Dec 05 2019

DHS postpones plan for mug shots of innocent US citizen travelers

Press releases issued today by US Customs and Border Protection (CBP) and Sen. Edward Markey suggest that CBP and its parent agency, the Department of Homeland Security (DHS), have cancelled or postponed, at least for now, their plans to require mug shots of all US citizens leaving, or returning to, the US.

But rather than admit that it has partially backed down or postponed some of its most offensive and intrusive plans in the face of public and Congressional outrage, CBP has sent reporters a statement alleging that our report breaking the story and others that followed contained “incorrect claims” about CBP plans:

We stand by our story.

Until this Monday, when we called attention to the official DHS/CBP notice, the officially-approved and officially-stated intent of the DHS and CBP was to propose rules requiring U.S. citizens on international flights to be photographed.

If “there are no current plans” for mandating mug shots of US citizens, that’s becuuse DHS and CBP plans changed this week in response to public and Congressional outrage and the likelihood that pursuing these plans now would derail DHS and CBP hopes for approval of its current facial recognition programs by airport authorities such as the Seattle Port Commission, which will consider the issue next Tuesday (and which had been misleadingly told by the CBP official responsible for the planned rulemaking that facial recognition would not be mandatory for US citizens).

The official DHS/CBP notice of planned rulemaking meant what it said. It was issued through a formal process of agency review. It wasn’t  a typo, a mistake, or issued by a “rogue” employee.

We vigorously contest the CBP assertion that our story contained any “incorrect claim”.

Such DHS and CBP allegations, in response to truthful reporting, only further discredit the DHS and CBP, and lower whatever little credibility they may have had.

Was this a trial balloon to find out whether the DHS had finally reached the limits of our willingness to be treated like criminals whenever we fly? And if so, has the DHS partially backed off, at least for now? Maybe.

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Dec 03 2019

Seattle Port Commission to consider rules for airport facial recognition

We’ll be in Seattle on December 10, 2019, to give public comments (see our detailed written testimony submitted in advance) at a meeting of the Port of Seattle Commission concerning a proposed resolution on use of facial recognition by airlines at the Seattle-Tacoma International Airport (SEA).

This will be the first time that any operator of a US airport has publicly considered any policies to govern use of facial recognition by airlines or on airport property.

The public authorities that operate almost all major US airports have a key role to play in oversight of traveler surveillance systems deployed on their premises by their tenants.

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Dec 02 2019

DHS plans to require mug shots of U.S. citizen travelers

Buried in the latest Fall 2019 edition of an obscure Federal bureaucratic planning database called the Unified Agenda of Regulatory and Deregulatory Actions is an official notice from the U.S. Department of Homeland Security (DHS) that:

To facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition … DHS is proposing to amend the regulations to provide that all travelers, including U.S. citizens, may be required to be photographed upon entry and/or departure [to or from the U.S.].

According to the “Unified Agenda”, the DHS plans to publish a “Notice of Proposed Rulemaking” (NPRM) in approximately July 2020 to make mug shots mandatory for U.S. citizens leaving  or returning to the U.S.

The laws cited in the “Unified Agenda” as providing the statutory basis for the proposed rule pertain to searches of aliens (non-U.S. citizens) and the obligation for U.S. citizens entering or leaving the U.S. to have U.S. passports (a requirement of questionable and largely untested Constitutionality). It’s not obvious how the DHS will twist this into purported authority to require mug shots of all U.S. citizens who travel internationally.

The DHS has already given notice of its intention to solicit bids for systems to capture photos of all air travelers, including U.S. citizens, and is working with airlines and airports on schemes to share the photos, so that airlines and airports will be able to use data collected under government coercion for their own commercial business-process-automation and price-personalization purposes.

In November 2019, the U.S. Customs and Border Protection (CBP) component of DHS declared that its “test” of facial recognition on travelers crossing the US-Mexico border on foot had become a “permanent fixture” at certain pedestrian border crossings.

Meanwhile, the DHS continues to try to reassure travelers by claiming that U.S. citizens can and will be able to opt out of being photographed at airports or land border crossings — even though we continue to get reports, as we have told DHS officials directly, from travelers who were told by U.S. Customs and Border Protection officers and/or by line-minders at airports and borders that photography is mandatory .

Can you opt out? All current statutory and regulatory provisions for biometric entry and/or exit are explicitly applicable only to non-U.S. citizens. They provide no legal basis for photography of U.S. citizens leaving or returning to the U.S. But current law also provides no guarantee of a right for U.S. citizens to opt out, and no specification of procedures for opting out or for redress for U.S. citizens who aren’t allowed to opt out. That will all become moot if the DHS succeeds in promulgating regulations requiring all travelers to submit to mug shots, the courts uphold them, and travelers acquiesce.

Just say no.

Nov 21 2019

What will the REAL-ID Act mean for Californians?

Steve Gordon, Director of the California Department of Motor Vehicles

The director of a $9 million state publicity campaign to persuade Californians that they will be “turned away at the TSA checkpoint” if they try to fly without ID and that “you will need to show federally-compliant identification in order to board a domestic flight within the U.S.” admits that he knows you can fly without any ID, and he’s flown without ID himself.

That admission by Steve Gordon, Director of the California Department of Motor Vehicles (DMV), came following a hearing in Los Angeles yesterday at which we also testified (written testimony, video starting at 1:10:23) before the California Assembly Budget Subcommittee responsible for oversight of the DMV.

California DMV Director Gordon said the DMV has an “overall budget north of $9 million” for an “awareness and motivational campaign” in all media — billboards, online keyword advertising buys , etc. — to “drive people to action” to apply for REAL-ID cards.

Gordon said that the DMV had changed its message from “You can apply for either a REAL-ID ‘compliant’ or ‘noncompliant’ drivers license or ID card” to, “You should get a REAL-ID card,” because it was “too confusing” to tell people they have a choice.

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Oct 22 2019

9th Circuit upholds “no-fly” procedures & criteria

A 3-judge panel of the 9th Circuit Court of Appeals has upheld the government’s procedures and criteria for issuing “no-fly” orders against a complaint that the criteria (which are essentially “pre-crime” criteria based on predictions of future bad actions) are too vague to provide fair notice of what actions might lead to a “no-fly” order, and that the procedures do not provide the degree of procedural due process (notice of the accusations, an opportunity to see the evidence and cross-examine witnesses, etc.) required by the Constitution.

While the 9th Circuit panel left open the possibility of a challenge to the substantive grounds for a specific no-fly order, it upheld the government’s effort, in mid-litigation, to change the procedures for no-fly orders to keep challenges to no-fly orders out of U.S. District Courts and preclude any trial or adversarial or judicial fact-finding in such cases.

The 9th Circuit panel found that no-fly orders issued by the TSA under the current revised procedures are excluded from the jurisdiction of U.S. District Courts. TSA no-fly orders can be “reviewed” by a Circuit Court of Appeals only on the basis of a self-serving “administrative record” created by the TSA, and on the basis of a deferential standard that presumes the validity of the TSA’s fact-finding. The 9th Circuit panel did not address the Constitutionality of the applicable jurisdiction-stripping law, 49 U.S.C. § 46110, which is currently being challenged in the 1st Circuit in Sai v. Pekoske (originally Sai v. Neffenger).

The decision announced yesterday in Kashem v. Barr may be the worst appellate court decision against freedom of travel since the 2006 decision by the 9th Circuit Court in Gilmore v. Gonzales.

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Oct 02 2019

Do I need ID to ride a train?

We’ve been trying for years to find out what the real story is with respect to ID requirements for travel by train, especially on Amtrak.

Amtrak and Greyhound ID policies and practices are of paramount importance to the mobility of undocumented people and people who, whether or not they are eligible for or have chosen to obtain government-issued ID credentials, don’t want to show their papers to government agents as a condition of exercising their right to freedom of movement.

Amtrak and Greyhound policies and practices will become even more important if the government and/or airlines further restrict air travel by people who don’t have, or don’t show, ID credentials that comply with the REAL-ID Act.

The latest responses to our requests for Federal and state public records reveal more about passenger railroad policies and practices, but still don’t give a clear answer.

What we can say at this point, based on the records disclosed to us to date, is that:

  1. There are substantial discrepancies and contradictions between what the TSA has told Amtrak to do, what Amtrak tells its own staff about what is required, what Amtrak tells travelers about what is required and the basis for those requirements, and what Amtrak staff actually do. Those variations make it impossible to determine unambiguously what “the rules” are for Amtrak travel, or what is “required”.
  2. Some of Amtrak’s claims, including its claim that passengers are required by the TSA to have and to show ID to travel by Amtrak, are blatant lies.
  3. TSA Security Directive RAILPAX-04-02, cited by Amtrak in its employee manual as the basis for demanding that passengers show ID, requires Amtrak to “request” (not demand) that passengers show ID, but does not purport to require passengers to respond to such requests and does not prescribe any sanctions on passengers for failure, refusal, or inabiity to show ID.
  4. Amtrak has instructed its staff that “If the customer responds they are 18 or older and do not have valid identification, … the Amtrak police must be notified by the quickest available means away from the customer,” but also that, “Failure to possess the proper photo identification is not, by itself, sufficient reason to have the customer removed from the train.” Amtrak has not yet responded to our FOIA request for Amtrak Police policies and staff directives for what to do in such cases.
  5. Although Amtrak is unquestionably an instrumentality of the Federal government, and transportation by Amtrak is unquestionably a Federal government activity, the list of ID credentials deemed acceptable by Amtrak does not correspond to the list of forms of ID deemed by the DHS to be acceptable for “Federal purposes” pursuant to the REAL-ID Act of 2005.  Amtrak says it accepts several forms of ID that do not comply with the REAL-ID Act. None of Amtrak’s ID policies, procedures, or staff directives disclosed to date mention the REAL-ID Act or when or how it might be implemented by Amtrak, although records of such policies or of discussions related to them would be responsive to soem of our pending FOIA requests.

Where does this leave undocumented long-distance travelers, including those who turn to Amtrak as a government-operated common carrier of last resort?

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Sep 04 2019

US government blacklisting system is unconstitutional

In an opinion issued late today in Alexandria, VA, US District Court Judge Anthony Trenga has upheld the complaint by 23 victims of US government blacklisting that the system pursuant to which the government has designated them as “suspected terrorists” on the basis of secret algorithms applied to secret datasets, without notice or an opportunity to contest any allegedly “derogatory”  information, does not provide those who are stigmatized, and whose stigmatized status is broadcast to tens of thousands of law enforcement and other government agencies and private entities around the world, with the procedural due process required by the US Constitution.

This decision is one of the most fundamental victories for the rule of law since 9/11.

According to today’s opinion, it is undisputed that the DHS and FBI define anyone who has been arrested or charged with an offense related to terrorism as a “known” terrorist, even if they have been acquitted of that charge.  In other words, the DHS and FBI think that what is “known” is what they believe, not what judges or juries have found the facts to be. That presumption that by definition their secret judgements are more reliable than judicial fact-finding pretty much sums up why this decision is correct, why it is so important, and why it should be upheld if, as seems a near certainty, the government appeals.

None of the plaintiffs have even been arrested, much less convicted, for any criminal offense, terrorist or otherwise. The plaintiffs include, among others, several infants whom the government has apparently blacklisted as “suspected terrorists”. But even though the government will neither confirm nor deny that anyone is or is not, or has or has not been, included in the “Terrorist Screening Database” (TSDB), the court found that the plaintiffs have demonstrated sufficient basis for their belief that they have been blacklisted.

The government calls this database and decsion-making system a “watchlist”, but it is really a blacklist intended and used to determine adverse consequences for individuals.

The “No-Fly List” is only a subset of the TSDB, and not being allowed to fly is only a subset of the consequences of blacklisting detailed in the plaintiffs’ submissions to the court and the government’s admissions during discovery and depositions. The TSDB is used as the basis for a plethora of decisions, as the plaintiffs have experienced, from whether to have them arrested at gunpoint when they try to cross land borders  to whether to interrogate them for hours about their religious beliefs, seize their electronic devices for copying and forensic analysis of the data stored on them, deny them public or private-sector jobs, or close their bank accounts and deny them other fincial services.

The government’s use of secret criteria, secret datasets, and guilt by association as the basis for secret decisions — communicated to tens of thousands of other decision-makers, but not to those who have been blacklisted —  resembles the worst of McCarthyism, just with “terrorist sympathizer” or (literal) “fellow traveler” substituted for “Communist  sympathizer” or (ideological) “fellow traveler”.

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Aug 30 2019

3rd Circuit finds TSA checkpoint staff conduct “searches” and can be sued for misconduct

By a vote of 9 to 4, the 3rd Circuit Court of Appeals has found that TSA checkpoint staff are “officers or employees” of the Federal government who “execute searches… for violations of Federal law”, and therefore that the US government is subject to private lawsuits for damages for  certain intentional torts by TSA “screeners” including “assault, battery, false imprisonment, false arrest, [and] malicious prosecution.”

The decision by the judges of the 3rd Circuit following rehearing en banc in the case of Pellegrino v. TSA reverses an earlier decision by a three-judge panel that would have given impunity to checkpoint staff for even the most egregious violations of travelers rights.

The language of the Federal Tort Claims Act and its applicability to TSA checkpoint staff are clear. The TSA’s strained attempt to exempt checkpoint staff from FTCA lawsuits should never have gotten this far.

But the TSA’s highest priority, ahead of protection of transportation safety or security, has always been the protection of itself and its  activities against judicial review.

Any lawsuit against the TSA or anyone associated with it is regarded by the agency as an existential threat to its assertion of unlimited discretion to define, by its own secret internal procedures, which people, possessions, and activities are and aren’t allowed at TSA checkpoints — as if the conduct to date of the TSA and its minions had earned the  agency the entitlement to expect and demand that travelers defer to its good judgement and self-restraint. The TSA doesn’t want to have to respond to allegations of misconduct by its employees, contractors, or law enforcement or industry “partners”. Nor does it want to have to explain or defend its actions in court. It wants all such cases dismissed out of hand.

In order to intimidate travelers into submission to its unlawful orders with a show of purported authority, while keeping itself above the law, the TSA’s takes a two-faced position that was its comeuppance in the en banc decision in Pellegrino v. TSA.

TSA checkpoint employees wear blue police-type uniforms and badges that identify them as Transportation Security “Officers”, while even the rent-a-cop contractors who staff TSA checkpoints at SFO and some other airports wear similar uniforms and badges prominently emblazoned with “TSA” insignia. They present themselves to travelers as though they were police, and they claim police-type (or even greater) powers to demand obedience to their orders and to search travelers and their personal property.

But the TSA always refers to these searches by the euphemism of “screening”, to avoid the obvious implication that as “searches” they are subject to the 4th Amendment to the US Constitution. In court, the TSA claims that these aren’t the “searches” meant by the provision of the FCTA which refers to officers or employees who “execute searches”.

In some cases, the TSA claims the right to search documents, papers, currency, and electronic data, which can’t possibly pose a direct threat to aviation safety or security, notwithstanding special statutory protection for many such items, “if criminal activity  is suspected” and even if the suspected crimes are unrelated to aviation safety or security.

But when its actions are challenged, the TSA claims that its searches are not conducted for general law enforcement purposes and thus are exempt from the FCTA provisions intended to hold those who conduct such searches legally accountable for torts (violations of civil rights) against individuals.

The 3rd Circuit judges took due note of these self-contradictory TSA claims, and of the consequences that would follow from accepting them as a basis for TSA impunity:

Consequences of Our Ruling

Before concluding, we note the implications of the choice before us. If TSOs [Transportation Security Officers] are not “investigative or law enforcement officers” under the proviso, then plaintiffs like Pellegrino are left with no avenue for redress. We have
already held (and correctly so) that TSOs are not susceptible to an implied right of action under Bivens for alleged constitutional violations, see Vanderklok, 868 F.3d at 209, so a Tort Claims Act action is the only remaining route to recovery. Without recourse under that Act, plaintiffs like Pellegrino will have no remedy when TSOs assault them, wrongfully detain them, or even fabricate criminal charges against them.

We look forward to seeing at least some TSA checkpoint staff found liable for damages for these sorts of actions in the wake of the 3rd Circuit’s en banc decision in Pellegrino v. TSA.

Aug 28 2019

Public/private partnerships for travel surveillance

In preparation for the annual Future Travel Experience – Global conference next month in Las Vegas, which will include tours of the TSA’s prototype biometric checkpoint and a “Biometrics Summit” featuring joint presentations by the TSA, CBP, and their partners, both the DHS and its airline, airport, and industry partners (Part 1, Part 2) have released new previews of their plans for collaboration in surveillance and control of air travel through automated facial recognition.

As we’ve noted before, one of the more significant lies being told by the US Department of Homeland Security about its plans for increased surveillance and tracking of travelers is  that airlines and airport operators have no commercial interest in retaining or using facial images and other biometric data collected on behalf of DHS components including the TSA and CBP.

In reality, airlines and airport operators are eager to share facial recognition insfrastructure (cameras, kiosks, etc.) and data with the DHS. Airlines, airports, and the DHS all see this collaboration as fundamental to their plans to transform the airline and airport passenger “processing” experience through a panopticon of shared-use biometric ID systems.

According to a  two-part post in the Future Travel Experience conference blog (Part 1, Part 2), “Biometric technology is expected to play a key role in shaping the seamless passenger experience of the future.”

One of the briefings at the FTE Global 2019 Biometric Summit will be given by CBP’s “Director of Entry/Exit Transformation”, who described his mission as “developing U.S. biometric entry/exit system through private sector partnerships”.

Some of the airline and airport executives quoted in the FTE blog post have begun to argue that airline passengers should be allowed to opt out of biometric identification. But there’s no mention of how that would work or how long those who opt out would be delayed.

The FTE blog post also notes that:

[A]s the use of biometrics is becoming more widespread and the technology is advancing quickly, there have been rising concerns around privacy and data security from a civil rights point of view. For instance, San Francisco became the first US city to ban facial recognition technology as part of an anti-surveillance ordinance, though the ban doesn’t affect federal agencies, such as San Francisco International Airport.

This claim that SFO is a Federal agency exempt from San Francisco legislation is wishful thinking on the part of proponents of biometric surveillance and control of air travelers. While SFO is located in unincorporated San Mateo County, the land and buildings are owned by the City and County of San Francisco and operated by an instrumentality of the City and County of SF. The San Francisco ordinance applies to all City and County departments, including SFO.

Most other major airports are, like SFO, operated by state, county, or municipal governments and/or by other public or publicly-chartered entities subject to state and local public records laws and accountable, at least in theory, to state and local elected officials. These entities could, and should, prohibit any use of automated facial recognition on their property or by their lessees or contractors. Only Federal agencies themselves could escape the jurisdiction of such conditions on use of airport property.

Contradicting the public claim that airlines and airports have no interest in using biometric data shared with CBP, the FTE blog says that, “CBP’s view is that we will see further expansion into other aspects of the travel continuum, such as bag drop, international boarding and improved arrival process.” And of course a CBP spokesperson also tells the FTE blog that, “This is not a surveillance programme .”

Meanwhile, the DHS has released a Privacy Impact Assessment for the Travel Document Checker Automation Using Facial Recognition to be tested and first deployed at LAS airport, with its unveiling to attendees of the FTE Global 2019 conference.

The PIA acknowledges, in a footnote, that, “For passengers who are unable to present verifying identity documentation, TSA offers an alternative identity verification process in which passengers answer knowledge-based questions.” But the PIA ignores the fact that this questioning is being conducted illegally, without the required OMB approval, in violation of the Paperwork Reduction Act and other statutes.

In late 2016, the TSA gave notice that it planned to request OMB approval for the form that air travelers without ID or with ID deemed unacceptable are asked to complete. But the TSA received numerous objections, including ours, in response to this notice, and has not yet submitted a request to OMB for approval of the form or the “knowledge-based” questioning of travelers (which is based on commercial data aggregated by the Accurint division of Lexis-Nexis).

The last time we tried to attend a government-industry lovefest like FTE Global, we were ordered to leave and our registration fee and, eventually, our travel expenses were refunded. We’d welcome reports from our readers, workers at the conference venue, or other whistleblowers or leakers as to what gets said at FTE Global 2019.

Aug 27 2019

Guilt by social media and cellphone association

Ismail B. Ajjawi, a Palestinian freshman admitted to Harvard College, arrived at Logan Airport in Boston last Friday, Lebanese passport and US student visa in hand.

But after Mr. Ajjawai complied with demands by US customs and immigration officers at the airport to unlock his cellphone and laptop, the officers read what his “friends” had posted on social media. Five hours later, after questioning Mr. Ajjawai about his religious beliefs and his friends’ political statements, the officers revoked Mr. Ajjawi’s visa on the spot, denied him entry to the US, and deported him back to Lebanon — at his own expense, of course, using the return ticket he was required to have before being allowed to board a flight to the US.

According to a report in the Harvard Crimson, which broke the story today:

“After the 5 hours ended, she called me into a room , and she started screaming at me. She said that she found people posting political points of view that oppose the US on my friend[s] list.” Ajjawi wrote that he told the officer he had not made any political posts and that he should not be held responsible for others’ posts. “I responded that I have no business with such posts and that I didn’t like, [s]hare or comment on them and told her that I shouldn’t be held responsible for what others post,” he wrote. “I have no single post on my timeline discussing politics.”

Harvard’s lawyers are working to get Mr. Ajjawi’s visa reinstated and get him admitted to the US. Most people turned away at US borders don’t have Harvard at their back, and are unlikely ever to be admitted to the US once they are branded as undesirable.

In a 2017 notice of intent to expand DHS surveillance of immigrants’ and visitors’ expressive activities on social media, the DHS claimed that “consular officers are directed not to request user passwords [and] not to violate or attempt to violate individual privacy settings or controls.” But that’s belied by what Mr. Ajjawi says happened to him at Logan Airport, according to the Crimson: “The … officer then asked him to unlock his phone and laptop, and left to search them for roughly five hours, Ajjawi alleges.”

It’s hard to imagine anyone from a place as politicized as Palestine (or Kashmir, or many other places) who doesn’t have any social-media “friends” who mention political opinions. The answer to social-media surveillance shouldn’t be that immigrants or visitors have to  try to isolate themselves from politics or ostracize their political associates.

Rather, the lessons reinforced by this incident are that:

  1. Nothing good can come of consenting to any search by law enforcement officers, including searches of your digital devices. Border guards and customs and immigration officers are police, not your friends. Their job is to find reasons to suspect you or bar your entry. No matter how “innocent” you think you are, anything you or your “friends” say, or have ever said, can and will be used against you.
  2. If government officials have access to social-media networks of “friends”, associations, and messages, they will use this information invidiously. The way to prevent misuse of information about how travelers exercise their First Amendment rights of expression and association is not to allow police access to this information in the first place. Just say no to requests for your passwords or data.