Without their knowledge, millions of Americans and foreigners crossing U.S. borders in the past four years have been assigned scores generated by U.S. government computers rating the risk that the travelers are terrorists or criminals.
The travelers are not allowed to see or directly challenge these risk assessments, which the government intends to keep on file for 40 years.
Virtually every person entering and leaving the United States by air, sea or land is scored by the Homeland Security Department’s Automated Targeting System, or ATS. The scores are based on ATS’ analysis of their travel records and other data, including items such as where they are from, how they paid for tickets, their motor vehicle records, past one-way travel, seating preference and what kind of meal they ordered.
…to David Sobel, a lawyer at the Electronic Frontier Foundation, a group devoted to civil liberties in cyberspace: ”It’s probably the most invasive system the government has yet deployed in terms of the number of people affected.”
Government officials could not say whether ATS has apprehended any terrorists. …
The government notice says some or all of the ATS data about an individual may be shared with state, local and foreign governments for use in hiring decisions and in granting licenses, security clearances, contracts or other benefits. In some cases, the data may be shared with courts, Congress and even private contractors.
…A post-9/11 law vastly expanded the program, he said. It required airline and cruise companies to begin in 2002 sending the government electronic data in advance on all passengers and crew bound into or out of the country. All these names are put through ATS analysis, Ahern said. In addition, at land border crossings, agents enter license plates and the names of vehicle drivers and passengers, and Amtrak voluntarily supplies passenger data on its trains to and from Canada, he said.In the Federal Register, the department exempted ATS from many provisions of the Privacy Act designed to protect people from secret, possibly inaccurate government dossiers. As a result, it said travelers cannot learn whether the system has assessed them. Nor can they see the records ”for the purpose of contesting the content.”
…The Homeland Security privacy impact statement added that ”an individual might not be aware of the reason additional scrutiny is taking place, nor should he or she” because that might compromise the ATS’ methods.
Nevertheless, Ahern said any traveler who objected to additional searches or interviews could ask to speak to a supervisor to complain. Homeland Security’s privacy impact statement said that if asked, border agents would hand complaining passengers a one-page document that describes some, but not all, of the records that agents check and refers complaints to Custom and Border Protection’s Customer Satisfaction Unit.
Homeland Security’s statement said travelers can use this office to obtain corrections to the underlying data sources that the risk assessment is based on, but not to the risk assessment itself. The risk assessment changes automatically if the source data changes, the statement explained.
”I don’t buy that at all,” said Jim Malmberg, executive director of American Consumer Credit Education Support Services, a private credit education group. Malmberg said it has been hard for citizens, including members of Congress and even infants, to stop being misidentified as terrorists because their names match those on anti-terrorism watch lists. He noted that while the government plans to keep the risk assessments for 40 years, it doesn’t intend to keep all the underlying data they are based on for that long. [emphases added]
There’s something funny here. Not ha-ha funny, though. This is a very clear vision of DRM America: all travellers first are presumed to be criminals, and scored via a secret, proprietary method. In this vision the state, not the citizen, holds all of the rights: rights in terms of liberty, and in terms of access to information. The state gathers this information in order to decide when you – a citizen – can travel, and where; they then control access to the information – the “score” – and to the processes leading to the formulation of the score, and disseminate the information to those entities – other governmental agencies, private industry, but not you, citizen – which it deems ought to have the information.
There are many avenues for challenging these procedures – possible violations of the Fourth and Sixth Amendments, for starters, and the numerous statutes governing the duration that government agencies can retain information gathered on citizens which is not immediately relevant to criminal investigations – but the most troubling aspect of this program is its very existence. Somebody – many somebodies – thought this was a good idea. It’s possible that these were actions taken without sufficient thought given for their implications, but I feel the more likely explanation is that these actions and this program are perfectly consistent with the vision of the world and this country held by those who imagined and implemented them.
Just to be clear – that’s bad. It’s dangerous for its own sake – why create a police state unless you have intention of using it? – but also for the general attitude that it seeks to promote: that rights are not vested in the individual but in the state, which then grants its citizens “rights” on a contingent basis, to be revoked or renegotiated (by and for, the state) at any time which the state wishes.