Report Says TSA Violated Privacy Law

Passengers Weren't Told That Brokers Provided Data to Screening Program in '04

By Ellen Nakashima and Del Quentin Wilber
Washington Post Staff Writers
Friday, December 22, 2006; A07

Secure Flight, the U.S. government's stalled program to screen domestic air passengers against terrorism watch lists, violated federal law during a crucial test phase, according to a report to be issued today by the Homeland Security Department's privacy office.

The agency found that by gathering passenger data from commercial brokers in 2004 without notifying the passengers, the program violated a 1974 Privacy Act requirement that the public be made aware of any changes in a federal program that affects the privacy of U.S. citizens. "As ultimately implemented, the commercial data test conducted in connection with the Secure Flight program testing did not match [the Transportation Security Administration's] public announcements," the report states.

The finding marks the first time that the Homeland Security Department has acknowledged that the problem-plagued Secure Flight program has violated the law. It comes at a time when a separate program to screen international passengers is under attack for officials' failure to disclose until recently that they were creating passenger profiles that would be stored for 40 years.

The report on Secure Flight says that "the disparity between what TSA proposed to do and what it actually did in the testing program resulted in significant privacy concerns being raised. . . . Privacy missteps such as these undercut an agency's effort to implement a program effectively, even one that promises to improve security."

Congress has halted Secure Flight, except for testing, until it can allay privacy and security concerns.

The report notes that TSA eventually revised its public notice about the program to reflect more closely the program itself. But it also suggests that Secure Flight will run afoul of the law again unless it follows a set of recommendations, including being transparent about the program's collection and use of passengers' personal information.

TSA Administrator Kip Hawley said that he supports the use of Secure Flight and that his agency is working closely with other government officials to ensure it protects privacy. "We are working in a transparent way," Hawley said, adding that the agency's "challenging" goal is to roll out the program in 2008.

In 2004, the TSA published a Federal Register notice on a data-test phase of the program, saying that "strict firewalls" would prevent any commercial data from mixing with government data. However, this was based on the notion that the Secure Flight contractor, EagleForce Associates Inc. of McLean, would ensure that no commercial data were used, the report said.

But by the time the EagleForce contract was finalized, "it was clear that TSA would receive commercial data," the report says. If, for instance, TSA data for an individual passenger lacked an address or date of birth, EagleForce would obtain the missing information from commercial data brokers.

"The fact that EagleForce had access to the commercial data did not create a firewall," the report says, because under the Privacy Act, in effect, "EagleForce stands in the shoes of TSA."

Moreover, commercial databases provided Eagle Force with data for some individuals who were not air passengers. These people were never notified -- a violation of the privacy act, the report says.

TSA spokeswoman Ellen Howe said the agency has "already implemented or is in the process of implementing" the recommendations contained in the privacy office report. She said the report's conclusions were not surprising, adding that they were "very similar" to those reached last year by the General Accounting Office, the government's auditing arm.

A 2004 probe found that the TSA improperly stored 100 million commercial data records containing personal information on passengers after the agency said no data storage would occur.