February 2020 – Papers, Please!

Feb 25 2020

Is facial recognition at Sea-Tac Airport a fait accompli?

In December 2019, the elected Port of Seattle Commission voted to develop public policies and criteria for deciding whether to approve use of facial recognition or other biometrics to identify travelers at the Seattle-Tacoma International Airport (SEA) and the Seattle cruise port.

This is a positive step — but only if the Port follows through and enforces appropriate rules.

Since then, an internal working group of Port staff and a Port-appointed Biometrics External Advisory Group have begun work on this policy-development process. Today’s meeting of the Port Commission at noon at the Conference Center at Sea-Tac (on the Mezzanine level above the Arrivals Hall) will include a report on that work to date, including recommendations drafted by Port staff and proposed to the external advisory group.

But in the meantime, Port staff didn’t wait for governing policies to be developed and approved before posting a Request For Proposals (RFP) soliciting bids for new automated facial recognition systems to be deployed by the Port itself at Sea-Tac.

As we note in our comments to the Port Commission for today’s meeting:

We are concerned that:

The Port has, according to the RFP, already made a “commitment” to U.S. Customs and Border Protection (CBP) to deploy a biometric exit system at all gates of the new International Arrival Facility (IAF) at Sea-Tac;

The RFP requires bids to be submitted months before the biometrics policies and procedures which bidders will be required to comply with are finalized;

The Port staff draft of recommendations proposed to the Biometrics External Advisory Group contains material misstatements of law and fact; and

Neither the RFP nor the draft recommendations include any of the Port, airline, biometrics vendor, or CBP policies or notices (if any such policies exist) which would apply to the collection and use of facial images at biometric exit stations….

Is the Port’s current policy-development process a good-faith effort to determine what, if any, use of public-facing biometrics should be permitted on Port property?

Or is it merely window-dressing for decisions that are already faits accomplis?

As our comments to the Port Commission explain, there is already ample evidence to establish that the current and proposed biometric entry, exit, and departure-gate systems at Sea-Tac do not, and are not likely to, satisfy the principles adopted in December 2019 by the Port of Seattle Commission. We’ll be watching closely to see whether the Port Commission acts on its stated principles, or whether it allows them to be ignored.

Feb 23 2020

Greyhound withdraws consent to warrantless searches

Just a week after the publication of a memo from the U.S. Border Patrol confirming that it’s up to bus companies to decide whether to allow law enforcement officers onto their buses to search and/or question passengers, Greyhound has yielded to longstanding pressure and agreed to withdraw its consent for warrantless bus boardings by police.

According to the Associated Press:

In an emailed statement, the company said it would notify the Department of Homeland Security that it does not consent to unwarranted searches on its buses or in areas of terminals that are not open to the public — such as company offices or any areas a person needs a ticket to access.

Greyhound said it would provide its drivers and bus station employees updated training regarding the new policy, and that it would place stickers on all its buses clearly stating that it does not consent to the searches.

It’s clearly established law that warrantless dragnet searches or entries to private property require consent. So Border Patrol agents or other DHS law enforcement officers who disregard the new stickers and board buses without consent risk personal liability.

Greyhound has now (finally) done the right thing. Other common carriers including bus and rail operators and airlines can and should do likewise, without further delay.

Feb 18 2020

It’s time for Greyhound to say no to police harassment of bus riders

A memo from the Border Patrol component of US Customs and Border Protection (CBP) first reported last Friday by the Associated Press confirms what critics of Greyhounds’s collaboration with the US Border Patrol and other police have been saying for years: unless they have a warrant or in exigent circumstances, CBP agents can’t board Greyhound’s buses without Greyhound’s permission.

Greyhound has defended itself by claiming that it has no legal right to keep Border Patrol agents from boarding buses and questioning passengers. But those claims — which we’re pretty sure Greyhound’s lawyers have always known to be false — have now been shown to be directly contrary to the instructions given to all Border Patrol field supervisors:

When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company’s owner or one of the company’s employees.

It’s time for Greyhound to stop making excuses or blaming the government for its corporate choices. Greyhound could and should decline to consent to police boarding its buses, and explicitly prohibit its employees and agents from giving such consent.

Feb 13 2020

REAL-ID Act amendments don’t address the real ID problem

In response to fears by the travel industry (fueled by government lies) that businesses dependent on air travel will lose money if their would-be customers are prevented by the Transportation Security Administration (TSA) from flying because they don’t have ID credentials that the Department of Homeland Security (DHS) deems sufficiently “compliant”, a proposal was introduced in Congress this week by Rep. Debbie Lesko of Arizona to amend the REAL-ID Act of 2005.

What’s really called for, though, is repeal, not revision, of the REAL-ID Act, and explicit Congressional recognition that travel by common carrier is a right that cannot be conditioned on government-issued credentials or other permission. The amendments proposed in H.R. 5827 would only exacerbate the Constitutional flaws in the REAL-ID Act, and would do nothing to rein in the TSA and other DHS components in their violations of travelers’ rights.

H.R. 5827 appears to have been drafted by travel industry lobbyists. Its provisions exactly match the recommendations of the U.S. Travel Association, the umbrella trade association for the travel industry in the USA. Rep. Lesko’s press release announcing the filing of H.R. 5827 quotes endorsements for the bill from spokespeople for U.S. Travel and its constituent trade associations of airlines, airports (which in the US are almost all publicly operated, but tend to act like self-interested businesses rather than operating in the public interest), and travel agents. No advocates for travelers , civil liberties, or freedom to travel are quoted — nor are they likely to endorse H.R. 5827 or the REAL-ID Act it would amend.

H.R. 5827 is styled as the “Trusted Traveler REAL ID Relief Act of 2020”, and is described as a bill “To exempt certain travelers from certain requirements of the REAL ID Act of 2005 for purposes of boarding a federally regulated commercial aircraft, and for other purposes.”

But what would H.R. 5827 actually do, and would that make things better or worse?

Feb 11 2020

DHS considered using REAL-ID data sharing for immigration enforcement

The acting head of the Policy Office at the Department of Homeland Security (DHS) recommended that the DHS use the REAL-ID Act mandate for national sharing of drivers’ license and state-issued ID data to get access for DHS immigration enforcement to records of licenses and IDs issued to otherwise undocumented residents by states that won’t provide that data directly to the DHS, according to a DHS memo obtained by Buzzfeed News.

As discussed below, there’s a clear lesson in this report:

State refusal to participate in or upload state drivers license or ID data to the SPEXS national REAL-ID database — which necessarily implies state noncompliance with the REAL-ID Act — must be recognized as an essential element of any genuine state “sanctuary” policy against allowing state resources to be used for enforcement of Federal immigration policies and practices.

States including New York that don’t want state motor vehicle and driver licensing agencies to collaborate in Federal immigration crackdowns and other Federal witchhunts should promptly enact explicit prohibitions on SPEXS participation by their state agencies.

Here’s what that means and why it’s necessary:

According to a report by Hamed Aleaziz, the DHS considered several methods for obtaining data from “uncooperative” states or punishing those states or their residents, as the DHS is already doing to New Yorkers. But the first recommended option was to leverage the data-sharing element of state compliance with the REAL-ID Act:

Feb 10 2020

DHS doesn’t trust New Yorkers

In a new twist on the familiar US Department of Homeland Security (DHS) tactic of trying to intimidate state governments into sharing drivers license data with the DHS by threatening to harass, delay, or interfere with the rights of residents of those states when they travel, the Acting Secretary of Homeland Security has declared that New York residents won’t be allowed to apply for or renew participation in any of the DHS Customs and Border Protection (CBP) “trusted traveler” programs.

The DHS says that this is because New York’s new “Driver’s License Access and Privacy Act… effective December 14, 2019… forbids New York Department of Motor Vehicles (DMV) officials from providing… driver’s license and vehicle registration information to the United States Department of Homeland Security (DHS).”

That provision of New York state law appears to be intended to prevent New York DMV records pertaining to driver’s licenses issued to otherwise undocumented New York residents from being used by the DHS to round these New Yorkers up and deport them. The DHS doesn’t like it that New York, like at least fifteen other states, issues driver’s licenses on the basis of whether residents demonstrate competence to drive, not their immigration status.

The DHS knows that it has no authority to tell states to whom they can or can’t issue drivers’ licenses. Instead, it has used the data sharing prohibition in New York law as the pretext for retaliating against the state government by discriminating against New Yorkers.

As New York Governor Mario Cuomo pointed out in his response to the DHS decision, the DHS has never previously required applicants for any of its “trusted traveler” programs to have a driver’s license at all. No law supports the DHS demand for access to DMV data about drivers as part of its pre-crime assessments of would-be air travelers.

It’s clear from a comparison with DHS actions related to the REAL-ID Act that the DHS claim that it “needs” state DMV data to “vet” (i.e., make pre-crime assessments of) air travelers is pretextual, hypocritical, and fully warrants a judicial finding that it constitutes an arbitrary denial of equal protection of the law to New York residents.

The REAL-ID Act — unlike any law or regulation related to “trusted traveler” programs — does require states to share drivers license and state-issued ID data if they want to deemed “compliant” (although state compliance is optional). An outsourced national ID database has been set up by a nominally private contractor to allow states that want to comply to do so. However, New York, like more than half of the other states and territories subject to the REAL-ID Act, hasn’t chosen to participate in the SPEXS database or share its data.

But the DHS, despite this manifest noncompliance with the explicit statutory criteria for driver’s license data sharing, has chosen to certify New York (and almost all of the other noncompliant states and territories) as “compliant” with the REAL-ID Act.

Members of the House of Representatives have already asked the DHS for an explanation of the legal basis for its new discrimination against New York residents. And both the state of New York and the New York Civil Liberties Union have announced that they plan to sue the DHS on behalf of New Yorkers who are being discriminated against.

Feb 09 2020

Fact-checking the REAL-ID Act

Two weeks ago today, the Oregonian published an editorial containing multiple false factual claims exemplifying the “big lies” about the REAL-ID Act being propagated by the US Department of Homeland Security (DHS) and, in many instances, its collaborators at state driver licensing agencies.

We submitted the op-ed below, thinking that it would be the best way for the Oregonian to correct the factual errors in its editorial.

We’ve heard nothing in response, and no correction has been published.

Corrections to editorials are sometimes necessary. We certainly wouldn’t suggest that a newspaper is obligated to publish opinions contrary to its own. But when an editorial contains demonstrably false factual claims, we think the editors have the same ethical obligation to publish a correction as they would if those claims were made in a news story.

Since our commentary hasn’t been published, we’ve asked the Oregonian to publish a correction.

We’re publishing our commentary here, not just as a correction to the Oregonian editorial but as a correction to numerous other uncorrected news stories (we’ve called out the New York Times, among others, for amplifying these same DHS lies in the past) repeating the same DHS lies:

Feb 07 2020

The nightmare of airport facial recognition

[TSA Biometrics Roadmap, September 2018. Note that face ID will be used for all air travelers and that all use of physical ID credentials is “phasing out” in favor of facial recognition and digital tokens on mobile devices.]

[IATA airline vision for shared use of facial recognition by governments, airlines, and airports]

The ACLU has released an important white paper on airport facial recognition by ACLU senior policy analyst Jay Stanley. Citing some of our previous reporting and analysis, the ACLU white paper focuses, appropriately, not so much on the details of current use of facial recognition at airports, but on where governments and the aviation industry — who share a an explicitly-recognized interest in common use of facial recognition — say it will lead if we don’t stop them.

Driving the dystopian trend called out in the ACLU white paper is the malign convergence of interest between governments that want to use facial recognition and other techniques of compelled and automated identification for surveillance and control of travelers’ movements, and airlines, airports, and other businesses that want to share use of the same identification systems and data for business process automation and commercial tracking and profiling of travel customers.

Below are some key excerpts, but we encourage you to read the full ACLU white paper:

Customs and Border Protection’s new airport face recognition system has attracted a lot of attention and criticism, most recently last month when the agency backed away from suggestions that it would make the program mandatory for American citizens….

CBP officials argue that this program doesn’t involve mass surveillance. But CBP’s program still involves the mass collection of photographs of the general public….

The biggest harm from this program, however, is likely to come from the investment that it represents, the precedent it sets, and the path it puts us on as a society.

And where that path leads is a nightmare. It hardly takes a paranoid flight of fancy to foresee this program morphing into something far more comprehensive and dystopian — a world where face recognition is used throughout our public spaces to scrutinize our identity, record our movements, and create a world where everyone is constantly watched….

DHS and the aviation industry as a whole have a sweeping vision of expanded use of face recognition in the air travel context, and the government itself has already laid out — and begun following — a very specific, clear, and well-defined pathway for how the current program leads to a much broader implementations of face surveillance at the airport. And from there, it will be poised to expand far beyond the airport.

Here is what that pathway looks like:…

Papers, Please!

The Identity Project