Airline "Risk Assessment": Defending the Right to Snoop

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The Department of Homeland Security's Automated Targeting System has become a key part of the nation's air security system. Rather than just checking a list of passenger names for those who might be suspected of terrorist activities, it applies a "risk assessment" to every airline passenger entering the U.S. by using more than two dozen criteria, including how the airline ticket was bought, contact phone numbers provided, and frequent flier information. ATS even wants to know your seat preference. The ATS data is fed to the National Targeting Center, a multi-agency center that crunches the data against criminal databases and watch lists. If your data raises too many concerns, or some questions can't be answered, you'll receive a "red flag" and be pulled aside for questioning by a Customs and Border Patrol agent.

But ATS, which was recently upgraded after a new agreement on international standards with European countries, has come under increased criticism for knowing too much, being too secret, and not allowing passengers any recourse to challenge their risk assessments. This week, the DHS extended the deadline for public comment on the ATS system; most of the complaints have attacked the system on privacy grounds. The Identity Project, a privacy-rights group, has alleged that the ATS data collection is illegal. It claims that "Congress has expressly forbidden the DHS from spending a penny on any system like this to assign risk scores to airline passengers, and that the Privacy Act forbids any Federal agency from collecting information about how we exercise rights protected by the First Amendment — like our right to travel — except as expressly directed by Congress."

The outcry has grown loud enough to bring out DHS officials for an aggressive counterattack. DHS Secretary Michael Chertoff, who weighed in with an op-ed article in the Washington Post this week, told TIME in an interview that the ATS program is an "essential" way to look for the connections that terrorists have used in the past before they struck. "The ATS system", Chertoff says, "allows us to see connections like terrorists have known to have in the past and analyze them before something happens." Chertoff asserts that if this kind of data mining had been in place before Sept. 11, federal authorities might have well known about the connections among the hijackers. Alleged 20th hijacker Zacarias Moussaoui, for example, used the same contact telephone number as some of the Sept. 11 hijackers. "The bottom line, from all I have seen, is that if we don't have this ability, we might as well blindfold our agents."

According to DHS, ATS was the primary means used to bar 565,417 people from entering the U.S last year; 493 of them were found to be inadmissible under "suspicion of terrorist or security grounds." And thousands were turned back because DHS couldn't quite be sure who they were. In fiscal year 2005, more than 84,000 individuals were apprehended at the ports of entry trying to cross the border with fraudulent claims of citizenship or documents. Unlike other parts of the nation's air security system, the ATS program is run not by the Transportation Security Administration — the organization that provides the 40,000 white-shirted screeners at the country's 400 largest airports but has been plagued by missteps and failures — but by the department of Customs and Border Protection.

Chertoff defends even aspects of the ATS data collection that might be deemed trivial and a needless invasion of privacy. In certain cases, for example, the U.S. can obtain the meal preferences of a passenger. Chertoff points out that such cases require special high-level approval from both the U.S. and international law enforcement authorities. The point, says Chertoff, is to use all the tools we have to act before the terrorist do. "If we sit back and just rely on a list of names, we will likely miss something. And we do not want to be in that position ever again."