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).

The NPRM does not mention any enforcement mechanism for the ETA requirement, or any sanctions for noncompliance. Even if the CBP were later to seek to impose any sanctions for failure to apply for, or to receive, an ETA — for example, were they to seek to make possession of an ETA a condition of admission under the VWP — they would first need to seek Congressional action to grant them statutory authority. And any such statute, as well as any regulations later promulgated to implement it, would have to be consistent with US obligations under Article 12 of the International Covenant on Civil and Political Rights (ICCPR) and any other applicable laws and treaties.

The “Supplemantary Information” accompanying the proposed regulations in the NPRM states that “DHS … recommends that VWP travelers obtain travel authorizations at the time of reservation or purchase of the ticket, or at least 72 hours before departure to the United States, in order to facilitate timely departures.” But there is no mention of this “recommendation” in the actual regulations as proposed, although it was described as a requirement and a key feature of the ESTA in previous DHS public statements about the ESTA concept. Probably the change from a requirement to a mere “recommendation” for ETA’s further in advance was a response to the outrage by both travellers (especially business travellers) and the travel industry at the crippling effect on business and travel of a prohibition on last-minute travel.

But the change in the ETA deadline from the original concept leaves the CBP hard-pressed to explain what possible benefit the ESTA could have over the existing APIS requirement for the airline, cruise line, ferry, or other carrier to obtain CBP permission (in the form of an individualized “clearance” message) before issuing anyone a boarding pass or allowing them to board an airplane or vessel bound for the U.S. The NPRM (73 FR at 32451) acknowledges the extent to which the proposed ESTA duplicates this APIS function, and that the agency is unable to specify or quantify any security benefit likely to be derived from subjecting travellers, all of whom would already be subject to the APIS “clearance” requirement, to the proposed additional ETA requirement. Those are particularly noteworthy concessions in light of the CBP’s previous reluctance to admit that the APIS rules contain a travel permission, and its failure to acknowledge or respond to the critique of that permission requirement in our comments on the APIS proposals.

Whether a person is required to obtain an ETA depends on their intention at the time of their “embarkation” (the moment they step foot through the aircraft door or off the gangway onto a vessel) on a trip to the USA.  Only those who volunteer a specific intention, as of their embarkation, (1) to enter the US and (2) to do so under the VWP, are required to obtain an ETA.

The isue is whether a person has an actual intent to enter the US under the VWP, and whether there is sufficient evidence to establish such an intent. And all that matters is the genuineness of their intentions, not whether those intentions might be unreasonable, ill-founded, mistaken, or incapable of realization (for example, if they genuinely intend to enter the US on some other nonexistent or inapplicable basis, rather than under the VWP).

Those to whom the proposed ESTA rules do not apply, because they do not have (or cannot be shown to have) such a specific intent to enter the US under the VWP, include among others:

1. Travellers who decline to volunteer, prior to embarkation to the US, any statements or other evidence of their intentions (if any) with respect to entry to the US: Neither the proposed rules nor any statute obligates travellers to declare their intentions (if any) for whether, or on what basis, they intend to seek entry to the US, until they actually arrive at a a US port of entry and present themselves for admission.
2. Travellers who do not intend to enter the US, but intend merely to transit the US en route to another country: The US no longer makes any provision for such transit without visa (TWOV) and without formal “entry” to the US. But it’s the international norm, and every country currently participating in the VWP allows transits without visa by US citizens. So a great many foreigners, quite reasonably if mistakenly, expect the US to reciprocate, and present themselves at points of embarkation for the US without intending to “enter” the US at all. Some already have onward tickets from the US to other countries before they embark to the US, but some intend to buy tickets for the onward portion of their journey while in transit through the US.
3. Travellers who intend to seek to enter the US under any program or category other than the VWP: as long as their belief is genuine, it doesn’t matter whether any such program actually exists, much less whether they would be admissible under it. Someone, for example, who knows that they are unlikely to be admitted as a refugee, but who says sincerely, “I intend to apply as a refugee, and take my chances”, is exempt from the proposed ESTA requirement, as is someone whose actual intent is to apply for a visa on arrival (regardless, as long as their intention is sincere, of the fact that the US doesn’t issue visas on arrival).
4. Travellers who lack any specific intention with respect to the particular program or category, if any, under which they will attempt, once they arrive, to be admitted to the US. US citizens can be admitted to any of countries participating in the VWP without prior arrangement and without requesting admission under any particular program. Many citizens of such countries reasonably expect reciprocal treatment when they visit the US, and embark on trips to the US without giving any particular thought to whether they will be admitted, much less under which particular provision of US law. Someone who intends to tell the immigration officer on arrival, “I’m a tourist” or “I’m here on business”, and let the officer figure out how to categorize them under US law, is exempt from the proposed ESTA rules. Even someone generally aware of the procedures for entry to the US without visa, but unaware at the time of their embarkation that they comprise something called the “Visa Waiver Program” (something most visitors learn, if at all, only from in-flight literature and videos), is probably exempt from the proposed requirements.

Would-be terrorists or any other minimally skilled and knowledgeable malefactors, of course, will either keep mum about their intentions, disclaim any particular intention, claim to intend merely to transit the US without entry, or profess some plausible intention, other than entry under the VWP, the sincerity of which would be difficult or impossible for anyone at the point of embarkation (the doorway of the aircraft or top of the gangway of the ship) to disprove. So whatever else it will do, the ESTA as proposed will have absolutely no effect on any but the most inept terrorists or criminals.

The CBP lacks any staff at most foreign ports. And even in places where they are present (for example, at “preclearance” stations in Canada for US-bound travellers) their authority is limited (both by US law and by the agreements with Canada and other countries under which the preclearance facilities operate) to questioning relevant to admissibility to the US. Since an ETA is a travel authorization, not an authorization to enter the US, as the NPRM makes explicit, questions about ETA status are irrelevant to admissibility to the US and outside the scope of authority of CBP preclearance officers. Travellers thus may lawfully decline to answer such questions from preclearance officers, without penalty.

US laws (such as the Airline Deregulation Act of 1978) and a plethora of international maritime and aviation treaties that classify airlines and and ocean transportation lines as “common carriers” require them to transport anyone paying the fare in their published tariff and complying with their genral conditions of carriage, as filed with the governments between which they operate and as applied equally to all would-be passengers Nothing in existing law or treaties, or typical current conditions of carriage, authorizes such a common carrier to compel passengers to respond to interrogatories as to what they intend to do after they arrive at their destination, or to refuse them passage if they decline to specify any particular intention. Such authority could not be granted by US statute, but would require signing and ratification of amendments to numerous treaties.

(More research is needed as to whether such a requirement could permissibly be included in the conditions of carriage of a common carrier, or whether US government enforcement of such a condition would violate the Airline Dergulation Act, the assembly clause of the First Amendment, Article 12 of the ICCPR, or other laws. Similar issues would arise if common carriers tried to enforce conditions of carriage requiring passengers to present evidence of their identity.)

So if the ESTA would be unenforceable, have no effect on terrorists or other criminals, and would largely duplicate the exisitng APIS requirement for permission to travel, why has CBP proposed it?

Possible explanations are suggested by the following passage in the NPRM:

In conjunction with CBP’s final rule “Advance Electronic Transmission of Passenger and Crew Member Manifests for Commercial Aircraft and Vessels,” [previously referred to as the “Advanced Passenger Information System” or APIS rule] which was published in the Federal Register on August 23, 2007 (and became effective on February 19, 2008), DHS has been coordinating with commercial aircraft and commercial vessel carriers on the development and implementation of messaging capabilities for passenger data transmissions that will enable DHS to provide the carriers with messages pertaining to a passenger’s boarding status. A prospective VWP traveler’s ESTA status is a component of a passenger’s boarding status that has been introduced into the plans for implementing messaging capabilities between DHS and the carriers.

The reference to “has been coordinating … on the development and implmentation” (rather than “has developed and implemented”) and “plans for implementing messaging capabilities”, as well as the future tense in “will enable”, suggests that CBP and DHS might not yet have implemented the “clearance” system their own APIS rule required to be in effect by January 2008. That would be consistent with the absence of any published reports of actions being taken against would-be travellers under the APIS “clearance” system, or of any externally obvious changes in airline procedures to accommodate the need for APIS clearance prior to issuance of boarding passes.

One possibility is that the airlines were correct when they predicted (in their formal comments on the APIS proposal) that it would be technically impossible to implement the “clearance” scheme as quickly as was to be required by the APIS rules. The CBP might think that ESTA scheme, which puts the burden on the traveller rather than the airline to obtain CBP permission to travel, will be easier or quicker to implement, or less disruptive of airline and travel industry practices.

A second possibility is that the CBP might not have chosen to put the APIS scheme into effect, or at least not to try to use it to deny boarding to otherwise qualified would-be travellers, out of concern that it would not withstand legal challenge on grounds such as those raised in our comments on the APIS proposal. The CBP might prefer to establish the precedent for a permission-based system of travel control with the ESTA scheme, which unlike the APIS rule (A) affects only non-US citizen, non-immigrant visitors, who have fewer legal rights in the US than citizens and resident immgrants, and (B) determinations under which have been exempted by statute from judicial review (although the legality of the ESTA law and implementing regulations remains subject to Federal court jurisdiction ).

Yet a third possible reason for the duplication of the APIS clearance requirement and the ESTA is that the CBP may not have wanted to call the attention of Congress to the APIS “clearance” rules, when Congress was debating the ESTA law, lest this also bring to the attention of Congress the fact that CBP had promulgated the APIS “clearance” travel permission scheme without statutory authority. This wasn’t the first time the DHS has acted first to exert controls on travel, and only looked for legal authority after the fact. But the CBP may have thought it easier to go along with the ESTA mandate than to ‘fess up to the fact that they had already exceeded their authority by doing essentially everything it required, and a great deal more, for all international travellers to, from, or via the US, under the APIS rules.

The only international precedent for the ESTA proposal in the US is an ETA scheme that has been in use since 1996 by the Australian government. As with ETA’s for Australia, ETA applications for travel to the US would be made either through a government Web site, through aninterface between the CBP and the computerized reservations system (CRS’s) used by airlines and travel agencies, or through other third-party for-profit intermediaries. No restrictions have yet been proposed for what secondary usage airlines or other third parties could make of personal information given to them for the purpose of processing ETA applications for the US, just as there currently are no restrictions on what they can do with the information clients “give” them in order to apply for ETA’s for Australia. Unless that changes, they will be free to retain, use, or sell this personal data. Technical problems — some of them inherent in the basic concept — routinely result in travellers being denied passage to Australai when they would probably have been admitted if they had they been able to reach the port of entry in Australia, while others receive ETA’s and arrive in Australia only to find out that they are inadmissable. Similar inequities, on a larger scale, are likely to occur if the ESTA propsal goes into effect in the US.

Public comments on the ESTA proposal are being accepted by the CBP through August 8, 2008.