Apr 04 2019

TSA plans to put new lying signs in airports

This sign is a lie.

According to a press release  issued today by the Transportation Security Administration, the TSA plans to start posting signs as shown above in airports throughout the USA, claiming that “ID Requirements Are Changing” and that  “Beginning Beginning October 1, 2020, you will need a REAL ID compliant license or another acceptable form of ID, such
as a valid passport or U.S. military ID, to fly within the U.S.”

According to today’s TSA press release:

REAL ID-compliant licenses or other acceptable forms of ID, such as a valid passport, federal government PIV card or U.S. military ID, will be mandatory for air travel beginning on October 1, 2020. Critically important, on October 1, 2020, individuals who are unable to verify their identity will not be permitted to enter the TSA checkpoint and will not be allowed to fly.

These signs and this and similar press releases are lies.

This isn’t the first time, and probably won’t be the last, that the TSA and/or DHS have made lying statements, issued lying press releases, or posted lying signs about the REAL-ID Act and ID to fly.

Is ID required to fly? No.

One would expect “requirements” announced by a Federal agency to be contained in laws or regulations. But the TSA’s own lawyers, officials, and witnesses testifying under oath have told judges in every lawsuit ion which the issue has arisen that no law or regulation required domestic air travelers to have, carry, or show any ID cards or credentials.

The TSA’s responses to our Freedom Of Information Act (FOIA) requests for its records of people who show up at TSA and TSA-contractor checkpoints at airports without ID show that more than 98% of them — hundreds a day, and tens of thousands every year — are allowed to continue to board their flights without carrying or showing ID.

Is this scheduled to change? No.

Changes to Federal laws require action by Congress. No bill has been introduced in the current Congress (or ever, so far as we can tell) that would impose any ID requirement for air travel.

Changes to Federal regulations require a process governed by the Administrative Procedure Act that starts with a “Notice of Proposed Rulemaking” (NPRM) published in the Federal Register.  No notice of any proposed rules related to ID to fly has been published.

In 2016, the TSA published a notice that it planned to seek approval from the Office of Management and Budget (OMB) — but had not yet sought that approval — for a new version of a form some air travelers without ID have been asked to fill out. (Because the form has never been submitted to, or approved by, OMB, its use is illegal and no penalty can lawfully be imposed for declining to respond to the questions on the form.)

We pointed out to the TSA and OMB that it was improper to ask OMB to approve this form without first enacting a law or promulgating regulations providing a legal basis for the form. Other organizations and individuals also objected to the proposed form. The TSA has neither responded to any of the objections nor submitted the form for OMB approval.

Will the REAL-ID Act of 2005 change this? No.

The REAL-ID Act and implementing regulations are concerned only with which ID cards are considered “acceptable”, in circumstances in which some (other) valid Federal law regulations requires ID for some Federal purpose. The REAL-ID Act itself did not purport to impose any new ID requirements, either when it was enacted, in 2010, or ever.

Will I still be allowed to fly without ID in the future? Maybe, maybe not. That’s up to the TSA.  But if the TSA or its contractors prevent you from traveling, without a lawful basis, they will be violating your rights and breaking the law.

Since the TSA is wielding power by secret internal orders and security directives to staff, contractors, and airlines, announced (if at all) through press releases rather than through proper formal notices in the Federal Register, it’s impossible to say with certainty what it will try to do. What it will do is likely to depend, in significant part, on its assessment of how widely and strongly particular assertions of illegitimate authority will be resisted.

The TSA has been making threats to start harassing residents of states and territories that it hasn’t chosen — in what it has claimed is its standardless discretion — to certify as being sufficiently “compliant” with the REAL-ID Act, or to give extensions of time to comply. These certifications and extensions of time have had little apparent relationship with actual compliance, so they too are impossible to predict.

The next of these threats is an extension of time to California to comply with the REAL-ID Act which is scheduled to expire at the end of the day on April 10, 2019.

We suspect, especially after today’s press release — which focuses on an arbitrary date of October 1, 2020, rather than any of the “extension” expiration dates — that the DHS will either certify California and all of the other states and territories as “compliant” (even if they aren’t) or extend their time to comply until October 1, 2020.

Apr 03 2019

Search, interrogation, and threats at SFO

Dr. Andreas Gal is the former CTO of the Mozilla Foundation, and the founder of a software company that was acquired by Apple Computer last year. He’s a naturalized US citizen and a frequent international business traveler.

Here’s part of Dr. Gal’s account  (in another part of which he links to some of our previous reporting on related issues) of what happened when he arrived at San Francisco International Airport after a trip to Europe last November:

I quickly found myself surrounded by three armed agents wearing bullet proof vests. They started to question me aggressively regarding my trip, my current employment, and my past work for Mozilla, a non-profit organization dedicated to open technology and online privacy.

The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop. This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.

Because I was uncertain about my legal responsibilities to my employer, I asked the agents if I could speak to my employer or an attorney before unlocking my devices. This request seemed to aggravate the customs officers. They informed me that I had no right to speak to an attorney at the border despite being a U.S. citizen, and threatened me that failure to immediately comply with their demand is a violation of federal criminal code 18 USC 111.

I declined to answer any further questions, and continued to ask to speak to an attorney instead. The interrogation and threats continued for some time, which I endured silently. Despite initial threats that they would keep my devices if I didn’t unlock them, I was eventually permitted to leave the customs area with my devices.

The ACLU of Northern California has complained to the Department of Homeland Security and its Customs and Border Protection component about the detention, search, and interrogation of Dr. Gal and the baseless threats of criminal prosecution made by CBP.

We share the concerns raised by the ACLU in their complaint on behalf of Dr. Gal.

But there are some additional aspects of this case worth noting:

  1. The CBP agents were lying and making threats which they did not follow through on. When Dr. Gal persisted in not merely asserting but exercising his rights, the CBP agents allowed him to leave without being charged with any crime.  The takeaway is that law enforcement officers can and will  lie, that their goal is always to get you to “consent” to whatever they want to do or want you to do, and that you will never find out the actual limits of their legal authority unless you say no to any requests for consent.  In this case, Dr. Gal was allowed to leave with his electronic devices. His devices might have been kept longer by CBP, but if they had been, Dr. Dal would only have been able to contest their continued detention or any demand for him to unlock them or provide the passwords if he withheld his consent. If police ask you, “May I…?”, that means they know they need your permission. Just say, “No”.
  2. There’s an additional law which Dr. Gal could have invoked, but of which he was probably unaware: the Privacy Protection Act,  Title 42 US Code, Section 2000aa. As a blogger and Twitterer, Dr. Gal is almost certainly protected by the Privacy Protection Act — as is anyone who posts publicly to social media. The Privacy Protection Act provides an important potential means of redress for searches and seizures of documents or electronic data at airports — but only if you know your rights and assert them when government agents threaten to violate them.
  3. Dr. Gal’s account of what happened to him at SFO and the ACLU complaint letter address the likely basis for his detention and interrogation (as inferred from the questions he was asked about activities protected by the First Amendment). But they don’t address either the means by which he was targeted, or who was responsible. Given that Dr. Gal was surrounded by a special squad of armed goons before anyone had asked him any questions, he could only been targeted based on the data about him held by CBP, including records of his past and most recent travels (including mirror copies of airline reservations) and any TECS alerts set by law enforcement agencies. Records released by CBP in response to Privacy Act and FOIA requests by other travelers have shown how TECS alerts are used to target journalists and activists and trigger messages (based on ingestion of airline reservations) so that a “welcoming party” such as Dr. Gal can be waiting for them to search and question them and, in some cases, seize and image their electronic devices. We’ve assisted other travelers who have been able to use Privacy Act and FOIA requests for records of their travel to identify or get clues about when a TECS alert was set for them as a “person of interest”, by whom or by what agency, why, and with what handling instructions. Much information is always withheld, but clues sometimes get through.
Apr 01 2019

DHS continues to extort participation in REAL-ID database

If there is one truth hiding in the forest of DHS lies about the REAL-ID Act of 2005, it’s that the DHS doesn’t want to cause riots at airports by subjecting residents of disfavored states to  more intrusive searches and “ID verificationinterrogation when they travel by air.

The goal of the REAL-ID Act is to intimidate states into adding their residents drivers’ license and state ID data to the SPEXS national ID database, through threats to harass residents of states and territories that aren’t sufficiently compliant.

Like any extortionist, the DHS wants its victims to submit, and doesn’t really want (and may not even be prepared) to carry out its threats.

But what will the DHS do when its bluff is called by states or territories that are either unwilling or unable to comply?

Today, April Fools Day, we’re seeing the latest test of the answer to this question, with the US Virgin Islands as the target of DHS threats.

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