Monday, July 2, 2007

The perils of a no-fly list

I expect that the privacy watchdogs are whistling in the dark. The US no doubt is urging us to have a no-fly list. The next step will be to harmonise the US and Canadian list but for now probably only a "made in Canada" version is doable. I append an article written several years ago showing a few of the problems of the US list, a list much larger than ours.

Privacy watchdogs tell Ottawa to suspend no-fly list
Last Updated: Thursday, June 28, 2007 | 6:16 PM ET
CBC News
Privacy commissioners and ombudsmen from across the country say they want the federal government to suspend its no-fly list until stronger privacy protection measures are put in place.

At a meeting in Fredericton on Thursday, the officials issued a joint resolution that says the list of people considered to be potential threats to security violates privacy rights of Canadians.

They find it "alarming" that Transport Canada, which administers the Passenger Protect program, could be sharing names on the list with other countries and has not provided assurances that that's not happening.

"We're concerned that we're going down a very slippery path, and that in the concern, the legitimate concern, to provide public security to travelling Canadians, that we're not putting in place the appropriate balance and safeguards for privacy and other fundamental rights," New Brunswick ombudsman Bernard Richard said.

The group of privacy watchdogs was unanimous in saying reforms to the program are urgently required to make sure Canadians are not incorrectly listed.

The no-fly list involves "the secretive use of personal information in a way that will profoundly impact privacy and other related human rights such as freedom of association and expression and the right to mobility," they said in the statement.

Short of suspending the program, the officials said, Parliament should at least ensure the list functions under strict ministerial scrutiny with regular public reports to Parliament until a comprehensive public parliamentary review is completed and reforms are made.

Transport Canada's Specified Persons list is provided to all airlines moving people into, out of or around Canada, and includes the name, birth date and gender of anyone the federal government deems a threat to aviation security.

Fewer than 1,000 names are believed to be on the list, unlike its U.S. counterpart, which has grown to contain more than 44,000. The list will not be available to the public, which means those on it will only find out when they try to board an airplane.

Those who believe their names have been mistakenly placed on the list can apply to have their cases reviewed by submitting a validated package containing a written application outlining the reasons for the appeal, along with two documents that support their identity, to Transport Canada's Office of Reconsideration.

A judicial review is the only avenue of appeal if a person is unsuccessful in having the government remove a name from the list.

The US article......./

U.S. 'No-Fly' List Curtails Liberties
Intended as a counterterrorism tool, it doesn't work and tramples on travelers' rights
By Bruce Schneier
August 25, 2004

Imagine a list of suspected terrorists so dangerous that we can't ever let them fly, yet so innocent that we can't arrest them - even under the draconian provisions of the Patriot Act.

This is the federal government's "no-fly" list. First circulated in the weeks after 9/11 as a counterterrorism tool, its details are shrouded in secrecy.

But, because the list is filled with inaccuracies and ambiguities, thousands of innocent, law-abiding Americans have been subjected to lengthy interrogations and invasive searches every time they fly, and sometimes forbidden to board airplanes.

It also has been a complete failure, and has not been responsible for a single terrorist arrest anywhere.

Instead, the list has snared Asif Iqbal, a Rochester businessman who shares a name with a suspected terrorist currently in custody in Guantanamo.

It's snared a 71-year-old retired English teacher. A man with a top-secret government clearance. A woman whose name is similar to that of an Australian man 20 years younger. Anyone with the name David Nelson is on the list. And recently it snared Sen. Ted Kennedy, who had the unfortunate luck to share a name with "T Kennedy," an alias once used by a person someone decided should be on the list.

There is no recourse for those on the list, and their stories quickly take on a Kafkaesque tone. People can be put on the list for any reason; no standards exist. There's no ability to review any evidence against you, or even confirm that you are actually on the list.

And, for most people, there's no way to get off the list or to "prove" once and for all that they're not whoever the list is really looking for. It took Kennedy three weeks to get his name off the list. People without his political pull have spent years futilely trying to clear their names.

There's something distinctly un-American about a secret government blacklist, with no right of appeal or judicial review. Even worse, there's evidence that it's being used as a political harassment tool: environmental activists, peace protesters, and anti-free-trade activists have all found themselves on the list.

But security is always a trade-off, and some might make the reasonable argument that these kinds of civil- liberty abuses are required if we are to successfully fight terrorism in our country. The problem is that the no-fly list doesn't protect us from terrorism.

It's not just that terrorists are not stupid enough to fly under recognized names. It's that the very problems with the list that make it such an affront to civil liberties also make it less effective as a counterterrorist tool.

Any watch list where it's easy to put names on and difficult to take names off will quickly fill with false positives. These false positives eventually overwhelm any real information on the list, and soon the list does no more than flag innocents - which is what we see happening today, and why the list hasn't resulted in any arrests.

A quick search through an Internet phone book shows 3,400 T Kennedys living in the United States. Adding "T Kennedy" to the no-fly list is irresponsible, especially since it was known to be an alias.

Even worse, this behavior suggests an easy terrorist tactic: Use common American names to refer to co-conspirators in your communications. This will make the list even less effective as a security tool, and more effective as a random harassment tool. There might be 3,400 T Kennedys in the United States, but there are 54,000 J. Browns.

Watch lists can be good security, but they need to be implemented properly. It should be harder than it currently is to add names to the list. It should be possible to add names to the list for short periods. It should be easy to take names off the list, and to add qualifiers to the list. There needs to be a legal appeals process for people on the list who want to clear their name. For a watch list to be a part of good security, there needs to be a notion of maintaining the list.

This isn't new, and this isn't hard. The police deal with this problem all the time, and they do it well. We do worse identifying a potential terrorist than the police do identifying crime suspects. Imagine if all the police did when having a witness identify a suspect is ask whether the names "sound about right"? No suspect picture book. No lineup.

In a country built on the principles of due process, the current no-fly list is an affront to our freedoms and liberties. And it's lousy security to boot.

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