Mar 18 2024

Buses, trains, and US domestic travel without ID

In our previous article, we looked at the state of ID requirements and the the right to international travel for U.S. citizens.

What about domestic travel within the USA without ID?

Flying? Domestic US airline passengers are subject to demands for ID by airlines and the TSA. These demands are of dubious validity, and have arbitrary secret exceptions. Many people fly without ID every day. But not everyone is able or willing to challenge these authoritative-seeming demands for ID to fly.

Driving? States that choose to participate in the national REAL-ID system are making it harder and harder to get driver’s licenses or state IDs. It’s easier for a US citizen to get a passport or passport card than to get a driver’s license in some states. But you can’t legally drive in the US without a driver’s license issued by a state, US territory, or foreign government.

Unless you walk, ride a horse or bicycle, or get a ride in a car driven by someone else, that leaves buses and trains as the primary modes of long-distance travel for people in the U.S. without ID.

Can you take a long-distance bus or train in the US without ID? And if not, what could or should be done to guarantee that right? Read More

Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent  if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

Read More

Feb 16 2024

FOIA follies at the State Department

It’s sometimes hard to say which Federal agency does the worst job or displays the most bad faith in responding (or not responding) to Freedom Of Information Act requests.

But the latest actions by the FOIA office of the Department of State certainly place near the top of our all-time scorecard of FOIA follies.

In the past, our worst FOIA experiences have been predominantly with the Transportation Security Administration (TSA) and other components of the Department of Homeland security (DHS). There was the time the TSA’s Chief Privacy [sic] Officer circulated libelous statements about us to the FOIA offices of all DHS components, in the hope of influencing them not to take us or our requests seriously, and then the TSA FOIA office tried to hide this misconduct from us by illegally redacting the libelous lines from the versions of their internal email messages that they released to us. We found out only when another staff person accidentally sent us an unredacted copy of the incriminating TSA email.

For more than a decade, the TSA FOIA office has included knowingly false bad-faith boilerplate in every letter or email message it sends about any FOIA request, claiming that “This office can be reached at 571-227-2300”. That same number and a toll-free number that goes to the same line, 866-364-2872, are the only phone numbers listed on the FOIA section of the TSA’s website or on FOIA.gov. But as anyone can easily verify, that number is answered by an automated system of recorded messages with no option even to leave a voicemail message, much less to reach any human being. The recording played at that number begins, “This phone line is not staffed by FOIA employees.” It’s impossible to contact the FOIA office, or to contact anyone, at that number.

The recorded phone messages advise FOIA requesters to contact the TSA FOIA office by email, but our email messages to that office are rarely answered. It’s unclear if they are received and ignored, or not received at all. If your email to the TSA FOIA office is filtered out as spam, there’s no way to know, or to follow up by phone. When we wrote to the TSA’s FOIA Public Liaison about this, at the address in their letters and on their website, by certified mail, return receipt requested, our letter was returned marked “Vacant. Unable to Forward.”

So what has the State Department done to rival the TSA’s record of FOIA bad faith?

The saga begins at some unknown date more than a decade ago, when the State Department began singling out some arbitrarily selected subset of disfavored applicants for U.S. passports and illegally demanding that they fill out a bizarre supplemental “long form” passport application asking  questions such in what church they were baptized, every address at which they had ever lived, and every employer for which they had worked. (Imagine trying to fill that out if you worked as a casual laborer.)

The selective imposition of a deliberately more difficult questionnaire for some applicants is disturbingly reminiscent of the “Jim Crow” practice of selectively requiring African-American applicants for voter registration to answer a more difficult version of a literacy or civics questionnaire.

The Paperwork Reduction Act requires that all forms like this be approved by the Office of Management and Budget before members of the public can be required to fill them out, but the State Department never submitted this passport form to OMB.

In 2011, however, the State Department asked OMB to approve an even longer supplemental “long form” for certain applicants for U.S. passports, adding questions such as your mother’s address one year prior to your birth, the dates of each of your mother’s pre-natal medical appointments, a complete list of everyone who was in the room when you were born, and whether (and in what circumstances) you were circumcised.

We filed a FOIA request in April 2011 with the State Department to find out how long this and similar unapproved forms had been in use, how many passport applicants had been singled out for this second-class treatment, and how they were selected.

In July of 2011, we filed another FOIA request to find out what had happened to our unanswered complaints of human rights violations by the State Department, including those related to passport issuance and requirements.

Read More

Jan 23 2024

IDs and mug shots now required from all corporate principals

This month the Financial Crimes Enforcement Network (FINCEN) division of the Department of the Treasury began collecting copies of passports, drivers licenses, and other ID documents submitted by officers and owners of all sorts of companies.

In  other words, you now have to have a government-issued ID and provide an image of it, probably including your photo, to the Federal government in order to establish, serve as an executive of, or hold a major interest in almost any type of corporation, LLC, partnership, trust, etc. (with some odd and irrational exceptions).

Read More

Jan 08 2024

Supreme Court hears arguments in “No-Fly” case

Gadeir Abbas speaking in front of the steps of the US Supreme Court

[CAIR Senior Litigation Attorney Gadeir Abbas speaks to press conference in front of the U.S. Supreme Court following oral argument in FBI v. Fikre.]

Today the US Supreme Court heard more than an hour of oral argument (transcript, MP3 audio) in the case of FBI v. Fikre, the latest in a series of cases in which the government has tried to avoid having a judge or jury review the criteria, procedures, and factual basis (if any) for no-fly decisions by removing previously blacklisted people from the no-fly list after they sue the government, and then asking courts to dismiss their lawsuits as “moot”.

In order to get such a complaint dismissed as “moot”, the government has the burden of showing that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, according to the District Court.

Inquiring minds on the Supreme Court wanted to know how the government could meet that burden — or whether it could ever do so — without disclosing the basis for the initial no-fly decision and/or what changes had been made to no-fly decision-making criteria or procedures.

Several Justices expressed “sympathy” with the government, but concern for due process:

Justice Gorsuch, for example, wanted to know why the government wouldn’t even tell a judge in a “Sensitive Compartmented Information Facility” (and maybe the plaintiff’s lawyer, if the government would give them a security clearance) anything about a no-fly decision:

Read More

Jan 03 2024

“No-Fly” case to be argued Jan. 8th in the Supreme Court

The U.S. Supreme Court will hear oral argument this Monday, January 8, 2024 on an appeal brought by the FBI challenging a Circuit Court decision in favor of Yonas Fikre. It’s the second case on the Supreme Court’s 10 a.m. EST calendar for oral argument Monday.

You can listen live online, attend a live watch party in DC if you can’t get into the Supreme Court, or listen to recorded audio that should be posted by the end of the day on Monday.

The complete Supreme Court docket and links to the pleadings in FBI v. Fikre are here.

The question presented to the Supreme Court in this case doesn’t directly address what substantive criteria or procedures are Constitutionally required for the government to order common carriers not to transport an otherwise-qualified U.S. citizen. A separate challenge to the entirety of the blacklisting system remains pending in U.S. District Court in Boston.

But this case in the Supreme Court does address one of the government’s standard tactics for evading judicial review of its blacklisting decisions: taking people who sue the government off blacklists to “moot” their cases if it looks like they might have a chance of getting a court to rule on the legality of the government’s procedures or criteria for blacklisting decisions or or the sufficiency of the evidence (if any) against them.

If anyone deserves to have the U.S. government’s decision to put him on its no-fly list reviewed by a judge, it’s Yonas Fikre.

Read More

Dec 26 2023

Congress watches the “watchlists” — but will Congress act?

Earlier this month  CBS News broadcast an in-depth report confirming that more than two million names (up from 1.75 million names in 2019) are now on U.S. government blacklists (euphemistically described as “watchlists”) restricting travel and other rights.

CBS also interviewed some of the U.S. citizens who, without ever being accused of any crime or having their day in court, and for no reason they know or that the government will tell them, have been stopped at gunpoint, delayed, or prevented from flying.

Less than a week later, the Senate Homeland Security and Government  Affairs Committee (HSGAC) released a detailed staff report on the same issue, “Mislabeled as a threat: How the terrorist watchlist & government screening practices impact Americans“.

The Chair of the HSGAC, Sen. Gary Peters (D-MI), also sent a formal request to the Inspectors General of each of the Federal departments that participate in the “Watchlisting Council”,   asking the Inspectors General to “coordinate on an assessment of the full implementation of the Terrorist Screening Dataset.”

“I have heard from my constituents, and in particular my Arab and Muslim American constituents, that they face undue levels of scrutiny and screening atairports, other ports of entry, and in their daily lives, which they believe is the result of their placement on the terrorist watchlist,” Sen. Peters  noted. “Inspectors General have not conducted a coordinated, independent assessment of the full watchlisting enterprise – from the nominations process; to how information is shared, used, and audited; to the redress options available to individuals who may match to the list.”

The same day, five other Senators and eight members of the House of Representatives sent a joint letter about “watchlisting” practices  to the heads of the Department of Justice, FBI, Department of Homeland Security, Transportation Security Administration, U.S. Customs and Border Protection, and several other agencies.

The joint letter asks for answers “no later than January 9, 2024” to a long list of questions about how many people are on U.S. government watchlists, how many have been added and removed, what procedures have been followed, what data has been collected or purchased about these people,  what if any redress is available to them, and what the criteria for adding names are supposed to be. “Beyond the spouses and children of individuals on the watchlist, what other categories of ‘non-terrorists’ may be included as exceptions to the reasonable suspicion standard for placement on the watchlist?”

We’re pleased that members of Congress are asking increasingly pointed questions about the U.S. government’s system of secret, arbitrary, extrajudicial blacklists.

But asking questions isn’t enough. What’s needed from Congress is legislative action.

We hope that members of Congress don’t stop at “making inquiries” or “demanding answers”.  There’s ample evidence already that the watchlisting/blacklisting system is out of control. It’s up to Congress to bring that system under control by enacting legislation restoring the rule of law to decision-making about who is allowed to exercise their rights.

If members on Congress want to do something about the problem of travel blacklists, not just talk about it, a good way to start would be to reintroduce and bring to a vote the Freedom to Travel Act, which was introduced in 2021 but never got a hearing or a vote.

Nov 30 2023

Senate bill introduced to ban TSA use of facial recognition in airports

Six US Senators led by Sen. Jeff Merkley (D-OR) and Sen. John Kennedy (R-LA) have introduced a bill to prohibit the Transportation Security Administration (TSA) from using automated facial recognition at airports.

S.3361 the “Traveler Privacy Protection Act of 2023”, was introduced on November 29, 2023 by Sens. Merkley, Kennedy,  Edward Markey (D-MA), Roger Marshall (R-KS), Bernie Sanders (I-VT), and Elizabeth Warren (D-MA).

Introduction of this bill comes more than five years after these and other Senators started to raise questions about whether airline passengers can be, should be, or are already being required to submit to automated facial recognition at airports, despite questionable claims by the TSA that passengers can “opt out” of facial recognition.

We find it notable and praiseworthy that this bill (text of bill as introduced), isn’t an attempt to “regulate” TSA use of automated facial recognition or to bolt on controls on how this surveillance technology or facial images or other data (event logs, etc.) collected by such systems. Rather than imposing regulations, the bill would impose a categorical ban on TSA use of automated facial recognition at airports, at least for now. If this bill is enacted, the TSA would be allowed to use facial recognition technology in airports only if that use is explicitly authorized by new legislation enacted after the passage of the “Traveler Privacy Protection Act of 2023”.

The “Traveler Privacy Protection Act of 2023” would close a significant loophole in current and proposed laws. Other proposals for regulation of facial recognition are pending in Congress, but they exempt the TSA and/or fall short of a categorical ban on use of facial recognition. And Federal preemption of regulation of air travel has given the TSA  impunity from state and local attempts to restrict government use of facial recognition.

The “Traveler Privacy Protection Act of 2023” would do nothing about the use of automated facial recognition by US Customs and Border Protection (CBP) at international airports, but it would create a model for legislation that could also be applied to CBP.

Nov 13 2023

Advance Travel Authorization (ATA) and the “CBP One” app

 

As we’ve discussed before in this blog, and as other human rights advocates have noted, asylum requires traveling to a border. Since you can only apply for asylum after you arrive in a country of refuge, freedom to travel from a place where you are subject to persecution to a country of refuge is a prerequisite for asylum.

But as we have also noted, including in comments earlier this year to the U.N. Office of the High Commissioner for Human Rights concerning the rights of migrants, governments including the US government have steadily increased their efforts to undermine the right to asylum by preventing  asylum seekers from traveling to their borders.

The latest step in this direction is the Advance Travel Authorization (ATA) system operated by U.S. Customs and Border Protection (CBP). Under this program, asylum seekers can request permission through the CBP One mobile app to travel to the US. CBP is already operating this system under a temporary “emergency” authorization from the Office of Management and Budget (OMB), but is seeking OMB approval to make it permanent.

As we explain in comments we submitted today to CBP:

Because the US has no jurisdiction and CBP has no statutory authority over travel by non-US citizens within or between other countries or their departure from other countries, and because whether or not a non-US citizen has requested or been granted “permission” from CBP has no bearing on their right to leave any other country or to travel within or between other countries by common carrier or otherwise, this collection of information is of no practical utility for any lawful activity of CBP or any US agency.

Do asylum seekers need permission from the US government to leave other countries where they are being persecuted, or to travel to the US?

No, they do not, as we explain in our comments to CBP: Read More

Oct 16 2023

The TSA wants to put a government tracking app on your smartphone

Today the Identity Project submitted our comments to the Transportation Security Administration (TSA) on the TSA’s proposed rules for “mobile driver’s licenses”.

The term “mobile driver’s license” is highly misleading. The model Electronic Credential Act drafted by the American Association of Motor Vehicle Administrators (AAMVA) to authorize the issuance of these digital credentials and installation (“provisioning”) of government-provided identification and tracking apps on individual’s smartphones provides that, “The Electronic Credential Holder shall be required to have their Physical Credential on their person while operating a motor vehicle.”

So the purpose of “mobile driver’s licenses” isn’t actually licensing of motor vehicle operators, as one might naively assume from the name. Rather, the purpose of the “mobile drivers license” scheme is to create a national digital ID, according to standards controlled by the TSA, AAMVA, and other private parties, to be issued by state motor vehicle agencies but intended for use as an all-purpose government identifier linked to a smartphone and used for purposes unrelated to motor vehicles.

We’ve seen the ways that government-mandated tracking apps on citizens’ smartphones are used by the government of China, and that’s not an example we want the US to follow.

AAMVA’s website is more honest about the purpose and planned scope of the scheme: “The mobile driver’s license (mDL) is the future of licensing and proof of identity.”

As we note in our comments:

The fact that the TSA seeks to require the installation of a government app on a mobile device of a certain type suggests that the government has other purposes than mere “identification”, such as the ability to track devices as well as people. But we don’t know, because we haven’t been able to inspect the source code for any of these apps.

Most of the details of the TSA proposal remain secret, despite our efforts to learn them. So our comments focus on the unanswered questions about the proposal, the deficiencies in the TSA’s “notice”, and the TSA’s failure to comply with the procedural requirements for consideration of proposed regulations and for approval of collections of information from members of the public — which the TSA is already carrying out illegally, without notice or approval, with digital ID apps that state agencies are already installing on smartphones:

By this Notice of Proposed Rulemaking (NPRM), the Transportation Security Administration (TSA) proposes to establish “standards” (which are not included in the NPRM and not available to the public) for a national digital ID to be used by Federal agencies in an unknown range of circumstances for unknown purposes (also not specified in the NPRM, and for which the notices and approvals required by law have not been provided or obtained).

The NPRM, which includes a proposal to incorporate by reference numerous documents which are not included in the NPRM and have not been made available to would-be commenters who have requested them, fails to provide adequate notice of the proposed rule or opportunity to comment on the undisclosed documents proposed to be incorporated by reference. It violates the regulatory requirements for incorporation by reference of unpublished material….

The proposed rule would also implicitly incorporate the Master Specification for State Pointer Exchange Services (SPEXS) published by the American Association of Motor Vehicle Administrators (AAMVA), which is not included or mentioned in the NPRM or publicly available and which AAMVA has actively attempted to remove from public availability….

The NPRM purports to include an analysis, pursuant to the Paperwork Reduction Act (PRA), of “the information collection burdens imposed on the public,” and claims to have requested approval for these information collection from the the Office of Management and Budget (OMB). But both the NPRM and the request for OMB approval omit any mention of the collection of information from individuals that occurs each time a “mobile ID” is “presented” and an app on a mobile device interacts with TSA or other Federal agency devices or servers….

What data fields will be collected when a TSA or other Federal agency device interacts with a mobile ID app on an individual’s device? We don’t know. What code will an individual be required to allow to run on their device, and with what privileges? We don’t know, although this could be critical to the risks and potential costs to individuals if, for example, they are required to allow closed-source code to run on their devices with root privileges.

From which people, how many of them, in what circumstances, and for what purposes, will this information be collected? We don’t know, although all of this is required to be included in an application for OMB approval of a collection of information….

What will individuals be told about whether these collections of information are required? We don’t know this either, although this is a required element of each PRA notice, because the TSA provides no PRA notices to any of those individuals from whom it collects information at its checkpoints, including information collected from mobile IDs.

As the TSA itself has argued in litigation, no Federal statute or regulation requires airline passengers to show ID. And hundreds of people pass through TSA checkpoints and board flights without showing ID every day. An accurate submission to OMB, and an accurate PRA notice (if approved by OMB), would inform all individuals passing through TSA checkpoints that ID is not required for passage. But instead of providing OMB-approved PRA notices at its checkpoints in airports, the TSA has posted or caused to be posted knowingly false signage claiming that all airline passengers are “required” to show government-issued ID credentials. Individuals incur substantial costs as a result of these false notices, particularly when individuals without ID forego valuable travel in reliance on deliberately misleading signs that ID is required.

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