Due Process News: Ninth Circuit says airline passengers can challenge no-fly list

[I haven't had a chance to read the ruling, but I assume the TSA is still using CAPPS or something very similar, which on paper and in gov. and corp. offices sounds like a great idea. But the problem with most ideas that come from well connected people who get to and fro from gov. and corp. offices to the country club in the back of a limo, is that those ideas are mostly about salving someones ego, and not so practical in the real world, i.e. as in using a profiling system to figure out who/m to be afraid of. There was a research paper written a few years ago by some MIT students who used a common-sense approach to explaining why the profiling thesis a.k.a. CAPPS is flawed, called Carnival Booth: An Algorithm for Defeating the Computer-Assisted Passenger Screening System, [make sure to scroll down after clicking] short explanation here

Two articles below: the first is a straight news story on what the ruling was; and the second is an explanation by Anita Ramasastry of findlaw.com]

[~ John]

Court: Passengers can challenge no-fly list

Bob Egelko, Chronicle Staff Writer

Tuesday, August 19, 2008

    Critics of the government's secret no-fly list scored a potentially important victory Monday when a federal appeals court ruled that would-be passengers can ask a judge and jury to decide whether their inclusion on the list violates their rights

    In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco reinstated a suit by a former Stanford University student who was detained and handcuffed in 2005 as she was about to board a plane to her native Malaysia.

    The ruling is apparently the first to allow a challenge to the no-fly list to proceed in a federal trial court, said the plaintiff's lawyer, Marwa Elzankaly.

    The decision would allow individuals to demand information from the government, present evidence on why they should not have been on the list, and take the case to a jury, Elzankaly said.

    The ruling means that "someone who finds it's likely that their name has been placed on a government watch list will get their day in court," Elzankaly said.

    The Transportation Security Administration, which maintains the no-fly list, had no comment on the case, said Nico Melendez, an agency spokesman in Los Angeles.

    A federal judge in San Francisco had dismissed the suit, citing a law that requires all challenges to TSA orders to be filed directly in an appeals court, with no right to present evidence or convene a jury. But the appeals court majority, led by Chief Judge Alex Kozinski, said the no-fly list, though maintained by the TSA, is actually compiled by a branch of the FBI, which can be sued in a trial court like most other federal agencies.

    The TSA, part of the Homeland Security Department, has lists of hundreds of thousands of names of passengers who allegedly pose a risk of terrorism or air piracy, information the agency shares with airlines. Those on the no-fly list are prevented from boarding. Passengers on a separate "selectee" list undergo additional searches.

    Such listings date from 1990 but have been expanded substantially since 2001, although the government has not disclosed their full scope or criteria. Civil liberties groups have argued that the lists are far too broad, are riddled with errors and lack meaningful safeguards. The TSA has established an ombudsman's office to review passengers' claims that they were mistakenly listed.

    [...]

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An Appeals Court Opens the Door to Judicial Review of the "No Fly" List: A Promising Step Toward Providing Passengers with Due Process

By ANITA RAMASASTRY
Thursday, Sept. 11, 2008

    For some airline passengers, the no-fly list has been a continuous nightmare. Being on the list can mean being detained at airports and subjected to extensive questioning and searches. Meanwhile, getting off the list has often proved difficult or impossible.

    Initially, the Transportation Security Administration (TSA), which administers the list, had no procedures in place for those who asserted they were wrongly listed. Over time, the TSA has offered varying processes that travelers have found confusing, opaque, and cumbersome. Moreover, it has been unclear where passengers whom the TSA turns down can go for help.

    Fortunately, relief may finally be in sight - thanks to a lawsuit brought by a former Stanford graduate student from Malaysia, Rahinah Ibrahim. Ibrahim sued the Department of Homeland Security (DHS) and the TSA in federal court after she was told she was on the list, handcuffed, and detained by California law enforcement.

    Recently, Ibrahim gained a victory in the suit: The U.S. Court of Appeals for the Ninth Circuit ruled, 2-1, that a traveler can ask a federal trial court to decide whether her name should be included on the list and whether being listed violates her civil or constitutional rights.

    In this column, I'll explain why I believe this ruling was correct, and why it will have a lasting impact on the rights of travelers who seek redress, hoping to clear their names for good.

    [...]