After 9/11, the Transportation Security Administration started compiling a list of people with possible ties to terrorist organizations. If they tried to fly, they would be flagged in a database, questioned and detained. Problem is, a lot of people who’ve ended up on the “no-fly list” have no connection whatsoever to terrorism, but get questioned and delayed all the same. The ACLU has just brought suit against the TSA for seven of these unlucky ones on the grounds that the delays and searches they routinely endure are a violation of their constitutional rights.
The ACLU lawsuit was filed in Seattle on behalf of an air force master sergeant, an elderly Presbyterian minister, a junior at Middlebury college, a trial lawyer, the project voice coordinator for American Friends Service Committee in Philadelphia, and two ACLU employees. Six of them have no criminal record, and the one who does is an ACLU employee, arrested a couple of times for “peaceful civil disobedience.” All are U.S. citizens.
They claim that they are “humiliated” — taken aside and subjected to separate searches and questioning — each time they try to board a plane. Even those with an official letter from the TSA saying they pose no terror threat have been subjected to searches. None, apparently, has ever missed a flight due to the searches.
TSA officials have admitted in the past that there are errors in the list, especially involving names common in the Middle East, and that they have received at least 250 complaints. According to the lawsuit, TSA maintains not one but two lists. One is the “no-fly list” and the other is for “selectees” who merit extra screening.
Federal law enforcement and intelligence agencies recommend to the TSA the names that go on the lists, but little else is known about them. The government does not disclose how many people are on the lists or how people qualify to get on or off, nor will it confirm any names on the lists.
David Nelson, a 34-year old trial lawyer from Belleville, Illinois, feels personally injured by the list:
“I am a patriot, and I would never stand by and let anyone ever say or even imply otherwise. Yet, someone in government has done exactly that. Someone I have never met has branded me a potential terrorist, a person who would harm his fellow Americans because my name is on a no-fly list.”
Nelson told the St. Louis Post Dispatch that joining the lawsuit was a last resort; he guesses he’s been singled out around 40 times since September 11, 2001.
Michelle Green, a Master Sergeant in the United States Air Force who has served for 16 years told the ACLU:
“I am joining this lawsuit today because I have been publicly humiliated and ostracized due to the government’s mistake about my identity. As someone who serves her country and obeys the laws of the land, I was shocked to learn I was on the No-Fly list. I was even more disturbed to find that there is no way to get off the list.”
And that’s another problem with the list: once your name’s on it, there’s no easy way to get it wiped, or even find out why your name is there. As a Newsday editorial says:
“The problem is the lack of an effective, efficient process to correct errors that stigmatize innocent travelers and repeatedly subject them to delays and searches.
There has to be a reliable way for people with no terrorist links to challenge their inclusion on the government lists, and to avoid the hassles that arise when they have the same name as a suspected terrorist.
Using watch lists at airports makes sense post-9/11. But there must be an accessible, effective way for innocent passengers to avoid this trip down the security rabbit hole.”
Although it is not clear why some people’s names are on the list, part of the reason is surely that at least one system used by airlines to generate names is, by many accounts, archaic. Slate’s Timothy Noah (himself a “no-fly” listee) cites a Wall Street Journal article from 2003 that explains the process:
“One name-matching technique that airlines have used, called Soundex, dates back more than 100 years, to when it was invented to analyze names from the 1890 census. In its simplest form, it takes a name, strips out vowels and assigns codes to somewhat-similar-sounding consonants, such as “c” and “z.” The result can be bizarre. Hencke and Hamza, for example, have the same code, H520. If there’s a Hamza on the No Fly List, a traveler named Hencke could be pulled aside for a background check before being allowed to board.
A 40-year-old method designed specifically for airlines does something similar, stripping names down to consonants and pulling up names that have the same consonants in the same order. A third technique sometimes used by airlines hunts for matches based on the first few letters of surnames.”
Noah argues that while it’s fair for the ACLU to complain about the need for a better screening system, the lawsuit goes too far. The ACLU’s lawsuit claims that the government is violating the due process clause of the Fifth Amendment and the search and seizure clause of the Fourth. Noah suggests that for those accidentally on the list, a little inconvenience justifies the prevention of another attack:
“Let’s suppose—just suppose—that the No-Fly List has caused only one terrorist not to board an airplane with a sharp tool or explosive shoes. Wouldn’t that still be worth these mild inconveniences? Of course it would. I don’t mind being the haystack because Sept. 11 taught me that there are needles out there. By all means, let’s find better ways to search for them. But let’s not make the perfect the enemy of the mediocre.”
The federal government does have plans to update its pre-flight screening system. The Computer Assisted Passenger Prescreening System (CAPPS II) would compare a passenger’s full name, address, telephone number and birthdate against a government database. People would be graded according to potential risk. Those ranked “green” could move on through security. “Yellow” passengers would be screened more carefully. “Red” ones might be arrested.
TSA spokesperson, Chris Rhatigan said it would reduce and eliminate “a number of those false positives.”
But civil liberties advocates worry that this huge database carries the potential for mischief, and amounts to a serious threat to privacy. The Atlanta Journal Constitution points out in an editorial on March 25:
“A scathing report last month by the nonpartisan GAO pointed out deficiencies in the Bush administration’s plan, saying it didn’t provide enough protection against hackers abusing the information. The GAO also questioned whether CAPPS II would protect the rights of wrongly accused passengers, whether the information would be used for other purposes within the government and whether the reliability of the system has been adequately tested.”
Under another program, to be tested in June at five airports, frequent fliers could bypass long security lines and intrusive searches if they turn over their background information. In return, they would get a “trusted traveler” ID card.