It is easier than ever for the government to keep tabs on boaters, but there are limitations … for now.
SOUTHERN CALIFORNIA — Would you sacrifice your right to privacy in the name of safety and security? The Coast Guard and Department of Homeland Security, among other government and law enforcement agencies, are becoming savvier at monitoring everyday human activity, almost always in the name of safety and security. Cameras at street intersections, satellites just beyond Earth’s atmosphere, GPS programming as a common feature in new vehicles and cell phones – it is becoming harder and harder to hide.
Maybe the best place to find some privacy is to hop on a boat and sail out to sea, where it is just you, the water, and marine life. Alas even the deep blue sea cannot offer you much seclusion anymore.
Many boats now have some form of GPS units attached to them. Even using a VHF radio can reveal where you are or listen in on other people’s conversations.
Some boaters might even want to install a Nationwide Automatic Identification System (NAIS) transponder onto their vessel. Coast Guard officials say the NAIS helps promote safe navigation and a more secure coastline. However, boaters risk giving up personal information to governmental officials in exchange for the promises of safety and security.
Is safety and security worth the challenges to privacy protections? What protections do boaters have to ensure the government does not overstep its bounds in analyzing the information gathered?
Nationwide Automatic Identification System
Federal officials implemented NAIS in response to the Maritime Transportation Security Act of 2002 and the Coast Guard launched its NAIS program in 2004 to monitor maritime traffic in the name of promoting safety in all waterways in and around the United States, according to the Coast Guard.
The intent of the vessel-monitoring program, according to the Coast Guard, is to improve security, promote navigational safety, conduct search and rescue operations when needed, and provide environmental protection services.
“NAIS data helps the Coast Guard monitor traffic in ports and U.S. waters and can be used to manage emergency responses and organize port activities like inspections,” the Coast Guard fact sheet read.
Coast Guard officials also stated the monitoring system could help the agency reduce spending by replacing physical buoys with virtual equivalents.
“The system also increases mariners’ awareness by broadcasting electronic aids to navigation and environmental data that are displayed on shipboard navigation systems,” the NAIS fact sheet continued. “The Coast Guard can broadcast various types of virtual markers to vessels, warning them of potential hazards or advising them of traffic patterns in port areas.”
Just what, exactly, is the Coast Guard’s intention with NAIS?
Coast Guard officials issued a fact sheet about the system in 2015 and stated any vessel with an Automatic Identification System (AIS) transponder installed would transmit a radio signal to federal officials. The signal would provide officials with, at minimum, the vessel’s name, position and course.
The initial implementation of NAIS infrastructure would monitor 58 ports and 11 coastal areas across the country, including the Port of Long Beach. The Coast Guard’s operation at the ports of Los Angeles and Long Beach previously shared data collected by the NAIS.
A second round of expansion would allow the Coast Guard and Department of Homeland Security to transmit data out to 24 nautical miles and receive data from vessels within a 50-nautical-mile range. Permanent receivers would be able to observe boating traffic as far as 2,000 miles away from the coast.
At least 51 ports and nine coastal areas across the U.S. were installed with permanent NAIS infrastructure. A few other ports and coastal areas currently have interim NAIS infrastructure and are pegged to become permanent.
The identification system received about 92 million daily messages from 12,700 vessels, according to the Coast Guard. Information could be collected on crew information, vessel, voyage, boat ownership, and cargo, among other items.
NAIS transponders are optional on boats smaller than 65 feet in length.
No information has been made available about the cost of the NAIS program.
The Coast Guard and Department of Homeland Security collects and presents its data in a variety of formats, including raw information in ASCII, formatted spreadsheets with heading readings, heat maps, graphic images, and animation.
ASCII and formatted data appear to be available to anyone who formally requests them (such as through FOIA). However heat maps, graphics and animation formats are, according to the Department of Homeland Security, intended for communications between government agencies and “will not be created solely to fill FOIA requests.”
Heat maps, for example, could show the density of boat travel in a given area during, say, a one-month stretch of time. Graphics and animation formats provide similar historical information.
Recipients of Data
Dozens of agencies and organizations across the country receive NAIS data, according to information released by EPIC. A partial list of recipients include the Port of Long Beach, National Oceanic and Atmospheric Administration (NOAA), Naval Air Warfare Center in Point Mugu (just south of Channel Islands Harbor), Port of Stockton Custom Border Patrol, Boeing, the U.S. Navy in San Diego, U.S. Coast Guard Academy, U.S. Army Corps of Engineers, Internal Revenue Service (IRS), and departments of Homeland Security, Justice and Transportation, among others.
The Electronic Privacy Information Center (EPIC), a nonprofit research center based in Washington, D.C., filed a lawsuit against the Coast Guard after the federal agency reportedly failed to respond to the group’s Freedom of Information Act (FOIA) requests.
A copy of the 10-page complaint (filed in a federal district court in September 2015) obtained by The Log revealed EPIC accused the Coast Guard of not complying with a FOIA request and withholding documents about the NAIS program.
NAIS, according to the EPIC lawsuit, is a “system established by the federal government to monitor the identity, course, and location of recreational and commercial vessels; to retain records of the private activities of U.S. boaters; and to enable analysis of these activities.”
“The NAIS program exceeds the stated purpose of marine safety and constitutes an ongoing risk to the privacy and civil liberties of mariners across the United States,” EPIC stated in its lawsuit, which sought an injunctive order requiring the Coast Guard to provide disclosure “of all responsive, non-exempt records.”
Recreational boaters who have AIS transponders installed on their vessels could have the information collected used for something more than collision prevention and emergency responses, the EPIC lawsuit alleged. Coast Guard and Department of Homeland Security run a high risk of violating privacy rights, the allegations continued.
“The NAIS program poses a significant threat to privacy. With NAIS, the [Coast Guard can] ‘collect, integrate, and analyze’ millions of data points from boaters every day for purposes unrelated to collision avoidance,” the lawsuit claimed, adding federal officials “retain that data for an indeterminate time and assign boaters secret designations that may subject mariners to government scrutiny.”
Federal laws, EPIC continued in its complaint, require the Coast Guard and Department of Homeland Security to maintain a system of records notice and regularly perform a “Privacy Impact Assessment”
“The boating community is alarmed about the NAIS program,” the EPIC complaint stated. “This system of data collection and analysis, implemented at the direction of the [Department of Homeland Security], is contrary to the [Coast Guard’s] general support for the privacy of boaters and the protection of their personal information.”
The Coast Guard eventually provided EPIC with more than 2,500 pages of documents and information, all of which were posted on its website (bit.ly/1SQxuPv).
U.S. vs. Jones
What constitutes a right to privacy – and what governmental actions constitute a violation of such privacy – was at the heart of a Supreme Court decision in 2012. Justices ruled the government’s use of GPS monitoring to track someone’s vehicle in connection with a drug trafficking conspiracy case violated the driver’s constitutional privacy protections.
The Department of Homeland Security, in a 2011 internal policy memorandum, stated anyone who uses a maritime communication device to broadcast and transmit information does not have a reasonable expectation to privacy.
“As a broadcast system (where communications are intended to be received by the public), there is no expectation of privacy with regard to any information transmitted on [an Automated Information System],” the policy memorandum stated. “In accordance with the Maritime Transportation Security Act of 2002, the [Coast Guard] developed a two-way maritime data communication system based on [Automated Information System] technology, which is referred to as NAIS.”
Department staff added the sharing of information was necessary to safety and security.
“Sharing information collected by NAIS with both governmental and non-governmental entities will result in (1) improved navigation safety and mariners’ situational awareness; (2) enhanced ability to identify and track vessels; and (3) heightened overall awareness of global maritime transactions to address threats to maritime transportation safety and security,” the policy memo stated. “Enhanced safety and security facilitates economic development, the free-flow of international commerce, and targeted environmental protection and conservation efforts.”
In U.S. vs. Jones the Supreme Court stated in some circumstances the government’s surveillance of an individual via electric means could qualify as an invasion of privacy and a Fourth Amendment violation.
“Awareness that the government may be watching chills associational and expressive freedoms. And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse,” Justice Sonia Sotomayor wrote in her concurring opinion. “The net result is that [electric] monitoring — by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the government, in its unfettered discretion, chooses to track — may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’”
Sotomayor added our existence in the digital age might now negate any notion of sacrificing reasonable expectations to privacy based upon the voluntary disclosure of information to third parties.
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.
She added the voluntary broadcast of information for a very specific purpose does not invalidate all privacy protections.
Accordingly the Coast Guard and Department of Homeland Security can collect a vessel’s data as part of the NAIS program but only in the context of using the information for safe navigation. Boaters, according to U.S. vs. Jones, could still have an expectation of privacy despite the information they might broadcast, despite the Department of Homeland Security’s policy memo.
License Plate Readers
San Diego Harbor Police Department’s policy manual features a section on Automated License Plate Readers (ALPRs). The technology is also known as License Plate Recognition and, according to Harbor Police, would be used for identifying stolen or wanted vehicles or other law enforcement purposes.
“ALPRs may also be used to gather information related to active warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery,” the policy manual stated.
Any data collected by the technology is not available for public review, the policy continued.
“The [License Plate Reader] system exists for the sole purpose of assisting law enforcement officers with ongoing criminal investigations and only for authorized public safety purposes,” the Harbor Police policy manual added.
Last year city officials in Oceanside considered installing license plate readers at the local harbor as part of Operation Stonegarden, a federal program under the Department of Homeland Security monitoring drug and trafficking activity. Sometimes drugs and humans are illegally smuggled into the U.S. through one of California’s harbors or ports. However nothing ever came of the plan, according to a city official.
The city’s police department has a license plate reader policy, available online, similar to the one used by the San Diego Harbor Police Department, though it references ALPRs installed on the dashboards of squad cars.
Installing a NAIS transmitter on your boat ultimately comes with a balance of costs and benefits.
Joining the NAIS grid does provide a real safety need and benefit, according to BoatUS Government Affairs Senior Program Manager David Kennedy. A transponder, for example, could be used by a recreational boater, navigating from King Harbor to Avalon in the fog, whether there are any tankers immediately ahead of them but cannot see.
However, using a transponder usually comes at the expense of maintaining privacy.
“It’s this interesting balance,” Kennedy said. “Ultimately you are making a broadcast when you do this. Anyone can pick it up.”
A recreational boater must ultimately ask whether the concerns of privacy outweigh safety benefits derived from a NAIS transponder.
“Just realize the information is going to be collected,” Kennedy said, adding the Coast Guard can easily pick up what is transmitted, keep the information long-term, and share it with state, regional or local agencies.
Kennedy added BoatUS regularly engages with the Coast Guard and other agencies to ensure the NAIS program focuses strictly on safety and does not violate the privacy rights of boaters.
He also reminded boats they can also be monitored when entering into a National Marine Sanctuary. Just the same government officials can keep an eye on vessels with something as simple as binoculars.
The NAIS program is not the only way local, state and federal officials can keep tabs on boaters. Fortunately boaters have protections so long as they stay informed and understand their rights.