Archive for September, 2017

Muslim Ban 3.0 blaimed on ICAO passport standards and “ID management”

Sunday, September 24th, 2017

Invoking memes that we’ve seen and warned about before under both Democratic and Republican administrations, President Trump has attributed the latest version 3.0 of his “Muslim ban”announced today (proclamation, FAQ, explainer) with the need to comply with ICAO and INTERPOL standards for passport issuance, “identity management”, and data sharing about travelers — as though US immigration and asylum policy should be determined by an international technical body for aviation operations, as though such a body has the authority to override US treaty obligations to freedom of movement and “open skies“, and as though predictive pre-crime profiling based on “biographic and biometric data” can be substituted for judicial fact-finding as a basis for denial of the right to travel.

We hope that seeing the “Muslim Ban 3.0” blamed on ICAO standards will lead human rights advocates to pay more attention to ICAO’s standard-setting role and opaque decision-making process in non-aviation matters such as passports, identity management, and data sharing.

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Amtrak lied to travel agents who questioned ID requirements

Tuesday, September 19th, 2017

The encouraging disclosure in the latest installment of documents released by Amtrak in response to one of our Freedom Of Information Act (FOIA) requests is that some travel agents resisted Amtrak demands that they collaborate in surveillance, profiling, and control of train travelers by entering passport or ID numbers and details in each reservation for cross-border Amtrak travel.

According to an email message to Amtrak from a product manager at Worldspan (one of the major computerized reservation systems), “We have one subscriber [i.e. a travel agency that uses Worldspan] that has checked the Federal Register and is quoting ‘chapter and verse’ that it is not mandated … to provide the data”:

Some travel agents pushed back repeatedly, read the official notices and instructions to travel agents about the rail API program carefully (and correctly), and made a travel agency “policy decision of non-provision” of ID data about their customers:

Kudos to the unnamed travel agencies that refused to help the government spy on their customers and called Amtrak on its lies that this was required.

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TSA says it doesn’t know how to copy files

Monday, September 18th, 2017

We’ve gotten used to delays, obstruction, and slander from TSA privacy and Freedom Of Information Act (FOIA) officers. Sometimes it’s hard to tell whether these result from incompetence, under-staffing, lack of diligence, mendacity, malice, or some combination of these and/or other factors.

The latest in these TSA FOIA follies is a letter we got last week from the TSA’s FOIA appeal officer, saying that the TSA doesn’t know how to copy computer files, and doesn’t know the names of any of the files on their computers or any other filesystem information or metadata about those files:

You assert that TSA should be able to reproduce digital files as bitwise copies. TSA does not maintain records in bitwise format nor can we produce records in such a format. Additionally,… the file or filesystem data or metadata from the raw format of the records are not available.

Where does this nonsense come from? Do the officials making these statements really believe them, or expect us to?

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Federal court can review the Constitutionality of Federal blacklists

Wednesday, September 13th, 2017

A Federal judge has ruled that yes, he can review the Constitutionality of Federal blacklists (euphemistically but misleadingly labeled “watchlists”).

That should be an unsurprising finding. But “pre-crime” and predictive policing programs, including decisions to put people on blacklists that are used to control what they are and aren’t allowed to do, have largely operated in secrecy and outside the rule of law.

Rather than defending blacklisting programs or individual blacklisting decisions, the Federal government — under both Democratic and Republican administrations — has consistently argued that it should not be required to disclose, explain or defend these decisions, the identity of the decision-makers, the criteria for their decisions, or the “derogatory” information on which these decisions are purportedly based, either to the people who have been blacklisted or to the courts.

Too often, even sixteen years after 9/11/2001, courts still traumatized by memories and fears of 9/11 have acquiesced to these Executive-branch claims that the conduct of the “war on terror” is exempt from judicial review.

In this context, the decision last week by Judge Anthony Trenga of the U.S. District Court for the Northern District of Virginia, rejecting the government’s motion to dismiss a lawsuit by blacklisted Muslim Americans, is one of the most significant steps to date toward legal accountability for the DHS and its accomplices in the war at home against Americans secretly accused and extrajudicially sanctioned through Federal blacklisting.

The decision comes in a case brought by the Council on American-Islamic Relations (CAIR) on behalf of 24 individuals and as as a class action on behalf of all those who have suffered adverse consequences as a result of arbitrarily and without due process being named on Federal blacklists (“watchlists”) . As we reported when this case was filed last year, it’s the most fundamental challenge to date to the Constitutionality of the entire scheme of DHS and FBI pre-crime blacklists based on secret administrative procedures and algorithms rather than on court orders such as criminal convictions, injunctions, or restraining orders.

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California DMV proposes to “comply” with the REAL-ID Act

Monday, September 11th, 2017

On September 1, 2017, the California Department of Motor Vehicles quietly published a notice of proposed regulations that would purportedly allow the California DMV to issue drivers licenses and state ID cards that would be “compliant” with the Federal REAL-ID Act of 2005:

For many years, the California DMV has appeared intent on eventual “compliance” with the REAL-ID Act, regardless of whether that compliance was authorized by the legislature. The current DMV rulemaking proposal to bring California into “compliance” with the REAL-ID Act by administrative fiat is the latest and most significant step along that path, and a disturbing effort to bypass legislative debate.

We encourage all Californians who are concerned about freedom of movement, Federal commandeering of state agencies to function as agents for enforcing Federal restrictions on individual rights, and lack of transparency, oversight and accountability for biometric and ID databases to submit comments opposing the proposed regulations and, if you can make it to Sacramento, to testify at the hearing on October 16th.

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No US passports for “terrorist sympathizers”?

Friday, September 8th, 2017

Bills are moving forward in both houses of Congress which, if approved, would mandate the administrative, extra-judicial revocation, non-renewal, and refusal of issuance of a US passport to any US citizen, even if their citizenship is unquestioned and they have been accused of no crime, but “whom the Secretary [of State] has determined is a member of or is otherwise affiliated with an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).”

The proposed legislation would leverage administrative determinations related to immigration (which US courts have allowed to be largely exempted from judicial review insofar as they only affect foreigners who aren’t considered by the US to have the same human rights as US citizens) to impose a categorical ban on certain US citizens leaving or entering the US except at the (standardless, i.e. arbitrary) “discretion” of the Secretary of State.

Since June 1, 2009, US citizens have been forbidden by Federal law and regulations from crossing any border into or out of the US by any means (land, sea, or air) without a passport, passport card, or Federally-approved “enhanced” drivers license. Denial of a passport thus amounts to a categorical ban on leaving or returning to the US. As such,  it is a blatant violation of the rights of US citizens pursuant to the First Amendment “right of the people… peaceably to assemble” and their human rights pursuant to Article 12 of the International Covenant on Civil and Political Rights:

2. Everyone shall be free to leave any country, including his own….

4. No one shall be arbitrarily deprived of the right to enter his own country.

The proposed law would not define how, on what basis, according to what procedures, or using what standard of proof the Secretary of State would make determinations as to membership or other “affiliation” of a US citizen with a blacklisted organization.  To make matters worse, the bills proposing this travel ban for US citizens associated with blacklisted organizations contain no definition of “member” or “otherwise affiliated”.

If you don’t like the decision of the Secretary of State, the bill would provide you with a “Right of Review” entitling you to a hearing before … the  Secretary of State.

Substitute “Communist” for “terrorist” in the proposed legislation, and it becomes clear that these bills would recreate the worst of the guilt-by-association witch-hunting of the MyCarthyist and other Red Scares.

Commie sympathizer? No passport for you! Terrorist symp? No passport for you!

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