Aug 12 2019

CBP databases for travel surveillance and profiling

An advance notice posted last week by US Customs and Border Protection (CBP) of a forthcoming request for bids by IT contractors includes one of the most detailed inventories made public to date of the databases and interfaces used by CBP and its government and commercial partners (some of which are shown in the illustration above from the notice) for tracking, profiling, and control of travelers’ and our movements.

According to the 5-year plan in the draft Request For Quotations (RFQ), CBP’s Passenger Systems Program Directorate (PSPD) already outsources some of these databases to Saleforce.com, but plans to migrate them all to commercial cloud “Software-As-A-Service” contractors in 2020. According to the draft RFQ:

CBP’s vision for primary inspection processing of the future is to transform the way travelers are processed…  The paradigm will evolve from biographic data focused to biometric data centric. CBP will identify travelers biometrically based on information already in CBP holdings as an alternative to having the traveler present their travel document. A biometric-based approach allows threats to be pushed-out further beyond our borders before travelers arrive to the U.S…. Integration of facial recognition technologies is intended throughout all passenger applications.

Throughout the draft RFQ, facial recognition is described as a substitute for document checks, rather than as an (optional) alternative. “GE [Global Entry] kiosks are expected to be replaced with a facial recognition solution to identify GE members,” for example. There’s no mention of any provision in user interfaces for opt-out from facial recognition.

Moreover, “The vision for Global Entry of the Future (GE Next Gen) is a kiosk-less solution that uses facial recognition to identify GE members…. GE-Face aligns with CBP’s Biometric Entry-Exit strategy of identifying travelers with biometrics.”

A “kiosk-less solution” suggests that travelers will be identified by cameras that surveil them as they walk through, with neither the need to “present” themselves at a kiosk nor any way to pass through the airport or checkpoint without being photographed and identified — and having one’s presence at that place and time entered into a permanent ID-based government surveillance log.

Capturing photos of all US citizens — including those who currently opt out — so that their movements can be accurately logged is an explicit goal of the planned systems:

Simplified Arrival (SA) is a new and innovative approach that incorporates advanced facial recognition technologies into the primary inspection…. The new Simplified Arrival application will eventually replace TPAC and TPAC-Face. Simplified Arrival leverages facial recognition technologies in … the processing of arriving passengers and airline crew…. Capturing facial biometrics of all passengers adds additional security, as currently there is no biometric verification of U.S. Citizens, most Canadians, citizens of a few other countries and travelers who are exempted for other reasons such as age and class of admission. Using facial matching as the primary biometric verification modality provides a previously unavailable method to verify and facilitate travel for almost everyone, not just those travelers for whom DHS has fingerprints…. The Simplified Arrival process for air travel … Replaces document scan with facial recognition.

Not all CBP databases or systems and interfaces for populating and accessing them are included in the draft RFQ. These include the “Secure Flight”pre-crime program for profiling and tracking air travelers, which is used by both CBP and the TSA but “owned” by the TSA.

Also not mentioned in the draft RFQ is CBP’s Silent Partner pre-crime program for algorithmic profiling, scoring, and targeting of travelers for more intrusive searches and surveillance, and the associated rule-sets and blacklists of targeted travelers.

Silent Partner was first mentioned publicly in DHS testimony to Congress in 2011 as “an aviation security screening program…. the details of this program are classified.” Quiet Skies, a TSA program which uses a subset of the Silent Partner database to target domestic air travelers within the US, was made public by DHS whistleblowers in 2018. More information about Silent Partner and Quiet Skies was released in Sai v. Pekoske (a pro se challenge to TSA “orders” originally filed as Sai v. Neffenger) and  Elhady v. Kable (a challenge by CAIR to DHS blacklisting originally filed as Elhady v. Piehota). Only then did the DHS publish a years-belated Privacy Impact Assessment for Silent Partner and Quiet Skies. The PIA makes clear that these are pre-crime programs based on algorithmic profiling, not on suspicion of having committed any criminal or civil violation of law. But the profiling and scoring rules remain a secret to those against whom action is taken.

Aug 08 2019

CBP lies about US citizen with ID detained at non-border checkpoint, held for 26 days

Francisco Erwin Galicia, an 18-year-old Dallas-born U.S. citizen, was detained by US Customs and Border protection officers at a checkpoint in Falfurrias, Texas, on June 27th, while on his way to a youth soccer event with a group of relatives and friends, and held until July 23rd. He was held incommunicado for the first several weeks, and was kept in  CBP custody even after he was able to contact his family and a lawyer. He was released less than 24 hours after his detention was reported by the Dallas News.

As what happened to Mr. Galicia has been more widely reported,  he’s become a poster child for everything that’s wrong with the CBP and it’s checkpoints. That’s appropriate, but it’s also worth noting that:

  1. This isn’t the worst mistreatment that’s been imposed on US citizens by CBP. Mr. Galicia was held in the US rather than being deported (because, despite threats and intimidation, he refused to consent to “voluntary” deportation), held for less than a month, and released without gross physical injuries (although presumably with psychological trauma) Other US citizens, including those cases have been tracked and documented by Prof. Jacqueline Stevens and her students at the Deportation Research Clinic at Northwestern University, whose  have been deported from the US, spend years or in some cases decades abroad before being able to return, or suffered permanent physical injuries from maltreatment, neglect, or violence in custody or in countries to which they were wrongfully deported.
  2. This isn’t about border security, immigration, or US borders. Mr. Galicia wasn’t detained at the US border, while trying to cross the border, or on the basis of any particularized suspicion that he had done so or tried to do so. He was detained at a suspicionless checkpoint operated for general law enforcement purposes (mainly to find small amounts of marijuana and sometimes other drugs) 60 miles from the border. This is about controls on internal movement within the US.
  3. This isn’t about not having, not carrying, or not showing ID. The permanent checkpoint in Falfurrias has been in continuous operation for years, and Mr. Galicia knew that — whether it was legal or not — he’d have to be interrogated by CBP officers, and quite likely have to show his papers, to get to the next town. Mr. Galica was carrying, and showed the CBP officers at the checkpoint, his birth certificate, state ID card, and Social Security card. Ironically, this is exactly the combination of documents that would be required to obtain a “REAL-ID Act compliant” ID: three separate documents providing evidence of citizenship (birth certificate showing birth in the US), state residence (Texas state ID), and Social security number.
  4. It wouldn’t matter if Mr. Galicia were a dual citizen. CBP later claimed to have been confused by other documents carried by Mr. Galicia that they though suggested he might have been a Mexican citizen. But it’s not a violation of US law or a bar to US citizenship to hold by birthright, or to acquire, citizenship of Mexico or of any other country or countries. Millions of US citizens are legal dual citizen or multiple citizens, with the largest numbers of US dual and multiple citizens holding citizenship in Mexico, Canada, Ireland, the UK, and/or Israel in addition to US citizenship. Evidence of Mexican or any other citizenship is not evidence of lack of US citizenship.
  5. CBP officials lied about what happened to try to justify their actions, with one CBP official perjuring himself before Congress in testimony whose falsehood is proven by official CBP records served on Mr. Galicia and his lawyer.  Brian S. Hastings, Chief of Law Enforcement Operations for the US Border Patrol division of CBP, told the House Judiciary Committee in response to questions at an oversight hearing on July 25th that throughout his time in custody Mr. Galicia had never told the CBP officers who arrested or detained him that he was a US citizen. (The question from Rep. Ted Lieu and Rep. Eric Swalwell and the perjured answer by Chief Hastings begin at 4:45:00 of this video of the hearing.) But the Notice to Appear served on Mr. Galicia and signed by the acting Border Patrol agent in charge, alleges on behalf of CBP that Mr. Galicia was “found” at the CBP checkpoint in Falfurrias, “more than 25 miles from the United States border with Mexico”,  on June 27th, and “At that time, you… represented yourself to be a citizen of the United States,” as in fact Mr. Galicia was and is. Rep. Lieu and several other members of Congress have asked for better answers from CBP, but that’s not enough. By now, Mr. Hastings should have been charged with perjury. So far as we can tell, he remains at large, on the job and on the payroll of CBP.
Aug 05 2019

Questions about the REAL-ID Act

Fragmentary and jumbled records related to the REAL-ID Act of 2005 released by the US Department of Homeland Security in response to one of our Freedom Of Information Act (FOIA) requests don’t reveal much about DHS policy, but do provide a glimpse of DHS practices and plans.

The DHS has been threatening to harass, interfere with, or bar access to facilities or passage through checkpoints (including, but not limited to, those at airports) to people who don’t have, don’t carry, or don’t show ID; show ID that the DHS doesn’t deem compliant with the REAL-ID Act; or show ID issued by states or territories that the DHS deems insufficiently compliant with the REAl_ID Act.

These threats to deny equal rights to residents of noncompliant states and territories have been central to the DHS campaign to extort compliance from state and territorial officials reluctant to upload their residents’ data to an outsourced, privately-held national ID database.

But what sort of enforcement problem, at what scale, is this likely to pose for the DHS and those collaborators carrying out its REAL-ID directives? How many people will be affected, at what sorts of facilities and locations, in what circumstances?  Inquiring minds want to know, including opponents of the REAL-ID Act like ourselves, but also including officials at DHS headquarters trying to devise a workable REAL-ID enforcement plan.

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Jul 25 2019

Can you “opt out” of TSA groping or virtual strip-searches?

Two recent decisions — one an administrative decision by the TSA,  and the other a judicial decision by the 11th Circuit Court of Appeals —  have dealt with, but failed to resolve, the question of whether, in the face of unpredictable demands for more intrusive searches, an airline passenger can “opt out” if they decide they would rather abandon their attempt to board a flight than submit to whatever search TSA or contractor checkpoint staff demand.

The TSA has withdrawn its proposed administrative fine against Jonathan Cobb, a passenger who, when selected for a pat-down (manual groping of his body, including his genitals, by which he had previously been traumatized), chose to abandon his attempt to fly and left the airport. That’s good, but sets no legally binding precedent.

Meanwhile, the 11th Circuit Court of Appeals has dismissed a petition filed by Jonathan Corbett seeking judicial review of the TSA’s policy of requiring selected passengers to submit to imaging of their bodies by virtual strip-search machines. That’s bad, but at least the decision was based solely on whether Mr. Corbett could expect to be selected for this sort of search, and left undecided whether these searches are Constitutional.

These decisions leave the law unclear in practice — even if the Constitution seems clear — as to whether or when an airline passenger can opt out of which sorts of searches.

How far can the TSA and its contractors legally go? How can tell if they are going too far? And when, if ever, can you “opt out” or say no to an escalated search?

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Jul 12 2019

CBP settles lawsuit challenging demand for ID from arriving domestic airline passengers

The US Customs and Border Protection (CBP) division of DHS has agreed to a settlement with passengers who were ordered to show ID documents before they were allowed to leave a Delta Air Lines plane after it arrived in New York after a flight from San Francisco.

Nine of the passengers on the February 2017 flight , represented by the ACLU and cooperating lawyers from Covington & Burling, sued the CBP and CBP and Immigration and Customs Enforcement (ICE) officials. They complained that the warrantless, suspicionless dragnet search of the ID documents of everyone on the plane violated the 4th Amendment, and that the CBP policy for such searches was invalid.

In their answer to the court complaint, the defendants admitted “that the officers did not have a search warrant or probable cause to arrest Plaintiffs, the officers did not arrest Plaintiffs, and the officers did not have reasonable suspicion to conduct a Terry stop, nor did they conduct a Terry stop of the Plaintiffs.” But they claimed that this was an isolated incident, not a matter of CBP policy or practice. The CBP port director for JFK airport, who had told reporters that ID checks on arriving passengers were “routine” and happen “every day”, changed his story in court and submitted a declaration that had never heard of another such incident.

Noting the factual issue raised by the contradictions between the statements made by the same CBP officials to the press and to the court, the court denied the defendants’ motion to dismiss the complaint, and ordered the defendants to disclose their policies for “training of …  CBP officers as regards compliance with the Fourth Amendment to the U.S. Constitution in locations within the United States other than within a Customs security area.”

As the deadline for that discovery order was expiring, the defendants agreed to a settlement. The settlement requires CBP to pay the plaintiffs’ legal fees and train all CBP officers (a) that “CBP Office of Field Operations does not have a policy or routine practice of compelling or requesting that passengers deplaning domestic flights submit to suspicionless document checks”, and (b) that “to the extent feasible”, when CBP conducts “consensual encounters” (search and interrogation) of domestic airline passengers, they should inform those passengers that cooperation is voluntary and that “passengers who decline to cooperate will not suffer any enforcement consequence as a result”.

The settlement is a (small)step in the right direction. But it leaves unresolved several of the key legal issues raised by demands by law enforcement officers for airline passengers to show evidence of identity in order to be allowed to deplane:

  1. Does CBP (or any other law enforcement agency) have the legal authority to demand that airline passengers identify themselves? The settlement says that CBP doesn’t have a  “policy or routine practice ” of doing so, but is silent on whether it claims, or has, the legal authority to do so or to adopt such a policy or practice in the future.
  2. What about ID demands of arriving passengers that aren’t carried out pursuant to a “policy” or as part of a “routine practice”?  Are they reasonable or consistent with the Fourth Amendment? The ACLU continues to argue, and we agree, that, “If officers want to check [domestic] passengers’ identification documents, they can only do so with the passengers’ consent. And if a passenger does not consent, the officers cannot detain that person, even for a brief period, without reasonable suspicion of a violation of the law.” But the settlement is silent on the Constitutionality of such seizures or demands for ID, even if they affect every passenger on a particular flight.

Despite this settlement, it remains for a future case for the courts to squarely address and rule on the Constitutionality of demands for airline passengers to show ID.

 

Jul 10 2019

Automated DHS searches of state drivers’ license photos

State agencies that issue drivers’ licenses are conducting warrantless searches of their databases of license photos, using automated face recognition software, at the request of  law enforcement agencies including the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security.

The use of automated facial recognition to search databases of drivers’ license mug shots was revealed in responses to requests made under the Freedom Of Information Act and  state public records laws by the Georgetown University Center on Privacy & Technology.  It was reported in recent days in the Washington Post, New York Times, and in two stories on NPR, and was discussed in a Congressional hearing today on the use of automated facial recognition by Federal agencies. (Earlier Congressional hearings on automated facial recognition were held on May 22nd and June 4th.)

Questions are being asked by members of Congress, state officials, and civil libertarians: What is the legal basis, if any, for these dragnet searches of drivers’ license photo databases? How have they have evaded judicial oversight?  Warrants or court orders were neither requested by DHS or other law enforcement agencies, nor demanded by the state agencies that carried out the searches in response to extrajudicial administrative requests.

A letter sent this week by a coalition of civil liberties organizations calls on Congress to suspend the use of facial recognition technology by the DHS. While that is appropriate, it doesn’t address how, from what sources, or on what legal basis databases of ID-linked mug shots of innocent individuals are being created and obtained by the DHS.

Additional questions ought to be asked about the implications of the latest revelations for the REAL-ID Act and the use of facial recognition by airlines, airport operators, and DHS officers and agents at airports and borders:

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Jul 01 2019

PCLOB to review use of PNR (airline reservation) data

Following its most recent meeting on May 31, 2019, the Privacy and Civil Liberties Oversight Board (PCLOB) announced last week that “The Board has voted to conduct an oversight project related to the use of airline Passenger Name Records.”

We welcome this announcement by the PCLOB, and look forward to whatever opportunities may be presented to assist the PCLOB and its staff in this project.

Mass surveillance and permission-based predictive control of movement and travel, which in practice has relied on compelled identification of travelers and government access to PNR data (commercial airline reservations), was one of three issues we recommended as priorities for investigation by the PCLOB once enough members were appointed and confirmed for the Board to again have a quorum able to make decisions after a hiatus of several years.

PNR data is used to target searches and seizures and to make predictive decisions about who is, and who is not, “allowed” to exercise their right to travel by common carrier.

Government access to and use of PNR data needs to be recognized, and denounced, both as suspicionless, warrantless, and unconstitutional mass surveillance (through dragnet collection of personally identified travel metadata about the exercise of rights of freedom of movement and travel by common carrier) and as the most pervasive current program of unconstitutional predictive “pre-crime” control of the exercise of rights protected by the First Amendment (“the right of the people… peaceably to assemble”) and international human rights treaties.

The PCLOB is one of the most important advisory bodies within the Federal government. Although it lacks any enforcement power, the PCLOB has more autonomy and more ability to investigate and publicly criticize the practices of Federal agencies than agency “Privacy Officers” who serve at the pleasure of, take orders from, and whose public statements are subject to control by the heads of Federal agencies and by the President.

Members of the PCLOB are appointed by the President and confirmed by the Senate. Unlike most Federal advisory bodies, the PCLOB can set its own agenda and choose which issues to investigate. The PCLOB is considered an independent Federal agency. The PCLOB has the authority to review records of all Federal agencies, and to request that the Attorney General subpoena records held by third parties. But despite its name, the PCLOB has no “oversight” authority  other than the authority to issue reports that the President, Congress, Federal prosecutors, and Federal agencies are free to ignore.

Jun 25 2019

DHS continues to target traveling journalists for illegal searches

A new report by Seth Harp in The Intercept confirms that, despite by ongoing litigation challenging warrantless, suspicionless searches of travelers’ electronic devices, the US Customs and Border Protection (CBP) division of the DHS is continuing to target journalists for these illegal searches and for interrogation about their journalistic travel and other activities.

Mr. Harp’s experience shows yet again why the lawsuit brought in Federal District Court in Boston by the ACLU, ACLU of Massachusetts, and EFF is so important. CBP officials have admitted in deposition testimony and documents produced in response to the lawsuit that they use — and claim the authority to use — warrantless searches at borders and international airports to search travelers’ electronic devices (smartphone, laptops, memory sticks, etc.) for  “general law enforcement purposes” unrelated to customs or immigration laws, for pre-crime predictions (“risk assessments”), and on behalf of other government agencies including state and local police, the IRS, etc.

Several of the plaintiffs in the lawsuit are journalists who have been subjected to warrantless searches of their electronic devices when they traveled internationally.

As of now, the court is considering the plaintiffs’ motion for a finding that searches of electronic devices at  international borders or airports require a warrant approved by a judge and based on probable cause for suspicion of a crime. But CBP has made clear that will continue its suspicionless searches unless and until it is ordered to stop.

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May 14 2019

Government access to airline PNR data challenged in German courts

Complaints filed today in German courts and administrative complaints to data protection authorities in Austria challenge government access to and use and retention of Passenger Name Record data (commercial airline reservation records) as a violation of fundamental rights guaranteed  by European Union, German, and Austrian law:

We’ve made (unsuccessful) administrative complaints regarding PNR data to data protection authorities in EU member states incluidng the Netherlands, France, and Germany, and challenged  some aspects of the US governmet’s PNR-based travel surveillaace system in US court under the Privacy Act. But so far as we know, the lawsuits filed today se are the first court cases outside the US to challenge the legality of government demands for access to PNR data or other travel records.

The European legal campaign against PNR-based mass surveillance of travelers is a project of the Gesellschaft für Freiheitsrechte (GFF) in Germany and epicenter.works – Plattform Grundrechtspolitik in Austria, funded in part by one of the first grants from Digital Freedom Fund (DFF) for impact litigation.

The lead plaintiff in the case filed in German administrative court in Wiesbaden, Emilio De Capitani, is a retired former director of the staff of the LIBE (civil liberties) committee of the European Parliament. Mr. De Capitani and the plaintiffs in additional cases filed in other German local courts are represented by Prof. Dr. Remo Klinger and his colleagues at the law firm of Geulen and Klinger in Berlin. The plaintiffs in the Austrian cases are represented by attorney Ronald Frühwirth in Graz.

Mr. De Capitani plans to fly from  Brussels to Berlin for a meeting of GFF in November 2019. He has purchased tickets and informed the airline that he does not want PNR data pertaining to his travel to be made available to government agencies

In response, the airline has told Mr. De Capitani that regardless of his preferences, the airline will provide government agencies in Germany (and possibly also Belgium, although it is not clear if Belgium already has or will have established a “Passenger Information Unit” to receive and process PNR data) with complete copies of the PNRs pertaining to his travel.

This action by the airline is required by German law. Germany and each other member state of the European Union is required to establish a Passenger Information [surveillance] Unit within the government and to have such a law mandating airlines to provide PNR data to the government to comply with the EU PNR Directive adopted in 2016.

The legal analysis in the complaint is conducted primarily under the legal standard of “proportionality” of intrusions on rights to legitimate government purposes. It focuses on the suspicionless, dragnet character of the  surveillance and retention of data concerning  travelers carried out through government access to PNR data, and the use of PNR data not merely for carrying out judicial orders against identified individuals, but also for pre-crime predictive profiling of innocent individuals based on algorithms and “patterns”.

Mr. De Capitani has asked the German court to find that the German PNR law violates fundamental rights recognized by German law, a decision that would ultimately be made by the German Constitutional Court. Because national courts of EU member states do not have jurisdiction to invalidate EU legislation, Mr. De Capitani has asked the German court to refer the question of whether the EU PNR Directive violates fundamental rights recognized by EU law to the European Court of Justice for a binding determination. And Mr. De Capitani has asked for a temporary preventive injunction prohibiting the government from accessing or requiring the airline to give the government access to PNR data pertaining to him and his travel to government agencies while the case is pending.

Mr. De Capitani’s legal complaint is directed against the German government. Others of the lawsuits filed today name airlines including Lufthansa as defendants.

[This article has been updated with additional information and links.]

May 07 2019

Air travelers question use of facial recognition

A Tweet that went viral from an airline passenger questioning JetBlue Airlines about its use of automated facial recognition at departure gates has called new attention to the growing use of automated facial recognition to identify and track travelers.

Our friends at the Electronic Frontier Foundation have an excellent analysis in their Deeplinks blog of some of the unanswered questions raised by this practice. We’ve talked about these before, in our blog and in meetings with DHS officials:

  • What is the relationship between the government and its airline and airport “partners” for the use mug shots of travelers and related identifying information?
  • Can travelers really opt out of airport mug shots, and if so how, especially if — as with ceiling-mounted cameras or other new airport designs for “touchless” passenger processing — facial images are automatically captured before travelers reach the point where they could ask to opt out
  • What, if any, restrictions apply to use or “sharing” of the images and tracking data by airlines, airport operators (which are often local government agencies or other parastatal entities), or DHS components or other government agencies?

We agree completely with EFF that travelers should “Skip the surveillance by opting out of face recognition at airports” and that both members of the public and members of Congress should question what is happening , why, and whether it is legally justified.

But we also want to call attention to two additional aspects of this problem that have been overlooked or misinterpreted in much of the recent discussion: retention of facial images and accuracy of automated facial recognition.

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