Jul 26 2012

How to stop Arizona’s SB1070 and similar state ID-check laws

There’s been much concern — and, we suspect, much confusion — about what to do about the portions of Arizona’s SB1070 immigration and ID-check law that weren’t struck down by the US Supreme Court in its decision last month in Arizona v. United States.

The portion of the law that remains in place (at least for now) after the Supreme Court decision is exactly the section that we focused on in our analysis of the law when it was first enacted:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

So far as we can tell, the Supreme Court majority (567 U. S. ____, slip opinion at pp. 19-24) reads this section of the law the same way we read it, in three crucial respects:

First, the Supreme Court opinion describes the Arizona law as imposing requirements on state officers to “attempt… to determine” certain facts, in certain circumstances. Nothing in the Supreme Court opinion suggests that SB10170 imposes any obligation on individuals to assist those officers in their “attempt .. to determine” that information, or to carry or provide evidence of, or to answer questions about, their identity or immigration status.

Second, the Supreme Court was unable to find in the text of the law any clear mandate for state officials to detain anyone who would not already be properly subject to detention, or to prolong anyone’s detention, merely in order to facilitate that “attempt … to determine” their immigration status.

Third, the Supreme Court explicltly left open the possibility that any prolongation of detention or delay of release from custody in order to facilitate an immigration check, or as a sanction for inability or unwillingness to supply evidence of identity or immigration status — even if the original detention or custody was lawful — might be unconstitutional. The Supreme Court did not find that this provision is Constitutional, only that it might be Constitutional — depending on how it is interpreted and applied by Arizona state officers and judges — and that it would be premature to find it unconstitutional just yet:

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status…. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law….

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law…. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. [slip opinion at pp. 22-24, emphasis added]

This close reading of the law and the Supreme Court opinion makes clear that the next step for opponents of the law is to test how, in practice, the state of Arizona will answer the questions asked by the Supreme Court: Will people in Arizona be detained, will their detentions be prolonged, or will their releases from custody be delayed (without, in each case, some other lawful basis) merely to check their immigration status?

If any of things happen to people in Arizona, the Supreme Court has explicitly left it open for them to bring new Constitutional challenges to those infringements of human rights. And if not, then people in Arizona retain the rights they have always had.

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Jul 18 2012

John Brennan, “Naked American Hero”, found not guily

John Brennan, who took off all his clothes while being detained by the TSA at the Portland [OR] International Airport (PDX) in protest of his continued detention and the TSA’s excessively intrusive “screening”, was found not guilty today of indecent exposure at the conclusion of a bench trial (during which Mr. Brennan testified, clothed, in his own defense) in Multnomah County Court. According to an Associated Press report on the trial:

A Multnomah County prosecutor said if Brennan’s actions are considered protected by the First Amendment, then anyone who is arrested while nude can also claim that their actions are a protest.

That leaves Mr. Brennan out of pocket for the legal expenses of defending his innocence. The “not guilty” verdict in the criminal case brought against Mr. Brennan leaves open the possibility, as already threatened by the TSA, of a civil action to fine Mr. Brennan for “interfering” with TSA screeners in the performance of their duties. On the other hand, the “not guilty” verdict also leaves open the possibility of a civil suit by Mr. Brennan against the checkpoint staff and police who violated his rights.

Jul 16 2012

Hasbrouck v. CBP dismissed. What have we learned?

We have stipulated to the dismissal of the remaining claims in Hasbrouck v. U.S. Customs and Border Protection, the Federal lawsuit in which the Identity Project had sought records of U.S. government surveillance and “targeting” of international travelers through the CBP “Automated Targeting System” (ATS).

The dismissal follows a ruling by U.S. District Court Judge Richard Seeborg in January of this year, dismissing some of our claims but ordering CBP to provide additional information about ATS records and to conduct additional searches to find more of the records we had requested or determine if they exist. (See our earlier analysis of the substance and significance of Judge Seeborg’s decision.)

Since January, as directed by Judge Seeborg, we have engaged in extensive negotiations with the government’s lawyers from CBP and the office of the local U.S. Attorney in San Francisco.

As a result of Judge Seeborg’s order:

  1. CBP provided us, in redacted form as shown on this supplemental Vaughn index, with several additional redacted documents which it had previously claimed didn’t exist or couldn’t be found, or which they had failed to search for despite our request for and entitlement to those records. These newly disclosed records include additional records related to Mr. Hasbrouck’s travels, in which his name was misspelled. The most recently-released of these are from 1997, and others released to Mr. Hasbrouck earlier in the case go back to 1992, long before any public disclosure of the existence of ATS. CBP had claimed that it was unlikely that a name in a Passenger Name Record (PNR) could be misspelled, but these new disclosures show that it can happen, that CBP is capable of “wildcard” searches for variant spellings, and that such a search is necessary for it to be reasonably likely to identify all records responsive to a request for PNR or other ATS data pertaining to an individual. All of these new records also cast doubt on CBP’s claims as to the completeness of its past responses. Prior CBP responses to requests for such records were likely incomplete, and should be renewed with a specific request to include possible misspellings in the search.
  2. After previously claiming that there were no records of the processing of Mr. Hasbrouck’s original Privacy Act requests and appeals, CBP provided us with “correspondence tracking sheets” showing that these Privacy Act requests (1) were logged and tracked solely as FOIA requests, not Privacy Act requests, (2) were logged as “closed” even while appeals were pending, and (3) do not mention some of the appeals, even when those appeals were received and signed for by CBP. Assuming that CBP is telling the truth, and these are the only records of Mr. Hasbrouck’s requests and appeals, they show that no record is kept of Privacy Act requests and that records of FOIA requests and appeals are incomplete and inaccurate. As a result, CBP’s records and reports cannot be relied on as accurate statements of how many such requests have been received; whether they have been granted, denied, or ignored; how long it has taken to process them; how many of them remain pending and unanswered; whether they have been appealed; or what, if any, action has been taken on those appeals.
  3. CBP provided two additional declarations purporting to explain why no other records responsive to our requests exist or could be found.  In part, these declarations are simply not credible, and would appear to be false and probably perjured. For example, CBP’s Shari Suzuki claims that it is impossible for CBP to search for PNR or other ATS data associated with a particular phone number without also supplying a name as part of the query. Although the software specifications and user guides were withheld from us pursuant to Judge Seeborg’s ruling that they are exempt  from disclosure, it’s unlikely that CBP would be using software that doesn’t permit that sort of query. And Assistant Secretary of Homeland Security testified to Congress on October 5, 2011, about exactly this sort of search: “Early in this investigation, the Federal Bureau of Investigation (FBI) learned of Shahzad’s cell phone number, but had little additional information…. [T]he FBI asked DHS if it had encountered any individual who reported this phone number during border crossings. DHS searched its PNR database for the phone number, identified Shahzad, and learned other information he had provided to DHS.”  We are confident that, if CBP were searching for records as part of an investigation rather than in response to a FOIA request, it could have, and would have, searched for all records containing phone numbers associated with Mr. Hasbrouck, regardless of whether his name appeared in those PNRs. Unfortunately, the extreme “deference” given by the Federal courts to the credibility of agency declarations in FOIA cases, and our lack of access to the software specifications, makes it almost impossible to challenge even such obviously incredible claims about why the records we have requested can’t be found. But let’s be clear: CBP lied about its data mining capabilities rather than actually search for records linking Mr. Hasbrouck to other individuals through phone numbers or other identifiers. What were they trying to hide? Presumably, they were trying to avoid calling attention to the primary function of ATS as a suspicion-generating and guilt-by-association system, designed and used primarily for “social network analysis”..
  4. After first claiming that it processed Mr. Hasbrouck’s requests and appeals only under FOIA and not the Privacy Act, CBP now claims that these requests were made only under the Privacy Act and not FOIA, on the basis of false declarations about what Mr. Hasbrouck said in telephone calls inquiring about the status of his requests and appeals. In light of the “deference” given to the agency declarations in which these false claims are made, it will be easier to make new requests under FOIA for this information than to try to disprove the false claims in the declarations that Mr. Hasbrouck had agreed to abandon or withdraw his FOIA requests. But here again, CBP officials were willing to lie in sworn  declarations made to Federal courts, in order to avoid or delay judicial review of their withholding of information.
  5. During our negotiations, CBP promulgated a new System Of Records Notice (SORN) for ATS, a Notice of Proposed Rulemaking (NPRM) to exempt even more ATS records from the Privacy Act, and an updated and expanded Privacy Impact Assessment for ATS. CBP would no doubt say that some of these documents provide “additional transparency” about ATS. But any transparency is offset, of course, by the broadening of exemptions. And under the interpretation of the Privacy Act adopted by Judge Seeborg’s ruling in our case, additional Privacy Act exemptions could be promulgated at any time in the future, and applied even to requests that had already been made. Nobody can rely on any “rights” under the Privacy Act that could be retroactively revoked at any time. In addition, the new notices fail to give any additional detail about the data-mining or search-and-retrieval capabilities of the software (which Judge Seeborg ruled that CBP does not have to disclose, notwithstanding the specific requirement of the Privacy Act law that a SORN include the “practices of the agency regarding … retrievability” of records) or the algorithms used for processing data and making “targeting” decisions. (In its comments on the new SORN, EPIC correctly points out that the use of secret algorithms makes it impossible for airlines or other travel companies subject to European Union jurisdiction, but which provide PNR or other data to CBP for ATS, to fulfill their duty under EU law to inform data subjects how their data is processed — a point we’ve made in complaints against airlines to European data protection authorities.) Perhaps most importantly, what these new filings provide is more transparency about the unprecedented scale, scope, and secrecy of ATS as a system of suspicionless surveillance and control of all international travelers and their associates.

Individuals and governments abroad should also take due note of the U.S. government’s claims in this case, and judge their collaboration with ATS accordingly. Individuals — even U.S. citizens — have no right under U.S law to see what ATS records are being kept about them, and no right to know how or according to what algorithms data about themselves is mined, processed, or otherwise used.  No records are kept of requests for access to records, and no logs are kept of who retrieves records.

Clearly, the Automated Targeting System is exactly what the Privacy Act was intended to prohibit: a system of persistent secret government dossiers about the legal activities of people who are not suspected of any crime. The reason for the enactment of the Privacy Act was the recognition that such surveillance systems, regardless of their purposes or the benign intentions of their creators, are inherently likely to be be misused.

At the end of the day, the (unsurprising) lesson of Hasbrouck v. CBP is that U.S. courts continue to place the “airport exception to the First Amendment” above our right to travel and our right as citizens, presumed innocent until guilty, to be free from dragnet surveillance.

If the courts won’t upheld the intent of the Privacy Act by ruling against the maintenance of systems such as ATS, it’s up to the public to say, “No”, and to demand that Congress enact legislation explicitly mandating that ATS be shut down and all ATS records about innocent individuals be destroyed.

We are not surprised by the outcome of this lawsuit, which revealed more than we had expected about the contents of ATS records and the the nature and functioning of the ATS system. We are pleased and proud of whatever role this lawsuit may have played in exposing the lack of respect by the executive and judicial branches of the U.S. government for our fundamental rights.

We are grateful to attorneys David Greene, Lowell Chow, Jim Wheaton, and Geoff King; to the staff and interns of the First Amendment Project (our parent organization) and Bryan Cave; and to John Gilmore and the other supporters who made possible this challenge to the secrecy of DHS surveillance of international travelers.

Jul 06 2012

US continues to banish citizens by no-fly orders

The ongoing saga of attempted banishment of US citizens by their own government, through (secret, standardless, extra-judicial) administrative no-fly orders issued to airlines while those citizens are abroad, continues with two recent cases of San Diego college and university students.

In June, Keven Iraniha was denied boarding for a flight on which he held a ticket from Costa Rica to the USA, apparently (although of course US authorities would neither confirm nor deny this) because the US government had, for some unknown reason, put his name on a no-fly list.

Mr. Iraniha, a California native who was born and raised in the US and who had received his undergraduate degree from San Diego State University, was attempting to return with his family from his graduation  from a masters program in International Law and the Settlement of Disputes at the University of Peace established by international treaty under United Nations auspices in San Jose, Costa Rica.

As with other US citizens recently made the subject of no-fly orders to airlines, such as Yonas Fikre, the US government’s goal may have been primarily to pressure Mr. Iraniha to become an FBI informer, as a precondition to giving him “permission” to return to his country. After being denied passage home, he was questioned by the FBI about his recent travels including his visits to Iran, India, and Egypt.

Is international travel now considered inherently suspicious by the US government?

Unable to find out why all airlines serving the US had been forbidden to transport him home, Mr. Iraniha flew from Costa Rica to Mexico, and re-entered the US by land from Tijuana to San Ysidro (San Diego).

Ali Ahmed, a naturalized US citizen and San Diego City College student currently stranded in Bahrain after the US ordered airlines not to fly him home to the US, has not been so “lucky”.

Mr. Ahmed arrived in the US from Somalia with his family as refugees when he was seven years old. He was on his way from making the Hajj (pilgrimage to Mecca) to Kenya for a family reunion and arranged wedding there when he was denied entry to Kenya. He doesn’t know why, but it seems reasonable to suspect that Kenyan authorities acted at the behest of the US.

After being denied entry to Kenya, Mr. Ahmed was returned to Bahrain, where his connecting flight to Kenya had originated. But he was denied boarding on two flights from Bahrain to the US, even after being told by staff at the US Embassy to Bahrain that he should buy a new ticket and would be allowed to fly home.

Mr. Ahmed had never planned to do anything more than change planes in Bahrain, and has no citizenship or right of residency there. We suppose that as a US citizen he could, if necessary, take refuge in the US Embassy if Bahrain doesn’t let him stay and he can’t get to anywhere else. But in the circumstances, that might amount to self-imprisonment rather than sanctuary.

It would be difficult and extremely expensive fro Mr. Ahmed to return from Bahrain to the US while airlines are prohibited from transporting him into the US or through US airspace. Canada prevents people on the US no-fly list from flying to or from Canada. Almost all flights between Mexico and Europe or Asia pass through US airspace and have repeatedly been subjected to US no-fly orders.

For Mr. Ahmed to get home in spite of the US no-fly order would require him — if the other countries along the way allow him do so — to fly from Bahrain via Europe or Dubai to somewhere far enough south in Latin America (such as Brazil or Argentina) that the flight doesn’t cross over Florida, then on to Mexico, and then re-enter the US by land from Mexico.

For now, Mr. Ahmed is continuing to try to negotiate assurances from US officials that the US will withdraw its no-fly orders to airlines and allow him to fly home more directly to the US.

It’s past time for the US to recognize that restrictions like these on the rights of US citizens to  leave or return to the country of their citizenship, or to travel within it, are violations of their human rights.

Jul 05 2012

Does nudity “interfere” with the TSA’s groping?

As the TSA’s “screening” has become increasing invasive — searches, x-ray and microwave “whole body imaging”, genital groping, etc. — more and more people have suggested that, since we are required to submit to a virtual strip-search and/or groping of our genitals in order to obtain TSA permission to travel, we might as well show up at the TSA checkpoint already naked.

But what happens if a would-be traveler takes off their clothes at the checkpoint, so the TSA staff can see a little more clearly whether they are carrying any weapons or explosives?

Later this month John Brennan goes on trial before a county judge in Portland, Oregon, charged with violating Portland City Code 14A.40.030 (“indecent exposure”) for doing just that. Mr. Brennan has also been threatened by the TSA with the possibility of an administrative fine of up to $10,000 for violating Federal regulations (49 CFR §1540.109) by “interfering” with TSA screeners in the performance of their duties.

As we understand it from Mr. Brennan’s blog and other sources, here’s what happened:

On April 17, 2012, Mr. Brennan showed up — clothed — at Portland International Airport (PDX) for a flight to San Jose, CA.  He went through a metal detector without setting off any alarms. Since he declined to “consent” to a virtual strip-search, TSA staff also gave him an “enhanced pat-down” including the usual groping through his clothes, still finding no sign of anything contraband, dangerous, or threatening. But the TSA continued to detain Mr. Brennan at the checkpoint.

The TSA didn’t give Mr. Brennan any clear explanation of why he was still being detained, or what would happen next, but it seemed like their super-duper detectors had indicated that a chemical swab of his clothing or belongings had shown some indication of possible explosives.

At this point Mr. Brennan did the only thing he could have done to provide additional evidence to the checkpoint staff that he wasn’t hiding any weapons or explosives under his clothes, and to calmly and quietly protest the TSA’s treatment of him in the manner least likely to obstruct any further, more intrusive search they might want to conduct of his person or clothing: He took off his clothes. All of them. And when the TSA still wouldn’t let him go, but instead called the local police and told him to put his clothes back on, he peacefully declined to do so. At that point, he was arrested by Port of Portland police.

Mr. Brennan was originally charged with a misdemeanor violation of state law, ORS 163.465 (“public indecency”), but that charge — which would have entitled him to a jury trial, and would have required the prosecution to prove “the intent of arousing … sexual desire” — was dropped the next day.

That leaves the Portland “indecent exposure” ordinance and the TSA’s regulations against interfering with “screeners” in the performance of their duties.

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