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While congress has finally agreed on Sept. 11, 2001, intelligence-reform legislation after heated debate, the Department of Homeland Security has wasted little time implementing measures of its own. Secure Flight is a new passenger prescreening program intended to identify airline travelers who may pose a terror risk. The premise is simple: Airlines provide passenger data to the government that the government then screens against databases of known or suspected terrorists. Although Secure Flight appears to be a reasonable-and arguably necessary-initiative to prevent acts of terror, the program is largely untested. Given the nation’s experience with previous passenger prescreening systems, Secure Flight’s effectiveness will be measured not simply by its ability to prevent terror but in its ability to do so while protecting passenger privacy. Passenger prescreening is not a post-Sept. 11 phenomenon. In 1998, airlines began prescreening travelers using the Computer Assisted Passenger Prescreening System (CAPPS). In order to determine which travelers should undergo additional security screening, CAPPS checked a passenger’s itinerary against behavioral characteristics, such as buying a one-way ticket or paying for a ticket in cash. The inadequacies of the program-demonstrated when 19 terrorists easily boarded four airliners on the morning of Sept. 11-prompted calls for a more robust and sophisticated prescreening system. CAPPS II was the result. CAPPS II was a more sophisticated version of its predecessor. It combined information provided by the traveler with data gleaned from commercial sources and government intelligence databases to determine which passengers should receive additional scrutiny before boarding-or not be allowed to fly at all. Serious questions regarding civil liberties and passenger privacy ultimately led to the termination of CAPPS II and the introduction of Secure Flight earlier this year. The federal government is aware of the real and perceived concerns that any passenger prescreening and profiling system raises. As CAPPS II’s replacement, Secure Flight seeks to protect the nation without threatening civil liberties and passenger privacy. For example, prescreening under CAPPS II could identify passengers with outstanding arrest warrants; Secure Flight is limited to the identification of known or suspected terrorists. Balancing security, civil liberties Secure Flight, however, is not without its controversial aspects. Secure Flight depends on, among other things, a constant flow of passenger information from the airlines to the government. When fully operational, airlines will transmit passenger information, known as a passenger name record (PNR), to the government for prescreening before departure. Each traveler has a PNR, which can contain anything from a basic itinerary to a host of personal information. But as the airlines work cooperatively with the government to implement Secure Flight in the coming months, the case of JetBlue Airways Corp. provides a cautionary tale. According to a February 2004 report released by the Department of Homeland Security’s Privacy Office, in September 2002, JetBlue turned over PNRs to a contractor for the Department of Defense. The data were augmented with additional data, reportedly including income levels, and used for proof-of-concept testing of an unrelated Department of Defense project. When JetBlue’s actions became public in September 2003, the airline was forced to apologize and vowed to develop procedures to protect customer information better. At least one public interest group filed a complaint with the Federal Trade Commission alleging that the transfer of passenger information to the contractor violated JetBlue’s own privacy policy. Few disagree that prescreening, when done appropriately, is a necessary part of this nation’s multitiered approach to homeland security. Indeed, the final report of the 9/11 Commission states that the government “must have multiple layers of security in place to defeat the more plausible and dangerous forms of attack against public transportation.” It is, or it seems, axiomatic that passengers have a right to know how their personal information will be used. Yet given the pervasive and real concern about terrorism, and the competitive pressures on the airlines and contractors that implement screening systems, “mission creep” will be a constant. Despite pledges of openness and accountability, passenger prescreening systems will pose a continuing challenge to the definition of privacy and public expectations of what information must be exposed and how it should be used. This is an area where it will be impossible to draw a bright line; a dialectic between the government and privacy attorneys, fought out before an interested public, will make this a dynamic area of the law and public policy that sometimes raises more questions than answers. Steven Roberts, an NLJ columnist, is a homeland security consultant.

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