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Constitutional liberties on standby

By Steve Lilienthal
web posted September 15, 2003

Concern for privacy and constitutional liberties appear to be placed on standby as The Transportation Security Administration attempts to implement its Computer Assisted Passenger Prescreening System, better known as CAPPS II.

The TSA put notice of its plans to implement CAPPS II in the Federal Register and announced its intention to seek public comment.

The CAPPS II database will be used to identify passengers on airlines by a color-coded risk assessment. A "red" rating will stop an aspiring passenger who is rated a definite security risk. A "yellow" rating is reserved for those passengers needing viewed with caution.

Of particular concern to conservative activists who may be involved in high-profile, aggressive causes such as gun owner groups, right-to-life organizations, and property rights groups? What does it take to merit a "yellow" rating?

Could arrest for participating in a demonstration at an abortion clinic put right-to-lifers at risk of being strip-searched when traveling by air?

Could membership in a property rights group that has made heated statements about government overstepping its bounds find themselves on the "watch" list?

As many as 8 percent of the nation's air travelers, may have that cautionary color matched with their name, requiring them to undergo additional screening.

For that reason, conservatives have good reason to not only contact the Transportation Security Administration, but also their elected legislators on the Federal level to let them know what they think about CAPPS II and to demand greater accountability.

Here are some important questions that need to be answered.

How definable is the term "identifiable links" to terrorism? That is something the CAPPS II system's risk assessment process will do.

Already, the USA-PATRIOT Act leaves members in domestic political organizations at-risk by their very open-ended definition of domestic terrorism. As currently written, any act deemed dangerous to human life that is a violation of any federal or state criminal law, including misdemeanors, could be construed as an act of terrorism.

How real are the protections under CAPPS II to ensure real terrorists are placed on the so-called "watch" list? Could those who participate peacefully but assertively in the political process because they believe that Barry Goldwater's call that "extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue" find their ability to fly endangered by CAPPS II?

Furthermore, will passengers really be able to correct mistakes in their records under CAPPS II? The TSA's Federal Register Notice does state that passengers will be able to request records held by CAPPS II and to request modifications. But because CAPPS II is not going to retain the records of the passenger, then what database will and what insurance will the passenger have that it is to be corrected -- particularly if a commercial database is the source of the misinformation.

Furthermore, the Associated Press' David Kravets wrote in July that the TSA has so far failed to keep a record of people who have been wrongly delayed or prevented from boarding flights in trying out CAPPS II.

Is TSA willing to make a thorough accounting of CAPPS II's accuracy in the testing period and hereafter?

Indeed, CAPPS II's regulation in its supplementary notice states that financial and health information will not be taken into account. But why is such an assertion made in what appears to be an afterthought. Indeed, critics wonder whether such an assertion has any real legal standing.

Nor does CAPPS II intend to reveal the sources of its records. That leaves open the door for CAPPS II's administrators to reverse its "supplementary" policy's declared intention not to use financial or health information and who would be the wiser? CAPPS II has a rating of "classified sensitive."

American air travelers may find themselves bumped and barred from flights thanks to this system that places plenty of power with bureaucrats and databases, but fails to provide real form of recourse for innocent travelers who have undeserved yellow or red designations.

The terrorists will have the smarts to beat the system, but what about the average traveler with an undeserved designation who as no understanding of what CAPPS II is all about or how it operates?

The bottom line: the public and Congress should give CAPPS II a "yellow" rating, viewing it very cautiously. A lot more questions need to be answered about it.

A website particularly critical of CAPPS II and the corporations behind the systems employed can be found at www.dontspyonus.com

Steve Lilienthal is a policy analyst with the Free Congress Foundation.

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