I am participating in a working group to help evaluate the effectiveness and privacy implications of the TSA’s Secure Flight program. We’ve had one meeting so far, and it looks like it will be an interesting exercise.
For those who have not been following along, Secure Flight is the follow-on to CAPPS-I. (CAPPS stands for Computer Assisted Passenger Pre-Screening.) CAPPS-I has been in place since 1997, and is a simple system to match airplane passengers to a terrorist watch list. A follow-on system, CAPPS-II, was proposed last year. That complicated system would have given every traveler a risk score based on information in government and commercial databases. There was a huge public outcry over the invasiveness of the system, and it was cancelled over the summer. Secure Flight is the new follow-on system to CAPPS-I.
Many of us believe that Secure Flight is just CAPPS-II with a new name. I hope to learn whether or not that is true.
I hope to learn a lot of things about Secure Flight and airline passenger profiling in general, but I probably won’t be able to write about it. In order to be a member of this working group, I was required to apply for a U.S. government SECRET security clearance and sign an NDA, promising that I would not disclose something called “Sensitive Security Information.”
SSI is one of three new categories of secret information, all of I think have no reason to exist. There is already a classification scheme—CONFIDENTIAL, SECRET, TOP SECRET, etc.—and information should either fit into that scheme or be public. A new scheme is just confusing. The NDA we were supposed to sign was very general, and included such provisions as allowing the government to conduct warrantless searches of our residences. (Two federal unions have threatened to sue the government over several provisions in that NDA, which applies to many DHS employees. And just recently, the DHS backed down.)
After push-back by myself and several others, we were given a much less onerous NDA to sign.
I am not happy about the secrecy surrounding the working group. NDAs and classified briefings raise serious ethical issues for government oversight committees. My suspicion is that I will be wowed with secret, unverifiable assertions that I will either have to accept or (more likely) question, but not be able to discuss with others. In general, secret deliberations favor the interests of those who impose the rules. They really run against the spirit of the Federal Advisory Committee Act (FACA).
Moreover, I’m not sure why this working group is not in violation of FACA. FACA is a 1972 law intended to govern how the Executive branch uses groups of advisors outside the federal government. Among other rules, it requires that advisory committees announce their meetings, hold them in public, and take minutes that are available to the public. The DHS was given a specific exemption from FACA when it was established: the Secretary of Homeland Security has the authority to exempt any advisory committee from FACA; the only requirement is that the Secretary publish notice of the committee in the Federal Register. I looked, and have not seen any such announcement.
Because of the NDA and the failure to follow FACA, I will not be able to fully exercise my First Amendment rights. That means that the government can stop me from saying things that may be important for the public to know. For example, if I learn that the old CAPPS program failed to identify actual terrorists, or that a lot of people who were not terrorists were wrongfully pulled off planes and the government has tried to keep this quiet—I’m just making these up—I can’t tell you. The government could prosecute me under the NDA because they might claim these facts are SSI and the public would never know this information, because there would be no open meeting obligations as there are for FACA committees.
In other words, the secrecy of this committee could have a real impact on the public understanding of whether or not air passenger screening really works.
In any case, I hope I can help make Secure Flight an effective security tool. I hope I can help minimize the privacy invasions on the program if it continues, and help kill it if it is ineffective. I’m not optimistic, but I’m hopeful.
I’m not hopeful that you will ever learn the results of this working group. We’re preparing our report for the Aviation Security Advisory Committee, and I very much doubt that they will release the report to the public.
Story about unions objecting to the NDA