The Erickson Report, Page 2: On Privacy

The Erickson Report, Page 2: On Privacy

I used to talk a lot about privacy issues, about personal privacy and government and corporate intrusions into our personal space. I haven't done so recently. Consider this re-introducing the topic.

On October 21, a 3-judge panel of the 9th Circuit Court of Appeals rejected an appeal from four US citizens’ for a fair process to get their names off the government’s No Fly List.

The No Fly List is a secret government database of people - many of whom have not been charged with a crime - that the government has barred from flying in or over the US. As of June 2016, there were about 81,000 people on the List, including about 1,000 American citizens or legal residents. The No Fly List is a subset of a larger terrorism watchlist, which as of 2017 had about 1.2 million people, of whom about 5,000 are American citizens or legal residents.

None of the four men in this particular case, Kashem v. Barr, have ever been charged with a crime; nonetheless, each has been barred from flying for more than nine years.

In an earlier ruling in the case, in 2014, the government’s procedures for someone to challenge their placement on the No Fly List were “wholly ineffective” and violated due process. The government had to revise those procedures, as a result of which several of the original plaintiffs were cleared to fly, which itself should give you an idea of how reliable the list is.

The four remaining plaintiffs, still barred from flying, argued that the changed procedures are still constitutionally inadequate, saying their ban was based on second-hand assertions and secret evidence they could not meaningfully contest and that the government’s criteria for placing people on the list are unconstitutionally vague.

Citing the "national security concerns at issue" - silly me, I thought it was Constitutional rights that were at issue - the court said, in effect, "better safe than sorry" and dismissed the challenge.

I didn't read the whole opinion (it was over 50 pages), but I did read the court's summary and was particularly struck by this passage:

The panel determined that the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct, or because they do not delineate what factors are relevant to that determination.

That is, the standards for declaring you too dangerous to be allowed on an airplane are based in part on predictions of your future behavior without even being able to lay out what lead to that prediction.

We are headed for "The Minority Report" territory.