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EFF Opposition to FAA Proposed Rule
August 13, 1999 I am writing today on behalf of the Electronic Frontier Foundation (EFF), nonprofit, public interest organization working to protect rights and promote responsibility in the electronic world. EFF is a global organization linking technical architectures and legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and access in the information society. In order to achieve better air safety, the FAA Proposed Rule, 14 CFR Part 108: "Security of Checked Baggage Within the United States" would use technology to create detailed profiles of passengers, using criteria that have been weighted and scored for each passenger, and then matching the results against the "terrorist type" profile. According to the FAA, if enough information is known about a traveler (travel habits, payment histories, etc.), that particular passenger can be eliminated from the pool of potential suspects. This would theoretically make our skies safer in which to fly, because persons whose movements are known are unlikely to be terrorists, leaving the unknown persons to be selected for heightened security until more is known about them. The FAA's view is that because only a relatively few number of people would be selected for heightened scrutiny, the vast majority of airline passengers would not be inconvenienced, but we would still get the benefit of better safety. EFF believes that this reasoning is flawed and therefore we must oppose the FAA Proposed Rule on three grounds (detailed discussion follows):
EFF believes that safety measures can be put into place that do not implicate any of our above concerns and we therefore encourage the FAA to develop rules that make our airways safer while at the same time protecting the civil liberties of our citizens. EFF would welcome the opportunity to work with you to craft rules that would achieve air safety, but that would not impinge on our constitutional rights. Creation of a new national passenger database further threatens privacy and other civil liberties.The proposed regulations, under "Civil Liberties Issues", state that privacy rights are not violated because CAPS does not create a new database on passengers and that it is not linked to any database other than the existing airline computer reservation systems. Although the proposed rules assure us that no database is being created, great pains are taken to inform us that "it" is not linked to law enforcement databases, only the airline reservation system. In addition, the rules state that "CAPS selectee" results will not be retained on a personally identifiable basis on the airline reservation computers." In order for the profiling system to work, information must be collected and stored in an identifiable form. Anonymized or aggregated statistical data would not be useful to profile a particular individual. EFF opposes the creation of these databases; particularly when the information contained in the database is unavailable for inspection by the public. By their very nature, databases filled with secret information about individuals harm democratic values that we all hold dear. Our society has been free and open; secret files on every air traveler are not something that we have ever considered reasonable. Among the negative impacts of profiling that are likely to occur are the inversion of the burden of proof, denial of due process, and the shift from apprehending individuals after a crime has been committed to apprehending them before a predicted crime has been committed based on "evidence" gleaned from a profile. Desensitizing the public to this type of surveillance hands the government a powerful new tool to track its citizens' every move. This is more harmful than any potential terrorist threat. The Proposed Rules do not follow Fair Information Practices Guidelines.EFF is opposed to the proliferation of databases containing large amounts of potentially sensitive personal information. Our concerns grow when the collection criteria are kept secret from the public, and storage and maintenance of the information in the database doesn't adhere to Fair Information Practices. The Federal Trade Commission has described the core principles of privacy protection that make up the Fair Information Practices as notice/awareness, choice/consent, access/participation, integrity/security, and enforcement/redress. The secret nature of the criteria used and the data collected completely obliterates any notion of Fair Information Practices. Individuals are not given any notice that information is being collected about them. When they call to make a reservation, they are expecting that the airline is collecting enough information necessary to process the reservation, and to use it only for that purpose, not to create a secret profile for other government purposes. Individuals will be completely unaware of the dual use of the personal information they give out. Further, passengers will not have any real choice regarding whether to give personal information or how much of that information they are willing to disclose. If enough information is not given, the CAPS system will simply select that person for heightened security measures. Therefore, the only way an individual may decrease his or her chances of being subjected to this heightened security is to provide all information requested, no matter how intrusive the questions may be. This is not meaningful choice, it is coercion. Fair Information Practices also require that individuals be given reasonable access to the information collected about them and the ability to correct inaccurate information. This requirement is thwarted because of the secret nature of the selection criteria (and presumably, the CAPS results based on the selection criteria). One of the main purposes of the access requirement is to prevent the risk of a secret database being created, which is an end result here. According to the proposed rules, access to this information would defeat the purpose of the CAPS program. Additionally, there is no statement about any security measures that will be put in place to safeguard personal information, nor is there any mention of any oversight mechanisms. Reasonable steps should be taken to assure that information collected is accurate and secure from unauthorized use. The proposed rule discusses the length of time information may be kept, other sections of the rule make provisions for securing the selection criteria, but no mention is made of any provisions for securing personal information or CAPS results about passengers. Finally, there is no enforcement/redress mechanism in place for passengers if they feel disclosure or some other abuse of the information has harmed them. Again, because the information collected is secret, individuals may not even know what information has been collected about them, or whether it is accurate, let alone how this information may have been disseminated. Related to Fair Information Practices principles, is the notion that there should be a cap on how long information is kept. There should be an end date that determines when the information should be deleted or otherwise destroyed. The proposed regulations are vague on this issue. They allow for an air carrier to dispose of any information linking a passenger's name or other personal identifying data to whether that passenger was selected by the CAPS system to no sooner than 24 hours, but no later than 72 hours, after a flight's departure. But, the Department of Transportation's Office has requested that the FAA seek additional comments on whether information pertaining to random selectees should be retained for a longer period of time, such as 18 months. For now, it seems that 72 hours after departure may be the cap, but this may change. The regulations should not allow for information to be kept longer than a few days, much less for months or indefinitely. The proposed rules unconstitutionally violate the Fourth Amendment.The Fourth Amendment is in full force at airports. American citizens still have a right to be secure in their persons, papers, and effects, against unreasonable searches and seizures by the government. The proposed regulations state that CAPS does not violate the Fourth Amendment because there is no "search" or "seizure". The point is then conceded by the assertion that a "search" of a "selectee's" baggage, such as by an explosives detection system (EDS) screening, "is a permissible extension of the constitutional administrative search procedures that operate at U.S. airports today." (1) The CAPS system and EDS is not "merely a permissible extension of the administrative search."Currently, all persons boarding a plane must walk through metal detectors. That "search" is permissible because it is indiscriminate. Individuals are not being singled out and stigmatized based on secret criteria. One court has ruled that when a search of checked baggage is triggered by individual suspicion from a hijacker profile, it is no longer sustainable under an administrative search rationale. The CAPS/ EDS program proposed by the FAA falls into this exact category. Individuals are selected based on a profile, which is based on personal characteristics. (2) The CAPS and EDS is not reasonableEven assuming that the rules could be viewed as a valid administrative search, they are still unreasonable, and therefore unenforceable, because they are too intrusive and do not allow a passenger to leave rather than submit to the search. The intrusiveness of a hand search of the items in a passenger's checked baggage can be very great. The ACLU web site has a page devoted to abuses that passengers have already suffered when they "fit the profile." Among them are elderly passengers who have had their underwear strewn about for all other passengers to see and people being tagged with neon colored tags and escorted to the gate by security. When asked about the security experience, passengers described the experience as making them feel "degraded, humiliated, ashamed, and embarrassed." Based on the above, the CAPS and EDS program would likely not be found to be a valid extension of the current airport administrative search under the Fourth Amendment. ConclusionWe agree that air safety is a high priority and that terrorism needs to be prevented, but adoption of this rule will only give air travelers an illusion of safety, not safety itself. People choose to fly for many different reasons, for work, pleasure, or family needs. If asked about air travel, most people would probably list safety as a top concern. However, asking people to relinquish all privacy rights regarding their checked baggage, and subjecting them to a secret profiling scheme is not an effective, nor desirable method to combat the threat of terrorism. Thank you again for giving us the opportunity to comment on these proposed rules. Please contact me at 415-436-9333, ext. 106 if I can be of any further assistance. Sincerely,
Deborah Pierce
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