India and Pakistan may allow each other's tourists

Going against the trend being set by the USA toward increasing governmental obstacles to international travel, Pakistan and India agreed earlier this month that they would begin issuing tourist visas to each other's citizens -- for the first time since the British colonies and feudal fiefdoms in South Asia were partitioned into independent India and Pakistan in 1947.

Holders of passports from most foreign countries, including the USA, have been able to cross between India and Pakistan as tourists, with astonishing ease, even when citizens and residents of the two countries have not. Each time I've done so, though, it's been a surreal experience, as though I were slipping through a trap door directly between Washington and Moscow at the height of the Cold War. More disconcerting than that, though, because India and Pakistan are in many respects so similar, despite their hatred of each others' governments .

The partition of "the subcontinent" involved displacement of peoples on a historically unprecended scale, and perhaps a hundred million Indians and Pakistanis today have relatives or ancestral ties to places on the other side of the border. Whenever local people in either country learned that we had been on "the other side", they pressed us with questions about what it was like, and letters to carry on our next crossing. We had lunch with a scholar of regional relations at a presitgious univeristy in a city near the border, who plied us with questions about the places he had studied all his career, but had never been permitted to visit.

Some limited visits have been permitted in recent years, but only for family reunions or religious pilgrimages. Citizen diplomacy has been possible only under cover of these loopholes.

There have been ups and downs in Indo-Pak relations and border rules (although the border has, to reiterate, remained open to USA and other foreign citizens even in the worst of times). But in addition to the opening of the border to tourists (the effective date of which I've been unable to determine), India and Pakistan are now at least talking about the even more remarkable possible step of opening the border between the portions of Kashmir that they each control, a matter near the top of Kashmiris' own agenda for short-term measures to improve the conditions of their lives under partition.

US-VISIT tracking extended to all except USA and Canadian citizens

Effective today, the US-VISIT program of fingerprinting, photographing, and compilation of lifetime travel dossiers on visitors to the USA will be extended to everyone crossing the borders of the USA except for citizens of the USA and Canada.

When the US-VISIT program went into effect at the start of this year, citizens from selected First World countries (mostly in Europe, and almost all with predominantly white-skinned populations) making short tourist visits under the USA "Visa Waiver Program" (VWP) were exempted. That exemption has now expired.

When the law authorizing US-VISIT was passed, the intent was ton ensure that all international visitors would be fingerprinted and photographed, either when they applied for passports (which would contain digitally-encoded biometric data such as fingerprints and/or iris scans of the unique patterns of blood vessels in the eye) or on arrival and departure to and from the USA. The exemption from US-VISIT of entrants under the WVP was originally linked to a requirement that they have machine-readable biometric passports.

No country, including the USA, has yet begun issuing passports containing machine-readable biometric data. (That's another story for a future article.) Under heavy pressure both from governments of countries included in the VWP, and from those interest groups in the USA that support making it easier for foreigners to come here, spend their money here, and contribute in other ways to the USA (yes, there really are such groups, mainly in inbound international tourism, education, and trade), Congress extended the deadline for VWP participants to have biometric passports until October 2005, but only on condition that in the meantime they be fingerprinted, photographed, and "enrolled in US-VISIT" (i.e., that a lifetime travel dossier be opened for each of them), on arrival at the port of entry to the USA.

The US-VISIT program has received overwhelmingly negative publicity and criticism around the world, although only Brazil has come close to reciprocal treatment of visitors from the USA. Brazil is fingerprinting and photographing USA citizens on arrival. But there is no evidence that Brazil has even tried to digitize all the information or compile it into the "biographic and biometric travel histories" created for each visitor under US-VISIT. And while Brazil requires visas for tourists from the USA, and charges the same US$100 for a visa that Brazilians are charged for visas to the USA, USA citizens can obtain Brazilian visas by mail, without the need for the personal appearance and application interview at a consulate or embassy required of applicants for visas to the USA -- a particular burden for would-be visitors from remote parts of countries as large as Brazil.

Privacy International awarded US-VISIT a 2004 UK Big Brother Award as "Lifetime Menace" to UK citizens, and condemned it in a report this week as, "The gold standard in privacy invasion".

Within the USA, objections have been raised to some degree by civil liberties organizations, but much more loudly by those suffering the economic effects of US-VISIT on reduced visitorship to the USA, and expecting further effects with its extension today to VWP visitors.

Among those negatively affected by US-VISIT:

• States along the Mexican border that profit from border trade, especially Texas
  
• States that profit from foreign tourists (so few people in the USA have passports, or use them, that foreigners spend billions of dollars more each year in the USA than Americans spend overseas), especially Hawaii and Florida
  
• USA states and colonies (e.g. Puerto Rico and Virgin Islands) getting fewer visits from cruise ship passengers who now have to pay US$100 for a visa, and be fingerprinted and photographed on leaving and again on returning to the ship, for even the briefest port call
  
• Schools, colleges, and universities at all levels, from private English-language and technical training schools to the most elite universities, whose would-be students can't get visas to study here and who have difficulty hiring faculty from abroad. (If Harvard can't get visas for its professors and students, imagine what it's like for less influential educational institutions.)
  
• Airlines and airports (especially American Airlines and the international airports in Miami, New York, and Los Angeles) that had rpovded transit services and transportation via the USA for travellers between Latin America and Europe, Asia, and the Pacific. For citizens of other countries, it's now worth paying at least US$100 more, in each direction, for direct flights or flights via e.g. Canada, to avoid the USA transit visa fees.
  
• Convention and meeting venues and service businesses suffering from the shift of meetings with international participants to cheaper, more officially welcoming Canada.

As I've often noted, citizens of the USA remain the world's biggest benficiaries of non-reciprocal visa-free entry privileges. If your a citizen of the USA, and you want to preserve your privilege to travel (internationally, travel is generally not considered a right), you need to let Congress know that your ability to travel aborad will, in the long run, be dependent on the offical welcome that the USA extends to visitors from abroad -- and their money.

The Amazing Race 5, Episode 12

Manila (Philippines) - El Nido - (Philippines) - Lagen Island (Philippines) - El Nido (Philippines) - Manila (Philippines) - Calgary, Alberta (Canada) - Lookout Mountain, Alberta (Canada) - [Banff, Alberta (Canada)] - Canada Olympic Park, Alberta (Canada) - Fort Worth, Texas (USA) - Dallas, Texas (USA)

Those who saw the photos of The Amazing Race that I posted last week are probably wondering what happened to the teams' visit to Banff, Alberta (Canada), and the tepee-building challenge: neither appeared in the broadcast of the final episode of this season of the around-the-world travel reality-TV show

Permits for the filming in downtown Banff and at the tepee-building site in the Bow Falls parking lot nearby were taken out by "World Race Productions", which exists solely to produce "The Amazing Race". And there was no "roadblock" (a task that only one team member may perform) shown in the 13th and final leg of the race, unlike all the other legs.

So I suspect that the tepee-building was in fact the final "roadblock", but was edited out either to make time for more exciting footage (the teams were only a few minutes apart at the tepee site, but it took them all about the same amount of time; all they were seen to do in downtown Banff was to go into a shop to pick up a clue) or because I had "spoiled" it. My photos thus remain as the only public record of this part of the race.

This might have been a decoy clue pickup and challenge filmed by the actual cast members, but from what I know about when it was photographed, and other spottings of the race, it's hard to construct a plausible schedule that would have given the racers time at the right time of day to have done it. It's also possible that it was a decoy filmed with stunt doubles, but that seems even less likely, given the close-ups of the racers.

So far as I know, this was the first season in which so many of the destinations visited by the race -- including the Philippines, Alberta, and probably Dubai -- were selected as a result of lobbying by destination marketing companies and government tourism promotion offices. Tourism promoters in Banff may be disappointed that their cameo role in the race wound up on the cutting-room floor, but they don't need the television show to sell the attractiveness of the region.

Banff and environs are already attracting exactly the sort of people who would be attracted to "The Amazing Race". Andrew Hempstead, author of the definitive Moon Handbooks to the region (earlier in this episode, Colin was cursing himself, "If only we had a guidebook!") and the WesternCanadaTravel.com Web site, says:

The type of traveller to Banff has changed over the last few years. More and more visitors are coming to the region looking for adventure rather than simply to say they've been to Banff. Hiking, white-water rafting, and horseback riding are favorite activities, which savvy travellers explore well beyond the park, heading into the back-country of Mt. Assiniboine Provincial Park and the Lake O'Hara region.

Canadian tourism and visitorship has also benefited from the undervalued Canadian dollar, and from the US-VISIT program and other "Homeland Security" measures that have made the USA less officially welcoming (most ordinary Americans still welcome foreigners -- really we do!) and more difficult and expensive for foreign citizens to visit. Tourists from abroad interested in North America are choosing friendly, more affordable Canada instead of the USA. Students and academics are choosing to study, teach, and do research in Canada instead of the USA. Businesses and other organizations are holding meetings and conventions in Canada instead of the USA, especially if they involve participants from countries, or of ethnicities, disfavored by the USA government.

Also likely to be disappointed with the final broadcast are the TV show's sponsors at American Airlines (IATA code "AA"). It appears that, along with product placements and advertisements read by the host of the show during each episode, AA was also responsible for the race ending in their primary hub, Dallas-Ft. Worth. AA may have hoped to promote the area as a tourist destination, not just a place to change planes, but the primary impression left with viewers was of how bad the traffic is.

Since AA has the most flights to DFW, the odds were that the best flight for the racers (for whom price of airline tickets is no object) would be on AA. Presumably, what AA wanted was scenes of racers saying, "I really want to get on American Airlines, because they have the best schedule." Instead, what they got was repeated scenes of racers desperately trying to get off AA, first because the most direct AA flight was two hours late, and then because United Airlines (UA) chanced to have a flight from its hub in Denver to DFW arriving slightly before the next AA flight. The one team that got on the UA flight got enough of a lead from that alone to carry them through to victory over the other two teams who flew AA. Having the final decisive factor in the race be which team didn't choose the sponsoring airline is about what AA deserved, I think. It's also a good lesson that, when flying to or from a major airlines' hub airport that it dominates, it's often preferable to avoid that locally-dominant airline, if only to preserve at least some competition and choice.

The Amazing Race 6 has already been filmed. Broadcasts were to start this week or next on Saturday nights on CBS in the USA, but the success of the show (it has won the Emmy award for "reality-competition" show the last two years running, and ratings are increasing even in the USA) has prompted CBS to hold the show back for a later start date, probably on a weeknight. I'll let you know as soon as the starting date and time for the new season are confirmed.

Applications have supposedly closed for The Amazing Race 7 , to be filmed starting in late 2004. Keep your eyes peeled for race flags, and watch for pairs of people running through airports along with camera crews (if you get pictures of the racers or the race, please send them to me; I can publish them with or without identifying you, as you choose), if you are travelling during October-December.

If you missed the official application deadline for the next season, but want to participate (and if you are a citizen of the USA -- the producers still haven't changed their rule that, "No Canadians or other 'foreigners' need apply"), I'd send in an application anyway: many of the cast members in previous seasons of the race have been selected outside the publicly-announced applications and auditions, and some applications have been held over from one season to another.

Of course, you could always do it yourself, as I'll be talking about in my presentation Wednesday night at the National Geographic Society on A 21st-Century World Tour . As Kim said immediately after she and Chip won The Amazing Race 5 , "I just can't imagine, if anyone gets a chance: take the time out and just travel!"

I'll continue to keep up with other news in my blog. For those of you reading this in my e-mail newsletter , until next season, "Bon voyage".

[Addendum, 30 September 2004: As several commenters have pointed out, photos of the tepee-building challenge and the visits to stores in downdown Banff (during which, apparently, the racers picked up the matching winter hats and other apparel) show up in the gallery of photos of the race on the CBS Web site. And Southern California blogger Franklin Avenue reports that he interviewed co-producer Bertram Van Munster, who further confirmed that the Banff segment of the race had been "left... on the cutting room floor".]

TSA reveals some details of Secure Flight

The USA Transportation Security Administration today released drafts of its first official descriptions of the Secure Flight airline passenger surveillance, monitoring, and no-fly system According to today's TSA press release , the TSA intends to publish all of these in the Federal Register tomorrow:

• A Notice of Proposed Rule-Making from the Office of Management and Budget (OMB) intended to require all airlines based in the USA to turn over all PNR's with information on reservations (specifially to include, for unexplained reasons, canceled reservations) for flights within the USA in June 2004 for Secure Flight tests.
  
• A System Of Records Notice under the Privacy Act, which is supposed to describe how the government will use this information.
  
• A Privacy Impact Assessment (PIA) for the proposed Secure Flight tests.

The announcement was made at two closed-door, invitation-only briefings at TSA headquarters in Arlington, Virginia, one for reporters and one for airline representatives.

I'm in Washington, but I wasn't invited to either briefing, and even when I asked, TSA spokespeople wouldn't tell me where or when they were to be held. Yesterday, after 3 other TSA spokespeople wouldn't return my calls, I eventually reached TSA spokesperson Darren Kayser. He told me he didn't know what briefing I was talking about, but that he would let me know when one was scheduled. I was sitting in my hotel room in Washington, waiting for a call that never came, while the briefing (with Kayser in attendance, I later learned) was being held across the river in Arlington. Kayser didn't return my later calls requesting comment on why I, and some of the other reporters and stakeholders with the greatest interest in the issue, weren't allowed in.

The first question I would have asked, if I had gotten a chance, would have been the status of negotiations (if there have been any, which I suspect there may not have been) towards a new USA-European Union agreement to permit airlines and CRS's to comply with the demand for data for Secure Flight tests without being subject to enforcement action under the EU Data Protection Directive and the EU Code of Conduct for CRS's.

That's only the first of my questions. I'll be publishing an analysis of the proposals and details on how to submit comments , and I'll be filing comments with the TSA and OMB. The proposals will be open for public comment for 30 days from the date of their publication in the Federal Register .

No mention of "Secure Flight" in Ridge talks with the EU

With an announcement of more details about the USA Transportation Security Administration (TSA) Secure Flight passenger surveillance and no-fly scheme imminent, and Secretary of Homeland Security Tom Ridge in Europe for talks with European Union (EU) leaders on the use of airline passenger data by his Department of Homeland Security , there has still been no mention of how Ridge, the DHS, and the TSA intend to get approval from the EU in time to start testing Secure Flight by the end of this year, as they have said they intend.

In general, as has already been an issue between the USA and the EU, the EU Data Protection Directive provides only limited exceptions to its requirements, including those of consent from "data subjects" for use of personal data about them, and prohibits disclosure to others unless they agree to respect those rights and provide an "adequate" level of protection for personal data. In addition, the EU Code of Conduct for computerized reservation systems (CRS's) prohibits CRS's -- which host almost all major airlines' passenger databases -- from disclosing any data from passenger name records (PNR's) without the consent of the passenger or other data subject.

The USA and the European Commission reached a so-called "agreement" (not technically speaking an international agreement under USA law, since it wasn't ratified as a treaty by the Senate, and thus can't be invoked as binding in any USA court) with the USA which would allow the DHS Customs and Border Protection (CBP) division to use personal data collected in the EU and entered into airline reservations, in certain cases and for certain purposes. Pursuant to this agreement and certain (non-binding) undertakings made by the DHS as to how they would use this data, the EC also issued a finding that this data would be "adequately" protected once transferred the USA government.

The European Parliament is challenging both the "agreement" and the adequacy finding in the European Court of justice. But what may be even more significant in the short term is that neither applies, even arguably, to "Secure Flight". The USA-EU agreement and the DHS undertakings apply exclusively to data concerning international flights. Data collected in the EU for reservations on domestic flights within the USA, or data collected by or transferred to the TSA rather than the CBP, are included only through a clause in the undertakings permitting their use for testing (not deployment) of CAPPS-II . There is nor mention whatsoever of any other similar, related, or successor program(s).

As the DHS and TSA have long since admitted, it's impossible to tell which reservations contain data originally collected in Europe, as many do. The TSA and DHS can only test Secure Flight, under the current USA-EU agreement, adequacy finding, and undertakings, if they admit that "Secure Flight" is really CAPPS-II, and re-name it accordingly.

The DHS has said it intends to test Secure Flight first with historical data from past flights -- for which consent can't possibly be obtained after the fact. If the DHS doesn't rename "Secure Flight" back to "CAPPS-II", or negotiate a new agreement and adequacy finding with the EU, any airline turning over passenger data for Secure Flight tests will have no protection under the existing agreement, and will be subject to enforcement action by EU national data protection authorities. And any CRS collaborating with the tests will also be subject to enforcement action by the European Commission for violation of the EU Code of Conduct for CRS's.

"Secure Flight" to be subject to same oversight as CAPPS-II

Both the House of Representatives and the Senate of the USA have approved identical language for inclusion in the "Department of Homeland Security Appropriations Act, 2005", H.R. 4567, that would subject the USA Transportation Security Administration's Secure Flight air traveller surveillance and no-fly scheme to the same Congressional and Government Accountability Office (GAO) oversight as had previously been enacted for the predecessor of Secure Flight, CAPPS-II .

The bill has not been enacted, but very similar versions have been approved by both houses of Congress, and the remaining differences (unrelated to the Secure Flight oversight provisions) have been referred to a House-Senate conference committee. The final compromise version is expected to be approved shortly.

Section 514 of H.R. 4567 (you can get the full text, other versions, and current status of the bill from the Library of Congress Web site) contains language essentially identical to the provisions of last year's appropriations bill on CAPPS-II, except that it now applies to CAPPS-II "or Secure Flight or other follow on/successor programs" and includes a ninth clause requiring study of special provisions for states with unique transportation needs (presumably in response to the lawsuit in Alaska against CAPPS-II):

SEC. 514. (a) None of the funds provided by this or previous appropriations Acts may be obligated for deployment or implementation, on other than a test basis, of the Computer Assisted Passenger Prescreening System (CAPPS II) or Secure Flight or other follow on/successor programs, that the Transportation Security Administration (TSA) plans to utilize to screen aviation passengers, until the Government Accountability Office has reported to the Committees on Appropriations of the Senate and the House of Representatives that--

(1) a system of due process exists whereby aviation passengers determined to pose a threat are either delayed or prohibited from boarding their scheduled flights by the TSA may appeal such decision and correct erroneous information contained in CAPPS II or Secure Flight or other follow on/successor programs;

(2) the underlying error rate of the government and private data bases that will be used both to establish identity and assign a risk level to a passenger will not produce a large number of false positives that will result in a significant number of passengers being treated mistakenly or security resources being diverted;

(3) the TSA has stress-tested and demonstrated the efficacy and accuracy of all search tools in CAPPS II or Secure Flight or other follow on/successor programs and has demonstrated that CAPPS II or Secure Flight or other follow on/successor programs can make an accurate predictive assessment of those passengers who may constitute a threat to aviation;

(4) the Secretary of Homeland Security has established an internal oversight board to monitor the manner in which CAPPS II or Secure Flight or other follow on/successor programs are being developed and prepared;

(5) the TSA has built in sufficient operational safeguards to reduce the opportunities for abuse;

(6) substantial security measures are in place to protect CAPPS II or Secure Flight or other follow on/successor programs from unauthorized access by hackers or other intruders;

(7) the TSA has adopted policies establishing effective oversight of the use and operation of the system;

(8) there are no specific privacy concerns with the technological architecture of the system; and

(9) the TSA has, pursuant to the requirements of section 44903 (i)(2)(A) of title 49, United States Code, modified CAPPS II or Secure Flight or other follow on/successor programs with respect to intrastate transportation to accommodate States with unique air transportation needs and passengers who might otherwise regularly trigger primary selectee status.

(b) During the testing phase permitted by paragraph (a) of this section, no information gathered from passengers, foreign or domestic air carriers, or reservation systems may be used to screen aviation passengers, or delay or deny boarding to such passengers, except in instances where passenger names are matched to a government watch list.

The GAO has previously reported that CAPPS-II failed almost all of the test in Section 514(a) of the bill, and Secure Flight is unlikely to fare much better in a competent and impartial audit.

Section 514(b) of the proposed Homeland Security Appropriation Act is more problematic. I presume it was intended to limit the authority of the government to order airlines not to transport would-be passengers, but as written, it might be interpreted to expand that authority substantially and inappropriately.

Both domestic and foreign airlines operating to, from, or within the USA are defined as "common carriers" under 49 U.S.C. 40102 (part of the Airline Deregualtion Act of 1978). As such, they are required by exisitng Federal law (under a long line of legal decisions interpreting the meaning of "common carrier") to transport all passengers complying with the terms of their tariff. And any regulation or order purpoting to authorize denial of transportation to an otherwise qualified passenger, except on the basis of an order issued by a court of competent jurisdiction, would be contrary to this exisitng statute, and invalid.

The danger is that Section 514(b) could be interpreted to override or limit the current obligations of the airlines to act as common carriers, and to authorize denial of transportation merely on the basis of a "watch list", without requiring that such a list be limited to peersoms subject to judicial restraining orders limiting their right to travel.

USA Dept. of Transportation dismisses complaint against Northwest Airlines for breach of privacy and lying

In an order of 10 September 2004, the USA Department of Transportation (DOT) has dismissed a
complaint and request for enforcement action brought by the Electronic Privacy Information Center against Northwest Airlines (IATA airline code "NW").

According to the complaint, NW:

has engaged in an unfair and deceptive practice by disclosing consumer personal information to the National Aeronautics and Space Administration ("NASA"), in violation of 49 U.S.C. [Section] 41712. [NW] engaged in this activity without the knowledge or consent of the affected consumers, and in contravention of public assurances that the personal information it collects would not be shared with third parties without individuals' consent.

The decision should not be taken as a vindication of NW's practices: the allegations that NW had given customers' personal information to DOT without their knowledge and consent, and had lied about it, were not in question. "The facts central to this case are for the most part undisputed," DOT found.

Instead, the DOT essentially upheld NW's contention that passengers have no reasonable expectation of privacy, no matter what the airline tells them. According to the DOT decision:

Specifically, we find that Northwest's privacy policy did not unambiguously preclude it from sharing data with the federal government; that, even if it did, such a promise would be
unenforceable as against public policy, as Northwest is required by law to make such records available to the Department and to other federal agencies "upon demand"; and that, in this case, the record contains no evidence of actual or likely harm to those passengers who provided Northwest with the data that it shared.

(EPIC's Web page on the case includes links to the complete legal filings for and against the complaint.)

In my previous analysis of NW's rebuttal to the complaint, and in many other incidents, I've noted DOT's consistently abysmal record of willful nonfeasance as the sole agency in the USA -- under the terms of Federal preemption of airline law enforcement by the Airline Deregulation Act of 1978 -- with the power to hold airlines to any standard of truth in advertising. For those who've been following the case, and DOT (non)policy of privacy and consumer protection (non)enforcement, the latest decision is no surprise.

Several details, however, should be noted.

First is the legal idiocy of claiming that, because the law allows the government (in other circumstances not even arguably applicable to the facts of this complaint) to compel an airline to turn over passenger data to some government agencies, NW's privacy policy couldn't possibly be interpreted to forbid NW from voluntarily turning over passenger data, even when not ordered.

Both the categories of data and the agency in question (NASA) in this complaint were different from anything the government is authorized by law to demand, and no one claimed that there was any demand anyway. More importantly, the DOT decision completely misses the essential distinction between voluntary and compelled disclosures. A party to any contract is, implicitly, permitted to comply with a valid and binding government order, even if compliance requires them to take actions that are contrary to the contract. But that doesn't authorize them to do so in the absence of a government order, and it doesn't mean that a clause in the contract forbidding such actions is unenforceable against voluntary acts not compelled by the government.

Second, the DOT found, as quoted above, "no evidence of actual or likely harm" from NW's breach of promise, sufficient to provide a basis for enforcement action.

The DOT decision was made by DOT Assistant General Counsel for Aviation Enforcement and Proceedings Samuel Podberesky -- the same DOT offiicial who told the European Commission in an official letter in 2000 :

My office investigates and prosecutes cases under 49 U.S.C. 41712. I would point out that the failure by a carrier to maintain the privacy of information obtained from passengers would not be a per se violation of section 41712. However, once a carrier formally and publicly commits to the "safe harbor" principles of providing privacy to the consumer information it obtains, then the Department would be empowered to use the statutory powers of section 41712 to ensure compliance with those principles. Therefore, once a passenger provides information to a carrier that has committed to honoring the "safe harbor" principles, any failure to do so would likely cause consumer harm and be a violation of section 41712. My office would give the investigation of any such alleged activity and the prosecution of any case evidencing such activity a high priority. We will also advise the Department of Commerce of the outcome of any such case. [emphasis added]

When the European Commision determined that personal data transferred to the USA was assured of adequate protection under the "safe harbor" arrangement, this letter from Podberesky was one of the fundamental assurances from the USA that was explictly relied on as the basis for the EC decision, and it was included in full as Annex VI in the decision itself .

Most of the debate about the EC finding that the "safe harbor" arranegment was "adequate" focused on the policies established by the Federal Trade Commisison (FTC). But under the Airline Deregulation Act, the FTC has no jurisdiction over the airlines, so the only possible source of adequate privacy protection for airline data in the USA would be Podboresky's enforcement office in the DOT.

Podberesky's decision on the EPIC complaint against NW, by finding that nonconsensual disclosure of confidential personal data, in violation of a promise to consumers and in the absence of government compulsion, caused no harm, is directly contrary to his prior written assurance to the EC that such action "would likely cause consumer harm". Whether his earlier statement was inaccurate, or his office's policy has changed, the EC now has compelling reason to reconsider, in light of this decision, whether the protection afforded to airline data held by commercial entities in the USA can still be considered "adequate" to satisfy the requirements of EU law. And if NW hasn't committed itself to comply with the "safe harbor" arrangement, than it remains vulnerable to direct enforcement action by EU national data protection authorities, and such should promptly be initiated.

Finally, this decision should cause both travellers and the Congress to ask whether, if lying to the public about secret disclosures of travllers' personal information to the government really isn't illegal, then "there about to be a law". If you agree, let your Representatives and Senators know that you want them to pass a Federal law to protect the privacy of travel data.

The Amazing Race comes to Canada

Click on the links below for more photos and accounts of the season finale of "The Amazing Race 5" in Banff, Alberta (Canada).

The first clue that the race is coming: parking spots reserved for "The Amazing Race" on the main street of Banff, Alberta. The racers all ran into the shop right where the "no parking" signs were posted, presumably to pick up a clue.

Setting up for the tepee challenge. Tepee frames were set up before the racers arrived. Competitors only had to cover them in canvas. The Banff Springs Hotel is in the background.

The scene at the challenge site before the competitors arrived. Note that there were 4 tepee frames, even though only 3 teams remained in the race.

Note the benches covered with white sheets, apparently to make them blend into the snow and make the scene look more "wild" and less urban.

Production trailers: around 4 trailers like these were following the teams, with a total of around 20 crew members.

First Peoples waiting under the tepee frame for competitors. Note the horses tied up: these were apparently only set dressing, hired from a local outfitter. They played no role in the challenge.

Brandon runs in to start the tepee challenge. You can see that snow had been spread over the parking lot (which is normally plowed) in the area where the tepees were set up. The area was plowed again after the filming was complete.

Brandon completing the tepee challenge.

One of two still photographers working with the producers.

First Peoples describing to Chip how to go about the tepee challenge.

Filming in progress. From left to right: sound technician, Chip, video photographer, still photographer.

Chip working on the tepee challenge.

Chip (upper left) and Kim (lower center).

Colin works on the tepee while Christie watches, with most of the crew looking on. At least 10 crew were there (pictured), but did absolutely nothing while the challenge took place.

Nicole runs in after Brandon finishes the challenge.

Brandon runs in, video photographer tracks him in front with sound technician behind. All of the filming was in this direction -- toward the horses and a background of wilderness.

Crew moving boom into position.

Eyewitness description of the season finale in Banff

Photos of each of the final threee teams of racers in Banff

The Practical Nomad columns on The Amazing Race 5

Complete index of columns on all seasons of The Amazing Race

The Amazing Race 5, Episode 11

Rotorua (New Zealand) - Manila (Philippines) - Cavite Province (Philippines) - Victoria (Philippines) - Manila (Philippines)

[Spoiler warning: Usually I talk about what has just happened on The Amazing Race , but this week I'm going to talk mostly about what is about to happen in the race. If you don't want to know what country The Amazing Race 5 visits next, on its way back to the USA, don't read this article. If you don't want to know, as master of ceremonies Phil Keoghan asks at the start of each episode, "Which team will be eliminated... next?", don't look at the photos below or the other photos I've posted showing much more detail of the location, set, cast, and production crew.]

Judging from the volume of comments in my blog -- in English, Tagalog, and (mostly) Taglish -- there is no country where the televised visit of The Amazing Race (the real visit, of course, having been more than 6 months ago) has been as eagerly anticipated and enthusiatically welcomed as the Philippines, where the racers stopped for the first of two Philippine "pit stops" at the end of tonight's episode:

As for the show I think it's great that they had the contestants partake in situations that are unique to Philippine culture like decorating the jeepney! Also the fact that they were sent out to rural farming areas and yet there were people there who could communicate in English! I certainly hope this show brings an increased awareness of what the Philippines might be like. As you heard Nicole say, "I don't know anything about the Philippines" with Brandon replying, "All I know is that it's an island." I hope the viewers will come away with more than just that!

It certainly makes me look forward to my own first visit to the Philippines, which I'm planning (with help from the Moon Handbooks: Philippines by my friend Carl Parkes , whose award-winnning Moon Handbooks: Southeast Asia has proven itself on my previous visits to the region to be a far superior guidebook for my tastes than its better-known competitors ) for the end of the year.

Only one other country, not yet visited by the race, has generated greater interest in the race, both by those who hope the race will pay a visit and those who hope to be considered for the cast in spite of not being citizens of the USA: Canada.

I don't control the producers of this or any other television show, and I can't change the rules they have imposed (presumably because they think these rules will maximize viewership and revenues, although there are some other possible partial excuses) that prohibit Canadian citizens from being given a change to show that they are more skillful travellers than people from the USA.

I can, however, offer Canadians half a loaf of hope: there still won't be any Canadians in the race, but in next week's two-hour season finale, the final three teams will stop in Canada en route back to the finish line in the USA.

As I've previously reported, an eyewitness spotted the racers in Canada, figured out what was happening, and sent me this description of one of the challenges as well as these photos of all of the remaining racers, after the final elimination (at the second of the pit stops in the Philippines) narrows the field to three teams:

Brandon

Nicole

Chip

Kim

Christie

Colin

Stay tuned for more details on the season finale next week!

Eyewitness description of the season finale

More detailed photos of the season finale

The Practical Nomad columns on The Amazing Race 5

Complete index of columns on all seasons of The Amazing Race

US Airways joins United, Hawaiian in bankruptcy

As many, including me, have expected for months, US Airways filed for bankruptcy today, joining United Airlines and Hawaiian Airlines.

The airline's own Web site about its bankruptcy contains, as is typical in such cases, many lies. They claim for example that:

US Airways is not going out of business. The Chapter 11 process will allow US Airways to complete its restructuring initiatives while we continue normal day-to-day operations. There will be no changes to our flight schedule as a result of this filing. Every ticket will be accepted and honored in accordance with current US Airways policies; refunds and exchanges will be made as usual. Reciprocal agreements with other air carriers, including affiliates, Star Alliance and codeshare partners, will remain fully intact and continue without interruption.

In reality, whether any of those things will be true is now up to the bankruptcy court, not the airline, to decide. Since the airline has no real power to decide any of these things, these false assurances being given to potential customers are clearly fraudulent. If the USA Department of Transportation -- which has, as I've frequently pointed out, a dismal record of ignoring the most flagrant violations by the airlines of consumer protection laws -- actually cared about consumer protection or law enforcement, they'd step in immediately to put a stop to these lies by the airline.

I'm not holding my breath for the government to act. Caveat emptor . For the facts, see my FAQ about Airlines Bankruptcies .

Low business class fares from USA to Europe

I don't normally mention specific fares, but there are some exceptionally low prices available for purchase tonight through travel agents that use the Sabre conputerized reservation system -- including through Travelocity.com, the travel agency that is a division of Sabre.

If you are planning a trip from the USA to Europe within the next year, check out the prices in business class on Scandinavian Airlines (IATA airline code "SK"), including codeshare flights with SK flight numbers but actually operated by other airlines, either from Travelocity.com or your favorite Sabre travel agency (if they are open -- don't wait!). There are SK codeshare flights from most major USA airports.

It's hard to tell exactly what range of routes are included in this sale, but all the itineraries like this I priced this evening in Sabre or on Travelocity.com were about a tenth of what they usually are: a few hundred U.S. dollars (plus another US$200-250 in taxes) roundtrip, instead of several thousand dollars. In other words, business class tickets for about the usual price of discounted coach/economy class tickets.

Since it's unadvertised, this is probably an unintentional sale. The prices are currently valid (Sabre guarantees its pricing to travel agencies that subscribe to its system) and have been available for several hours, but could disappear any second, quite literally.

[Addendum, 11 September 2004: These fares now appear to have been withdrawn, although not before I and many others got tickets issued. Congratulations to those who were able to take advantage of this in time. Bon voyage!]

[Further addendum, 7 October 2004: Scandanavian Airlines has confirmed that "hundreds" of tickets, but probably less than a thousand, were issued at these prices. SK will honor these tickets (including tickets on code-share flights operate by other airlines), with Sabre picking up the difference between what customers paid and the normal SK business-class fares. No changes can be made to schedules or flights on these tickets -- if SK or codeshare airlines change their schedules, and flights no longer connect, SK will authorize full refunds.]

Senators propose sweeping "travel surveillance" scheme

On Tuesday, 7 September 2004, Democratic U.S. Senator Lieberman and Republican Senator McCain introduced S. 2774, a bipartisan 9/11 Commission Report Implementation Act of 2004 (this link is for the draft of the bill as initially introduced; you can check the status of the bill and any amendments or revisions: by bill number, S. 2774, on the Library of Congress Web site).

As with the USA-PATRIOT Act, a lot of objectionable details are buried in the hundreds of pages of this bill. Lee Tien of the Electronic Frontier Foundation combed through the details before I did, and called attention to its particular impact on travellers and travel data:

Titles VI and VII of the Lieberman-McCain 9/11 commission bill would expressly authorize registered traveler and secure flight , at least at first glance. Plus require DHS to "by order require air carriers to provide the passenger information necessary". ([Section] 703 [of the bill]).

Title VI [of the bill] would establish a massive counterterrorist travel intelligence" infrastructure. In addition to calling for travel data mining ("recognizing travel patterns, tactics, and behavior exhibited by terrorists," much like TIA [Total/Terrorism Information Awareness]), it calls for an "integrated screening system" that would "enable a range of security check points throughout the Nation's screening system," "access to government databases to detect terrorists," and "biometric identifiers."

It's not actually clear -- even aside from Constitutional objections such as those based on the First Amendment guarantee of the "the right of the people... peaceably to assemble" -- whether the bill as drafted would legalize the Secure Flight program, even though that may be its (ill-formed) intent. The bill would require airlines to "provide the passenger information necessary" for the new traveller surveillance scheme. But as the DHS learned long ago, the airlines don't have much of the identifying information about passengers that the government wants, such as birth dates, addresses, or phone numbers. The bill creates no requirement for travellers to have reservations at all, or for travellers or people making reservations to provide additional information, or for travel agencies or CRS's to collect any particular information, store it, or pass it on.

To some extent, the bill reflects the actual emphasis of the 9-11 Commission's report on targetting travel . But while the bill is being billed (so to speak) as including all of the commission's recommendations, it does not.

As I noted in my initial analysis of the Commission report , it's most important recommendation may be the final one of its report:

Recommendation: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.

There is no trace of this crucial recommendation in the so-called "9/11 Commission Report Implementation Act", and any attempt to represent S. 2774 as a "comprehensive" embodiment of the Commission's actual recommendations must therefore be dismissed as an outright lie.

The idea that Congress should abdicate its legislative responsibility by rubber-stamping the suggestions of an appointed committee without thorough review and consideration is bad enough. But the idea that all of the recommendations of the 9-11 Commission should be implemented except the recommendation that any such proposals be evaluated according to whether they will work, and whether they will have drawbacks, is simply preposterous.

In fact, Congress' own auditors from the Government Accountability Office (formerly the General Accounting Office) have already found specifically that the DHS and TSA have not met their burden of proving that CAPPS-II (including the program components now re-designated at "Secure Flight" and "Registered Traveler") would actually enhance security or could be implemented without excessive violations of privacy and civil liberties. If this recommendation of the 9-11 Commission were actually to be applied to aviation "security" (air traveller surveillance), it would lead to termination, not codification, of "Secure Flight", "Registered Traveler", and other programs embodying the former CAPPS-II .

[Addendum, 11 September 2004: I originally described this erroneously as a Democratic bill; I have revised this posting to decribe the bill as bipartisan.]

Another airline bankruptcy may be imminent

Rumors of an immiment major airline bankrupcy once again abound, with the New York Times reporting this morning that "US Airways appears all but certain to seek bankruptcy protection on Sunday".

I've once again updated my FAQ on Airline Bankruptcies with the details on what this means for travellers, and what you can do if, like me (in circumstances fitting one of the exceptions I explain in my FAQ) you already have tickets on US Airways, or on other airlines like United that are already bankrupt.

The renewed risk of bankruptcy and liquidation of major airlines raises several consumer issues for Congress:

• As discussed in my FAQ, the law imposing a (very limited) obligation on some USA-based airlines to transport holders of tickets on other USA-based airlines that cease all service (for a fee, if they fly the exact same routes, and if they have space available after selling as many of their own tickets as they can), is currently scheduled, after two extensions, to expire automatically after 18 November 2004. No bill to extend it is pending in Congress.

• Even if that law is extended, it probably won't help most ticket holders. In addition to the limitations I've just mentioned, an airline faced with the prospect of having to transport a bankrupt airline's passengers for US$25 each would have every reason to lower its prices to fill as many of those seats as possible with its own passengers for US$26 each instead.

• Tiicket holders actually provide a large an essential part of the financing without which most airlines couldn't keep flying: When you buy a ticket for future travel, you are making an interest-free loan to the airline, since most of their costs of transportating you aren't incurred until the time that you actually fly. At any given time, billions of dollars of these loans from travellers to airlines are outstanding. But those loans are considered "unsecured", and ticket holders are last in line to receive any compensation when an airline is liquidated. Congress should recognize the importance to airline financial stability of these ongoing loans from travellers, and require that airlines and bankruptcy courts treat ticket holders as preferred creditors.

• As I've previously pointed out, liquidation of US Airways (or another airline) would mean the court-supervised auction of its assets, including its archives of reservation records and all its data about anyone who has ever been a member of its frequent flyer program (including, for example, transactuion records of their frequent flyer affiliate credit cards). Congress needs to act fast to enact a Federal travel data privacy law before that happens.

Army says use of jetBlue reservations didn't violate Privacy Act

Wired News reporter Ryan Singel has posted a partially-censored copy he obtained under the Freedom of Information Act of the report of the U.S. Army Inspector General on the use of JetBlue Airways' entire reservation archive by a Total Terrorism Information Awareness program military subcontractor.

The Inspector General's office concludes that this didn't violate the Privacy Act because data wasn't "retrieved" by name or personal identifier. It's not clear if that's really true, given the secrecy about what happened: the appendices and documents allegedly supporting the conclusions in the report were, apparently, withheld from disclosure. But even if this sort of governmental privacy invasion and secret use of commercial data (in violation of the promises under which it was collected) is legal, the law needs to be changed. More importantly, the argument that no data was actually retrieved is specific to the particular experiments done by the Army contractor. Any actual operational use of such a "screening" system would have required data retrieval, and would have violated the Privacy Act.

Interview in Motionsickness magazine

The latest issue of Motionsickness magazine focuses on The San Francisco Connection , with features on several S.F. Bay Area travel writers and activists including an interview with yours truly . You can read excerpts (it's a fairly raw transcript) on the Web, but there's lots more good stuff in the printed magazine, as always.

Like many of the best travel magazines, Motionsickness is a small-circulation, infrequent, somewhat erratically published labor of love. They could use your money. And if you subscribe now, you can still get both a one-year subscription to the magazine (regularly US$12-20 sliding scale) and a copy of The Practical Nomad Guide to the Online Travel Marketplace (regularly US$17.95) for a total of only US$20. Act now: this deal is unlikely to be extended once the current printing of the book is sold out.

Ridge admits all air travellers may have to register with the government

Confirming what many of us have already inferred , USA Secretary of Homeland Security Tom Ridge said yesterday, in response to questions following a speach at the National Press Club, that all would-be airline travellers may eventually be required to register with the Department of Homeland Security, eliminating any claim that the DHS "Registered Traveler" program, already being deployed in a test phase, is "voluntary" or "consensual" and confirming that the combination of the "Registered Traveler" and Secure Flight programs will together be more invasive of travellers' rights than the erstwhile CAPPS-II :

[Question]: Are there any plans to expand the registered traveler program to non-frequent flyers?

Secretary Ridge: ... At some point in time, once that first decision is made as to whether we expand it, and it's expanded, I would think it would be very appropriate to expand it to include those men, women, families who don't travel as frequently.... We think the registered traveler program with frequent flyers is a good place to start, but that could also be a prequel. That could be the first step of enlarging it to not only other frequent travelers beyond the pilots, but potentially down the road, the citizens that even travel casually.

Perhaps we should rename the "Registered Traveler" program the "Airline Passenger License" program?

New blog by Ryan Singel

My neighbor Ryan Singel, who has been doing some of the most in-depth investigative reporting on airline "secuirty", privacy, and civil liberites, has started a new blog at SecondaryScreening.net . Subtitled, "A closer look at anti-terrorism, privacy and data mining", it includes links to his stories on Wired News as well as additional "back story" information and commentary.

Appeal of decision on airline ID demands

The pending Federal court case challenging the secrecy of U.S. government orders requiring airline passengers to display identification credentials (or be denied common carrier transportation or subjected to more intrusive search), the secret procedure through which these orders were issued, and their Constitutionality has now been appealed to the Circuit Court following an initial dismissal (on, in part, purely jurisdictional grounds that the case belonged in the Circuit Court in the first place) by the District Court.

A new Web site at GilmoreVsAshcroft.com has background on the case and, most importantly, copies of the legal documents filed with the Court of Appeals for the 9th Circuit in San Francisco, including briefs on the government's motion for introduction of secret in camera evidence and secret ex parte hearings from which the plaintiff/appellant and his lawyers would be excluded, as well as an interesting array of friend of the court briefs. Documents from the initial consideration for the case by the U.S. District Court for the Northern District of California, also in San Francisco, remain available at FreeToTravel.org .

[Addendum, 9 September 2004: Brian Doherty of Reason magazine, whom I met as one of the few other reporters to attend the District Court oral argument in the original case, has an interesting commentary on the appeal: "I've stated elsewhere that I thought Gilmore, even if he wins, will probably lose: that a court-ordered end to legal requirements to show ID to travel will merely morph those requirements into the policies of the companies providing the transportation. (Only with Amtrak will that raise clear constitutional problems.)" I agree with the first half of Doherty's argument: some airlines have already added ID requirements to their conditions of carriage. But to say that this raises clear Constitutional questions (leaving aside the stuatutory obligations of airlines as common carriers, which may be crucial to the lgality of ID requirements as well as "No-Fly" decisions) only with Amtrak is to ignore the applicability of the First Amendment's guarantee of "the right of the people... peaceably to assemble", as applied to to travel as an act of assembly.]

The Amazing Race 5, Episode 10

Kolkata, West Bengal (India) - Auckland (New Zealand) - Rotorua (New Zealand)

When the airline counter staff in Bangkok tell them no seats are available on the flight they want, twins Karli and Kami (who actually know they have reservations only on a later flight) don't hesitate: they lie, claim they had confirmed reservations on the earlier flight, and (when they are told they have no reservations at all on the earlier flight), pretend to cry. They did get on the flight -- although probably neither because of the lying nor the crying, but simply because there were, as almost always, some "no-show" confirmed passengers who changed their plans without telling the airline. But every airline employee or travel agent watching the show must have been rejoicing when they got their comeuppance: they got lost on the roads of New Zealand, finished last at the end of the day (actually, after dark, although all the other teams finished in daylight), and were eliminated from the race around the world for US$1 million.

We've seen this sort of seemingly casual and automatically dishonesty from other teams in the race this season, with the (otherwise often charming) cousins Mirna and Charla making up stories ranging from "I need to get to a doctor" to "I have an emergency" to try to get ahead of other racers as well as other ordinary travellers -- some of whom may have had real emergencies.

Unfortunately, behavior like this is routine, even when there is nothing like a million dollars at stake: real passengers routinely make up the most implausible (but difficult to disprove) lies to try to get on planes ahead of their fellow travellers. If airline staff don't believe you when you say you thought you had confirmed reservations, or that exigent circumstances justify giving you a higher priority on the waiting list, blame all the other passengers who lie (and/or cry) at check-in counters every day.

All of this could become even more significant if a major airline in the USA goes bankrupt and is liquidated, as seems ever more likely. Bankruptcy doesn't necessarily mean liquidation, but it could, as I discuss in my FAQ about Airline Bankruptcies /bankruptcy.html . The only limited legal protection that ticket holders in the USA have if a USA-based carrier goes bankrupt is with other USA-based airlines that fly the exact same route, on a space-available basis . That means, among other things, that if you have tickets on connecting flights, you will have to standby for the first flight, then standby for the next flight once you get to the connection airport, with substantial risk of getting stranded en route.

Many smaller airports in the USA are served by only one scheduled airline, and in a much larger number of cases each of the airlines serving a secondary airport does so from their separate hubs, so that no two airlines fly exactly the same route or would have any obligation to transport holders of tickets on a bankrupt former competitor. Many international city pairs are served by only a single USA-based airline (if any at all).

But even if an airline bankruptcy leaves another USA-based airline still flying the same route, they are unlikely to have enough seats to accommodate all the holders of tickets on a major USA-based airline like United, US Airways, or (on the routes it flies between the islands) Hawaiian. Even when much smaller airlines like Vanguard and National stopped flying in 2002, their ticket holders struggled to find space available on other airlines, often having to wait for days after their intended travel dates. If a major hub-and-spoke airline shuts down, ticket holders will be lying, cheating, and, I expect, fighting for the limited seats available on other airlines' flights, at least for several weeks.

I hope that, in their place or that of the racers, you and I wouldn't behave so badly. And I hope (for travellers' sake) that bankrupt airlines are liquidated and their assets taken over by other airlines before, rather than after, they cease operations and strand their ticket holders -- and without more government subsidies except if accompanied by a corresponding degree of restoration of government regulation of airlines to protect consumers.

[Addendum: 12 September 2004: I was in Oakland at the Red Sox game during the first broadcast of this episode on 7 September 2004. By the time I got a chance to watch my recording of this episode, US Airways declared bankruptcy on Sunday, 12 September 2004. See my FAQ and the Airlines and Airfares section of my blog for what travellers can do, and what Congress needs to do to protect our rights.]

"Secure Flight" succeeds CAPPS-II

On 26 August 2004, the USA Transportation Security Administration (TSA) announced that the latest version of its airline passenger "screening" (identification, profiling, surveillance, and control) scheme will henceforth be referred to by the TSA as "Secure Flight", rather than as CAPPS-II .

Few details about "Secure Flight" were provided in the TSA press release announcing the new name, or in conference calls the same day by TSA administrator David M. Stone with reporters and by TSA privacy officer Lisa Dean with privacy and civil liberties organizations. (I wasn't invited to either phone conference, although I've gotten accounts of both from participants.)

The initial reaction of ACLU legislative counsel LaShawn Warren was that, "We remain puzzled over how the program will work and believe that several of the most basic problems with the original [CAPPS-II] proposal remain." A few days later, EFF published a more detailed analysis of what little the TSA has revealed about "Secure Flight", concluding that "Secure Flight is CAPPS II by another name."

From what little the TSA has said about its plans, I concur completely with both the ACLU and EFF, although to be more precise I would say that Registered Traveler and "Secure Flight" are, taken together, CAPPS-II by a new pair of names.

The only major difference between "Secure Flight", as initially described, and CAPPS-II, is that under "Secure Flight" the TSA would make less use than under CAPPS-II of commercial data other than travel reservation data in real-time screening of airline passengers. But applicants for traveller registrations would, apparently, be required to provide even more information and be subjected to even more extensive mining of commercial databases than passengers would have been subjected to under CAPPS-II. The combination of "Secure Flight" and "Registered Traveler" would, it appears, be substantially more intrusive and invasive of civil liberties, including the right to travel, than CAPPS-II would have been.

The main difference between CAPPS-II and "Secure Flight" seems to be in which aspects of the programs are emphasized by the TSA as being significant.

While CAPPS-II would have relied on mandatory collection and transmission to the government through passenger name records (PNR's) of additional identifying information about passengers, the emphasis in the TSA's public initial public statements about CAPPS-II was on the mining of (non-travel) commercial databases to profile would-be passengers. While the TSA won't rule out, and will continue to consider, the mining of (non-travel) commercial databases for "Secure Flight", the TSA's emphasis in the initial press release about "Secure Flight" has been on government review of PNR's (implicitly requiring that PNR's be provided to the government, although the TSA won't explicitly confirm that "Secure Flight" will include such a mandate ).

According to the TSA press release:

Under Secure Flight, TSA will take over responsibility for checking airline passengers' names against terrorist watch lists -- a function currently administered by each airline individually.... Under Secure Flight, TSA will take over responsibility for comparing Passenger Name Record (PNR) information of domestic air passengers to a greatly expanded list of known or suspected terrorists in the Terrorist Screening Center (TSC) database.

I've heard a rumor that the TSA plans to issue a new "System of Records Notice" (SORN) under the Privacy Act for "Secure Flight". But there is nothing the TSA has said it intends to do as part of "Secure Flight" that wouldn't be covered under the SORN for the "Passenger Aviation Security and Screening Records" database which was to have been used for CAPPS-II. So the only apparent reason for a new Privacy Act notice would be to attempt to dissociate "Secure Flight" from CAPPS-II in the eyes of Congress and the public.

More significantly, a Privacy Act notice merely describes a system of government records. In itself, as Privacy Act notice can't create an obligation to provide information to the government, or to collect it on the government's behalf (much less to deny transportation otherwise qualified would-be passengers on a common carrier). That leaves unanswered the question of what legal mechanism -- administrative "Notice of Proposed Rulemaking" (NPRM), TSA/DHS "Security Directive" under authority of current laws, or new legislation -- the TSA intends to use to implement "Secure Flight", or how it will justify its directives or regulations under the law and the Constitution.

In the USA, there are essentially no legal restrictions on the ability of the government to mine commercial databases, as long as the practice is announced in a Privacy Act notice. But there are substantial statutory and Constitutional restrictions on the ability of the government to order an airline not to transport an otherwise-qualified would-be passenger.

By shifting its emphasis from mining of non-travel commercial databases (legal in the USA, if objectionable) to denial of transportation on the basis of "watch lists" not based on judicial orders (unsupported by any statute), the TSA has focused attention on those aspects of its plans that go furthest beyond what is authorized by current law (and beyond what could be authorized by any law consistent with the Constitutional protection for "the right of the people... peaceably to assemble").

Either shifting analysis of PNR's from the airlines to the government, or expanding "no fly" lists beyond those against whom orders of denial of common carrier transportation have been issued by Federal courts, would require new legislation. Perhaps the most disturbing aspect of "Secure Flight" is that the TSA has made no mention of any intention to seek authorization for it from Congress -- instead intending, apparently, to implement it without Congressional authorization, and in contravention of the explicit language of multiple Federal laws.

My comments on the first Privacy Act notice for CAPPS-II, more than a year ago, included a detailed analysis (pp. 36-41) of its lack of statutory authority. In particular, 49 U.S.Code. 114 (h)(3) authorizes the Department of Transportation (now the TSA) to, "in consultation with other appropriate Federal agencies and air carriers, establish policies and procedures requiring air carriers ... to use information from government agencies to identify individuals on passenger lists who may be a threat to civil aviation or national security."

I don't see any ambiguity: under this law, the source of the data is to be government lists, and the identification of passengers matching those lists is to be done by airlines . If, instead, the source of data is to be airline reservation data (PNR's), and the identification is to be done by the government, that change will require a change in the law.

As for the actual denial of passage, airlines are defined as common carriers under 49 U.S. C 40102, and 49 U.S.C. 40103 recognizes a "public right of transit through the navigable airspace" applicable to travel by commercial air carrier. 49 U.S.C. 40101( c ) requires that, in issuing regulations, "the Administrator of the Federal Aviation Administration" (whose obligations have in relevant part been transferred to the DHS and TSA), "shall consider ... the public right of freedom of transit through the navigable airspace", which the TSA and DHS have yet to do.

It makes little legal difference whether the actual decision to deny passage, following a match with a "watch list" of suspects, is made by the airline or the government. In either case, even leaving aside Constitutional questions, it is a violation of the statutory obligation of the airline as a common carrier to transport all passengers satisfying the published conditions of carriage and paying the fare specified in the published tariff -- unless ordered to do otherwise by a court of competent jurisdiction (something the government can't say isn't workable since, so far as I can tell, it has never tried to use the existing legal mechanisms to seek a protective injunction restricting the travel of someone who can be shown to pose a danger).

Whether or not the requisite laws would withstand Constitutional challenge, expanding "no-fly" lists beyond those subject to such injunctions or other court orders restricting travel would clearly require new legislation covering people who, as security expert Bruce Schneier puts it in a recent op-ed , "so dangerous that we can't ever let them fly, yet so innocent that we can't arrest them -- even under the draconian provisions of the Patriot Act."

But according to its initial press release, "TSA will collect passenger data and begin testing Secure Flight within the next 30-60 days," which seems unlikely to allow time for the requisite changes to Federal laws.

(Confirming its disinterest in the niceties of judicial process, on Friday the TSA and DHS reportedly requested that the Federal Court of Appeals for the 9th Circuit, in San Francisco, hold a secret hearing -- closed to the plaintiff and his attorneys -- on the appeal of a legal challenge to the secret orders under which otherwise qualified would-be passengers are already being denied airline passage if they decline to display government-issued idnetification credentials. If secret laws are judged only in secret hearings, who watches the watchers?)

Participation of airlines or computerized reservation systems (CRS's) in "Secure Flight", particularly with archival or "historical" data (for which it is impossible, after the fact, to obtain the consent of the data subjects) would also violate the European Union's Code of Conduct for CRS's and the DHS Undertakings to the European Union on use of PNR data transferred to the USA. Those "Undertakings" provide for use of PNR data from the EU for testing of CAPPS-II, but not for "Secure Flight". The TSA and DHS can't have it both ways: If "Secure Flight" isn't CAPPS-II (and thus is exempt from the Congressional restrictions on CAPPS-II), than it isn't covered by Undertakings, or the USA-EU agreement based on them, and will require a separate agreement.

Since it remains impossible to determine from a PNR whether it contains data collected in the EU, any attempt to test or deploy "Secure Flight" would violate the DHS Undertakings, void the USA-EU agreement on PNR transfers, and allow EU national data protection authorities to resume enforcement proceedings against airlines and CRS's collaborating with the tests.

[Addendum, 8 September 2004: Added link to documents on the U.S. Circuit Court appeal of the U.S. District Court decision in Gilmore vs. Ashcroft .]

Willie Weir: "What Is Adventure?"

Willie Weir may be the most effective and inspiring advocate in the USA for international bicycle travel, but his message is about much more than bicycling. Check out his latest column from Adventure Cycling magazine: What Is Adventure? .

I think Willie overlooks an important distinction between perceived risk and actual risk, and I don't think everyone necessarily should (as he seems to imply) take risks, but he articulates some truths that are widely recognized within the travel "industry", but rarely spoken.

National Geographic Society panel 22 September

I'll be speaking at the National Geographic Society headquarters in Washington, DC, at 7:30 p.m. on Wednesday, 22 September 2004, as part of a "National Geographic Live! Fantastic Journeys" panel discussion on A 21st Century Grand Tour :

During the 18th and 19th centuries, the so-called Grand Tour allowed members of the upper classes to acquire knowledge and sophistication by voyaging abroad. Today, this ambitious way of seeing the world is not limited to the wealthy. At this presentation travelers from different backgrounds tell how it can be done regardless of budget. Hong Kong based photographer JUSTIN GUARIGLIA has handled assignments for National Geographic Traveler and other publications. EDWARD HASBROUCK, a travel agent whose specialty is organizing around-the-world trips, authored the acclaimed Practical Nomad series of travel books. LINNEA LUNDGREN is a "domestic engineer" and writer who took a break from her career to travel around the world. The discussion will be moderated by KEITH BELLOWS, editor-in-chief of National Geographic Traveler magazine.

The National Geographic Society's Grosvenor Auditorium is at 17th and M Streets, N.W., 3 blocks from either the Farragut North or Farragut West Metro stations. Single tickets are US$14 for NGS members and subscribers to National Geographic magazines, US$16 for non-members; season subscriptions to the NGS "Fantastic Journeys" lecture series are also available. Tickets go on sale starting Tuesday, 7 September 2004.

[Addendum, 30 September 2004: The Planning the Escape blog has a report and photos from the event -- click the thumbnail photos for larger versions.]