6 ms·

No-fly list ruling in Portland comes close to declaring it unconstitutional

267 points by rubyrescue 13y ago

jlgreco 13y ago
"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States, such as traveling by car or train, the court disagrees with (the government's) contention that international air travel is a mere convenience in light of the realities of our modern world," Brown wrote. Yeah, no kidding. That somebody could sincerely espouse such a position is mind-boggling to me. It ranks up there with "Gay people can already get married too (to the opposite sex)."
- veemjeem 13y ago
  Are there any companies whose core source of revenue is transporting people via boat? I'm not referring to cruises or other entertainment-based boats.
  - jlgreco 13y ago
    Internationally, to and from the US? I doubt it. At a smaller scale you may find privately operated ferries, though I think those are usually operated by governments. There are companies like these guys: http://www.stenaline.co.uk/ferry/scandinavia/ http://www.stenaline.co.uk/ferry/scandinavia/ but I don't think those sort of companies will do you much good if you are trying to get out of or into the US. Edit: For non-cruise trans-Atlantic crossing by sea, the best I've been able to find on google is the Queen Mary 2. That seems to be generally considered an ocean liner rather than a cruise ship. "The Italian Line's SS Michelangelo and SS Raffaello,[4] launched in 1962 and 1963, were two of the last ocean liners to be built primarily for liner service across the North Atlantic. Cunard's transatlantic liner, Queen Elizabeth 2, was also used as a cruise ship.[3] By the early 1970s, many passenger ships continued their service in cruising. By the first decade of the 21st century, only a few former ocean liners were still sailing, while others, like Queen Mary, were preserved as museums or floating hotels. After the retirement of the Queen Elizabeth 2 in 2008, the only ocean liner in service was Queen Mary 2, used for both point-to-point line voyages and for cruising." http://en.wikipedia.org/wiki/Ocean_liner#Decline_of_long-distance_line_voyages http://en.wikipedia.org/wiki/Ocean_liner#Decline_of_long-dis...
    - mbrubeck 13y ago
      There are a few private ferry companies with international routes from the U.S... to Canada: https://cohoferry.com/ https://cohoferry.com/ (Of course this is just trivia and should not distract from the real point, which is that air travel has no real competition for a great number of routes, and the US government is increasingly restricting other forms of travel anyways.)
      - colomon 13y ago
        My hometown example: http://www.bluewaterferry.com/ http://www.bluewaterferry.com/ At the same time, isn't crossing the border firmly established as a "privilege"? In the good old days (ie a decade ago) you could just hop across the border pretty freely, but today you are required to have a passport or enhanced driver's license. Even fishing on the other side of the river (something my dad probably did at least four times a week when I was a kid) now has ludicrous reporting requirements, like calling customs via a landline to report you've crossed the border.
        kd0amg 13y ago
        I was under the impression that the "privilege" in a border crossing was entering the destination country (and thus to be granted or not according to the destination country's will) rather than leaving the source country. This is what we dislike about the Berlin Wall and similar things, right?
    - joezydeco 13y ago
      I have a relative in Europe that has COPD and eventually won't be able to fly, even with oxygen. Something with the pressurization I've been told. In any case, I've been researching trans-Atlantic passage and the QM2 seems to be the only way to get from the USA to Europe and back via water on a semi-regular schedule and not making a dozen party stops on the way.
  - tomfakes 13y ago
    I believe that some cargo ships have space for a very, very small number of paying passengers. I've read articles about this in the past, but have nothing to hand right now on how you can do this. Not a core source of revenue, but possible for someone needing to travel without using planes. You are traveling on a working ship, with a very small crew, and not a lot of provided entertainment,(or internet access), so be prepared to look after yourself during these passages
    - jlgreco 13y ago
      I looked into those sort of trips a while ago and was surprised by the large prices I saw quoted. I think the fact that you are basically paying for accommodations for several days keeps the price higher than you might expect.
      - einhverfr 13y ago
        And if you are going across the Pacific it might take a month.
    - praxulus 13y ago
      http://wikitravel.org/en/Freighter_travel http://wikitravel.org/en/Freighter_travel According to that page, ships must hire a doctor if they have more than 12 passengers, so it's just not worth it for most of them to carry more.
      - techdragon 13y ago
        Now that is a damn valuable link! I intend to look into this sort of thing a lot more for my future travels. Just being able to give the middle finger to luggage overages & have a bed to sleep on instead of an airport bench during a 6 hr layover from midnight till 6am might make all the difference. And I wont have to turn off my ebook reader when the ship starts moving!
  - fractalsea 13y ago
    do mean ferrys, or much longer distances? (days/weeks). if you mean ferrys, then in Europe -- and I assume other places -- it is really quite common to travel by boat to other countries. for example from England it is common to go by boat to France/Ireland/etc. I seem to remember p&o ferries was a big company doing that.
    - seanmcdirmid 13y ago
      There is a "ferry" highway in Northwestern Washington, BC, and the Alaska pan handle. It is used quite commonly, especially for car/person transport.
  - mistercow 13y ago
    A lot of people actually do use cruises as transportation when traveling, since on net it can actually be much cheaper than flying, staying in a hotel, and taking care of your own food. I doubt there are cruises you could use to travel somewhere for longer than a few days though, since docking fees make up a large portion of a cruise ship's operating cost.
  - foobarbazqux 13y ago
    Human smuggling and trafficking on boats is common enough, much easier than on planes.
  - jonknee 13y ago
    Not for long distances, but there are still some "Ocean liner" type vessels out there. The Queen Mary II is almost both--fancy like a cruise ship but it does ocean passes and not cruises (where everyone boards and departs at a single location). http://www.cunard.com/ http://www.cunard.com/
- Steko 13y ago
  And if you can take away the right to fly in a Star Chamber proceeding you can presumably take away the right to ride trains and boats.
  - jlgreco 13y ago
    Yup. And even if they don't actually bother to do that, just being on the airplane list effects your ability to travel by ship: "For example, she wrote, the FBI's Terrorist Screening Center shares watchlist information with 22 governments, and U.S. Customs and Border Protection also makes recommendations to ship captains, which could interfere with a person's travels."
- ilyanep 13y ago
  I had someone on HN trying to convince me that we should put up with the TSA because flying is a privilege not a right. I can't believe how many people believe this, especially in a country as big as the US.
  - jlgreco 13y ago
    Lots of people say it, even here on HN in the past. How many of them actually believe it is up in the air. I hope none of them...
  - andrewfong 13y ago
    The dichotomy between privileges and rights may have some special legal meaning ascribed to it, but in practice, it's a distinction without a difference. For example, going to Disneyland is almost certainly a privilege, but if Congress passed a law saying Tom Jones from Denver, and only Tom Jones from Denver, was forbidden from going to Disneyland, I bet Tom would have a pretty good case that his constitutional rights were being violated.
    - abecedarius 13y ago
      Yes, that'd be called a bill of attainder, I believe -- those are expressly forbidden by the constitution. Of course, if powerful groups wanted such bills, we'd see lots of articles explaining how 'attainder' meant something else, something more specific. Maybe it does! A written constitution only helps so much.
  - mturmon 13y ago
    There is a sliding scale of scrutiny for judicial review of laws (e.g., see http://en.wikipedia.org/wiki/Strict_scrutiny http://en.wikipedia.org/wiki/Strict_scrutiny). If the law has no "rational basis" (as the example here of a specific person being forbidden from going to Disneyland) it will almost certainly be struck down, even if the restriction it imposes is unimportant. My point is that judicial review does not break down simply to determining whether a "privilege" or a "right" is being curtailed. Certainly, if a "right" (and this means specific rights such as those guaranteed by the Due Process clause) is being curtailed, this will tend to push the standard of review higher. But that is not the only factor at work, and there is a very specific meaning of the word "right" in this context.
- einhverfr 13y ago
  > Yeah, no kidding. That somebody could sincerely espouse such a position is mind-boggling to me. The key thing is that getting stranded somewhere like Hawaii would become a real problem. If there is a right to travel interstate to/from Hawaii, then there is a right to fly there. I would argue the same regarding Alaska too since you either have to go across international waters or through Canada. > It ranks up there with "Gay people can already get married too (to the opposite sex)." Having lived in more traditional places (and being in Indonesia now) I actually the due process issue in flying is far worse than the view you position, at least internationally. Marriage is extraordinarily cultural and multi-functional and in many countries, the fact that there are obligations to parents as well as children (and gender plays role in determining the qualities of power relationships) makes that argument valid in most of the world, so I have real trouble with the idea that it is a human rights issue. This being said, I think that "Marriage is about raising children and same-sex couples can adopt, but we don't want them to get married" is something I can't really understand how people believe. Both of these issues are functional questions. Can you drive across the Continental US as an average person, or take a train or a bus? Sure. One could argue that flying there is a matter of mere convenience but not a core liberty interest. But what about travel to/from Hawaii and Alaska? As an average person one cannot so easily get there outside of being on a plane. Holding this to be an area where government can freely interfere also then puts residents of those states fully at the mercy of the federal government in a way that California residents are not.
  - seiji 13y ago
    (and gender plays role in determining the qualities of power relationships) Nope.
    - einhverfr 13y ago
      It does in most of the world. For example here in Indonesia, Chinese-Indonesians prefer to retire with their daughters because the mother-in-law/daughter-in-law relationship is more complex and problematic than the mother-in-law/son-in-law relationship or the father-in-law/son-in-law relationship. This means that over here same-sex couples are not similarly situated to the duties of marriage to the elderly.
- davidp 13y ago
  Indeed. Personally I'm surprised there aren't more comparisons to travel restrictions placed on black people during the Jim Crow era. Restricting someone's mode of travel even domestically, in such a way that they are at a significant economic disadvantage to their (comparatively) unrestricted fellow citizens is a true punishment; without due process it's just a weapon. Potentially even worse, since it's so insidious, is that the fear of getting put on "the list" can have a chilling effect on the perfectly legitimate activities of loyal, law-abiding citizens. Suppose you're a person of color or muslim, who happens to be interested in learning about the enemy (e.g. Al Qaeda). One obvious way would be to look at their forums online. But wouldn't you be at least a little bit afraid that someone's watching for people browsing to those sites, discovering your ethnicity and background, and slapping you onto the list? From the other side, why wouldn't the watcher put you on the list, just in case? There are no negative consequences for the individual doing so (because no oversight/warrant procedure), and what if he/she "missed the next terrorist" (i.e. maybe you, as far as they know)? It's a no-brainer and could even be rationalized by otherwise well-meaning people as being patriotic. Imagine the poster on their cubicle wall of the burning WTC towers, with "NEVER AGAIN" underneath. This warrantless, unsupervised paroxysm of fear has got to stop. We are Americans. We do not live in fear. We do not sacrifice our freedoms for security. We are willing to accept that some of us may have to die because we exercise those freedoms, and we know that the answer to "What if there's another 9/11?" is "Then we will survive and triumph through that, too."
  - alexqgb 13y ago
    Exactly. And if you're honest about it, there are no "alternatives". Seriously, name one alternative to air travel that offers comparable value in terms of time and cost. You can't. Because there aren't any. Given the distances at which is makes the most sense to fly, all of the "alternatives" impose massive burdens in terms of both time and cost. To see just how important these are (and how abusive the "alternative" argument really is) consider the inverse, in which you're randomly banned from transit that uses wheels and were told that "as an alternative" you should "just" take a helicopter to the office every day. Figuring out how to pay for that is your problem. Can't pay? Well, then it's not really an alternative, is it?
- icambron 13y ago
  While I wholeheartedly agree with your reasoning here, I'd also like to ask why it would reasonable if it were, in fact, merely an inconvenience. Let's say, for example, that instead of the no-fly list, we had a hassle-me-extra-at-the-airport list with the same lack of transparency and process. Still absurd, in my view. Even if you establish something is a "privilege" and not a "right", having an arbitrary and capricious system for deciding who has it should still be illegal. I do understand that the judicial system applies different rational-basis scrutiny standards based on whether fundamental rights are being violated; I'm not protesting the legal logic at play in this case, especially since I haven't yet read the decision itself. But it could well be that the standards themselves are crazy. I plan on reading the decision in full tomorrow.
Steko 13y ago
A related ruling earlier this year by Judge Alsup (of Oracle v Google fame) involving a Stanford graduate student: http://www.sfgate.com/bayarea/article/Secret-no-fly-evidence-rejected-by-judge-4180923.php http://www.sfgate.com/bayarea/article/Secret-no-fly-evidence...
jrockway 13y ago
I've never thought about the issue of international air travel, but yes, I agree with the court. When there's no alternative, you need due process. (Even when there is, due process is always nice to have when you declare yourself "the" democracy for others to emulate.) As I write the reply, I am becoming even more angry that the government can restrict one's activities without any judicial oversight. It's such a simple "check and balance" to add and it's one that makes people really happy. How dumb could you be to try and take away people's rights without even implementing the simplest possible administrative hearing?
- InXorWeTrust 13y ago
  My American Government put a definition of democracy in a way that I feel is important here: Democracy is government for the people, by the people, held accountable by the people. This is not democracy. There is no due process, there is seemingly no way to appeal, and nobody is held accountable for any decisions for this list, right or wrong.
  - rquantz 13y ago
    And yet, here we are seeing the no-fly list practice come under judicial review. Things went further than they should have, but ultimately the system may eventually work the way it is supposed to.
vkou 13y ago
I simply do not understand what kind of threat a person can pose, that makes it impossible for them to safely board an aircraft - after an 'enhanced' search. What harm could they possibly cause on a plane, that they couldn't on a train, a bus, or a movie theater? The existence of this Kafka-esque list is mind-boggling.
- jlgreco 13y ago
  It is important to realize that the purpose of the list is not really threat mitigation.
  - vkou 13y ago
    What is it, then? Protecting the Government from Americans exercising their (Constitutional, and UN) right to Freedom of Movement? Oh. Right. It's "Doing something." For the sake of the children, no doubt.
    - jlgreco 13y ago
      Exactly what it is for is sort of up in the air, but it is clear that it isn't threat mitigation. As you said, it isn't actually doing something a thorough search could not and the people who make these calls, for all their numerous faults, are not categorically stupid; they know as well as you do that the Do Not Fly lists are senseless from a security standpoint. My money on what it is actually for? Theater, or "Doing something" as you put it. Alternatively, perhaps it serves as a bogey-man; "now I'm on a watchlist" has entered modern parlance and with it, the mindset that one must speak "unapproved" opinions softly.
    - Amadou 13y ago
      It's been used many times to strand people of interest to the FBI/CIA in order to put pressure on them to become informants. I used to have a bookmark for a site that documented a bunch of really egregious abuses of the no-fly list and there was a pretty consistent pattern - american citizen or permanent resident leaves the country for vacation or to see family and mid-trip is placed on the no-fly list, usually stranding him in an inhospitable country. Some of the people so stranded reported that they were then approached by US government agents that said if they would just 'cooperate' with them everything would be cleared up in no time at all. The people who told these stories always refused the offer. Unfortunately, I seem to have lost the bookmark and with all the publicity this ruling is getting, google is flooded on all the keywords I can think of.
tghw 13y ago
Somewhere along the way, we decided that the threat of terrorism outweighed our constitutional rights. In the heat of the moment after 9/11, it may have seemed right (to some), but the further we get from the event, the more people are starting to see that there is a problem. These right should not be abridged for any reason. That, or they are not rights.
zenocon 13y ago
...or, read The Trial by Franz Kafka for a more apt summary
D9u 13y ago
Thank you Judge Brown! You are my newest hero! This is the USA, not some tin-hat dictatorship, and it's about time someone within the federal government acknowledges these facts.
ilaksh 13y ago
(The comma key on my keyboard is not working right sorry). Just before I went on vacation recently I was about to make a political comment online that was very critical of the US. I did not make the comment because I was afraid I would be put on a no-fly list and not be able to travel. When I was about to board the plane I was questioned repeatedly by Customs/DHS agents in a way that was extremely stressful and somewhat humiliating. I believe that they violated my constitutional rights (and if not then perhaps we need another amendment to the constitution). I had already been asked the same questions about where I was going and why by at least two different people. Now I was almost to the ramp to get on the jet and I think they could tell I was frustrated to be asked the same questions again. So since I was frustrated or for whatever reason they decided to basically interrogate me on the spot even though I kept telling them to please go ahead and search my bags. They wanted to know what I did and wanted details of my vacation. When I told them I was a software engineer they seemed to not believe me and asked for more details about what a software engineer does. Basically seemed to be accusing me of being a drug dealer or something. I became angry. I think because I was angry they decided to demand the name of the company I worked for and the name of my manager. I also had told them that I was staying with a friend in this other country and they demanded that I give them her name as well. It seemed to me that unless I gave them this information I would not be allowed to board the plane. Even when they pulled the contract out of my bag that had the same company name I had given them they did not apologize. I really hope they did not contact my boss who is the CTO of the company. I know they did not contact my friend. Regardless getting a call from DHS about me could have affected the relationship with this company. It seemed that basically I was being held back and questioned because I was angry and not submissive. It was not until I made a few statements that were more submissive and actually pleading that I was allowed to go. I was the last person to board the jet. The actual flight which was something like 12 hours and then a stop and another 7 hours was actually fairly enjoyable for me. However the constant questioning and searching in the airports especially in the US was so stressful humiliating and generally horrible that I will certainly avoid flying as much as possible. I actually wonder if there is some group that just generally wants to discourage people from flying?
anovikov 13y ago
No-fly list is a gross violation of basic human rights; i can't imagine why a relatively conservative U.S. society tolerate that. Worst part of it is that the airlines are private, government should not be able to tell private enterprises who can be their client and who can't. For (real or imaginary) government-controlled airlines, they are OK. I still doubt they do much to counter terrorism, every self-respecting terrorist should have a few fake passports anyways. More of a good tool for bullying dissidents. As for air travel security overall, i am starting to think what we have in this field now is about what terrorists wanted to achieve: a gross overreaction based on panic.
- anovikov 13y ago
  Just of curiosity, does no-fly lists apply to private jet passengers? I know that no TSA checks apply for them.
  - omarali 13y ago
    Last time I checked they didn't apply to private jets flying within the US but do apply to international flights.
    - anovikov 13y ago
      This system must be taken down as soon as possible. There are too many indications that U.S. is no longer a free country. I'd hate go living there and happy that i've settled in Europe, even while i hate socialism. It's not like i feel i had a big chance getting in a no-fly list, i am a law-abiding person with little political activity, neither terrorist nor dissident. What bugs is me is how people tolerate this, having a lot of ways to protest. That would be natural in Europe where people are nihilist and never trusted governments much, nor they are patriotic (hard to be patriotic when a particular government of a country you live in has little control of you because they delegated too much to Brussels, and there is no common 'European' national identity yet - must be like U.S. in 1790s). But the Americans who claimed to be 'free and brave'? Even in Russia people's rights are not as easily taken away. Mr. Putin's regime may be all corrupt and cleptocratic, but makes very little if any pressure on individual freedoms, and with reason because protests have been violent. People don't care much about officials stealing oil money, but do care about pressure on themselves.
csense 13y ago
From the PDF linked in the article, several people were told they could get off the list by becoming informants: > An FBI agent...told him the only way to get off the No Fly List was to "talk to us." It is very troubling to me that the government is not merely using the list as a shield to protect a plane by keeping out people who would pose a physical danger to it, but using the denial of air travel as a stick to beat people into informing on others. To me, this scenario sounds plausible: The government finds people with Islamic names or innocent connections to the Middle East, puts them on the no-fly list and interrogates them whenever they come to the airport. Some of them give in to the government's pressure -- "find us some terrorists or you'll never be able to see your family overseas again" is not an easy offer to refuse. Of course if the person doesn't know of any actual terrorists, the only to be allowed on the plane would be to make some up, or name innocent people they simply don't like or don't know well. So basically lots of innocent people get harrassed by the government denying them international travel, while the government wastes investigators' time and taxpayer dollars pursuing entirely fictional leads from informants with no connection to actual terrorists, who just want the government off their backs and are willing to make up tips to accomplish that.

267 points by rubyrescue 13y ago

"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States, such as traveling by car or train, the court disagrees with (the government's) contention that international air travel is a mere convenience in light of the realities of our modern world," Brown wrote. Yeah, no kidding. That somebody could sincerely espouse such a position is mind-boggling to me. It ranks up there with "Gay people can already get married too (to the opposite sex)."

veemjeem 13y ago
Are there any companies whose core source of revenue is transporting people via boat? I'm not referring to cruises or other entertainment-based boats.
- jlgreco 13y ago
  Internationally, to and from the US? I doubt it. At a smaller scale you may find privately operated ferries, though I think those are usually operated by governments. There are companies like these guys: http://www.stenaline.co.uk/ferry/scandinavia/ http://www.stenaline.co.uk/ferry/scandinavia/ but I don't think those sort of companies will do you much good if you are trying to get out of or into the US. Edit: For non-cruise trans-Atlantic crossing by sea, the best I've been able to find on google is the Queen Mary 2. That seems to be generally considered an ocean liner rather than a cruise ship. "The Italian Line's SS Michelangelo and SS Raffaello,[4] launched in 1962 and 1963, were two of the last ocean liners to be built primarily for liner service across the North Atlantic. Cunard's transatlantic liner, Queen Elizabeth 2, was also used as a cruise ship.[3] By the early 1970s, many passenger ships continued their service in cruising. By the first decade of the 21st century, only a few former ocean liners were still sailing, while others, like Queen Mary, were preserved as museums or floating hotels. After the retirement of the Queen Elizabeth 2 in 2008, the only ocean liner in service was Queen Mary 2, used for both point-to-point line voyages and for cruising." http://en.wikipedia.org/wiki/Ocean_liner#Decline_of_long-distance_line_voyages http://en.wikipedia.org/wiki/Ocean_liner#Decline_of_long-dis...
  - mbrubeck 13y ago
    There are a few private ferry companies with international routes from the U.S... to Canada: https://cohoferry.com/ https://cohoferry.com/ (Of course this is just trivia and should not distract from the real point, which is that air travel has no real competition for a great number of routes, and the US government is increasingly restricting other forms of travel anyways.)
    - colomon 13y ago
      My hometown example: http://www.bluewaterferry.com/ http://www.bluewaterferry.com/ At the same time, isn't crossing the border firmly established as a "privilege"? In the good old days (ie a decade ago) you could just hop across the border pretty freely, but today you are required to have a passport or enhanced driver's license. Even fishing on the other side of the river (something my dad probably did at least four times a week when I was a kid) now has ludicrous reporting requirements, like calling customs via a landline to report you've crossed the border.
      - kd0amg 13y ago
        I was under the impression that the "privilege" in a border crossing was entering the destination country (and thus to be granted or not according to the destination country's will) rather than leaving the source country. This is what we dislike about the Berlin Wall and similar things, right?
  - joezydeco 13y ago
    I have a relative in Europe that has COPD and eventually won't be able to fly, even with oxygen. Something with the pressurization I've been told. In any case, I've been researching trans-Atlantic passage and the QM2 seems to be the only way to get from the USA to Europe and back via water on a semi-regular schedule and not making a dozen party stops on the way.
- tomfakes 13y ago
  I believe that some cargo ships have space for a very, very small number of paying passengers. I've read articles about this in the past, but have nothing to hand right now on how you can do this. Not a core source of revenue, but possible for someone needing to travel without using planes. You are traveling on a working ship, with a very small crew, and not a lot of provided entertainment,(or internet access), so be prepared to look after yourself during these passages
  - jlgreco 13y ago
    I looked into those sort of trips a while ago and was surprised by the large prices I saw quoted. I think the fact that you are basically paying for accommodations for several days keeps the price higher than you might expect.
    - einhverfr 13y ago
      And if you are going across the Pacific it might take a month.
  - praxulus 13y ago
    http://wikitravel.org/en/Freighter_travel http://wikitravel.org/en/Freighter_travel According to that page, ships must hire a doctor if they have more than 12 passengers, so it's just not worth it for most of them to carry more.
    - techdragon 13y ago
      Now that is a damn valuable link! I intend to look into this sort of thing a lot more for my future travels. Just being able to give the middle finger to luggage overages & have a bed to sleep on instead of an airport bench during a 6 hr layover from midnight till 6am might make all the difference. And I wont have to turn off my ebook reader when the ship starts moving!
- fractalsea 13y ago
  do mean ferrys, or much longer distances? (days/weeks). if you mean ferrys, then in Europe -- and I assume other places -- it is really quite common to travel by boat to other countries. for example from England it is common to go by boat to France/Ireland/etc. I seem to remember p&o ferries was a big company doing that.
  - seanmcdirmid 13y ago
    There is a "ferry" highway in Northwestern Washington, BC, and the Alaska pan handle. It is used quite commonly, especially for car/person transport.
- mistercow 13y ago
  A lot of people actually do use cruises as transportation when traveling, since on net it can actually be much cheaper than flying, staying in a hotel, and taking care of your own food. I doubt there are cruises you could use to travel somewhere for longer than a few days though, since docking fees make up a large portion of a cruise ship's operating cost.
- foobarbazqux 13y ago
  Human smuggling and trafficking on boats is common enough, much easier than on planes.
- jonknee 13y ago
  Not for long distances, but there are still some "Ocean liner" type vessels out there. The Queen Mary II is almost both--fancy like a cruise ship but it does ocean passes and not cruises (where everyone boards and departs at a single location). http://www.cunard.com/ http://www.cunard.com/
Steko 13y ago
And if you can take away the right to fly in a Star Chamber proceeding you can presumably take away the right to ride trains and boats.
- jlgreco 13y ago
  Yup. And even if they don't actually bother to do that, just being on the airplane list effects your ability to travel by ship: "For example, she wrote, the FBI's Terrorist Screening Center shares watchlist information with 22 governments, and U.S. Customs and Border Protection also makes recommendations to ship captains, which could interfere with a person's travels."
ilyanep 13y ago
I had someone on HN trying to convince me that we should put up with the TSA because flying is a privilege not a right. I can't believe how many people believe this, especially in a country as big as the US.
- jlgreco 13y ago
  Lots of people say it, even here on HN in the past. How many of them actually believe it is up in the air. I hope none of them...
- andrewfong 13y ago
  The dichotomy between privileges and rights may have some special legal meaning ascribed to it, but in practice, it's a distinction without a difference. For example, going to Disneyland is almost certainly a privilege, but if Congress passed a law saying Tom Jones from Denver, and only Tom Jones from Denver, was forbidden from going to Disneyland, I bet Tom would have a pretty good case that his constitutional rights were being violated.
  - abecedarius 13y ago
    Yes, that'd be called a bill of attainder, I believe -- those are expressly forbidden by the constitution. Of course, if powerful groups wanted such bills, we'd see lots of articles explaining how 'attainder' meant something else, something more specific. Maybe it does! A written constitution only helps so much.
- mturmon 13y ago
  There is a sliding scale of scrutiny for judicial review of laws (e.g., see http://en.wikipedia.org/wiki/Strict_scrutiny http://en.wikipedia.org/wiki/Strict_scrutiny). If the law has no "rational basis" (as the example here of a specific person being forbidden from going to Disneyland) it will almost certainly be struck down, even if the restriction it imposes is unimportant. My point is that judicial review does not break down simply to determining whether a "privilege" or a "right" is being curtailed. Certainly, if a "right" (and this means specific rights such as those guaranteed by the Due Process clause) is being curtailed, this will tend to push the standard of review higher. But that is not the only factor at work, and there is a very specific meaning of the word "right" in this context.
einhverfr 13y ago
> Yeah, no kidding. That somebody could sincerely espouse such a position is mind-boggling to me. The key thing is that getting stranded somewhere like Hawaii would become a real problem. If there is a right to travel interstate to/from Hawaii, then there is a right to fly there. I would argue the same regarding Alaska too since you either have to go across international waters or through Canada. > It ranks up there with "Gay people can already get married too (to the opposite sex)." Having lived in more traditional places (and being in Indonesia now) I actually the due process issue in flying is far worse than the view you position, at least internationally. Marriage is extraordinarily cultural and multi-functional and in many countries, the fact that there are obligations to parents as well as children (and gender plays role in determining the qualities of power relationships) makes that argument valid in most of the world, so I have real trouble with the idea that it is a human rights issue. This being said, I think that "Marriage is about raising children and same-sex couples can adopt, but we don't want them to get married" is something I can't really understand how people believe. Both of these issues are functional questions. Can you drive across the Continental US as an average person, or take a train or a bus? Sure. One could argue that flying there is a matter of mere convenience but not a core liberty interest. But what about travel to/from Hawaii and Alaska? As an average person one cannot so easily get there outside of being on a plane. Holding this to be an area where government can freely interfere also then puts residents of those states fully at the mercy of the federal government in a way that California residents are not.
- seiji 13y ago
  (and gender plays role in determining the qualities of power relationships) Nope.
  - einhverfr 13y ago
    It does in most of the world. For example here in Indonesia, Chinese-Indonesians prefer to retire with their daughters because the mother-in-law/daughter-in-law relationship is more complex and problematic than the mother-in-law/son-in-law relationship or the father-in-law/son-in-law relationship. This means that over here same-sex couples are not similarly situated to the duties of marriage to the elderly.
davidp 13y ago
Indeed. Personally I'm surprised there aren't more comparisons to travel restrictions placed on black people during the Jim Crow era. Restricting someone's mode of travel even domestically, in such a way that they are at a significant economic disadvantage to their (comparatively) unrestricted fellow citizens is a true punishment; without due process it's just a weapon. Potentially even worse, since it's so insidious, is that the fear of getting put on "the list" can have a chilling effect on the perfectly legitimate activities of loyal, law-abiding citizens. Suppose you're a person of color or muslim, who happens to be interested in learning about the enemy (e.g. Al Qaeda). One obvious way would be to look at their forums online. But wouldn't you be at least a little bit afraid that someone's watching for people browsing to those sites, discovering your ethnicity and background, and slapping you onto the list? From the other side, why wouldn't the watcher put you on the list, just in case? There are no negative consequences for the individual doing so (because no oversight/warrant procedure), and what if he/she "missed the next terrorist" (i.e. maybe you, as far as they know)? It's a no-brainer and could even be rationalized by otherwise well-meaning people as being patriotic. Imagine the poster on their cubicle wall of the burning WTC towers, with "NEVER AGAIN" underneath. This warrantless, unsupervised paroxysm of fear has got to stop. We are Americans. We do not live in fear. We do not sacrifice our freedoms for security. We are willing to accept that some of us may have to die because we exercise those freedoms, and we know that the answer to "What if there's another 9/11?" is "Then we will survive and triumph through that, too."
- alexqgb 13y ago
  Exactly. And if you're honest about it, there are no "alternatives". Seriously, name one alternative to air travel that offers comparable value in terms of time and cost. You can't. Because there aren't any. Given the distances at which is makes the most sense to fly, all of the "alternatives" impose massive burdens in terms of both time and cost. To see just how important these are (and how abusive the "alternative" argument really is) consider the inverse, in which you're randomly banned from transit that uses wheels and were told that "as an alternative" you should "just" take a helicopter to the office every day. Figuring out how to pay for that is your problem. Can't pay? Well, then it's not really an alternative, is it?
icambron 13y ago
While I wholeheartedly agree with your reasoning here, I'd also like to ask why it would reasonable if it were, in fact, merely an inconvenience. Let's say, for example, that instead of the no-fly list, we had a hassle-me-extra-at-the-airport list with the same lack of transparency and process. Still absurd, in my view. Even if you establish something is a "privilege" and not a "right", having an arbitrary and capricious system for deciding who has it should still be illegal. I do understand that the judicial system applies different rational-basis scrutiny standards based on whether fundamental rights are being violated; I'm not protesting the legal logic at play in this case, especially since I haven't yet read the decision itself. But it could well be that the standards themselves are crazy. I plan on reading the decision in full tomorrow.

Steko 13y ago

A related ruling earlier this year by Judge Alsup (of Oracle v Google fame) involving a Stanford graduate student: http://www.sfgate.com/bayarea/article/Secret-no-fly-evidence-rejected-by-judge-4180923.php http://www.sfgate.com/bayarea/article/Secret-no-fly-evidence...

jrockway 13y ago

I've never thought about the issue of international air travel, but yes, I agree with the court. When there's no alternative, you need due process. (Even when there is, due process is always nice to have when you declare yourself "the" democracy for others to emulate.) As I write the reply, I am becoming even more angry that the government can restrict one's activities without any judicial oversight. It's such a simple "check and balance" to add and it's one that makes people really happy. How dumb could you be to try and take away people's rights without even implementing the simplest possible administrative hearing?

InXorWeTrust 13y ago
My American Government put a definition of democracy in a way that I feel is important here: Democracy is government for the people, by the people, held accountable by the people. This is not democracy. There is no due process, there is seemingly no way to appeal, and nobody is held accountable for any decisions for this list, right or wrong.
- rquantz 13y ago
  And yet, here we are seeing the no-fly list practice come under judicial review. Things went further than they should have, but ultimately the system may eventually work the way it is supposed to.

vkou 13y ago

I simply do not understand what kind of threat a person can pose, that makes it impossible for them to safely board an aircraft - after an 'enhanced' search. What harm could they possibly cause on a plane, that they couldn't on a train, a bus, or a movie theater? The existence of this Kafka-esque list is mind-boggling.

jlgreco 13y ago
It is important to realize that the purpose of the list is not really threat mitigation.
- vkou 13y ago
  What is it, then? Protecting the Government from Americans exercising their (Constitutional, and UN) right to Freedom of Movement? Oh. Right. It's "Doing something." For the sake of the children, no doubt.
  - jlgreco 13y ago
    Exactly what it is for is sort of up in the air, but it is clear that it isn't threat mitigation. As you said, it isn't actually doing something a thorough search could not and the people who make these calls, for all their numerous faults, are not categorically stupid; they know as well as you do that the Do Not Fly lists are senseless from a security standpoint. My money on what it is actually for? Theater, or "Doing something" as you put it. Alternatively, perhaps it serves as a bogey-man; "now I'm on a watchlist" has entered modern parlance and with it, the mindset that one must speak "unapproved" opinions softly.
  - Amadou 13y ago
    It's been used many times to strand people of interest to the FBI/CIA in order to put pressure on them to become informants. I used to have a bookmark for a site that documented a bunch of really egregious abuses of the no-fly list and there was a pretty consistent pattern - american citizen or permanent resident leaves the country for vacation or to see family and mid-trip is placed on the no-fly list, usually stranding him in an inhospitable country. Some of the people so stranded reported that they were then approached by US government agents that said if they would just 'cooperate' with them everything would be cleared up in no time at all. The people who told these stories always refused the offer. Unfortunately, I seem to have lost the bookmark and with all the publicity this ruling is getting, google is flooded on all the keywords I can think of.

tghw 13y ago

Somewhere along the way, we decided that the threat of terrorism outweighed our constitutional rights. In the heat of the moment after 9/11, it may have seemed right (to some), but the further we get from the event, the more people are starting to see that there is a problem. These right should not be abridged for any reason. That, or they are not rights.

zenocon 13y ago

...or, read The Trial by Franz Kafka for a more apt summary

D9u 13y ago

Thank you Judge Brown! You are my newest hero! This is the USA, not some tin-hat dictatorship, and it's about time someone within the federal government acknowledges these facts.

ilaksh 13y ago

(The comma key on my keyboard is not working right sorry). Just before I went on vacation recently I was about to make a political comment online that was very critical of the US. I did not make the comment because I was afraid I would be put on a no-fly list and not be able to travel. When I was about to board the plane I was questioned repeatedly by Customs/DHS agents in a way that was extremely stressful and somewhat humiliating. I believe that they violated my constitutional rights (and if not then perhaps we need another amendment to the constitution). I had already been asked the same questions about where I was going and why by at least two different people. Now I was almost to the ramp to get on the jet and I think they could tell I was frustrated to be asked the same questions again. So since I was frustrated or for whatever reason they decided to basically interrogate me on the spot even though I kept telling them to please go ahead and search my bags. They wanted to know what I did and wanted details of my vacation. When I told them I was a software engineer they seemed to not believe me and asked for more details about what a software engineer does. Basically seemed to be accusing me of being a drug dealer or something. I became angry. I think because I was angry they decided to demand the name of the company I worked for and the name of my manager. I also had told them that I was staying with a friend in this other country and they demanded that I give them her name as well. It seemed to me that unless I gave them this information I would not be allowed to board the plane. Even when they pulled the contract out of my bag that had the same company name I had given them they did not apologize. I really hope they did not contact my boss who is the CTO of the company. I know they did not contact my friend. Regardless getting a call from DHS about me could have affected the relationship with this company. It seemed that basically I was being held back and questioned because I was angry and not submissive. It was not until I made a few statements that were more submissive and actually pleading that I was allowed to go. I was the last person to board the jet. The actual flight which was something like 12 hours and then a stop and another 7 hours was actually fairly enjoyable for me. However the constant questioning and searching in the airports especially in the US was so stressful humiliating and generally horrible that I will certainly avoid flying as much as possible. I actually wonder if there is some group that just generally wants to discourage people from flying?

anovikov 13y ago

No-fly list is a gross violation of basic human rights; i can't imagine why a relatively conservative U.S. society tolerate that. Worst part of it is that the airlines are private, government should not be able to tell private enterprises who can be their client and who can't. For (real or imaginary) government-controlled airlines, they are OK. I still doubt they do much to counter terrorism, every self-respecting terrorist should have a few fake passports anyways. More of a good tool for bullying dissidents. As for air travel security overall, i am starting to think what we have in this field now is about what terrorists wanted to achieve: a gross overreaction based on panic.

anovikov 13y ago
Just of curiosity, does no-fly lists apply to private jet passengers? I know that no TSA checks apply for them.
- omarali 13y ago
  Last time I checked they didn't apply to private jets flying within the US but do apply to international flights.
  - anovikov 13y ago
    This system must be taken down as soon as possible. There are too many indications that U.S. is no longer a free country. I'd hate go living there and happy that i've settled in Europe, even while i hate socialism. It's not like i feel i had a big chance getting in a no-fly list, i am a law-abiding person with little political activity, neither terrorist nor dissident. What bugs is me is how people tolerate this, having a lot of ways to protest. That would be natural in Europe where people are nihilist and never trusted governments much, nor they are patriotic (hard to be patriotic when a particular government of a country you live in has little control of you because they delegated too much to Brussels, and there is no common 'European' national identity yet - must be like U.S. in 1790s). But the Americans who claimed to be 'free and brave'? Even in Russia people's rights are not as easily taken away. Mr. Putin's regime may be all corrupt and cleptocratic, but makes very little if any pressure on individual freedoms, and with reason because protests have been violent. People don't care much about officials stealing oil money, but do care about pressure on themselves.

csense 13y ago

From the PDF linked in the article, several people were told they could get off the list by becoming informants: > An FBI agent...told him the only way to get off the No Fly List was to "talk to us." It is very troubling to me that the government is not merely using the list as a shield to protect a plane by keeping out people who would pose a physical danger to it, but using the denial of air travel as a stick to beat people into informing on others. To me, this scenario sounds plausible: The government finds people with Islamic names or innocent connections to the Middle East, puts them on the no-fly list and interrogates them whenever they come to the airport. Some of them give in to the government's pressure -- "find us some terrorists or you'll never be able to see your family overseas again" is not an easy offer to refuse. Of course if the person doesn't know of any actual terrorists, the only to be allowed on the plane would be to make some up, or name innocent people they simply don't like or don't know well. So basically lots of innocent people get harrassed by the government denying them international travel, while the government wastes investigators' time and taxpayer dollars pursuing entirely fictional leads from informants with no connection to actual terrorists, who just want the government off their backs and are willing to make up tips to accomplish that.