Monday, 20 September 2004

"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.

Link | Posted by Edward on Monday, 20 September 2004, 13:58 ( 1:58 PM)
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