The Identity Project and our parent organization, the First Amendment Project, have moved to a new office in Preservation Park in downtown Oakland (map).
Effective immediately, our mailing address is:
The Identity Project
1222 Preservation Park Way, Suite 200
Oakland, CA 94612
Most of the time we work remotely, so it’s better to contact us by email, phone, or Signal than by snail-mail.
We’ve reported on several legal challenges to demands for ID as a condition of boarding airline flights.
But what about demands for ID after such a flight, as a condition of disembarking or leaving the airport at your destination? Is such a demand legal? Must you comply?
The first court case we are aware of to raise this issue began when DHS law enforcement officers from US Customs and Border Protection (CBP) blocked the only exit from a Delta Airlines plane when it arrived at its gate at JFK Airport in February 2017 after a flight from San Francisco, and required passengers to show ID before they were allowed to leave the plane.
Several passengers, represented by the ACLU, sued the DHS, the CBP and the responsible officials, supervisors, and front-officers in Federal court for the Eastern District of New York, which covers Brooklyn, Queens (where JFK Airport is located) and Long Island.
The plaintiffs in the lawsuit, originally Amadei v. Duke and now Amadei v. Neilsen, complain that the demand for ID violated their 4th Amendment right to be free from unreasonable searches and seizures. They also complain that the DHS policy or practice of demanding ID from some passengers disembarking from domestic airline flights was adopted without complying with the due process requirements of the Administrative Procedure Act (APA).
The first significant — although far from final — ruling in the case came on December 13, 2018. The District Court rejected government motions to dismiss the complaint. Judge Nicholas Garaufis found that the passengers had raised sufficiently credible allegations of violations of the 4th Amendment and the APA to entitle them to their day in court.
[Federal Probation System Form PROB-37, “Permission To Travel”. Note that even as used for probationers, this form is illegal: It lacks the required OMB approval, OMB control number, and Paperwork Reduction Act notice.]
Have all travelers become convicted criminals subject to court supervision, who have to apply in advance for permission from the government every time they want to travel?
And does the US government have extraterritorial jurisdiction over travel worldwide?
Apparently so, at least in the eyes of the Department of Homeland Security.
Case in point: The National Vetting Center (NVC).
The NVC was established pursuant to President Trump’s February 2018 executive order NSPM-9. The “vetting” in the name is what President Trump has referred to as “extreme vetting” of immigrants and non-US citizens visiting or transiting the US. The first use of the NVC will be to “vet” citizens of countries in the US Visa Waiver Program applying for ESTA permits (online visas) to travel to the US.
The NVC is an inter-departmental body coordinated by a DHS component, US Customs and Border Protection (CBP), and this week the DHS has published a Privacy Impact Assessment (PIA) and released a redacted version of the Implementation Plan for the NVC.
Here’s how the DHS describes the purpose and role of the NVC:
Every day, the U.S. Government determines whether to permit individuals to travel to and enter the United States… and consider other actions…. The U.S. Government has developed several different processes and procedures to evaluate an individual’s suitability for access to the United States or other travel- or immigration- related benefits against information available to the U.S. Government (generally referred to as “vetting”)….Creating, maintaining, and facilitating the operation of that process is the primary mission of the NVC.
As even this summary self-description shows, the NVC is founded on a fundamental disregard for human and Constitutional rights.
The Department of Homeland Security has posted the latest update to a series of Privacy Impact Assessments attempting to whitewash the invasions of privacy and human rights inherent in a comprehensive system of automated facial identification of travelers.
The latest PIA reveals more than the DHS has previously admitted about the nature and scope of its planned use of automated facial ID technology.
The DHS plans to use image data aggregated from commercial surveillance systems operated by airlines and airports, as well as DHS cameras, including non-obvious cameras, to identify air travelers (including both domestic and international travelers), international ferry and cruise passengers, and travelers crossing US land borders in vehicles or on foot.
Automated identification of travelers based on facial images would be used as the basis for who is, and who is not, allowed to travel, based on travel histories and algorithmic “risk assessments” that form the US counterpart of, and predecessor to, China’s control of travel and other activities through facial recognition and “social credit” scoring.
The latest PIA makes a variety of claims about how the risks to privacy and human rights inherent in this scheme will purportedly be “mitigated”. Some of these “reassurances” are implausible, while others are already contradicted by the facts on the ground. And none of them would cure some of the ongoing violations of Federal law in current DHS practices.