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.
Today’s Presidential proclamation extends the blacklisting-by-citizenship of the Muslim Ban 1.0 and Muslim Ban 2.0 to include a few token non-Muslim North Koreans and Venezuelan government officials, in an unsuccessful attempt to render its underlying Islamophobia less blatant.
In practice, the Muslim Ban 3.0 is similar in effect and intent to its predecessors. But in response to court decisions that have voided many of the provisions of the previous “Muslim Ban” Executive Orders, the White House is making a new set of excuses for travel restrictions on citizens of certain countries that begins by ascribing them to other countries’ failure to implement “recommendations” of the International Civil Aviation Organization (ICAO) and INTERPOL for passports, ID management, and globalized traveler surveillance (“data sharing”):
Q: What was the basis for the requirements?
A. The… report submitted by the Secretary of Homeland Security… established baseline requirements for 1) identity management practices and 2) information sharing….. The requirements reflect a combination of long-standing U.S. Government goals, as well as standards established by international bodies such as… the International Civil Aviation Organization (ICAO), and INTERPOL They incorporate best practices derived from… identity management practices, law enforcement practices, and national security initiatives, such as the adoption of ePassports…..
Information-sharing and identity-management protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States. Governments manage the identity and travel documents of their nationals and residents. They also control the circumstances under which they provide information about their nationals to other governments.
This is just the latest episode in a longstanding pattern of policy laundering in which the US and some of its allies have enacted innocuous-seeming mandates for compliance with ICAO aviation safety standards, and then manipulated ICAO’s opaque decision-making process to get standards adopted on matters having nothing to do with safety or aviation, such as the RFID chips embedded in passports and the biometric and biographic data encoded on them. The US government can then claim to the public that it is “just following ICAO orders”, when in fact both the standards and the mandate to implement them domestically were adopted by or at the behest of the US government.
According to today’s Executive Order:
The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity…. and makes available upon request identity-related information not included in its passports.
The Executive Order does not clarify what documents are allegedly “required for travel to the US” (as distinct from any documents inspected on arrival), or what is the basis for this purported requirement. No treaty requires national governments to issue passports, or requires travelers to carry them. Many of the travelers who are entitled to asylum don’t have passports and arrive at US borders or airports without documents, often for reasons related to the persecution they are fleeing.
The Executive Order exempts “any foreign national who has a document … that permits him or her to travel to the United States and seek entry or admission.” But this confuses and conflates the authority of the US to deny entry at the border or port of attempted entry with the right of any traveler regardless of citizenship to leave another country and to travel (including travel through international airspace or international waters) to the US border or a port of entry.
In suggesting that a traveler needs a document (implicitly, although this is not specified, a document issued by the US government) which “permits” them to leave another country or “seek” admission to the US, the Executive Oder doubles down on the assertion of extraterritorial US jurisdiction over the right of foreign citizens to depart from foreign countries and travel through third countries, through international airspace, or though international waters to US borders or airports. This is a profound, and profoundly disturbing, assertion of US jurisdiction over foreign citizens and foreign carriers’ operations worldwide.
Anyone can come to our borders and knock on our door. They don’t need our permission, or any papers, to leave their country or travel to our borders. We have no jurisdiction over who boards foreign vessels or aircraft at foreign ports or airports, or over their travel through third countries, international waters, or international airspace. Our jurisdiction begins when they arrive at a US border or port of entry.
Under a heading euphemistically described in the White House explainer as, “Partnership with travel industry: Ensure that the airlines and vessel operators are not impeded from providing the USG with information about people traveling to the United States,” the Executive Order includes a fairly blunt threat that if the European Union enforces its privacy and data protection rules with respect to US government access to airline reservations, the US will blacklist EU citizens from visiting the US:
The United States expects foreign governments to provide information about … persons who seek entry to this country…. The criteria assessed in this category include … whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.
The privacy and data protection practices of the computerized reservation systems to which airlines outsource the hosting of their PNR databases are currently under investigation by the European Commission. Meanwhile, on July 26, 2017, the highest court of the European Union — acting on a request by the European Parliament — ruled that a proposed EU-Canada treaty on government access to airline reservations was incompatible with fundamental rights recognized by EU treaties. On September 7, the Legal Service of the Council of the EU reported to the governments of EU member countries on the implications of this EU legal precedent for access to PNR data by countries other than Canada:
The other PNR agreements (PNR Australia and PNR USA) remain in force as long as they have not been challenged. Their validity could be challenged by means of a preliminary reference from a national court to the Court of Justice… Since those two agreements contain the same or similar shortcomings as those identified by the Court in its Opinion 1/15 [on the draft EU-Canada PNR treaty], they all need to be renegotiated. If the third country does not accept such a renegotiation, the Union should terminate those PNR agreements in accordance with the procedure provided for therein, on the ground that they do not comply with [European] Union law.
The reference in the Executive Order to whether a country “impedes the United States Government’s receipt of information about passengers” should be read as a response to this EU legal decision. The Trump Administration’s intent is to discourage other countries from enforcing treaties or laws which prohibit dragnet surveillance of travelers, by threatening travel sanctions against citizens of countries whose governments enforce human rights laws to protect travelers.