A Stitch in Haste

Cause for celebration, courtesy of Wired:

A controversial and much-delayed proposed airline screening system may face further delays as the Transportation Security Administration restructures the system to better protect privacy and civil liberties, a senior homeland security official told Congress on Tuesday.

Adm. David Stone, acting administrator for the Transportation Security Administration, told members of the Senate Commerce Committee that the Computer Assisted Passenger Pre-Screening System II, known as CAPPS II, "is not going forward as previously briefed." He said the rethinking was in response to a February report critical of the program, as well as the TSA's own privacy concerns (SIC!!!).

"The Department of Homeland Security and the TSA feel very strongly we should not move forward on any program that in any way infringes on preserving our freedoms," Stone said. "That is first and foremost."
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The system, as originally proposed, would require all passengers to provide extra information when booking a ticket -- information that airlines don't currently ask for, like addresses, phone numbers and dates of birth. The system would then check that information against databases of criminals and terrorists and assign each passenger a green, yellow or red score, according to perceived risk.
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I'm all for safe flying, but my recent travels have convinced me that armored cockpit doors and basic, competent security screening at the airport should solve the flaws of September 11.

And as for data mining schemes like CAPPS II, even if I trusted the TSA (HA!), I will never ever trust the airlines with my personal data.

Background on CAPPS II here.

UPDATE AND SIDEBAR: More on the joys, or lack thereof, of air travel in this CSM piece. Fun stuff.

An update, via Wired, to my previous post on the monstrous -- and now dead -- CAPPS II project to screen air travelers:

The government will take over from the airlines responsibility for checking passenger names against terrorism watch lists and will begin testing its system within two months... The new system, called "Secure Flight," will verify domestic travelers' identities by comparing passenger information supplied to the airlines against government databases.
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Secure Flight replaces a much-maligned previous TSA proposal known as CAPPS II, for Computer-Assisted Passenger Prescreening System. Critics said it had insufficient privacy protections. Unlike CAPPS II, the new system will not seek to identify anyone other than known or suspected terrorists.

Sounds eminently reasonable. Another demonstration that security and privacy do not always have to be mutually exclusive.

You would think that with, you know, that whole "Internet" thingy and stuff, stories like this could not happen:

A British Airways jumbo jet flying to New York turned back after the US objected to one of its passengers.

Three hours after take-off on Wednesday the Boeing 747, with 239 passengers, turned around after a US request that the man should not be allowed to land.

They said his name matched one on a terrorism watch list. He was met by British police on landing and was questioned, but later released. BA said there was "no threat to the safety of the aircraft".

BA flight 175 landed back at Heathrow at 1730 GMT - more than six hours after take-off.

I'm sorry, but I just don't see how this is possible. Can't these checks be made before the dang plane takes off?

UDPATE: Related story --

A federal judge dismissed much of a lawsuit challenging the constitutionality of the government's no-fly list of terror suspects barred from boarding airliners.

Most claims brought by the American Civil Liberties Union, which sued on behalf of people with names identical to or similar to those on the list, must be taken directly to a federal appeals court, U.S. District Court Judge Thomas S. Zilly of Seattle said.
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Zilly ruled that the plaintiffs did not show "tangible harm to their personal or professional lives."

I'm more interested in the "tangible harm" to the over 200 innocent schmucks who lost over six hours of their "personal or professional lives" because the government can't check their lists before the plane actually takes off.

UPDATE: Tom G. Palmer weighs in.

Related Posts:
"Air Amtrak" Update: Will Holiday Chaos Spur Greater Scrutiny?
"Secure Flight" Revisited

I still don't get it:

U.S. authorities diverted an Air France airliner to Bangor, Maine on Thursday and detained a passenger whose name matched one on the U.S. no-fly list, as well as three members of his family, officials said.

Air France Flight 332 from Paris to Boston made the unscheduled stop at the United States' request when authorities found a "possible match" in the passenger manifest, the Transportation Security Administration said.
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TSA spokeswoman Yolanda Clark said the match of the names was detected while the plane was in the air. "It appears AirFrance missed the fact that a passenger was found to be a match on the no-fly list," she said.

As I blogged previously: I'm sorry, but I just don't see how this is possible. Can't these checks be made before the dang plane takes off?

And does all the economic harm caused the people on this plane -- the lost time, perhaps missed connections, etc. -- count for nothing?

It's utterly astounding how screwed up airline passenger screening still is. And it makes a statistician wonder: if they're making these Type I errors (i.e., false positives), might they also be prone to the far more serious Type II errors (i.e., false negatives)?

Sit back, relax and enjoy -- or not.

One of the basic principles of criminal procedure is that rank-and-file law enforcement officials should not be given too much discretion in selecting those against whom a law is to be applied. See, e.g., Delaware v. Prouse, 440 U.S. 648 (1979); accord, Indianapolis v. Edmond, 531 U.S. 32 (2000).

So, for example, if a highway patrolman sees three different vehicles speeding, then of course he has to pick only one to pull over -- we don't fault him for that. But a law that gave that same patrolman the authority to pull over any "suspicious vehicle" would likely be unconstitutional, because the officer is not competent to decide, without more guidance, what constitutes "suspicious."

Which is why this proposal gives me pause:

Now the TSA is aiming to become less obsessed with scissors and cigarette lighters and focusing more on passenger behavior.
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Select TSA employees will be trained to identify suspicious individuals who raise red flags by exhibiting unusual or anxious behavior, which can be as simple as changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a person's voice. Racial or ethnic factors are not a criterion for singling out people, TSA officials say. Those who are identified as suspicious will be examined more thoroughly...

The TSA can say that this program will be objective, race-neutral and closely supervised. But I'm skeptical. And there's also the (two-sided) question of effectiveness. On the one hand, the TSA notes that a trial version of the program has caught people with fake IDs and drugs. What it has not caught is a single terrorist. The TSA has also not disclosed how many innocent people were or will be delayed needlessly by this dubious program. How much earlier are we going to have to arrive at the airport now? The TSA should not be allowed to pretend that there is no marginal cost to this program.

On the other hand, given that everybody, every single person, goes through the real (i.e., technological) security screening, wouldn't it make more sense just to ensure that that program works properly? If you car needs repairs, the solution is to fix it, not to buy a new tricycle.

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One other hasty stitch:

The TSA will also consider deploying SPOT teams to other transportation systems like train and bus stations.

Because, of course, the possibility still exists that a terrorist may try to fly a bus into a skyscraper.

As we encounter so often in the War on Terror: see only the benefits (no matter how small), and ignore the costs (no matter how great).

Nope, wrong Kip:

Yesterday, while discussing the new rules a fellow Flyertalker suggested we write [TSA Director] "Kip Hawley is an Idiot" on the outside of our clear plastic quart bags. So I did just that.
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The TSA guy ...went strait [sic] to the TSA Supervisor on duty and boy did he come marching over to the checkpoint with fire in his eyes!

He grabbed the baggie as it came out of the X-ray and asked if it was mine. After responding yes, he pointed at my comment and demanded to know "What is this supposed to mean?" "It could me a lot of things, it happens to be an opinion [of] mine." "You can't write things like this" he said, "You mean my First Amendment right to freedom of speech doesn't apply here?" "Out there (pointing pass the id checkers) not while in here (pointing down) was his response."

I had avoided this story given that it is strictly anecdotal (I had seen it on Fark), but Boing-Boing and Wired have picked it up too, and one part of the alleged exchange caught my eye:

I then repeated that the TSA Supervisor stated my First Amendment rights didn't apply at the TSA check point and I asked if he (the deputy) agreed that was the case. He responded by saying "You can't yell fire in a crowed theater, there are limits to your rights."

Have you ever watched daytime small claims television shows and hear a litigant insist that "the police told me..." only to have the judge snap back, "The police are not lawyers!" Same principle. A little knowledge is a dangerous thing, and a little knowledge by a TSA agent is downright, um, explosive.

I too learned "You can't shout 'Fire!" in a crowded theater." Of course, I learned it in high school, not law school. What I learned in law school was that this famous First Amendment observation by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919), while good analogizing, is not good law. Schenk was revised (and I would argue improved) by Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) and the "imminent lawlessness" test: speech is protected unless --

such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, the burden is clearly on the TSA to demonstrate how "Kip Hawley is an Idiot" written on a plastic bag is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Of course, such a burden could never be met.

Another good test in such circumstances is that of Cohen v. California, 403 U.S. 15 (1971): If there is a First Amendment right (and there is) to wear, in a courthouse, a jacket with "Fuck the Draft!" on the back, then anything less disruptive must also be protected speech. Think anyone at the TSA can make the case that "Kip Hawley is an Idiot" is worse than "Fuck the Draft!"?

I don't know whether Kip Hawley is an idiot. But if this story is accurately portrayed, then the TSA agents were certainly idiots for pretending that they know First Amendment law when they don't. And I suppose that in turn might make Kip Hawley an idiot for not crafting better guidelines for their agents to follow.

MAJOR UPDATE: The TSA has issued a statement acknowledging that their agents have no authority to act upon messages on toiletry bags. Follow-up commentary from the flyer here.

Perhaps. Let's see whether you fit the profile. While traveling by air, did you / were you:

--Arrive late at night?

--Arrive early in the morning?

--One of first to deplane?

--One of last to deplane?

--Deplane in the middle?

--Use a one-way ticket?

--Use a round-trip ticket?

--Carry brand-new luggage?

--Carry a small gym bag?

--Travel alone?

--Travel with a companion?

--Act too nervous?

--Act too calm?

--Wear expensive clothing and gold jewelry?

--Wear black corduroys, white pullover shirt, loafers without socks?

--Wear dark slacks, work shirt, and hat?

--Wear brown leather aviator jacket, gold chain, hair down to shoulders?

--Wear loose-fitting sweatshirt and denim jacket?

--Walk rapidly through airport?

--Walk aimlessly through airport?

--Fly in to Washington National Airport on the LaGuardia Shuttle?

--Have a white handkerchief in your hand?

Each of those details was upheld, in federal court, as partial justification to detain someone at an airport. Each constituted, at least after the fact, part of "the profile."

Something to consider as you read news stories about how the government is now planning to deploy covert "Behavior Detection Officers" at airport security checkpoints: agents "specially trained" to detect facial expressions and other traits that — wait for it — "fit the profile."

Enjoy your flight.

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Via Dorf on Law (who got it from one of his readers, who got it from Justice Marshall, who got it from a lower court judge, who got it from a law review article).