Problems With No-Fly List Show Problems With CAPPS II Airline Profiling System

Statement of Barry Steinhardt, Director, Technology and Liberty Program, ACLU

The problems that have emerged with the Transportation Security Agency’s “”no-fly”” list offer the American people a preview of some of the problems that will inevitably bedevil the new “”Computer Assisted Passenger Pre-Screening System”” program (CAPPS II) currently under construction by the TSA.

Inaccurate information. Because of the no-fly list, for example, innocent, law-abiding Americans have found themselves subject to relentless hassles, interrogation and searches every time they try to travel by air. They may share similar names with those who have been placed on suspect lists, or be the victims of random error, malicious discrimination, or mysterious bureaucratic quirks.

Lack of due process. The lack of recourse for those who find themselves singled out by the no-fly list makes for a truly Kafkaesque situation. Innocent victims are unable to face their accusers – the source of the information that has made them a target – unable to see that information, or the criteria by which it was judged, and have no meaningful way to appeal their status.

Jan Adams and Rebecca Gordon of California, for example, were detained by police at San Francisco International Airport, and told that their names appeared on the secret “”no-fly”” list. The two women – peace activists who publish a newspaper called War Times – were told nothing about why they were on such a list, or how they could get off. The ACLU has filed suit on their behalf to find out how the “no fly” lists were created, how they are being maintained or corrected and, most importantly, how people who are mistakenly included on the list can have their names taken off. Indeed, we fear that those two peaceful women may have wound up on the no fly list for exercising their quintessentially American right to disagree with the government.

The CAPPS II program will replicate both of these flaws.

CAPPS II will be an even more intrusive form of data mining that, like the no-fly list, will rely on both secret and inevitably incorrect information to make accusations against individuals.

Study after study has found that intelligence failures before 9/11 were a result not of insufficient information, but a failure to analyze information that had already been collected. Automated background checks like those envisioned under CAPPS II will only worsen the problem: you don’t find a needle in a haystack by adding more hay – and rotten hay at that. Even the Bush Administration’s own budget officials have hinted that they would oppose the program until there was some evidence that it would be effective at actually saving lives.

Our legal system has evolved carefully structured checks and balances (such as judges and juries) because otherwise, human experience shows, individuals inevitably end up being punished unfairly. The no-fly list and CAPPS II both impose sanctions (interference with their constitutional right to travel) without any meaningful due process, making abuses – whether through discrimination or pure sloppiness – inevitable.