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Preliminary comments on the CAPPS II (CAPPS 2.1) Privacy Act notice

by Edward Hasbrouck, "The Practical Nomad"

(More on CAPPS-II, travel data, and privacy)

From: Edward Hasbrouck
Subject: Comments on docket number DHS/TSA-2003-1
Date: Fri, 01 Aug 2003 13:29:21 -0800

1 August 2003

To: Privacy Office
U.S. Department of Homeland Security
Washington, DC 20528

Re: docket number DHS/TSA-2003-1: Privacy Act of 1974: System of Records,"Notice of Status of System of Records; Interim Final Notice; and Request for Further Comments", Passenger and Aviation Security Screening Records (PASSR) system, system of records DHS/TSA 010, 68 Federal Register 45265-45269 (1 August 2003),


The Notice cites 49 U.S.C. 114, 44901, and 44903 as authority for creation and maintenance of the proposed PASSR system of records. As I pointed out in my comments on the Department of Transportation's previous proposal for the ASSR system of records, 49 U.S.C. 44901 (h) (2) provides that the Under Secretary (of Transportation) "shall advise Congress of a regulation to be prescribed under this section at least 30 days before the effective date of the regulation, unless the Under Secretary decides an emergency exists requiring the regulation to become effective in fewer than 30 days and notifies Congress of that decision." (Proposed system of records DOT/TSA 010, "Aviation Security Screening Records"; docket number OST-1996-1437; my comments are at docket number OST-1996-1437-81; also available at

To the extent that, as in this Notice, the DHS asserts regulatory authority inherited from the DOT and derived from this section, this statutory Congressional notice requirement applies to the DHS/TSA, just as it did to the DOT.

The Notice published in the Federal Register contains no evidence that prior notice has been provided to Congress. Assuming, arguendo, that the publication of this Notice on 1 August 2003 constitutes in and of itself the requisite notice to Congress, the effective date of the Notice must be postponed until no earlier than 30 days after the date of publication, which would be 31 August 2003.

The claims in the Notice that it is effective immediately as of the date of publication, and that it authorizes the immediate creation and use for testing or any other purpose of the system of records it describes, are, on their face, directly contrary to the plain language of 49 U.S.C. 44901, the statute claimed as authority for the Notice.

Accordingly, the Notice must be withdrawn, and may not be used as authority for the creation or use of the PASSR system of records. If any changes are made to the Notice, they must be republished, with an effective date no less than 30 days after their publication in final form and notification to Congress; or the Notice must be modified to remove all those portions for which statutory authority is claimed under 49 U.S.C. 44901.

The failure of the DHS and TSA to observe the statutory requirement for 30 days' notice to Congress, and the issuance of a facially invalid Notice for this system of records, are particularly significant in light of the current status of Congressional oversight of the CAPPS-II program for which the PASSR is designed. Multiple measures -- any one of which, if approved, would prohibit or postpone CAPPS-II testing and/or deployment until additional reporting or other criteria are satisfied -- are pending in both the House and Senate. One such measure has already advanced as far as inclusion in the House-Senate conference committee recommendation on a pending bill. There is substantial evidence that, given the statutorily mandated 30 days' notice, Congress might exercise its authority to take action during that time that would alter or remove the DHS and TSA authority to proceed with the creation or use of this system of records. Should the Notice not be withdrawn, I reserve the right to submit further comments, within the specified public comment period, concerning other aspects of the Notice of the proposed PASSR system of records. According to the DHS public statement announcing the publication of the Notice, "DHS will make the comments available online at"

I look forward to seeing these and all other comments on this docket made available promptly at that address.

Respectfully submitted,

Edward Hasbrouck
1130 Treat Avenue
San Francisco, CA 94110, USA
phone +1-415-824-0214

additional background information and prior comments:

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