Friday, 10 September 2004

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.]

Link | Posted by Edward on Friday, 10 September 2004, 14:29 ( 2:29 PM)
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