The Amazing Race 6, Episode 3

Voss (Norway) - Stockholm (Sweden) - Häggvik (Sweden) - Stockholm (Sweden)

OK, call me a whiner: Last week I complained that the current "reality" television contestants on The Amazing Race aren't like the real people who take trips around the world. This week my complaint is that the tasks the television producers are contriving for the racers aren't like the challenges faced by real travellers. Or, in both cases, less so than in previous seasons.

It's a race, of course, not a real vacation trip. This week's episode featured such characteristically Scandinavian and touristic activities (not) as a visit to a brand-name home furnishings store -- presumably a paid product placement in the TV show -- and searching for clues in a field of round bales of hay. But surprisingly, the most realistic factor in the ability of the contestants to complete this leg of the race was that they were trying to do too much in too little time, on too little sleep, and making too little allowance for their sleep-deprived state of mind.

At some level, too many Americans live our lives as though we are always in a race. Not getting enough sleep on a daily basis goes right along with not getting enough vacation on an annual basis. That's why Take back Your Time and Work to Live equate their campaigns for vacation rights and limits on the work year in the USA with previous campaigns for limits on the work day and the work week.

Not for nothing do labor unions advertise themselves on bumper stickers as, "The people who brought you the weekend". Laws and union contracts entitling workers in most Western European countries to 4-8 weeks per year of vacation have come about through the same sort of struggle that led to the 8-hour work day and the 40-hour work week -- movements whose 19th-century beginnings in Chicago (starting point for this season of "The Amazing Race") are commemorated, ironically, by the observance of May 1st, almost everywhere in the world except the USA and Canada, as "International Workers Day". North American workers will get the same vacation rights as Europeans only if the labor movement, individual workers, and voters make this an issue and a popular demand.

That's an important agenda for those of us who want more time to travel, without having to switch to working as a freelancer or temporary employee, or to make special arrangements for a sabbatical or leave of absence.

In the meantime, we often end up, like the cast (and, for that matter, the production crew) of "The Amazing Race", trying to cram too much into too little time, at the expense of getting enough rest and sleep on our travels.

As tonight's episode clearly showed, sleep deprivation can be a problem for travellers even 4 days after they arrived in Europe, when they have probably gotten over their jet lag.

Awakening between 2 and 3 a.m. in order to be ready to leave the "pit stop" in Norway between 2:47 and 4:05 (according to when they had arrived) may seem a schedule peculiar to a race, but it's actually common for travellers with morning flights who need to be at the airport, an hour's journey or longer from a downtown city hotel, three hours before a scheduled international departure.

The racers might have gotten some sleep sitting up on trains or busses. That can be much easier than on an airplane, since even ordinary trains in Europe or North America have seats more comfortable and spacious than what airlines call "business class". But they were on the go until they arrived at the store in Stockholm well after its 20:00 (8 p.m.) closing time, and they had to be back at the store at 10 a.m. when it opened.

They might have found hostels or cheap hotels nearby, as the racers have sometimes done in past seasons, but it appears that they probably spent the night in sleeping bags outside the store. Whatever they did, they didn't get a good night's sleep. The next morning, they were tired, impatient, and not thinking clearly -- so much so that they didn't even realize how impaired their abilities were. One of the most important skills in coping with sleep deprivation, jet lag, and the like is knowing when you need to slow down, do things more slowly, and if possible have your travelling companion double-check everything you do (and vice versa).

But instead of proceeding slowly and carefully with their tasks -- counting the items in the bargain bins, or assembling prefab furniture -- and checking each others' work as they went along, most of the race teams divided up the work, hurried, made mistakes, and had to keep repeating their assignments until they got them right.

Depending on what happens next, saving money by sleeping on the ground instead of in a bed, and thereby getting so tired that their tasks took them hours longer than if they were rested and alert, may prove a false economy for the racers in time lost to mistakes and misjudgments, as excessive penny-pinching usually is for even budget travellers.

People who realize that travel can be tiring often plan a "vacation within a vacation" at the end of a strenuous trip, before they come home. But it can be equally important to plan rest days at intervals through a longer trip, and/or before a stint of hard travelling if you won't be able to be well-rested when you leave home. Come on, 'fess up: How often have you gotten a good nights' sleep the night before a big trip, and how often have you been up late with last-minute packing?

The cast of "The Amazing Race" has usually stayed at luxury resorts during their 12-hour "pit stops". This week's pit stop was, for the first time, run by Hostelling International , offering dormitory berths for SEK200 per person per night (approximately USD30; Sweden is one of the few countries that could have joined the Euro zone but has chosen not to) on the historic sailing ship af Chapman moored in Stockholm harbor. We'll find out next week, if the TV producers choose to show us, whether the racers actually spent the night on the ship, or in a luxury hotel nearby.

It's odd to be writing about sleep deprivation in the middle of the night, while sleep deprived. Like the travellers I've been criticizing, I didn't really think clearly, before I started these columns on "The Amazing Race" in 2001, that providing morning-after commentary on a prime-time evening television show would mean weekly all-nighters writing my articles after watching the show. Time to go to bed!

Sweet dreams (of travel around the world).

Web site defaced. Blog frozen.

My Web site (and many others on the same server) were attacked and defaced by virtual vandals who substitutued their "tag" for the home pages. My blog was frozen until the server could be secured, rebuilt, and redeployed.

Thanks to those of you who visit often enought to have noticed the absence of new postings! A lot happened while I was offline. I'm back up and blogging again, but it will take at least a few days to catch up, especially with the next episode of The Amazing Race 6 tonight.

If you tried to subscribe to my newsletter in the last 10 days, and didn't receive a confirmation e-mail message, your request probably wasn't recorded. Please try again; I apologize for any inconvenience this may have caused.

The Amazing Race 6, Episode 2

Grindavik (Iceland) - Oslo (Norway) - Holmenkollen (Norway) - Brandbu (Norway) - Honefoss (Norway) - Voss (Norway)

Is this reality, or is this television?" That's the question everyone seems to be asking after the first couple of episodes of the new season of The Amazing Race , the reality-television show about Americans travelling around the world. At first glance, it seems like the least "realistic" cast in the six seasons of the race to date.

The appeal of the show has been that we could identify with the real travellers, not actors, who were selected for the cast. We imagine ourselves in their place, living out our travel fantasies (and, sometimes, travel nightmares).

That's harder this season when 6 of the 22 contestants are, in "real" life, actors or models, 2 more are professional performers and athletes (professional wrestlers), and yet another two are pro athletes (personal trainers). But are they unrepresentative of reality in more ways than this?

To answer that, we need to compare what we know about the racers with the actual characteristics of people from the USA who travel around the world. All we know about the racers is what CBS-TV has chosen to tell us, since they aren't allowed to talk to me or any other reporters until after they are eliminated from the televised race. But it's almost equally hard to get precise statistics on this type of travel and the people who do it, despite its growing popularity.

In the USA, there's relatively little academic research on travel and tourism, and almost none on travel as anything other than an "industry". Elsewhere, the social (not just economic) phenomenon of travel is getting more attention from anthropologists and sociologists. If you're curious, the resource guide in The Practical Nomad: How to Travel Around the World includes some of these references in the section on, "The Ecology of Travel and Tourism", pages 510-514 in the latest (3rd) edition.

In Australia, by comparison, the government helps fund tourism research from its budget for economic development and tourism promotion, and has targeted backpackers as one of the most lucrative categories of international visitors. On average, people who stay in hostels stay so much longer in the country that they spend more money per person than tourists who stay in luxury resorts or who take cruises or package tours. The result is some of the best work in this genre, such as Klaus Westerhausen's Beyond the Beach: An Ethnography of Modern Travellers in Asia .

But Westerhausen, like most other observers, conflates the longest-term with the lowest-budget travellers. And he pays little attention to the relatively few Americans in his sample. There's nothing in print or online that gives a realistic picture of the demographics of the "typical" American who takes a trip around the world.

But I can draw some comparisons from what I've found in my research for my books and for my job at Airtreks.com . The most important difference between the reality and the assumptions most people make -- including, apparently, the casting directors for "The Amazing Race" -- is how much more diverse real American around-the-world travellers are than the people who have been cast as travellers for this season of "reality" television.

The median age of this season's travel racers is between 29 and 30 years old, and the mean between 33 and 34. Those are only slightly younger than the averages for Airtreks.com customers. (Typical long-term travellers from the USA are a bit older than those from other parts of the world, probably because the lack of government support for higher education means that people in the USA are still paying off their student loans at ages when people leaving school or college in other countries can be off and travelling, in part as a way to complete a well-rounded global education.) But while this season's cast, like each of the previous ones, includes a couple of token senior citizens, middle-aged people and those in long-term romantic and life partnerships are otherwise under-represented: only 2 of the 22 contestants are between 40 and 65, and only 3 between 35 and 65.

That's not real: middle-aged, mid-career people, mostly in established couples but also some singles, represent a much larger, and growing, proportion of actual long-term travellers. That's a function of the growth of "contingent" work arrangements (freelancing, contracting, etc.) and the decline in job continuity (making job changes and checkered resumes the norm rather than the exception), as well as growing openness to unpaid leaves and sabbaticals (even with employers without formal policies for them) and the growing recognition of the lifelong value of international experience as a career asset. More and more parents are taking young children with them around the world, even taking them out of school to give them the gift of international experience and education early in life.

The cast of The Amazing Race 6 also mirrors the equally false, equally common assumption that only people from the more urban and "cosmopolitan" parts of the country would think of such a trip: 12 of 22 contestants are from greater Los Angeles or New York City. Those may be the largest television markets in the USA, but people from those places are far from a majority of long-term international travellers from the USA, as measured by Department of Commerce survey data I've had analyzed for Airtreks.com.

After more than a dozen years selling around-the-world airline tickets, working with and giving seminars for around-the-world travellers, and researching my books about around-the-world travel, I'm no longer surprised by almost any sort of person, from almost anywhere, taking such a trip. If you think that someone like you couldn't get the time or the money for a trip around the world, you're wrong. I've seen it all, even from people in the most constraining- seeming careers and jobs and the least likely-seeming places.

That shouldn't really be a surprise. The dream of a trip around the world may seem "exotic" and out of reach, but it's neither, and it isn't limited to young people and retirees, to people in big cities, or to people on the coasts. In a poll last month, two thirds of the readers of National Geographic Traveller -- not exactly a backpacker magazine -- said their top travel fantasy was a trip around the world. More and more people from all over the country are finding ways to make it real. If you make it a priority, you can too.

Outside the USA, the question everyone watching "The Amazing Race" is asking -- and the one that dominates my e-mail and the comments in my blog -- is, "Why do the producers of "The Amazing Race" have this, "No foreigners need apply", rule? But that's another story. I don't produce the show, and I don't make the rules. As radio newscaster and commentator Scoop Nisker always says, "If you don't like the news, then go out and make some of your own." In this case, what I'd say is, "If you don't like the television show, or they won't let you on, then go out and take your own trip."

Bon voyage!

Who will really run the ".travel" domain?

A press release today announces a sale option for .travel top level Internet domain applicant Tralliance Corp., contingent on "conditions being met, including final approval [for Tralliance] to be the registry of the .travel top-level domain from ICANN".

The news release reveals that throughout its application to ICANN for the creation and delegation of policy-making authority over a new top-level Internet domain for travel, Tralliance actually had a secret agreement -- never disclosed in any of the public documents related to the ICANN application, but critical to evaluating Tralliance's claims about itself, who and what interests it represents, and what policies it will follow -- regarding an option for sale of the company to TheGlobe.com if the ".travel" application is approved:

The agreement between the two companies was originally entered into on February 25, 2003 and has since been amended. The Securities and Exchange Commission granted theglobe.com confidentiality treatment with respect to full disclosure of the details of the Agreement pursuant to Rule 406 under the Securities Act of 1933, as amended.

Trallaince itself made its application primarily as a front for the airline trade association IATA, whose original .travel application had been passed over by ICANN. Tralliance represented itself to ICANN and the public as having a particular relationship to travel and the travel industry, which has been questioned by myself and others, but which The Globe.com certainly doesn't have.

More suspiciously, the move comes just after the completion of the preliminary (secret) review by ICANN's consultants of Tralliance's application, and the ICANN board's (closed seesion) decision to authorize further negotiations toward an agreement for Tralliance sponsorship of .travel. The obvious inference is that Tralliance and TheGlobe.com feared that revealing their agreement would have reduced the chances for approval of Tralliance's application for ".travel".

If ICANN were doing their job, they would require a fresh review of Tralliance's application. But I'm not holding my breath for that to happen. The fix is still in, and eventually, somehow, ICANN's insider clique will find a way to fulfill its secret handshake deal with its cronies to create and hand over a ".travel" domain to IATA or someone representing its interests.

[Update, 19 November 2004: Lots of discussion of this topic at ICANNWatch in response to my posting there.]

The Amazing Race 6, Episode 1

Chicago, IL (USA) - Reykjavik (Iceland) - Hvolsvollur (Iceland) - Vatnajokoll Glacier (Iceland) - Breidarmerkur Lagoon (Iceland) - Grindavik (Iceland)

From the start, this first episode of The Amazing Race 6 was a bit more complicated a production than usual -- both for the television show and for my column.

For the television producers, the problem was a corollary of the success of "The Amazing Race": the more people are aware of the show, the more likely the racers and and the crew accompanying them are to be recognized, as they were by the person who took the photos I posted last season.

This season, after successive Emmy awards for best reality-TV show in 2003 and 2004, and record viewership that's finally moved the program into the top 20 weekly programs in ratings in the USA, the crowd of racers and film crew were spotted running through the Loop in Chicago from the starting line on the lakefront to catch a train to O'Hare Airport.

Betraying a Southern Californian's ignorance of places with multiple rail systems and stations -- particularly problematic in Chicago, still the rail hub of the USA -- one racer asks a passer-by on the street, "Which way to the train station?" The only possible response in Chicago, although it wasn't shown in the broadcast, is, "Which train station?"

Confusingly, the Blue Line "El" ("Elevated") from the "Loop" to O'Hare runs in a north-south subway at that point, despite the names, and not on the elevated loop. Midway Airport, one of my favorite airports since I first lived on the South Side of Chicago as a college student 25 years ago, and now the largest low-fare airline hub in the USA, would probably have been more convenient, but wasn't allowed by the producers, since going to Midway would have meant flying on one of the shows' sponsoring airlines' cheaper competitors.

Things didn't go any better for the producers on arrival in Iceland, where once again they were recognized almost immediately.

Thanks to my helpful colleague Amy at Airtreks.com (who worked at the Blue Lagoon when she lived in Iceland) and the kind translation of her husband Högni (who is from Iceland, although they met while they both were working on a cruise ship in the tropics on the opposite side of the world), I got a lot of details about this episode from Icelandic newspapers, television, and Web sites two months ago.

Reporters for local newspapers "rushed to the scene" when they got word of the commotion occasioned by the arrival of the race at the first pit stop, the Blue Lagoon baths and spa resort in Grindavik on the outflow lagoon of the geothermal power plant that's visible steaming in the background of some of the scenes in tonight's television episode.

Now, after seeing how much driving back and forth in opposite directions on the same roads the racers did (even those who didn't get lost and do even more backtracking, as several did) it's understandable why even the local news reporters found it difficult accurately to reconstruct the route of the race.

According to local news reports -- published and broadcast while the race was still on "the ice cube", as locals call the island -- the journalists were initially unsure what was going on. They figured it out pretty quickly, though, once they put their observations together with reports of the teams' arrival in Reykjavik.

The hotel at the Blue Lagoon is too small to accommodate the entire cast and crew, so most of the production staff spent the night in a fleet of trailers parked in the lava field near the finish line for the first leg of the race. At least one reporter hiked into the lava field and watched the filming of post-race interviews with the eliminated team (Joe and Avi) before being "escorted out".
Another photographer hid in the lava field and got pictures of the teams (although not nearly as recognizable as those I published last season) as they drove off the next morning. Others took pictures of the "Amazing Race" video crew as they in turn were filming the racers at Leif Eriksson (Keflavik) Airport.

People who had been hired locally to work on the race said that they (as well as, presumably, the people from the tourist promotion office who helped arrange to bring the race to Iceland) all had to sign 3-year secrecy agreements. But journalists sought out anyone who had seen or spoken with the racers and who wasn't under a non-disclosure agreement. The Seljalandsfoss waterfall in Hvolsvollur, for example, was identified as one of the race destinations by someone in a gas station where one of the teams asked for directions. Journalists didn't figure out where the racers spent the previous night only because they had been at a camp truly "on the ice" on the Vatnajokoll Glacier near Hofn -- remote even by the standards of a sparsely-populated country like Iceland.

Nothing like this -- with the local people who encountered the racers having being tipped off to what was happening, and production crew being on the other side of the news cameras -- had happened in the previous five seasons of the race.

If there's a lesson in this for real-world travellers, it's that privacy and anonymity can be at least as difficult to find in a "remote" and unpopulated place with lots of open space -- where there are few people, everybody knows everybody, and outsiders are instantly conspicuous -- than in a big city. Sometimes the best place to "get away from it all", and not to be recognized as a tourist, is a giant cosmopolitan metropolis, even a crowded one.

My own problems tonight relate to being in Hollywood for the annual PhoCusWright conference of Internet travel and travel technology executives. Since I'm by myself, and in conference sessions all day, I'm staying at an inexpensive motel a couple of blocks from the conference hotel. I don't need a fancy room, just a television and an Internet connection. Not too much to ask for, right?

My room had a television, but an hour before the start of "The Amazing Race" I discovered that because of a wiring problem it would get every channel except KCBS. Fortunately, this is Hollywood, where the hotel desk clerk understood, "I need to watch this particular TV show for my job," as a valid reason for an immediate room change.

Then I found that the advertised high-speed Internet service in the motel was inexplicably not working. Since I'm not staying over a Saturday night, I'd bought my airline tickets and prepaid for the hotel as part of a "package" offered by an Internet travel agency. Normally I'd make reservations directly with a hotel, or haggle with them in person at the front desk if I didn't have reservations, but in this case it was worth paying for the hotel through a packager to get dramatically cheaper airline tickets.

Travel industry people here at PhoCusWright refer to these offerings as "vacation packages", but they and the airlines' pricing managers who authorize the airfares included in these packages are deluding themselves: Since they offer deep-discount airfares on high-fare airlines without a Saturday-night stay requirement, they are much more useful for business than leisure travellers. But since the description of the non-working hotel Internet service came from the hotel, not from the packager from whom I made the purchase and with whom I have a contract, I have no recourse with either.

I've talked with travel packagers such as Michelle Peluso, founder of Site59.com (which has a particularly consumer-hostile disclaimer of responsibility in their terms and conditions -- no one who actually read and understood it would buy from their Web site) and now president of Travelocity.com, who claim that this distinction doesn't matter. But in cases like this it obviously does. I've also talked with people at PhoCusWright who claim to have figured out ways (to be deployed "real soon now") to provide accurate descriptions of these details on third-party travel Web sites. I'll believe it when I see it.

When you rely on third-party information, you take the risk, as I knew I was doing but many consumers don't realize. That's the tradeoff for sometimes (certainly not always) getting a better price. That's fine, if clearly disclosed, but it rarely is, and almost nobody reads contracts no matter how many times I and other consumer advocates tell people, "If you don't want to have problems after you've bought things, read all the fine print before you pay, and know with whom you are entering into a contract."

Anyway, I ended up walking down the street to the conference hotel, where I confused and alarmed the guards by walking in off the street (walking? in Los Angeles?) well after midnight and sitting down to work on my Psion computer on the hotel's wireless Internet connection -- at the closed bar in the empty lobby. Fortunately, they didn't kick me out, although they were clearly very suspicious and watched me closely.

It's still early to be making predictions about the race, although some of the previous winners and contestants (including last season's winners, Kim and Chip), didn't hesitate to do so when they were interviewed on KCBS after the broadcast of the first leg. Nonetheless, I'll be talking more next week about this season's travel racers. In the meantime, you can talk about the race yourself, and make your own predictions, in the "Amazing Race" message boards and game at IndependentTraveler.com , where my columns are also being featured this season.

TSA orders USA airlines to turn over June 2004 reservations

The USA Transportation Security Administration (TSA) today issued an order to all airlines based in the USA to turn over to the TSA, by 23 November 2004, passenger name records (PNR's) including data on flights in June 2004 for testing of the TSA's Secure Flight airline passenger identification, surveillance, and "screening" system.

I don't yet know if the GAO has completed its report on "Secure Flight" testing. If it hasn't, today's TSA order is clearly illegal, since the GAO report is required before the TSA can test any passenger identification system using commercial databases such as PNR's. Today's TSA notice mentions the GAO reporting requirment, but doesn't make clear whether it has yet been satisfied.

The TSA's Notice of Final Order for Secure Flight Test Phase and Response to Public Comments was docketed today; TSA spokesperson Jennifer Peppin told me it will be published Monday in the Federal Register . Unlike the TSA's purported "analysis" of the last round of comments on the CAPPS-II proposal that preceded "Secure Flight", the TSA at least acknowledges in today's filing most of the arguments I and more than 500 others raised in our comments on the proposal (almost all of which, the TSA admits, opposed it) .

But the TSA's responses to its critics are wholly inadequate and largely conclusionary, frighteningly dismissive of fundamental rights and concerns, and indicative of continued profound ignorance of the actual contents of the data being demanded.

For example:

• The TSA continues to quote selectively from the report of the 9/11 Commission, ignoring its recommendations (pointed out to the TSA by myself and other commenters) that the burden of justifying all its proposals be on the government, and that they be subject to independent civil liberties and oversight authority -- neither of which would be the case for the Secure Flight tests, as epitomized by the fact that the system would be managed directly by the TSA's supposed "privacy" [invasion?]office. Who will watch the watchers? They will watch themselves, apparently.
  
  
• The TSA claims that passengers can be considered to have "consented" to this after-the-fact use of reservation data about them because "the existence of ... prescreening measures has been public knowledge for many years". But the current tests involve post-screening, not pre-screening. And in June-July 2003, when reservations for June 2004 flights began to be made, the TSA was still officially refusing to confirm or deny even the existence of any such measures. Even today the TSA continues vigorously to contest disclosure of anything about them, either in response to Freedom of Information Act request or Federal civil rights lawsuits, making it disingenuous at best to call them "public knowledge". If the TSA wants to make such a claim, it needs to make its rules and procedures public, and then let prospective passengers and other data subjects decide whether they want to provide information that will be used in that manner.
  
  
• The TSA responds to my comment that the Privacy Act forbids collection of information regarding the exercise of rights protected by the First Amendment with the conclusionary claim, entirely without supporting argument, "TSA does not agree that PNR's contain information related to First Amendment rights, including the right of assembly." If records of when we assemble, how we assemble, where and from where we assemble, and with whom we assemble by common-carrier air transportation aren't "related to" how we exercise our rights of assembly, I don't know what is. And someone such as the TSA's "Privacy Officer", Lisa Dean, who doesn't understand that to travel is -- in many, probably most, cases -- a form of assembly, is manifestly unfit to protect the privacy rights (or any other rights) of travellers.
  
  
• In response to my objection to the inclusion (without the notice required by the Privacy Act) of data in PNR's concerning people other than passengers, the TSA claims that, "It is our understanding that the inclusion in PNR's of names other than passengers is rare." No one familiar with PNR content could possibly believe this. Names of people other than passengers routinely appear in PNR's whenever someone makes a reservation for someone else, pays for tickets for someone else, gives a contact name (e.g. as a local contact when reconfirming a flight, or for ticket delivery) other than the passenger, and in a variety of other circumstances. The TSA says it will exclude cancelled PNR's, but that would still leave PNR's that were neither flown nor cancelled, i.e. reservations of "no-shows", which include data on people who, by definition, weren't passengers (and who, in many cases, don't even know that reservations were made in their names).
  
  
• The TSA claims, without explanation, that the proposed order is "not a rulemaking" and not subject to any of the normal rules governing the issuance of Federal agency regulations -- although it admits that "operational" rulemaking for Secure Flight would be subject to those requirements. But there is no "testing exception" to the definitions of "rulemaking" or "regulation", and courts have held that any "final order" (as the TSA itself describes its order to the airlines) is subject to those rules.
  
  
• In response to my comments and those of several airlines that providing the TSA with data collected in the European Union would violate EU laws and regulations, "TSA has determined that for purposes of this test phase aircraft operators may elect to exclude from PNRs submitted to TSA any PNR that includes a flight segment between the United States and the EU." That only serves to make clear that the TSA still doesn't get it. First, they don't seem to grasp the concept of flights between points entirely outside the USA, and the fact that these can appear in the same PNR's with domestic flights within the USA. Some of these flights are to, from, and within the EU. Northwest Airlines, for example, operates its own flights between Amsterdam and Mumbai (Bombay), while United Airlines has its flight number on flights operated by Lufthansa both between EU countries and on domestic routes within Germany. (In response to questions form airlines and myself about codeshare flights, the TSA says that data on codeshare flights can be excluded from an airline's turnover to the TSA only if the same data is being reported by the operating airline, making clear that the "final order" will result in the acquisition, one way or another, of data on codeshare flights including those operated by non-USA carriers.) Second, the TSA still seems unable or unwilling to recognize that data in reservations made in the EU is protected by EU law, even if it concerns flights entirely within the USA. This was perhaps the most significant of the comments, made both by me and several of the airlines, not even to be mentioned in the purported "analysis" and response to comments -- probably because it is the way in which the proposal is most irreconcilably contrary to EU law. Third, the TSA fails even to mention, much less respond to, my comments concerning the role that the CRS's that host airline reservations databases would have to play in order for airlines to comply with the proposed order, and how that would violate their obligations under the EU Code of Conduct for CRS's .

The response to today's order by the Air Transport Association (ATA), the trade association representing the airlines, is grotesquely hypocritical, contradicting the airlines' previous public claims to be concerned about travellers' privacy, and indicating a willingness to comply with the order, and with the equally privacy-invasive scheme to require travellers to register with the government despite the airlines' own serious doubts about the legality of doing so without violating European Union privacy laws and regulations, as expressed in ATA's official comments to the TSA on the draft order. ATA President James May says today:

We are studying the final order. As a general matter, we look forward to working with the Transportation Security Administration on this test phase of Secure Flight. We continue to support the concept of Secure Flight, which promises to deliver a higher level of protection and fewer hassles for travelers. U.S. airlines have long-standing concerns that center on privacy and operational issues. We hope that many of the issues will be successfully addressed during the test phase of Secure Flight. It's important to strike a balance between the security of airline passengers and the security of their privacy. This is one of the reasons that U.S. carriers are enthusiastic supporters of the Registered Traveler Program, which is designed to get people through airports faster.

If the airlines really objected to the TSA proposal, they would be pledging to fight it in court, on behalf of their customers, rather then pledging their eagerness to collaborate with further invasions of their customers' privacy, and with violations of their obligations under the laws in many of the countries in which they operate.

Since the airlines apparently aren't going to do this, the only remaining recourse is for anyone who took a flight in the USA in June of 2004, and made a reservation for it while in the European Union, to file a complaint with their national data protection authority against both the airline and the CRS that hosts their database (and that will have to participate in the violation in order for the airline to comply with the TSA demand), and to file a complaint against the CRS directly with the European Commission, which is responsible for enforcement of the EU Code of Conduct for CRS's , including its requirement in all cases for passenger consent for disclosure of reservation data, including disclosures to government agencies.

For the largest USA-based airlines, the corresponding CRS's that host their reservation databases are as follows:

• American Airlines: Sabre
• Continental Airlines: SHARES (a product and service of EDS)
• Delta Air Lines: Worldspan
• Northwest Airlines: Worldspan
• United Airlines: Galileo
• US Airways: Sabre

[Addendum, 31 March 2005: In the original version of this article, I mistakenly reported that Contintal Airlines PNR's are hosted in the EU by the Amadeus CRS . Neither Continental nor Amadeus would confirm, deny, or respond to my queries about this, but I have since learned that Continental uses Amadeus to host its fares database but not its database of reservations. Continental's PNR database is hosted in the SHARES system run by EDS .]

Does "behaviorial profiling" have to be racist to be wrong?

The widely-reprinted Associated Press report about the lawsuit filed yesterday against warrantless interrogations, demands for identification credentials, and detentions at Boston's Logan International Airport (IATA code "BOS"), as well as the editorial on the case in the Boston Globe this morning, discuss the lawsuit solely in terms of whether "behavioral profiling" amounts to "racial profiling" and race discrimination, either necessarily ("on its face", as the lawyers say) or as applied (by two Mass. police agencies with a long history of racist behavior).

That's an important question, but it's only part of the story. Both the actual complaint and the Globe's own news story make clear that this case is about more than racial profiling, and asserts a cause of action independent of whether the policies at Logan are racially discriminatory:

The actions of [the police] in stopping [the plaintiff] absent any reasonable suspicion of criminal activity, detaining him against his will, and forcing him to provide them with identification and travel documents, deprived Downing of his right to be secure in his person and property in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

As longtime ACLU of Mass. staff attorney John Reinstein, with whom I also spoke last night (along with ACLU cooperating attorney Peter Krupp) about the case and the issues it raises, told the Globe reporter, "The question is whether the police can walk up to anybody, not on any reasonable basis but sort of on hunch, and require them to account for where they're going and where they've been."

As one Harvard professor and scholar of racial profiling quoted in the Globe news story points out, the decision on that issue is likely to have more to do with the interpretation of the USA Supreme Court's decision earlier this year in Hiibel vs. Nevada than with prior cases specifically about racial profiling.

Ryan Singel's commentary on the case is also worth reading, although I think it's pretty obvious why an African-American man -- even an ACLU staff lawyer -- surrounded by Mass. troopers would hand over his papers, once he was told that he was already under arrest and explicitly threatened that he would otherwise be "going downtown", rather than trying to stand on his rights. On the street, or in the airport, a bar card is no match for guns and clubs.

As the Globe editorial concludes:

The local ACLU chapter does not generally bring frivolous suits. The rights group raises the specter of groundless searches by police, which must never be allowed to fly in America.

ACLU files suit against "behavioral profiling" at Logan Airport

Keeping itself, and Massachusetts, on the cutting edge of the litigation over police searches, seizures, and interrogations of travellers, as well as police denials of access to public and/or common carrier transportation, the ACLU of Massachusetts has filed suit against Massport (the Massachusetts Port Authority, operator of Boston's Logan Airport) and the Mass. State Police against their practice of allegedly "behavioral" profiling of travellers and other people in public areas of the airport, and its use as a basis for detaining them, demanding identification credentials, and threatening with arrest those who decline to answer or to document their identity or who attempt to leave the airport.

The complaint was filed in state court against two state agencies, but has additional importance because of the adoption of the practices pioneered at Logan by Massport and the Mass. State Police as a prototype for the practices of Federal police at Logan -- and, unless challenged, at other airports -- by the by the USA Transportation Security Administration (TSA). This case thus presents a crucial test of whether the ethnic, racial, and religious sterotyping practiced by Israeli "security" forces, and introduced into the USA after 11 September 2001, under the rubric of "behavioral profiling", by former Ben-Gurion Airport (Tel Aviv) security director Rafi Ron -- the person at the center of the Massachusetts profiling disputes -- will pass muster under USA Constitutional standards.

OMB approves data demand for "Secure Flight" testing

The USA Presidential Office of Management and Budget (OMB) has approved the proposed order from the Transportation Security Administration (TSA) to USA-based airlines requiring them to turn over all data in PNR's (reservations) that included flights within the USA in June 2004 for use in testing of the TSA's Secure Flight airline passenger "screening" (surveillance) system.

The OMB approval and assignment of an information collection "control number" (OMB No. 1652-0025) was finalized on 20 October 2004, five days before the expiration of the public comment period on the proposal. Since almost all of the public comments including my comments were submitted in the final days of the 30-day comment period, which ended 25 October 2004, the OMB's action came before the agency was even aware of most of the criticisms of the proposal.

By approving the proposal without changes, the OMB has endorsed the TSA's ludicrous under-estimate of a total cost of US$810,000 for 77 airlines to identify and extract the requested PNR's with June 2004 domestic USA flights from their archives (or, in most cases, the archives of the CRS's that host their databases), filter out and exclude the portions of those PNR's pertaining to international flights to or from the USA (but leaving the data about flights entirely outside the USA), and deliver the data to the TSA in acceptable format (preferably XML, the TSA has requested, clearly not realizing how different that is from the structure in which PNR's are stored in most CRS's).

More importantly, the OMB's approval of the TSA compliance cost estimate clearly fails to consider the cost consequences of the incompatibility of the proposed data dump with European Union and member countries' national data protection laws, or the EU Code of Conduct for CRS's . That's no surprise, since the OMB probably didn't become aware of this issue -- which the TSA has pretended not to be aware of -- until it was raised in my comments and in European news reports after the OMB had (unbeknownst to the commenters) already approved the TSA plan and cost estimates.

Gary Bass, executive director of OMB Watch , who pointed me in the right direction to find the OMB's notice of its decision, says it's neither unusual nor unlawful for OMB to issue a decision before the end of the comment period. While OMB approval of any government demand for private information is required by the Paperwork Reduction Act, Bass says OMB approval proceedings aren't considered a "rulemaking" subject to the usual rules that govern Federal agencies and regulations.

With the OMB approval and information collection control number in hand, the only remaining prerequisites to the TSA's demand for PNR data and start of Secure Flight testing is the statutory requirement that the TSA "develop[] measures to determine the impact of such [identity] verification on aviation security" and that the Government Accountability Office (GAO) complete its evaluation and report on those aspects of Secure Flight testing.

Since the OMB made up its mind on Secure Flight testing without waiting long enough to learn about the problems that airlines and CRS's would have in complying with the Secure Flight testing data demand while still operating in, and subjecting themselves to, contrary EU legal obligations, it's critical that the GAO consider these issues.

According to several of my sources, the TSA and GAO have been making contrary statements about whether the proposal would include a demand for data about flights outside the USA, such as those within or between EU members countries or between EU members and other countries. TSA officials, in particular, have claimed that the order would not include any data about flights outside the USA.

I haven't been able to tell if the TSA has actually modified its proposed order to the airlines, or if TSA officials are claiming that the proposed order doesn't include flights outside the USA because the TSA doesn't realize that USA-based airlines operate flights, with local traffic rights, between points outside the USA (United Airlines between Tokyo and Bangkok, American Airlines between Montevideo and Buenos Aires, Northwest Airlines between Mumbai and Amsterdam, etc.) , put their code-shares on other flights operated by airlines in other countries, and reserve local flights on other airlines throughout the world, all in the same PNR's with reservations for flight segments within the USA.

I'm not the only one asking these questions: In comments (dated 21 October 2004) and a set of questions (dated 27 September 2004) on the Secure Flight testing proposal -- both of which were, oddly, docketed only today (see my index of some of the other detailed comments) -- the Air Transport Association (the trade association representing most major airlines based in the USA) identified exactly these potential problems with the Secure Flight testing proposal:

Requiring carriers to filter or manipulate stored PNR data will generate significant expenses for them.... Who will bear the new information systems connection and programming costs that will be incurred for transmitting PNRs for the Secure Flight test program?...

We suggest that the TSA expand the proposed order to explain fully the statutory authority for TSA's order to airline requiring provision of personal data ... about passengers who have completed their travel (as contrasted with data to facilitate the screening of passengers who will in the future travel on passenger aircraft)....

Some of the PNRs that carriers will provide TSA for the Secure Flight test program will contain passenger data that have been collected in the European Union. The adequacy determination and international agreement predated the Secure Flight program and consequently do not state that they cover it....

Clarification that the European Commission agrees that the test program is permissible under the EC-U.S. Government PNR access agreement and the related European Council adequacy finding must occur before the program proceeds.... We renew out request that TSA ... discuss this matter with EC authorities to ensure that U.S. airlines are not ensnared in contradictory regulatory demands.

This matter has become more significant recently because of emerging uncertainty about the ability to identify points of booking in all reservation records. We are working with GDSs on this matter. The problem is that deleting international segments from a reservation may be an inadequate fix for the European privacy issue. There may be European-originating reservations for U.S. domestic-only air transportation that cannot in all instances be identified as European-originating.

The ATA member airlines also ask detailed questions, similar to those in my articles here and my comments to the TSA and OMB, concerning the definition of "domestic flight", applicability of the proposed order to "codeshare" flights, flights on different airlines included in the same PNR, and so forth.

In the end, these questions may not be answered unless people who made reservations in the EU for flights in the USA in June 2004, along with EU national data protection officials and the European Commission as enforcer of the EU Code of Conduct for CRS's , start making complaints and pursuing enforcement actions against both airlines and CRS's that cooperate (or, if they don't announce their non-cooperation, will be presumed to have cooperated) with the TSA demand for non-consensual disclosure to the government of reservation data for Secure Flight testing.

First public peek at the work of the TSA "Ombudsman"

At the first court hearing last Thursday on the legality of so-called "No-Fly" and "Selectee" watch lists provided (secretly) to airlines by the USA Transportation Security Administration (TSA), and (secret) orders to airlines as to how they are to use these lists as the basis of disparate treatment or denial of transportation by common carriers, the USA government defendants in the class-action lawsuit continued to oppose any requirement that any aspect of their airline and transportation "security" measures (even those that appear more likely be effective for surveillance than safety) be subject to public scrutiny or judicial review.

The government defendant's Motion to Dismiss the lawsuit and Memorandum in Support of Motion to Dismiss basically repeat the arguments for secrecy made previously in Gilmore vs. Ashcroft and Chowdhury vs. Northwest Airlines . And the Declaration of Lee S. Longmire of the TSA, submitted as a the government's sole basis for its factual claims about the watch lists, gives few actual facts.

But in what plaintiffs' counsel, ACLU of Washington state staff attorney Aaron Caplan, told me was "unusual" in consideration of a motion to dismiss, Judge Thomas S. Zilly ordered the government before the hearing to provide the judge, "in camera and ex parte" (i.e. without disclosing them publicly or even to the plaintiffs or their lawyers) with:

• (a) A copy of the applicable Security Directives;
• (b) A copy of the ombudsman processes available for expunging innocent passengers? names from the No Fly List;
• ( c ) A copy of the procedures used for processing Passenger Identity Verification Forms.

In response, the TSA's lawyers (led by Joseph W. LoBue, a Department of Justice staff lawyer who handled the oral argument for the defendants as he had done in Gilmore v. Ashcroft ) gave the judge copies of six TSA Security Directives to the airlines as well as 2 TSA internal policy memos . Perhaps more importantly, they made public the forms and form letters used by the TSA ombudsman's office in correspondence with people who complain to the TSA of being selected for secondary screening, or denied transportation, as a result (they suspect, although they never know for sure, since the lists and orders are kept secret from them and issued without any adverserial, evidentiary, or judicial hearing) of the TSA's watch lists and orders to the airlines.

The TSA ombudsman's office forms and form letters don't really say what the TSA actually does with complaints, or who makes the decisions, although they do make clear that the burden is on complainants to prove that they aren't or shouldn't be on the watch lists (without knowing if they are, or why). But the TSA's lawyers relied on these documents -- made public only only after a Federal lawsuit -- as ostensibly providing adequate (discretionary, internal, secret, non-judicial) "recourse" for people complaining of discriminatory warrantless searches or denial of transportation by common carrier.

ACLU attorney Caplan said Judge Zilly gave no indication during the hearing as to what might have been in the in camera documents. And there was clearly confusion on the part of all parties and the judge as to the distinctions between the "no-fly" and "selectee" lists, and between people who are on one or the other of those lists, and people whose names are similar to those of people on the lists. Since all of the named plaintiffs have eventually been allowed to fly, it appears that none of them are on the no-fly list. It remains uncertain whether any of the 7 named plaintiffs are actually on the selectee list (3 have been told they are not, but the others don't know) or whether their names are similar to names on the no-fly or to names on the selectee list.

In any event, Caplan says Judge Zilly indicated he plans to rule on the motion to dismiss quite soon, perhaps in just a few weeks.

[Addendum, 14 March 2006: The court exhibits linked above provide much more information about the process (at least as of 2004) than the TSA provides on their Web site. But if you are just looking for the "Personal Information Verification Form" to submit to the TSA, you should use the current version from the TSA Web site instead of the 2004 version included in the court filings.]

What's next for "Secure Flight" testing?

Two week's after the close the public comment period on testing of the USA Transportation Security Administration's (TSA's) proposed Secure Flight airline passenger "screening" scheme, there's been no comment from the TSA on when or if the tests will actually begin.

Presumably, the next steps would be the award of the prime contract for Secure Flight testing, and the issuance of an order to USA-based airlines to turn over reservation or Passenger Name Record (PNR) data to be used in the tests.

But before the TSA can requisition the test data from the airlines, or start using it in tests, two other things must be done by agencies other than the TSA -- at least one of which will, presumably, be publicly disclosed, but hasn't been yet:

One: The (Presidential) Office of Management and Budget must approve the proposed Information Collection Request (order to the airlines). Under the Paperwork Reduction Act, this requires either a series of assessments of the impact of the proposal (none of which were mentioned in the TSA's published notice of its proposals), or certification by the OMB that the request meets the statutory criteria for "emergency" approval (which it doesn't, as I argued in my comments to the OMB ). In either case, OMB's clearance must be accompanied by the issuance of an "OMB control number" that must be printed on each copy of the information request form.

The OMB hasn't responded to my requests for information on whether they have approved the emergency clearance request or issued a control number for the Secure Flight testing information request. And I haven't been able to determine if such an emergency clearance, or issuance of a control number, would be a matter of public record. But unless the OMB approves the request on an emergency basis, the required assessments are likely to take at least several weeks, even on a pro forma basis.

In theory, the TSA could award the contract for Secure Flight testing before getting OMB approval to requisition the test data from airlines and the Computerized Reservation Systems (CRS's) that host their databases of PNR's. But the TSA can't demand the test data without OMB approval, which I strongly suspect it doesn't yet have. And airlines have said (probably truthfully in this case, depite their and the TSA's earlier lies) that they will turn over the data only if ordered to do so, despite privacy (non)protection polices that would permit them to give the government any information it asks for, even without a binding order.

Two: Under new oversight provisions of H.R. 4567, the Department of Homeland Security Appropriations Act, 2005 (Public Law 108-334), Section 552(d), the TSA can't spend any money even for testing of Secure Flight "until TSA has developed measures to determine the impact of such [identity] verification on aviation security and the Government Accountability Office [GAO] has reported on its evaluation of the measures."

(This provision doesn't name "Secure Flight", but does apply to any "identity verification system that utilizes at least one database that is obtained from or remains under the control of a non-Federal entity". Since the only way for the TSA to obtain PNR's is from the databases of airlines, CRS's, travel agencies, or other non-federal travel entities, this provision clearly includes any system that uses PNR data.)

As I reported earlier, original version of this bill would have exempted anything labeled as "testing" from its oversight provisions. But several additional oversight provisions, including this one on testing of Secure Flight and similar programs, were added to the bill (which became law 18 October 2004) after the TSA had published its Secure Flight testing proposals, and before the end of the public comment period.

One of the TSA's notices about the Secure Flight testing proposals in the Federal Register said that the order to the airlines was to be issued (if the OMB approved), on 29 October 2004. That was also the date anticipated in the request for proposals (RFP) for the award of the prime contract for Secure Flight testing. But these notices, and the RFP, were all issued before the Homeland Security Appropriations Act was enacted.

As of last week, GAO investigators were still conducting interviews for their report on Secure Flight testing. Unless the GAO has issued its required report in secret (which seems unlikely), the TSA can't yet legally have awarded the contract or ordered airlines or CRS's to turn over test data, and won't do so until the GAO report is published.

The Homeland Security Appropriations Act allows Secure Flight testing to go forward without restriction as soon as the GAO makes its initial report, as long as the GAO reports that the "TSA has developed measures to determine the impact of [identity] verification on aviation security." Much more stringent requirements apply to deployment of Secure Flight on anything other than a test basis: before that can happen, the GAO must issue a second report (due by 28 March 2005 at the latest) and certify that a list of ten criteria have been met:

H.R. 4567, Department of Homeland Security Appropriations Act, 2005 (Public Law 108-334):

SEC. 522. (a) None of the funds provided by this or previous appropriations Acts may be obligated for deployment or implementation, on other than a test basis, of the Computer Assisted Passenger Prescreening System (CAPPS II) or Secure Flight or other follow on/successor programs, that the Transportation Security Administration (TSA), or any other Department of Homeland Security component, plans to utilize to screen aviation passengers, until the Government Accountability Office has reported to the Committees on Appropriations of the Senate and the House of Representatives that--

(1) a system of due process exists whereby aviation passengers determined to pose a threat are either delayed or prohibited from boarding their scheduled flights by the TSA may appeal such decision and correct erroneous information contained in CAPPS II or Secure Flight or other follow on/successor programs;

(2) the underlying error rate of the government and private data bases that will be used both to establish identity and assign a risk level to a passenger will not produce a large number of false positives that will result in a significant number of passengers being treated mistakenly or security resources being diverted;

(3) the TSA has stress-tested and demonstrated the efficacy and accuracy of all search tools in CAPPS II or Secure Flight or other follow on/successor programs and has demonstrated that CAPPS II or Secure Flight or other follow on/successor programs can make an accurate predictive assessment of those passengers who may constitute a threat to aviation;

(4) the Secretary of Homeland Security has established an internal oversight board to monitor the manner in which CAPPS II or Secure Flight or other follow on/successor programs are being developed and prepared;

(5) the TSA has built in sufficient operational safeguards to reduce the opportunities for abuse;

(6) substantial security measures are in place to protect CAPPS II or Secure Flight or other follow on/successor programs from unauthorized access by hackers or other intruders;

(7) the TSA has adopted policies establishing effective oversight of the use and operation of the system;

(8) there are no specific privacy concerns with the technological architecture of the system;

(9) the TSA has, pursuant to the requirements of section 44903 (i)(2)(A) of title 49, United States Code, modified CAPPS II or Secure Flight or other follow on/successor programs with respect to intrastate transportation to accommodate States with unique air transportation needs and passengers who might otherwise regularly trigger primary selectee status; and

(10) appropriate life-cycle cost estimates, and expenditure and program plans exist.

(b) During the testing phase permitted by paragraph (a) of this section, no information gathered from passengers, foreign or domestic air carriers, or reservation systems may be used to screen aviation passengers, or delay or deny boarding to such passengers, except in instances where passenger names are matched to a government watch list.

( c ) None of the funds provided in this or any previous appropriations Act may be utilized to develop or test algorithms assigning risk to passengers whose names are not on government watch lists.

(d) None of the funds provided in this or any previous appropriations Act may be utilized to test an identity verification system that utilizes at least one database that is obtained from or remains under the control of a non-Federal entity until TSA has developed measures to determine the impact of such verification on aviation security and the Government Accountability Office has reported on its evaluation of the measures.

(e) TSA shall cooperate fully with the Government Accountability Office, and provide timely responses to the Government Accountability Office requests for documentation and information.

(f) The Government Accountability Office shall submit the report required under paragraph (a) of this section no later than March 28, 2005.

Iran to join reciprocal fingerprinting of USA visitors

On the 25th anniversary of the takeover of the Embassy of the USA in Teheran, Iran , a bill to require fingerprinting of all USA citizens visiting Iran has been approved by a committee of Iran's parliament, and appears headed for enactment. Iran thus moves toward joining Brazil as the only countries reciprocating the US-VISIT requirements for fingerprinting of all visitors to the USA except Canadians.

Hearing in Seattle on challenge to no-fly list

For the first time ever, lawyers for the USA Transportation Security Administration (TSA) will appear in court tomorrow in Seattle to try to defend their (still largely secret) procedures for the compilation and use by the TSA, law enforcement agencies, and airlines of "No-Fly" and "selectee" watch lists.

In the class-action challenge to the no-fly and selectee lists, Green v. TSA (No. 04-0763, W.D. Wash., filed 6 April 2004), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington (700 Stewart St., Seattle, WA) will hear arguments beginning at 9 a.m. on Thursday, 4 November 2004 from a battery of Justice department lawyers (representing the TSA and the Department of Homeland Security) and lawyers from the ACLU representing people who have been delayed, detained (with their identification documents confiscated, so they couldn't leave), interrogated by police, and/or subjected to more intrusive searches becuase their names matched or resembled (they weren't told which) names on one or another of these lists (they weren't told which list), sometimes each time they tried to travel by air, and in some cases even after establishing their identity to the same airlines or law enforcement agencies on prior trips.

The hearing is likely to focus on jurisdictional and procedural issues: The TSA and DHS have moved to dismiss the case on the grounds that it should have been filed first in the Court of Appeals rather than the District Court (the same argument that was made in response to the challenge to airline and government ID requirements in Gilmore v. Ashcroft which is now on appeal to the same Circuit Court that would eventually hear any appeal of the watch list suit), and on the grounds that the plaintiffs' rights haven't been violated because, "they have no right to be free of airport searches" [emphasis in original].

Not, "a lesser right", or "a limited right", but "no right", suggesting that the most intrusive search imaginable (which I suppose would mean body cavity searches and confinement in a "dry cell" for long enough for the complete contents of one's stomach and intestines to pass through, be excreted, and be examined by police for swallowed contraband) would be permissable as a routine condition of travel by airline. If they really believe this, our rights are really in danger (not that this should, by this time, come as any surprise).

Nonetheless, almost anything the government's lawyers could say is likely to reveal more details about the secret watch lists, just as did the District Court hearing in Gilmore v. Ashcroft that I attended in San Francisco on 17 January 2003.

Meanwhile, a large volume of documents about the TSA watch lists has been released in response to the order of another U.S. District Court in San Francisco in the ACLU's separate watch list lawsuit, Gordon v. FBI under the Freedom of Information Act (FOIA). And investigative journalist Ryan Singel has begun posting documents releases in response to his FOIA requests concerning the use of jetBlue Airways reservations for airline passenger identification, profiling, "screening", and other experiments.

I got word of the hearing in Seattle only this afternoon, too late to attend. If any of my readers makes it to the hearing, please let me know what happens. I also hope to be able to post links tomorrow to more of the pleadings filed in the case.

[Update, 9 November 2004: Report on on what happened at the hearing with links to more of the pleadings and documents released by the TSA.]

New York Times on "Getting off a watch list"

Christopher Elliott reports today in the business section of the New York Times that, Getting Off a Security Watch List Is the Hard Part (free registration and cookie acceptance required):

There is no way to find out if you are on the list until you check in for a flight. Worse, there may be no way off. Passengers can fill out a disparity claim with the [USA Transportation Security Administration (TSA)] ombudsman's office, which acts as an intermediary between passengers like Mr. Smith and the security agency. "If it's determined that you're not the individual that is wanted for further questioning, then the airlines will receive notification informing them that the specific individual is not to be detained," a T.S.A. spokeswoman, Lauren Stover, said.

But that does not mean they are off the watch list. The agency's Office of Intelligence, which currently maintains the watch list, reports that in September, 680 people filed so-called disparity claims indicating that their names had been mistaken for individuals wanted by the government for questioning. Of those, the government had cleared 250 people by October.

Detractors also maintain that the secrecy shrouding the watch list is pointless. "How do you get on the list?" asked Edward Hasbrouck, a privacy advocate in San Francisco. "Nobody knows. How do you get off the list? Nobody knows."

Ms. Stover of the security administration said passengers were added to the secondary list if there was "a pattern in something they have done in the past that merits future scrutiny," and were put on the no-fly list only if they were wanted "for activities that may be terrorist-related or pose a threat to national security." She declined to elaborate.

But Mr. Hasbrouck said even if the government could successfully argue for keeping its reasons secret -- and he doubted it could -- there were still no legal safeguards to prevent innocent passengers from being erroneously added to the watch list.

"The model is flawed," he said. "People should only be placed on the list based on an order from a court of competent jurisdiction following an adversarial evidentiary hearing. The burden of proof should be on the government to show that someone is dangerous, not the other way around."