In the ACLU's new paper U.S. Government Watchlisting:
Unfair Process and Devastating Consequences [PDF], the group describes strange world of terrorist watchlists, including no-fly lists, where it's nearly impossible to discover if you're on a list, and nearly impossible to find out why you're on a list, and nearly impossible to get removed from a list. As the ACLU points out, this is Orwell by way of Kafka, where we're not allowed to know what surveillance is taking place or why surveillance is taking place — and we're not allowed to know why we're not allowed to know.
The ACLU says that the national terrorism watchlist has 1.1 million names on it, and an AP report from 2012 found 21,000 people on the no-fly list. Recently, Rahinah Ibrahim became the first person to be officially, publicly removed from a no-fly list, after the government was forced to admit that she'd been placed there due to a bureaucratic error. All through the Ibrahim case, the government argued that disclosing any facts about her no-fly status would endanger national security, but ultimately it was obvious that the only potential risk was that the government's sloppiness would be disclosed. The state was willing to spend millions of dollars and ruin an innocent person's life rather than admitting that an FBI agent literally ticked the wrong box.
In the 13 years since 9/11, one person has managed to successfully challenge the system of secret and unaccountable watchlists. It's clear that she wasn't the only person who deserved to be removed, though. This is Big Data Kafka: the algorithm says you're guilty, and you're not allowed to see the data or the algorithm because it was not designed to work if the people who it judged knew about its parameters.
The report also includes several examples of people challenging no-fly determinations, and it's a very murky procedure. Litigation is typically subject to sealed filings and a closed proceeding.
One of the secrets of the government's watchlists is how big they are. No one outside of the intelligence community seems to know for sure. The ACLU report cites a National Counterterrorism Center Fact Sheet, which notes that the "consolidated terrorist watchlist" contained about 875,000 names in December 2011. It also described how the Terrorist Screening Center's watchlist has grown significantly over time, from approximately 158,000 records in June 2004 to over 1.1 million records in May 2009. It cites an AP report from February 2012 documenting that there were approximately 21,000 people on the no-fly list (including about 500 US citizens and permanent residents) and saying that the list had more than doubled in the previous year.
Even after the drawn-out Ibrahim case, there's still no good way to question the government's determination besides going to court. The next person who wants to challenge a no-fly decision is probably going to have to retread the same path as Ibrahim. Taking a look back at her ordeal is instructive, if not inspiring.
U.S. Government Watchlisting:
Unfair Process and Devastating Consequences
After seven years, exactly one person gets off the gov’t no-fly list [Joe Silver/Ars Technica]
