disagree with the government, versus disloyal citizens, criminals, traitors, and "terrorists". This has been historically true of the US Government, as for example during the Red Scares, the Japanese-American internment, the Palmer Raids, the Vietman antiwar movement, and the civil rights movement. THE EXECUTIVE BRANCH USURPS A JUDICIAL FUNCTION WHEN IT PURPORTS TO DESIGNATE "KNOWN TERRORISTS" The Notice continually refers to "known terrorists", e.g. on page 6, where it says "It is important to note the CAPPS II system is designed to determine the likelihood that a passenger is a known terrorist, or has identifiable links to known terrorists or terrorist organizations, including both foreign and domestic terrorist organizations." Also on page 13 under "Categories of Individuals covered by the system", on page 14 both under (d) and under "Purpose(s)"; and on page 5. However, there is no such thing as a "known terrorist" absent a decision of an independent judiciary. The Notice conflates "suspected terrorists" with "known terrorists". Just as the Executive Branch cannot merely shoot someone who it "knows" is a terrorist, it cannot prevent their travel either; the proper course of action would be to arrest them. Judicial intervention is required to limit the liberty of a US person for more than a very brief period of time. Any other procedure is an unconstitutional violation of the separation of powers. If the Executive Branch knows that someone is a terrorist because that person has been tried and convicted by a final order of a court, then that person will be in custody, in which case CAPPS-2 is useless. Or that person will have served their time and been released from prison -- in which case they have paid the penalty for their past actions and cannot be prevented from future travel. The Executive Branch cannot arbitrarily, without judicial involvement, declare that a US person as a "known terrorist" and revoke their right to travel. It smacks of the unconstitutional "enemy combatant" designation. If the government believes that a person is a terrorist, it should attempt to get a grand jury to indict that person, then it should arrest them. The accused can defend themselves in court (assuming that any vestige of judicial due process survives the Bush Administration), and ultimately a judge or jury will establish their guilt or innocence. In the meantime, that person's ability to travel will be determined by a judge, not by unilateral and/or secret actions of the Executive Branch. In recent U.S. history, from 1200 to 2000 people were detained by the Executive Branch as "known terrorists", most of whom were imprisoned without trial and held incommunicado for weeks. Ultimately after months or years, most of these people were released, either in this country or to their home countries. Few of them ever appeared in open court. Only four were ever indicted, and none of those were indicted on terrorism charges. This is not a promising record, either for Executive Branch decisions about who is a "known terrorist", or for how those people were treated after their detection by the government. The Notice should eliminate the phrase "known terrorist" and replace it with "suspected terrorist". THE NOTICE CONFLATES MANY LEVELS OF SEARCH, AND IGNORES THE CONSEQUENCES OF SEARCHES The Notice states on pages 6-7 the process that travelers would go through under CAPPS-2. It is written to imply that there are three categories of travelers, each of whom would undergo simple processes: "low", "high", or "elevated, uncertain, or unknown" risk of danger in flight. The Notice states what happens to "low" and "high" risk travelers (travel and arrest, respectively), but fails to be specific about what happens to "elevated, uncertain or unknown" risk travelers. These travelers "will be subjected" (such a lovely phrase -- a mailed fist inside a velvet glove) "to heightened security screening". The Notice quickly moves on to the cheerful "Once these passengers have successfully completed this screening, they will proceed to their flights...", ignoring what the process of "heightened security screening" actually involves, and neglecting to specify how travelers will actually "succeed" or "fail" in this screening. I have personal experience this year bailing out a non-terrorist traveler whose "heightened security screening" resulted in an arrest for possession of a hypodermic needle found in a manual search of his checked baggage. This medical syringe was perfectly legal when purchased in his home state. Apparently it is possible for a non-threatening citizen to be arrested during a security screening, even if the screening determines that the person presents a "low" risk of danger to the plane or its passengers. The Notice does not describe either the "heightened security screening" nor the criteria for succeeding or failing it. Presuming that an honest citizen does not wish to fail the screening, nor be arrested even if they "pass", there is no information provided in the Notice that would enable them to guarantee a positive outcome. The Notice should be explicit that CAPPS-2-motivated screenings will ONLY be used to determine whether a traveler is a "high risk" traveler who will be arrested. The only other result of such a screening should be that the traveler is permitted to travel unmolested (except by the delay and inconvenience of the search itself). Similarly, any CAPPS-2-motivated screening should have a specified brief duration. If the screening cannot determine whether someone is a "high risk" traveler before the plane leaves, the presumption of innocence requires that the traveler be released from government seizure so that they can travel. THERE ARE NO PROTECTIONS AGAINST TARGETING SUSPECTED CRIMINALS The secret database lookups built into the CAPPS-2 make it much more likely that people will be targeted for these "heightened security screenings" not because of a risk of danger to air travel, but because the government hopes to catch them breaking some other law. Subscribers to High Times magazine, people with prior arrests records, ex-convicts, people on probation or parole, those wearing baggy "gang" clothing, those having funny haircuts or strange accents, people with nonwhite ancestry, and other people disfavored by the government could be targeted under the CAPPS-2 described in the Notice -- and there would be no effective way for the public or the targeted people to contest it. Just as in today's so-called "random" airport searches, which happen with disturbingly high frequency to certain totally innocent people that I know personally, the government will hide its reasons behind its "risk rating number", without revealing the actual reason why these people are being targeted. It is easy to see the magnitude of this problem when you realize that current law absolutely forbids discrimination by race or ancestry in law enforcement and in judicial proceedings -- yet black and Latino people are arrested at several times the rate of white people, despite equal propensity to engage in crime, and they serve more than 10x as much prison time as whites, per capita. Even in the presence of laws specifically forbidding the practice, this discrimination is rampant among law enforcers, prosecutors, judges, and juries. TSA should not design or deploy an airline security screening system that is tailor-made for using arbitrary criteria to make invidious discriminations among citizens. Not only are there no laws or regulations specifically stating that CAPPS-2 cannot target people for reasons other than risk to the plane. The Notice does not propose any such rules. The Notice also provides no procedural safeguards against this. It should provide for public disclosure of the databases being searched, disclosure to each traveler of the reasons for their "risk score", and an administrative process by which a traveler can challenge their risk score or their subsequent search process. TSA SHOULD NOT "TEST" CAPPS-2 WITHOUT FULL PRIVACY ACT SAFEGUARDS Page 8 claims that TSA will "test certain portions of the system", apparently using live data, and will "use and retain PNR data for the duration of the test period. ...as long as 180 days." TSA cannot build a database containing half a year's worth of the travels of American citizens, without fully satisfying the Privacy Act, including providing a full description of the database, notice to the subjects as the information is collected, statutory authority, etc. TSA's proposed justification for running this "test" is "intended to respond to public concerns about speed, accuracy, and efficiency of the system." However, TSA has never made public ANY information about the speed, accuracy, or efficiency of either CAPPS-1 or any previous design of CAPPS-2, even under FOIA requests. TSA claims that this entire category of information is exempt from public disclosure, so it is hard to see how a "test" to create this information can be intended to respond to the public. Instead, I believe that this "test" is designed to get all the components of CAPPS-2 firmly in place, long before TSA actually has authorization to proceed with it, in the hope that TSA can somehow "slide it into operation" without following proper procedures under the Privacy Act. Congress, too, was sufficiently concerned about this possibility that it has now required that an independent GAO audit be performed before the system could be deployed. TSA should abandon its attempts to "test" a system that cannot even pass its basic Privacy Act comment period without attracting thousands of opposing comments. TSA SHOULD PUBLISH A PRIVACY ACT NOTICE THAT CLEARLY SUPERSEDES ALL PREVIOUS NOTICES ON THE SAME TOPIC The Notice does not make it clear whether it "amends" or "supersedes" the previous "ASSR" Privacy Act notice. That notice made many outrageous claims about Privacy Act exemptions, data retention periods, etc. If this Notice is read as an "amendment" to the ASSR notice, then most of those claims have survived in the current proposal. To the extent that TSA desires any of those proposals, claims, or terms to survive, it should make them explicit in the current (and in any future) Notice. Furthermore, the majority of the Notice appears to be non-binding commentary. The small print at the end taketh away even the faint promises in the large print. TSA IS STILL NOT SPECIFYING ANY DATA RETENTION PERIODS Page 10 states that "Under the final CAPPS II program, when active, it is anticipated that TSA will delete all records of travel for U.S. citizens and lawful permanent resident aliens not more than a certain number of days after the safe completion of their travel itinerary." Now that's a mouthful of caveats, but even if you take away all the caveats, it says the data will be kept for "a certain number of days". That number may be certain to TSA, but it has certainly not PUBLISHED that number so that the public can be certain of it. There are NO promises about retention of records about foreigners. On Page 17 this weasel-wording is repeated. It is then augmented, by stating that other records in the database "will be retained for three years, or until superseded". Is that three years maximum, or three years minimum? Or is that decided on a per-record basis? THE NOTICE DISCRIMINATES BETWEEN US AND NON-US PERSONS, BUT PROVIDES NO WAY FOR THE GOVERNMENT TO DETERMINE THE CITIZENSHIP OF TRAVELERS, AND MAY DISADVANTAGE AMERICANS The Notice claims that different data retention periods will be used for US citizens, versus non-US persons. But the Notice provides no way for TSA to determine whether a given traveler is a US person or a non-US person. Domestic travelers in the United States, even under the Notice, are not required to reveal their citizenship nor whether they are lawful permanent residents. It is hard to reconcile this reality with the statement that the two categories will be treated differently for data retention purposes. Supposing that a database match does not determine the citizenship of a traveler, will that person's data be kept for the "US citizen" period, or for the "non-US person" period? Or will that person merely be kept from traveling because they have not left a sufficient audit trail in (unnamed and unknowable) databases for the government to determine their citizenship? The Notice also provides that non-US persons may have greater or lesser protection than US citizens. In fact, the US is actively negotiating with the European Union, Canada, and other countries with strong data-protection laws. The current CAPPS-2 Notice would cause airlines to violate these foreign laws, when applied to travelers who are citizens of these countries. The Notice should provide that United States citizens and permanent residents should get no worse treatment from our own government than the citizens of foreign countries get from these negoatiations. EVEN IF CAPPS-2 DELAYS FEWER PEOPLE THAN CAPPS-1, IT IS NOT AN IMPROVEMENT One of the primary justifications proposed for CAPPS-2 is that it would reduce the number of innocent citizens being harassed on every flight by CAPPS-1. Though CAPPS-2 was in design long before the huge unwarranted expansion of "no-fly lists" caused large numbers of innocent travelers to be delayed over and over, TSA has tried to "spin" CAPPS-2 as "the solution to this problem". Both in public statements and in the Notice, "One of TSA's primary purposes in creating this new system is to avoid the kind of miscommunication and improper identification that has, on occasion, occurred under the systems currently in use." (page 11-12). This is like using an axe to remove a splinter. It removes the splinter all right, but removes the entire limb with it. A very rapid cure for an overinclusive "no-fly list" is for TSA and the rest of the Executive Branch to stop making overinclusive lists of suspected terrorists. This could be implemented without passing any new regulations, and indeed I would be surprised if there was any public notice at all that it was happening. The real cure for the current harassment of innocent travelers is to build procedural protections into the system; in particular, judicial review. In both the current system and under the CAPPS-2 Notice, the Executive Branch merely denies people the right to fly, and never bothers to seek a judicial determination of innocence or guilt. (Under the Notice, a "high risk" determination merely states (page 7) that "law enforcement or other appropriate authorities will be notified for appropriate action." It does not specify what the appropriate action would be, and certainly does not require that these people be brought before a judge. Yet the vast majority of "no-fly" situations involve innocent parties. Requiring that those parties be brought before a judge would give them a rapid opportunity to seek an order that TSA never harass this person again. This would provide adequate protection against today's repeated TSA harassment of innocents. This is a much smaller change to the current CAPPS system than a complete redesign full of database lookups and new information requirements from citizens. THE PRIVACY ACT NOTICE DOES NOT PROVIDE THE STREET ADDRESS OF THE DATABASE Page 13 states that the "System location" is at "PO Box 597, Annapolis Junction, MD". Besides being a notorious NSA mail-drop, the Annapolis Junction post office probably does not contain the database in question. The Privacy Act requires in 5 USC 552(e)(4)(A) that the "location" of the system of records be provided. This is particularly ironic given TSA's insistence on getting the "home address" of every traveler. THE PRIVACY ACT NOTICE IMPROPERLY CLAIMS TO EXEMPT THIS SYSTEM WITHOUT SPECIFYING A REASON Page 17, "Notification procedures", page 18, access and modification procedures, and page 19, record source categories and exemptions claimed, attempt to exempt this system from various provisions of the Privacy Act, using 5 USC 552a(k). However, the official exemption claimed on page 19 is only for "portions of this system", yet the rest of the Notice claims to exempt the entire system. Section (k) also requires that any such exemption can be made only if the system falls into specific categories. The vast majority of the data in CAPPS-2 does not fall into any of those categories. The Notice also fails to meet the Section (k) requirement that "At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section." No reasons are proffered. This system would collect hundreds of millions of mandatory records on citizen movements every year, to be retained for indefinite periods, yet TSA can't even explain to the public why the whole Privacy Act doesn't apply to it, despite being required by statute to do so. Page 18 purports to exempt the system from both access and contesting procedures, yet then "graciously" provides its own access provisions, that come without any of the procedural guarantees of the actual Privacy Act. Page 18 also claims that in order to contest a record, one must first request and obtain their records (and include a copy). However, the kind of records most likely to be contested (listing an individual in a watch-list as a potential "threat to aviation") are the type of records that this page attempts to prevent the public from obtaining copies of. The procedures to contest such a classified record are a hollow sham. People who are incorrectly listed on a watch-list will not have any recourse under this Notice. They will continue to be harassed on every flight, as they are today under CAPPS-1. Also, the Privacy Act requires in subsection (e)(5) that the agency "maintain all records which are USED BY the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as reasonably necessary to assure fairness to the individual in the determination." (Emphasis mine). The records USED BY the agency include all of the external databases and all of the government databases, and they are definitely used in making a determination about the individual involved. Yet major government databases planned for use with CAPPS-2 have been exempted by the Attorney General from meeting any accuracy standard (because they are sufficiently full of errors, rumor and innuendo that they cannot meet any accuracy standard). And commercial databases do not meet these Privacy Act criteria either, and therefore cannot be USED BY the agency in making any determination about any individual. In my own case, my credit records at all three companies contained significant inaccurate information, and it took years to get these private companies to correct it. These are databases that are subject to the accuracy, notice, and update provisions of the Fair Credit Reporting Act. Many databases such as the Acxiom database to be used in CAPPS-2 are not regulated by any privacy law. TSA should certify in the Notice that CAPPS-2 will not use any database that does not meet (e)(5)'s fairness criteria. AIR TRAVEL IS A FUNDAMENTAL RIGHT AND A NECESSITY "[Freedom] to travel throughout the United States has long been recognized as a basic right under the Constitution."  United States v. Guest, 383 U.S. 745, 758 (1966). A "fundamental right". Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986).  A law that requires ID burdens the right to travel, as it is one of the "cherished liberties that distinguish this nation from so many others."  Gomez v. Turner, 672 F.2d 134, 143 n. 18 (D.C. Cir. 1982); and must be necessary to further a compelling state interest."  Laws that burden that right must be necessary to further a compelling state interest.  Soto-Lopez, 476 U.S. at 905.  "These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness.  They have encouraged lives of high spirits rather than hushed, suffocating silence."  Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972).  Even with a compelling state interest, "that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488 (1960).      "[I]t would work a considerable hardship on many travelers to be forced to utilize an alternative form of transportation, assuming one exists at all." United States of America v.  Albarado, 495 F.2d 799, 807 (2nd Cir. 1974).  It is "often a necessity to fly on a commercial airliner, and to force one to choose between that necessity and the exercise of a constitutional right is coercion in the constitutional sense."  Id. At 807. Also see United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973).  The Notice violates the fundamental right to travel, and the right to travel by air. THE I.D. REQUIREMENT VIOLATES DUE PROCESS OF THE LAW BY EXERCISING STANDARDLESS DISCRETION TO ENFORCE A SECRET LAW In striking down a law that required people to show "credible and reliable" ID on demand, the Supreme Court held that void-for-vagueness doctrine requires that a law be drafted "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."  Kolender v. Lawson, 461 U.S. 352, 357 (1983); Delaware v. Prouse, 440 U.S. 648, 662-663 (1979), (no right for police to conduct random or arbitrary seizures to check a motorist's ID, as "to allow this action would create a 'grave danger' of abuse of discretion."); Village of Hoffman Estates et al. v. Flipside, 455 U.S. 489, 499 (1982) (more stringent vagueness test in First Amendment cases). "Traditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule." Satellite Broadcasting Co., Inc. v. F.C.C., 824 F.2d 1, 3 (C.A.D.C. 1987). The Notice does not clearly state the ID requirement and is thus void for vagueness. THE IDENTIFICATION REQUIREMENT VIOLATES THE FOURTH AMENDMENT An ID requirement constitutes a "serious intrusion on personal security" that is more serious than a pat down search.  Lawson v. Kolender, 658 F.2d 1362, 1367-68 (9th Cir. 1981) (aff'd on other grounds, Kolender v. Lawson, 461 U.S. 352 (1983)).  The Supreme Court in Brown v. Texas, 442 U.S. 47, 51-52 (1979) held that a demand for ID by police must be based on reasonable suspicion with objective criteria.  Thus, the requirement to provide identification, conducted by an airline at the behest of TSA, violates the Fourth Amendment under either Lawson or Brown:.  "We believe that the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest." Lawson at 1368. To the extent that the Notice requires travelers to identify themselves (or provide identifying information), it is an unconstitutional search. THE EXERCISE OF THE RIGHT TO TRAVEL CAN NOT BE BASED ON THE RELINQUISHMENT OF 4TH AMENDMENT RIGHTS "The government (cannot) properly argue that it can condition the exercise of the constitutional right to travel on the voluntary relinquishment of Fourth Amendment rights.  Implied consent under such circumstances would be inherently coercive." United States v. Lopez, 328 F. Supp. 1077, 1093 (E.D.N,Y. 1971); accord, United States v. Meulener, 351 F. Supp. 1284, 1288 (CD Cal. 1972). The test is the reasonableness of the search, not consent to search.  United States v. Albarado, 495 F.2d at 807. The Lopez injunction about conditioning the right to travel on relinquishing the 4th Amendment stems from cases such as Perry v. Sindermann, 408 U.S. 593 (1972) (coerced consent violates the doctrine of unconstitutional conditions; the Government cannot condition the receipt of a governmental benefit on waiver of a constitutionally protected right); Speiser v. Randall, 357 U.S. 513 (1958), (veterans tax benefit may not be conditioned on taking a loyalty oath) Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594 (1926) (on unconstitutional conditions, "it is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence.")  FIRST AMENDMENT RIGHTS ARE INTERTWINED WITH TRAVEL AND VIOLATED IN AN ID REQUEST PRIOR TO BOARDING The ID request deprives American citizens of a host of first amendment rights: the right to speak without being chilled due to justified fear of arrest (Bykofsky); freedom of association City of Dallas v. Stanglin; Roberts; the right to petition the government for redress (White v. Lee, 227 F.3d 1214 (9th Cir. 2000)). This is the "indirect injury" referred to in Healy v. James (408 U.S. 168, 183 (1972)) that constitutional protection is not limited to direct interference with fundamental rights, but extends to indirect and unintended interference.  Lyng v. International Union, UAW, 485 U.S. 360, 367 (1988) approvingly cites Healy for the proposition that “associational rights are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” In Waters v. Barry, 711 F. Supp. 1125, 1134 (U.S.D.C. 1989), the court struck down a curfew as "trampl(ing) upon associational and liberty interests", holding that "when government undertakes to limit these rights in some manner, it must act gingerly...narrowly focused on the harm at hand, as well as sensitive to needless intrusions upon the constitutional rights of the innocent" (Id. at 1134, citing Roberts, 468 U.S. at 623; Aptheker, 378 U.S. at 508; Shelton, 364 U.S. at 488. CONCLUSION For all these reasons, I urge TSA and DHS to abandon their efforts to establish a system of records containing a history of American citizens' domestic travel, or controlling American citizens' domestic travel, or tracking or controlling the travels of foreign visitors.