Comments on "Secure Flight" testing and data dump

The public comment period on testing of the the proposed Secure Flight airline passenger surveillance and monitoring system intended as part of the replacement for CAPPS-II , and on a proposed order to airlines based in the USA to turn over all PNRs from June 2004 flights, closed today.

My own comments and comments to the TSA and to the OMB that I co-signed with several privacy and civil liberties organizations are, I presume, among a blizzard of last-minute filings with the USA Transportation Security Administration (TSA) and the Office of Management and Budget (OMB), which are supposed to review them before acting on the TSA proposals.

In practice, the proposed “Secure Flight” testing order would require the June 2004 reservation archives to be turned over to the TSA this Friday, 29 October 2004, leaving little time for any menaingful review of the public comments if a decision is to be made by then. And the TSA has asked the OMB to approve their proposed order on an “emergency” basis, to which I, and no doubt others, have objected.

Here are the abstract and conclusions of my comments :

Abstract: (1) The proposed system of records and the information collection request described in these Notices: are contrary to the recommendations in the final report of the 9/11 Commission; (2) would unconstitutionally burden and chill the exercise of the right to assemble guaranteed by the First Amendment; (3) are barred by multiple provisions of the Privacy Act of 1974 and the Airline Deregulation Act of 1978; and (4) are not authorized by any of the statutes claimed in the Notices as their authority. (5) The Notices are inaccurate, incomplete, and fail to provide several of the notices required by the Privacy Act. (6) Maintenance of the proposed system of records would constitute a criminal violation of the Privacy Act on the part of each officer or employee of any agency maintaining the system of records. (7) The TSA has failed to conduct the assessments required by the Airline Deregulation Act of 1978, the Aviation and Transportation Security Act of 2001, the Regulatory Flexibility Act of 1980, and the Unfunded Mandates Reform Act of 1995. (8) The TSA has failed to conduct the assessments, or satisfy the criteria for emergency clearance by the OMB, required by the Paperwork Reduction Act. (9) In order to comply with the proposed orders, airlines and the Computerized Reservation Systems (CRS’s) that host their PNR databases would have to cease operating flights to or from, or accepting reservations from, the European Union, at a cost of billions of dollars a year.

Conclusions: For all of the reasons stated in the comments above, I request (1) that the proposed system of records not be created, and the system of records notice be formally withdrawn by the TSA or DHS, (2) that the proposed information collection order not be issued, and the notice of emergency clearance request be formally withdrawn by the TSA or DHS, (3) that the request for an emergency certification and clearance be denied by the OMB, and (4) that, unless the proposals are immediately and publicly withdrawn, immediate action be taken to prevent the proposed criminal violations of the Privacy Act.

Here are links to some of the detailed comments filed with the TSA, in addition to several hundred briefer comments, amost all form individuals oppsed to Secure Flight (comments filed with the OMB are not available online, except those copied to the TSA or placed online by the commenters):

• Edward Hasbrouck
• Air Transport Association (questions and requests for clarification)
• Air Transport Association (comments)
• American Library Association, Consumer Action, Edward Hasbrouck, Electronic Frontier Foundation, Fairfax County [VA]Privacy Council, Privacy Rights Clearinghouse, PrivacyActivism, and World Privacy Forum (comments to the TSA)
• Electronic Frontier Foundation, Fairfax County [VA] Privacy Council, Edward Hasbrouck, Privacy Rights Clearinghouse, PrivacyActivism, and World Privacy Forum (comments to the OMB)
• Electronic Privacy Information Center (comments to the TSA)
• Electronic Privacy Information Center (comments to the OMB)
• American Civil Liberties Union and Privacy International
• Business Travel Coalition
• National Business Travel Association
• American Conservative Union
• Adam Shostack
• John Gilmore
• Tom Ciccateri
• Matthew Belmonte

[Last updated 9 November 2004 to add links to additional comments.]