Remarks by Laura W. Murphy, Director, ACLU Washington Legislative Office - ""America, Land of the Watched:CAPPS II and the Dangers of Unchecked Surveillance""

Remarks by Laura W. Murphy,
Director, ACLU Washington Legislative Office

On August 25, 2003 

At the National Press Club, Washington, DC

""America, Land of the Watched: 
CAPPS II and the Dangers of Unchecked Surveillance""

Politically and socially, our lives have changed markedly since the tragedy of 9/11.  And, we've gone from a world where technical limitations prevented any sort of comprehensive surveillance machine to one where the only safeguards against true Big Brother-style privacy intrusions by the government are legal - and even they are currently inadequate to the task of protecting our personal lives from official snooping.

Out of this dynamic has emerged an interesting political coalition, wary of the surveillance society developing out of the crisis of 9/11 and the technology explosion that we're all living through.   These advocates for individual rights have found common cause in the defense of privacy against new government domestic spying initiatives.  

These advocates come from across the political spectrum - from free-market, limited government conservatives to social justice progressives - and, while they continue to disagree on a great many things, one thing is clear: privacy rights are sacrosanct, and from them our democracy thrives.

And, we've had plenty to keep us busy.  From the Total Information Awareness data-mining system at the Pentagon to the secret searches and broad access to personal records authorized in the USA PATRIOT Act, principled privacy hawks have loads to worry about.  

Today, I'm pleased to stand with my friends on the right and the left against the Transportation Security Administration's latest adventure in intrusion - the Computer Assisted Passenger Pre-Screening System, commonly known as CAPPS II.

Before I get into the latest developments in the CAPPS II controversy, I'd like to recognize our panel today.  A hearty welcome to:

• David Keene, President of the American Conservative Union     
• Grover Norquist, President of Americans for Tax Reform     
• James X. Dempsey, President of the Center for Democracy and Technology     
• Hilary Shelton, Director of the NAACP's Washington Office     
• And, my good friend, former Georgia Congressman Bob Barr

Thank you all for being here.  My name is Laura W. Murphy and I'm the Director of the Washington Legislative Office of the American Civil Liberties Union.

***

Intended as an upgrade of the original CAPPS system, which profiles air passengers based on things like whether you bought a one-way ticket or paid cash, CAPPS II, as envisioned, would be a quantum leap in government surveillance.

As originally laid out by the TSA, this second-generation profiling technology would use highly personal commercial and government information - including credit records -- to assess an individual traveler's threat level.  It would use that information to tag travelers as red, yellow or green.  Greens would be allowed to pass.  Yellows would be subject to heightened scrutiny.  And, Reds would presumably be pulled aside and detained.

The problems with such an approach are obvious. 

First, it would be ineffective:  Anyone could sail through the system using somebody else's name and address.  Study after study has shown that identity theft is not a difficult proposition.

Second, it could create a blacklist of airline passenger, who for whatever reason, have a scarlet letter of ""potential threat"" forever imprinted in their commercial and government data fingerprints. 

Third, like TIA and the ill-fated citizen-spying program Operation TIPS, CAPPS II is based on the flawed premise that to catch the terrorists, we have to mine deep into law-abiding Americans' personal information.  

Remember that safety and privacy need not be mutually exclusive.  Rational, right-minded security measures -- like luggage matching, fortifying cockpit doors, better training for airport security personnel - can be put in place without sacrificing democratic principles.

Finally, CAPPS II also raises the specter of potential racial, ethnic or religious discrimination, a point that hasn't been widely reported by the press or acknowledged by the systems' boosters and detractors.  A special thanks to my friend Hilary Shelton for being here to address how bias in the data being mined by the system could result in air passengers getting singled out on the basis of skin color or ethnicity.

In fairness to the TSA, it's important to note that it has made changes to the CAPPS concept, including some improvements.  However -- and it's a big however -- despite its best intentions, the changes do not reach to the heart of why this program is dangerous to our freedom.  

Earlier this summer, the agency promulgated new proposed rules governing how CAPPS II would delve into passengers' private data.  Claiming that it would no longer access credit records and would only use commercial information to help verify name, address and date of birth, the TSA still intends to use highly classified intelligence and law enforcement data to measure threat levels.  

This ""black box"" of secret data, the contents of which would be unknown even to the TSA, negates any progress made in the proposed rule changes.

In other words, credit records, highly personal medical, business, educational and mental health information could still conceivably be mined, but in the shadow world of national intelligence and federal law enforcement agencies.  Once dinged by the system, somebody falsely identified as a ""Yellow"" would have no recourse to correct mistaken information in this black box, dooming that traveler to a TSA blacklist.

As we've touched on in our widely read report, ""Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society,"" available on-line at www.aclu.org, CAPPS II and its cousin surveillance tools like TIA, represent a for more disturbing prospect than just an ""eye in the sky"" - no pun intended - at American airports.

Indeed, CAPPS II is the logical outgrowth of the bureaucratic fixation on technological quick fixes to highly complicated international and domestic security problems.  And, it takes its cue from the private sector.

For years now, commercial enterprises doing market research have collected, compiled and organized highly detailed information about American consumer appetites.

However, CAPPS II and its ilk take that market phenomenon in a truly radical direction.  

By taking the first steps toward linking commercial data - collected by appropriately named ""data aggregators"" like ChoicePoint or Axciom - with our vast and well-resourced national security infrastructure, a system like CAPPS II represents the emerging ability of the government to ""see"" and access our entire lives in high resolution.  

Everything from a preference for Advil over Tylenol to participation in an anti-war rally in 1969 to a subscription to The Economist to membership in the ACLU becomes available for total recall at a moment's notice with such a ""synergy of surveillance.""

But, there's a larger point - one especially well taken by my conservative friends on the dais today - unlike corporations, the government is uniquely positioned to take our liberty based on its surveillance.  

Only the government can create a designation like ""enemy combatant,"" where - without being convicted of anything - an American citizen can be imprisoned, kept from lawyers and denied access to the outside world.  Only the government can use the pretext of national security to erode centuries old free institutions.

On its own, that call at dinnertime from the always-cheerful telemarketer might be annoying, but when the market targeting that tells that telemarketer who to all is combined with government snooping, the potential for catastrophic abuse becomes almost a certainty.

CAPPS II, TIA, Operation TIPS and the USA PATRIOT Act's expanded surveillance provisions are all fruit of that same tree.  They are all quick fixes, designed to placate an American electorate understandably fearful of terrorism.  But, not only will they fail to work, they will institutionalize an America not of the free, but of the watched.  

Thank you again for coming.  We'll now hear from Congressman Barr and will open it up to questions toward the end of the forum.