Dec 07 2011

Civil liberties principles for border policy

In anticipation of the announcement today of new, secretly-negotiated plans for a “North American Security Perimeter” agreement between the US and Canada, Privacy International, the American Civil Liberties Union, the Canadian Civil Liberties Association, and a coalition of other Canadian organizations have released a joint statement of the core civil liberties and human rights principles that ought to apply to any such agreement.

We strongly endorse this statement, and commend it to the attention not just of Canadian and US politicians, activists, and public citizens but also to people in Europe and elsewhere concerned with US efforts to internationalize and globalize the Homeland Security state and “War on Terror”. (It’s clear, for example, that the proposed European Union-US agreement on DHS access to PNR data, and current procedures for “no-fly” decisions related to flights to and from the EU, would not meet these criteria.)

In contrast to previous commentary on the surveillance and control of cross-border travel as solely a “privacy” issue, the core legal principles in the PI/ACLU/CCLA statement include both the substantive right to freedom of movement as protected by the International Covenant on Civil and Political Rights (ICCPR, Article 12) and the U.S. Constitution, and the procedural right to due process not just in how travel data is handled (“data protection”) but with respect to any decision impinging on the right to travel or imposing other ill effects.

Those interested in civil liberties and privacy protection in the particular context of USA-Canada cross-border travel should also see the Canadian Privacy Commissioner’s audit report on Privacy and Aviation Security: An Examination of the Canadian Air Transport Security Authority (November 7, 2011) and statement regarding Fundamental Privacy Rights within a Shared Vision for Perimeter Security and Economic Competitiveness (July 7, 2011).

Dec 05 2011

Open letter to Members of the European Parliament on EU-US PNR agreement

The Identity Project joins 20 other nonprofit, nongovernmental organizations from Europe and the USA in a joint letter being sent today to Members of the European Parliament (MEPs) to inform them about the real facts of the proposed EU-US agreement on U.S. DHS access to PNR (travel reservation) data from the EU, and to ask that MEPs reject the proposed and highly controversial agreement.

Press release: Concerned NGOs send letter to inform Members of the European Parliament about the EU-USA Agreement on Passenger Name Records.

German version of press release: VIBE!AT und senden offenen Brief an EU Parlamentarier um sie über das Fluggastdatenabkommen mit den USA zu informieren.

Text of letter (letter in PDF format):

Information on the upcoming vote on the EU-USA PNR Agreement

Dear MEP,

Soon you will be deciding on the EU-US agreement on passenger name records (PNR).

Since there is confusing information on this agreement, there are a few things we would like to clarify.

Please consider the following issues for your decision on the EU-US PNR Agreement:

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Dec 03 2011

Fallout from our publication of the EU-US PNR agreement

While it’s gotten almost no notice (yet) in the USA, our publication of the previously-secret text of the proposal for an agreement between the US and the European Union on DHS access to European PNR (passenger name record) data has prompted extensive discussion this week by journalists, activists, politicians, and bloggers throughout Europe. Here’s a partial wrap-up; please post additional links in the comments:

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Dec 02 2011

DHS “Automated Targeting System” records

The “Automated Targeting System” (ATS) has been a topic of discussion this week at the Securing Our Rights in the Information-Sharing Era conference on national security, surveillance, and immigration enforcement.

ATS is operated by the Customs and Border Protection (CBP) component of DHS, although ATS apparently contains links to records held by other agencies and other commercial databases. ATS records include passenger name records (travel reservations), border crossing logs, secondary inspection notes, “risk assessments” of all travelers (even if you aren’t on any watch list), risk assessment algorithms, and pointers to other databases.

Public notice of the existence of ATS was first provided in 2006, but ATS records provided in response to individual requests show that it had already been in operation, illegally, for years before that. If you’ve been on an international airline flight to or from the U.S. in the last ten years, or crossed the U.S. land border in the last few years, CBP has an ATS file of information about you and your travels. There might be ATS records of earlier trips, although older ATS records are spottier. Some ATS files include border crossings and international flights from as far back as the early 1990s.

We’ve posted forms you can use to request your own ATS file from CBP, as well as examples of some of the types of data included in responses to requests for ATS records. (There’s more about what we’ve found in ATS records in this front-page story from 2007 in the Washington Post.) Contact us if you want help with requests or administrative appeals, or in interpreting responses.

If you think there’s any chance you might be on a watch list, you should also send a separate request to the DHS Chief Privacy and FOIA Officer for records from the DHS /ALL-030 Use of the Terrorist Screening Database (TSDB)  System of Records.  Be sure to state that your request is made under both the Privacy Act and FOIA, and include a request for an accounting of all disclosures of records about you.

The first panelist at the conference was Julia Shearson, a native-born U.S. citizen who was arrested when she tried to drive back into the U.S. after an innocent weekend trip to Canada, on the basis of an entry in ATS falsely flagging her as an “armed and dangerous terrorist”. She’s suing DHS under the Privacy Act to find out why they labeled her a terrorist. Her lawsuit is still pending on remand after a favorable Circuit Court ruling reinstating her complaint. We last reported on her case here; there’s more about her story in this video which was shown yesterday at the conference, and this article from the Cleveland Plain Dealer. Whether the Privacy act provides for recovery of emotional damages was the subject of oral argument before the Supreme Court earlier this week in FAA v. Cooper.

Also still pending is our Privacy Act and FOIA lawsuit against CBP on behalf of Identity Project consultant Edward Hasbrouck, who is seeking ATS records about himself (including his “risk assessments” and the rules used for determining those risk assessments), an accounting of disclosures of those records to other agencies or third parties, information about how ATS records are indexed and retrieved, and records of the processing of his initial requests for ATS records. (He received only incomplete and redacted responses, and not until three years after his initial request and three weeks after he filed suit against CBP for its failure to respond or provide the requested records). A hearing on motions for summary judgment was held in September, and a decision is pending.

Other previous lawsuits related to ATS are discussed here. We’ve also filed comments on CBP rulemakings, objecting to ATS as in violation of the Privacy Act and international human rights treaties.

[On a separate note, the ongoing prosecution of Dr. Ghulam Nabi Fai under the Foreign Agents Registration Act, which was also mentioned at the conference, is discussed here.]

Dec 01 2011

DHS responds to our complaints of human rights treaty violations

More than five years after we filed our first formal complaint with the Department of Homeland Security that its travel surveillance and control programs violate U.S. international human rights obligations under freedom of movement) of the International Covenant on Civil and Political Rights, we’ve finally received a response from the DHS Officer for Civil Rights and Civil Liberties. [Update: Our follow-up letter to DHS OCRCL requesting review of our complaints by the Interagency Working Group on Human Rights Treaties.]

The response dismisses all of our complaints, and indicates a disturbing failure to understand the fundamentals of international human rights law. For example, it repeatedly states that the policies we complained about were “authorized” by federal law, when under the Constitution no statute can authorize actions contrary to U.S. obligations under international treaties.

Nonetheless, this is the first time, so far as we can tell, that any Federal agency has formally acknowledged a complaint from the public as being a complaint of violation of U.S. human rights treaty obligations by that agency, or has provided any formal response to such a complaint.

While such complaints are unlikely to have much direct effect, the process created in response to our complaint and our follow-up FOIA and Privacy Act requests provides, for the first time, a mechanism for documenting the fact that such complaints have been made.

Executive Order 13107 requires each cabinet-level federal department to designate a single point of contact for complaints of human rights violations, and to respond to such complaints.

Having gotten the DHS to implement these provisions of Executive Order 13107, we’re still trying to get the issues we’ve raised considered by the Interagency Working Group on Human Rights Treaties.

We’re also continuing to pursue our human rights complaint and follow-up FOIA request to the Department of State. When last we heard from the Department of State, they estimated that they would have a response to our FOIA request in April 2012.

If you want to make such a complaint yourself about the DHS or any DHS component, send it to:

Ms. Margo Schlanger
Officer for Civil Rights and Civil Liberties
Building 410, Mail Stop #0190
U.S. Department of Homeland Security
Washington, D.C. 20528

If you can’t figure out who has been designated as the “single point of contact” for some other department, send it to the respective cabinet secretary. The magic words to use are:

This is a complaint of a violation of U.S. obligations under international human rights treaties, specifically [specify clause and treaty]. We request that you refer this complaint to the officer you have designated as the single contact officer for your department responsible for overall coordination of the implementation of Executive Order 13107 on implementation of human rights treaties, and that we be provided with a response to this complaint. We also request that the subject matter of this complaint be reported to the Interagency Working Group on Human Rights Treaties, and included in the annual review by the Interagency Working Group of matters as to which there have been non-trivial complaints or allegations of inconsistency with or breach of international human rights obligations.

If you don’t receive any answer,  make a FOIA request like this one for what has happened to your complaint and who (if anyone) has been designated as responsible for such complaints to that department.

If you try this , please let us know how it goes, and what (if any) response you receive.

We’ve reported on this process in a series of articles in this blog over the years. For those who are interested, here’s a chronological set of links to our correspondence with the DHS and Dept. of State:

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