Apr 30 2010

Arizona radio call-in discussion on S.B. 1070

We’ll be on the Jay Lawrence Show on KTAR (92.3 FM) in Phoenix this Sunday, May 2nd, from 7-8 p.m. Arizona time (7-8 p.m. PDT, 10-11 p.m. EDT) to discuss and take calls on the new Arizona “immigration enforcement” law, S.B. 1070, its implications for ID demands, and the amendments to the new law already being proposed in Arizona H.B. 2162.

KTAR-FM (live audio stream) has the largest listenership of any talk-radio station in the state.  Last week in this same time slot they interviewed the sponsor of S.B. 1070, and we’re happy to have a chance to represent the other side of the debate.

[Update: Our appearance on KTAR has been preempted by an interview with a Congressional candidate. “This issue isn’t going to go away,” though, says Jay Lawrence, and we are working to reschedule.]

Apr 30 2010

Universal fingerprinting and national ID card to be included in “immigration reform” bill

As we reported last month, members of Congress are moving ahead with an increasingly detailed road map for a bipartisan “immigration bill” that would include mandatory universal fingerprinting and a mandatory national ID card in the guise of a “biometric Social Security card”.

The Identity Project was one of the signers of a joint public letter of opposition to the national ID card component of the proposal issued earlier this month, we were one of the signatories and we share the objections to the latest draft of the bill voiced yesterday by other civil liberties organizations.  In the joint letter, we and numerous allies said that:

We write today to express our opposition to a proposal by Senators Charles Schumer (D – NY) and Lindsey Graham (R – SC) to create a biometric Social Security card – one that relies on personal characteristics like fingerprints to identify individuals….

A national ID system is not the solution. Both Republicans and Democrats have opposed a National ID system. President Reagan likened a 1981 proposal to the biblical “mark of the beast,” and President Clinton dismissed a similar plan because it smacked of Big Brother. A National ID would not only violate privacy by helping to consolidate data and facilitate tracking of individuals, it would bring government into the very center of our lives by serving as a government permission slip needed by everyone in order to work. As happened with Social Security cards decades ago, use of such ID cards would quickly spread and be used for other purposes – from travel to voting to gun ownership….

A biometric ID system would be controversial and unpopular with constituencies across the ideological spectrum. It would require the fingerprinting of every American worker – not just immigrants. It would also require the creation of a bureaucracy that combines the worst elements of the Transportation Security Administration and state Motor Vehicle Departments.

All this, should of course, go without saying.  What we find most disturbing is that, even as people across the country are speaking out against the badly-drafted attempt by the state of Arizona to impose an ID requirement in the guise of “immigration enforcement”, members of Congress from both parties think they can get away with this same Trojan Horse to push through a national ID scheme at the Federal level.

Clearly what’s called for is for opponents of the new Arizona law to recognize the new Federal proposal as a larger instance of the same Big Brother mentality, and redirect some of their outrage and activism from Arizona legislators to the House and Senate.  If you don’t want the whole country to go the way of Arizona on this question, let your representatives know that any national ID is unacceptable, no matter what its excuse or what it is called.

Apr 29 2010

European Parliament debate on DHS access to EU airline reservations

Last week the European Parliament, following a hearing earlier in the month in Brussels at which we testified, held a three-hour plenary debate in Strasbourg on proposals to approve access by the US Department of Homeland Security to European interbank transfer (SWIFT) and airline reservation (Passenger Name Record, PNR) data.

The current “provisional” agreement to authorize blanket access by the DHS to PNRs for trans-Atlantic flights was executed by the Council of the EU over the objections of Parliament, but the changes in the structure of the EU brought about by the Lisbon Treaty, which entered into force in December 2009, now give the EP veto power over its continuation in force, or over any new agreement.

The transcript of the plenary session is posted only in the language in which speeches were delivered. But if the Europarl website recognizes your browser and media player, you can click the link under the thumbnail portrait of each speaker for an archived video clip with the the full choice of 23 languages — the most elaborate simultaneous translation operation in any chamber in the world — that were provided to those in attendance in the Hémicyle during the session.

The precautionary closure of most European airspace in response to the volcanic ash cloud kept some MEPs from reaching Strasbourg. As a result, voting on this and all other issues was postponed until next week, May 5-6, in Brussels.

But despite the deferral of voting, the debate was an important manifestation of the climate of opinion among the 736 directly-elected representatives of more than 500 million European citizens.

Several things were noteworthy in the plenary discussion: Read More

Apr 28 2010

New Arizona immigration law and ID demands

We’ve been getting a lot of questions about the new Arizona “immigration” law, S.B. 1070, which we mentioned earlier in this blog.

As we read the text (PDF) of the law it imposes no new requirement to show ID credentials or other evidence of identity.  On the contrary, it gives people even more reasons to invoke their right to remain silent, never voluntarily to provide any evidence (including ID credentials or other evidence of identity) that might be used against them, and never to consent to any search (including searches for ID credentials or other evidence of identity).

The portion of the new law relevant to requests or demands for ID is as follows: Read More

Apr 18 2010

DHS “update” still misstates compliance with EU agreement on PNR data

At the meeting of the LIBE (civil liberties) committee of the European Parliament on the 7th of April, a representative of the European Commission announced that the EC will shortly be releasing a report on the second closed-door EC-DHS joint review of DHS compliance with the current “agreement” on DHS access to and use of PNR data related to flights between the EU and USA.

We haven’t yet seen this report of the second joint review, although drafts of an EU report on the joint review and the DHS response to the EU draft have been posted by Statewatch. But since the first joint review in 2005, the DHS has published two reports — one in December 2008 and an update in February 2010 — on its own self-assessment and claims of compliance with the agreement, and we have studied  them carefully..

These 2008 and 2010 DHS reports are seriously misleading and contain significant legal and factual misstatements.  Their inaccuracy makes clear that DHS claims cannot be relied on without independent verification. The willingness of the DHS to publish such false claims calls into question the good faith of DHS participation in the joint review, and reinforces the need for a truly independent review including an audit of DHS actions by technical experts with access to legal process to compel full access to DHS records.

It’s not for us, as Americans, to tell European politicians what policies they should adopt. Nonetheless, as Americans who have systematically tested what happens when travellers attempt to access PNR data about themselves held by the DHS, and what happens when they attempt to complain about misuse of PNR data by the DHS, we think it is important for Europeans not to be misled about the status of DHS compliance or noncompliance with the current DHS-EU “agreement” on PNR data.

Here’s what we can say about the current situation, and about the claims in the 2008 and 2010 DHS reports regarding compliance with the agreement. Read More

Apr 07 2010

Testimony to the European Parliament on PNR data

Identity Project consultant and technical expert Edward Hasbrouck is testifying Thursday in Brussels on the proposed agreement between the European Union and the U.S. Department of Homeland Security on transfers of Passenger Name Records (PNR’s) from the European Union to the DHS, at a public hearing on “Protection of Personal Data in Transatlantic Security Cooperation: SWIFT, PNR & Co. – which way forward?”, hosted by Jan Philipp Albrecht, Member of the European Parliament. 14:00-17:00 (8-11 a.m. Eastern time, 5-8 a.m. Pacific time), European Parliament, Brussels, room ASP 1G-3 (open to the public, but prior arrangement required for access to the building).

Apr 02 2010

DHS shifting from national origin to ID-based passenger profiling

Today the DHS announced that it is partially replacing its practice of illegally profiling air travelers seeking to board flights destined to the US by national origin — the subject of our still-unanswered formal complaint — with a new scheme to illegally profile passengers individually, bsed on based on mining of commercial data in passenger name records (PNRs) obtained from airlines and other travel companies and on secret DHS dossiers about would-be passengers including their lifetime travel histories maintained in the illegal Automated Targeting System and other databases.

The consequences if you fit the secret profile would continue to include, as before, being subjected to “secondary screening” (more intrusive search and/or interrogation, with no publicly-disclosed rules governing which questions you are required to answer) or having the airline not be given “clearance” under the APIS permission system to allow you to board the flight.  (Under the APIS system already on the books, the default is “No fly” unless the airline receives an affirmative, individualized, per-passenger, per-flight “clearance to board” message from the DHS.)

The new profiles reportedly could include both individual identities and vaguer patterns of suspicion such as countries previously visited (a clear case of targeting based on activities protected by the First Amendment), association (a matching phone number in a PNR, such as from having reconfirmed flights form the name hotel as thousands of other travelers), or appearance (leaving room for continued racial and/or ethnic profiling).

The profiling and selection algorithm, the identity of the decision-makers, and the data on which they will base their determinations remain secret.  No mechanism for judicial review of these decisions, or of actions taken on the basis of them, was mentioned in the DHS press release or FAQ.

The new practice greatly increases the significance of the DHS’s decision in February of this year to exempt much of the information in PNRs, including derogatory personal information submitted by travel companies without travelers’ knowledge, from release to data subjects in response to requests under the Privacy Act. It also highlights the significance of the DHS’s routinely late, incomplete, and improper responses to requests for travel records, when they respond at all.

Some of our Privacy Act requests to the DHS for travel records are 6 months old with no response at all (a year is not unusual), while one of our appeals of an obviously incomplete and improper response has been pending for more 2 1/2 years without a decision.  Of the responses we have seen to requests for PNRs and ATS travel history records, all are obviously incomplete, and invoke inapplicable exemptions (such as invoking the broader exemptions applicable to third-part requests under FOIA in response to first-party requests under the Privacy Act, to which FOIA exemptions don’t apply).  None actually appear to have been processed under the Privacy Act, only under the more limited FOIA rules, even when the requests were explicitly made under the Privacy Act.

So far as we know, nobody has actually received the “accounting of disclosures” (access log) that the DHS is required to provide on request.  And none of the major computerized reservation systems (CRSs) to which airlines outsource hosting of their PNR databases maintains logs of access to PNRs, which would be necessary for CRSs or their airline and travel company subscribers to comply with “Safe Harbor”, European Union data protection law, and other international privacy norms.  Since CRSs keep no records, nobody knows who actually accesses PNRs.

There are also still unanswered questions as to the extraterritorial US claim of jurisdiction over actions related to boarding of foreign-flag aircraft at foreign airports, especially where international aviation treaties between the US and those countries require airlines to operate as “common carriers” and transport all passengers willing to pay the fare and comply with the rules in the published tariff.

Both Americans and foreigners — including members of the European Parliament who are currently debating whether to approve continued DHS access to European PNR data — should be outraged that the DHS is simultaneously increasing the weight given to commercial and other information in secret DHS dossiers about us, while hiding even more of that information from us, even if we specifically ask to see it.  We’ll be bringing this to their attention in meetings and testimony in Brussels and Strasbourg, and talks with European activists, over the next few weeks.