No-Fly List Uses Predictive Assessments

The US government has admitted that it uses predictive assessments to put people on the no-fly list:

In a little-noticed filing before an Oregon federal judge, the US Justice Department and the FBI conceded that stopping US and other citizens from travelling on airplanes is a matter of “predictive assessments about potential threats,” the government asserted in May.

“By its very nature, identifying individuals who ‘may be a threat to civil aviation or national security’ is a predictive judgment intended to prevent future acts of terrorism in an uncertain context,” Justice Department officials Benjamin C Mizer and Anthony J Coppolino told the court on 28 May.

“Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats.”

It is believed to be the government’s most direct acknowledgement to date that people are not allowed to fly because of what the government believes they might do and not what they have already done.

When you have a secret process that can judge and penalize people without due process or oversight, this is the kind of thing that happens.

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Posted on August 20, 2015 at 6:19 AM • 37 Comments

Comments

Thue Janus Kristensen • August 20, 2015 6:44 AM

Pre-crime is real. Due process before being denied the right to fly abroad is apparently not so real…

Chris M • August 20, 2015 7:13 AM

Surely such a system could only possibly be predictive. Even putting people on the list after they join a terrorist organisation could be considered predictive (in that joining an organisation is no guarantee they’ll commit in flight action).

I had the understanding that your constitution prevents sanctions without due process, no?

Clive Robinson • August 20, 2015 8:01 AM

@ Winter,

Yes I remember the “Put the Wife on no fly list”, and how nothing happened for three years, until he was up for promotion.

Though it had it’s farcical side, of why did the system not check for a family relationship to the person being placed and the person placing them on tha NoFly List, the thing it brought to my mind was the reality of how little security checking is done. That is once you have a security rating it does not get checked unless you undergo or about to undergo a change in your work.

It raises the posability he could have divorced his wife, in that three year period and then she would not have shown up as his wife, thus possibly not triggered him getting caught.

Thus there needs to be a proper check that can be subject to open judicial oversight such that errors and malicious actions can be rectified and the guilty subject to sanction and the injured party compensated.

rgaff • August 20, 2015 10:37 AM

@Winter

Did the system already learn that toddlers are not a terrorist risk to aviation?

Oh… but… toddlers ARE a big terrorist risk to aviation, when we can predict that they might grow up to be terrorists…

@Chris M

I had the understanding that your constitution prevents sanctions without due process, no?

People over in the US had that understanding too… but apparently it was wrong. The constitution does nothing at all. It is, in effect, toilet paper. You wipe your butt with it and flush it down the toilet. At least, that certainly seems to be how the US government treats it!

keiner • August 20, 2015 10:57 AM

@rgaff

…oh, no, no, no, you got that completely wrong, there are important amendments to this toilet paper, so that you can own automatic weapons to shoot whatever you see and, at least that important, FREE SPEECH, for promoting drugs off-label, as a drug company. Important stuff in there, indeed!

Nate • August 20, 2015 11:05 AM

I had the understanding that your constitution prevents sanctions without due process, no?

These days, it’s worth explicitly pointing out that the Constitution only proscribes things, it doesn’t prevent them.

The fifth amendnemnt only proscribes depriving people of life, liberty, or property without due process of law. Freedom of Movement is inferred from article four, but judges probably pick and choices what falls it as convenient.

Snarki, child of Loki • August 20, 2015 11:15 AM

Anyone that doesn’t think that toddlers are terrorists, doesn’t know many toddlers.

Renato • August 20, 2015 1:15 PM

Show me one toddler who doesn’t turn into an atomic bomb when parents aren’t looking for 5 seconds.

Dogs are better • August 20, 2015 1:26 PM

Watch as a toddler enters an aircraft, the look of terror on other peoples faces.

thevoid • August 20, 2015 1:27 PM

remember when Senator Ted Kennedy was on the no-fly list?

when looking up a reference for this, i ran across this from Bruce, almost
exactly 11 years ago now…

https://www.schneier.com/essays/archives/2004/08/us_no-fly_list_curta.html

oh how time flies…

(i think there may have been a political reason for Teddy’s inclusion, but
Bruce may be right about the similar names. there were a number of IRA members
added, and it’s a very common name. it’s possible ‘my’ name may be on it too
for such a reason.)

Jacob • August 20, 2015 2:17 PM

@thevoid

Quoting Bruce from 11 years ago:

“There’s something distinctly un-American about a secret government blacklist, with no right of appeal or judicial review.”

Fast-forward 11 years later – it is now distinctly American….

Clive Robinson • August 20, 2015 2:17 PM

With regards “toddlers”, there was once an advert about them that used the old “Mission Impossible” them tune, but I can not remember for the life of me what the product was that the ad was pushing.

With regards 5secs and a toddler, I swear my son could teleport a hundred meters in the blink of an eye when he was that age, and that was the nicer of the heart attacks toddlers have given me.

I was “minding” a friends near two year old and she was sitting on the settee next to me watching a kidies program and I stood up to get the remote control of the coffee table and she dissapeared. The door was closed so I knew she must be in the room I looked around, quickly then slowly and could not spot her, and whilst not panicking my thoughts were… well I’ll let you guess. It was then that I noticed one of the cushions was out of place when I heard a giggle. She had slid down the back of the settee which was a sofa bed and was hidding in the gap… when her parents got back I told then about it and they laughed and said she often did it…

So for those who don’t yet have children and get asked to mind a friend or relatives little knee snapper, get some experiance first with older or younger ones than toddlers. Whilst they are not evil you will certainly get to think of them as “little devils” no matter how cute etc etc they might appear to be when their parents are around…

rgaff • August 20, 2015 2:19 PM

Besides joking about all babies being “little terrors”…

When your main premise is to PREVENT ALL CRIME AT ALL COSTS BEFORE IT HAPPENS… then it’s natural to go towards locking up as many innocent people as it takes, to make sure you get every possible criminal.. This does not make anyone free or safe, this makes everyone teetering on the brink of ruin at any moment, for anything or nothing. This is guilty until proven innocent, at its core. This is totalitarianism. And it’s unsafe.

Whereas a free and safe society requires that you must primarily MAKE SURE YOU NEVER LOCK UP THE INNOCENT even if that means you end up letting a few guilty get away with it as a result! This means you will never catch them all, it’s not mathematically possible. You just have to get enough that the frequency of crime is down. This is innocent until proven guilty, at its core. This is free and open society. This is safety.

Now re-read what I just said and replace every reference to “crime” with “terrorism”… it’s the same thing!

thevoid • August 20, 2015 3:11 PM

i didn’t find many sources for this, and some say the use of ‘toddler’ in place of ‘nursuries’ was too sensational, but… it apparently does apply to toddlers as well.

“Toddler ‘extremism’ to be tackled by new education secretary”
http://www.politics.co.uk/news/2014/08/08/toddler-extremism-to-be-tackled-by-new-education-secreatary

this one is a bit short on details, but interesting…

“Three-year-old child from London placed in government anti-extremism programme”
http://www.independent.co.uk/news/uk/home-news/threeyearold-child-from-london-placed-in-government-antiextremism-programme-10419346.html

some have likened the program to teachers reporting possible sexual abuse. the real problem is, what do people consider ‘extremist’? same as ‘suspicious’? ie something vague and subjective? i know i have a number of views that, while perfectly logical and provable–and nonviolent– get me considered an ‘extremist.’ and there’s more added to the list of thoughtcrimes every day…

tyr • August 20, 2015 3:45 PM

Somebody beat me with the Fart Gun episode. The real
reason children are a source of terror to governments
is they haven’t had their sense of humour beaten out
of them yet. This is the most atrocious form of dissent
and must be curbed at all costs if civilization is to
be saved from the depraved advocates of laughing at
government officials.

I watched my cousins 2 year old do the hundred yard
dash in what I swear was 2 seconds flat. I still
can’t believe it even after seeing it. You’d think
longer legs would work better.

HiTechHiTouch • August 20, 2015 4:31 PM

The legal idea of “prior restrain”, that is you have to wait for an offense to actually be committed, seems to apply only to (US) civil law these days?

Some 50 odd years ago, criminal law was given “intent” and “conspiracy” and “racketeering”, i.e. we know you’re about to…

Now evolution is well advanced to “somebody or something thinks your could”. Criminal (secret warrants, anti-terror, no-fly, airport detention) and civil (internet/cell phone data, anti-piracy, financial data correlation databases) are working with weak correlations from data overload, not to mention data quality, to decide who will not be permitted to do something.

Follow this on, and the next idea might be “preventive detention”. Remember the Japanese-Americains in WWII?

BTW, did anyone notice Warrantless airport laptop search dooms Iran arms sales prosecution where the US government threw in the towel after a judge ruled that the government unlawfully seized and searched the suspect’s computer at Los Angeles International Airport?

Slime Mold with Mustard • August 20, 2015 5:38 PM

Do we even know if the decision for inclusion is based on an algorithm or an “investigation” (which might be as casual as a review of records)? The former would involve the merging and cross-referencing of massive databases, then potentially flagging every US resident and visa applicant for human review. We know the US government both creates their own, and buys/leases commercial databases. The latter method would involve prompting a review anytime a name came up (for whatever reason) in an investigation. A compromise would be to score only names that already exist in, or are added to, law enforcement and Intelligence Community records.

What are our chances of learning the variables used? The determination is almost certainly made by scoring various factors; known memberships, associates, travel patterns, family, financial transactions, personal statements, and possibly communications. (Regarding the last factor, its also conceivable that the intercept programs are/were so closely held that their use in a widely distributed authority is considered too high a risk of disclosure). I might add “religion”. That would expose the program to considerable legal and political liability if discovered. Perhaps it’s disguised, i.e. the names Abdul and Fatima could have weight of themselves, as “justified” by experience.

Your speculation regarding the “investigation” versus algorithm and likely variables is appreciated.

No, I am not on the list, just curious.

Dirk Praet • August 20, 2015 7:55 PM

@ HiTechHiTouch

The legal idea of “prior restraint”, that is you have to wait for an offense to actually be committed, seems to apply only to (US) civil law these days?

Hear, hear. I believe this principle is also one of the reasons that Comey & co. are not coming up with a proposal of their own with regards to their “going dark” problem. Any type of “legal access” in the form of a backdoor or mandatory weakening of encryption would probably constitute a violation of the 1st Amendment on grounds of prior restraint. As in code being free speech. So what they actually need is the industry to come up with a voluntary solution of its own.

It’s like in the old myth that a vampire can only come into your house if you have invited him first.

vgor • August 20, 2015 9:11 PM

“There’s something distinctly un-American about a secret government blacklist, with no right of appeal or judicial review.”

Replace blacklist with “fair game” then there is no list at all. Algorithmically all is fair, subject without bias, only the maths count. As such there is no prejudice nor judicial review. The maths is what makes a game fair.

Michael And Ingrid Heroux • August 20, 2015 9:43 PM

Michael And Ingrid Heroux – michaelheroux1967@gmail.com – Text-604-360-2162

“When you have a secret process that can judge and penalize people without due process or oversight, this is the kind of thing that happens.”

That is a very correct assessment what you say there Bruce, that is exactly what’s going on with me, I never fly at all except when the RCMP forced me to fly across Canada one time, other than that one time I’ve never flown at all, but I bet if I tried to they would probably not let me fly.

[cut-and-paste spam deleted by moderator]

Coyne Tibbets • August 21, 2015 5:59 AM

I am not buying this.

I think the number one and two criteria, short of actual terrorism, is criticism of the government or failure to cooperate with a government agent.

From a Globe and Mail article:

In the weeks before an attack, terrorists tend to change address (one in five) or adopt a new religion (40 per cent of Islamic terrorists and many right-wing terrorists did so). And they start talking about violence: 82 per cent told others about their grievance; almost seven in 10 told friends or family that they “intended to hurt others.”

Now, time after time, people critical of government have found themselves suddenly on the list. Is the government really trying to sell that everyone critical of the government “changed address”, “adopted a new religion”, or started “talking about violence”, just as they started being critical of the government? Just after they refused to become an informer for the government?

But actually, there is one more reason given right there in that Globe and Mail paragraph: “Grievance.” If you have a grievance against the government, bam, no-fly list.

The Techdirt article on this subject has a graph showing the distribution of reasons for being on the list. That red wedge? I think that is our government-of-the-free using no-fly to as a form of political prisoner status.

As for the “highly sensitive national security information” concern of revealing their process, I suspect the government is afraid they would have their “sensitive” personal feelings bruised if they had to admit that 40% of the time their process was equivalent to political prison. Of course they don’t want to talk about the process.

Then, as to the so-called “redress inquiry” process: I don’t know that there are actual figures yet, but I’m betting the government decision to put a citizen on the no-fly list is upheld 99.9999999% of the time: A redress process without redress.

z • August 21, 2015 8:18 AM

@Chris M

Our Constitution is an interesting document. Originally, there was no Bill of Rights. It was essentially a “default deny” policy, where the government was assumed to have absolutely no power at all except for that which the Constitution granted. It was argued by some that a list of rights would be unnecessary if the government could not do anything not explicitly granted to it by the Constitution. For example, there would be no need to protect freedom of speech since the government was never given the power to regulate speech. It was also thought that a list of rights explicitly protected could mean that the government would act as if those are the only rights people have.

Others thought that the government would eventually use what power it had to take away rights anyway, thus necessitating a Bill of Rights. Thomas Jefferson argued in favor of this position. The first 10 amendments were added later, with the 9th being designed to deal with the concerns of the opposition: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

The ironic and disturbing thing is that both sides’ concerns have been realized. Not only does the government try to grab powers it was never granted (usually under the guise of interstate commerce), but it also attempts to curtail rights not explicitly protected by the Bill of Rights. If it wasn’t for states’ rights, things would be a lot worse and the federal government has been diligently trying to destroy those as well.

Rex Rollman • August 21, 2015 10:53 AM

@ Chris M

“I had the understanding that your constitution prevents sanctions without due process, no?”

The Constitution: void where prohibited by fear.

paul • August 21, 2015 11:00 AM

Since the interstate highway system is also vital to the nation’s security and economic wellbeing, it really follows that the same logic must apply to travel across state lines. We will need a facial recognition system tied to all toll booths (and installation of many more booths) to make sure that potentially dangerous people don’t travel by interstate highway.

Especially if they claim that they have grievances they want redressed.

JoeMan • August 22, 2015 8:29 AM

Bruce’s post:
“Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats.”

what’s “the Executive”? Some Artificial Intelligence running “predictive assessments” in a data center in Utah?

thevoid • August 22, 2015 9:31 AM

@JoeMan

more like the Executive Branch of government, which lacks intelligence,
artificial or otherwise.

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