Apr 20 2016

EU mandates US-style pre-crime profiling of air travelers

The European Parliament has approved (press release, breakdown of votes, text as adopted) a directive requiring each “member state” (country) in the European Union to:

  • Establish or designate a new travel surveillance and control agency (“Passenger Information Unit”),
  • Require all airlines operating flights to or from places outside the EU to transmit complete copies of Passenger Name Records (PNRs) for all passengers to the government, and
  • Pass on any of this PNR data to any other EU member state on request.

The directive essentially commits the EU to join the US in “pre-crime” predictive mass surveillance and profiling of all air travelers.  Not surprisingly, the vote by the European Parliament was welcomed by leading US advocates for the globalization of pre-crime travel policing, including former DHS Assistant Secretary for Policy Stewart Baker (previously general counsel of the NSA)  and Deputy Assistant Secretary for Policy Paul Rosenzweig.  Baker and Rozenzweig were responsible for DHS negotiating strategy with the EU on the PNR issue during the time when their boss, DHS Secretary Michael Chertoff, was lying repeatedly to the European Parliament about the state of both US and international law relating to PNR data.

Meanwhile, as reported elsewhere, the commercial data architecture for handling PNR data remains fundamentally insecure.

What will happen next?

The proposed directive must still be approved by the European Council (the national governments of the member states), but that approval seems assured.

The EU directive is not “self-effectuating”. Each EU member state is required to “transpose” the directive into national law within two years.

The directive can be, and probably will be, challenged in the European Court of Justice as violating human rights recognized by EU and international law.  Implementing legislation can be, and probably will be in at least some countries, challenged in national courts as violating national Constitutional rights.

Now that the US has gotten the EU on board, the US is likely to increase its pressure on other countries and international organizations — primarily ICAO — to globalize the shift from targeted investigation and arrest of suspects to mass surveillance and predictive pre-crime profiling of travelers.

Airlines are likely to find it inconvenient and expensive to deal with 28 different EU Passenger Information Units with potentially different data content and format demands, in addition to the travel dataveillance regimes already in effect in the USA, Canada, Australia, and other countries. Airlines and the travel industry are thus likely to support US efforts to get ICAO to approve a global “security standard” requiring airlines to share PNR data in a standard format with all governments of countries served by their flights.

Apr 12 2016

What’s at stake in the EU PNR debate?


This week the European Parliament is scheduled to debate (Wednesday) and vote (Thursday) on  a resolution (PDF) to approve, with amendments, a proposed compromise on a directive “on the use of Passenger Name Record [PNR] data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.”

What does this mean, why does it matter, and why should this proposal be rejected?

To answer this question requires understanding (1) what PNRs are, (2) how PNRs and other travel data are already being used by European governments,  (3) how this would change if the proposed EU PNR directive is approved, and (4) why and how the provisions in the proposed directive that are supposed to protect individuals’ rights would be ineffective. Read More

Apr 06 2016

UN human rights office cites our concerns about migrants’ rights

The United Nations Office of the High Commissioner for Human Rights has released a new report prepared at the request of the UN Human Rights Council on the situation of migrants in transit and their human rights.  The report cites with approval our submission to the OHCHR on the ways that the right to freedom of movement is violated by governments and by airlines and other common carriers:

Physical barriers to the movement of migrants in transit have been accompanied by a wide range of restrictive measures to restrict or deny access to territory, asylum procedures and other screening and identification procedures by migrants in transit, as well as accelerated or even summary returns. OHCHR has provided guidance to States to ensure the accountability of private transport companies and other private actors that are implementing entry restriction measures. OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, guideline 4.6. [“Ensuring the accountability of private transport companies and other private actors that are involved in implementing entry restriction measures such as pre-departure screening and decisions on access to transportation, and providing effective remedies for those unlawfully denied transport. Developing and encouraging the adoption of human rights-based codes of conduct for private actors in this regard that set out expected standards of behaviour and the consequences of failure to adhere to those standards.”] See also the contribution to the present study from the Identity Project (http://papersplease.org).

Much of the discussion of migrants in transit, and many of the concerns of other contributors to the OHCHR study, relate to treatment in intermediate countries (such as while passing through Mexico en route from other countries to the US, or though Greece or Malta en route from Africa or Asia to other countries in Europe) and/or the extreme hazards of “irregular” modes of transportation used by those who are unable to travel by common carrier.

But refugees and asylum seekers would not need to pass through intermediate countries or rely on human smugglers and irregular and unsafe means of transport (overcrowded and unseaworthy small boats, treks on foot through the desert, etc.) if they were allowed to travel directly from their countries of origin to countries of potential refuge and asylum by air or on other licensed, inspected, and regulated common carriers (ferries, railroads, etc.). As we noted:

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

Most of the problems of migrants in transit are directly attributable to their illegal (but government-induced) exclusion from airlines and other common carriers, and could easily be avoided by eliminating government sanctions against common carriers that fulfill their duty to transport all would-be passengers (including refugees and asylum seekers), and respecting the human right to leave any country, including one’s own — by whatever route and means one chooses to leave, and irrespective of one’s identity (by definition, human rights are universal and independent of identity) or what, if any, documents issued by any government one may happen to possess (often none, in the case of legitimate asylum seekers who are often denied ID credentials by the governments they are seeking to flee).

“Carrier sanctions” are not a side issue to the migration crisis. They are the root cause of much of the suffering of migrants in transit, and a fundamental violation of the human rights to due process (carrier sanctions turn airline staff into unqualified de facto asylum judges of first and last resort) and freedom of movement.

In our submission to the OHCHR, we also noted that “screening” of passengers is a euphemism for “control” (passengers are “screened” to decide who will be allowed to travel, and who will not), and that algorithmic “screening” and permission-based travel control regimes are likely to result in systematic discrimination against refugees and asylum seekers:

Their nationality or place of origin in a conflict zone may cause them to be deemed “risky” according to the profiling and “risk scoring” algorithms. There may be limited, inconsistent, or nonexistent records pertaining to migrants in irregular situations in the databases used for profiling and risk scoring, and screening algorithms may equate uncertainty with risk. In order not to violate the right to freedom of movement, denial of transportation as part of “screening” or otherwise must be based on valid substantive grounds, and must be made by qualified officials through procedures that ensure due process and are subject to effective judicial review, taking into consideration the special difficulties that asylum seekers in countries where they are subject to persecution are likely to face in obtaining access to the courts of destination countries in which they want to seek asylum.

We are pleased to see the interest of UN human rights bodies in these issues. We urge national and international authorities considering carrier sanctions or traveler “screening” proposals to consider the impact of these schemes on human rights.

Apr 05 2016

Class action challenges Federal blacklists (“watchlists”)

The broadest and most fundamental legal challenge to the waging of the US “War on Terror” through standardless, secret, extra-judicial government blacklists was filed today in the Federal court for the district in Virginia where the National Counterterrorism Center (NCTC), Terrorist Screening Center (TSC), and Transportation Security Administration (TSA) are headquartered. (Video backgrounder and interviews with plaintiffs and attorneys; more video interviews; PACER links)

Both an individual complaint (Elhady et al. v. Piehota at al.) and a class action complaint (Baby Doe et al. v. Piehota et al.) were filed. Presumably, that is so that  that the individual complaint for injunctive and declaratory relief could go forward even if class action certification  is denied, while the class action lawsuit could go forward even if the named plaintiffs are delisted. (An earlier, similar lawsuit was dismissed as moot after the plaintiffs were told they were no longer on blacklists.) Almost all of the individual complaint is repeated in the class action complaint, so if you are going to read just one, read the class action complaint which includes additional plaintiffs and their stories.

The case takes its name from the first of the listed representatives of the class of people on US government blacklists (“watchlists”):

Plaintiff Baby Doe is a four year old toddler.

He was seven months old when his boarding pass was first stamped with the “SSSS” designation, indicating that he had been designated at a “known or suspected terrorist.”

While passing through airport security, he was subjected to extensive searches,  pat downs and chemical testing.

Every item in his mother’s baby bag was searched, including every one of his diapers.

Let’s get one thing straight from the start: as we’ve noted before, calling the “Terrorist Screening Database” (TSDB) and similar lists “watchlists” is at best misleading euphemism, and at worst Orwellian doublespeak.

The government uses the term “watchlist” to avoid the stigma deservedly associated with the label “blacklist”, with its connotations of McCarthyism and J. Edgar Hooverism. A “watchlist” suggests a list of people who are being watched, a component of a system of surveillance or investigation. “Watchlisting” might, one presumes, lead to eventual intervention such as the criminal prosecution or an application to a court for a restraining order or injunction. But inclusion on the TSDB occurs after, not before, a decision to intervene is (secretly) made, and the consequences of listing in the TSDB are not limited to mere passive surveillance or watching. Each listing on the TSDB includes a “handling code” which determines what happens to the people who are deemed (typically by automated pattern-matching algorithms) to match the listing.

As the litany of horror stories in the complaint in Baby Doe v. Piehota makes clear, and as we’ve seen in previous incidents, being “watchlisted” can trigger  consequences ranging from denial of transportation by common carriers to freezing of bank accounts, inability to rent an apartment, or inability to get or keep a job, even with a private non-governmental employer.  As when a jury must decide which of a progression of more and less serious offenses to convict a defendant of, without knowing what sentences are mandated for any of those offenses, it’s not clear whether the Federal administrative staff in the secret rooms reviewing the secret dossiers of derogatory information and deciding which secret lists to put people on, or which secret “action codes” to assign them, even know what the full panoply of collateral consequences of their decisions will be.

The US government doesn’t have to issue binding orders to convert “watchlisting” into de facto blacklisting. As the complaint filed today points out, “Defendants disseminated the the records pertaining to Plaintiffs from its terrorist watch list to foreign governments with the purpose and hope that those foreign governments will constrain the movement of the Plaintiffs in some manner.” We saw one of the ways that can work during the trial of Dr. Rahinah Ibrahim’s challenge to her placement on the no-fly list.  The US government successfully used a “POSSIBLE NO BOARD REQUEST” message to induce a foreign airline to refuse to transport Dr. Ibrahim’s daughter, a US citizen, even though the US claimed that she was merely on a “watchlist” and not on the no-fly list.

It’s time to to reject the government’s “watchlist” doublespeak, and start calling the TSDB what it is: a government blacklist.

The first of the named defendants, Christopher Piehota, is the Director of the Terrorist Screening Center (TSC), an inter-agency entity responsible for the TSDB and nominally under the control of the FBI.

Most of the previous attempts to challenge actions taken against individuals as a result of their being listed in the TSDB have foundered on an elaborate shell game of buck-passing between businesses and government agencies. Airlines that refuse to transport blacklisted people (or those with similar names) say that they are only following (secret) orders from the government. Normal judicial review of actions by the TSA and CBP, the components of the DHS that issue no-fly orders (or refuse to issue permission for boarding pass issuance — the default is now “No,” not “Yes”) is precluded by a special law, 49 U.S.C. § 46110. No trials are allowed, and appellate courts are allowed to review these decisions only on the basis of the “administrative record” created by the DHS itself, which will show only that the DHS action was based on “watchlist” status as determined by the TSC, and not the basis (if any) for the FBI’s “watchlisting” decision.

The only previous cases in which District Courts have been able to consider no-fly decisions, and the only trial in a no-fly lawsuit, have been when the FBI, and not just the DHS or DHS components, has been named as a defendant. Today’s cases follow in that line, challenging the blacklisting decisions by the FBI.

To head off lawsuits of exactly this sort, the government has recently shifted nominal final authority over no-fly decisions from the FBI to the TSA. In theory, the government claims, the TSA could now decline to issue a no-fly order, even after the FBI has put someone on the no-fly list. It’s unclear, however, whether this has ever happened, or in what circumstances or on what basis it might happen. The possibility seems remote: Even the FBI, in practice, acts as a rubber-stamp for the decisions of FBI and DHS agents who make effectively final blacklisting decisions when they “nominate” people for listing in the TSDB. According to today’s complaint, 98.96% of the 468,749 people “nominated” for Federal “watchlists” in 2013 were added to those lists by the TSC.

The plaintiffs in the lawsuits filed today are represented by Gadeir Abbas, Lena Masri, and co-counsel from the Council on American-Islamic Relations, who have been leading the legal campaign against US government blacklisting, harassment, and interference with the rights and freedoms of Muslim and other Americans.