'No-Fly' List Risk

July 1, 2003

With Databases Everywhere, the U.S. Government May Be Turning Into Big Brother

By Jayashri Srikantiah

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Published in the Daily Journal on July 1, 2003

Rebecca Gordon and Jan Adams are long-time peace activists who live and work in San Francisco. When they went to San Francisco International Airport last year to take a flight to Boston, they were told by an airline agent that their names may be on a secret federal "no fly" list. They were briefly detained, questioned and only allowed to fly when San Francisco Police officers cleared them after checking their names against a master FBI list. 

Jan and Rebecca are not alone. Since September 11, at least 339 air passengers have been stopped and questioned by police at the airport because their names were believed to match names on the "no fly" list. If this airport is typical of other airports across the country, it is likely that thousands of passengers are being subjected to similar treatment because of the "no fly" list.

Does the "no fly" list actually make us safer? It is impossible for the public to answer that question because we have very little information about the list. We don't know, for instance, how a name is placed on the list, how a name can be taken off of the list or whether First Amendment-protected activity is ever a reason for placing a name on the list. Although Adams' and Gordon's story suggests that airlines have access to the list, we don't know if airlines can alter information on the list, or if the government trains airlines on how to use the list.

In order to obtain more information about the "no fly" list and other transportation watch lists, Adams, Gordon and the American Civil Liberties Union filed requests under the Freedom of Information Act and the Privacy Act with the Transportation Security Administration and the FBI last December. Because neither agency responded with any information, these parties filed a lawsuit in the U.S. District Court for the Northern District of California under the freedom and privacy acts on April 22, 2003. Without even basic information about the list, there is no way for the public to hold their government accountable as to whether the resources that law enforcement is expending on stopping and questioning air passengers are resources well spent.

According to a recently issued General Accounting Office report, the "no fly" list is just one of 12 terrorist and criminal watch lists maintained by the federal government. As the number of watch lists grows and data is increasingly shared among watch lists, the potential for error increases. Imagine, for instance, if Adams' or Gordon's names were mistakenly placed on 12 watch lists instead of just the "no fly list."

The problems with data sharing further multiply if watch list information is shared with the thousands of databases currently maintained by the government. Like the government's watch lists, these databases catalogue information on the lives of ordinary Americans and others.

Examples include a Treasury Department database that collects financial information reported to the government by financial institutions and a Department of Education database of educational records on individuals stretching from their primary school years through higher education. It is bad enough that Gordon and Adams were flagged because their names matched the "no fly" list - it would be worse if this unfair black mark were disseminated throughout the federal government, potentially causing problems for Adams and Gordon in everything from traffic stops to job applications.

The dangers created by the aggregation of information in government databases and watch lists are illustrated by the government's plans to develop the Computer-Assisted Passenger Pre-Screening System, or CAPPS II, a system that would search secret intelligence and law enforcement databases and rate every airline passenger a red, yellow or green-level threat. Using easily falsified information such as name, home address, home phone number and date of birth, the pre-screening system would screen air passengers' names through credit databases and then run that information through secret government databases to make judgments about the passengers' security risk.

Based on the color-coded result, a passenger may be allowed to travel, required to undergo special security scrutiny or be referred to law enforcement and possibly detained. Masses of Americans may be unfairly branded as security risks under this program - and like Gordon and Adams, they may not know why they have been tagged or how they can clear their names.

The government's increasing use of watch lists and databases is complemented by private industry, which also collects information about individuals in this country. As computer technology exploded in recent decades, companies began to collect information about the spending and lifestyle habits of ordinary Americans. Surveys, sweepstakes questionnaires, loyalty-card programs and monitoring of Internet shopping are tools used by companies to gather information about consumers. Companies called data aggregators compile this information and sell it to others, including the government.

The "no fly" list is only the tip of the iceberg. If we do not take steps to monitor and control data surveillance to bring it into conformity with our values, millions of us will find ourselves in the situation that Gordon and Adams are in today - branded by our own government as "risky," with no way to face our accuser, discover the substance of the accusation or correct inaccurate information on which the accusation is based. We could find ourselves being tracked, analyzed, profiled and flagged in our daily lives to a degree we can scarcely imagine today.

Jayashri Srikantiah is a staff attorney with the ACLU of Northern California. 

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