In the 20 months since the attacks of September 11, 2001, the airport experience for many Americans has consisted of long and intrusive security lines, paperwork and procedural questions. For a select few, the experience also feels like being the victim of a crime.

After assuming responsibility for airport security, the new Transportation Security Administration, created shortly after 9/11, has spent a lot of time searching little old ladies for contraband and turned airport security checks into a breadline. Ordinary citizens, seasoned business travelers and top airline executives begged the agency to create a system that would ensure weapons-free flying while making law-abiding citizens not feel like criminal suspects. However, based on new legal documents and revelations from several privacy watchdog groups, the solution that TSA has come up with may be even worse.

The TSA is now testing a new generation of its Computer Assisted Passenger Pre-Screening System, or CAPPS II, in a 120-day pilot program with Delta Air Lines. It says the program will help create an airport security system that moves passengers through the airport with increased efficiency, fewer hassles for innocent Americans, and a laser focus on catching potential terrorists. Critics charge that CAPPS II will create a security regime so intrusive and unaccountable that even former Georgia Rep. Bob Barr, known for his right-wing and libertarian views, fears the program could morph into a version of the controversial Total Information Awareness (TIA) program currently being envisioned by the Department of Defense.

“I don’t like massive databases on law-abiding citizens,” says Barr, who is working as a consultant for the American Civil Liberties Union to reign in the CAPPS II program. “This has the potential to become just that. To become sort of a TIA Lite, as it were.”

What worries civil liberties advocates and libertarians alike are proposals offered by the TSA to create risk scores on airline passengers based on a series of undisclosed criteria. According to a notice in the Federal Register, the TSA has proposed an “Aviation Security Screening Records” database that would be exempt from several provisions of the 1974 Privacy Act based on national security concerns. In a separate notice, TSA has also proposed a plan to scour multiple government and commercial databases in search of passenger data that could screen out potential terrorists before they board commercial flights.

In late February, the TSA entered into a $12.8 million contract with Lockheed Martin to build a computer system that would link the reservations systems of all major airlines operating in the United States. Under the CAPPS II plan, airline passengers would be asked to provide their date of birth, which would be matched against the current name, address and telephone number (located in the “passenger name record”) of every person who buys a ticket for a commercial flight in the United States. Using those four elements, a central computer system would scour outside commercial and government databases and create a risk score based on an algorithm. “The only criteria is who would be more likely to be a foreign terrorist,” says Brian Turmail, spokesman for the TSA.

Each passenger would be given a color code based on their risk, with low-risk passengers designated green and allowed to go directly to the gate; medium-risk passengers would be designated yellow and given an extra bag check or handheld wand search for contraband. High-risk passengers would be designated red and detained by law enforcement, and could be interrogated and prevented from boarding their flight. TSA officials say that unless a passenger is considered a risk, their data will be erased as soon as they complete their flight, and that any information on high-risk passengers will be handed over to law enforcement authorities.

Officials at the American Civil Liberties Union and the Electronic Privacy Information Center say the disclosure of this data is a good first step, but argue that many more troubling questions remain. For example, there has been no public disclosure about which databases would be used, what criteria would be used to determine the scores passengers receive, at what point a traveler would be determined a risk, and what mechanism exists for travelers to remove themselves from the “high-risk” list. Official TSA announcement of the program, made in February, also contradicted earlier public testimony by TSA Chief Administrator James Loy that he would support a voluntary “trusted traveler” program, which would allow travelers to speed through airport security if they voluntarily agreed to undergo an extensive background check and carried a card with a digital fingerprint or other biometric identifier.

Opposition to the CAPPS II program has not been restricted to civil liberties groups. In March, Sen. Ron Wyden (D-Ore.), one of the leading opponents of the TIA program, introduced an amendment to a federal air cargo bill that would give Congress greater oversight over the CAPPS II program. The amendment would also require the TSA to answer many of the key questions raised by the ACLU and EPIC. He expresses concern that the proposed CAPPS II program “could be an open-ended fishing expedition” if not reigned in by Congress.

ACLU and EPIC representatives point to dozens of erroneous detentions and searches of innocent passengers that have occurred under the TSA’s current system of profiling passengers. The mistakes were uncovered only after a series of lawsuits filed under the Freedom of Information Act (FOIA) forced the TSA to reveal how the current CAPPS system has operated since the fall of 2001. “These [errors] are very, very significant,” says Mihir Kshirsagar, policy analyst at EPIC. “It really is profoundly disturbing that the government would operate a list like this in such a clearly shoddy manner.”

Documents released to EPIC reveal for the first time the history of the two lists, a “no-fly” list and a “selectee” list, the TSA has operated under the current CAPPS system. An October 2002 memo outlines changes made in the fall of 2001 regarding how the TSA manages the lists: “Since November 2001, the [Federal Aviation Administration]/TSA ‘watchlist’ has expanded almost daily as [intelligence community] agencies and the Office of Homeland Security continue to request the addition of individuals to the no-fly and selectee lists.”

The next section of the memo is redacted. It then continues: “Although TSA compiles the lists from requests made by IC agencies, the airline companies are responsible for implementing the security directives that support the two lists.”

After further redactions, the memo goes into the background of the watch list system, stating: “Between 1990 and September 11, 2001, the FAA issued several security directives (SDs) and companion emergency amendments (EAs) that identified persons whom air carriers could not transport, because they were determined to pose a direct threat to U.S. civil aviation. ... On September 11, 2001, only three of these SDs were in effect, with a total of [redacted] names of individuals that air carriers were prohibited from transporting.”

However, the existing federal screening had a major hole, according to security experts. There was no reason under the existing procedures to place many of the September 11 hijackers onto a watch list. Many had clean records, criminal and otherwise, since coming to the United States. The government also lacked the ability to wade through the millions of passengers who flew commercial flights to detect any unusual travel patterns. But the security system created after 9/11 requires airlines to wade through almost every passenger whose name sounds like a potential terrorist.

In more documents released by EPIC, a letter from an FBI agent to Undersecretary of Transportation John Magaw describes how a woman was denied access to flights at Newark International Airport in 2002 because her name was similar to an alias used by an Australian man who was on the TSA watch list. EPIC documents also show dozens of other complaints to congressional representatives, to the airlines or to the TSA.

More troubling than the erroneous detentions are a series of incidents that some critics consider the ultimate weapon of a rogue government agency. On multiple occasions in 2002, airport security officials detained or strip-searched government watchdogs, peace activists or other groups that could be considered opposed to Bush administration policy (see “Who’s on the No-Fly List?” December 23, 2002). On several occasions, the federal government previously denied the no-fly and selectee lists even existed. Further, when these individuals tried to get information from TSA and the FBI about why they were detained, they got little more than cursory apologies and no explanations regarding the criteria that had been used to put them on any watch list, or how they could be removed.

In April, the ACLU of Northern California filed suit on behalf of two peace activists who were detained in August 2002 while trying to board an American Trans Air flight from San Francisco to Boston. Jan Adams and Rebecca Gordon, who publish the anti-war publication War Times, were trying to visit relatives when a supervisor at the check-in counter told them they were listed on the no-fly list and local police were called. After questioning police, the women each had a large “S” printed on their boarding passes, which alerts gate agents that passengers should undergo a second extensive screening before boarding their flight.

After Adams and Gordon filed a FOIA request, the FBI wrote back saying it had “no records pertinent” to their detainment. The TSA never responded to requests the two made regarding the detainment. Meanwhile, after filing a similar request with the San Francisco Airport, the women’s attorney learned that between September 2001 and March 2003, 339 people were detained or searched at the airport due to the “no fly” and “selectee lists.”

Gordon says while the government has to take steps to protect airline passengers, there is no excuse for the methods being used. “This kind of harassment of people doesn’t make any of us safer,” she says.

Barbara Olshansky, assistant legal director of the Center for Constitutional Rights—a New York-based organization that has fought the Bush administration on detainees at Guantanamo Bay, secret immigration hearings and other post-9/11 issues—was strip-searched on three different occasions by National Guard troops in 2002. Olshansky claims that a TSA official, who didn’t disclose his name, admitted to her during a phone call that TSA keeps some political groups on the watch list at the request of law enforcement and security agencies. TSA spokesman Turmail, however, says the CAPPS system is not capable of screening out political groups, and can only screen individual passengers.

Olshansky says she filed a FOIA request in March, but does not expect to get a response. CCR earlier this year had threatened to file suit over the searches. And the ACLU has been gathering complaints from airline passengers, which may be developed into a class-action suit. In response to some of these criticisms, TSA has released a toll-free number that passengers can call to request their names be removed from the no-fly list.

TSA will have an uphill battle convincing privacy advocates that information gathered during passenger screenings will be protected from abuse by unauthorized persons or agencies. The agency will also have to prove to the Bush administration that the anticipated program will actually work: Mark Forman, associate director at the Office of Management and Budget, recently testified that TSA had so far failed to make a case that CAPPS II could actually screen out high-risk passengers. Only time and a convincing series of tests will determine whether CAPPS II goes forward.

David Jones is a Newark, New Jersey-based writer and a 2003 recipient of the George Washington Williams Fellowship for Journalists of Color, sponsored by the Independent Press Association.

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