Jul 08 2008

TSA “identity verification” procedures

In a series of posts in their blog, the TSA has expanded on its claimed authority for the changes to “ID verification procedures” announced in a press release last month.

Lawmaking by press release exemplifies the evils of “secret law” which the Supreme Court declined to consider in Gilmore v. Gonzalez. The TSA now says that, “Our position is that Gilmore v. Gonzalez affirmed our ability to require ID for transportation via air and the law that formed TSA, the Aviation and Transportation Security Act (ATSA) empowers the TSA to make these decisions.”

In fact:

  1. The 9th Circuit Court of Appeals in Gilmore v. Gonzalez reached its decision without addressing whether it would have been permissible for the airline or the TSA (or anyone else) to require Mr. Gilmore to show evidence of his identity, or to prevent him from travelling if he failed to do so. The court found that, as of that time and in that particular case, Mr. Gilmore could have flown without showing ID. Read More
Jul 08 2008

Electronic System for Travel Authorization (ESTA)

In a Notice of Proposed Rulemaking (NPRM) in the Federal Register on June 9, 2008 (73 Federal Register 32440-32453), the Department of Homeland Security has proposed a new system for foreign citizens intending to visit the U.S without visas, and to enter the U.S. by air or sea, to apply for and receive an additional form of advance permission to travel to the U.S.

Effective August 8, 2008, a person “intending to travel to the United States by air or sea under the VWP [Visa Waiver Program]” will be permitted to apply in advance for an electronic “travel authorization”(ETA) from the DHS Bureau of Customs and Border Protection (CBP). The ETA application will contain “such information as the Secretary [of Homeland Security] deems necessary to issue a travel authorization, as reflected by the I–94W Nonimmigrant Alien Arrival/Departure Form (I–94W).”

Effective as of a date the CBP intends to specify in another Federal Register notice in early November 2008, at least 60 days after the publication of that follow-up notice but no later than January 12, 2009, each person with such intent will be required to (1) provide certain specified personal information, in specified form, to the CBP in an ETA application and (2) “receive a travel authorization [from the CBP] prior to embarking on a carrier for travel to the United States.”

While the proposed regulations would require travellers to apply for and obtain ETA’s, nothing in the NPRM would require the CBP to respond to or act on such applications at all, much less to do so with any specified timeliness. No standards or criteria for approval, denial, or inaction on an ETA application are specified; no particular decision-making entity within CBP is specified; no administrative appeal is provided for; and no court would have jurisdiction to review an ETA decision (although courts could, of course, review the legality of the program as a whole). Read More