No-Fly Like Me

I’m on the government’s watch list for terrorists, but I still think the ACLU’s court challenge is dumb.

On April 6 the American Civil Liberties Union filed suit against the Transportation Security Administration over its administration of the “No-Fly List” used by airlines to identify any passengers who might be connected to terrorist organizations. The No-Fly List has generated a lot of complaints for subjecting a great many innocent people to delays and other inconveniences as they try to board their flights. If your name happens to match that of a suspected terrorist, or even just sounds vaguely similar to that of a suspected terrorist, you’re pulled out of line at the check-in counter and sometimes subjected to some questioning and a separate (though not terribly invasive) body search. It’s a real pain. I know, because I’m on the No-Fly List myself. Still, I think the ACLU lawsuit is nuts, and I fervently hope it gets tossed out.

Don’t get me wrong. It would be lovely if the TSA managed to streamline procedures for removing “false positives” like me from the list and perhaps improve its methods for putting people on the list in the first place. Even more useful, perhaps, would be improved effort by the airlines. According to an April 2003 story by Ann Davis in the Wall Street Journal, airlines often use appallingly crude methods to match the names of passengers to names on the No-Fly List:

One name-matching technique that airlines have used, called Soundex, dates back more than 100 years, to when it was invented to analyze names from the 1890 census. In its simplest form, it takes a name, strips out vowels and assigns codes to somewhat-similar-sounding consonants, such as “c” and “z.” The result can be bizarre. Hencke and Hamza, for example, have the same code, H520. If there’s a Hamza on the No Fly List, a traveler named Hencke could be pulled aside for a background check before being allowed to board. A 40-year-old method designed specifically for airlines does something similar, stripping names down to consonants and pulling up names that have the same consonants in the same order. A third technique sometimes used by airlines hunts for matches based on the first few letters of surnames.

Obviously, these algorithms carry enormous potential for mischief. A couple of airport ticket clerks told me that some alleged bad guy had either used my name (presumably by coincidence, possibly by design after seeing it online or in print) or had used a name that “sounded” like mine. An online Soundex converter informs me that in a U.S. phone directory for 2000 there were 90 names whose classification matched my own, including “Timothy Nye,” “Timothy Nee,” “Timothy Nau,” “Timothy Nay,” and “Timothy New.” Funny, but I can’t remember ever having my name garbled in these particular ways before. (More typically, it’s mistranscribed as “Tom Nash.”) Do these 90 listings include the current or former whereabouts of the suspected terrorist? I don’t know. But I can tell you that the database contains no listing for me, and as a journalist, I live a much more public life than any terrorist would dare. Nor does it list my most conspicuous doppelgänger, an Emmy-winning children’s entertainer in Seattle named Tim Noah. (I presume Seattle Tim has experienced the same difficulties boarding planes, though it’s possible he’s sufficiently recognizable in his hometown to avoid mishaps at Sea-Tac. Whenever I’m stuck at an airport waiting to be cleared for boarding, I think, “This would never happen if I did more TV.”)

The ACLU is absolutely right to want the government to develop a better screening system. Where I part company with the civil liberties group is in perceiving the current system’s deficiencies as a violation of my constitutional rights—specifically, those defined in the due process clause of the Fifth Amendment and the search and seizure clause of the Fourth Amendment. By seeking “declaratory and injunctive relief on behalf of [the lawsuit’s plantiffs] and a class of similarly situated individuals,” the ACLU is effectively seeking to throw out the No-Fly List altogether. In theory, the TSA could keep its screening system if it managed to “remedy immediately” the presumed unconstitutional aspects of the No-Fly List’s “maintenance, management, and dissemination.” But the ACLU’s specific complaints about the No-Fly List are so petty that I can’t imagine any reforms would ever satisfy it.

The seven plaintiffs in this lawsuit (who include two ACLU officials) are some of the biggest crybabies you would ever care to meet. By their own testimony, not one of them ever missed a flight due to the screening procedure. (Neither have I.) Or rather, procedures, since the No-Fly List is actually two lists: a “No Fly” list and a more elite “Selectee” list. Straight-up No-Flyers like me drum our fingers on the check-in counter while the ticket clerk takes our driver’s license to an unseen supervisor, who matches it to the TSA database before deciding whether to give us a boarding pass. (I like to think the database contains the suspected terrorists’ photographs, but more likely it only contains rough descriptions, estimated ages, and former addresses.) Selectees also have to undergo 1) a brief interrogation by a policeman or security guard; 2) a separate luggage search; and 3) a physical inspection involving the standard pat-down and magnetic wand, no undressing or body cavity searches. (This all presumes, of course, that the Selectee keeps his cool.) The boarding passes of both the No-Flyers and the Selectees are then stamped with a scarlet “S,” which I guess means, “We’re pretty sure this person’s OK, but if he starts to act suspicious, don’t cut him any slack.”

But let’s hear the plaintiffs tell it. Michelle Green, a master sergeant in the Air Force, an apparent Selectee, felt “publicly embarrassed” and “stigmatized” by the added screening procedures; apparently she’d hoped to make a better impression on the other passengers traveling from Seattle to Fairbanks. The ticket agent “announced I was on the list and would have to be cleared by security. I was told that I had to accompany the agent to another area to be cleared.” Darkness at Noon this wasn’t.

David Fathi, an American-born ACLU lawyer of Iranian descent, did what you’re never supposed to do—he made a fuss—but was still allowed to board his flight after a standard Selectee procedure. What were the greatest indignities? He was asked to provide his telephone number and his Social Security number.

Alexandra Hay, a junior at Middlebury College, was “embarrassed and a little intimidated” when told she was on the No-Fly List. But people embarrass easily at that age. Like everybody on the No-Fly List, she isn’t allowed to use the e-ticket kiosks. (If you try, it won’t complete the transaction.) If that’s the biggest sacrifice she has to make to the war against al-Qaida, she’s getting off lightly.

Let’s suppose—just suppose—that the No-Fly List has caused only one terrorist not to board an airplane with a sharp tool or explosive shoes. Wouldn’t that still be worth these mild inconveniences? Of course it would. I don’t mind being the haystack because Sept. 11 taught me that there are needles out there. By all means, let’s find better ways to search for them. But let’s not make the perfect the enemy of the mediocre.