Mar 21 2017

Alaska and the REAL-ID Act

We’ll be testifying (by teleconference) at hearings today in the Senate State Affairs Committee (3:30 p.m. ADT) and House State Affairs Committee (5:30 p.m. ADT) of the Alaska State Legislature on three state bills related to Alaska’s response to the Federal REAL-ID Act of 2005:

  1. SB34: Implementation of the federal REAL ID Act of 2005
  2. HB74: Implementation of the federal REAL ID Act of 2005
  3. HJR15: Encouraging repeal of the REAL ID Act of 2005

In 2008, shortly before the REAL-ID Act was scheduled to take effect (the DHS has repeatedly postponed that discretionary “deadline” as politically and practically unfeasible, most recently until 2020) the Alaska State Legislature enacted a state law prohibiting any state spending to implement the REAL-ID Act.

Now, in respond to Federal threats to interfere with Alaskan residents’ freedom of movement if the state government doesn’t upload information about all state license and ID-card holders to a national ID database, the state legislature is considering bills to authorize that spending and implementation.

It makes no sense for Alaska to call for repeal of a disliked Federal law of dubious Constitutionality, and simultaneously to authorize state spending to comply with that law, without first getting the courts to rule on whether the (unfunded) mandate for state action or the threatened sanctions against state residents are Constitutional.

As we say today in our written testimony to members of the House and Senate State Affairs Committees:

Alaska HJR15 is an important statement of support by the Alaska State Legislature for efforts in Congress to repeal the REAL-ID Act. But Alaskans and the State of Alaska cannot, and should not, merely sit back and wait for Congress to act.

No Federal law or regulations requires air travelers to show any ID. People fly without ID every day. But the TSA has indicated that it intends to propose regulations, revise TSA Standard Operating Procedures, and/or issue Security Directives to air carriers to require air travelers to show ID acceptable to the DHS in order to fly.

This threat poses a special danger to Alaskan residents, especially those in communities and locations not connected to the North American road network, and/or who rely on air transportation for access to essential and emergency services.

Unless and until this threat is withdrawn, Alaskan state authorities including the office of the Attorney General of Alaska should be preparing to defend any Alaska residents whose rights are interfered with by Federal agents.

And rather than waiting to intervene until after Federal agents start denying Alaska residents access to essential air transportation, the state should, as soon as it is ripe for adjudication, initiate litigation to prevent interference with residents’ rights.

It makes no sense for your state to capitulate, as these bills would have it do, in response to threats of Federal action action whose Constitutionality has yet to be tested.

It would be premature for Alaska to abandon its long-standing and well-founded opposition to the REAL-ID Act in response to DHS threats to interfere with the rights of state residents as a sanction for state noncompliance with the REAL-ID Act, while:

  1. A Federal ID credential, a passport card, is available to any U.S. citizen who qualifies for a REAL-ID compliant state ID, and can be used for any purpose for which a compliant state ID can be used as well as for surface travel to Canada;
  2. Legislation to repeal the REAL-ID Act or significantly mitigate the dangers of creating an uncontrolled national ID database is pending in Congress;
  3. No Federal statute or regulation requires air travelers to show any ID to fly, and residents of Alaska and other states continue to fly every day without ID;
  4. No regulations have been proposed that would require anyone to show ID to fly;
  5. No court has considered whether it would be Constitutional to require air travelers or passengers of other common carriers to show ID;
  6. Compliance with the REAL-ID Act would create special problems for Alaskan residents, especially residents of communities not accessible by road;
  7. The lack of alternatives to air transport gives Alaska a uniquely strong legal basis to challenge any Federal attempt to impose an ID requirement for air travel;
  8. More populous states that are manifestly not in compliance with the statutory criteria for REAL-ID Act database access have not been similarly threatened; and
  9. No court has ruled on the legality of the DHS arbitrarily exercising “discretion” to restrict the rights of residents of some noncompliant states but not others.

We urge the Alaska State Legislature to reject SB34 and HB74, stand firm in your opposition to the REAL-ID Act, and prepare to defend the Constitutional rights of Alaskans and all Americans to freedom of travel and movement, including by air.

Mar 15 2017

Palantir, Peter Thiel, Big Data, and the DHS

San Francisco and Silicon Valley are among the centers of opposition to President Trump and his fascism, especially as it relates to restrictions on movement, border controls, immigration, and asylum.

Bay Area technology companies and their better-paid classes of employees like to think of themselves as building a better world that reflects the distinctive values that have attracted dreamers and futurists to this region  from across the country and around the world. But some of these companies are key developers and providers of “big data” tools for the opposite sort of “Brave New World“.

On Saturday, Edward Hasbrouck of the Identity Project was invited to speak to an ad hoc group of picketers outside the Pacific Heights mansion of Palantir Technologies founder and Trump supporter Peter Thiel (photo gallery from the SF Chronicle, video clip from KGO-TV; more photos from the East Bay Express).

As Anna Weiner reported in the New Yorker (“Why Protesters Gathered Outside Peter Thiel’s Mansion This Weekend“):

David Campos, a former member of the San Francisco board of supervisors, who emigrated from Guatemala, in 1985, stood on the brick stoop and raised a megaphone. “The reason we’re here is to call upon the people who are complicit in what Trump is trying to do,” he said. Clark echoed the sentiment. “If your company is complicit, it is time to fight that,” she said. Trauss, when it was her turn, addressed Thiel, wherever he was. “What happened to being a libertarian?” she asked. “What happened to freedom of movement for labor?”

Edward Hasbrouck, a consultant with the Identity Project, a civil-liberties group, took the stand, wearing a furry pink tiger-striped pussyhat. “The banality of evil today is the person sitting in a cubicle in San Francisco, or in Silicon Valley, building the tools of digital fascism that are being used by those in Washington,” he said. “We’ve been hearing back that there are a fair number of people at Palantir who are working really hard at convincing themselves that they’re not playing a role — they’re not the ones out on the street putting the cuffs on people. They’re not really responsible, even though they’re the ones who are building the technology that makes that possible.”

It’s easy to rationalize the creation of technological tools by saying that they can used for good as well as evil. But you can’t separate the work of tool-making from the ways those tools are being used. Palantir workers’ claims to “neutrality” resemble the claims made in defense of IBM and Polaroid and when they were making and selling “general purpose” computers, cameras, and ID-badge making machines to the South African government in the 1970s. None of this technology and equipment was inherently evil. But in South Africa, it was being used to administer the apartheid system of passbooks and permissions for travel, work, and residence.

The same goes for “big data” today. To understand what’s wrong with the work being done by Palantir for the US Department of Homeland Security, it’s necessary to look not just at what tools Palantir is building but at how and by whom they will be used; not just at the data tools but at the datasets to which they are applied, the algorithms they use, and the outcomes they are used to determine.

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Mar 06 2017

Asylum seekers and the right to travel

“If you have a current valid visa to travel, we welcome you. But unregulated, unvetted travel is not a universal privilege.” (US Secretary of Homeland Security John Kelly, March 6, 2017)

Taking his words literally, Secretary Kelly got it half right. But fundamentally, he got it all wrong, in his statement today on the #MuslimBan 2.0 Executive Order signed today by President Trump. (Hera’s a redlined comparison with the #MuslimBan 1.0 Executive Order which it replaces.)

Travel by asylum seekers isn’t a universal “privilege”. It’s a universal right.

Much can, and no doubt will, be said about other aspects of today’s Executive Order. Most of our comments on #MuslimBan 1.0 apply equally to #MuslimBan 2.0, which will continue to be enforced (illegally) primarily by airline and travel agency staff at ticket offices and check-in counters at foreign airports.

But as defenders of the right to travel and of the rights of refugees and asylum seekers, we want to make sure that Secretary Kelly’s denial of the existence of these rights doesn’t go unchallenged:

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