Homeland Security's Latest Passenger Screening Program Criticized
Posted by Randy Gainer
The Automated Targeting System (ATS) passenger screening program, formally announced by the Department of Homeland Security (DHS) in November, assigns a risk score to international air travelers bound for the U.S. that is intended to show the degree to which each traveler poses a terrorist risk. The scores can be kept for up to 40 years and DHS may share the information widely among federal, state, and international agencies. Although everyone except terrorists and their supporters wants DHS to stop terrorists from boarding planes bound for the U.S., the ATS has been widely criticized. EPIC’s website includes a useful summary and links. The attacks on the ATS fall into three categories.
First, security experts say flatly that the ATS won’t work. For example, Bruce Schneier says:
It’s a waste of money. The idea of feeding a limited set of characteristics into a computer, which then somehow divines a person's terrorist leanings, is farcical. Uncovering terrorist plots requires intelligence and investigation, not large-scale processing of everyone. Additionally, any system like this will generate so many false alarms as to be completely unusable. In 2005 Customs & Border Protection processed 431 million people. Assuming an unrealistic model that identifies terrorists (and innocents) with 99.9% accuracy, that's still 431,000 false alarms annually.
Second, due to concerns about the utility of data mining programs and their effects on innocent passengers’ civil liberties, Congress prohibited DHS from spending funds “to develop or test algorithms assigning risk to passengers whose names are not on Government watch lists.” Section 514(e), 2007 DHS Appropriations Act. Similar language was inserted in the last three DHS appropriations acts, according to Representative Martin Sabo of Minnesota, one of the sponsors of the language. “They keep going off on these wild scenarios on a regular basis,” Representative Sabo is quoted as saying. “They should concentrate on making their watch lists comprehensive and correctable.” Id. Privacy experts Marc Rotenberg at EPIC and James Harper of the Cato Institute argue that section 514(e) of the 2007 DHS Appropriations Act prohibits ATS, though DHS disagrees. DHS’s arguments around the spending ban are weak but it’s unlikely those arguments will be tested in court. The Appropriation Act does not authorize a private right of action to enforce the spending ban, so there is little chance passengers could successfully bring an action to enforce it. See, e.g., California v. Sierra Club, 451 U.S. 287, 294-98 (1981).
Finally, the EFF, the Business Travelers Coalition, and others argue that the ATS violates the Privacy Act. The EFF has asked a federal court in the D.C. to order DHS to expedite an EFF FOIA request that appears intended to gather information for a Privacy Act lawsuit challenging the ATS. The ATS controversy may just be getting underway.
