L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 241, October 5, 2003
Feast or Famine
In Re CAPPS II
Special to TLE
I write to express my opposition to the testing and possible implementation of the Computer Assisted Passenger Pre-Screening System (CAPPS II). As described in your department's Aug. 1, 2003 Federal Register notice, 68 Fed. Reg. 45,265, CAPPS II will violate the privacy and civil liberties of myself and every other air traveler and should be withdrawn. I fully expect that by submitting this comment I will be flagged as a "danger to flight safety" on the current so-called "No Fly List" and on CAPPS II once established.
Under the proposed rules, the Transportation Security Administration (TSA) will have the power to gather personal information about me from both government and commercial databases, and to use this information to "tag" me if it appears that I may pose a threat to those aboard a flight. Not only is this an unquestionable violation of my privacy, the quality and accuracy of the information in these databases is very much in doubt. TSA claims that commercial databases will have to meet a "high standard" to be used in the execution of the CAPPS II system - but whether or not that turns out to be the case, CAPPS II also uses government databases, which are notoriously unreliable.
It is also unclear whether the TSA will use sensitive financial or medical information in building passenger profiles. While the supplementary information section of the Privacy Act Notice about CAPPS II says that this type of information will not be used, there is no such claim in the Notice itself. If the final regulations will be drafted from the Notice, why aren't these important privacy protections included? There also appears to be no mechanism in place to correct bad data or eliminate false data, regardless of source. Even credit agencies allow that on pain of a Defamation of Character lawsuit, a correction mechanism not possible with a government agency hiding like cowards behind sovereign immunity.
Another problem is that the TSA leaves entirely unaddressed the issue of computer trespass and identity theft. Considering the "market value" of this type of information and the sophistication with which criminal intruders work, this is a grave oversight. Before the TSA begins to collect sensitive information, it must first provide the public with a strong assurance that the information is secure and cannot be compromised. This is something I believe is beyond the capabilities of anyone with a GS rating.
And what happens when the TSA makes the inevitable mistakes? Business travelers on their way to appointments and families on vacation will be unfairly subjected to detention, invasive searches and unwarranted background checks - but they will be in no position to do anything about this unjust treatment. Recourse for wrongfully targeted passengers is still almost non-existent, and the TSA has yet to propose any sensible solution for addressing the problem of such "false positives." Anyone who objects will likely be arrested and incarcerated by jumped-up security guards with new badges and larger, undeserved paychecks.
Finally, CAPPS II is already exhibiting "mission creep." The proposed rules expand CAPPS II beyond its originally stated purpose of identifying possible terrorists. For instance, TSA plans to share information gathered by CAPPS II about those who have outstanding arrest warrants for violent crimes with law enforcement, and is considering a similar arrangement to hand over illegal immigrants to the INS. The question is, what else will CAPPS II be used for? Given the potential for abuse of the information that is collected, this may be the most important question that we ask about CAPPS II. Potentially, CAPPS II is a de facto internal passport and visa system by which those who do not conform to certain political standards as defined by the current regime may be denied their 10th Amendment right to travel freely in the fine tradition of the former Soviet Union.
The right to travel is fundamental to a free society, and encroachments on that constitutional right - like requiring air travelers to provide personal information to the government in order to be allowed to fly - must be clearly justified. However, the TSA has presented no evidence that CAPPS II will protect me from terrorism. It is nothing more than a feel-good waste of effort to correct a problem that was largely the creation of the federal government in the first place. If the prevention of another 9/11 attack is truly your goal, I submit that allowing pilots to arm themselves, and allowing passengers with Concealed Carry Permits to board armed (with appropriate frangible ammunition) would do a lot more good than this CAPPS II boondoggle.
Further, CAPPS II violates my constitutional right to privacy. Any burden on that right must also be justified, but TSA has yet to show compelling evidence that giving up my privacy is necessary to protect against terrorism. Instead, CAPPS II would force all of us to sacrifice our privacy today, based on unsupported speculation that it will increase security tomorrow. Benjamin Franklin had a few words to say on that subject: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
For these reasons and others, the proposed rules regarding CAPPS II should be withdrawn.
Francis A. Ney, Jr