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A New ACLU Lawsuit Challenges "No Fly" and "Selectee" List Procedures:
Do These Government Watch Lists Violate Due Process?


Tuesday, Apr. 13, 2004

The federal Transportation Security Administration ("TSA"), in cooperation with the Department of Homeland Security, now maintains a set of passenger lists -- the "no fly" list and the "selectee" lists.

The consequences of being placed on either are severe -- and the American Civil Liberties Union ("ACLU") with co-counsel Summit Law Group -- is now challenging the constitutionality of the way each is administered.

Those on the lists suffer a variety of consequences -- including being perpetually prohibited from using curbside check in, or an electronic ticket kiosk; undergoing police interrogation; undergoing public police questioning in full view of fellow passengers; and being delayed for hours and placed on a different flight. Many are asked to surrender their identification to the TSA or the airlines. Many are made to feel they are not free to leave the airport.

Despite all these penalties, those on the lists have no right to know why they were listed, and no avenue to try to clear their names. In a suit recently filed in federal district court in Seattle, the ACLU is arguing that this violates the Fifth Amendment's right to "due process of law." And that is absolutely correct.

The issue should be of importance to every American. The "no fly" and selectee lists alone may affect literally thousands of innocent people.

Moreover, according to a recently issued General Accounting Office report, the "no fly" list is just one of 12 terrorist and criminal watch lists maintained by the federal government.

Finally, still on the drawing board is the Computer-Assisted Passenger Pre-Screening System (CAPPS II), which would search secret intelligence and law enforcement databases and rate every airline passenger according to their possible terrorist threat , as I discussed in a prior column. Like the other lists, CAPPS II, as currently envisioned, apparently fails to comply with due process.

Facts About the Plaintiffs, and About the "No Fly" Lists

The plaintiffs in the ACLU's suit -- seven law-abiding U.S. citizens -- include a member of the military, two lawyers, a retired Presbyterian minister and a college student. All say they are "innocent passengers."

Each seems to have been singled out either inexplicably, or simply because his or her name happen to resemble the name of a terrorism suspect. Yet none has been able to clear his or her name.

Several did obtain TSA letters stating they had been mistakenly identified . But despite the letters, they were still subject to delays and the stigma of enhanced searches, interrogations and detentions. The procedures by which the lists are created, moreover, remain mysterious.

The initial "no fly" list, created in 1990, was originally an FBI -- and later a Federal Aviation Administration (FAA) -- lists of individuals who have been "determined to pose a direct threat to U.S. civil aviation."

Then, in November 2001, the TSA assumed full responsibility for the lists. Currently, the Transportation Security Intelligence Service (TSIS) currently serves as the clearinghouse for the addition of names to the lists.

The lists are distributed to all airlines, with instructions to stop, or conduct extra searches of, people on the lists who are suspected of being threats. The lists also appear to have been shared widely among U.S. law enforcement agencies, internationally, and with the U.S. military.

How the "No Fly"/Selectee Lists Work

How do the lists work?

In October 2002, the Electronic Privacy Information Clearinghouse (EPIC ) submitted a Freedom of Information Act request to attempt to answer that very question. But the TSA failed to respond. Initially, the TSA had even denied that the lists existed. But that same month, it admitted it did.

So in December 2002, EPIC filed suit to compel disclosure of the information sought -- including TSA's criteria for putting people on the lists. It included complaints from passengers who felt they had been mistakenly placed on the lists.

EPIC finally got its documents, and here's what it learned: TSA administers two lists. One is a "no fly" list; those on the list are not allowed to fly. The other is a "selectee" list; those on the list must go through additional security measures.

Both lists are stored on air carriers' computer systems. When a customer requests a boarding pass, his or her name is compared to the two lists.

If the name is on the "no fly" list, the airline must call a law enforcement officer to detain and interview the passenger.

If it is on the "selectee" list, an "S" or special mark is printed on the passenger's boarding pass and the person receives enhanced screening at security.

According to the Oakland Airport, the government's "no fly" list is 88 pages long.

How a Would-Be Passenger Can End Up On the Lists

How does one get placed on a list? The documents EPIC received provide scant information, for the government insists on keeping that information secret.

The names are approved for inclusion on the basis of secret criteria. There is no indication in the government documents of any third party review by an independent to verify the lists' accuracy.

Nor is there reference in the documents as to any formal procedure by which individuals might clear their names -- other than calling their local FBI office. Moreover, in practice -- as complaint letters received by EPIC show -- passengers who try to get off the lists face a bureaucratic maze.

Documents received in an April 2003 ACLU lawsuit -- triggered by the December 2002 detention of two female anti-war protesters attempting to fly from San Francisco to Boston -- are no more encouraging. They reveal a confused process in which the government expressed uncertainty about how the lists should be shared. Once again, the documents failed to answer basic questions about how the lists are administered.

That process, moreover, affects a large number of innocent Americans. According to other ACLU reports, between September 11, 2001, and December 2002, at least 339 innocent air passengers were stopped and questioned by police at the San Francisco airport because their names were believed to match names on the "No Fly"/Selectee lists.

As the ACLU notes "If this airport is typical of other airports across the country, it is likely that thousands of passengers are being subjected to similar treatment because of the 'No Fly' lists." " (Emphasis added.)

Indeed, the TSA has also admitted that it receives 30 calls per day regarding false positives -- which comes out to well over a thousand calls a year. And that is just the people who complain to TSA -- as opposed to those who call the FBI, or don't complain at all.

The Mysterious Ombudsman Who Handles Complaints

Currently, the TSA has an ombudsman for handling passenger complaints. But not everyone is told about the Ombudsman. Some are told, instead, to contact the airlines or the FBI to be removed from the lists.

And not all those who write to the Ombudsman get a response; the TSA says the ombudsman will respond "only if circumstances warrant it." (One would think that anyone who says they've been wrongly accused would merit attention!)

Furthermore, those who do get a reply are asked to complete and return a Passenger Identify Verification Form (PIVF) and to submit copies of various identification documents. Even if they do, they won't necessarily get a response.

And even if they get a response, they won't get off the lists; they'll get a letter from the TSA that must be shown to the airlines in an effort to clarify the mistake. In some cases, the letter does no good -- would-be passengers are still subject to search and scrutiny.

Why the "No Fly"/Selectee Lists Violate the Fifth Amendment Right to Due Process

The ACLU's suit doesn't seek to abolish the "no fly" or selectee lists. It simply asks that they be administered according to clear, uniform, fair procedures that are as public as possible.

Why is the current situation a due process violation? First, detentions and imposed delays, even for questioning, deprive passengers of "liberty." Second, these detentions and delays are occurring without the process that is due.

What process should be given? First, passengers should know why they are on the lists -- for instance, they should know what person or organization reported them -- unless that interferes with national security. Some passengers on the "no fly"/selectee lists have expressed concern that they may have been singled out because of their ethnicity, religion, or political activity.

Second, there should be a fair, uniform process to be used by passengers who seek to get off the lists. The failures of the Ombudsman are obvious, and must be corrected.

Everyone must be told, through notices posted at airports, how to contact the relevant decisionmaker and what the procedures are for attempting to get removed from the list. There need to be standards set for removal. And everyone who complains must get a response -- a reasoned response.

In deciding what the response should be, the decisionmaker must adhere to rules, treating like cases alike. The decisionmaker must give would-be passengers as much information as possible, consistent with national security, as to how they were placed on the lists. Negative decisions should be subject to appeal.

Finally, when a person is cleared, he or she ought to be taken off the list -- not just given a letter to show to security! (Don't these letters -- which can doubtless be forged -- created their own security risk, anyway?)

The Danger of Watch Lists Without Due Process Safeguards

As the number of watch lists grows, and data is increasingly shared among watch lists, the potential for error increases. Imagine if you name were mistakenly placed on twelve different watch lists -- it would be all the more impossible to remove.

Our legal system has developed carefully structured checks and balances -- such as courts, administrative tribunals and processes for appeal -- for a reason. The reason is this: Without proper "process," individuals inevitably end up being branded and punished unfairly.

The lack of process provides a gap in which discrimination, and other abuses, can become exacerbated. Blacklisting has drastic consequences for people - and can cause lasting harm to a person. Yet until the government watch lists comply with due process, blacklists are what they will be.

The ACLU lawsuit is not seeking to dismantle the watch lists - just to ensure that they are properly administered. It would seem that this is something well within the TSA's ability to accomplish.

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.

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