Nov 29 2012

No place at Department of “Justice” for complaints of human rights violations

It’s been almost fourteen years since President Clinton, in an Executive Order that remains in force, directed each Cabinet-level executive department to designate a single contact officer responsible for insuring that all complaints to that department of violations of human rights treaties are investigated and responded to.

That Presidential order, however, has never been carried out, and remains widely ignored.

In the latest example, the Department of Justice has responded (belatedly, as usual) to our request under the Freedom of Information Act, saying that they can find no record that any Attorney General has ever designated anyone responsible for carrying out this Executive Order or responding to complaints of human rights violations; no policies or instructions for dealing with such complaints; and no records of such complaints, what issues they have raised, or what has been done with them.

Given that the Department of Justice might have been expected to be responsible for investigating various sorts of human rights violations that would also constitute crimes, this failure by the DOJ to do anything about human rights complaints has serious implications for the entirety of the US government.

We got the same answer earlier from the Department of Transportation, which is supposed to be responsible for ensuring that passenger common carriers act as, well, common carriers, and respect the “public right of freedom of transit” guaranteed by federal law as well as international treaties.

Only the DHS has told us they actually designated someone responsible for responding to human rights complaints. But it took the DHS almost five years to actually respond to our complaints, and when they did, they improperly suggested that US law could override international treaties.

We’re still trying to get an answer from the Department of State about its handling of human rights complaints. And we’ll be bringing these issues to the attention of the UN Human Rights Committee next year, when it reviews US compliance with the International Covenant on Civil and Political Rights.

Nov 20 2012

TSA spreads FUD on “Opt Out and Film” week

This week is national Opt Out and Film Week. Across the country, travelers will be documenting the TSA’s practices of groping the genitals of anyone who wants to exercise their right to travel without “voluntarily” submitting to an x-ray or RF virtual strip search.

The TSA even acknowledges Opt Out and Film Week in its official blog, where Blogger Bob sez:

We’re also aware of the Opt Out and Film week, where some are planning on opting out of the body scanner and then filming their experience. TSA respects passengers rights to exercise freedom of speech as well as the rights of fellow travelers trying to get to their destination safely and without unnecessary delay. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances may.

That looks to us like an attempt to sow Fear, Uncertainty, and Doubt (FUD) on clear-cut Constitutional rights.

While the TSA has a history of improperly calling local cops on photographers (for which we are currently suing both the TSA staff and the police who acted on their bogus complaints), it’s not true that  “local laws, state statutes, or local ordinances may” restrict the exercise of First Amendment rights.

As we say in our cheat sheet, What you need to know about your rights at the airport:

You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you.

Nov 17 2012

Air Canada lies about government access to reservations

Airlines should have been defending their customers against government demands for information. Instead, they have chosen to collaborate with governments not just in surveillance and violation of the rights of their customers, but in the cover-up of those practices and the attempt to keep travelers from realizing their extent.

We got a letter from Air Canada yesterday informing us that, “Your personal information was not disclosed to a government agency with respect to the flights mentioned in your Request…”

If we didn’t know better, this would be reassuring. But it’s not true.

As it happens, we had gotten another letter earlier this week from the Canadian Border Services Administration (CBSA), containing portions of its records of Passenger Name Record (PNR) and Advance Passenger Information (API) data about our flights on Air Canada, which CBSA had obtained from computerized reservation systems and Air Canada’s Departure Control System (DCS):

[Excerpt from Air Canada API and PNR data from the CBSA “Air Targeting” system]

The information in the CBSA Air Targeting files includes both PNR and API data for Air Canada flights, despite the “claim”: that, “Air Canada is not in a position to provide you with APIs records and logs for the flights listed in your Request since no such APIs records were created.”

And earlier this year, in the last batch of information disclosed by US Customs and Border Protection in response to our Privacy Act and FOIA lawsuit for records from the CBP Automated Targeting System, we received copies of two PNRs that CBP had obtained from different reservation systems for those same Air Canada flights:

[Excerpt from Air Canada PNR from the USCBP Automated Targeting System]

[Excerpt from Air Canada & Swiss International PNR from the USCBP Automated Targeting System]

Read More

Nov 16 2012

The facts on the ground in Arizona

Don’t trust, and don’t verify“, would seem to be the motto of authorities in Arizona when it comes to demands for documents and “proof” of citizenship and status — if your skin is brown.

Arizona’s SB1070 requires police, in certain circumstances, to “attempt” to determine your immigration status. But that obligation on the police does not create any obligation on individuals. In its initial decision on SB1070, the Supreme Court made clear that this provision of the law cannot Constitutionally be used as the basis to detain people without some other lawful basis.

Actions on the ground in Arizona, however, suggest that in practice the burden of proof is being placed on (brown-skinned) Arizonans to prove that they are “not illegal”, on pain of prolonged detention on the basis of mere suspicion (and regardless of the weight of the actual evidence).

The Phoenix New Times has been following the case of Briseira Torres.  She was born (at her mother’s home, which the Department of State seems to find inherently suspicious) in Arizona, and her birth was registered (albeit late, as is common for home births) with the Arizona Office of Vital Records.

One doesn’t have to be registered with the government to be born, or to be a US citizen. But that didn’t stand in the way of Arizona and US authorities.  When Torres went to the Federal Building to apply for a passport for her daughter, after submitting a copy of her own birth certificate as evidence of her daughter’s US citizenship by birth, the State Department employees at the passport office called in Arizona state law enforcement officers to help interrogate Ms. Torres.

Eventually, on the theory that the original registration of Ms. Torres’ home birth had been falsified, the Feds turned her over to state authorities, who had her indicted (withholding from the grand jury the state’s official record of her valid birth certificate, and falsely claiming to the grand jury that her birth registration had been “cancelled”)  for fraud.  She was jailed for 4 1/2 months, during which time she was separated from her child and lost her home and car because she couldn’t make the payments on them, before she got a lawyer and the state withdrew the charges.

Now, to try to retroactively justify their deprivation of Ms. Torres’ rights, state officials have initiated a newly-created administrative process to revoke the registration of her birth.

In other words, the state of Arizona wants to “un-birth” Ms. Torres — at age 31.

We’re glad Ms. Torres has a lawyer, and we hope she collects substantial damages from both Arizona state and county officials and the State Department “special agent” who initially detained her, called in the state cops, and eventually turned her over to their custody.

This incident began with Ms. Torres being called in to answer questions about her passport application for her daughter. The role of the Passport Office and other State Department employees shows exactly why we are so concerned about the State Department’s proposed new questionnaire for passport applicants.

Government “un-birthing” of citizens isn’t the only strange thing going on in Arizona, unfortunately.

At the Deconcini border crossing between the central business districts of Nogales, Arizona, and Nogales, Sonora, US Customs and Border protection is requiring some “trusted travelers” to submit to interrogation by allegedly lie-detecting robots developed (with DHS grant money, we presume) by the National Center for Border Security and Immigration at the University of Arizona.

If the robot thinks you are lying, “a more through interview would follow”, according to news reports.

But Ms. Torres’ example shows that if a human Fed in Arizona thinks you are lying about your papers, they will detain you and turn you over to the state of Arizona to be locked up without bail for months, without bothering even to look at your actual papers (not that you have to have any “papers” in the first place to be born or have rights).

In that light, we hope courts will look skeptically at the legality of prolonging the detention of a border crosser based on the statement of a semi-anthropomorphic animated robot that, “I think you are lying.”

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an  unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian  government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data.  Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing  whatever its oracle decrees.  In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it.  Just remember, as you study his presentation, that:

  1. “Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
  2. Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government.  Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.
Nov 06 2012

DHS Scrooge says U.S. citizen can’t come home for the holidays to see his ailing mother

In the latest episode in the increasingly bizarre but all too real saga of standardless secret administrative no-fly orders from the DHS to airlines, prohibiting the transportation back to their home country of US citizens,  Oklahoma native Saadiq Long is being prevented from returning home to the US to spend the holiday season with his terminally ill mother.

Long is a US citizen and a veteran of the US Air Force, never charged with any crime in the US or any other country, who has been living and working as an English teacher in Qatar for the last several years.  He’s also a convert to Islam, which shouldn’t be relevant but probably is.

When he learned of his mother’s illness back home in Oklahoma, he made reservations and bought tickets from KLM for flights from Qatar to the US for what might be a last visit with his mother.

Less than 24 hours before his scheduled departure from Qatar in May, KLM told Mr. Long that the airline (and all others serving the US) had been forbidden from allowing him to board any flight to the US.

Mr. Long has been trying ever since to find out why the government of his country has forbidden all airlines from transporting him, or to find a way to get those orders rescinded. But to date, the DHS has maintained its position that it will neither confirm nor deny whether it has issued any no-fly orders with respect to any specific person, much less the basis (if any) for such orders.

KLM explicitly informed Mr. Long that it had received a no-fly order from the DHS. So in theory, KLM would be required by Dutch data protection law to disclose that order to Mr. Long on request. That wouldn’t tell Mr. Long why he had been banned form returning to his country (the DHS probably didn’t share the reasons for its order with the airline), but would prevent the DHS from claiming in court that whether Mr. Long has been prohibited form flying is a state secret.

Given KLM’s poor track record when individuals have requested KLM’s records of its communications with governments, and the Dutch data protection authority’s poor track record of enforcing the law, it’s hard to predict whether KLM would comply with a request from Mr. Long for all orders or communications pertaining to him between KLM and the US government.

Mr. Long is being assisted by the Council on American-Islamic Relations (CAIR), which has led the struggle for judicial review of no-fly orders. CAIR staff attorney Gadeir Abbas, the leading advocate for US citizens exiled by no-fly orders, told Glenn Greenwald that, “Every few weeks I hear of another Muslim citizen who cannot return to the country of which he is a citizen.”

[Update: Mr. Long was again denied boarding by KLM in Qatar on November 8, 2012.]

Nov 01 2012

TSA wants airlines to “share” frequent flyer records

The DHS already has root access to airlines’ computerized reservation systems to “pull” passenger name records (PNRs), even for flights that don’t touch the US.

Airlines serving or even merely overflying the US are required to “push” Advance Passenger Information to CBP before each international flight, and Secure Flight Passenger Data to the TSA before each domestic flight, and receive individualized permission from DHS before issuing each boarding pass.

But that’s not enough for the TSA.  In a Bloomberg news story that appears to have been planted by the TSA as a trial balloon, the TSA suggests aggregating frequent flyer and identity data, across airlines, for storage by a private contractor and use by the TSA:

PreCheck’s structure makes it difficult to clear passengers on more than one airline, said Douglas Hofsass, the TSA’s assistant administrator for the office of risk-based security….

Some airlines are reluctant to share customer information with competitors, Hofsass said. They’ve indicated they’re willing to work with TSA, he said….

“Technically, we don’t have the ability right now, based on the way the eligibility requirements are transmitted to the individual carrier, the way those individuals opt in and the way those records come into us, to validate those individuals,” Hofsass said.

“We don’t have the ability to cascade that to other carriers when those individuals make reservations,” he said. “It doesn’t mean we don’t have an idea as to how we might solve that.”

The agency needs to turn to a private-industry partner who can … create a database of PreCheck fliers, said U.S. Representative Mike Rogers, who oversees the agency through his Transportation Security subcommittee.

“PreCheck” is the latest incarnation of the TSA’s “registered traveler” (“more surveilled and maybe less-mistrusted traveler”) program, currently open only to those members of airline frequent flyer programs invited to apply based on some secret scoring, according to TSA algorithms, of their frequent flyer profiles.

Frequent flyer data is already included in PNR data pushed to CBP for all international flights, but isn’t included in Secure Flight Passenger Data provided by airlines to TSA for domestic flights.  So if you aren’t known to have traveled abroad, or if you use a passport for international travel and some other ID (or no ID) for domestic flights so your domestic and international travel histories are harder to match, the TSA might not yet have a comprehensive dossier of everything you’ve done that’s linked to your frequent flyer account(s).

To the TSA, any incompleteness in the coverage of its travel panopticon is obviously a security (read: surveillance) loophole that needs to be closed.

Under US law, frequent flyer records are the property of airlines, not travelers, and the airlines are free to “share” them with each other, governments, or other third parties without customer notice or consent.

So there’s no legal barrier to the creation of such a master database of frequent traveler records.

However, if the government maintained a copy of the database, it would be subject to the requirements of the Privacy Act.  So outsourcing hosting of the database to a private aggregator (most likely one of the existing computerized reservation systems or other travel data aggregators and intermediaries) would be the architecture that maximizes the government’s easy access to the data while minimizing legal accountability.