Terror Profile System Defended; Advocacy Groups Ignorance Explained

Homeland Security head Michael Chertoff continues to defend a program that rates the terrorism score of every traveller leaving or entering the United States, saying Friday that the program not only complies with the law, it is demanded by law. The so-called
Automated Targeting System, announced in its full particulars only in early November, despite having been operational since before 9/11, has been decried as unlawful by members of Congress, business travel groups and civil liberties activists.

Civil liberties groups argue the program's operation without full notice violated the Privacy Act and further that the program violates a Congressional ban on risk-scoring algorithms that target people not on government watchlists. Homeland Security officials say they've talked about the program repeatedly and that the ban applies only to the development of domestic travel passenger screening system, first called CAPPS II and now known as Secure Flight. Those programs have repeatedly raised the ire of Congress and privacy groups for plans to rate travellers using commercial data and for secretly testing the system using data from airlines and data brokers.

Last week, the Homeland Security's press office sent me a list of 21 times it had publicly spoken about the targeting of international travelers, and Chertoff told National Journal reporter Shane Harris that since the U.S. had been pushing hard to get deep access to passenger records from the E.U., privacy and civil libertes groups should have known what was going on. I then asked why reporters and advocacy groups didn't connect the dots, so to speak.

Edward Hasbrouck, an expert on the intricacies of travel data and the law, wrote in to set me straight...

Hasbrouck thought my rebuke went a little too far, since he's been warning about such use of data and the compilation of travel dossiers for years. As for others, he writes that its a combination of two factors:

(1) Many privacy advocates are very narrowly focused on privacy and privacy laws, and don't notice developments that aren't flagged as e.g. "Privacy Act" notices. I think that's why all the rest of the commenters on the ATS Privacy Act ntoice overlooked the fact that it violated a provision of an appropriations bill – they confined their analysis within the 4 walls of the Privacy Act. I think I and the Identity Project noticed it becuase we are looking in broader civil liberties and human rights terms, not just privacy, as well as more technically at PNR's (Passenger Name Records – the comprehensive data records held in travel reservation systems).

(2) The DHS has made contradictory statement in different venues, whihc only people who move in both venues would notice. In a way, the Chertoff interview with the National Journal admits this implicitly, although he puts a different spin on the difference between what he says in speeches and what is said in formal regulatory filings. Regulatory filings are legally binding; speeches aren't. Politicians and bureaucrats lie, spin, and mis-characterize what they are doing all the time in speeches. So even if contradictions were noticed, observers were legally entitled to rely on the truth of the regulatory filings, rather than the speeches.

The Washington Post, which first brought attention to the program in November, had more Saturday on whether the program had really been disclosed.