Permission to travel

Should you have to ask for permission from the government before you are allowed to get on a plane or cruise ship? ("Mother, may I?")

The USA Department of Homeland Security (DHS) has proposed that airlines cruise lines, and operators of all other ships and planes -- including charter flights, air taxis, fishing vessels, etc. -- be required to get individual permission ("clearance") from the DHS for each passenger on all flights or ocean voyages to, from, or via the USA. Unless the answer is "Yes" -- if the answer is "no" or "maybe", or if the DHS doesn't answer at all -- the airline wouldn't be allowed to give you a boarding pass, or let you or your luggage on the plane.

I filed comments this week with the DHS on behalf of the Identity Project, the World Privacy Forum, and activist entrepreneur John Gilmore, objecting to this proposal as a violation of international human rights, First Amendment rights, and privacy and government accountability laws.

This is the third identification-related "rulemaking" in the last month and a half in which the DHS has proposed to restrict the right to travel. I've worked with the Identity Project to file formal objections to each of these proposals:

Expansion of US-VISIT fingerprinting, photographing, and lifetime dossiers on visitors to include permanent U.S. residents (green card holders)

The Western Hemisphere Travel Initiative to require passports for travel between the USA, Canada, Mexico, the Caribbean, and Latin America

Conversion of the Advance Passenger Information system (API or APIS) for international ship and plane travel into an advance permission system

Airlines and cruise lines also objected to the international APIS proposal, but on grounds of cost and difficulty to implement rather than the rights of travellers. From the airlines' comments, it's clear that the DHS still doesn't understand how airlines operate, and continues to base proposals like this on fundamentally erroneous assumptions about their procedures.

There's no way to link directly to the comments. To view the entire docket, got to http://www.regulations.gov . Since comments have closed, check the box to search all documents instead of the default of only documents currently open for comment, then search for "USCBP-2005-0003". As in all such regulatory proceedings, the agency (the DHS) is supposed to consider and respond to the public comments before it finalizes the proposed rules.

The consensus of airline comments is that the international APIS proposals are unworkable as written, would cost many times more than the billions of U.S. dollars the DHS estimated, would require expensive and disruptive systemwide schedule changes (especially with respect to connecting flights) and major reprogramming of departure control and reservations systems, and would take at least a year to implement, rather than the proposed six months.

Perhaps the most telling comments are those from the USA Department of Defense, which wants not merely military flights but also all flights operated by military contractors exempted from the DHS permission ("clearance") system. I guess they don't want their contractors to have any difficulty getting permission for a "rendition" flight if one of the people being delivered to another country for torture is on the no-fly list. The Pentagon also says the programming the DHS wants completed within six months will take the military at least one to two full years.

[Addendum, 5 November 2006: Welcome, Slashdotters and others. For those who are having trouble navigating the Regulations.gov Web site, I've posted local copies of the Notice of Proposed Rulemaking and the CBP Regulatory Assessement for the APIS proposal, as well as the Identity Project comments in response. Comments on this blog may be disabled temporarily due to Slashdot traffic. If your comment is rejected, e-mail it to me and I'll post it manually once things calm down. Note also that the NPRM does not state when the proposed new APIS rule would be effective, contrary to some secondary and tertiary sources reporting this story. Keep watching the Federal Register for a notice of a final rule with an effective date.]

[Further addendum: On 23 August 2007, the DHS published a final rule putting the requirements for government-issued credentials and individualized prior permission for international flights into effect as of 19 February 2008. More here and in continuing coverage in this blog. Wendy Grossman explores the implications of the change in the default from "Yes" to "No", and reports on her own request for her PNR data, in her "net.wars" column, The permission-based society .]