U.S. Homeland Security revives air passenger screening program

A proposed revamp of the U.S. Department of Homeland Security‘s air passenger screening program offers improved personal privacy, but still falls short of acceptable protection standards, according to a leading privacy advocate.

DHS last week announced initial plans for an overhaul of its Secure Flight program, with the agency no longer assigning risk scores to passengers or using predictive behaviour technology, DHS Secretary Michael Chertoff said at a press conference.

But the Transportation Security Administration, part of DHS, will have direct control of checking domestic passenger lists against terrorist watch lists, instead of the airlines, Chertoff said.

“Unfortunately, as a lot of travelers know, this process sometimes leads to inconsistencies in how the list is checked and how it’s maintained by the airlines, and the result of that is frustration for travelers,” Chertoff said.

DHS has made progress on privacy issues, said Marc Rotenberg, executive director of privacy advocacy group the Electronic Privacy Information Center (EPIC). DHS is right to focus on matching passenger names to terrorist watch lists instead of trying to predict behaviour, he said.

“Instead of open-ended profiling … the revamped Secure Flight focuses on the problem at hand,” he said.

But privacy problems remain, Rotenberg added. Air passengers still cannot see the reasons why they’re targeted for extensive searches or kept off flights, and they cannot correct bad information on the terrorist watch lists, he said.

“The problems with the watch list are still valid and are not going away.”

Chertoff, during Thursday’s press conference, defended the program. “I want to be very straightforward about this: Secure Flight will not do any harm to personal privacy,” he said.

“It’s not going to rely on collecting commercial data; it’s not going to assign a risk score to passengers; it’s not going to try to predict behaviour. It’s only designed to collect a minimum amount of personal identifying information so that we can do an effective job of matching the traveler to a person whose name and identity are on a watch list.”

The DHS announcement is one of the first steps toward resurrecting the Secure Flight program. In February 2006, the program was suspended for a review of its information security measures after two government reports outlined security and privacy problems.

Meanwhile, a federal appeals court will hear arguments on Wednesday on whether to stop a class-action privacy suit that is based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program.

The Electronic Frontier Foundation (EFF) brought the case in a U.S. District Court in San Francisco last year on behalf of Tash Hepting and other AT&T customers. The suit alleges AT&T co-operated with the National Security Agency to conduct surveillance of millions of customers’ communications illegally, violating the customers’ privacy.

Another case, Al-Haramain Islamic Foundation vs. Bush, has been consolidated with the Hepting suit. The Al-Haramain case involves claims the government illegally wiretapped calls between the charity and its lawyers.

The Hepting vs. AT&T case has galvanized critics who claim the U.S. government is overreaching its constitutional bounds in its fight against terrorism. Congress recently expanded the government’s powers to conduct wiretapping without a warrant, which EFF said makes its case more critical than ever.

The U.S. Department of Justice filed a motion in the district court last year to stop the Hepting suit, saying a trial would reveal important state secrets.

The judge in the U.S. District Court for the Northern District of California, Vaughn Walker, rejected that motion last July. The government immediately asked the U.S. Court of Appeals for the Ninth Circuit, also in San Francisco, to halt the case.

It has taken this long for the appeals court to hear that appeal even though it was expedited, said Cindy Cohn, legal director of the EFF. The non-profit digital rights group believes the wiretapping is continuing and wants it stopped quickly, she said.

On Wednesday, a three-judge panel at the circuit court will hear arguments on whether to halt each case. If it does so, the EFF may take the cases to the U.S. Supreme Court, Cohn said. The government could do the same if the judges reject its appeal.

The DOJ argued last year that hearing the Hepting case would mean exposing information that would help Al-Qaeda terrorists. Just confirming or denying that the alleged surveillance takes place could aid terrorists by letting them know what forms of communication are monitored and which are not, according to government lawyers.

But Judge Walker said too much information had already been disclosed, including by the government and AT&T, to stop the case.

EFF brought the case in January 2006 after news reports told of carriers diverting traffic from their fibre-optic lines through NSA wiretapping equipment.

– with files by Stephen Lawson (San Francisco Bureau)

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