September 24, 2013
By Elizabeth A Tennyson
Customs and Border Protection (CBP) has filed a request to change its record keeping system to remove some air and marine records from public disclosure under the Privacy Act. But AOPA is asking for a 90-day extension to the comment period on the request to give Congress time to investigate recent incidents in which CBP has stopped and searched general aviation flights operating entirely within U.S. borders. The extension also would allow time for interested parties to understand exactly what the record-keeping changes would mean.
In the meantime, members of AOPA’s government affairs team are meeting with members of Congress to seek support for ending stops and searches on purely domestic general aviation flights. Although the number of stops has decreased dramatically since AOPA began filing Freedom of Information Act requests, the question remains why CBP was conducting such stops in the first place and whether the agency, which is responsible for border protection, has the authority to conduct such stops on flights that never leave the United States.
In a Sept. 20 letter to the Department of Homeland Security’s chief privacy officer, AOPA noted that the sudden request for added secrecy is raising questions in the GA community.
“The timing and nature of this proposal raise additional concerns that require time to investigate and consider,” wrote Ken Mead, AOPA executive vice president and general counsel. “More time is needed to fully understand what is being proposed versus what is already in existence, and how the yet-to-be issued NPRM [notice of proposed rulemaking] to exempt the system of records from the privacy act will impact the public, particularly the general aviation community. This is especially true in light of the current scrutiny CBP is under regarding the exact type of surveillance for which an exemption under the privacy act is now being proposed.”
The NPRM explaining why some records should be kept secret was not released until Sept. 23 and gave only a vague explanation of the reasons for secrecy, saying that the information “relates to official DHS national security, law enforcement, immigration, and intelligence activities.”
AOPA’s letter also noted that Congress is looking into CBP’s involvement with domestic general aviation, adding that requests have been made for inspector general investigations into CBP’s authority to monitor purely domestic GA activity.
“We will not allow CBP to make an end run around Congress and the GA community,” Mead said in an interview. “We can’t have the agency charged with protecting our borders stopping and searching domestic air traffic without probable cause or reasonable suspicion, and then making the records of those actions secret.”
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