Air Travel Privacy

Latest News | Resources | Identification Schemes | Profiling | FOIA Documents | Other Documents | Analysis | Previous Files

The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment ... Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. "Our nation," wrote Chafee, "has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases."

-- Justice William O. Douglas, Kent v. Dulles (1958)

Post-September 11, several measures have been considered to improve aviation security. Some of these proposals, such as improved training for airport screeners, checking all bags for bombs, strengthening cockpit doors, and placing air marshals on flights, do not implicate privacy interests and are sound security measures. Others, however, present privacy and security risks to air travelers. These proposals concern efforts to identify passengers and schemes to distinguish the "good guys" from the "bad." EPIC will make available on this page aviation security and privacy related documents it obtains from the government under the freedom of information law to promote and inform the public debate over these new schemes.

In earlier responses to security threats the FAA issued a secret regulation that allowed airlines to demand photo identification and instituted a new profiling program called CAPPS (Computer Assisted Passenger Pre-screening System) based on travel data airlines routinely collected. See Previous Files. New proposals advocate using biometric credentials for "trusted travelers" and using extensive data mining of credit history, criminal records, and travel patterns to profile all airline passengers. NASA has even suggested developing "non-invasive neuro-electric sensors" or brain scans at the security gate to see if people are having suspicious thoughts.

The stated goal of these new proposals is to rely on technology to reduce the "hassle factor" in airports and to reduce security threats. The core idea is to focus security resources on suspicious travelers, while ensuring that most people are not inconvenienced by heightened security. Terrorists, however, have been known to go to great lengths to look like most people. Former Transportation Security Agency chief John Magaw refused to endorse a "trusted traveler" card, fearing that it would be the first thing a terrorist will try to obtain. New profiling and identification programs will convert airport security into all-purpose police stops where criminals, deadbeat dads, and others seeking to avoid law enforcement for non-aviation security related reasons face the risk of being arrested.

The basic structure of passenger profiling is to use an algorithm to determine indicators of characteristics or behavior patterns that are related to the occurrence of certain behavior. The CAPPS-II initiative will expand the range of databases searched for suspicious activity so that each airline passenger will be subjected to an extensive profiling. John Pointdexter's office in the Defense Department is considering developing a similar Total Information Awareness system. Each structural element of the CAPPS-II profiling system, however, raises a host of complex questions:

Algorithm: What logic will be used? What is the basis for developing the algorithm? What are acceptable false positive and false negative rates?

Indicators: What indicators are relevant? Are these indicators available? Who will collect and store the relevant indicators?

Related: How are the indicators related to particular kinds of behavior? Is that relationship reliable?

Behavior: Who determines what behavior should be targeted? What types of specific behavior will the system try to catch?

In addition there are several technical issues such as how reliable is the data used to make profiling decisions? What kind of data should be collected and how long should the data be retained? Who will have access to the data and for what purposes?

The policy issues also need to be addressed: what will be the rights of individuals to control their personally identifiable information? What recourse will be available for someone wrongly identified or denied a service? Will profiling based on deep data-mining stand up to charges of equal protection and due process violations? The new proposals directly implicate long standing constitutional protections under the fourth and first amendments, including the right to travel, and must be clearly understood and properly considered by the public.

Latest News

• Temporary Agreement Reached on Transfer of Passenger Data
  The United States and the European Union have established a temporary arrangement for the transfer of personal information on European travelers that will expire in July of 2007. An earlier agreement was annulled by the European Court of Justice. The new agreement gives the Europeans greater control over the disclosure of passenger data to the United States. However, it leaves unresolved whether the United States has adequate privacy protections to safeguard the private information of European consumers. For more information, see the EPIC pages on Air Travel Privacy and EU-US Airline Passenger Data Disclosure. (Oct. 6)
  
  
• US, Europeans Fail to Reach Accord on Passenger Data
  The European Union and the United States are in a "legal vacuum" three months after the European Court of Justice struck down the passenger name record deal that allowed the transfer of personal information on European travelers to the U.S. government. European airlines face lawsuits by European citizens for violating European privacy laws if the information is disclosed to the U.S. without a new agreement. European consumer organizations have called for strong safeguards for personal data. Officials say negotiations will continue. More information at EPIC pages on Air Travel Privacy and EU-US Airline Passenger Data Disclosure. (Oct. 3).
  
  
• European and US Consumer Groups Urge Privacy Safeguards for Air Travel Information. The Trans Atlantic Consumer Dialogue has written to Homeland Security Secretary Michael Chertoff and European Commissioner Franco Frattini recommending the establishment of legal protections for passenger information collected by the US government. The letter follows an earlier statement from TACD that identified numerous risks to consumers that would result from the disclosure of detailed personal information. The TACD letter responds to Secretary Chertoff's recent call for increased government snooping. EPIC has filed a Freedom of Information Act request with the Department of Homeland Security regarding the program and whether adequate privacy safeguards have been established. The European Court of Justice earlier held that there was no legal basis for the Homeland Security program. For more information, see EPIC's air travel privacy page. (Sept. 13)
  
  
• Senate Subcommittee Holds hearings on Airline Passenger Screening. On September 7, the Senate Subcommittee on Terrorism, Technology, and Homeland Security will hold a hearing on pre-screening international travelers who are flying into the United States. A Homeland Security program that acquired European passenger name records for pre-screening was opposed for its privacy violations by the European Parliament, and struck down by the European Court of Justice earlier this year. Homeland Security Secretary Chertoff has announced plans not only to revive the program, but also to expand certain aspects of it. For more information, see EPIC's Passenger Data page. (Sept. 5)
  
  
• DHS Seeks Expanded Access to Travelers' Data. The Department of Homeland Security recently proposed expanding a program that would transfer detailed airline passenger recordsbetween European airlines and the US government. In 2003, the Department secretly entered into an agreement with European governments to obtain personal information on European travelers to the United States. The European Parliament challenged the agreement and the European Court of Justice recently ruled that the agreement lacked a legal basis. Negotiators have until September 30 to come up with a program that complies with European privacy law. (Aug. 22)
  
  
• Registered Traveler Hits Turbulence. The Transportation Security Administration says security concerns have delayed the controversial air passenger prescreening program Registered Traveler, which was to be rolled out beginning Tuesday. EPIC has testified previously (pdf) and submitted comments (pdf) about the flawed program, warning that problems with watch list errors have not been resolved, that there are no legal safeguards to prevent misuse, and that "mission creep" is almost certain. For more information, see EPIC's Spotlight on Surveillance and Passenger Profiling pages. (Jun. 22)
  
  
• European Court Rejects Data Transfer to US. The European Court of Justice has just ruled that the 2004 airline passenger data transfer agreement (pdf) between the U.S. Department of Homeland Security and the European Union is to be voided after September 30, 2006. The Court held that the agreement was illegal because it exceeded the scope of the EU 1995 Directive on data protection, which excludes operations concerning public security, defense, state criminal law and state security. Since the framework for data transfer was dictated by public authorities, and amounted to processing operations concerning public security, the Court held that the Commission lacked legal competence under the Directive to address public and state security issues. Privacy International describes the holding as a "pyrrhic victory" because the Court ruled on the basis of legal authority, and did not address the privacy implications of the transfer of the personal data to the U.S. The European Data Protection Supervisor is concerned that the ruling has created a loophole because it is uncertain that the Directive protects data collected for commercial reasons but used for police matters. (May 30)
  
  
• EPIC Urges Privacy Safeguards for Traveler Database. In comments (pdf) to Customs and Border Protection, EPIC opposed the agency's plan to exempt a vast database from legal requirements that protect privacy and promote government accountability. The Global Enrollment System would include employment history and biometric data. Among many possible activities, the agency will use this system to determine which travelers are "low-risk" and eligible for the “Trusted Traveler” program. EPIC warned that the absence of effective redress procedures would leave many travelers improperly designated as "high-risk." For more information, see EPIC's Passenger Profiling page. (May 22)
  
  
• EPIC Joins Campaign Against Biometric Identification. Civil liberties organizations have sent a letter to the International Civil Aviation Organization (ICAO) regarding their plans to include biometric identifiers such as fingerprints and facial scans on all newly issued electronic passports. The letter, organized by Privacy International, warns this will lead to the first truly global database of biometric information. For more information, read the letter from the Campaign, see EPIC's biometrics page, and read a story by the BBC. (Mar. 30)
  
  
• EPIC Suit Uncovers Watchlist Errors. EPIC has uncovered agency documents through the Freedom of Information Act that raise important questions about how the Transportation Security Administration currently operates the "No-Fly" watchlist. The concerns surrounding the agency's administration of the list previews several potential problems with the proposed roll out of CAPPS-II, the Enhanced Computer Assisted Passenger Pre-screening System. For more information, see EPIC's analysis of the FOIA documents. (Apr. 1)
  
  
• Senators Want Answers on Air Profiling. The Senate Commerce Committee has unanimously agreed to an amendment (pdf) by Sen. Ron Wyden (D-OR) that would require the Transportation Security Administration to report to Congress on the privacy and civil liberties implications of the controversial CAPPS-II air passenger profiling system. See EPIC's Passenger Profiling page for more information. (Mar. 13)
  
  
• EPIC Comments on Air Travel Database. EPIC submitted comments on a Transportation Security Administration (TSA) proposal [PDF] to create a new database of Aviation Security Screening Records on all airline passengers. EPIC argued that the proposed system did not provide sufficient information for the public to contribute meaningfully to this rule-making procedure, and that the proposed system would infringe on the Constitutional right of association and travel. See TSA Docket for more information and public comments. (Feb. 24)
  
  
• EPIC Criticizes Gov't Rule on Citizen Travel. EPIC has filed comments [PDF] on the Immigration and Naturalization Service (INS)'s proposed rule to collect passenger manifest information on all international travelers, including American citizens and legal permanent residents. The comments argue that the proposed rule is legally deficient because the INS has not complied with the Privacy Act in creating this new "system of records." EPIC has asked the INS to reissue its notice and meet the requirements of the Privacy Act. The comments also note that, by collecting and sharing travel data about citizens, the INS is placing a burden on the right to travel and the rights of anonymous association. (Feb. 4, 2003)
  
  
• EPIC Files Suit for "No-Fly List" Information. Seeking information about aviation security watchlists, EPIC has filed a lawsuit [PDF] against the Transportation Security Administration (TSA) in federal court in Washington. The legislation creating TSA authorizes the agency to maintain such lists, which reportedly have been used to interfere with the travel of political activists. (Dec. 12, 2002)

Resources

• EPIC's Automated Targeting System, September 2007
• EPIC's presentation for the National Academy's seminar on Concealed Threat Detection, March 2005.
• Implementation of the Aviation and Transportation Security Act with a Focus on the 60-day Deadline for Screening and Checked Baggage House Transportation Committee, Subcommittee on Aviation, Jan. 23, 2002
• Audit Reports on Aviation Security Office of Inspector General, Department of Transportation
• White House Commission on Aviation Safety and Security web page.
• EPIC's National ID Page.
• EPIC's Face Recognition Page.
• EPIC's Terrorism Page: Information on pending efforts in Congress to increase wiretapping and gather personal information.
• EPIC's new page on Surveillance of European Air Travelers.

Identification Schemes

• Gilmore v. Ashcroft -- FAA ID Challenge
• Aviation Security Biometrics Working Group [see Steering Committee Analysis for detailed information on proposed biometric identification schemes]
• Smart Check-In Cuts Airport Lines Wired News, Feb. 5, 2001. [Trusted traveler schemes have been contemplated well before 9/11]
• Maximus Flysecure proposal

Profiling

• Trading Freedom for Security. The New American Magazine, May 5, 2003.
• EPIC's new Passenger Profiling page.
• Air Security Focusing on Flier Screening. Washington Post, September 4, 2002.
• Intricate Screening Of Fliers In Works. Washington Post, Feb. 1, 2002.
• Carnival Booth: An Algorithm for Defeating the Computer-Assisted Passenger Screening System. MIT/Harvard Law School Student paper.
• Electronic Record Systems and Individual Privacy. U.S. Congress Office of Technical Assessment OTA-CIT-296.
• House Transportation Hearing on Airline Passenger Profiling. Feb. 27, 2002.
• ACLU Passenger Profiling Complaint Form

Documents Obtained under the Freedom of Information Act (FOIA)

• EPIC Suit Uncovers Errors in TSA's Watchlist, April 2003.
• NASA Ames Research Center Northwest Airlines Briefing. December 10-11, 2001.

Other Documents

• Final Report of the White House Commission.
  
  
• Initial Report of the White House Commission (September 9, 1996).
  
  
• Executive Order 13015 creating the White House Commission on Aviation Safety and Security (August 22, 1996) (PDF version)
  
  
  • Initial Federal Register notice of public meeting of White House Commission.
    
    
  • Revised Federal Register notice announcing that part of the Commission's meeting will be closed to the public "in the interest of national security."
    
    
• 1994 statute authorizing FAA research into security matters (including "behavioral research") and exempting information relating to such research from disclosure under the FOIA.

Analysis

• Image of a person scanned using a new x-ray device from AS&E.
• National Academy of Sciences report "Airline Passenger Security Screening: New Technologies and Implementation Issues"
• Paper on the limitations of profiling, Roger Clark, Australia National University.
• ACLU testimony before White House Commission on "Civil Liberties Implications of Airport Security Measures" (September 5, 1996).
• Letter to Privacy Journal editor Robert Ellis Smith from the FAA denying Smith's request for a copy of the FAA Security Directive on identification of airline passengers.
• HotWired article "Fear of Flying" on proposals. (September 11, 1996).

Previous Files

• FAA Proposes Profiling Regulations. The Federal Aviation Administration published proposed regulations on April 19, 1999, governing "Security of Checked Baggage on Flights Within the United States." The draft rules detail the use of computer profiling techniques to identify suspicious passengers. Public comments can be filed until June 18, 1999.
  
  
• Airline Passenger Profiling Goes Into Effect. The Computer Assisted Passenger Screening System is scheduled to be phased in nationwide beginning on January 1. Under the system, passengers who "fit the profile" will be selected for heightened security measures, which can include a thorough search of their luggage, intrusive personal questioning, tagging of luggage with orange tape, and a physical escort from the check-in counter to the airport gate by security personnel. The ACLU is providing an online complaint form for passengers targeted by the profiling system.
  
  
• Microsoft Chief Architect Charles Simonyi tells what happens when you "fit the profile" (from Slate ).
  
  
• Proposed FAA rule for collecting personal information including name, address, Social Security Number, Date of birth and next of kin for every domestic passenger.
  
  
• General Account Office report, Aviation Safety and Security: Challenges to Implementing the Recommendations of the White House Commission on Aviation Safety and Security (Testimony, 03/05/97, GAO/T-RCED-97-90).
  
  
• The Gore Commission has released its final report recommending passenger profiling. A coalition of 17 groups has sent a letter to Gore opposing ID checks, profiling, new x-ray technologies and excessive secrecy by the FAA in making decisions.

Last Updated: March 14, 2008
Page URL: http://www.epic.org/privacy/airtravel/default.html