DHS Acknowledges That Terror Ranking Program Is Already in Effect, ACLU Says Program Violates Congressional Spending Ban and Public Notice Requirements

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

WASHINGTON – In a notice scheduled to be published in the Federal Register on Friday, the Department of Homeland Security acknowledges that its controversial Automated Targeting System terror-ranking program is already in operation – despite a congressional ban on such ranking systems and despite the fact that Congress and the public were never properly notified. In response, the American Civil Liberties Union today called on Congress to put a halt to this program and look into why it was created without public notice.

“We went through many years of debate over this notion of probing into the background of every passenger and assigning them a threat rating,” said Barry Steinhardt, Director of the ACLU’s Technology and Liberty Project. “Congress enacted a specific prohibition on rating innocent travelers and instructed DHS to focus only on those who were on a government watch list. So it is unconscionable for the government to then create this kind of a system in violation of that ban, and without proper notice to Congress or the public.”

The Automated Targeting System (ATS) is a security and tracking program for cargo that DHS has apparently extended to travelers by assigning all who cross the nation’s borders, citizen and non-citizen alike, with a computer-generated “risk assessment” score that will be retained for 40 years.

On Friday, the Associated Press reported that ATS, including its threat assessment of human beings, was already in effect. Now the government has confirmed that report in a new notice that the office of the Federal Register indicated online will be published in Friday’s edition.

“This program may be right for cargo, but it’s all wrong for people. Congress has already repeatedly declared that it does not want the government engaging in this kind of mass computerized dragnet,” said Timothy Sparapani, an ACLU Legislative Counsel. “Now it needs to weigh in on this program – get to the bottom of what is being done, and reaffirm its views on what should not be done.”

The 2007 Department of Homeland Security Appropriations Act provides that none of the funds provided in that spending bill “may be utilized to develop or test algorithms assigning risk to passengers whose names are not on government watch lists.”

The ACLU charged that the ATS program also appears to violate the Privacy Act, which requires public notice before the government builds any new databases containing personal information on Americans. DHS is claiming that it fulfilled that requirement through a sweeping one-page statement buried within an obscure Treasury Department Federal Register Notice published shortly after 9/11 for a law enforcement database called the Treasury Enforcement Communications System (TECS).

But Steinhardt pointed out that that notice made no mention of ATS, or the keeping of risk scores on travelers for 40 years. In addition, Steinhardt said, it is not clear why DHS would think that a Privacy Act notice for TECS would cover ATS.

“It appears that DHS has violated not only Congress’s ban on risk assessments, but also the Privacy Act’s notification requirements,” said Steinhardt. “At the very least, DHS has violated the spirit of the law and the ethical obligation to vet a program like this through Congress and through full public and democratic debate and control.”

The ACLU filed official comments last week calling on DHS not to implement the program and to extend the public comment period. In the new notice, DHS does extend the public comment period, until December 29.

“We filed our comments assuming that DHS had followed the proper procedures and that the program was not yet in effect,” said Sparapani. “But the fact that it is already in effect calls into question whether the whole comment process – including this latest extension – isn’t completely meaningless.”

The DHS Privacy Act Notice scheduled for Friday publication can be found at:
www.aclu.org/images/asset_upload_file445_27589.pdf

The ACLU’s comments on the Automated Targeting System can be found at:
www.aclu.org/privacy/gen/27579prs20061201.html

The Federal Register’s notice of intent to publish the DHS Notice can be found at:
www.archives.gov/federal-register/public-inspection/index.html#spec_H