FC: John Gilmore: Sen. Wyden's CAPPS II amendment is bullshit

[Declan McCullagh <declan () well com>]

Here's my article that John is talking about:
http://news.com.com/2100-1029-992572.html

Text of Sen. Wyden's amendment:
http://wyden.senate.gov/leg_issues/amendments/capps_amendment.pdf?tag=nl

-Declan

---

To: declan () well com, gnu () new toad com
Subject: Sen. Wyden's CAPPS 2 amendment is bullshit
Date: Thu, 13 Mar 2003 20:14:49 -0800
From: John Gilmore <gnu () toad com>

I read your report on Sen. Wyden's anti-CAPPS-2 amendment.  Thanks for
pointing it out.  Unfortunately it looks like a stalking horse, rather
than a real reform.

First, the amendment doesn't stop CAPPS 2.  It merely requires a
report to two congressional committees on it.  The public will never
even get to see this report, unless the committees decide to release it,
and CAPPS 2 will continue.

Second, the "Air Cargo Security Act" bill that this is attached to is
yet another insane secret-law assume-everyone-is-a-criminal program.
You can read it here:

  http://thomas.loc.gov/cgi-bin/query/z?c108:S.165:

This time they're going after cargo aircraft, creating a "Know Your
Customer" program for people who ship cargo, demanding background
checks for every person who works for any cargo shipping firm,
"appropriate screening" (blacklisting) for all flight crews, and any
"additional measures deemed necessary and appropriate by the" head of
TSA -- in his sole judgement.

The best part is at the bottom, hidden in the usual sort of "The
second word in the fourth sentence of the Blather Bill of 1927 shall
be struck out and replace by 'and'" style.  It says:

  (1) CIRCULATION OF PROPOSED PROGRAM- The Under Secretary shall--
      (A) propose a program under subsection (a) within 90 days after
      the date of enactment of this Act; and
      (B) distribute the proposed program, on a confidential basis,
      to those air carriers and other employers to which the program
      will apply.
    ...
  (4) SUSPENSION OF PROCEDURAL NORMS- Neither chapter 5 of title 5,
      United States Code, nor the Federal Advisory Committee Act (5
      U.S.C. App.) shall apply to the program required by this section.

That last (4) clause eliminates the Freedom of Information Act, the
Administrative Procedures Act, the Government in the Sunshine Act, and
the Federal Advisory Committee Act from applying to this bill.  That's
every one of the "open government" laws we have.  Pretty good for three
lines of text.

These two legalese paragraphs say, in plain English:

  *  TSA will invent the rules in secret.
  *  The public will never get to see them.  The cargo carriers who will
     be stuck with the rules won't be allowed to reveal the rules, though
     they will get to comment privately on them.
  *  The public's legal rights to participate, in the creation and evolution
     of regulations that directly affect the public, will be superseded.

This kind of exemption from public oversight is EXACTLY how CAPPS 2
has gotten as far as it has.

This is a screw-the-public bill.  It's a secret law bill.  It creates
a dictatorship, not a democracy.  It says that between them, the TSA
and the airlines can come up with whatever cozy rules are mutually
beneficial -- and the public will get zero chance to even see what the
rules are, let alone to have them changed.  The passenger airlines
have done this in requiring ID checks that prevent people from
reselling their tickets, so the public can't avoid airline $100 change
fees and use-it-or-lose-it ticket policies.  The feds get more power
and the airlines get more money; what are we complaining about?

Rather than exempting whole new sections of the law from public
oversight, Congress should be opening up the sections of the law which
are now unconstitutionally kept secret from the public.

        John Gilmore
        (suing TSA to overturn unpublished travel ID rules and CAPPS 2)
        http://cryptome.org/freetotravel.htm




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