[Federal Register Volume 68, Number 148 (Friday, August 1, 2003)]
[Notices]
[Pages 45265-45269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19574]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

[Docket No. DHS/TSA-2003-1]


Privacy Act of 1974: System of Records

AGENCY: Transportation Security Administration (TSA), Department of 
Homeland Security (DHS).

ACTION: Notice of status of system of records; Interim final notice; 
Request for further comments.

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SUMMARY: The Transportation Security Administration (TSA) proposed in 
January 2003 to establish a new system of records under the Privacy 
Act, known as ``Passenger and Aviation Security Screening Records.'' 
This system of records would be established primarily to support the 
development of a new version of the Computer Assisted Passenger 
Prescreening System, or ``CAPPS II.'' This notice is to inform the 
public that substantial comments were received in response to the prior 
Privacy Act notice (68 FR 2101, January 15, 2003); that significant 
changes have been made to date to the proposed CAPPS II system and to 
the CAPPS II Privacy Act notice in light of these comments; that 
limited developmental technical testing will occur with test data, 
including personal information on U.S. persons available from 
commercial databases, including those within and affiliated with the 
travel industry; and that concerns raised will continue to be 
considered during the testing and evaluation periods. Additional 
comments are sought on the modifications made to this Privacy Act 
notice. A further Privacy Act notice will be published in advance of 
any active implementation of the CAPPS II system.

DATES: This notice is effective on August 1, 2003. Comments due on 
September 30, 2003.

ADDRESSES: Please address your comments to the Privacy Office, U.S. 
Department of Homeland Security, Washington, DC 20528. You must 
identify the docket number DHS/TSA-2003-1 at the beginning of your 
comments, and you should submit two copies of your comments. You may 
also submit comments via e-mail at [email protected]. Please reference 
the docket number DHS/TSA-2003-1 in the subject line of the e-mail. If 
you wish to receive confirmation that DHS received your comments, 
please include a self-addressed, stamped postcard. DHS will make the 
comments available online at http://www.dhs.gov.

FOR FURTHER INFORMATION CONTACT: Privacy Office, Department of Homeland 
Security, Washington, DC 20528. Phone: 202-282-8000. Fax: 202-772-9738.

SUPPLEMENTARY INFORMATION:

Background

    While still a part of the Department of Transportation, in January 
2003, the Transportation Security Administration (TSA) proposed 
establishing a new system of records under the Privacy Act, known as 
``Aviation Security Screening Records.'' TSA intends to use this system 
of records to facilitate TSA's passenger and aviation security 
screening program under the Aviation and Transportation Security Act. 
TSA intends to use the CAPPS II system to conduct risk assessments to 
ensure passenger and aviation security.
    Prior to March 1, TSA was an operating administration within the 
Department of Transportation (DOT). While part of the DOT, TSA 
published for public comment proposed system of records DOT/TSA 010. 
See 68 FR 2101 and 2002, Jan. 15, 2003. On March 1, 2003, TSA became a 
component of the Department of Homeland Security (DHS) and is now 
continuing work towards the system of records DHS/TSA 010.
    Substantial comments were received in response to the prior Privacy 
Act notice. Those comments can be reviewed online at http://dms.dot.gov/, by entering the docket number ``1437'' under ``Simple 
Search.'' Significant changes have been made to date to the proposed 
CAPPS II system in light of these comments, and the comments and 
concerns raised will continue to be considered during the testing and 
evaluation periods. Accordingly, we are publishing an Interim Final 
Notice of System of Records, modified to address public comment thus 
far, which is effective for and applicable to the internal test 
activity described herein. With the publication of this notice,

[[Page 45266]]

internal systems testing will begin, using this System of Records.
    The CAPPS II system is still under consideration and development 
and certain elements of the technological systems are proposed for 
testing with attention to the issues raised in the comments received, 
particularly the accuracy, efficiency, and privacy impact of the 
proposed CAPPS II system. Results of the current technological tests, 
as well as the comments received, will inform the design of the final 
CAPPS II system. A further Privacy Act notice will be published in 
advance of any active implementation of the CAPPS II system for real-
time passenger screening.

Proposed CAPPS II System

    TSA is establishing this system of records, now entitled 
``Passenger and Aviation Security Screening Records,'' to support the 
function of TSA's CAPPS II system. CAPPS II is intended to conduct risk 
assessments and authentications for passengers traveling by air to, 
from or within the United States.

Sources of Information Contained in the CAPPS II System; Process Flow

    Under the proposed CAPPS II system, TSA will obtain electronically, 
either from airlines or from Global Distribution Systems, a passenger's 
``passenger name record'' (PNR) as collected from the passenger by a 
reservation system. PNR includes the routine information collected at 
the time a passenger makes a flight reservation. A PNR may include each 
passenger's full name, home address, home telephone number, and date of 
birth, as well as some information about that passenger's itinerary. No 
additional information beyond this data is required to be collected 
from passengers for the operation of CAPPS II.
    The CAPPS II system will access PNRs prior to the departure of the 
passenger's flight. Selected information will be securely transmitted 
to commercial data providers, for the sole purpose of authenticating 
passenger identity. This authentication will be accomplished not by a 
permanent co-mingling of data, but merely by the commercial data 
providers transmitting back to TSA a numeric score, which is an 
indication of the percentage of accuracy of the match between the 
commercial data and the data held by TSA. This will enable TSA to have 
a reasonable degree of confidence that each passenger is who he or she 
claims to be. TSA recognizes that inaccuracies in the commercial data 
may exist and that the CAPPS II system must allow for and compensate 
for such inaccuracies; this test phase is intended to test and further 
develop such capabilities in the system.
    Commercial data providers will receive a limited amount of 
identifying information from TSA with regard to each passenger, and 
will provide TSA with an authentication score and code indicating a 
confidence level in that passenger's identity. The commercial data 
providers will not provide TSA with any additional information about 
the individual. They will not acquire ownership of the data, nor will 
they be permitted to retain the data in any commercially usable form. 
TSA will not permit the commercial data providers to use this data for 
any purpose other than in connection with the CAPPS II program. 
Importantly, the commercial data provider will not retain information 
about the response they provide to TSA in any record about the 
individual that they maintain. Further, no persistent link between an 
individual's records in the private sector and that person's records 
within the CAPPS II system will be created.
    Once CAPPS II has authenticated a passenger's identity, it will 
conduct its risk assessment. The risk assessment function is conducted 
internally within the U.S. government and will determine the likelihood 
that a passenger is a known terrorist, or has identifiable links to 
known terrorists or terrorist organizations. National security 
information from within the Federal Government, as well as information 
reflecting Federal officials with high levels of security clearance, 
will be part of this analysis function.
    After the CAPPS II system becomes operational, it is contemplated 
that information regarding persons with outstanding state or Federal 
arrest warrants for crimes of violence may also be analyzed and applied 
in the context of this system. At or after such time as the system 
becomes operational, where there is an indication of a serious 
violation of criminal law (as described in the Routine Use section, 
below), such information may be shared between law enforcement agencies 
and the Department of Homeland Security and appropriate action may be 
taken. It is further anticipated that CAPPS II will be linked with the 
U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) 
program at such time as both programs become fully operational, in 
order that the processes at both border and airport points of entry and 
exit are consistent. Any such linkages will be performed in full 
compliance with the Privacy Act of 1974, including any applicable 
requirement for additional notice.
    It is important to note the CAPPS II system is designed to 
determine the likelihood that a passenger is a known terrorist, or has 
identifiable links to known terrorists or terrorist organizations, 
including both foreign and domestic terrorist organizations.
    Lastly, it is anticipated that dynamic inputs to the system from 
intelligence sources will allow the system to respond to current threat 
conditions and information on a timely basis.

Impact on Traveling Public

    Based upon the combination of information derived from commercial 
sources, national security sources, and dynamic intelligence data, each 
traveling passenger will be identified with a ``risk score,'' 
indicating whether that person's information leads to a determination 
of low, high, or unknown risk to passenger and aviation security.
    In the vast majority of cases, passengers will be identified as 
``low risk,'' and will simply pass through the ordinary airport 
security screening process to their flights.
    In a small percentage of cases, passengers may be found to present 
an elevated, uncertain or ``unknown risk'' of terrorism. In such cases, 
the passengers in question will be subjected to heightened security 
screening prior to boarding their flights. Once these passengers have 
successfully completed this screening, they will proceed to their 
flights in the normal manner; they will not be penalized, nor will 
additional information about them be retained within the CAPPS II 
system.
    Where a passenger is found to be ``high risk''--to have 
identifiable links to terrorism, law enforcement or other appropriate 
authorities will be notified for appropriate action. It is anticipated 
that the number of passengers so identified as high risk will be 
extremely small, but any so identified may be critically significant in 
the context of homeland security.

Privacy Practices

    The Department of Homeland Security is committed to working with 
airlines and the travel industry to provide greater understanding and 
awareness of the purposes for and the scope of CAPPS II. Consistent 
with fair information principles, The Department of Homeland Security 
will work towards adequate notice to the passenger when that passenger 
provides information that will be used for security purposes.
    Further, DHS is committed to providing access to the information 
that

[[Page 45267]]

is contained in the CAPPS II system to the greatest extent feasible 
consistent with national security concerns. As detailed below, 
passengers can request a copy of most information contained about them 
in the system from the CAPPS II passenger advocate. Further, DHS is 
currently developing a robust review and appeals process, to include 
the DHS privacy office.

System Testing of CAPPS II

    At this point, partly in response to concerns raised by the public 
about the viability and function of the CAPPS II program, TSA plans to 
test certain portions of the system, including the technological 
communications between the CAPPS II system and the various data 
sources, as well as the identity authentication programs. These tests 
are intended to respond to public concerns about speed, accuracy, and 
efficiency of the system. Testing will be concerned with the accuracy 
of public and private information contained in the system, particularly 
in the authentication process; the speed of response of the system; 
identifying and minimizing the data necessary to effectively conduct 
the operation of CAPPS II; and the overall ability of the system to 
identify risk levels effectively. During these tests, TSA will use and 
retain PNR data for the duration of the test period. It is anticipated 
that the test duration may be as long as 180 days. A persistent link to 
law enforcement databases will not be created for the purposes of the 
test, nor will data from the test be transmitted to airport screeners 
or used for screening purposes during the test period. If, however, an 
indication of terrorist or potential terrorist activity is revealed 
during the test period, appropriate action will be taken. A final 
Privacy Act notice will be published before the CAPPS II system is 
deployed.

Public Comments

    TSA received well over 200 comments on proposed system of records 
DOT/TSA 010--``Aviation Security Screening Records.'' Comments 
generally expressed concern that the proposed CAPPS II system was too 
broad in scope and would prove invasive to passengers' privacy. Several 
commenters stated that the proposed system of records contained too 
wide a variety of personal information and allowed for the collection 
and retention of too much information on private citizens. Commenters 
also expressed concern about the quality of data contained in 
commercial databases, and that such data could be used to prevent them 
from traveling by air. Some commenters stated that the proposed 
retention of data for up to 50 years was too long. Another concern 
expressed was the broad variety of ``routine uses,'' which, in the 
opinion of some commenters, allowed TSA far too much discretion to 
disseminate private information. One commenter expressed the view that 
the CAPPS II system would lead to the misallocation of security 
resources.
    TSA respects the concerns raised by commenters and has modified the 
proposed system of records to address many of those concerns. The test 
of the technological systems responds, in part, to concerns of 
accuracy, efficiency, and effectiveness, which are among the 
underpinnings of evaluating such a system's impact on an individual's 
privacy. Any subsequent modifications to the system that arise from the 
knowledge gained from these tests will be published in a subsequent 
notice.
    This system notice reduces the extent to which TSA will maintain or 
disseminate personal information on airline passengers. At the same 
time, however, TSA must ensure that it collects information sufficient 
to carry out its security screening functions in an efficient and 
effective manner, consistent with its legislative mandate to ensure 
passenger and aviation security. In establishing the parameters of the 
Passenger and Aviation Security Screening Records system, TSA has 
attempted to address privacy interests of passengers and the public, 
while simultaneously working towards increased transportation security.

Responses to Comments; Modifications to System

    As discussed above, several commenters objected to the amount of 
personal information that TSA proposed to maintain in the proposed 
system of records. Under this system notice, TSA will not retain 
significant amounts of personal information after completion of a 
passenger's itinerary. TSA eliminated language in the proposed notice 
that could be read to mean that TSA will collect and maintain large 
amounts of information about individuals.
    Concerns have been raised about the retention of data after a 
passenger's travel. In response, TSA is working to minimize the length 
of time any data about passengers will be retained. In response to 
concerns, the proposal to maintain information about certain 
individuals for up to 50 years has been deleted. Under the final CAPPS 
II program, when active, it is anticipated that TSA will delete all 
records of travel for U.S. citizens and lawful permanent resident 
aliens not more than a certain number of days after the safe completion 
of their travel itinerary. At this time, the amount of information 
about non-U.S. persons and the length of time for which that 
information will be kept when the CAPPS II system is deployed are 
matters still under consideration.
    The limited test data used during the test period will be retained 
solely for the duration of the test; at the conclusion of the test, DHS 
expects that all data from the test will be destroyed, unless otherwise 
required by law. In either case, such data will not be included in the 
live activation of CAPPS II.
    Commenters also objected to the broad description of the types of 
data to be collected from passengers. Specifically, commenters stated 
that there was no clear explanation of what TSA meant by ``associated 
data'' in the reference to TSA's collection of PNR and ``associated 
data.'' In response, TSA has deleted the phrase ``associated data.''
    Some commenters objected to the large variety of different types of 
data that TSA proposed to maintain in the system of records. TSA has 
significantly reduced the variety of data to be maintained in the 
system. For the vast majority of passengers, the CAPPS II system, when 
active, will maintain only the routine information that all individuals 
provide when making reservations, as contained in the PNR, including 
full name, date of birth, home address and home phone number, to the 
extent available. In addition, the CAPPS II system will contain 
authentication scores and codes, and a TSA-generated risk assessment 
score. The system will also contain some information derived from 
governmental databases containing information on, or pertinent to, the 
detection of terrorists and their associates and the detection of the 
serious criminal violations detailed in this notice, as well as 
information on government officials and other persons holding security 
clearances or positions of trust such as not to warrant heightened 
scrutiny. However, in response to specific concerns regarding the use 
of information about an individual's creditworthiness or individual 
health records, TSA will not use measures of creditworthiness, such as 
FICO scores, and individual health records in the CAPPS II traveler 
risk determination.
    Other commenters raised concerns that large numbers of people would 
be prevented from flying as a result of the use of inaccurate 
commercial records. One of TSA's primary purposes in creating this new 
system is to avoid the kind of miscommunication and improper 
identification that has, on

[[Page 45268]]

occasion, occurred under the systems currently in use. During the test 
period, TSA hopes to confirm that the use of the CAPPS II program will 
significantly reduce improper identification.

Routine Uses

    In response to the comments received that expressed concerns about 
the further dissemination of passenger information, TSA has narrowed 
several routine uses in the proposed notice, and eliminated others in 
their entirety, as follows:
    Proposed Routine Use 1 (to Federal, State, local, international, or 
foreign agencies) (now Routine Use 1) has been narrowed to pertain to 
specified violations of criminal law.
    Proposed Routine Use 3 (now Routine Use 3) has been modified to 
specify immigration and intelligence agencies.
    Proposed Routine Uses 4 (to individuals and organizations), 5 (to 
government agencies in connection with employment, contract or benefit 
matters) and 6 (to news media) have been deleted.
    Proposed Routine Use 2 (now Routine Use 2) and proposed Routine Use 
9 (now Routine Use 4) have been modified slightly to make the language 
consistent with the routine uses in other TSA systems of records. These 
changes are not substantive and do not expand or narrow the scope of 
the routine uses.
    Proposed Routine Use 10 (now Routine Use 5) has been modified 
slightly to allow for disclosures to airports and aircraft operators 
only to the extent required in the interests of counterterrorism or 
passenger or aviation security.
    Proposed Routine Use 11 (now Routine Use 6) has been modified to 
permit disclosure to the General Services Administration (GSA), in 
addition to the National Archives and Records Administration (NARA), 
for purposes of records management inspections. Both GSA and NARA have 
the statutory authority under 44 U.S.C. 2904 and 2906 to conduct 
inspections or surveys of TSA records, which was not reflected in the 
proposed routine use. This modification corrects the omission.
DHS/TSA 010

System name:
    Passenger and Aviation Security Screening Records.

Security classification:
    Classified, sensitive.

System location:
    Records are maintained at the Transportation Security 
Administration (TSA), Department of Homeland Security, P.O. Box 597, 
Annapolis Junction, MD 20701-0597.

Categories of individuals covered by the system:
    Individuals traveling to, from or within the United States by 
passenger air transportation; known terrorists and individuals on 
terrorism watch lists; persons with outstanding federal or state 
warrants for crimes of violence; government officials or other persons 
holding requisite security clearances, positions of trust and 
confidence, or otherwise deemed not to require heightened scrutiny.

Categories of records in the system:
    (a) Passenger Name Records (PNRs) obtained from airlines, Global 
Distribution Systems and Computer Reservation Systems (the specific 
contents of PNRs often vary by airline, but will include at least the 
following passenger information: Full name, date of birth, home phone 
number, home address, and travel itinerary); other information in PNR 
may include payment information, and frequent flier number (if any);
    (b) Authentication scores and codes obtained from commercial data 
providers;
    (c) Numerical ``risk scores'' generated by the CAPPS II system;
    (d) Watch lists and government databases containing information on 
known terrorists and terrorist associates, or other information 
pertinent to the detection of terrorists and their associates, or 
pertinent to the detection of outstanding state or federal warrants for 
crimes of violence.
    (e) Names of and other identifying information about government 
officials or other persons holding security clearance or positions of 
trust and confidence, such as not to warrant heightened scrutiny.

Authority for maintenance of the system:
    49 U.S.C. 114, 44901, and 44903.

Purpose(s):
    The system will be used to facilitate the development, testing, and 
conduct of the Computer Assisted Passenger Prescreening System II 
(CAPPS II). The purpose of CAPPS II is to minimize threats to passenger 
and aviation security by determining which passengers should be 
afforded additional scrutiny prior to boarding an aircraft. In 
addition, CAPPS II is designed to determine the likelihood that a 
passenger is a known terrorist, or has identifiable links to known 
terrorists or terrorist organizations, including both foreign and 
domestic terrorist organizations, or otherwise poses a threat to 
passenger or aviation security.

Routine uses of records maintained in the system, including categories 
of users and the purposes of such uses:
    (1) To appropriate Federal, State, local, international, or foreign 
agencies or authorities responsible for investigating or prosecuting 
the violations of, or for enforcing or implementing, a statute, rule, 
regulation, or order, or in accordance with law or international 
agreements, where DHS becomes aware of an outstanding state or federal 
arrest warrant for a crime of violence.
    (2) To contractors, grantees, experts, or consultants when 
necessary to perform a function or service related to the CAPPS II 
system or this system of records for which they have been engaged. Such 
recipients are required to comply with the Privacy Act, 5 U.S.C. 552a, 
as amended.
    (3) To Federal, State, local, international, or foreign agencies or 
authorities, including those concerned with law enforcement, visas and 
immigration, and to agencies in the Intelligence Community, or in 
accordance with law or international agreements, with respect to 
persons who may pose a risk of air piracy or terrorism or who may pose 
a threat to aviation, passenger safety or national security.
    (4) To the Department of Justice or other Federal agencies 
conducting litigation, or in a proceeding before a court, adjudicative 
or administrative body, when: (a) TSA, or (b) any employee of TSA in 
his/her official capacity, or (c) any employee of TSA in his/her 
individual capacity where DOJ or TSA has agreed to represent the 
employee, or (d) the United States or any agency thereof, is a party to 
litigation or has an interest in such litigation, and TSA determines 
that the records are both relevant and necessary to the litigation and 
the use of such records is compatible with the purpose for which TSA 
collected the records.
    (5) To airports and aircraft operators, only to the extent the 
disclosure is deemed required for counterterrorism or passenger or 
aviation security purposes.
    (6) To the General Services Administration and the National 
Archives and Records Administration (NARA) in records management 
inspections being conducted under the authority of 44 U.S.C. 2904 and 
2906.

Disclosure to consumer reporting agencies:
    None.

[[Page 45269]]

Policies and practices for storing, retrieving, accessing, retaining 
and disposing of records in the system:
Storage:
    Records are stored electronically at a TSA secure facility. The 
records are stored on magnetic disc, tape, digital media, CD-ROM, and 
may also be retained in hard copy format in secure file folders.

Retrievability:
    Data are retrievable by the individual's name or other identifier, 
as well as non-identifying information, such as flight number.

Safeguards:
    Information in this system is safeguarded in accordance with 
applicable rules and policies, including any applicable DHS automated 
systems security and access policies. The computer system from which 
records could be accessed is policy and security based, meaning access 
is limited to those individuals who require it to perform their 
official duties. The system also maintains a real-time auditing 
function of individuals who access the system. Classified information 
is appropriately stored in a secured facility, and secured databases 
and containers and in accordance with other applicable requirements, 
including those pertaining to classified information.

Retention and disposal:
    A request is pending for NARA approval for the retention and 
disposal of records in this system. For U.S. persons, (i.e., citizens 
and lawful permanent resident aliens), records will be deleted within a 
set number of days after the safe completion of the travel to which the 
record relates. The duration of data retention for other persons is 
still under consideration. Factors to be considered in determining data 
retention for those persons will include the extent of information 
required to accurately authenticate passenger identity and the amount 
of data available from commercial data on non-U.S. persons, relative to 
U.S. persons. Existing records obtained from other government agencies, 
including intelligence information, watch lists, and other data, will 
be retained for three years, or until superseded.
    Passenger data used for purposes of system development and testing 
will be deleted upon completion of the test phase.

System manager(s) and address:
    Director, CAPPS II, TSA, PO Box 597, Annapolis Junction, MD 20701-
0597.

Notification procedures:
    Pursuant to 5 U.S.C. 552a(k), this system of records may not be 
accessed for purposes of determining if the system contains a record 
pertaining to a particular individual.

Record access procedures:
    Although the system is exempt from record access procedures 
pursuant to 5 U.S.C. 552a(k), DHS has determined that all persons may 
request access to records containing information they provided by 
sending a written request to the CAPPS II Passenger Advocate (P.O. Box 
597, Annapolis Junction, MD 20701-0597). To the greatest extent 
possible and consistent with national security requirements, such 
access will be granted. In the case of air passengers, this data is 
contained in the PNR. Individuals requesting access must comply with 
the Department of Homeland Security Privacy Act regulations on 
verification of identity (6 CFR 5.21(d)). Individuals must submit their 
full name, current address, and date and place of birth. You must sign 
your request and your signature must either be notarized or submitted 
by you under 28 U.S.C. 1746, a law that permits statements to be made 
under penalty of perjury as a substitute for notarization. As noted 
above, however, in order to protect passenger privacy, PNR data is not 
retained for any significant time in this system. Accordingly, in most 
cases, the response to a record access request will very likely be that 
no record of the passenger exists in the system.

Contesting record procedures:
    A passenger who, having accessed his or her records in this system, 
wishes to contest or seek amendment of those records should direct a 
written request to the CAPPS II Passenger Advocate, at P.O. Box 597, 
Annapolis Junction, MD, 20701-0597. The request should include the 
requestor's full name, current address and date of birth, as well as a 
copy of the record in question, and a detailed explanation of the 
change sought. If the matter cannot be resolved by the CAPPS II 
Passenger Advocate, further appeal for resolution may be made to the 
DHS Privacy Office. While non-U.S. persons are not covered by the 
Privacy Act, such persons will still be afforded the same access and 
redress remedies. These remedies for all persons will more fully 
detailed in the CAPPS II privacy policy, which will be published before 
the system becomes fully operational.

Record source categories:
    Pursuant to 5 U.S.C. 552a(k), this system is exempt from publishing 
the categories of sources of records.

Exemptions claimed for the system:
    Portions of this system are exempt from 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f) pursuant to 5 U.S.C. 
552a(k)(1) and (k)(2).

    Issued in Washington, DC, on July 22, 2003.
Tom Ridge,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 03-19574 Filed 7-31-03; 8:45 am]
BILLING CODE 4910-62-P