Nov 21 2018

REAL-ID database still lacks basic protections

[As of August 2017, this was one of the two highest priorities for the SPEXS/S2S governance committee —  but still unresolved.]

There is still no way to find out whether there’s a record about yourself in the national REAL-ID database, or what information that record contains, or to correct it. This has been recognized as a priority by the state officials who indirectly “govern” the contractors who operate the database. But years have passed, and nothing has been done to address the problem, even as the database has grown to include information about more than 50 million US residents.

How has this been allowed to happen?

The most significant requirement for US states and territories that choose to comply with the Federal REAL-ID Act of 2005 is participation in the national ID database, SPEXS.

But while SPEXS has been developed to enable state submission to Federal requests, development and operation of the SPEXS has been outsourced to the American Association of Motor Vehicle Administrators, a nominally-private nonprofit corporation, and a for-profit AAMVA contractor, Clerus Solutions. Neither AAMVA nor Clerus Solutions are directly subject to any Federal or state government transparency laws.

Federal funding for SPEXS from the DHS has been laundered through grants to states, keeping the Feds at arms length from AAMVA, Clerus Solutions, or any direct oversight of, or accountability for, SPEXS. We have requested DHS records of these grants, but the DHS has yet to produce them. Just today — well after the deadline for the DHS to respond to our request  — we got a message  claiming that the FOIA office to which our request has been referred isn’t sure what we want, and asking us to “clarify” our request.

In the meantime, the main sources of information about the build-out of SPEXS into a comprehensive national database of drivers licenses and state-issued ID cards have been responses to requests to state driver licensing agencies (DLAs in AAMVA-speak) under state public records laws.  If you want to request these records from your state DLA, here’s a 2017 list of state points of contact for participants in SPEXS and the AAMVA subcommittee for privatized “governance” of SPEXS.

This list is part of the latest batch of records released by the Wisconsin Department of Motor Vehicles (the first participant in SPEXS) in response to a  request under that state’s open records law.

Among other details, these records confirm that as recently as August 2017, AAMVA still had not  agreed on any procedure by which an individual could find out whether there is a record about them in the SPEXS database, or what information it contains. No system for handling access or correction requests had been established, even though by that time the SPEXS database contained information about 50 million people.

We asked AAMVA’s “Chief Privacy Officer about this in early 2016. Nothing was done. Members of the S2S/SPEXS governance committee were polled in 2017, and identified this as one of their two highest priorities. Still, another year later, nothing has been done. Read More

Nov 14 2018

OIG confirms State Dept. broke its own rules when it seized US citizens’ passports

A report released earlier this month by the State Department’s Office of Inspector General confirms that, as we and others began reporting in 2013 and 2014, State Department staff  “failed to comply with relevant procedures intended to safeguard the rights of U.S. citizens” when they summarily seized or retained the passports of US citizens who sought consular assistance at the US Embassy in Sana’a, Yemen.

Because of incomplete and inconsistent record-keeping and shifting stories told to OIG investigators by State Department staff, the OIG was unable to determine how many US citizens were improperly deprived of their passports, or for how long.

The consequences for these Yemeni-American US citizens were especially dire because many of them were seeking to leave Yemen to escape the escalating civil war and foreign military interventions in Yemen (some of which were backed by the US and its allies).

Without passports, these US citizens were unable to travel legally from Yemen  to other countries, or to return to the US. They were forced either to remain in increasingly war-torn and dangerous Yemen, or use dangerous illegal means of transport to escape.

The de facto policy of the US Department of State as early as 2013 — even before the inclusion of Yemen in the 2017 Muslim ban executive orders — appears to have been to define anyone with Yemeni ancestry, regardless of citizenship, as an enemy of the US, and to use all available legal or illegal methods to deny them US passports. Typical tactics included putting applications by Yemeni-Americans for new or renewal passports into indefinite limbo, and indefinitely retaining US passports presented to consular officials at the US Embassy in Sana’a.

Typically, no formal decision that would be readily subject to judicial review was made. Even when a passport was revoked or an application for a passport was denied, the affected citizen often wasn’t notified until months or years later.

Several lawsuits were brought challenging the denials and delays in issuing, renewing, or returning passports. At least one case led to a  court order for the return of a US passport seized in Sana’a. But the government was able to evade judicial review of most of its passport denials and seizures by reversing its decisions and dropping charges or issuing delayed passports once its victims lawyered up and made it to US courts.

Despite the fairly scathing  report by the OIG, there’s no indication that any of the responsible State Department officials — either at the embassy in Yemen or making policy and directing practices from the US — have lost their jobs, much less been prosecuted, for conspiring to deprive US citizens of their fundamental rights, in circumstances where the ability to exercise those rights could be a matter of life and death.

Nov 02 2018

What China calls “social credit”, the US calls “risk assessment”

A viral video of an announcement on a Chinese high-speed train and a series of reports (here and here) on NPR have prompted a surge of interest this week in China’s “social credit” system:

Dear passengers: People who travel without a ticket, behave disorderly, or smoke in public areas will be punished according to regulations, and the behavior will be recorded in individual credit information system. To avoid a negative record of personal credit, please follow the relevant regulations and help with the orders on the train and at the station.

Despite unwarranted comparisons to US financial credit scores, “social credit” scoring in China is used by the government and para-statal entities, not just private companies, and not just for financial decision-making.

One of the NPR stories as well as a report last month by the Australian Broadcasting Co. include interviews with people who discovered they were barred by the Chinese government from travel on high-speed trains as a result of “social credit” scores, regardless of their ability to pay for tickets.

Dystopian? Yes.

Unjust? Yes?

“It can’t happen here?” No.

It already happens here, every day, to everyone who travels by airline or engages in bank or credit card transactions.

You may not realize it until you are mysteriously unable to obtain a boarding pass or complete a financial transaction, but each of these activities is already subject to secret, permission-based, extrajudicial prior restraint by the US government.

The default is “no”.  Since a little over 10 years ago, US Federal regulations have forbidden any airline from issuing a boarding pass unless and until it has sent the would-be traveler’s itinerary and identifying information to the DHS and has received back an individualized, per-passenger, per-flight, permission-to-travel message from the DHS. The DHS generates a secret “risk score” for each passenger, which determines how closely they are searched and questioned, whether the airline is instructed to call the police when they try to check in, and other aspects of how they are treated.

Even before airlines or banks get to the point of consulting the government, “carrier sanctions” and similar sanctions against financial institutions give them a financial incentive to err on the side of saying “no”, not “yes”.

You don’t have to be on a government blacklist for your air travel or financial transactions to be blocked by the US government or by airlines or banks acting at the government’s behest. There are multiple air travel blacklists (euphemistically and inaccurately called “watchlists”), but no-fly and transaction-processing decisions are also made in real time, on the basis of algorithmic “pre-crime” predictions (euphemistically and misleadingly called “risk assessments”, despite the lack of any evidence of a correlation between these scores and actual “risk”).

What China calls “social credit scoring”, the US calls “risk-based screening”.

Government blacklists and real-time pre-crime policing are being applied to control a growing range of activities of daily life. But air travel and financial transactions are the areas where the US government already has a fully deployed and operational real-time “social credit” system in which private service providers are seamlessly integrated with government agencies to surveil and control our everyday activities.

The question isn’t whether the US should have a “social credit” system — it already does — but whether it should be expanded to more aspects of our lives, or rolled back.

It can happen here. It is happening here. It will continue to happen here until we stop it.

China’s social credit system provides a useful object lesson in the three essential preconditions for a system of ID-based surveillance and control. We can block or impede the expansion of such schemes by undermining any of these three legs of the tripod:

  1. ID requirements to travel or engage in other transactions or activities — If you travel, pay, or act anonymously,  your individualized “score” can’t be used to control you. China’s “social credit” system is enabled by requirements to show government-issued ID to open a bank or mobile payment account or purchase a SIM card.  You can only rent a shared bicycle in China through an app, not by cash, and you can’t use the app without an ID-linked mobile phone and ID-linked payment account. So even if you travel around a Chinese city by shared bicycle, you can be tracked. Travel anonymously, and use cash or other anonymous forms of payment.
  2. Collection of ID-linked transaction and position data  — Chinese “social credit” scores and US “risk assessments” are based on travel, movement, and transaction histories. Some of this data is collected through biometric identification, primarily automated  facial recognition. Other data is “ingested” by the government from commercial databases such as travel reservations and financial transactions. Private companies can and should resist requests for this data, but can’t be counted on to do so. No airline, for example, has ever challenged government demands for warrantless access to the entirety of their reservation database, including free-text derogatory internal comments by front-line reservation and customer-service staff that are imported directly into permanent DHS files used for “risk” scoring. Once personally identified or identifiable data is collected, it’s almost impossible to resist demands for government access made in the name of “security”.  Any data that is collected about you can and will be used against you. The only real way to oppose this mass surveillance is #DoNotCollect. Just say no to requests for information, for consent to search, or for sharing of data with the government.
  3. Government control of movement, activity, and transactions — A key step in the implementation of the “social credit” system for air travel was the installation (at a cost to the airline industry of at least US$2 billion) of the control lines that transformed a reporting (i.e. surveillance) system into a “pre-crime” control system. It’s critical to defend against having our Constitutional and human rights redefined as privileges to be exercised only by prior permission of the government —  as the right to travel by common carrier has already been. Demand that restrictions on the exercise of rights be based on evidence-based court orders, not pre-crime fantasies.

As for the specific Chinese examples of travel by high-speed train, Amtrak, like the operators of Chinese trains, is a para-statal government-charterted corporation. In 2014, we made a FOIA request to Amtrak for records of Amtrak’s sharing of passenger data with the DHS and other law enforcement agencies. Amtrak has been releasing a trickle of responsive records, as we’ve been reporting. But Amtrak’s response remains incomplete, and this is now the oldest pending unanswered request in Amtrak’s FOIA queue.