Mar 13 2019

US government blacklisting system is unconstitutional, victims say

The Terrorist Screening Database (TSDB) “fails to provide constitutionally sufficient procedural due process,” according to a motion for summary judgement filed this week in a lawsuit brought by people who have been placed on the TSDB blacklist.

We’ve been following this case, Elhady v. Kable, since it was filed in 2016. Discovery and depositions taken in the case, as well as leaks by whistleblowers while the case has been pending, have revealed an unprecedented level of detail about the operation of the blacklisting system, the inter-agency “Watchlisting Advisory Council” which overseas the blacklist, and the dissemination of blacklist information.

The TSDB is described euphemistically by the US government as a “watchlist”, but in reality it’s a blacklist. Individuals — including infants and children as well as adults, and US citizens and residents as well as non-residents — are subjected to adverse government and private action by having the government place them on the TSDB blacklist and disseminate this stigmatizing designation — with the intent that the designation will be used against listed individuals — to Federal, state, and local government agencies and  private entities.

The government has refused to disclose the criteria for TSDB listings, but has conceded that being listed does not require suspicion of having committed or intending to commit any crime. Listings are determined through a secret, extrajudicial administrative process, without those being blacklisted being notified or having any opportunity, before or after the fact, to know whether or why they are being blacklisted, what the basis  is for their blacklisting, or what the evidence against them is.

The case has survived multiple attempts by the government to have it dismissed on jurisdictional and procedural grounds and to avoid discovery and depositions.  Now the plaintiffs motion for summary judgement that the TSDB is unconstitutional is scheduled for oral argument on April 4, 2019, before US District Court Judge Anthony Trenga in Alexandria, VA.

Mar 12 2019

Newly released DHS documents prompt new questions from Senators on facial recognition at airports

Newly released government records confirming plans by the Department of Homeland Security to take automated mug shots of all airline passengers have prompted and immediate bipartisan statement by Senators Edward Markey (D-MA) and Mike Lee (R-UT) renewing their  repeated previous calls for DHS to give public notice, take public comment, and adopt published rules — including “how [travelers] can opt out of the program altogether” — before deploying automated facial recognition at airports.

A petition for rulemaking on facial recognition at airports submitted to the DHS last year by the World Privacy Forum remains pending, but has not yet been acted on.

The report by Davey Alba published Monday by Buzzfeed News, in which we were quoted extensively, was  based on documents released in response to a Freedom Of Information Act (FOIA) request and lawsuit by the Electronic Privacy Information Center (EPIC).

The documents confirm that, as we’ve noted previously, the DHS intends and is already working systematically toward  a vision of worldwide biometric surveillance and control of air travel through automated facial recognition systems integrated and shared with airlines and airports. The most recently released DHS records show no provision for travelers to avoid being photographed, and no restrictions on commercial use, retention, or sale by airlines and airports of images captured under government duress.

As Edward Hasbrouck of the Identity Project told Buzzfeed News:

The big takeaway is that the broad surveillance of people in airports amounts to a kind of “individualized control of citizenry” — not unlike what’s already happening with the social credit scoring system in China. “There are already people who aren’t allowed on, say, a high-speed train because their social credit scores are too low,” he said, pointing out that China’s program is significantly based in “identifying individual people and tracking their movements in public spaces though automated facial recognition.”

“This is opening the door to an extraordinarily more intrusive and granular level of government control, starting with where we can go and our ability to move freely about the country,” Hasbrouck said. “And then potentially, once the system is proved out in that way, it can extend to a vast number of controls in other parts of our lives.”

Meanwhile, EPIC filed a follow-up FOIA lawsuit today for information about whether air travelers are, in fact, being allowed to “opt out” of being photographed. The DHS has claimed that US citizens can opt out of ongoing and expanding “pilot programs” and “tests” of automated facial recognition at airports.

But our own experiences and numerous reports from other travelers are that the DHS claim that US citizens can “opt out” often isn’t true: Travelers are often told that mug shots are required even for US citizens, and are prevented by “line minders” (contractors working for airlines and/or airports) from approaching Customs and Border Protection staff until after they submitted to being photographed.  When we and other civil liberties advocates pointed this out to senior CBP officials in a meeting a year ago, they flatly denied that this ever happened.  But no details of any “opt-out” notices, policies, or clauses in agreements between DHS, airlines, or airports have yet been disclosed.

As we noted in our comments to Buzzfeed News about these so-called tests, “CBP is ‘testing’ how to structure the program to make it technically work, and what tweaks the agency might need to make to appease, or suppress, or frustrate protests and legal challenges.  But the biggest thing they’re testing is how much legal resistance there will be — whether that’s people saying ‘no’ [to their faces being captured at the airport], or challenging it in court.”

Mar 11 2019

US government strategy for surveillance and control of travel

In December 2018, the White House announced that President Trump had sent Congress a  classified “National Strategy to Combat Terrorist Travel”.

Two months later, in February 2019, the White House released both this “National Strategy to Combat Terrorist Travel” (supposedly as signed in December 2018, and with no indication that it had ever been classified) and a companion “National Strategy for Aviation Security” (also unclassified and dated December 2018).

Together, these two documents give an overview of both the extent and the manner in which the US government intends — and believes that it has the authority — to surveil all travelers, monitor and log all movement of persons in the US and worldwide, and exercise administrative prior restraint over all such travel based on extrajudicial “pre-crime” predictions.

Nowhere in either of these vision statements is there any mention of the First Amendment, the right of the people peaceably to assemble, the right to travel, or international human rights treaties.

Nor is there any mention of existing legal means for restricting movement through court orders (injunctions or restraining orders), of judicial review of administrative controls, or indeed of any role at all for the courts.

While these documents were signed by President Trump, they express goals that have been pursued by both Republican and Democratic administrations.

Here are some of the main themes in these road maps for government action: Read More