Jun 18 2013

Our comments on the TSA’s virtual strip-search machines

Today the Identity Project filed our comments on the TSA’s proposed rules to require travelers to submit to “screening” using virtual strip-search machines (“Advanced Imaging Technology” in TSA-speak.

You have until next Monday, June 24, 2013 to submit your own comments.

Here’s the introductory summary of our comments:

Regulations of the Transportation Security Administration (TSA) at 49 CFR § 1540.107 currently require would-be air travelers to “submit to screening”, but neither define nor limit the meaning of “submit” or “screening”. Under this NPRM, the TSA proposes to add a new paragraph (d) to § 1540.107, which would authorize the TSA to include “screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened” as part of the “screening” to which would-be passengers must “submit” (those terms remaining otherwise undefined and unlimited).

The proposed rule would require travelers to submit to virtual strip-searches and/or manual groping of their genitals, as a condition of the exercise of their right to travel by air by common carrier.

The Identity Project objects to the proposed rule on the following grounds:

1. The TSA fails to recognize that travel by air by common carrier is a right, not a privilege to be granted or denied by the government or subjected to arbitrary or unjustified conditions. As a condition on the exercise of a right, a requirement to submit to searches or other aspects of “screening” is subject to strict scrutiny. The burden is on the TSA to show that the current and proposed requirements will actually be effective for a permissible purpose within the jurisdiction of the TSA, and that they are the least restrictive alternative that will serve that purpose. The TSA has not attempted to asses the proposed rule according to this standard, and has not met this burden.

2. The TSA errs in claiming that, “Individuals … are not included in the definition of a small entity” in the Regulatory Flexibility Act (RFA). Nothing in the statutory definition of “small entities” excludes individuals, and in fact many individual travelers affected by the proposed rule are “small entities” as that term is used in the RFA. The TSA must publish and allow comment on a new RFA analysis that takes into consideration the impact of the proposed rule on individuals in their capacity as “small entities”. If the TSA fails to do so, OMB must disapprove the proposed rule, pursuant to the RFA.

3. In the absence of any definitions of “submit” or “screening”, the current and proposed rules are unconstitutionally vague and overbroad. Travelers subject to the rules can’t tell what is prohibited or what is required as a condition of travel by air by common carrier, or which actions at TSA checkpoints are and aren’t subject to TSA civil penalties. The rules reach a significant amount of protected conduct by denying the right to travel to a significant number of individuals who pose no threat to aviation.

The proposed rule should be withdrawn, and the practices it would purport to authorize should be suspended. If the proposed rule is not withdrawn by the TSA, it should be rejected by the Office of Management and Budget (OMB) for failure to include the analysis required by the RFA. The TSA should open a notice-and-comment rulemaking to define “submit” and “screening”, as those terms are used in 49 USC § 44901, 49 CFR § 1540.107, and 49 CFR § 1540.109, with sufficient specificity to enable prospective travelers to know what actions are required and what actions are proscribed.

You can see all 5,000+ comments submitted to the TSA here.

Jun 15 2013

4th Circuit Court of Appeals upholds right to judicial review of no-fly order

In an important victory for judicial review of no-fly orders, the 4th Circuit Court of Appeals has rejected the government’s motion to dismiss the case brought by Gulet Mohamed, overturned the transfer of the case from the District (trial) Court to the Court of Appeals, and sent the case back to the District Court for consideration of the merits of Mr. Mohamed’s complaint.

Gulet Mohamed is truly the poster child for what’s wrong with secret administrative no-fly decision-making. A native-born U.S. citizen of Somali-American ancestry, Mr. Mohamed was placed on  the U.S. “no-fly” list as a teenager, while visiting relatives in Kuwait, as a way to pressure him to become an FBI informer as the only way to get “permission” from the U.S. government to return home to the USA.

When his visa expired, Mr. Mohamed was imprisoned for violation of Kuwaiti immigration law, then tortured by his Kuwaiti captors — at the behest, he plausibly alleges, of the U.S. government.

Kuwait eventually tried to deport Mr. Mohamed back to the U.S., but the U.S. government refused to let him on a flight home, and he was taken back to his cell.

Finally Mr. Mohamed smuggled out a message to his family, and they obtained a lawyer for him in the U.S. He was allowed to return home the day before the U.S. government had been ordered to show cause justifying the denial of Mr. Mohamed’s right of return — after which the government tried to get his case dismissed as moot.

But Mr. Mohamed remains on the no-fly list, so far as he knows (although for unknown reasons). He has continued to pursue his lawsuit against those responsible for his detention and torture and the denial of his right to travel.

As in other cases, the U.S. government has sought to avoid judicial review of the basis for no-fly orders.

The U.S. government has argued that trial courts cannot hear these cases, and that courts of appeals are limited to a review of the TSA’s “administrative record”.  But the TSA doesn’t decide what names to place on the no-fly list. The FBI-controlled Terrorist Screening Center (TSC) makes those decisions, based on “nominations” from itself and various other agencies. A review of the TSA’s “administrative record” would be limited to confirming that the TSA received a no-fly listing from the FBI (as part of the secret Terrorist Screening Database, TSDB), and prevented the person named in that listing from boarding a flight. Nothing in the TSA’s records identified the basis for the TSC’s no-fly designation.

In an unpublished order issued May 28, 2013,  the 4th Circuit Court of Appeals became the second Court of Appeals (following the 9th Circuit’s rulings in the case of Rahinah Ibrahim) to reject the government’s theory. The 4th Circuit ruled that there  was neither sufficient provision for administrative review by the TSA of the no-fly order against Mr. Mohamed, nor a clear indication that Congress intended to preclude District Court trials in cases like this.

The next step, we expect, will be for the government to invoke the “state secrets” doctrine to try to get the case dismissed. But as in Dr. Ibrahim’s case, the fact of Mr. Mohamed having been denied the right to travel and to return to the U.S. can be established without the need to introduce any evidence obtained from the U.S. government.

We look forward to someday seeing a trial on the merits of a U.S. government no-fly order.

Jun 14 2013

How many people fly without ID? How many are denied the right to fly?

Buried in the TSA’s response last month to our FOIA request for information about its ID verification forms a and procedures was a fragmentary report on how many people try to fly without ID, and what happens to them.

An e-mail message discussing the changes made in 2008 to the TSA’s (secret) procedures for flying without ID — the last time TSA Form 415 for air travelers without ID was revised — included a TSA Operation Center (TSOC) “ID Verification Report” for the 15-hour period from 5 p.m. on June 21, 2008, to 8 a.m. on June 22.

On what was described as a “quiet” night, 74 people (nationwide, apparently) tried to fly without ID and were subjected to the TSA “ID verification” procedures between 5 p.m. and 5 a.m., and an additional 45 between 5 and 8 a.m. the next morning, for a total of 119. This didn’t include what is presumably the busiest shift, from 8 a.m. to 5 p.m., but what still suggest that tens of thousands of people try to fly without ID each year.

It appears that most of these people were allowed to fly without ID. Of the total of 119, only 8 were reported as “denials” (presumably meaning that they were identified, but deemed on the basis of that identification to be subject to no-fly orders), while 23 were reported a “not verified”. It’s unclear if those “not verified” were denied travel,  or were allowed to travel despite not being “verified”.

Now that we know that records are being kept of how many people try to fly without ID, and of what happens to them, we’ve filed a follow-up FOIA request for all “TSOC ID Verification Reports” as well as any records of how incidents and outcomes are categorized for reporting purposes.