May 2014 – Papers, Please!

May 27 2014

Ars Technica asks DHS for PNR data, but gets none of it

Cyrus Farivar, Senior Business Editor at Ars Technica, reports today on the initial response to his Freedom Of Information Act (FOIA) request to US Customs and Border Protection (CBP) for CBP’s records about his travel history, including CBP’s copies of airline Passenger Name Records (PNRs).

Nine months after making his request (seven months longer than the maximum allowed by law), Mr. Farivar received 72 pages from the CBP TECS database including a log of his exits and entries from the US for the last 20 years, beginning in 1994 when he was 12 years old. He also received one report of a “secondary inspection”. He didn’t even remember the incident, but one of the CBP agents who questioned him recorded in his permanent CBP file that he was a journalist, in apparent violation of the prohibition in the Privacy Act on keeping records of how US citizens like Mr. Farivar exercise rights protected by the First Amendment.

Most significantly, despite explicitly requesting “any and all Passenger Name Records,” Mr. Farivar received none of them, even though CBP requires all airlines operating flights to, from, or through the airspace of the US to provide them to CBP, in their entirety including any information collected by airlines or their agents for their own business purposes, or entered into PNRs by other travel companies for their business purposes.

CBP’s response to Mr. Farivar was typical. As we’ve noted previously, two New York Times reporters are suing the DHS (the parent department of CBP) for failing to provide records about their travel which they requested, including PNR data. CBP Every response we have seen to a request to CBP for its travel history records about an individual has been obviously incomplete, in one or another way. We’ve seen other CBP secondary inspection records recording a traveler’s profession, what book a traveler was reading, and other information about activities protected by the First Amendment. See the examples in our reports here and here and this presentation.

Mr. Farivar has filed an administrative appeal, as should anyone who receives such a response. CBP claimed to have lost all record of one of our appeals, and of the person who signed the certified mail receipt for it. We had to sue before we received much of our PNR data. While our request was pending CBP retroactively exempted most of the data in its “Automated Targeting System” from the access requirements of the Privacy Act, but some PNR data should still be available, albeit partially redacted, in response to a FOIA request.

If you’d like to find out some of what records CBP has about you, we’ve provided forms here. Please let us know if you’d like help interpreting responses.

May 23 2014

TSA includes all air travelers in pre-crime profiling

Since late last year, we’ve gotten several inquires from readers wondering why they got a boarding pass marked “TSA Pre-Check” or were sent through the “Pre-Check” lane at a TSA checkpoint even though they hadn’t participated in the “TSA Pre-Check Application Program”.

The confusion stems from the TSA’s own misleading publicity about the program, which tries to persuade travelers “voluntarily” to provide additional information to be used by the TSA, in exchange for the hope of being subjected to slightly less intrusive searches at TSA checkpoints.

The logical (but wrong) inferences are that TSA Pre-Check is a members-only program, and that the Pre-Check lane at a TSA checkpoint is only for those travelers who have “applied” and been “accepted” into the program.

There are actually three distinct components to “TSA Pre-Check” as a pre-crime scheme:

“Voluntary” submission and collection of additional personal information about those travelers who chose to participate in the TSA Pre-Check Application Program.
Pre-crime profiling of all travelers and determination of a “risk assessment” score for each traveler, based on all information available to the TSA including the information, if any, submitted through the TSA Pre-Check Application Program.
Graduated treatment of travelers at TSA checkpoints, including searches of varied intrusiveness and potential total denial of passage, on the basis of these risk assessments and other secret algorithms.

Only the application component of the program — the submission of additional personal information by travelers to the TSA — is voluntary. The TSA obtains information from various sources about all travelers. All travelers are profiled. All travelers are assigned risk assessment (pre-crime) scores based on whatever information is available to the TSA. All travelers are subjected to a more or less intrusive search, and may or may not be allowed to pass through the checkpoint, on the basis of these scores and other secret factors.

Some travelers who are assigned sufficiently low risk assessment scores and meet other secret criteria are directed to the “Pre-Check” lane and subjected to slightly less intrusive searches, regardless of whether they participated in the TSA Pre-Check Application Program. The TSA calls this process “managed inclusion” in TSA Pre-Check.

A traveler whose risk assessment score is low enough, and who meets the other secret criteria (again, regardless of whether they participated in the TSA Pre-Check Application Program) can be selected for less intrusive search when she applies for a boarding pass. The TSA’s assignment of such a traveler to the Pre-Check lane is sent to the airline with, or as part of, the permission message or Boarding Pass Printing Result (BPPR) for that traveler sent to the airline by the TSA.

The TSA’s Pre-Check designation is printed on the boarding pass and included in a 2D bar code in IATA-standard format. “For flights originating in the USA, the digital signing of barcodes and the management of security certificates and key pairs is required by the TSA.”

The TSA also assigns some travelers to Pre-Check lanes on the spot at its checkpoints, using secret criteria and techniques including a randomizer app (like the magical Sorting Hat at Hogwarts) to determine how intrusively to search each person.

Through this process, the TSA chooses one of four basic levels of search and seizure for each traveler:

“TSA Pre-Check” (slightly less intrusive search)
“Standard screening” (including virtual strip-search or manual groping)
“Secondary screening” (more intrusive search including more thorough groping)
“No-fly” (denial of the right to travel by common carrier, possibly accompanied by other adverse actions)

There are refinements within these basic categories. In a document filed with the court following the trial of Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the no-fly list, the government disclosed that that each entry in the Terrorist Screening Database (which includes the no-fly list and the list of “selectees” for secondary screening) includes a “handling code” indicating what airline and checkpoint personnel should do if that person attempts to check in for a flight or pass though a TSA checkpoint.

We don’t know how many handling codes there are. But according to the government’s court filing:

[FBI Agent] Kelley designated Dr. Ibrahim as “handling code 3.” … [T]he majority of individuals in the TSDB were assigned handling codes 3 or 4…. Defendants state that the advantages of Handling Code 3 include allowing law enforcement officers to ask the individual probing but non-alerting questions, and searching the individual’s passport [REDACTED].”

Presumably, other handling codes include those that tell airline or checkpoint personnel to attempt to detain the traveler and contact local law enforcement agencies, the FBI, or the Terrorist Screening Center.

You can’t “opt out” of pre-crime profiling by choosing not to participate in the TSA Pre-Check Application Program. You will be profiled, on a per-flight basis, every time you try to fly.

“Anything you say may be used against you,” although the TSA doesn’t say this on the TSA Pre-Check application forms. If you participate in the Pre-Check Application Program, the additional information you provide will be added to the other inputs to the TSA’s black box. It might result in the TSA assigning you a lower risk score, and subjecting you to a less intrusive search. Or it might result in the TSA assigning you a higher score, and searching you more intrusively or preventing you from traveling by air.

May 22 2014

Albuquerque Journal investigates DHS “Mission Creep”

For many years after 9/11, the Department of Homeland Security got a “free pass” from most mainstream media. This has been especially true of the largely unreported negative impact of the DHS and the homeland security industrial complex at the state and local level.

We’re pleased to call the attention of our readers to one of the most notable exceptions to date: a recent series of articles by Michael Coleman, Washington correspondent for the Albuquerque Journal, on what the DHS and its contractors and state and local accomplices are actually doing “on the ground” in New Mexico:

Homeland Security a ‘runaway train’ (April 27, 2014)
NM footprint grows: ‘We’ve up-armored’ (April 28, 2014)
Feds help militarize police agencies (April 29, 2014)
Editorial: Homeland’s ‘mission creep’ works on 3 levels (May 4, 2014)
Follow-up: New DHS head says agency needs change (May 4, 2014)

We’ve been paying particular attention to events in Albuquerque, of course, as part of our work with Phil Mocek, whose lawsuit against DHS and Albuquerque police personnel is currently on appeal from the US District Court for the District of New Mexico to the Court of Appeals for the 10th Circuit.

But we suspect that what the Albuquerque Journal uncovered in New Mexico is a typical case study that could usefully be repeated in any other state or metropolitan area. We hope that national and other local journalists are inspired by this example to look into DHS activities throughout the country.

May 08 2014

Court to “review” TSA’s use of virtual strip-search machines

As we’ve noted previously, the US Court of Appeals for the 11th Circuit has scheduled oral arguments June 4th in Miami as part of its “review” of the TSA’s use of virtual strip-search machines. The Court may decide on the day to close portions of the argument to the public, but has overruled the latest objections of the TSA, which claimed that any oral argument would necessarily reveal “secrets” that would jeopardize aviation security.

Jonathan Corbett will be speaking for himself, pro se, before the Court of Appeals, as he has done throughout the tortured history of his lawsuit. Mr. Corbett has posted the latest round of appellate briefs in Corbett v. TSA, which provide a case study of how the TSA has sought to evade judicial review of its actions even when they involve extra-judicial restrictions on the fundamental rights of US citizens, residents, and visitors.

Corbett v. TSA charges that the TSA is engaging in unreasonable, suspicionless, warrantless, and unconstitutional searches of travelers. The case was originally filed in 2010 in U.S. District Court. But the TSA successfully argued that challenges to the Constitutionality of TSA orders, such as those requiring travelers to submit to either naked scanners (“advanced imaging technology”) or manual groping of their genitals (“enhanced pat-downs”), can only be heard by the Courts of Appeals. After the Supreme Court declined to review that jurisdictional finding, Mr. Corbett refiled his case in the Court of Appeals as a “petition for review” of the TSA’s (secret) orders.

The TSA’s claim is that the Court of Appeals can only review the “administrative record” submitted by the TSA itself. There is no trial, discovery, cross-examination, or adversary fact-finding process in the appellate court. The TSA can pick and choose what evidence to submit for review. Portions of that evidence have been shown to Mr. Corbett (on condition that he not discuss them publicly), but other portions have been submitted to the Court of Appeals ex parte and under seal. Mr. Corbett doesn’t know what they allege, and has no way to know what secret arguments or allegations he should be trying to rebut.

In a separate case, the Court of Appeals for the D.C. Circuit ruled that the TSA had violated the Administrative Procedure Act by failing to conduct a formal “rulemaking” concerning its use of virtual strip-search machines. Such a rulemaking must include notice of the proposed rules, an opportunity for the public to comment on them, and consideration of those public comments by the TSA before the rules are finalized.

Twenty months after being ordered to do so by D.C. Circuit Court, the TSA published proposed vitrtual strip-search “rules” and provided an opportunity for public comments. More than 5,000 people and organizations submitted comments, including the Identity Project. Almost all of the commenters objected to the TSA’s virtual strip-searches and groping of travelers.

More than a year after the close of the comment period, the TSA has yet to publish any analysis or response to these public comments, or any final “rules”. And although the TSA is required by the Administrative Procedure Act to consider these public comments as part of its rulemaking, the agency doesn’t appear to have submitted any of them to the 11th Circuit as part of the “administrative record” to be reviewed in Corbett v. TSA. This appears to be either an admission that the public comments have been ignored in the TSA’s decision-making, in flagrant violation of the APA, or an equally blatant attempt to deceive the 11th Circuit about the actual content of the record before the TSA.

May 07 2014

How do FBI agents decide who to put on the “no-fly” list?

Dr. Rahinah Ibrahim still doesn’t know why she was placed on the “no-fly” list, even after the trial of her lawsuit against the US government and US District Judge William Alsup’s finding that Dr. Ibrahim was denied the due process of law which was her right.

At trial, the government admitted that back in 2004, FBI agent Kevin Kelly — fresh off a stint on the FBI’s mosque-watching detail — mistakenly left blank a negative check-off box on an internal form and thereby “nominated” Dr. Ibrahim for the no-fly list. By admitting that this was a “mistake”, the government successfully evaded having the court reach or review either (a) the criteria (if any) for “no-fly” decisions or (b) the factual basis (if any) for any of the government’s other decisions or actions with respect to Dr. Ibrahim.

Judicial review of the factual basis and legal criteria for a “no-fly” order remains for future no-fly cases, with that of Gulet Mohamed likely to be the next to go to trial.

Contrary to some reports, Judge Alsup didn’t order the government to take Dr. Ibrahim’s name off the no-fly list or tell her why it put her on multiple other “watchlists” including the “selectee” list to which Agent Kelly intended to nominate her. Despite previous claims that government agencies and agents only put people on the “no-fly” list if they are able to articulate some reasonable basis for a suspicion of terrorism, we now know that there is a secret exception to this (non-binding) watchlisting criterion, pursuant to which Dr. Ibrahim and other non-suspects are also watchlisted.

Nor does Judge Alsup’s decision mean that Dr. Ibrahim is now free to travel. The US still won’t give her a visa to return to the US, on the basis of secret allegations that she “has engaged in terrorist activity” (contrary to the government’s admission and Judge Alsup’s finding to the contrary) and on the basis of a “guilt by family association” law and some other secret allegations that apparently relate to her husband.

Judge Alsup ordered the government to tell Dr. Ibrahim her status on the “no-fly” list, which it did. As of April 15, 2014, Dr. Ibrahim wasn’t on the “no-fly” list. And the government was ordered to correct the consequences of the one specific mistake it had admitted, FBI Agent Kelly’s failure to check the “not nominated for the no-fly list” box on the form.

But Judge Alsup’s decision leaves the government free to leave Dr. Ibrahim on any other “watchlists” (including those which function as de facto secondary no-fly lists), and/or put Dr. Ibrahim back on the “no-fly” list itself, at any time, for any reason or no reason, as long as those actions aren’t a direct result of Agent Kelly’s mistaken failure to check the right box on the nomination form nine years ago.

Visa denials aren’t normally subject to review by US courts. Neither Dr. Ibrahim’s placement on watchlists other than the no-fly list, nor the de facto banishment from the US of her US-citizen daughter, were raised in the complaint in this case, or addressed in Judge Alsup’s decision. Nor could they have been, since they only occurred or became known later.

Judge Alsup’s finding that the “no-fly” system lacks due process is a step forward, but far from a happy ending or one that redresses the grievances of Dr. Ibrahim or her family.

What we did learn from this case is that the real decision to prevent Dr. Ibrahim from traveling was made by a single FBI agent. No matter how obvious Agent Kelly’s “mistake” was, nobody reviewed or corrected it.

So in practice, “no-fly” decisions are made by individual FBI field agents. How do FBI agents use their power to decide who is and who isn’t given government permission to fly?

Since 9/11, one of the FBI’s highest priorities has been to recruit Islamic-American informers. Not surprisingly, FBI agents have repeatedly used or threatened to use their “no-fly” nomination authority to coerce American Muslims into becoming FBI informers.

In 2010, FBI agents tried to persuade US citizen Yonas Fikre to become an FBI informer. After Mr. Fikre refused to “cooperate” with the FBI agents, they put him on the “no-fly” list while he was visiting relatives overseas, consigning him to detention and torture in the UAE when his visa expired. In 2012, after being allowed to leave the UAE (but not to return home to the US, since he was still on the US “no-fly” list) Mr. Fikre applied for political asylum in Sweden. Shortly thereafter, in further retaliation (and/or to make sure he never tries to come home to the US, even if his asylum request is eventually denied), the US indicted Mr. Fikre for failing to report routine money transfers from the US to family members in the UAE and Sudan. Mr. Fikre is also pursuing a civil lawsuit in the US against those US government officials complicit in his no-fly listing, arrest, and torture.

Was this an isolated case? No. Last year, Muhammad Tanvir filed a lawsuit against the FBI and other government agencies and agents for putting him on the “no-fly” list in retaliation for declining to become an FBI informer. Mr. Tanvir is a Muslim, a permanent US resident (green-card holder), and a shopkeeper in New York City. On April 22nd, 2014, an amended compliant was filed in the case (Tanvir et al. v. Holder et al.). Three other Muslims from the tri-state area of New York, New Jersey, and Connecticut, one a US citizen and two others lawful permanent residents, have joined Mr. Tanvir in making similar claims.

These abuses are an inevitable result of having decisions about whether we are allowed to exercise our rights be made in secret at the discretion of law enforcement officers or administrative officials. Decisions on whether to restrict the exercise of rights, including the right to travel, should be made by judges, not cops, through existing legal procedures for the issuance of injunctions or temporary restraining orders.

Papers, Please!

The Identity Project