Fact Sheet: Federal Watch Lists

November 10, 2004

Fact Sheet: Federal Watch Lists

FACT SHEET
Federal Watch Lists
Are Fraught With Problems
Department of Homeland Security Inspector General Agrees

November 10, 2004

The U.S. government has long developed and maintained various "watch lists"as part of national security and law enforcement efforts. However, in the wake of the 9/11 attacks, the scope and relevance of these lists has increased exponentially - and with it, serious implications for law-abiding citizens.

MULTIPLE LISTS, THOUSANDS OF NAMES BUT NO COORDINATION OR UNIFORMITY

The Washington Post reported on October 9, 2004 that the "federal government's 'no-fly' list had 16 names on it on Sept. 11, 2001. Today, it has more than 20,000." The numbers alone cause concern. But the way the lists are maintained and used presents grave challenges to civil liberties of all Americans.

According to a recently issued General Accounting Office report, the government maintains more than a dozen watch lists, including:

Treasury's Office of Foreign Assets Control -- Specially Designated Nationals (SDN) list

Department of State -- Terrorist Exclusion List

Transportation Security Administration -- No Fly list and Selectee list

Department of Commerce, Bureau of Industry and Security - Denied Persons List and the Entities List

FBI -- Most Wanted List and Watch List

Department of State, Office of Defense Trade Controls -- Debarred Parties List

Each list is developed according to different criteria, with information from various sources, foreign and domestic, and each provides varying degrees of information. For example, some entries include not only names but also dates of births, associations, birthplaces, and aliases. Others include only a name or even just a first initial and last name. Furthermore, while some lists are available to the public (the SDN list), others are not, such as the No Fly list.

HOMELAND SECURITY INSPECTOR GENERAL CITES CHALLENGES WITH WATCH LISTS

Just released to the public in October 2004 but completed in August of this year, the report was highly critical of the effort to consolidate the many watch lists while also protecting the privacy of U.S. citizens.

"DHS is not playing a lead role in consolidating terrorist watch list information ? In April 2003 the ? GAO reported that nine federal agencies used 12 separate systems and databases, each developed in response to the agencies' individual legal, cultural, and systems environments ? Specifically, DHS is not carrying out significant responsibilities assigned to it under the Homeland Security Act, i.e. orchestrating the integration of terrorist information and establishing national policies and guidelines governing the use of such information."

"This situation was complicated by a lack of policies and procedures to govern the sharing, and there was no way of ensuring that consistent data was on each agency's watch list. The consequence, GAO reported, was ? [an] overly complex, unnecessarily inefficient, and potentially ineffective network ? In the current environment of increased terrorist activity and security awareness, 'stove piped' management of critical watch list information is no longer tolerable."

Offsite Link: Full report (PDF)

PRIVACY CONCERNS SINGLED OUT BY INSPECTOR GENERAL

Of grave concern for many critics of the watch list is the issue of privacy. The IG report, unfortunately, provided little comfort:

"[S]everal privacy concerns related to watch list consolidation have yet to be addressed. One concern is the lack of a privacy policy, agreed to by all participants involved in watch list consolidation."

[C]itizens' privacy rights may be violated due to methods that airlines use to identify terrorists and threats to civil aviation."

[A] number of organizations involved in watch list consolidation were conducting data mining activities without central oversight to ensure that they complied with Homeland Security Act provisions regarding privacy ? As a result of such uncoordinated data mining activities, there is a potential for greater civil liberties violations and law enforcement errors."

NO ONE IS IMMUNE - MEMBERS OF CONGRESS VICTIMS OF NO FLY LIST

Senator Ted Kennedy (D-MA), Congressman Don Young (R-AK) and Congressman John Lewis (D-GA) were recently delayed or prevented from boarding their planes because their names reportedly appeared on the No-Fly list.

These high-profile incidents serve to illustrate some of the inherent problems with such lists:

The lists are based on information from various sources, but little is known about the mechanisms in place to verify or update the information.

The lists may include mistaken identities and often have incomplete information. Individuals with foreign names are particularly vulnerable when it comes to incomplete information.

There are examples of the lists being used to unfairly target law-abiding citizen who may have controversial political and religious beliefs.

"False positives" can impose high costs on individuals, from inconvenient time delays to potential employment and housing discrimination. The recent announcement by the Combined Federal Campaign that its funding recipients must certify that their employees are not on certain watch lists could lead to discrimination claims by employees. Federal and state laws prohibit an employer from asking a potential employee their date of birth and their nationality until after they have been hired. However, that information may be necessary to determine that an individual is not among those on a watch list.

Currently, there is no uniform system to address grievances, clarify "false positives"when multiple individuals have the same name, or establish recourse measures that would to allow those wrongfully included on the list to clear their names.

As the scope and importance of watch lists grows and data is increasingly shared among watch lists, the potential for error and abuse increases. For example, the Office of Foreign Assets Control - Specially Designated Nationals and Blocked Persons list is filled with common names but little additional information to distinguish an innocent citizen from the intended target of the list. The following names appear on the list:

Juan M. Cruz - Juan Cruz is a member of the Atlanta Braves. The name Juan Cruz appears over 100 times in directory assistance listings for Florida alone.

Manuel Diaz is also the mayor of Miami. The name Manual Diaz appears 67 times in the Texas directory assistance. Internet phone books report that there are more than 300 people with that name in New York, Florida, California, and Texas.

Oscar Hernandez is a name shared by more than 100 people in Florida and more than 100 people in Texas.

Miguel Ortega, the name of an actor, is also the name of 58 people in California.

Charles Taylor is the name of a member of Congress from North Carolina as well as professors at both Stanford and Northwestern Universities. It is also a name shared by at least 60 people in the state of New York.

Additionally, many entries are not complete names or are aliases, such as:

Ahmed the Tall -- Ahmed the Tall is listed with multiple birth dates.

Ahmed the Egyptian - It is unclear whether the person's real name appears on the list elsewhere or whether only the know aliases appear.

Abu - There are many names on the list that begin with Abu, which means "father of"followed by another name. Examples include Abu Anis, Abu Ali, Abu Abdallah, and Abu Ahmed.

DO THE LISTS MAKE US SAFER?

The ACLU and many other civil liberties organizations have had long-standing concerns about the use of federal watch lists. While the ACLU does not oppose the concept of watch lists per se, the practical use of such tools is fraught with peril for civil liberties. As such, in April 2004, the ACLU filed a nationwide class-action challenge to the government's "No-Fly" list, arguing that it violates airline passengers' Constitutional rights to freedom from unreasonable search and seizure and to due process of law under the Fourth and Fifth Amendments.