Jul 30 2011

Our reply to DHS claims that travel dossiers are exempt from the Privacy Act

Our reply brief and a supporting declaration were filed yesterday in Hasbrouck v. CBP, our Privacy Act and Freedom of Information Act (FOIA) lawsuit seeking records from and about the DHS “Automated Targeting System” of individualized government dossiers about each of the the millions of international travelers to and from the USA, including US citizens.

ATS includes complete copies of airline reservations (“Passenger Name Records” or PNRs), as well as a “risk assessment” for each would-be traveler that is used to decide whether or not to give the airline permission to transport them into, out of, or through the airspace of the USA. As Mr. Hasbrouck’s supplementary declaration supporting our latest reply brief explains:

Tens of thousands of travel agencies, airline offices, and offices of other travel companies around the world, and a million or more individual employees and contractors of these companies, have access through CRSs [Computerized Reservation Systems] or otherwise to PNR databases and the ability to enter data in PNRs. PNRs thus can, and do, contain an unlimited quantity and variety of data originating with numerous third parties around the world, some of it in the form of unstructured free text. CBP requires that, in all cases where a PNR contains a flight between a point in the U.S. and a foreign point, or overflying U.S. airspace, the entirety of the PNR — including the free-text general remarks and whatever other data has been entered by anyone with access to the PNR — must be made available to CBP for import into ATS.

PNRs can contain information about aspects of a journey other than air transportation, such as hotel reservations and other travel services, even in what are considered in travel industry jargon to be “air-only” PNRs. Information about these other travel services can be included in the “OSI” (Other System Information), and “SSR” (Special Service Request) elements of the PNR. For example, in reviewing records from ATS released to another requester by CBP, I have seen a PNR for two people, for whom the airline had reserved a hotel for an involuntary overnight layover, which included an SSR entry with a code showing whether a room with one bed or two had been requested for those two travelers. This is a normal and expected example of standard travel industry practices.

The SORNs [System Of Records Notices, required by the Privacy Act] for ATS specifically mention OSI, SSR, and “General Remarks” 10 among the “Categories of Information in the [ATS] System” and among the types of data derived from PNRs and included in ATS. “OSI” entries can be used by travel agency or airline staff with access to PNRs to enter, and to send to airlines, arbitrary free-text messages. “Remarks” in PNRs are intended to be used for an unlimited range of free-text data entry. This information can — and in some cases does — include remarks about the personal foibles of the traveler (to assist other travel agency or airline staff in dealing with the traveler), and/or derogatory descriptions of interactions with customer service staff. Travelers do not normally see the PNRs that contain information pertaining to them, and do not know or control what information has been entered about them.

Our reply brief also notes that:

Acknowledging the sensitivity of the data in PNRs, Canadian and European Union laws require that private entities that control or host PNRs allow individuals to inspect their own PNRs and obtain information about how they are used. However, U.S. law contains no such requirement.

The focus of our latest arguments is on the government’s claim that — after receiving Mr. Hasbrouck’s Privacy Act request and his appeal of the government’s failure to respond — CBP had the right to issue new regulations retroactively exempting itself from any obligation to respond to the pending request or appeal, to provide Mr. Hasbrouck any of the ATS or other records about him and his travels, to provide him with any accounting of the disclosures of those records to third parties, or to correct inaccurate records or expunge irrelevant ones. As our brief notes:

The retroactive application of the ATS and BCIS exemptions is especially egregious in this case where the processing of Hasbrouck’s Privacy Act requests was completed by CBP’s Office of Intelligence and Operation Coordination on April 2, 2009, but was then sat on for 17 months until after the exemption rules were finalized.

We also contest CBP’s failure to search for Mr. Hasbrouck’s records, in response to his request, in the same way they would if they were searching for records about him as a suspected terrorist. And we contest their refusal to disclose even the records about Mr. Hasbrouck that they admit to having found.

The next step in the case will be oral arguments on the cross-motions for summary judgment on Thursday, August 25, September 15, 2011, 1:30 p.m., before Judge Richard Seeborg (Courtroom 3, 17th Floor), U.S. District Court for the Northern District of California, Phillip Burton Federal Building and U.S. Courthouse, 450 Golden Gate Ave. (between Polk and Larkin, near Civic Center), San Francisco, CA. [Note revised hearing date of September 15th.]

It’s unlikely that any decision will be announced on the spot at the oral argument. Judge Seeborg will most likely take the written submissions and oral arguments under advisement, and issue an initial decision on the motions for summary judgment some weeks or months later. (There is no mandatory deadline for most Federal judicial decisions.)

The public is welcome to attend the oral argument, although the guards at the entrance to the courthouse require visitors to show government-issued ID. See the specific rules for electronic devices in the courthouse and additional rules and information for journalists.

Jul 25 2011

Mexico-Barcelona flight barred from overflying the U.S.

The U.S. government has yet again ordered a foreign airline, transporting foreign citizens between foreign countries, not to transport a specific foreign  passenger through U.S. airspace between foreign points.

Yet again, U.S.  authorities did this not through legal process and a judicial order such as an injunction, but through an extrajudicial administrative order to the airline.

Yet again, as with previous Air France flights between Paris and Mexico City, the “no-overfly” order was given to Aeromexico (this time for a Mexico City-Barcelona nonstop) only after the plane was in the air — this time forcing it to return to Mexico for lack of enough fuel to detour south around Florida and U.S. airspace.

And yet again, as with journalist Hernando Calvo Ospina and European Parliament legislative aide and policy analyst Paul Emile Dupret, the latest incident involved someone who appears to have been barred from U.S. airspace on the basis of their ideas rather than their actions: Mexican citizen and academic Raquel Gutiérrez Aguilar.

Gutiérrez is an author, independent journalist, activist, and professor of social sciences and humanities at BUAP (Benemérita Universidad Autónoma de Puebla) in Puebla, Mexico.

Gutiérrez tells the story in her own words in an open letter (original in Spanish; English translation) posted on a new blog she has started for discussion of her own and similar cases, “Los Non Gratos“. There’s also an analysis of the incident and its significance by law professor and expert in international human rights Craig Scott on OpenDemocracy.org.

Secret U.S. no-fly orders against passengers have also provided the basis for Air Canada to deny passage on flights whose flight plans included alternate airports in the U.S. at which they might have landed if diverted in an emergency, even if they planned neither to land in nor overfly the U.S. The legality of those decisions by Air Canada, under applicable Canadian law and international treaties to which Canada is a party, remains in doubt.  In one case, they prevented a U.K. citizen (and Muslim) from returning home from Canada to the U.K., even though his permission to remain in Canada was expiring. In a second case, they caused the reverse problem, preventing a Canadian citizen (and Muslim) from returning home from Germany to Canada, even though his permission to remain in Germany was expiring.  And in yet a third case, they prevented a U.K. citizen (and Muslim, and former prisoner released from Guantanamo and never charged with any crime in the U.S., U.K., or Canada) from coming to Canada for a speaking tour, even though no objection to his visa-free entry to Canada as a U.K. citizen had been raised by Canadian immigration officials.

Does the U.S. government think that journalists, scholars, and government staff are likely to conduct telepathic terrorist psy-ops against the U.S. from 30,000 feet if they are allowed to pass through our airspace?  Or that if the bureaucrats at the DHS are genuinely afraid of this, the proper procedure for judging this risk shouldn’t be to present the evidence, if any, to a judge, in an adversary proceeding in which the person being adjudged can hear the charges and evidence against them, be heard in their own defense, and be entitled to due process including a presumption of innocence.?

As U.S. citizens, we extend our apologies for the actions of a U.S. government that doesn’t represent us in taking such actions, our commitment to continue our work to end such U.S. government lawlessness, and our offer of any assistance we can provide (limited though that is likely to be) to Ms. Gutiérrez and any others similarly situated and seeking explanations and redress.

Jul 18 2011

DHS reply to our arguments for release of travel records

Late last Friday night, lawyers for U.S. Customs and Border Protection (one of the divisionS of the DHS) filed their reply to our motion for summary judgment in Hasbrouck v. CBP, our lawsuit under the Privacy Act and Freedom Of Information Act (FOIA) seeking release of PNR data and other information from and about the CBP “Automated Targeting System” (ATS) and other records of the travel of innocent US citizens neither accused nor suspected of any crime.

We’ve added CBP’s latest pleadings and self-serving (and often false) declarations to our posted documents from the case.

Our legal responses are due to be filed with the court by July 29th, followed by oral argument before Judge Seeborg of the U.S. District Court for the Northern District of California in San Francisco on August 25th.

In the meantime, the government’s latest filings raise disturbing new legal and factual claims:

First, CBP’s main response to our Privacy Act arguments is to claim the authority (a) to delay action indefinitely on Privacy Act requests (“The Privacy Act contains no provisions addressing processing procedures or deadlines”, they say), and (b) to promulgate new Privacy Act exemption rules applicable retroactively to pending requests and appeals, even ones made years earlier.

If these arguments are accepted by the courts, the result would be that the Privacy Act cannot be relied on to provide any guarantee of “rights” with respect to future access to personal information. Whenever an agency receives any request it doesn’t want to fulfill — for access to records about an individual, for an accounting of disclosures of those records, or for correction of inaccurate records — the agency could simply delay acting on the request (without even needing any reason or excuse for the delay) while it promulgates a new rule retroactively exempting the system of records from the requirement to act on the request.  Or the agency could simply delay action indefinitely, effectively denying the request without the need for any formal exemption, denial, or statement of reasons.

Anyone considering relying on the Privacy Act, or on the (current) rules for any particular system of records, should be aware that this is now officially the DHS interpretation of the Privacy Act.

Second, CBP claims (paragraph 11) that the “audit logs” of access to ATS records (including PNR data) were not likely to contain any information responsive to our requests because they are “neither intended nor designed to be used to generate reports to memorialize the terms used [to] search for records.”

CBP thus appears to be admitting that — despite the claims in its Privacy Impact Assessment and reports to the European Union that “ATS retains audit logs for all user access”, those audit logs show only who logged in to the ATS system, not what PNR data they retrieved.

Apparently, once an “authorized” user logs in, they can retrieve any PNR — of a politician, of a celebrity, of their personal enemy, or of anyone else — without any record being kept of which PNRs they have retrieved.

The absence of logs showing which PNR data is retrieved, when, and by whom make a mockery of any reliance on these logs as proving or disproving whether CBP misuses its access to PNR data.

We’ve often said in the past that the absence of access logs for access to PNR data held by commercial computerized reservation systems makes it impossible for those CRSs to comply with EU or Canadian privacy law. But we’ve taken at face value CBP’s claim to maintain logs of access to the copies of PNR data in CBP’s ATS database.

Now we know that there are no meaningful access logs — logs showing which PNRs are retrieved when, and by whom — for ATS either.  There is thus no way for anyone to know who has retrieved your PNR data, when, or from what other countries, and no way for anyone to carry out any meaningful audit of compliance with policy restrictions on access.

Jul 15 2011

Appeals Court rules TSA rules require prior notice and public comment

Today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that the TSA deployment of virtual strip-search machines is subject to the requirements of the Administrative Procedure Act for formal notice and an opportunity for public comment before it is put into effect.

[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, … we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

The ruling came in a lawsuit by EPIC based on a petition for rulemaking in which the Identity Project had joined.

The logic of the decision would appear to apply equally to other requirements imposed on travelers at TSA checkpoints, including any mandate for travelers to identify themselves:

Read More

Jul 14 2011

TSA plans yet another “trusted traveler” scheme

Bowing to ongoing lobbying from the “fascism’s fine with us if it makes the planes run on time” segment of the travel industry, the TSA announced today that it plans a new “trusted traveler” (“less mistrusted traveler”?) pilot program beginning this fall.

The pilot program will be by invitation only, for certain frequent flyers on certain airlines. In exchange for “volunteering” additional, as yet unspecified information about themselves, these travelers “may be eligible for expedited screening” at certain airports.

This pilot program has all the same security defects as the various previous “trusted traveler” schemes. The TSA continues to describe it as “risk-based”, but there’s still no evidence that the TSA has any profile of what the personal data or airline reservations of a “risky” person would look like, or has any authority as a “pre-crime” police agency to substitute its judgment in such matters for that of the courts.

The pilot program will involve a partnership with the DHS Customs and Border Protection division, suggesting that it may involve the use of PNR data and international travel histories from CBP’s Automated Targeting System as part of the basis for decisions about domestic flights.

In addition, there’s no indication in today’s announcement that the selection of those invited to have a chance at less-intrusive search will be based on any publicly-disclosed criteria or due process.

The TSA’s goal, of course, is to make its virtual strip-searches and/or genital groping so invasive that travelers will “volunteer more information about themselves prior to flying” in the words of today’s TSA announcement) for even a chance to be subjected to a slightly less-intrusive warrantless search.

In the end game, the treatment of mistrusted travelers who don’t “volunteer” to submit to additional surveillance and interrogation will get steadily worse, and the lines for their checkpoints longer, while any of us who object will be told that we’ve brought this treatment on ourselves, and that all we have to do to avoid it is to “consent” to lifetime “identity-based” (the TSA’s own term) tracking and logging of our movements.

Jul 13 2011

Report on our work in “Human Rights Now” newsletter

There’s a report on our work on the front page of the current summer 2011 issue of “Human Rights Now!”, the newsletter of the Meiklejohn Civil Liberties Institute.  MCLI has long been in the vanguard of efforts to bring the U.S. into compliance with international human rights law, and we thank them for bringing the attention of their community of human rights advocates to the issue of freedom of travel and movement as a human right.

The full article is below the fold, and we’ll be reporting further on this work in the near future:

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Jul 12 2011

Should we have to pay the government to trust us?

As we noted a few months ago, some elements of the travel industry (those more interested in whether the trains and planes run smoothly and on time than on whether their smooth operation includes integral surveillance and control of travelers by governments) have joined the homeland-security industrial complex in a lobbying campaign for traveler profiling schemes that include disparate treatment for “trusted” travelers.

Travel columnist and consumer advocate Christopher Elliott gets it exactly right in his analysis of the latest salvo from the “trusted traveler” industry lobby:

We can probably all agree that the TSA needs to be reformed. But at whose expense? Last week, the US Travel Association released a survey that suggests a significant majority of frequent business and leisure travelers would pay up to $150 to enroll in a “trusted traveler” program that would allow them to skip the invasive pat-downs and body scanners.

I think US Travel is asking the wrong question. We’ve already paid for any trusted traveler program, through taxes and 9/11 security fees. Will I shell out another $750 a year for my family of five to avoid having its dignity violated? Hell, no. My government trusts me to pay taxes and obey the laws of the land. Maybe it can see itself clear to also figure out that I won’t blow up my next flight without forcing me to pay extra.

There can be no meaningful reform with the current administration and its appointees in place. Maybe the first step to fixing the TSA is to elect a new administration in 2012.

I’m not sure if I like any of the current choices.