afternoon, y everybody, and welcome to the cato institute. i'm jim harper director of information policy studies here at cato. pleased, in a way, to welcome you here to talk about the governmentat impinges on your travel. and directseillance indrawin indrawin intrusion intrusion. talk about we'll that different but related and s with the government trav travel. irst we will hear from ed hasbrook. him give this i thought more people need to travel nd the intimate surveillance the government

law cts over all of us, abiding and law breaking. a full will have regarding n from him his research in this area. after that we will turn to the news topics the rule making in strip regarding ginger ch machines. mccall will talk about that with the introduction of a rulemaking the part of the t.s.a. with aul making required by court order and the t.s.a. having aken 20 months to produce two regulatory language and 52 pages of justification for the regulation it has proposed. a couple of internet notes for hose watching online on c-span or here in the room the hash tag is #tsasearch.

comments looking for and questions that i may use during the event so feel free to with friends and colleagues online. with respect to is a tiny ing there u.r.l. that can take you to the webpage where the t.s.a. accepts comments on the policy. that is tiny url.com/tsacomment. >> first, edward hasbrack. fly may have been coinedor him. our first meeting that i recall was in boston and during the eeting of the d.h.s. privacy

committee he accosted me in the hall and was virtually holding me there to insist i crack the d.h.s. the arguments were meritorious and demeanor intense. he is called the go-to authority on international travel and how to get the best deals on the internet. he is an author, journalist, consumer advocate and true travel expert. he is the author of "the practical nomad, how to travel .round the world" would nary travel expert be ordinary but after 9/11 he impingements we were suffering on freedom to trample along to get go along but turned his efforts debating ourng and freedom to travel. he is one of the foremost xperts on the surveillance of our travel through i.t. systems. that is why i wanted him to speak with us. also as a consultant to

the identity project on travel related human rights and civil liberties issues that was founded by john gilmore. he i have fondness for because at a different meeting he challenged also as a consultante other members of that committee to washington without showing i.d. at the airport. a ook him up on that and had pleasurable experience because when you were sent to secondary got through the lines faster. so thanks to, john gilmore. ed's presentation then i will come back up and introduce ginger. engi oin me in welcome iing edward hasbrook. jim, for very much, that very kind introduction. thanks to all of you for coming to all of those tuning in. a further internet note if you follow language at home you can find copies of the

identity project website at papersplease.org. 2001, the mber 11 of u.s. government has implemented an extraordinarily comprehensive system of surveillance and criminal of our movements both country and abroad. bits and pieces have been called out from time to time but little the standing of comprehensive big picture which is what i will try to give you quickly as possible today. i.d. rst step is the requirement of people having government issued i.d. travel by common carrier. not so much to prevent people i.d. t government issued to travel although that is an incidental bad effect but to act of travel h can be logged and correlated

component of d this process, an i.d. linked travel historyal of your movements. on the basis of which the been able tos then move to a permission based ravel control regime in which real-time decisions are made -- to go you want tag somewhere as to whether the government will let you on the identity and does iier linked to that. place the s in government makes the final step of flicking the default from yes so that rather than presumptive right to travel which can be interfered with of judicial asis action, the presumption is obody is allowed to travel unless they have received affirmative government prior permission. dossi since ernment insistence 9/11 that everything about airports is different and not

subject to the usual rules makes it more difficult than it should be to put things in perspective. a good frame of reference for comparison for travel surveillance is the surveillance on of s again communications. n.s.a. warrantless wiretapping. they have in common that they movementless. andne ki case m.s of messages the other of your physical person. on rt involve burdens industry and in the kicase of t talking about more mandated llion of modifications of i.t. systems to perform being the performing these. they are suspicionless drag nets ot limited to suspects who people who are being particularly investigated but

collecting information about it might laterse be of interest to the government. not free ravel is there are significant differences. hraolegal framework in which oddly in statute law the movement in of messages currently has more heal protection than information our the movements of physical bodies. that seems weird but that is the way it is. inclined oesn't seem to fix it. the second big difference, is uses this ernment data. this is not merely surveillance real-time control system. it is a bit confusing and this bit technical and i will grant everything i will say ov now on is a gross oversimplification or we would be here days or weeks. ravel i.t. is complex and technical and d.h.s. has confused it by its own of policy and language.

there are three different sets entirely identical but overlapping data that the required airlines and travel companies to collect and make available to the whether t depending on it is an international or domestic flight with different names. with are different systems different names, secure flight or domestic travel, automated targeting for international travel. there is also a difference that isn't as significant as it looks which is in the kiss of d.h.s. tional travel makes its own mirror copy of the eservation information whereas for domestic travel it maintains real-time access. matter so t doesn't much. all of the controls on privacy of this information that the talked about are controls on its copies, which as long as it can go back to the industrial host of the data and get another

wants. so r it while who's holding the copy the 't matter since government has root access. the people denying the system from n.s.a. type backgrounds assumed after 9/11 get the y they would information that the airlines have about travelers and make their own use of it. work mike that because most airlines outsource he hosting of reservations to computeri computerized reservation systems other travel ve companies, hotels, travel agencies and so forth. there are four major and one ore recent and as yet minor google which spent $700 million business which gives you a sense of how significant the business is sense ogether form in a an outsourced global cloud for osting reservation data on behalf of the travel industry. if you look at this diagram, you

will notice a couple of things. there are typically at least two ntermediaries between the traveler and government. this is why the government can et this data from the travel companies without needing a warrant because it is considered heir property in which the traveler has no right. the traveler doesn't necessarily even have any way to know has er the government gotten this data. being global cloud each node is a point of vulnerability. to exploitation of the data by marketers and data be unknown and invisible to the travelers. criminals from hackers to terrorists. nd by government agencies not nearly d.h.s. but other law nforcement in the u.s. and fortune governments and their -- foreign governments. there's been concern as this diagram shows someone

a veling within europe on european airline making reservations through a european the l agency even when master copy of the reservation is stored in europe there may be in the mirror copies cloud in the u.s. that d.h.s. can access without anybody in about it.wing if you say so what about europeans, the converse holds as well. even if you are traveling within any government in the world where either the airline or the reservation system or the travel agency has an office can get access to it. the chinese public security but can go to the nited airlines office in beijing and ask them to call up your reservation from washington to chicago and they can do that they are required to because they are chinese citizens jurisdiction nese and they can hand it over in toe toe. by therd is kept of this reservation system. it is not visible even to the

irline that this has happened and unless you or somebody you know happens to be looking over their shoulder in the back room beijing after the fact there is no way to know whether it happened. t.s.a.'s own the incomplete diagram of how this works on the government's side. there are many incompletenesses i want to focus on a here.hings you will notice that what is booking entities -- the aviation in the upper es ma are shown as a passive mass-throumas pass-through. you should cross out the airlines going to the airlines.

there should go directly into becoming entiti -- book being entities. this is more ide than just what t.s.a. may describe as watch list matching. it is more complex real-time process of evaluation. we still have the threat, analysis is a black becomes a black box but there is nothing about what goes on and how the decisions are made. ity to reach ectivity out and this diagram was t.s.a. before the latest updates to the system of ecords notices for both secure flight and a.t.s. showing they access to other access.ses that they can what may be most significant, something that is hidden toward of this diagnose, this is an enlargements of that

of ion from another version this, you will notice there is passenger data moving from left the traveller to the airline, to those who valuate it on the government side. are ou will notice there arrows back with boarding pass printing result. permission message and they are the control lanes that d.h.s. has demanded be the infrastructure that prevent the airlines from issuing you a boarding pass that they have received individual per flight per passenger message from the government. they are think stopping you from flying that ate implicate the law and it does. t.s.a. is fond of saying you travel.right of you have a guarantee of right ut specifically guaranteeing your right to travel by air and obligating t.s.a. in its rulemaking to consider that right as they never have done in any

date.king to if they are not following the it reviewed we get in court? ginger will talk about that but t is interesting to look at what the express pills of the d.h.s. has been. hese statements are from speeches by the former secretary chertoff d security who repeatedly said he didn't elieve that no fly orders should be subject to judicial eview which is a remarkable statement from a former federal uphill who said he thought his shouldn't be subject to review by the person he used to be. policies of re d.h.s. under the bush administration, no obama official has repudiated the views and it ontinues to be d.h.s. practice not so much to defend the systems that i'm talking about actively resist being obligated to defend them

at all.ny court so, what is in the records they compile? history.time travel if you have traveled across the u.s. borders the last 10 years d.h.s. has a file on you. we've put outject firms for people to use. my are on our website or website. we have been compiling the responses. i sued for the portions they had withheld after years.ng for three they retroactively exempted the automated targeting system from the privacy act and district court upheld the application of that. but in their discretion they did release quite a bit of self-damning information. some of the information we know is there and have seen and i ill show you examples include copies panic name records, -- name records and index, a log of every time you

border by any means. and notes attached to that to more information about whatever they deemed of interest. this is a very simple passenger that ecord for a flight dulles from washington to buenos aires. what is interesting is so,,al data. information for me in this reservation is the phone number of a friend that i reconfirmed my flight who was intrigued and he had d to know that been permanently linked with me in our homeland security files. this is a simple reservation for a flight from montreal to san francisco. i.p. here this is an address and time stamp. that could be correlated with whatever other internet records associated with this and there is the e-mail address,

credit card number permitting a lot of other associational data. these are wonders for the network t for social analysis and that is what they talk about using them for. -- to pbd people who are find people who are not yet suspected. guilt by liberately a association machine. that is how it is used. t is not limited to air travel or travel to and from the u.s. this is a trip i took to brussels brussels. lines three and four reflect the from paris hat trip to brussels and back by train. in a s this doing here permanent d.h.s. file? trip to strasbourg, four e four is a ride on .he highway bus this particular extract is the that g gun that showed d.h.s. has root access. hey are not merely using an

airline user i.d. berlin, son traveled to stayed there for a week and traveled on to london and stayed week and came home. lines three and four are a entirely within europe p.n.r. -- the rest of the shows that this was a separately issued ticket not connecting to flight to the u.s. on a airline that do not fly to the u.s. united airlines would not see that. a person with route privileges can do that. everybody who i have respond who's gotten their file from d.h.s. and said what does this mean when i went over it there's been something that urprised and disturbed them in their file. they don't want the file on the internet but each of these things are things

i have seen in actual examples of files people have received in response to their request. remember, this is just the stuff within its discretion d.h.s. tell us. hotel reservations, whether they show up is a complex question sometimes do if made in the same reservation with the flight. reservation for multiple performance linked together with their name, ender, age, date of birth and so forth. the code showing behind the roomd doors of their hotel whether those two travelers asked for one bed or two. livetime fi-- ent fail.me meal requests may show religion or invisible medical conditions show up. eservations for tenures or cruises. the nature of the tour operator, of graphic, dollars a lot other -- there's a lot of or

information that may be more revealing. law firms routinely have their center and p.n.r.'s what client they are billing to. -- everything that the travel company captures for its it is just poses brought up by d.h.s. into your permanent file. can be discount codes for example if you get a discount you are part of a group that is traveling to a particular conference or event convention that billing code ay reveal what organization's con vegetables -- convention you attending even if it is resistant to disclosing the membership list. the second component of the files in addition to the entry exit is the log. his shows entries back to 1992 even though the notice that was supposed to be published in the

ederal register before this system came into operation would not be publicity until 14 years 2006.in operation of a system of records without a proper notice is a crime. has ever been prosecuted for it. funny thing. information is not just limited to flights to and from the u.s. it includes over-flights to the u.s. this is a concern to canadians if they go on vacation in u.s.inevitably overfly the so the u.s. has access to all such people. about that.n't care what about the reverse. magine what would happen if cuba were to say -- and i have outinely been in cuban air space on american airlines between miami and pretty much south mark. what if they say they want the everybody on these flights but that the cuban government will vet them and

mens unlesson these the kuhn government approves. what would we think of this? what the u.s. government is demanding of other countries. it -- to air ted travel. this is amtrak, a trip i took by the u.s.-canadian border from montreal to new york. for trip by private c car. ore recently they have nstalled license plate readers so a more recent entry with include the license number of was driving p. then there is the free text notes any can be associated with entry. these are not just people who were arrested or suspected. be entered even when nothing was found. for ive computer queries criminality, negative vehicle

exam. his is somebody who walked across the border. why is this recorded in their file?nent faililes.e of my i flew back from -- i with say london.onnected through and i had an apple and some customs and got to i said can i keep them. they said you can keep the bread apple is fruit so i threw it way. some years later i find in my permanently linked to this event. occasion i had been industry expoural in buenos aires. box that says i have been around livestock. you may not know that the customs and border protection down at your feet at 5:00 and they have come on shift

wash your shoes. my does this belong in permanent file? tkpgilmore's ohn file. "drugs book entitled and you are right." f this is not prohibited recording of the exercise of first amendment rights i don't know what is. trip that john had travelingassenger was about a month and attended a computer conference in berlin friends.ted -- baggage exam negative. else in computer business. a suspicious s fact this belongs in your permanent file. is more to all of this. hope that all of you will be inspired by this to look into what is in your file but also to

look more closely at the reality f how that is being used and hat we need to get out of the swaeuituation we have been put where we now travel by common only as a privilege granted by permission of the government. thank body gets when you do get to the airport? you will find that ginger mccall lacks the intensity of edward hasbrouck thomas but she has the doggedness and maybe more. she's the director of the privacy information (program. she teaches on the law of open government at georgetown law center, working on a variety of

issues including consumer protection, open government requests. body gets when you do get to she litigates the freedom of information act lawsuits. did your mccall has co-authored -- she greatly speaks on government issues. hopefully, she will add to her resume the fact she is now spoken at cato. she has provided commentary to numerous outlets and journals to discuss the tsa recent rulemaking to the extent there is one and the strip-searched machine policy. ginger mccall. [applause] >> thank you for having me. >> thank you very much for having me. i hope i can give as much intensity. they have been able to give me coffee beforehand soshe litigaty that will add to it. so i guess i'll start off with the good news. right now we have a very unique

opportunity to comment on a very controversial air travel program. body scanner program, as we're calling it at epic, nude body scanners, have been something that epic has worked on for four, five years now. we have had several lawsuits on this topic. and it's come to fruition by the agency. now skeptics will be asked, what will be the notice? isn't the agency just going to go ahead to do what it wants to do anyway? but we do believe it's an opportunity for the american public to weigh in on this. if the agency doesn't take your comments into account, doesn't take our comments into account, we will go ahead and take this further into court. commentice and rulemaking actually came out of a lawsuit that we filed on july 15, 2011. this was a lawsuit in d.c. circuit court. we filed under several legal doctrines, including the fourth amendment, the privacy act and the administrative procedure

act. now, if that administrative procedure act says if an agency is going to issue a new rule, it has to go through a notice and commenting rule. it has to give you and the rest of the american public and everyone who cares the thattunity to comment on rule and give the agency feedback. as the agency is supposed to take that feedback into account. we petitioned and got frustrated and filed this lawsuit in court. the court ruled in our favor on the a.p.a. issue which is quite unusual. it was the result we were very pleased with. the t.s.a. has not justified its failure in the notice frustrated and solicit comment and the agency practice, these body scanner machines, the nude body scanner machines that show that naked image to the t.s.a. official, imposes are substantial burden on the public. according to the court, upon so

many members of the public, millions of travelers going day through these airports passing through these body scanner machines that were at that point posting up this graphic image for some t.s.a. agents in a room to look at. and the court expressed concern about the agency's use of body scanners. it ruled against us on the fourth amendment issue, but this was largely based on the agency's representation that members of the public have the option to "opt out of the machine," that you could opt for a patdown. now when we had originally started pursuing this topic, that patdown was just a fairly typical patdown that you would expect. i suppose the agency got a bit more frustrated and started to issue enhanced patdowns. some of you might be familiar with the sort of libertarian campaign that happened in the

wake of these enhanced patdowns, the don't touch my junk. if you are not familiar i encourage you to youtube it and to do a little bit of research what's included in these enhanced patdowns. now, these enhanced patdowns, this is not an option that epic would stand behind. we focus on body scanners and for passengers to opt out. we don't think the enhanced patdowns are appropriate. in fact, in our comments we will ask for a very different alternative. but the court ordered the agency in this case to undergo that notice and comment rulemaking, and the court said to the agency you need to do this, "promptly." it was a nearly two-year delay. and during this period epic filed multiple times with the court to, you know, encourage the court to tell the agency it needed to follow up, to give the agency a 30-day deadline, to give the agency some sort of

deadline which they will order this notice and comment rulemaking. 20 months later now here we are finally looking at the rulemaking after the court set a deadline last fall for the agency to have this completed by the end of march. so on march 26, which is no surprise to those of us who are following this -- actually, i figured it would be later. i thought it would be the final friday in march at 4:30 p.m., but they did it a few days early. they got it in under the wire, march 26. the t.s.a. started its notice and comment rulemaking period. so you, the members of the public, and we at epic and anyone else, the organizations here, cato and others, can now comment on this. the deadline for filing is june 24. we have information up on our website on epic.org. you can look. it's in the upper right-hand corner of our website or look for the key term t.s.a. comment. you can use the tiny u.r.l. that jim has mentioned, and we

certainly encourage you to comment on this. now, we have taken a look at this proposed rule which really amounts to two sentences. and the two sentences that t.s.a. is proposing to use to modify its current screening procedures are -- and here i'm going to go ahead and read it for you. the screening and inspection described may include the use of advanced imaging technology. for purposes of this section, advanced imaging technology used to detect anomalies without having contact with the individual being screened. that's 20 months worth of work right there. so nowhere in this does it take into account really the invasiveness of these machines. nowhere does it take into account the fact that your only alternative to these machines is a superinvasive patdown. nowhere do they take into account the sorts of real costs to passengers, to passengers who choose to opt out of this and then subject to long waits.

i've attempted to opt out personally on this and i ended up having to opt back in because i waited for about 20 minutes for a t.s.a. officer of my same sex to give me an enhanced patdown. finally when i decided i was going to miss my flight to the conference i was forced to opt back in. and this comports with a lot of what we heard from travelers when we asked travelers to tell us what their experience at airports have been. and it comports with a lot of what we found when we made of freedom of information act request to the agency. we had requested originally back in i believe it was 2008 or 2009 several different sets of documents from the t.s.a. on these body scanners. this is part of what inspired our entire campaign against the t.s.a. we requested documents like contracts, statements of work, technical specifications for these machines as well as passenger complaints. and what we got back was a stack of passenger complaints that was probably about this high. and we also got back contracts

and statements which you can find on our website. and these indicated that the t.s.a. wasn't really telling the truth about these devices. it wasn't really telling the truth about what the devices where capable of. they indicated that the devices were not designed to pick up powdered explosive which is something i'll talk about a little later in context of the rulemaking. that the devices were capable of capturing, storing and transferring those underlying naked images that were produced by the body scanner machines. and there were several other interesting findings that we have. i won't spend my time on that but you can find that on our website and this is what inspired our later lawsuit about the rulemaking is we really thought this was quite a large step for the agency to be taking without ever opening up to comment from the public. so given the text of that proposed rule, which again you can find a lot of information about this on our website and also at the u.r.l. that jim has mentioned, we have some

recommendations and these are the recommendations we include in our comments and we have some places where we think it might be great for other people who have complementary expertise to weigh in. first, the agency has completely taken over the dialogue on this. first, it was the use of the word whole body scanners. ok. so -- it was whole body imaging originally. whole body imaging but i guess t.s.a. wasn't that a nice and warm and fuzzy enough term and it gave the public too much of an idea of what was going on with these machines so they changed it to body scanners. now they've changed it to an even more sanitized term which is advanced imaging technology. we are pushing back on this. we would encourage you to do the same. i know people have slightly more extreme versions of this porno scanners, etc. we have taken to call them nude body scanners or n.b.s., because it gives a much more accurate image of what the machines are capable of.

we support regulatory alternative. in these comments the agency summarizes several different alternatives. and one of those alternatives is just to leave things the way they are, to stick with the metal detectors as we've been doing for the last probably two decades, decade and a half. and another alternative is to focus on the use of metal detectors along with explosives detection technology. and that's something that we would endorse because it's much more narrowly tailored, and it's only looking for a particular thing and that's a threat. body scanners pick up anything extra you might have in your pocket. in fact as we discovered when we issued our freedom of information act request to the agency they are not designed to pick up the very powdered explosives that are the key threat right now. that is the petm. and we also are very heavily going to come out in favor of

the passenger's right to opt out. and to demand the use of generic image filters. one of the things that the agency did that i think was somewhat of a victory to epic and to cato and for those who worked on this for a long time, they did make modifications to the machines in light of public protest against them. they required that privacy filters be put on these machines. but what we're asking is that those privacy filters be mandated. and in fact congress has asked for that same thing. they've mandated that t.s.a. use image filters on individuals who go through the screening process. and the courts have actually relied on the fact and ruling against us on that fourth amendment claim, they relied on the fact that the agency has represented to them and has represented to the public, you have the ability to opt out. so we're saying in this rule, let's go ahead and just put that into the actual regulation itself that you as passengers have a right to opt out and that the agency must use these generic image filters.

there must be no underlying graphic image. there must be no other image that could possibly be stored. the generic stick outline that has a spot on it that highlights where the anomaly is, that must be the only image that is used by the machine. and we're encouraging the public and any organizations to have people submit their personal experiences with t.s.a. that stack of complaints that we got showed a lot about what the agency has actually been doing on the ground. there's always discussions here in washington about the reality in the ideal case but very little actual discussion about the reality on the ground. and the reality on the ground is very different in airports around the country. the agency represented and we saw when this controversy really started to pick up that they put into place in the d.c. airports where members of congress would be going through the airport really great signage about the body scanner machines and you have the right to opt out.

big television screens explaining to you what these body scanner machines are and you have the right to opt out. everywhere else in the country you have a piece of paper that was about this big and it was usually about 25 feet away from the machine or right in front of the machine so it was already too late for you to exercise that option. and that was the best-case scenario, that you actually got that piece of paper this is a body scanner machine. and some places there wasn't even that. so again asking travelers to really let the agency know what their real experiences are on the ground. but there's some other issues to address that epic really isn't in position to address and i think others might be in a better position to address. and that's the ambiguity of the terms and the rulemaking. some of the terminology is very ambiguous. it allows a lot of wiggle room on the agency's part and we're asking others to submit comments on this. anyone who has any expertise on

the effectiveness of these machines, what they're actually capable of detecting. we've received in the documentation from the agency that the machines were not designed to detect powdered explosives. the sort of literature that we've seen by rapid scan and other manufacturers of these machines have indicated the machine, the machines detects high density objects, that is ceramics or hard plastics, not powdered explosives. anyone that has expertise on that, it would be great for someone to submit comments. the adequacy of the t.s.a.'s cost-benefit analysis, and jim might have comments on this, but looking at the cost-benefit analysis that the agency has put together, it's simply not accurate and it doesn't take into account the kinds of real costs that travelers suffer. the agency seems to believe that it's very expensive to allow people to opt out of these machines, but where is the classification for how expensive it is for people to opt out of travel via airfare?

a lot of people after these machines started to be put into place began to travel by car, began to travel by plane -- began to travel by train and there is a cost to that. so to look at that cost-benefit analysis and really take it apart, because the agency has not taken it apart. the agency has put forth the most favorable position that it could possibly put forth on these machines. to look at the health risks and really give those a good look because t.s.a. certainly hasn't. the agency, when it started putting these machines in airports, hasn't ever had an independent assessment of the radiation risks created by the machine. to really look at accuracy and the description of the capabilities of these machines. to look at the impact of the agency's screening program on travelers with prosthetics and other medical devices. the machines are designed to pick up anomalies and a lot of those anomalies are colonoscopy bags or sort of devices that

people might use after a mastectomy. they pick up very personal, very sensitive medical devices. to take a look at the layered approach that t.s.a. says it has to airport security. when we say these machines aren't detecting powdered explosives, what we hear from the agency constantly, this is just one part of a larger layered approach to airport security. so let's take a look at that layered approach. let's really take it apart and let's let the agency know the places where this is weak, where it's too invasive, where the invasiveness is -- the retention of images still really hasn't been an issue to be addressed by the agency. they've constantly denied these machines are capable of retaining images but the document wes got indicated clearly that the machines were designed by t.s.a. specification to be able to retain, store, transfer these images. and this sort of -- the stick

figure technology that the agency has put into place now, what it calls automated target recognition, doesn't necessarily resolve that problem. if there is still an under lying image that's taken by the image and overlayed with that politically correct stick figure, it doesn't fix the problem of the capture and the storage of very invasive image. so we would encourage everyone here and everyone who's watching to file comments on this, to really let the agency know what you think, to tell the agency know what your experiences are with these machines and if you have some expertise and cost-benefit analysis in radiation risks and these sorts of issues to let the agency know, to take the time, because this is a rare opportunity to comment on a program that, you know, we, a lot of us have been working on this for four to five years. this is a very controversy program and we actually managed to force the agency to have to take your comments. so, you know, do take this opportunity to comment on this

program. thank you. \[applause] >> edward hasbrouck, i suspect you have a few opinions about the t.s.a. new body scanning. i'd like to hear them. >> yeah, i'd particularly strongly endorse what ginger said, especially for those of you watching, it's critical for the t.s.a. to hear from those of you for whom being required to submit to a virtual strip search or to enhanced groping of your genitals is intolerable and who have therefore suffered the loss of your career, the loss of ability to visit family, friends, t.s.a. needs to hear from those of you who have been impacted. they want to pass this off as nobody should care if they're getting their genitals groped. nobody should care if somebody, you know, who for all you know is masturbating watching you naked, nobody should care about

that. it's minor. it's not they need to hear, especially from those who have their lives totally disrupted because travel is something we take for granted. one, as ginger read that regulation, it basically incorporates the idea of the virtual strip search machine into the authority that t.s.a. already claims that you must submit to screening. you must submit to whatever they say constitutes screening. it's critical to realize that at present there is absolutely no statutory or regulatory definition of what constitutes screening. there's no way to determine if they say you have to do this, do that, don't do that, don't do this, to find out whether you are allowed to do something or required to do something at a t.s.a. checkpoint is to refuse their

orders, be arrested and fight it in court. that's wrong. and that's a problem with the lack of rules, a lack of rule of law that far transcends the body scanners. but the other thing -- second point i want to make more specifically related to the rulemaking is that it's key for people to remind the t.s.a. that travel is a right, that they have an affirmative, explicit, statutory duty to consider your right to travel by air. and that's what's been missing from the whole frame of reference from the start of these post-9/11 aviation security programs is any recognition that these are conditions being imposed on the exercise of a right. once you recognize that these are conditions being imposed on the exercise of the right, then you have to recognize that they are subject to strict scrutiny, including two sorts of analysis that the t.s.a. hasn't conducted.

they have to be shown to be actually effective, not merely intended for a legitimate purpose, but actually effectively for that purpose. when you look at it, most of what the t.s.a. says they're effective for is catching drugs, not actually finding terrorists. and second, they have to be shown to be the least restrictive alternative that would fulfill that purpose. t.s.a. hasn't even pretended to conduct a restrictive alternative analysis. people need to remind them that travel is a right which they must take into consideration. >> yeah, this discussion of risk analysis and effectiveness is really i think one of the weakest points of this program. it's a program that's not only very invasive but it's not very effectively. and nowhere in their cost- benefit analysis within the 50 or so pages of actual analysis behind their sentence rule change do they actually address this, do they actually sit down and say this is the real risk being presented if we don't put these machines into place. this is how the machines

mitigate the risk and do some sort of cost-benefit analysis calculation on this. there are numbers on this and i know jim earlier this year or last year, you had an expert who was very good at estimating these actual risks that were created in travel. i mean, that's the sort of thing we need in these comments is someone who's very good at risk analysis. >> so i have my work cut out for me, do i? >> yes. >> cato scholar john mueller has done some excellent work on risk management and cost- benefit analysis and will be participating in this rulemaking. related to that, and let's go to the audience shortly. online someone asks, what are the real and hidden costs of the t.s.a. screening program? we've alluded to some of them. in the regulatory documentation of the short 52 pages, most of which is not actually analysis, they cite the literal dollar costs to t.s.a., but there are

many others. maybe we can brainstorm a little bit or discuss some of the costs that accrue to passengers, to the airline system, to airports and so on and so forth from the use of these machines. >> well, there's obvious the cost to the passengers who choose not to fly when they can avoid it now, to drive instead of to fly because they don't want to subject of these sort of invasive machines. >> if i may interrupt, that cost includes death on the highways which occurs more often per mile traveled in cars than it does in airplanes. >> so there's that cost. there's also the weight time cost. these machines take longer than the metal detectors. there's a cost associated with that. i'm sure you have some other comments. >> let me take the other side of it which is what are the costs of the surveillance component of the travel control, more than $2 billion by d.h.s.'s estimated by unfunded

mandate for i.t. changes for the industry. there's also a cost to travelers in that you are compelled by government order to provide additional information not directly to the government but for the government's purposes you're required to provide that additional information to the airline. one of the reasons the airlines haven't screamed more at the unfunded mandate is they've gotten a government gift. they have a free ride. there are no restrictions whatsoever after you've been forced to tell them this personal information on their ability to use, sell, monetize this in other ways. so it involves a massive government coerced transfer of informational property from individual travelers to the travel industry. certainly measured in the billions of dollars, although i think it's difficult to quantify. >> you might recall as travelers, a few years ago as travelers started collecting a birth date. they didn't have that if you are a frequent flyer, they need your birth date.

so nowadays and it was only a few years ago that wasn't the case, you have to share your gender and your birth date so it can be run past these systems. do we have questions or comments from the audience? i see third row back from the aisle. wait for the microphone. i don't require you to identify yourself. [laughter] >> my name is brian. i'm a washington correspondent for euro politics. newspaper. and i follow this issue because the e.u. spent years trying to negotiate passenger name record agreements with the u.s. i was just particularly fascinated when you started describing data that the u.s. government would have concerning trips taken within europe. not even on airlines. so can you just quickly recap how that ends up in the hands of the u.s. government and then

just on the agreements, i know the e.u., the volume of data was also the issue of the retention period, how long the data can be capped and the fact there was no judicial review, what's your view on those other issues? >> well, we could talk all day on that. in terms of how does the u.s. government get the information as i showed you about flights, train trips, bus trips within europe? it gets it because the data is already stored or copies of it are already stored or are accessible in the u.s. now, that's possible because u.s. companies that do business in europe has almost universally completely ignored e.u. data protection law and because e.u. data protection authorities have completely failed to enforce the law. that whole agreement between the u.s. and the e.u. that you were talking about only relates to the mirror copies kept by d.h.s. of this data and does nothing to cure the pre-existent flagrant violation of european

law the fact that the data is already transferred in the commercial sector to the u.s. but enough about that. the other part of your question was -- >> \[inaudible] >> well, again, that -- the agreement creates no judicial review because by its own terms it is not binding on the u.s. and is not enforceable in the u.s. all the agreement instituted was a partial grant of immunity so that some of the things that airlines, that travel companies have been doing that violated e.u. law would no longer violate e.u. law. it did nothing to create a right of judicial review in the u.s. this data is already exempt from the privacy act as far as the government sector. there are no privacy laws governing airlines, reservation systems in the u.s. so the commercial use of this data is completely unregulated.

so that agreement did nothing to solve any of the problems which predated this and persists. >> question right in front. identifyot afraid to myself. lisa. writer and editor at t.s.a. news blog. we've been covering this and urging our readers to submit their comments. their people submit comments they should at least know the t.s.a. very conveniently has started removing all the rapid scan machines which are the back scatter, the radiation emitting x-ray machines. by the time they say this comment period rolled around, there are no radiation emitting machines. we've removed them all. the millimeter machines have not been tested for safety. even if they're 100% safe there is still an invasive search of your body. they have a 54% false positive rate. they alarm on more than half the people that go through them, falsely alarm. before you submit your comments, i would just urge you

perhaps not to dwell so much on the radiation because they're removing those. don't give them that chance to boot your comment out of the public docket. concentrate on the fourth amendment violation, the violation of our bodies, the violation of our ability to travel about the country freely, the violation of the fourth amendment, and the fact that the scanners are so ineffective, they have a 54% false-positive rate. >> the one issue that comes up with the false positives, once you set off that alarm, then you're getting the patdown. >> let's take a question over here. in the middle of the front row. >> my name is helen anderson. i have been trying to get my case of invasion of privacy by military satellite surveillance into court for 40 years. our country continues to be more invasive of people's privacy rights every year. attorneys will not take my case.

my question is, why don't they do something about it? it's the legal profession that is creating all of this chaos. >> let's take that. what about private rights of action? epic brought administrative procedure action. there are a number of cases around the country. your thoughts on how this goes in the courts. >> we've seen a number of travelers who brought cases against the t.s.a. there is a provision if you bring a case against the t.s.a. you have to do it in d.c. circuit court. you have to do it in d.c. circuit court and that was a procedural problem for several of the plaintiffs in those cases. generally, it will be difficult to challenge this year the courts have taken forget to that the tsa has a wide latitude in the search is a candy within an airport. they give great deference to the agency on the fourth amendment issues. there is, of course, the possibility that someone is

bringing the lawsuit, if you ring -- if you bring the suit to a court that does not have as much sympathy for the agency, there really isn't a whole lot of field choice within the scenario. then there may be a better outcome. but it still needs to be wrought through the d.c. circuit court. >> there are cases going on to partially address one of those questions. two of the most significant -- corbett versus napolitano -- brought by a non-lawyer myself your entrepreneur, john corbett who has done a remarkable job as a non-lawyer. they are still pursuing them on appeal. the first circuit in boston will be hearing red friend versus napolitano tomorrow morning.

it was rocked by a couple of harvard law students. private rights of action are not entirely dead, but they continue to throw as many procedural barriers as they can. >> and there is the possibility to sue under the fta. it's an issue that we have been following for several years. we may end up filing suit under the apa under a similar fashion as we followed suit -- as we filed suit under this one. >> entrepreneurs expeditiously pursuing their rights. [laughter] >> a correspondent here from a post meet a candidate. the passenger who choose not to fly to new york, who choose to drive, you are monitored along the highway. your phone can be accessed here in if you -- accessed. how is gps factoring into dragnet and what do you feel

will be mined by the gps constant recognition of where we are? youre gps you have in phone, right now, there is not a lot of detection for that location information. -- protection for that location information. we have asked, to issue some kind of compensable a just and that will protect location information and congress has failed to deliver. there is also the issue of automated licensing readers. we saw this recently. when we filed the freedom of information act with the border protection. it is the only agency we can get to respond to our freedom of information act requests in anything under the a year -- under a year. we got back several memorandums of understanding that they had. they have been sharing the license plate data, not just with other federal agencies, but with third-party companies. thathave in sharing license plate reader data with insurance companies and car

companies who have been cheering it more widely with a larger web of companies that are part of what they called the endlet database. these are law enforcement agencies as well as companies associated with those in doing security-related work. this data gets shared out and shared out and shared out on a wider and wider scale. so the license plate reader is definitely something to pay attention to. there is a lot of them in d.c. there are a lot of them in maryland and i think in virginia as well. there's is not a lot of regulation around that as well. there is some hope about -- hope for the privacy location data. the gps case last year, the court ruled unanimously that there is a privacy interest in location data. but we are winning for that to trickle down and agencies have been attacking that. law-enforcement agencies have been attacking that pretty roundly.

>> this is one of the loopholes that you can drive a truck through. cbp operates under what they claim as the complete border exception to the fourth amendment. which makes border regions -- we are in a border region now because we are within 200 miles of the ocean -- they consider border regions to be the culmination of the so they say they can have gps data where most people live without any regulation whatsoever. i don't care that much about this information. part of the problem is what is innocuous here and now may be something that you have strong reasons to keep private somewhere else or at some other time or different rules apply, especially if you are traveling internationally, or where policy is legal can change for better or for worse with time. that is part of the particular

danger of not really looking at this stuff now, but reporting it in your permanent file against that future when whatever category it is you fall into maybe the one that is getting rounded up. >> and particularly on the privacy and locations of location data and all of the sort of sensitive data that can come out if your location is being tracked, you may be going to a religious institution or a political rally or an abortion clinic or a particular kind of doctor's office, a therapist's office, and all of that is very private information that you might not want to be logged forever in some paper file somewhere. >> down here in the front. >> a dozen years ago, i back tracked around the world for 20 months. if -- i backpacked around the world for 20 months and i used your work. for those of you who don't know, he is a living legend in

the travel world. among back to the right to travel, that law, right to travel the navigable airspace, that seems narrow. what is the big ensure of our right to travel and what are reasonable exceptions? i think it is reasonable to record the identities of everyone that crosses the border and not all the data -- not all the data you are showing us, but something. what would be reasonable exceptions and limitations? >> where is -- where does the right to travel come from? we were talking about that. constitutionally, it counts both as part of the first amendment, which guarantees the right to assemble. to assemble is an active verb. it means to come together in an assembly. the first amendment right to assemble means the right to travel, to be together, as when

we came here. it's also the right to travel -- it's also one of those enumerated rights that are, by the constitution, reserved to the people. and you can also get to the framework of it through international human rights during as far as what should the exceptions to the rights of travel, when you should be prevented from travel -- you should be prevented when a court has issued a junction. -- issued a note fly injunction. you are threatening to kill me and our children so i want the court to order you not to walk down my block. we have established legal process for no walk ordinances good they could be followed -- ordinances. they could be followed. but the united states has never fought a no fly injunction. they have no authority for that.

so interference, stopping you from travel should be based on a court injunction unless there is a basis for arresting you on this pot. -- on-the-spot. if you are not under arrest and under no injunction, as far as what conditions should be put upon it, that comes back to the scrutiny. those conditions that can be justified as actually effective and necessary for legitimate work this and that are the least restrictive alternatives that could serve that purpose. >> i want to talk about that injunction thing. we found something very interesting in the freedom information act documents that we got from the -- from the fbi a few years back from the no-fly list. we found that come even if a is court gives you a quibble on a charge, you could still be included on the no-fly list -- gives you an acquittal on a charge, you can still be included on the no-fly list. >> you will find out that you are on the no-fly list it does come according to the

guidelines, it is illegal for them to give you any information indicating that you are on that list. >> down here. >> my young daughter was searched at 13. what are their rules and guidelines for being searched? my young daughter was searched at 30. the person definitely didn't know what they were doing. you have your breasts squeezed. you have inappropriate behavior that no one else would be allowed. but there you say something, then you will go on your trip. -- but dare you say something, then you will not be going on your trip.

so you have to allow someone to basically -- do they have any type of guidelines on the people they choose? you have to sit there and allow your child to be abused by disgusting. -- right in front of you and it's disgusting. >> i have never seen the guidelines during this is a very good moment to point out the sort of effectiveness that we and -- that we as citizens can engage in with the agency. when they started doing these enhanced at downs, people protested, especially parents on behalf of the small children who were being patted down by tsa officials. and the agency did change its practice after that. children under the age of 12 are no longer subject to the same sorts of pat downs or body scanner machines. we do want to push back on the agency. we can create real change. but that requires that we actually participate in the democratic notice and promise process. -- and comment process. we have to mobilize. >> there are no rules. that is the problem. >> another question. along the aisle.

>> would you go further on what you talked about on the results of what this has been. tammy terrorists have been caught? -- how many terrorists have been caught? tsa has now spent a hundred billion dollars since nine/11 andng to catch terrorists how many have we gotten? valid question. others haveder and good writing is on this. the things that the government participates in that make us feel saver but don't actually eliminate that much more risk and often times programs are very evasive, very invasive, very expensive, but there isn't that much correlation between the elimination of threats in those costs. i think it is having somebody who is a real expert with you presented should present comments on the -- comments to the agency on this topic.

>> the answer appears to be zero. but we don't really know. congress hasn't pursued this question too much. it has testified at hearings at the european prominent in brussels. their members of parliament have pressed this question. and the response from dhs is that this has been a success because we have stopped so many people from traveling. but what they haven't said is anything to clarify whether those are examples of success or whether those are examples of cases in which they have deprived people of their rights. those are not people who have been convicted of anything and it appears that, in general, they have. -- but they haven't. when pressed for success, they talk about how many arresting you look at drug arrests. >> looking at the recent history of attempted conclaves, it might -- and attempted bombings on planes, it might be more worthwhile for the agency to spend its money on some basic training for americans -- american citizens on how to disarm a terrorist. >> it's worth notice -- it is worth noting that terrorist caught is not always shown in a

program like this, but a deterrence. wereuld curtail what they planning. if that is the case, then we could have the machines not collect any information at all and just have people run through and make them think that they are being collected. we are certain to run short on time. i have two questions. i will start with the curveball. our audience may have picked up that neither of you are libertarians. i wonder what you think about the policy a referral to a medley, which is to restore responsibility for security to the airlines and to the --what would the accountability would be like? >> i think we would be facing

the same issues. the collection of data wouldn't make a big difference to me or to others who it is that is using these machines and who it is that the lyrics the data, special ash that is collecting the data -- that is collecting the data. perhaps there would be more of a push toward cost- effectiveness. but i don't know. it's hard to tell. >> the airline industry receives enormous subsidies in part in exchange for their use of public resources in their agreement to operate as common carriers. again, this is begin more personally, but i think the choice was made in early pioneer active deregulation in 1978. the choice was made to allow

airlines free choice of setting their own prices at least a mystically. -- it domestically. but those provisions i showed you earlier requiring them to respect travel as a right and require them to operate in a nondiscriminatory way as a common carrier, they were retained. the key thing, if you were to transfer security back to the airlines, it would be to maintain and actually enforce the continued obligation that they actually operate as common carriers and free travel as a right. as ad tree to travel writer. and if you don't want to take and treat travel as a right. all comers, then you become a charter operator and you can pick and choose who you want to travel with. if you want to license and operate as a common carrier, you need to respect the rights of your customers. get more pleases and thank use

-- and thank yous. the general project of bringing i will say again -- tinyurl.com/tsacomment, for those of you who want to register your comments -- the overall arch is trying to bring the transportation security administration in at least one respect under the rule of law. and allow what we have been talking about here today, the rule of law, with regard to air transportation and air security, with the issuance of this exceedingly slim and somewhat contemptuous notice of what the regulation is given that the second-highest court in the land asked for it, i wonder if we have not set back in that project. the regulation will be rejected in the courts when it finally gets there. and we will have another few years of work to get a good regulation that can then be

challenged on the substance of whether this provide security benefits in exchange for the cost. but i want to hear your prognosis, what you think happens, how this plays out, how long it takes to get the tsa under the yoke of law if we can't just get rid of it. >> i think we just keep whittling at it. if you look at the public response to body scanners, they were subjecting airline pilots to body scanners. we have seen some movement. that was ridiculous. if you are an airline pilot, you are already flying a plane and yard have control of a plane and you could destroy it if you so choose. assumably, you have gone through the proper clearance program to ensure that you are responsible enough to fly that plane. so why should you have to go through the body scanner? the agency has since made an exception for the airline pilots, an exception for small children, at least in regards to some screening. we have seen the push toward the automated target

recognition machines, the stick figure machines. i do think that we can force the agency to get into line, but it will be with a lot of follow-through. i guess i still have faith in the democratic process. [laughter] >> we need litigation. it's good that that is happening. we need to appeal the progress more because they haven't taken up this issue the way they should. but ultimately, we don't get rights by appealing to somebody else. we have rights and we retain our rights by exercising them. the only way really to get these things established is for people to say no to illegal orders, illegal demands. if you're prepared to do that, take the rap and fight it. unless people stand up and say no, this will move forward.

>> yes, you have to pick up the dust. -- kick up a fuss. sending your angry comments. >> when we have the government recognizing a right to travel -- and i phrase that line in light of the comments to the effect that we have them, but the government just doesn't recognize and ask when we have the government recognizing a right to travel, it will be in no small part due to judgment call and edward hasbrouck. -- due to ginger mccall and edward hasbrouck. [applause] an administrative note. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] ceremony was the culmination of more of a decade's worth of work that started in 2002 when the remains of two united states sailors were recovered from the turret

of the u.s.s. monitor by navy divers. although they got a great information on the age and height and some of the elements and some of the things and habits, they could do a dna match. the monitor was a revolutionary ship that changed in naval warfare in one day. it was different from its predecessors because it was an iron ships made entirely of honor. it was a transition from the age of woods to the age of iron. it also had a revolving gun turret. it was designed by a swedish engineer who designed this vessel with two guns and contemporaries had as many as 40 guns. it was protected in a heavily armored turrets that could rotate 360 degrees. for the first time in history, it separates the navigation from the ship from the firing of the weapons and this changed