October 2009 – Papers, Please!

Oct 27 2009

DHS Inspector General rips “TRIP” kangaroo courts

The DHS Office of the Inspector General (OIG) has released a redacted version of a report (OIG-09-103) that was provided to Congress in August, evaluating the TSA’s “Traveler Redress Inquiry Program” (TRIP). The TRIP name may be corny, but it’s also oddly accurate: it’s a system for inquiries, not answers, and as the OIG concludes it advertises more than it delivers and and often doesn’t result in real redress.

We commend Rep. Bennie Thompson, Chair of the House Homeland Security Committee, for requesting this report. It’s worth reading for giving one of the most detailed public descriptions to date as to the actual process by which a constellation of Federal agencies decide what entries to put on (and off) their “watch lists”, and who to allow to fly.

The OIG doesn’t consider the statutory, Constitutional, and international treaty-law right to travel, referring at one point to “the privilege of boarding an aircraft” (p. 68). But even within this perspective of travel as a privilege, not a right, the OIG concludes that the current redress and review procedure “is not fair” (p. 59):

This approach provides no guarantee that an impartial review of the redress complaint will occur. Instead, it ensures that the offices that initially acted on the TECS lookout and were the source of the redress-seeker’s travel difficulties will also be the final arbiters of whether the basis for the traveler’s secondary inspection is overridden…

DHS is required to offer aggrieved travelers a “fair” redress process. Impartial and objective review and adjudication of redress petitions is an essential part of any fair redress process. A process that relies exclusively on the review and consideration of redress claims by the office that was the source of the traveler’s grievance is not fair. CBP should modify its redress process in this area to provide for independent review.

Oct 27 2009

TSA sends our FOIA request into a black hole

We learned yesterday from the U.S Postal Service that the TSA has been assigned a new zip code, 20598 (or at least so we were told on the phone by the USPS Customer Affairs department — we have no way to verify whether it’s true, or what the “correct” zip code should be), replacing the former 22202, and has instructed the USPS that they will not accept delivery of anything addressed to zip code 22202. But the TSA still lists 22202 as the zip code for FOIA requests on their Web site, and they have yet to publish a new Federal Register notice officially designating a new FOIA request address.

Our most recent request was under FOIA. But the same address is officially designated for TSA Privacy Act requests on the TSA website and in numerous System of Records Notices (SORNs), and we assume that Privacy Act requests have the same problems.

A FOIA request we sent (by Express Mail, with a request for expedited processing) 12 days ago has gone into a black hole: It hasn’t been returned to us as the sender, but there’s no record of it being delivered. Nor is there any written record of the TSA refusing to accept it or directing the USPS not to attempt to deliver it.

We haven’t been able to find out how long this has been going on, or how many sacks (truckloads?) of mail and how many tens or hundreds of FOIA requests may have been similarly dealt with.

Oct 27 2009

Who’s watching the watchers at the DHS “Privacy” Office?

The Identity Project has joined with more than two dozen other organizations and individual experts from the Privacy Coalition in a joint letter to the House Committee on Homland Security, criticizing the DHS Privacy Office and its annual report and calling for better Congressional oversight of privacy-invasive DHS practices and the DHS Privacy Office itself.

There’s more about the letter, and the DHS response, today in the Washington Post.

We’re pleased to be part of this joint effort, and we hope Congress does more to rein in the DHS — although of course we are disappointed that DHS noncompliance with the law, the Constitution, and international treaties has made such a campaign necessary. The DHS consistently tries to exempt itself from major requirements of the Privacy Act, such as:

Obtaining personal information from the person affected, rather than from third parties.
Making personal information accessible to the person affected.
Giving people a serious opportunity to correct records about them at DHS (or collected and held by “private” entities at DHS behest and used by the DHS).
Only collecting information that is relevant to lawful purposes.
Only collecting information that is timely.
Only collecting information that is accurate.
Only collecting information about categories of individuals disclosed in formal “System of Records Notices” in the Federal Register.
Not collecting information about the First Amendment protected activities of US persons — such as who they are associating with, the books they are carrying or reading, the art or slogans or expressive insignia on their clothing or possessions, or where, why, how, and with whom they are assembling.

DHS claims for itself the ability to “exempt” itself from these statutory requirements. They do not cite any statute or court case that allows them to do so.

The DHS Privacy Office has been intimately involved in producing Federal Register filings that claim these exemptions from fundamental statutory Federal record-keeping requirements, and fail to properly disclose the extent of DHS systems of travel records. DHS travel records include information about numerous categories of people not mentioned in the SORNs, from people who pay for other people’s tickets to people whose phone numbers where entered in reservations of houseguests reconfirming flights, as well other information prohibited form collection by the Privacy Act. In this way, the Privacy Office has actively undermined the Privacy Act that they are sworn to uphold, and has been a party to criminal violations of the Privacy Act in the continued operation of these systems of records. We’ve gotten no response whatsoever to our repeated formal complaints of these crimes filed with the DHS Privacy Office.

Oct 21 2009

Why shouldn’t we have to show ID when we fly?

From time to time, people ask us, “But why don’t you want to show ID when you travel? What’s wrong with that?” There are probably as many answers to that question as there are people who resist government demands to show ID when they travel, even when it’s scary and involves some personal risk to say “No” to the TSA agents and their rent-a-cops. But for one answer among many to the question, “Why?”, we asked one of those people, Joe Williams. He responded with the following guest blog post:

Why shouldn’t we have to show ID when flying?

Because it doesn’t make us safer, it’s unconstitutional, and truly free countries don’t require it.

Long after the ID-demand policy was implemented in the summer of 1996, 9/11 proved that ID requirements don’t work. Even if you are on a no- fly list all one needs to do is: Buy a ticket in some innocent person’s name. Check in online and print that person’s boarding pass. Save that web page as a PDF and use Adobe Acrobat to change the name on the boarding pass to your own. Print it again. At the airport, use the fake boarding pass and your valid ID to get through security. At the gate use the real boarding pass to board your flight.

Being required to show ID only proves the success of al-Qaeda with fear established and freedoms violated.

Most people are not aware that freedoms in the Constitution are “inalienable & natural” meaning we were born with them. They are not government granted. Just as the U.S. Constitution represents our inalienable right to life, liberty, & freedom, so too does the TSA represent a significant threat to those God-given rights. TSA protocol is to assume all innocent people to be a threat until being cleared from a secret list. Put another way, “The innocent shall suffer the sins of the guilty.”

Previous court decisions are referenced in justifying the legalization of ID requirements which translates into; it’s OK to violate a little of the people’s freedom, just not a lot. Most people are not willing to be inconvenienced to challenge these requirements, let alone initiate a real legal battle or protest. It’s easier to show ID than to fight for one’s rights and freedom.

And when legal challenges have been made against these secret “security directives”, courts have ruled they are secret laws and barred from public scrutiny or debate. Checkpoints & ID requirements are more commonly associated with governments who suppress freedom yet we implement them in the name of safety and security. In the name of national security, government can violate peoples’ freedom. Being forced to announce one’s self is a loss of privacy and “taking away a person’s privacy renders to the government the ability to control absolutely that person.” (Ayn Rand)

“In the end, the photo ID requirement is based on the myth that we can somehow correlate identity with intent. We can’t.” (Bruce Schneier, Chief Security Technology officer of BT Global Services) Surveillance is not freedom. Having to ask for permission is not freedom. Most elected officials believe the more legislation passed exerting more government control over people, the better off society is. The Constitution was written to restrict government yet most elected officials look for ways to circumvent instead of defending the Constitution as stated in their oath of office. It is not an elected official’s job to give freedom. It’s their job to defend it.

I would rather live in a higher risk society wrapped in freedom than live as a slave in complete safety & security.

Joe Williams
concerned citizen
Atlanta, GA

“Domestic travel restrictions are the hallmark of authoritarian states, not free nations.” (Congressman Ron Paul)

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war — the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security, to institutions, which have a tendency to destroy their civil and political rights. To be more safe they, at length, become willing to run the risk of being less free. The institutions alluded to are STANDING ARMIES, and the correspondent appendages of military establishments.” (Alexander Hamilton, Federalist No. 8, November 20, 1787)

“We uphold Freedom by exercising it – not by restricting it.” (The Identity Project)

Oct 21 2009

Softball questions for TSA nominee

President Obama’s much-belated nominee to head the Transportation Security Administration, Erroll Southers — faced only softball questioning at a confirmation hearing last week before the Senate Committee on Commerce, Science, and Transportation. None of the questions we’ve raised for the nominee about TSA policies and procedures, or about the philosophical or practical attitude of the nominee toward the right to travel, were asked by any of the Senators. Nor, despite the nominee’s background of as a policeman (L.A. airport police commander and former FBI agent), was there any exploration of the role of the TSA as the Federal police agency that most often interacts directly with people who are accused of no crime — literally the front lines of Federal policing of innocent citizens.

The nomination of Mr. Southers has also been referred to the Committee on Homeland Security, which plans to hold its own confirmation hearing after it receives further background information from Mr. Southers, probably in late November.

If you want to know whether the Obama Administration and its nominee plan to set a new course for the TSA, let your Senators and the members of the Homeland Security know that you want them to ask tough questions (“Do we have a right to travel? Should the obligations of travelers at TSA checkpoints be spelled out in publicly-disclosed regulations? Should no-fly decisions be subject to judicial review? Should we have to show ID to fly? Should the government keep records of our travels?”) before they vote to approve any nominee for TSA Administrator.

Oct 01 2009

Should an invalid ticket make you a criminal?

During today’s markup by the Senate Judiciary Committee of S.1692, the “USA PATRIOT Act Sunset Extension Act of 2009” (note that there is no “USA PATRIOT Repeal Act”), Senator Jon Kyl (R-AZ) introduced a truly bizarre and obviously ill-considered amendment to criminalize “Fraud and related activity in connection with identification documents, false travel documents, authentication features, and information.”

The amendment would amend 18 U.S. 1028 to add tickets and boarding passes for airlines or any form of mass transportation, making it a Federal felony knowlingly to “prduce”, “transfer”, traffic in, possess with intent to use, etc.:

a document issued for the use of a particular, identified individual and of a type intended or commonly accepted for the purposes of passage on a commercial aircraft or mass transportation vehicle, including a ticket or boarding pass, that —

(A) was not issued by or under the authority of a commercial airline or mass transportation provider, but appears to be issued by or under the authority of a commercial airline or mass transportation provider; or

(B) was issued by or under the authority of a commercial airline or mass transportation provider, and was subsequently altered for purposes of deceit.

The ostensible intent is apparently to stop the use of Photoshopped (or “gimped”?) boarding passes, which would be a pointless exercise anyway. But as written, Kyl’s amendment would in a far wider range of activity, such as mere possession of a ticket issued by a travel agent whose appointment had been revoked by the airline. The main beneficiaries would be airlines and mass transit agencies, who would find what are currently either torts or minor state crimes by their customers converted into serious Federal felonies. A first offense of altering the expiration time on city bus transfers for a family of five people, or possession of five subway-token slugs, for example, would be punishable by up to 15 years in Federal prison.

The best-known of the print-your-own boarding pass generators was published by Christopher Soghoian, who was investigated by the FBI but charged with no crime, and who now works for the Federal Trade Commission’s Bureau of Consumer Protection in its division of privacy and identity protection. Soghoian reports from today’s markup session that presiding Judiciary Committee Chairman Leahy ruled Kyl’s amendment out of order as not germane to the USA PATRIOT Act bill under consideration, after which Kyl said he would introduce it as a separate bill.

Oct 01 2009

Do you need government ID to observe Federal government meetings?

With the public paying more attention ot Federal financial policy, more people might be interested in watching government meetings like those of the Federal Reserve Board.

But what if you don’t have government-issued identity credentials, or don’t chose to show them? Are you still entitles to observe your tax dollars at work?

We recently came across this 2002 opinion from Office of Legal Counsel of the Department of Justice, advising the the Federal Reserve Board that notwithstanding the open meeting requirements of the Government in the Sunshine Act, the Fed can prevent people from watching its meetings if they don’t give advance notice of their intent to attend, don’t have or won’t reveal their Social Security Number or various other information, or if they don’t have or won’t show a photo ID.

Footnote 4 of the 2002 opinion points out a 1977 DoJ letter that states, “[o]f course, any person may attend a meeting without indicating his identity and/or the person, if any, whom he represents and no requirement of prior notification of intent to observe a meeting may be required.” However, the OLC “disagrees with” that letter.

This took place, ,of course, at a time when the OLC was also advising Federal agencies on the legality of torture, “extraordinary rendition”, and so forth. But we can find no record of any action by the Obama Administration to rescind or update this advice.

All of which begs the Catch-22 question of what happens to people who want to enter government buildings where ID is required for entry — such as passport offices located in Federal office buildings — in order to apply for the ID credentials they don’t yet have.

Oct 01 2009

Congress, investors won’t let “Trusted Traveler” die

As a hearing yesterday before the Subcommittee on Transportation of the House Homeland Security Committee, Republicans and Democrats joined in urging a re-start of the all-but-bankrupt “Registered Traveler” or “Trusted Traveler” scheme that shut down this June. Subcommittee members even went to so far as to criticize the TSA for having planned — until members of Congress and a temporary injunction in a customer lawsuit for refunds prevailed on them to hold off — to delete the fingerprints, iris scans, and other personal data collected for use by the TSA and the Registered/Trusted Traveler vendors. If you think this data should be purged from government files sooner rather than later, let your representative know what you think.

Amazingly, there are even private equity investors who showed up at the hearing to proclaim their readiness to buy some of the assets (including the personal data bank, of course, but not the liability for refunds to no-longer-trusted travelers who now want out) of the largest of the former registered-traveler operator, “Clear” Verified Identity Pass, and to try to bring it back to life.

But the would-be investors made clear that their business model would depend on government support. The TSA has admitted that the Registered Traveler program has no security value, and stopped conducting, or charging for, background checks on applicants. That leaves the program as nothing more than a way for members to pay extra to go through a dedicated line at the TSA checkpoint, which is possible only if the TSA allows these private companies to control access to the government checkpoint people have to pass through to travel by common carrier. Sort of like a government-facilitated scheme to allow you to bribe your way to the front of the line. Except that it’s more like extortion than bribery, since the point is not to receive government services but to avoid (in part) government restrictions and costs imposed on the exercise of rights.

The government has no business collaborating with this racket, or helping private businesses shake down members of the public who can’t afford the delays imposed by TSA security theater. “Trusted Traveler” is dead, and the government should leave it in its grave.