Look Who's Watching Now

By: Kathleen Taylor

A couple went into an exercise equipment store to buy a treadmill. They found one they liked, and applied for financing. The bank representative told them—in front of other customers —that because the husband’s name is Hussein, they would have to wait 72 hours for an extra identity check “because of Saddam Hussein.”

A case of unlawful discrimination based on ethnic or national origin? Not these days! Not only was this incident legal; it was encouraged by the federal government.

This and other disturbing anecdotes were documented in a recent report by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. The report focused on the unintended effects of the Office of Foreign Asset Controls (OFAC) list maintained by the U.S. Treasury Department.

The OFAC list includes more than 6,000 names of people and businesses that allegedly “have ties” to criminal or terrorist groups. Banks, lenders and other companies are forbidden from doing business with persons on the list, or face years in jail and millions of dollars in penalties.
Trouble is, many more than 6,000 people carry those names or names that are very similar. Businesses, eager to avoid legal trouble, are aggressively matching names to the Treasury Department list during credit checks, often declining to do business even if a person’s name is only partially the same. As a result, countless numbers of people with common names like Muhammad or Sanchez are being denied or delayed access to rental cars, mortgages, credit, insurance and other everyday services.

If this sounds a lot like the “No Fly” list, its because its basically the same idea, with all the same problems. It is notoriously easy to be placed on the No Fly list and nearly impossible to get off. Congress was supposed to have reformed the No Fly list so that people could get their names removed if they could “prove” their innocence. That didn’t quite happen though. The Transportation Security Agency does offer people the chance to send copies of identification to prove that they are not the people on the No Fly list. But that does not actually get one’s name off the list, it merely puts it on another list that airlines can use to cross-reference. The end result is still a delay at the airport, and the inability to self-check at the counter.

Besides the No Fly list, the government maintains an unknown number of other watch lists—databases of names or organizations—used by law enforcement and other agencies to find or monitor people or groups. The lists could include everything from details of confirmed fugitives to second-hand reports of people with tenuous connections to crime or terrorism.

The lists act as a government accusation of wrongdoing, without giving people due process or an opportunity to defend themselves. In effect, they become blacklists, stigmatizing people who may not have any connection whatsoever to crime or terrorism.

Nobody really knows how the government puts people or groups on its watch lists. Nobody knows who keeps them, and only rarely how to get a name removed. What we do know—through news accounts and public records requests—is that these watch lists are multiplying, accumulating more records on hundreds of thousands, maybe millions of people.

So what can we do? The first step is to shed light on what the government is doing. We have very little idea of what lists exist, what information they hold, and how that information is used. Congress should use its powers of oversight to review these programs, ensure that they are legal, and that they respect due process and privacy.

Part of that oversight must include creating a system to fix problems in the watch lists. People who have been wrongly included must have a way to remove their names. Lists need to have a specific, reasonable purpose; government and businesses need to be held accountable when they misuse watch lists for any other reason. The people who run or use these lists need to be properly trained and screened for the job.

It’s important to remember that watch lists don’t keep people safe. At heart, a watch list is an electronic tool, imperfect, without common sense, experience or good judgment, as the results have shown. Ultimately, Americans need to restore their confidence in a free society and forsake the illusions of false security.

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Taylor is the Executive Director of the ACLU of Washington