From: Dave Banisar <banisar@epic.org>
Date: Wed, 12 Feb 1997 17:54:32 -0800 (PST)
To: misc@epic.org
Subject: Coalition Letter on Privacy and Airline Security
Message-ID: <v03020901af281e7e656c@[204.91.138.84]>
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A HTML version of this is available at
http://www.epic.org/privacy/faa/airline_security_letter.html


February 11, 1997

Vice President Albert Gore, Jr.
The White House
1600 Pennsylvanpia Ave, NW
Washington, DC 20500

Dear Mr. Vice President,

	We are writing to you to express our views on the serious civil
liberties issues raised by recent government activities in the name of
airline security.  These include recent orders issued by the Federal
Aviation Administration, and also proposals recommended by the White House
Commission on Aviation Safety and Security and the FAA Advisory Aviation
Security Advisory Committee.

	Many of these proposals were developed in the highly-charged
atmosphere following the still-unsolved crash of TWA Flight 800 and reflect
a misguided rationale that something had to be done, no matter how marginal
in value or violative of individual rights.

	We all feel strongly that air travel must be safe - nobody wants to
feel that to set foot on an airplane or an airport is to take a substantial
safety risk.  However, basic civil liberties protected by the Constitution
should not be sacrificed in the name of improving air safety, especially
where the potential benefits are questionable.  At the airport ticket
counter, passengers check their luggage, not their constitutional rights.


Identification

	One area of concern is a secret FAA order issued in August 1995 and
apparently revised in October 1995. The FAA order purportedly requires
airlines to demand government-issued photo identification from all
passengers before they can board an airplane.  It remains unclear whether a
passenger must provide that identification and what discretion an airline
has to allow, or refuse, any passenger to board if they refuse to provide
identification or simply do not have any available.

	Americans are not required to carry government-issued
identification documents. Any requirement that passengers show
identification raises substantial constitutional questions about
violations of the rights to privacy, travel, and due process of law.  The
Supreme Court has consistently struck down laws that interfere with the
constitutional right to travel.  The Court has also overturned laws in a
variety of circumstances that require an individual to provide
identification in the absence of any specific suspicion that a crime has
been committed.  In addition, it is unclear that requiring passenger
boarding an aircraft to identify him or herself actually makes the people
with whom they travel any safer. A bomber with a fake ID is just as
effective as a bomber with no ID.

	We urge the FAA to withdraw its directive and to notify airlines
that identification should not be requested for security reasons.  At a
minimum, the FAA should require airlines to post notices telling passengers
that they cannot be denied boarding just because they fail or refuse to
identify themselves.


Computer Databases and Profiling

	Another major concern involves the proposed increased utilization
of the practice of "profiling" passengers to determine whether they pose a
security risk and should thus be searched. This would require the
collection of personal information on passengers prior to their boarding a
plane.  Information that may be collected includes a picture or other
biometric identifier, address, flying patterns with a particular airline,
bill paying at a particular address, criminal records, and other
information. This, and information gleaned from observing the persons with
whom the passenger was traveling, would be fed into a computer data base
that would be used to decide whether the passenger "fits the profile" and
should be subjected to heightened security measures.  Under this proposal,
the checked luggage of people selected by the computer would be scanned by
new sophisticated scanning devices.

	The risks to privacy are enormous and run not only to those who
"fit the profile." For this system to be useful, it must apply to every
person who might take a flight, i.e., to everybody. A new government
dossier on everyone would have to be created, computerized, and made
accessible to airline personnel.

	In addition, for the system to be useful, it would have to be
linked to other data bases and constantly updated. Each time a person
changes their address or takes another flight, or does anything related to
the characteristics about them deemed significant by the profiling system,
the government would track it. All of our experience with the creation and
updating of such ever-changing data bases teaches us that the likelihood of
inaccuracy at any given moment is high.  The FBI, for instance, recognizes
that data in its computer system  of criminal records has an inaccuracy
rate of 33 percent. Such inaccuracy would lead to both a breach of safety
and to violations of the rights of innocent people. This proposal is a
quick fix that won't fix anything.

	The proposal also violates a central principle of the Code of Fair
Information Practices and the Privacy Act (5 U.S.C § 552a): information
given to the government for one purpose ought not be used for other
purposes without the consent of the person to whom it pertains. The use of
criminal records in such a data base, particularly where those records
include arrests that do not result in convictions, is particularly
troubling.

	Profiling also frequently leads to discriminatory practices.
Already, we have received numerous reports of discrimination against
individuals and families with children who have been refused entry onto
aircraft because their names appeared to be of Middle-Eastern origin. In
the well publicized example of security guard Richard Jewel, reports
indicated that the FBI profile led the police to unfairly target Mr. Jewel
for the incident, even in the absence of other evidence. This incident
vividly shows the limitations of basing a law enforcement decision on a
profile.

	We urge the FAA and airlines to discontinue the use of passenger
profiling.

X-Ray Cameras

	We also view with concern proposals to install  in airports new
cameras which can depict highly detailed images of individuals' bodies
under their clothes.  Existing scanners, the development of which was
partially funded by the FAA, already show a revealing and invasive picture
of a naked body in high detail and the technology is likely to improve.
This is clearly a search under the Fourth Amendment and is far more
intrusive than a standard metal screening device.  Passengers should not be
subject to an "electronic strip search" in order to board an aircraft. To
expose travelers' anatomies to the general public or even to selected (not
by the victim of the unreasonably intrusive search) strangers is extremely
embarrassing and shocking to the conscience.

	We urge the FAA to reject proposals to use body scanners capable of
projecting an image of a person's naked body.

Secrecy

	Much of the key decision-making surrounding these proposals has
been shrouded by secrecy. The FAA has claimed that it is exempt from open
government laws and has refused to release its directives on profiling and
identification. Relevant meetings have been closed to the public or limited
to participants who can afford to pay expensive fees.

	We urge the FAA to publish its directives and open all further
decision making open to public scrutiny.

Conclusion

	In conclusion, we believe that these proposals raise grave
constitutional issues and are likely to produce only minimally beneficial
results to improve airline safety. We urge the FAA and the advisory
commissions to focus their efforts on improving security in a balanced and
rational manner that is open to public scrutiny and consistent with
constitutional rights.


Sincerely,


Houeida Saad
American-Arab Anti-Discrimination Committee

Greg Nojeim
American Civil Liberties Union

Maher Hanania
American Federation of Palestine

James Lucier, Jr., Director of Economic Research
Americans for Tax Reform

Aki Namioka, President
Computer Professionals for Social Responsibility

Lori Fena, Executive Director
Electronic Frontier Foundation

David Banisar, Staff Counsel
Electronic Privacy Information Center

Ned Stone
Friends Committee on National Legislation

Judy Clarke, President
National Association of Criminal Defense Lawyers

Kit Gage, Washington Representative
National Committee Against Repressive Legislation

Audrie Krause, Executive Director
NetAction

Sharisa Alkhateeb
North American Council of Muslim Womem

Simon Davies, Director General
Privacy International

Robert Ellis Smith, Publisher
Privacy Journal

Evan Hendricks, Chairman
US Privacy Council and Publisher, The Privacy Times

Enver Masud
Executive Director
The Wisdom Fund

John Gilmore
Civil Libertarian and co-founder, The Electronic Frontier Foundation


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