The New DHS/TSA Traveler Redress Inquiry Program: Why the System, Though More Efficient, Still Does Not Accord Travelers Sufficient Due Process

By ANITA RAMASASTRY

Thursday, Feb. 15, 2007

For those who have been wrongfully detained or delayed at the airport, or when traveling to Canada or Mexico, relief may be in sight. Beginning February 20, the Department of Homeland Security (DHS) will launch the new DHS Traveler Redress Inquiry Program (DHS TRIP).

DHS TRIP is billed as "an easy to use, single point of inquiry for travel-related issues." The concept is to create a single office to deal with "watch list misidentification issues, situations where individuals believe they have faced screening problems at immigration points of entry, or have been unfairly or incorrectly delayed, denied boarding or identified for additional screening at our nation's transportation hubs."

DHS is wise to create a single place for travelers to register complaints about misidentification; that should make the process go more smoothly. However, DHS TRIP needs to be improved in a crucial way for it to be truly effective.

Under the current program, individuals will not have access to the specific records that the government has compiled on them. (The program is exempt from the federal Privacy Act, which otherwise would have mandated access.)

This must change - for unless individuals get this access, they often will not be able to clear their names. After all, how can travelers refute or rectify erroneous data in their files, if they don't even have the right to know what that data says?

Existing Traveler Redress Mechanisms (Prior to DHS TRIP Implementation)

Currently, when a passenger checks in for a flight, he may be labeled a threat if his name matches an entry on one of the federal-government-sponsored watch lists. Once there has been a match to the "no fly" list, for example, an airline must notify TSA and call a law enforcement official to question the passenger. The passenger may be denied boarding, or delayed while undergoing questioning. If a person is designated a "Selectee," then an "S" or special mark is printed on his boarding pass and he receives additional security screening.

What if a person is wrongly listed - or shares the same name as a listed individual, but is not that person? At first, there was no clear redress process in place. Yet there have been numerous stories about mistakes, and those mistakes have consequences: An April 2006 report by DHS's Privacy Office stated that "individuals who are mistakenly put on watch lists or who are misidentified as being on these lists can potentially face consequences ranging from inconvenience and delay to loss of liberty." Meanwhile, complaints filed by travelers confirm these problems: Individuals say they have experienced long delays, have been separated from members of their families, and have been given no explanation at all (or conflicting explanations) about what is going on.

At present, individuals seeking redress must contact the government agency that screened them for their travel. Airline passengers are to contact the TSA's Traveler Identity Verification Program; those stopped at the border are asked to contact Customs and Border Protection's Customer Satisfaction Unit. Complaints to the State Department are made to the director of Information Management Liaison.

Under TSA's current program - which resembles those of the other agencies, as well - erroneously "matched" individuals can fill out a Traveler Identity Verification form and submit to the agency copies of several government-issued documents to prove their identity -- such as a passport, driver's license or birth certificate. The TSA reports that it will use this information in deciding whether the person's name should be put on a "cleared" list. Unfortunately, according to the director of TSA's redress office, some airline passengers report that, even after they are cleared, they continue to have problems. In some instances, passengers report displaying an official letter which state that an individual has been delisted, only to find that the letter is disregarded.

Under the Current System, Mistakes Are Legion

There have been a number of high profile watch list mistakes. In January 2007, at a Senate hearing, Senator Ted Stevens complained that his wife, Catherine, is frequently mismatched to the watch-listed name "Cat Stevens." (Meanwhile, fans of singer Cat Stevens have expressed outrage that he has been listed.) Senators Ted Kennedy and Don Young have also been improperly flagged.

These aren't isolated instances, either - far from it. In 2005, Congress ordered the Government Accountability Office (GAO) to investigate the TSA screening programs. In September 2006, the GAO found that "about half of the tens of thousands of potential matches sent to the center between December 2003 and January 2006 for further research turned out to be misidentifications." (Emphasis added.)

In December 2005, the Director of the existing TSA Redress Office offered a more specific number: There have been over 30,000 people who have wrongly matched the list since September 11, 2001.

Will TRIP Change Things for Travelers Who Are Wrongly Listed? Probably Not.

Obviously, there is a tremendous problem here, and DHS TRIP is meant to address it. But will it do so effectively?

Unfortunately, the answer may well be no. That's because TRIP is not really different from current redress processes. Rather, it merely shifts the responsibility to one office, rather than three. And that may not help travelers who are erroneously "matched," for these errors aren't typically caused by poor interagency coordination. To the contrary, they are caused by errors in the underlying records.

These underlying records, unfortunately, are not subject to the 1974 Privacy Act. The Privacy Act requires that an individual be permitted to access personal information the government maintains about him or her, and to correct and amend that information if appropriate. It also requires that the relevant agency must ensure that the personal information it has collected is reliable for its intended use.

The lack of Privacy Act coverage, then, means that individuals will not be given an opportunity to inspect or correct inaccurate information used to compile watch lists. It also means that an agency such as the TSA is not required to do anything to determine if the information upon which it prohibits individuals from traveling is at all reliable.

Unless the Privacy Act Is Applied, Wrongful Matches Are Likely to Continue

If DHS truly wants TRIP to minimize the misidentification of innocent Americans, it should incorporate into TRIP a redress procedure that imposes full Privacy Act obligations on all government watch lists, including the no-fly and selectee lists.

(DHS plans to give individuals the right to access "information submitted by and collected from individuals or their representatives in the course of any redress procedure associated with [TRIP]." But so what? Individuals already have access to this data: They submitted it themselves!)

Unless we allow citizens the right to ensure that the system contains accurate, relevant, timely and complete records about them, we will only increase the probability that the watch lists will continue to be error-prone.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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