Class-action lawsuit filed over no-fly list

The American Civil Liberties Union challenged the government’s no-fly list of suspicious airline passengers with a class-action lawsuit filed yesterday.

The Transportation Security Administration uses the list of names to identify passengers who could be terrorists or represent other security risks. Anyone with a name on the list is pulled aside for searches and questioning.

“It has resulted in hundreds, if not thousands, of innocent passengers being routinely stopped, questioned and searched,” the ACLU said in its lawsuit. “Passengers have no meaningful opportunity to clear their names and avoid being subjected to these delays, searches and stigma virtually every time they fly.”

The lawsuit was filed in federal district court in Seattle and announced at several news conferences, including one in Washington. It accuses the TSA of violating airline passengers’ constitutional rights to privacy and due process.

“We’re asking to improve the administration and compilation of the no-fly list,” said Reginald Shuford, the ACLU’s lead attorney in the case. “You can’t force the same innocent people over and over again to shoulder the burden of our lack of intelligence.”

TSA officials admit some innocent passengers are on the no-fly list, but say they are working on a solution.

“It’s a series of misidentifications; it’s not a constitutional issue,” said Chris Rhatigan, TSA spokeswoman.

She estimated that 15 percent of passengers stopped and questioned from the no-fly list are misidentified. She would not say how many people are on the list.

Among the plaintiffs the ACLU is representing are a retired Presbyterian minister, a U.S. Air Force master sergeant, a social worker and an attorney named David Nelson.

All of them say they have been pulled aside for searches at airports after being told their names were on the no-fly list. None of them has a criminal record.

The case of the David Nelsons — some in the Washington area — has become well known. Although TSA officials refuse to reveal how any specific name was added to the list, there are many theories on the name David Nelson.

One of them involves a product designer from Chicago who e-mailed President Clinton after the Monica Lewinsky scandal saying, “The wages of sin is death.” Another one is that the World Trade Center towers were nicknamed David and Nelson.

“This lawsuit is a kind of last resort,” David Nelson, a 34-year-old attorney from Belleville, Ill., said in a statement. “Reasonable efforts to reach out to the government for relief have all failed.”

He estimates he has been stopped and questioned by police more than 40 times, sometimes in the presence of his children.

David Fathi, another plaintiff in the lawsuit whose name is on the no-fly list, says he is stopped and searched at airports despite the fact he obtained a letter from the TSA verifying his identity. He also is an ACLU attorney.

“There is no way to get your name off the list,” he said during a press conference at the National Press Club.

ACLU officials say an accurate assessment of misidentified passengers is difficult because of government secrecy.

“The reason we’re all speculating is the TSA won’t tell us,” said Emily Whitfield, ACLU spokeswoman.

Miss Rhatigan, the TSA spokeswoman, said the most promising solution to misidentifications is the TSA’s Computer Assisted Passenger Prescreening System, or CAPPS II, which is scheduled to be implemented nationwide after testing and congressional review. No date is set.

“That’s the next generation of passenger identification,” Miss Rhatigan said.

The computerized system will assign a mathematical score to each airline passenger based on the risk they might represent.

The score will be compiled from a secret algorithm that uses financial, law enforcement and travel records of passengers. Passengers whose scores rate above a certain threshold will be singled out for more thorough searches or barred from flying. Others will be allowed to board planes unimpeded.

CAPPS II is a refinement of the current CAPPS I, which uses less personal and demographic data to identify suspicious travelers.

Privacy advocates, including the ACLU, say CAPPS II creates too much government intrusion.