February 11, 1997
Vice President Albert Gore, Jr.
The White House
1600 Pennsylvanpia Ave, NW
Washington, DC 20500
Dear Mr. Vice President,
We are writing to you to express our views on the serious civil liberties issues raised by recent government activities in the name of airline security. These include recent orders issued by the Federal Aviation Administration, and also proposals recommended by the White House Commission on Aviation Safety and Security and the FAA Advisory Aviation Security Advisory Committee.
Many of these proposals were developed in the highly-charged atmosphere following the still-unsolved crash of TWA Flight 800 and reflect a misguided rationale that something had to be done, no matter how marginal in value or violative of individual rights.
We all feel strongly that air travel must be safe - nobody wants to feel that to set foot on an airplane or an airport is to take a substantial safety risk. However, basic civil liberties protected by the Constitution should not be sacrificed in the name of improving air safety, especially where the potential benefits are questionable. At the airport ticket counter, passengers check their luggage, not their constitutional rights.
One area of concern is a secret FAA order issued in August 1995 and apparently revised in October 1995. The FAA order purportedly requires airlines to demand government-issued photo identification from all passengers before they can board an airplane. It remains unclear whether a passenger must provide that identification and what discretion an airline has to allow, or refuse, any passenger to board if they refuse to provide identification or simply do not have any available.
Americans are not required to carry government-issued identification documents. Any requirement that passengers show identification raises substantial constitutional questions about violations of the rights to privacy, travel, and due process of law. The Supreme Court has consistently struck down laws that interfere with the constitutional right to travel. The Court has also overturned laws in a variety of circumstances that require an individual to provide identification in the absence of any specific suspicion that a crime has been committed. In addition, it is unclear that requiring passenger boarding an aircraft to identify him or herself actually makes the people with whom they travel any safer. A bomber with a fake ID is just as effective as a bomber with no ID.
We urge the FAA to withdraw its directive and to notify airlines that identification should not be requested for security reasons. At a minimum, the FAA should require airlines to post notices telling passengers that they cannot be denied boarding just because they fail or refuse to identify themselves.
Another major concern involves the proposed increased utilization of the practice of "profiling" passengers to determine whether they pose a security risk and should thus be searched. This would require the collection of personal information on passengers prior to their boarding a plane. Information that may be collected includes a picture or other biometric identifier, address, flying patterns with a particular airline, bill paying at a particular address, criminal records, and other information. This, and information gleaned from observing the persons with whom the passenger was traveling, would be fed into a computer data base that would be used to decide whether the passenger "fits the profile" and should be subjected to heightened security measures. Under this proposal, the checked luggage of people selected by the computer would be scanned by new sophisticated scanning devices.
The risks to privacy are enormous and run not only to those who "fit the profile." For this system to be useful, it must apply to every person who might take a flight, i.e., to everybody. A new government dossier on everyone would have to be created, computerized, and made accessible to airline personnel.
In addition, for the system to be useful, it would have to be linked to other data bases and constantly updated. Each time a person changes their address or takes another flight, or does anything related to the characteristics about them deemed significant by the profiling system, the government would track it. All of our experience with the creation and updating of such ever-changing data bases teaches us that the likelihood of inaccuracy at any given moment is high. The FBI, for instance, recognizes that data in its computer system of criminal records has an inaccuracy rate of 33 percent. Such inaccuracy would lead to both a breach of safety and to violations of the rights of innocent people. This proposal is a quick fix that won't fix anything.
The proposal also violates a central principle of the Code of Fair Information Practices and the Privacy Act (5 U.S.C § 552a): information given to the government for one purpose ought not be used for other purposes without the consent of the person to whom it pertains. The use of criminal records in such a data base, particularly where those records include arrests that do not result in convictions, is particularly troubling.
Profiling also frequently leads to discriminatory practices. Already, we have received numerous reports of discrimination against individuals and families with children who have been refused entry onto aircraft because their names appeared to be of Middle-Eastern origin. In the well publicized example of security guard Richard Jewel, reports indicated that the FBI profile led the police to unfairly target Mr. Jewel for the incident, even in the absence of other evidence. This incident vividly shows the limitations of basing a law enforcement decision on a profile.
We urge the FAA and airlines to discontinue the use of passenger profiling.
We also view with concern proposals to install in airports new cameras which can depict highly detailed images of individuals' bodies under their clothes. Existing scanners, the development of which was partially funded by the FAA, already show a revealing and invasive picture of a naked body in high detail and the technology is likely to improve. This is clearly a search under the Fourth Amendment and is far more intrusive than a standard metal screening device. Passengers should not be subject to an "electronic strip search" in order to board an aircraft. To expose travelers' anatomies to the general public or even to selected (not by the victim of the unreasonably intrusive search) strangers is extremely embarrassing and shocking to the conscience.
We urge the FAA to reject proposals to use body scanners capable of projecting an image of a person's naked body.
Much of the key decision-making surrounding these proposals has been shrouded by secrecy. The FAA has claimed that it is exempt from open government laws and has refused to release its directives on profiling and identification. Relevant meetings have been closed to the public or limited to participants who can afford to pay expensive fees.
We urge the FAA to publish its directives and open all further decision making open to public scrutiny.
In conclusion, we believe that these proposals raise grave constitutional issues and are likely to produce only minimally beneficial results to improve airline safety. We urge the FAA and the advisory commissions to focus their efforts on improving security in a balanced and rational manner that is open to public scrutiny and consistent with constitutional rights.
James Lucier, Jr., Director of Economic Research
Aki Namioka, President
Lori Fena, Executive Director
David Banisar, Staff Counsel
Judy Clarke, President
Kit Gage, Washington Representative
Audrie Krause, Executive Director
Simon Davies, Director General
Robert Ellis Smith, Publisher
Dr. Dale Bishop
Evan Hendricks, Chairman
Enver Masud, Executive Director