A federal court [PDF] has just declared the federal government's Terrorist Screening Database (TSDB) unconstitutional. It's not that the government can't maintain a database of travelers it feels are enough of a threat to hassle repeatedly, it's that it can't do this without providing more information to, and better redress options for, those it has placed on this list.
Unlike the "No Fly List," TSDB placement doesn't necessarily prevent those on the list from traveling. It just means they'll be subjected to enhanced screening processes and detentions that can last for hours. Travelers are not informed when they are put on this list. Nor are they told whether or not they are on this list if they ask the government why they're being searched and detained every time they attempt to board a plane or return from a foreign country.
The guidelines for placement on the TSDB are vague. They're also something the government isn't willing to discuss. A nomination can be performed by almost any federal agent for almost any reason. This is how the US government ends up presiding over a so-called terrorist watchlist that contains children as young as four years old.
The sole avenue of redress provided by the government does not work. The DHS's Traveler Redress Inquiry Program was revised after being declared unconstitutional by this same court in 2015. The new version was considered adequate for travelers placed on the more restrictive "No Fly" list. But it isn't adequate for those the government feels are benign enough to be allowed to board planes, but somehow still dangerous enough to be subjected to lengthy interrogations and highly-intrusive searches.
The entire redress process is a black box. The DHS takes the complaint, determines whether or not the person is on the TSDB, and then tells the complainant nothing. Unlike the revamped redress process for the "No Fly" list, possible watchlist members are never told whether or not they're on the watchlist, or whether they're still on it after the government has taken a second look at their nomination.
The government tried to dodge this lawsuit by claiming two things: first, that traveling around the country without being hassled is not a right. Second, it said the plaintiffs had failed to exhaust their non-litigation options, pointing to the very TRIPs process the court has declared unconstitutional. The court points out the plaintiffs are suffering real, ongoing harm due to their placement on this watchlist. That's enough to make the broken redress process the DHS offers unconstitutional.
Coupled with Plaintiffs' movement-related rights are their reputational interests and claims of reputational harm resulting from their placement on the TSDB. A person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a "stigma-plus."
Here, Plaintiffs' reputational interests implicated by their inclusion in the TSDB are substantial because of the extent to which TSDB information is disseminated, both in terms of the numbers of entities who have access to it and the wide range of purposes for which those entities use the information, including purposes far removed from border security or the screening of air travelers. For example, TSDB information is used in the screening of government employees and contractors, for which purpose access to the TSDB is provided to certain large private contractors to screen certain employees, as well as private sector employees with transportation and infrastructure functions.
Additionally, and significantly, the FBI shares an individual's TSDB status with over 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities for law enforcement purposes. These private entities include the police and security forces of private railroads, colleges, universities, hospitals, and prisons, as well as animal welfare organizations; information technology, fingerprint databases, and forensic analysis providers; and private probation and pretrial services. The dissemination of an individual's TSDB status to these entities would reasonably be expected to affect any interaction an individual on the Watchlist has with law enforcement agencies and private entities that use TSDB information to screen individuals they encounter in traffic stops, field interviews, house visits, municipal permit processes, firearm purchases, certain licensing applications, and other scenarios. For example, Plaintiffs might experience in other interactions with law enforcement agencies or affiliated private entities the same kinds of encounters they complain about at the border being surrounded by police, handcuffed in front of their families, and detained for many hours. In short, placement on the TSDB triggers an understandable response by law enforcement in even the most routine encounters with someone on the Watchlist that substantially increases the risk faced by that individual from the encounter.
Given what placement on the list takes away from those on it, the process provided by the DHS to seek redress is not Constitutionally adequate.
DHS TRIP, in its current form, provides no notice concerning whether a person has been included or remains in the TSDB, what criteria was applied in making that determination, or the evidence used to determine a person's TSDB status. Nor does the DHS TRIP process provide the Plaintiffs with an opportunity to rebut the evidence relied upon to assign them TSDB status. Give the consequences that issue out of a person's inclusion on the TSDB, the Court concludes that DHS TRIP, as it currently applies to an inquiry or challenge concerning inclusion on the TSDB, does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause.
The DHS will need to fix its redress process. Again. What may have sufficed for the more restrictive "No Fly" list does not come close to being constitutional when it comes to its other, far more expansive, watchlist.
Filed Under: civil liberties, dhs, due process, terrorist screening watchlist, terrorist watchlist, travel, tsdbCompanies: cair