Audio Civil liberties groups fear travel "surveillance" (story audio) Photos Worth the wait? TSA agents at a recent ceremony Handling personal info "can get out of hand" View full slideshow (4 images) More from MPR Part I: Years after 9/11, passenger screening system still grounded (03/28/2004) Northwest responds to data privacy criticism (01/19/2004) Security experts: Sharing passenger data hardly unusual (01/20/2004) Resources Transportation Security Administration American Civil Liberties Union "What's wrong with CAPPS II?" by Edward Hasbrouck Your Voice Join the conversation with other MPR listeners in the News Forum.

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Civil liberties groups fear travel "surveillance"
by Jeff Horwich, Minnesota Public Radio
March 28, 2004

Passengers are used to submitting baggage and clothing to detailed screening. But when it comes to a proposed system to screen the personal information of passengers, things get more complicated. (MPR Photo/Jeff Horwich)

Development is well behind schedule for a new national system to screen airplane passengers. Homeland security officials say the system, known as CAPPS II, is a critical tool to prevent a repeat of 9/11. But Northwest and other airlines are reluctant to even help test it, citing concern about passenger privacy. Some experts see an emerging battle between security and civil liberties that can only be settled in the courts.

(Second of a two-part series)

St. Paul, Minn. — At Minneapolis-St. Paul International Airport, passengers submit their bags and the contents of their pockets to detailed screening. Wands move in and out of armpits and inseams. Wallets go into plastic bins to be X-rayed. But what about what's in that wallet --your address, your membership cards, maybe some credit card receipts? How closely should we look at those to keep airplanes safe?

Bob Zimmerman, headed to Columbus, Ohio, draws a line.

	Handling personal info "can get out of hand"

"Personal information is personal information, and there's a point where I think it can get out of hand," Zimmerman says. "We've had a lot of issues the last couple years, and we need to make sure we are doing the correct screening. But also not taking it to the point where you get involved with the personal information of each individual."

Gathering some of that personal information, federal officials say, is necessary. They promise to keep it safe, and insist it won't be used against you. They say your credit score, a recent change of address, or ordering an Islamic on-board meal will not label you a potential terrorist.

But the proposed screening program, known as CAPPS II, does combine two new government functions in a way that makes some people very nervous. The first function is to confirm the identity of every person who boards an aircraft in the U.S. The second function is to use the ability to "mine" information from various sources and create lists of individuals who may be dangerous.

"CAPPS II would transform utterly the potential for both governmental and commercial misuse of reservation data," says Edward Hasbrouck, a travel expert and consumer advocate.

Hasbrouck says CAPPS II provides the technical infrastructure for the Department of Homeland Security to keep tabs on our whereabouts and travel habits. "Conscripting travel agencies, airlines and reservation companies into serving as probably unpaid surveillance agents of the government, and obligating them to record this information about every person moving around within the country. So I think there are very profound civil liberties implications to that," says Hasbrouck.

His concerns are not just the stuff of isolated conspiracy theorists. Groups like the NAACP, the ACLU, and the Business Travelers Coalition have voiced similar fears.

	TSA agents at a recent ceremony

But Mark Hatfield, chief spokesman for the Transportation Security Administration, says the groups' concerns about civil liberties have sometimes crossed the line into a deliberate disinformation campaign.

"When you get shrill opponents out there who make simply false claims in an effort to either fear-monger or discredit the program, it's truly unfortunate," Hatfield says.

For example, while opponents fear the TSA will compile a "travel dossier" that keeps a running log of our movements, Hatfield says that would be impossible. He says the travel information used in CAPPS II will be deleted shortly after a trip is completed.

What's more, Hatfield says the TSA will never actually touch that data. Private, third-party contractors will do the work, comparing passenger records to their own databases, to see if the John Smith boarding the plane matches the real-life John Smith in their records.

The idea, Hatfield says, is "to really create an insulation or a barrier that provides the identity verification component that we need, and yet keeps the firewall ... up between those data aggregators and the federal government."

Consumer data company Acxiom and document company LexisNexis are developing systems to handle this task. Some opponents say putting travel information in the hands of private companies has its own problems. Acxiom recently discovered two successful hacking attempts on its database, the first in its history. The company says it is implementing new security measures.

	Worth the wait?

Federal officials also say the contractors will be under a strict agreement not to sell or otherwise use the data for non-security purposes.

Despite these worries, Dallas aviation lawyer Kent Krause says the role of the government will still create the more troubling issues. We might not always like them, he says, but at least the legal limits on commercial use of personal information are well-defined.

"The question that I think is more difficult is, when the government seeks that information for national security purposes, historically there has been wide latitude in allowing the government to do that," Krause says.

Opponents fear the scope and mechanics of CAPPS II could expand in ways that are not yet clear. They say the system has already been vulnerable to "mission creep." The TSA recently revealed CAPPS II may look not just for terrorists, but for wanted felons and illegal immigrants as well.

Opponents point out that while Europe and Canada have comprehensive, over-arching privacy laws that protect travel information, the U.S. does not.

When you get shrill opponents out there who make simply false claims in an effort to either fear-monger or discredit the program, it's truly unfortunate. - TSA spokesman Mark Hatfield

Consumer travel advocate Edward Hasbrouck says both before and after 9/11, information has routinely changed hands between the private sector and government.

"I've seen a case where local police have come into a travel agency investigating a suspect and said, 'Can you tell us about their reservations?' I wasn't comfortable with this as a travel agent, but the manager at that agency -- where I no longer work -- immediately pulled the file and gave the police everything they had," Hasbrouck says. "And there was no law to restrict that. That kind of thing goes on every day."

Privacy advocates do have some U.S. laws at their disposal. The Privacy Act of 1974 limits how government agencies share information among themselves. The Electronic Privacy Communications Act restricts the electronic transmittal of personal information.

The EPCA is cited in a suit against Northwest Airlines for sharing passenger data with NASA two years ago. Northwest is also being sued for deceptive trade, under the allegation that it violated its own privacy policy.

The airline would not comment for this story, but has said its actions were within the bounds of the law.

Consider the conflict posed by the Air Transportation Security Act, passed just before Northwest transferred the information. Without amending existing privacy laws, the act placed control of passenger screening -- and hence passenger information -- squarely in the hands of the government.

For that and other reasons, lawyers like Kent Krause say the transfer of travel information for national security remains a fuzzy area.

"We don't know the answer yet because it hasn't been tested in the courts," Krause says. "But Congress has granted a broad power to look at this information. And I think if it's done in a discreet manner by the government, to a certain point I think it will likely be upheld."

An attorney suing Northwest over the NASA data transfer believes differently. Stuart Davidson says the Constitution and other earlier laws trump conflicting mandates that came after 9/11.

"You cannot violate people's rights in order to comply with the law," Davidson says. "That would essentially give carte blanche to the federal government to violate people's civil rights, simply under the guise that it relates to safety. And you can't do that. There are limits."

The debate shows no signs of cooling, and the nation's airlines remain reluctant to help test CAPPS II. But some security experts say the clock is ticking.

Kathy Sweet is a former U.S. Air Force officer, and author of two books on airline security. She says at this point the new passenger screening system is not just stalled -- it's moving backward.

"We need some system to be able to differentiate between regular Joe Schmoe, and some person who's a bad guy," Sweet says. "It needs to be tested. And once you test it, then you can find some of the flaws. But now no airline wants to participate because of all the publicity."

The Department of Homeland Security agrees, and is still pushing for testing this year. But to opponents, even testing CAPPS II is the first step down a dangerous road.

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