Mar 30 2013

“Travel Surveillance, Traveler Intrusion” at the Cato Institute

Edward Hasbrouck of the Identity Project will be speaking at a free, public forum on Travel Surveillance, Traveler Intrusion from noon-1 p.m. EDT next Tuesday, 2 April 2013, at the Cato Institute in Washington DC (with a live webcast):

Travel Surveillance, Traveler Intrusion

[photo by kind permission of Jeramie D. Scott]

Video from the Cato Institute (recommended)

Video from C-SPAN

C-SPAN video on Youtube

Audio podcast (listen while viewing the slides)

Slides and notes (PDF)

Featuring Edward Hasbrouck, Journalist, Consumer Advocate, Travel Expert, and Consultant, The Identity Project (PapersPlease.org), Author of the book and blog, The Practical Nomad; and Ginger McCall, Director, Open Government Program, Electronic Privacy Information Center; moderated by Jim Harper, Director of Information Policy Studies, Cato Institute.

The United States government practices surprisingly comprehensive surveillance of air travel, amassing data about the comings and goings of all Americans who fly. Travel expert Edward Hasbrouck has been researching travel surveillance for many years. His findings reveal a stunning level of government surveillance, control of the traveler, and intrusion into commercial travel IT systems.

By April 2, the Transportation Security Administration will have begun a public comment process on its policy of putting travelers through imaging machines that can see under their clothes. Ginger McCall of the Electronic Privacy Information Center has been handling the litigation that prompted the D.C. Circuit Court of Appeals ruling requiring it to do so, and she will assess the proposed regulation and her renewed efforts to bring the TSA within the law.

If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live.

The Cato Institute asks that you pre-register if you plan to attend in person, but that’s just so they have an estimate of the expected attendance.

Hasbrouck will be presenting examples of what he found in his files when he sued the DHS for its records of his travels, what other travelers have found in theirs, and how the DHS obtains and uses this information to track us and to control who is allowed to travel.

As part of the same program, Ginger McCall of EPIC will be discussing the TSA’s proposed “rules” to require all air travelers to submit to virtual strip-searches. You have 90 days, until 24 June 2013, to tell them what you think of their proposal. (On the form to submit comments to the TSA, note that all of the fields except your comment itself are optional.) You can find some ideas for what to say in our previous article about the rulemaking.

There will be a live webcast, for those who aren’t in DC.

If you’d like to follow along, you can download the slides from Hasbrouck’s presentation as a PDF file.

[Update: C-SPAN broadcast the event live. Streaming video is available from the Cato Institute event archives (recommended), the C-SPAN archives, or on Youtube. The C-SPAN and Youtube camera angles don’t show the slides which illustrate Hasbrouck’s talk, so we recommend watching the Cato version and/or downloading the slides to follow along with the talk on C-SPAN. If you want to find out what’s in the file about you in the DHS “Automated Targeting System”, you can use the forms here. We would welcome a chance to review the government’s response, if you get one, and help you interpret it.]

Mar 26 2013

TSA proposes new “rules” for virtual strip-search machines

More than 18 months ago, a federal Court of Appeals ordered the TSA to provide formal notice and an opportunity for public comment on its “rules” for when travelers are required to submit to virtual strip-searches by machines that display images of our bodies as though naked.

Today, after seemingly endless foot-dragging that left it unclear if the TSA would ever comply with the court’s order (or would eventually be found in contempt of court for failing to do so), the TSA published its proposed rule in the Federal Register.

You have until June 24, 2013 to tell the TSA what you think of its proposal.

As Jim Harper of the Cato Institute points out, the proposed “rule” contains none of the (inadequate) limitations on the TSA’s virtual strip-search authority which were described in the TSA’s arguments to the Court of Appeals. (We’ll be talking with Jim and Ginger McCall of EPIC about this and related issues of “Travel Surveillance, Traveler Intrusion” at this lunchtime event at Cato in Washington next Tuesday, April 2nd.)

Rather than proposing a rule pursuant to which travelers would be entitled to opt out of the naked imaging (at the price of more intrusive groping of their genitals) , the TSA has proposed a rule in which, in addition to whatever else the TSA secretly defines as constituting “screening” in any particular case, all travelers are required, as a condition of travel by common carrier, to submit to virtual strip-searches whenever the TSA tells them to do so.

But that’s not the only glaring defect in the TSA’s Notice of Proposed Rulemaking. Read More

Mar 25 2013

TSA takes a (small) step in the right direction

Earlier this month, the TSA announced that — although of course there are still no rules for what is and isn’t permitted at TSA checkpoints, travelers can expect that beginning April 25th we will be “permitted” (not entitled, “permitted”, since of course the exercise of our right to travel is at the TSA’s discretion) to bring tiny pocket knives and certain previously-prohibited sporting equipment onto commercial airplanes.

We could criticize the TSA’s press release for not going far enough, and for its arbitrariness. (We’d like to say that it’s a “policy” change, but we can’t, since there are no publicly-disclosed TSA checkpoint polices.)  It’s pretty obvious that it doesn’t reflect any rational risk assessment. Why allow golf clubs, hockey sticks, and pool cues, but prohibit cricket bats?

But lest it be said that we never give credit to the TSA when credit is due: We congratulate the TSA for taking a small step toward saner “screening” practices.

Unfortunately, the TSA’s announcement has prompted a hysterical reaction from the opposite direction, with bills being introduced in both houses of Congress to direct the TSA to seize even the tiniest blades, and to protect us against the hockey-stick-armed terrorist hordes.

Ironically, the TSA defends itself with an argument that could equally be used against virtually all of the TSA’s continuing restrictions on carry-on items:

We have yet to see a single incident where a passenger was injured using a knitting needle or scissors. Small knives have been permitted in Europe for some time now, with no incidents that we are aware of. In fact, the GAO published a report that said there had been zero security incidents where these items had been used aboard an aircraft.

Passengers are allowed to bring bottles of water and many other items prohibited by the TSA onto flights in Europe and the rest of the world. We are aware of no incident in which anyone has tried to blow up or highjack an airliner using a bottle of water as a weapon. So if this is the TSA’s criteria, what is the rationale for the list of items that are still prohibited in carry-on luggage?

The fact is that searches at TSA checkpoints, like most other “administrative” searches, are designed as security theater — to make us feel safer rather than to make us be safer — and for a variety of other law enforcement purposes (mainly seizure of prohibited substances). Not on the basis of aviation security.

Would-be terrorists would have a hard time breaking through reinforced  cockpit doors. Those with adequate cutting tools would probably be subdued (and possibly lynched) by passengers and flight attendants before they could do so. These, and not TSA checkpoints, are the real defenses against the bogeyman of “another 9/11”.

Even the prohibition on firearms on airline flights has more to do with gun control in general than with anything specific to aviation security.  The TSA boasts that it finds loaded guns in carry-on bags every day. Does that suggest that every gun-toting traveler is a terrorist? Or that travelers have been flying with firearms every day for decades, almost entirely without incident?  It’s hard to see how a gun poses more of  a threat on an airliner than, say, in a crowd (or in a car) on a city street, where it’s perfectly legal.

We salute the saner voices among the secret decision-makers who determine the TSA’s secret non-rules. We urge them to stand firm in defense of our right to keep our sewing scissors and pencil-sharpening knives in our carry-on bags, and to resist the pressure to pander further to Congressional fears.

Mar 24 2013

U.N. Human Rights Committee considers U.S. violations of freedom of movement

As part of a delegation from the U.S. Human Rights Network, we spent this past week in Geneva meeting with members of the U.N. Human Rights Committee in preparation for the Committee’s review of U.S. implementation of the International Covenant on Civil and Political Rights (ICCPR).

The U.S. ratified the ICCPR in 1992. In accordance with the terms of the ICCPR, the Human Rights Committee reviews each party to the treaty every five years. At its current session, the Human Rights Committee is adopting a short list of issues to be addressed in its review of the U.S.

The Human Rights Committee received dozens of submissions from nongovernmental human rights organizations, including several five from the Identity Project, recommending issues for inclusion in the Committee’s review of the U.S.

The list of issues and questions for the U.S. adopted this by the Human Rights Committee in closed session, will be made public sometime in April after it is translated into the six official working languages of the U.N.

Far more issues were put before the Committee than it will be able to include on its short list. But from the private meetings we had this week with members of the Committee, we strongly suspect that list of issues about which the U.S. will be questioned when it appears before the Human Rights Committee for public questioning this October will include issues related to freedom of movement and travel.

Despite U.S. law that explicitly requires the TSA to respect “the pubic right of freedom of transit” by air, and Constitutional principles of freedom of movement, the DHS and other U.S. government agencies have been unwilling to include the right to travel in the terms of reference according to which travel “security” measures are evaluated.   We look forward to seeing how official representatives of the U.S. government will respond to the questions about this issue that we expect will be asked by the Human Rights Committee.

Mar 17 2013

Contest: Educate people about their rights at checkpoints & win an HD video camera

Our friends at CheckpointUSA.org, in conjunction with CopBlock.org and others, are holding a contest for the best video or other educational content that “demystifies” roadblocks and your rights when stopped.

Details are here. The contest is open through midnight EST, April 8, 2013, and the entry that “does the best job educating others about checkpoints in general and your rights in particular while seized at one” gets a high-definition digital video camera, complete with dashboard mounting kit and other mounting options.

Thanks to CheckpointUSA.org, we’ve been trying out one of these cameras, and they are perfect for recording what happens at checkpoints and other encounters with illegitimate authority.

For inspiration, check out this compilation of videos of what happens when people assert their rights at checkpoints, as discussed recently in this interview on KPBS in San Diego, where almost everyone has to pass through “border control” checkpoints regularly, even if they aren’t crossing the border.

It’s sad that always-on dashboard video recorders, which have become de rigueur for Russian drivers for protection against corrupt police, have now become necessary in the USA as well. But as Terri Bressi of CheckpointUSA.org — one of the judges in the current contest, and the hero of his own saga of encounters with police checkpoints — says:

One of the biggest lessons I learned during my ten year legal battle with …  police and the federal government regarding an illegal general law enforcement checkpoint encounter … was that government agents and police officers will readily lie under oath to obfuscate facts detrimental to their position and make up other facts to support it. What also became clear as I worked my way through the maze of the ‘justice system’ was that too many judges are more than willing to take the word of a police officer or other government agent over that of a non-affiliated member of the public, even when eyewitness testimony & other evidence directly contradicts the testimony of a government agent.

Since I had no video of the actual encounter that took place at that checkpoint in December of 2002, it was quite easy for the court system to bury the evidence that was most damning to the police & undermine my attempts at bringing accountability to the individuals & agencies directly involved. Realizing the importance that video would have had during legal proceedings, I quickly rectified my mistake & purchased my first digital camera in 2003. Since then, I’ve gradually upgraded and expanded my recording capability while traveling along public highways to better protect myself against the arbitrary aggression of government agents of all stripes.
Now that my ten year legal journey is finally over regarding that initial checkpoint experience, I’ve been looking for a way to assist others to legally protect themselves against the arbitrary & aggressive encroachment of the state into the daily lives of peaceful individuals. To that end, I’ve really appreciated the exposure Carlos Miller has given to the issue of recording public servants in the public sphere on his website, Photography Is Not A Crime, along with Judge Napolitano’s declaration from a few years ago that The Camera Is The New Gun….

We’ll post a link to the winning entry as soon as the contest results are announced.

Mar 09 2013

Citizen Long takes the long way home

When last we wrote about Saadiq Long — an Oklahoma native, U.S. citizen, and Air Force veteran — he had been sentenced by the U.S. government, without judge or jury, to life without air travel.

First he was prevented from returning to the U.S. to visit his ailing mother.

Then he was prevented from returning to his wife, child, and job in Qatar.

Why? He doesn’t know, and the U.S. government won’t say.  Airlines refused to allow him to check in for any flights to, from, within, or overflying the U.S., so he infers that the DHS has put him on a “no-fly” lost. But as usual, the U.S. government refuses to confirm or deny any such listing or no-fly order, much less to explain the basis (if any) for it.

Now Mr. Long has made it back to Qatar from Oklahoma, the long way. According to The Oklahomn:

During a telephone interview Friday, Saadiq Long … said he took a bus from Oklahoma City to Mexico, then boarded flights in three different countries to return to Qatar….

“I didn’t have any other choice after the FBI refused to take me off the ‘no-fly’ list,” Long said.

“I have my family here. I have a job here. I had to get back.”

Mr. Long wouldn’t have been able to take a direct flight from Mexico to Europe. Those flights pass through U.S. airspace over Florida. Flights between Mexico and Barcelona and (repeatedly) Paris, for example, have been turned back or diverted when the U.S. found out that they were unwittingly carrying passengers on the U.S. no-fly list.

Most likely Mr. Long had to fly from Mexico to someplace much further southeast such as Buenos Aires, Sao Paulo, or Rio de Janiero; from there to Europe or Dubai; and form there to Qatar.  Or maybe he got really lucky, and got on a Qatar Airways direct flight from Sao Paulo.  But it’s still likely to have taken him days of extra travel time and thousands of dollars extra in airfare, compared to, say, a nonstop flight from Houston to Doha..

Mr. Long’s case is among the violations of the right to freedom of movement which we will be raising with the U.N. Human Rights Committee later this month in Geneva, in preparation for the Committee’s periodic review later this year of U.S. implementation of the International Covenant on Civil and Political Rights.

Mar 02 2013

Travel blogger kicked off plane by pilot for taking photo of… seatback?

Frequent flyer and travel blogger Matthew Klint was recently kicked off a United Airlines flight from Newark to Istanbul after a flight attendant saw him take a picture of the back of the seat in front of him, and reported him to the pilot. The pilot told Mr. Klint, “You are not flying on this flight…. We’ll call the police if we have to.”

Perhaps unfortunately, Mr. Klint didn’t insist that the police be called, or call them himself, leaving him dealing with United Airlines’ public relations department rather than with legal authorities.

As a frequent flyer and blogger, Mr. Klint at least able to get  the airline to talk to him, after the fact. But what can an ordinary traveler do in such a situation?

We talked about this last year in articles on Does an airline pilot have the right to refuse to let you fly? and  What can you do if an airline pilot won’t let you fly? But it bears repeating:

Under Federal law, as common carriers, airlines must transport all would-be passengers willing to pay the applicable fare in their published tariff and comply with their published conditions of carriage. Not to do so is a serious violation of their duties.

If an airline refuses to allow you to fly, for any reason other than a violation of published laws, regulations, or conditions of carriage, you can and should make a formal complaint against the airline to the Department of Transportation.

A pilot can order you off the plane only if the pilot genuinely believes that you pose a hazard to the safe operation of the flight, in which case the pilot is required to log and report this safety incident.

If a pilot orders you off the flight for some other reason, or without logging and reporting his or her action as a safety incident, you can and should report the pilot to the FAA.

We’ve offered our support to Mr. Klint, should he wish to pursue a legal challenge to the actions of the airline and pilot against him.

Mar 01 2013

Will “E-Verify” become the new national ID?

The House Homeland Security Subcommittee on Immigration and Border Security held a hearing this week on How E-Verify Works and How it Benefits American Employers and Workers.

Despite the boosterish title, the Subcommittee still heard testimony and received written statements that “E-Verify” doesn’t work, doesn’t benefit American employers or workers, and costs billions of dollars a year. But what’s even worse about “E-Verify”  is the likelihood that what is now an identity “verification” system will be expanded to include a mandatory national biometric identity card and permission-for-employment system, with a default of “No”.

According to the Wall Street Journal:

Key senators are exploring an immigration bill that would force every U.S. worker—citizen or not—to carry a high-tech identity card that could use fingerprints or other personal markers to prove a person’s legal eligibility to work.

The idea, signaled only in vaguely worded language from senators crafting a bipartisan immigration bill, has privacy advocates and others concerned that the law would create a national identity card that, in time, could track Americans at airports, hospitals and through other facets of their lives….

The Senate group, in a statement guiding their work on a new law, called for workers to prove their legal status and identities through “non-forgeable electronic means.” Senate aides said the language was intentionally broad because of the sensitivity of the issue. Mr. Graham [Sen. Lindsey Graham, R-SC], in an interview, said that in his mind the language refers to a requirement for biometric ID cards.

How did the U.S. come to this?

The slippery slope began in 1986, with a law effectively repealing the right to work and shifting the burden of proof of legal eligibility for employment onto would-be workers. Since then, all employees have been required to provide their employers with evidence either of citizenship or immigration status entitling them to paid employment in the U.S. In effect, this law created a (rebuttable) legal presumption of non-entitlement to employment, giving new literal meaning to the slogan, “We are all illegal”.

The next step was E-Verify, “an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.”

E-Verify continued the presumption of illegality, and raised the burden of proof even higher: No evidence of identity, citizenship, immigration status, or eligibility for employment is deemed acceptable or sufficient unless it corresponds to records in the same error-riddled government databases that routinely categorize live people as dead.

Extending E-Verify to all employees would make employment a privilege contingent on Since not being listed correctly in those databases typically leads to denial of other government entitlements, “safety-net” benefits, and even access to bank accounts, failing an “E-Verify” check can be a sentence to starvation, not just unemployment, or to existence on the sufferance of family, friends, or private charity.

Adding a biometric “worker ID card” would add much to the cost, but little to the benefits (if any) of the system, since undocumented workers would simply obtain (valid) ID cards in stolen identities.  A study last year by Professors Jonathan Weinberg and Michael Froomkin for the Earl Warren Institute on Law & Social Policy at UC Berkeley School of Law found conservatively estimated the costs of such a scheme at more than $40 billion.

This isn’t the first time, and won’t be the last, that proponents of a national ID card have tried to sneak it through Congress in the guise of a measure related to immigration, terrorism, or something else. But as with the Social Security account number, which has become an all-purpose personal ID number, it’s unlikely that government credentials and identifiers will be limited to the purposes for which they are originally created.

Tell Congress you oppose any national ID card — no matter what the excuse.

/p