Amtrak's B.S. 'suspicious activity list' where everyone's a suspect
When you get off a train, do you get off ahead of passengers? Or do you get off behind passengers?
When you're going on a trip, do you come off as nervous? Or are you an unusually calm traveler?
How about if you make a phone call at a station, do you look around? Or do you stare straight ahead?
If you don't know the answers to these questions, you'd better figure them out now. Because unless you get off in stride with other train passengers, live at the elusive intersection between anxiety and tranquility, and close your eyes during phone calls, you're a suspicious person subject to questioning by Amtrak police.
According to the Guidelines for Amtrak Customer Service Employees in Texas, which the ACLU has received as a result of a FOIA request, ticket agents may come in contact with travelers whose conduct is "indicative of criminal activity." Amtrak says supposed indicators of such activity should immediately be reported to trained law enforcement personnel.
They include:
Unusual nervousness of traveler
Unusual calmness or straight ahead stare
Looking around while making telephone call(s)
Position among passengers disembarking (ahead of, or lagging behind passengers)
Carrying little or no luggage
Purchase of tickets in cash
Purchase tickets immediately prior to boarding
Not only does Amtrak ask its ticket agents to alert the cops to such dangerous activity as, say, a spontaneous romantic trip with your honey, Amtrak also urges its customers to report suspicious activity to Amtrak police themselves. In its "See Something, Say Something... Hopefully It's Nothing" campaign, customers are asked to report such activity as taking photos of equipment -- including trains -- and "loitering, staring, or watching employees and customers."
Amtrak's dragnet approach on what makes someone suspicious is standard operating procedure at DHS/Amtrak etc.
As we have seen with Suspicious Activity Reports and the TSA's SPOT program, reporting based on broad categories of "suspicious" behavior is problematic because it almost always results in racial and religious profiling, as well as the targeting of perfectly innocent activity. Most importantly, building mountains of irrelevant data is ultimately an ineffective law enforcement tactic. (See here and here.)
The ACLU has received reports from individuals wrongfully searched and arrested on Amtrak trains.
"While we're particularly interested in how Amtrak is collecting, tracking, and sharing our data -- including through new technologies -- we have yet to receive information relevant to those questions. But we do know that Amtrak police has not reported a single instance of finding and catching a potential terrorist or serious threat as a result of its suspicious activity reports. Instead, it has filled its trophy case with victories like arresting a black woman because passengers felt she was speaking too loudly on the phone, arresting a black man because another passenger falsely stated he threatened her, and even arresting a photographer because he was taking pictures of a train for the annual Amtrak "Picture our Train" competition (update here).
We have reason to believe that Amtrak's policies also provide grounds for civil asset forfeiture, a process that effectively allows cops to engage in highway robbery, and often results in racial profiling. The documents we received include agreements between Amtrak and the Las Vegas Police Department, Reno Police Department, and Louisiana state police.
The agreements not only officially enable a practice of confiscating money and property from passengers without due process, but also mandate "equitable sharing of forfeited assets;" in other words, state agencies get a cut of assets seized by Amtrak police. Reports of asset forfeiture indicate that the police target those they associate with criminal behavior and drug trafficking - black and Latino men."
DHS/Amtrak think everyone's a possible terrorist:
We know that DHS obtains information from Amtrak about all passengers on all international Amtrak trains. DHS has disclosed this in public reports, and we have confirmed it from DHS responses to FOIA and Privacy Act requests.
Here's an example of a DHS “TECS” travel history log showing Advance Passenger Information (API) data extracted from a record in Amtrak’s ARROW computerized reservation system for a passenger traveling on Amtrak (carrier code 2V) train number 69 in the outbound direction from the US (”O”) from Penn Station, New York (station code NYP) to Montreal (MTR). The entry in the “QYRSLT” column redacted by DHS is the result for this passenger and trip of the pre-crime risk score query to the DHS profiling system.
In a 2008 Privacy Impact Assessment, DHS described its acquisition of Amtrak reservation data as follows:
Currently, Amtrak collects certain manifest data from passengers and crew on all of Amtrak’s international service, and, on a voluntary basis, Amtrak provides that manifest information to CBP…. For all international service Amtrak trains arriving in the United States from a Canadian location or departing the United States for a Canadian location, Amtrak currently, voluntarily transmits an advance notice submission of information regarding each individual traveling onboard the train to CBP.
This transmission [is] automatically sent using a United Nations Electronic Data Interchange for Administration, Commerce, and Trade (UN EDIFACT) text file through eAPIS, the CBP APIS web portal. The manifest data may include the following information for all individuals aboard the train: complete name, date of birth, gender, country of citizenship, travel document type (e.g., Passport, Merchant Mariner Document, NEXUS or SENTRI Card, Legal Permanent Registration Card, Enhanced Driver’s License, etc.), DHS-approved travel document number, DHS-approved travel document country of issuance, DHS-approved travel document expiration date, passenger name record (PNR) or reservation locator number, status on board the train (i.e., passenger or crew member), train point of origin , final destination, date of arrival/departure, rail carrier code (Amtrak), and train number or other official number. This data is generally received by CBP 60 minutes before an arriving train departs from a Canadian location or a train in the United States leaves for a Canadian location.
Whether or not there is a formal memorandum of understanding between Amtrak and DHS (which surely Amtrak would have copies of), we find it inconceivable that Amtrak has no procedural documents concerning this practice. Those documents were responsive to the ACLU’s request, and were improperly withheld — most likely because the search for responsive documents was inadequate and failed to identify them. If we had to guess, we would speculate that Amtrak program staff failed to inform the FOIA office of their existence. Whether that was through ignorance or intentional concealment we don’t know.
All of Amtrak’s international trains serve Canada. There are no through trains between the USA and Mexico, but there are through trains jointly operated by Amtrak and VIA Rail Canada between New York and Montréal, Buffalo and Toronto, and Seattle and Vancouver. Amtrak’s web page on Crossing the US-Canadian Border says, “The information you provide when you make your reservation will be entered into your reservation record and supplied to Customs and Immigration officers to facilitate your clearance. Neither Amtrak nor VIA Rail Canada will use this information for any other purpose.”
In the absence of any agreement between Amtrak and DHS/CBP restricting use of the data from passenger reservations “voluntarily” provided by Amtrak, we can’t see what basis Amtrak would have for assuring passengers that this information will be used solely “to facilitate your clearance”.
Nor would most people construe profiling you, assigning you a risk score, and deciding whether to allow you to travel or how intrusively to search and interrogate you at the border as being done “to facilitate your clearance.”
As of 2008, DHS said that, “CBP is pursuing ‘All Modes’ APIS [Advance Passenger Information system] legislative authority to clarify its broad authority to mandate the transmission of manifest information, including all international rail and bus travel,” but that in the meantime, “on a voluntary basis, Amtrak provides that … information to CBP.” There’s been no change in the applicable US laws or regulations since then.
Since DHS has conceded that it currently lacks authority to compel Amtrak to hand over this information, it’s questionable whether these “voluntary” data transfers violate Amtrak’s obligations pursuant to the Canadian “Personal Information Protection and Electronic Documents Act” (PIPEDA), especially when tickets are sold in Canada. Amtrak’s website appears to lack any mention of PIPEDA or any point of contact or procedures for Canadian purchasers of Amtrak tickets to exercise their rights under PIPEDA with respect to Amtrak records. If any Canadian readers have traveled to the US on Amtrak and have asked Amtrak for their records or information about how they have been shared, please let us know how it went and what, if any, answers you received.
We also don’t know whether Amtrak and/or VIA Rail Canada reservation data for passengers on these trains, like airline reservations for US-Canada flights, is provided to the Canadian Border Services Agency (CBSA).