From Cyberlaw

ATS is one of the most advanced (and controversial) governmental surveillance tools that have ever existed. It has been developed by the Bureau of Customs and Border Protection, as a module of a bigger entirety, called Treasury Enforcement Communications System (TECS).

In October 2006 the general public learnt that TECS was not used for information sharing only, but that the National Targeting Center has been exploiting the system for additional screening activities.

The Notice of Privacy Act system of records ¹[hereinafter “System of Records Notice (SORN)”] available here says in that respect:

"The Automated Targeting System (ATS) associates information obtained from CBP's cargo, travelers, and border enforcement systems with a level of risk posed by each item and person as determined through the rule based query of the cargo or personal information accessed by ATS." (at 64544)

"ATS is employed as an analytical tool to enhance CBP screening and targeting capabilities by permitting query-based comparisons of different data modules associated with the TECS system, as well as comparisons with data sets from sources outside of TECS." (Id)²

With the purposes:

" (a) To perform targeting of individuals, including passengers and crew, focusing CBP resources by identifying persons who may pose a risk to border security, may be a terrorist or suspected terrorist, or may otherwise be engaged in activity in violation of U.S. law; (b) To perform targeting of conveyances and cargo to focus CBP's resources for inspection and examination and enhance CBP's ability to identify potential violations of U.S. law, possible terrorist threats, and other threats to border security; and (c) To assist in the enforcement of the laws enforced or administered by DHS, including those related to counterterrorism." (at 64544-64545)

The foregoing aims make it clear that travelers are screened with a targeting methodology analogous to the one used for screening cargo, being profiled on the basis of a wide range of information stored in the system. It also demonstrates that having counterterrorism written with big letters on its flag, targeting is undertaken for all the enforcement purposes.

On the top of that ATS, as a part of TECS, avails itself of the same Privacy Act exceptions with no other unfair accusation remedies introduced instead. According to SORN:

"RECORD ACCESS PROCEDURES: Generally, this system of records may not be accessed under the Privacy Act for the purpose of inspection (...).

CONTESTING RECORD PROCEDURES: Since this system of records may not be accessed, generally, for purposes of determining if the system contains a record pertaining to a particular individual and those records, if any, cannot be inspected, the system may not be accessed under the Privacy Act for the purpose of contesting the content of the record" (at 64546).

Late in 2006, Electronic Privacy Information Center criticized the project in its Spotlight on Surveillance, Customs and Border Protection’s Automated System Targets U.S. Citizens, (hereinafter “EPIC Spotlight”)³, while the Department of Homeland Security, Customs and Border Protection defended its position in the Privacy Impact Assessment for the Automated Targeting System (hereinafter “ATS PIA”))⁴. First, EPIC points that “the profiles will determine whether individuals will be subject to invasive searches of their persons or belongings, and whether U.S. citizens will be permitted to enter or exit the country”⁵. Second, it underlines that “individuals will not have judicially enforceable rights to access information about them contained in the system, nor to request correction of information that is inaccurate, irrelevant, untimely or incomplete”⁶, Third, profiling criteria and rules are not known to the public. Fourth, ATS retains risk assessments for 40 years. Fifth, recipient categories “are so broad as to be almost meaningless, allowing for potential disclosure to virtually any government agency worldwide for an array of actual or potential undefined violations”⁷. It also reminds that thousands of innocent air travelers have been put on the no-fly lists since September 11, 2001 and the Government Accountability Office questioned accuracy and reliability of ATS risk assessments. Finally, EPIC points at inefficiencies of the current shipping cargo screening, suggesting that the resources spent on developing travelers’ screening system would be more appropriately spent if devoted to screening cargo only. Undoubtedly travelers may imperil public security and the right counteraction may require deviations from the basic pattern of protection. The question, however, is how to demonstrate the public that privacy sacrifice is paid off by a real enhancement of security. Not an attempt of such an attitude is pertinent to the current shape of the system. But the position of EPIC is an opposite extreme, claim of 'all or nothing', while it is more than probable that publicizing profiling criteria and equipping individuals with the fully fledged information rights of the Privacy Act would deprive the system of its enforcement usefulness. The EPIC is misleading blurring the difference between determining targets for detailed inspections and outcomes of the inspections. One may ask why an ICT system should decide about who faces inconveniences related to detailed border inspections, but then why does not the public question fairness of random inspections themselves? No one can be sure of their targeting criteria either. If, for the sake of public security, extensive privacy rights of individuals are deprived ⁸, then other mechanisms should be at place, which could guarantee that system records are appropriately verified before they amount to an adverse action against individuals. Such an alternative protection would exist if, during a detailed inspection undertaken pursuant to a TECS’s analysis, border officers had a duty to confront the information contained in the database against allegations of the inspected person. Should records prove to be inaccurate at that stage, the border enforcement agency ought to have a statutory obligation to rectify them and the liability issue should arise if the obligation is not duly fulfilled or when an action against a traveler is taken regardless he/she can prove the information was inaccurate. With this safeguard in place threats stemming from a long period of retaining personal information for ATS purposes and the danger of repeating the no-fly lists embarrassment would be significantly limited. Having that in mind, inconsistencies in legal arrangements for ATS are poignant indeed. CBP concedes that “in cases where an individual has a concern about the information collected during an interaction with a CBP officer, the CBP officer may provide the individual with a copy of the IBIS Fact Sheet (…), which provides both general information concerning CBP’s border enforcement mission and responsibilities, and specific information concerning where to direct inquiries about CBP’s actions or the information collected”⁹. It means that, instead of verifying personal information, CBP officer is pulling the wool over the eyes of an individual with a meaningless, but also misleading¹⁰, leaflet. Pointless is also mentioning that “procedures for individuals to gain access to data maintained in source systems that provide data used by ATS would be covered by the respective SORNs for the source systems”¹¹, because SORN for TECS, the main source system of ATS, clearly exempts the system from the access related rights.

CBP states that “there is no procedure to correct the risk assessment and associated rules stored in ATS as the assessment is based on the underlying data and will change when the data from source system(s) is amended”¹² and “CBP has a policy in place which permits the officer to promptly initiate corrective action with regard to that record to avoid that person being identified for examination during future entry or exit processing based on that erroneous information”¹³. This is exactly where the problem with legal arrangements for the system lies. The right procedure “to correct the risk assessment and associated rules stored in ATS”, as the CBP puts it, should require amending source system data, imposing an obligation in that respect on CBP officers, not just a permit under an internal policy of the agency, to correct erroneous information when inaccuracy is revealed in the course of detailed inspections. The CBP announces that it “has created a Customer Satisfaction Unit in its Office of Field Operations to provide redress with respect to inaccurate information collected or maintained by its electronic systems, which include ATS, TECS, IBIS, and APIS”¹⁴. Undoubtedly the Unit will not be inundated with complaints if individuals have no choice to verify accuracy of their records. Most probably this is exactly what the arrangement aims at. Yet, it will spur the tension between the government and the society. CBP officers do not have an obligation and CBP itself does not have incentives (because it is not liable) to take care of the records accuracy. And a system relying on inaccurate data is neither fair nor efficient.

Hence it should not be even a right of an individual, but a duty of CBP officers to verify the information (which ensues making them accessible to the individual) during the detailed control, rectify it in the source system at spot or inform the individual about the review procedure which should be available to him/her. This is also why the provision of the Privacy Act referring to the priority of collecting information from the subject individual¹⁵ should not be exempted. From this perspective no value exists which could offset exemptions relating to the requirements of information relevance and necessity for a statutory purpose of the agency¹⁶ or maintaining accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness of determination about an individual¹⁷. Rejecting these provisions, CBP welcomes irrelevant and unnecessary records into the system and agrees for unfair determinations.

Notes=

1 ^  Department of Homeland Security, 71 Fed. Reg. 64543 (Nov. 2, 2006).

2 ^  Privacy Impact Assessment for the Automated Targeting System (hereinafter “ATS PIA") indicates the following information sources:

Automated Commercial System (ACS), the Automated Export System (AES), the Automated Commercial Environment (ACE), and the Treasury Enforcement Communication System (TECS), commercial carriers as to Passenger Name Record (PNR), foreign governments and certain express consignment services in conjunction with specific cooperative programs.

3 ^  Available here.

4 ^  (Nov. 22, 2006) available here.

5 ^  EPIC Spotlight, supra note 3.

6 ^  Id.

7 ^  Id.

8 ^  Yet, the Privacy Act exemptions do not preclude access rights under the Freedom of Information Act (FOIA) (5 U.S.C. 552).

9 ^  ATS PIA, supra note 2 at 17.

10 ^  IBIS is only one of several source systems used by ATS.

11 ^  ATS PIA, supra note 2 at 18.

12 ^  ATS PIA, supra note 2 at 19.

13 ^  Id.

14 ^  Id.

15 ^  (5 U.S.C. 552a (e)(2)).

16 ^  (5 U.S.C. 552a (e)(1)).

17 ^  (5 U.S.C. 552a (e)(5)).