May 19 2020

TSA tries again to impose an ID requirement to fly

Air travel in the US has been reduced by more than 90%, measured by the numbers of people passing through checkpoints at airports operated by the Transportation Security Administration (TSA) and its contractors.

And the Department of Homeland Security (DHS) has postponed its threat to start unlawfully refusing passage to travelers without ID credentials compliant with the REAL-ID Act of 2005 for another year, from October 1, 2020, to October 1, 2021.

So relatively little attention is being paidright now to air travel or TSA requirements — making it the ideal time for the TSA to try to sneak a new ID requirement for air travel (to take effect in 2021) into place without arousing public protest.

Today, in collaboration with nine other organizations concerned with freedom of travel, identification, privacy, human rights, and civil liberties, we filed comments with the TSA in opposition to what is ostensibly a “Notice of intent to request approval from the Office of Mangement and Budget” for a new form, TSA Form 415.

Our comments were joined by the Identity Project, Freedom To Travel USA, Fiat Fiendum, Inc., National Center For Transgender Equality (NCTE), Restore The Fourth, Inc., Patient Privacy Rights, Defending Rights And Dissent, The Constitutional Alliance, Privacy Times, and Just Futures Law.

According to our comments, the TSA is attempting to “use the innocuous-seeming device of a request for approval of an information collection to introduce a fundamental and profoundly controversial change in substantive TSA requirements and the rights of travelers”: Read More

May 11 2020

Will courts finally make the TSA comply with FOIA?

The tenor of questioning by the judge in a Federal court hearing last week raises hope that the Transportation Security Administration (TSA) might soon be ordered to correct some of its longest standing and most systemic violations of the Freedom Of Information Act (FOIA).

It’s no exaggeration to say that, from its creation in November 2001, the TSA has acted with complete contempt for the FOIA law and the requirements that law imposes on the TSA and all other Federal agencies. Time after time, TSA failure to comply with FOIA has delayed, complicated, or completely frustrated our research and reporting on TSA policies and procedures, and has deprived the public of the opportunity for informed scrutiny and comment on what the TSA is doing, why, and with what effects on our rights.

One chronic problem is the way the TSA responds to FOIA requests for digital records.

Provisions of the FOIA statute that went into effect as part of the Electronic FOIA Amendments Act of 1996 —  years before the TSA came into existence — require that:

5 USC § 552(a)(3)(B)  — In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

When it set up its FOIA office and procured software for responding to FOIA requests, the TSA completely ignored this provision of FOIA. In a display of either gross incompetence or gross bad faith, the TSA and its parent the Department of Homeland Security (DHS) appear to have entirely omitted this legal requirement for production of records in any form and format in which they are readily reproducible from their procurement specifications and criteria for evaluation of proposals. Instead, the DHS and TSA standardized on the use of cloud-based FOIAXpress software that is designed to munge all records by converting them to rasterized images embedded in PDF files, regardless of the original file format.

There’s lots of other software that was, and is, capable of redacting files in native formats. But it’s impossible for any Federal agency to fulfill its FOIA obligations with respect to the form and format of production of records by using FOIAXpress. FOIAXpress should have been summarily eliminated from consideration for any Federal agency contracts as not capable of satisfying the EFOIA requirements. No Federal agency should ever have used it.

Read More

May 06 2020

First court ruling on a COVID-19 travel ban

Judge William Bertelsman of the U.S District Court for the Eastern District of Kentucky at Covington has issued a preliminary injunction prohibiting Kentucky state authorities from enforcing a “Travel Ban” order issued by Gov. Andy Beshear that prohibited most travel  into or out of Kentucky, and required anyone crossing the state line to self-quarantine for fourteen days thereafter.

In so doing, and in concluding that “the Travel Ban does not pass constitutional muster,” Judge Bertelsman has become, so far as we know, the first Federal judge to opine on the Constitutionality of any of the hodgepodge of restrictions on interstate travel that have been imposed across the country in the name of control of the spread of COVID-19.

We are pleased that Judge Bertelsman correctly recognized that the Kentucky travel ban based its restriction on criteria (state lines and residency status that are meaningless to the novel coronavirus) that are unrelated to the protection of public health.

Covington, KY, is located directly across the Ohio River river from the larger city of Cincinnati, OH, with which it forms a single cross-border interstate metropolis. Judge Bertelsman sits in Covington, KY, but was born in Cincinnati, OH. The main airport for Cincinnati is located in Kentucky, not in Ohio, and uses the airport code “CVG” for Covington. In normal, non-pandemic times, more than 200,000 vehicles cross the bridges between Covington and Cincinnati every day, with no more thought than they would give to crossing a bridge within either state.

The ruling this week on the Kentucky ban on interstate travel came in a lawsuit, Roberts v. Neace, filed as a class action on April 14, 2020. The complaint raised objections both to the ban on interstate travel and to other provisions of Gov. Beshear’s executive orders restricting mass gatherings  — including, but not limited to, gatherings for religious purposes — within the state of Kentucky.

Most of the argument on both sides, intervention by friends of the court, and news reporting about the case focused on the dispute over intrastate religion gatherings. Judge Bertelsman denied the plaintiff’s motion for a preliminary injunction on that claim, however, on the basis that it treated religious gatherings the same as all others, and was not specifically religious (or anti-religious) in intention or effect.

The claim that was upheld was against the interstate travel ban, on the following grounds which we hope that other courts considering similar cases will find persuasive:

The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.” Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“The constitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”).

To be valid, such orders must meet basic Constitutional requirements. As the Supreme Court has stated: “(E)ven though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” Aptheker v. Sec. of State, 378 U.S. 500, 508 (1964) (quoting NAACP v. Alabama, 377 U.S. 288, 307-08 (1964)).

The travel restrictions now before the Court violate these principles.

They have the following effects, among others:

  1. A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank.
  2. A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could be on an expressway and would involve the same negligible risk of contracting the virus.
  3. Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed.
  4. Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I-75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined.
  5. People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations.
  6. Who is going to provide the facilities to do all the quarantining?

The Court questioned counsel for defendants Beshear and Friedlander during oral argument about some of these potential applications of the Travel Ban, and counsel indeed confirmed that the Court’s interpretations were correct. (Doc. 38 at 9-13).

The Court is aware that the pandemic now pervading the nation must be dealt with, but without violating the public’s constitutional rights. Not only is there a lack of procedural due process with respect to the Travel Ban, but the above examples show that these travel regulations are not narrowly tailored to achieve the government’s purpose.

The trauma of 9/11 led to a tendency, all too pervasive even today, to treat air travel as per se more dangerous than other modes of travel and thus as warranting restrictions in the name of “security”, even though it was and remained the safest mode of travel.

We fear that the trauma of the COVID-19 pandemic will lead to a similar impulse to equate the risk of infection with the risk of disease, and to impose restrictions on travel on this basis. We are especially pleased, therefore, that Judge Bertelsman recognized that travel — in a closed private vehicle, for example — carries in itself little risk of disease transmission, and that restrictions on travel do not necessarily serve to restrict the spread of disease.

We hope that this common-sense analysis, based on recognition of the right to travel and strict fact-based scrutiny of proposed travel restrictions and the justifications for them offered by government authorities, is followed by other judges.

May 04 2020

Dare County tries to evade court review of its entry controls

Local government controls on travel to the Outer Banks (barrier-beach islands) of North Carolina remain in place, but local officials are making changes to try to head off a court decision on the Constitutionality of their emergency orders restricting free movement.

A month ago, as we reported earlier,  Dare County, North Carolina, set up checkpoints on all three roads leading into or out of the county. Police began denying passage along these public rights-of-way on the basis of  criteria including whether travelers have government-issued ID (even if they are passengers rather than drivers, or traveling on foot or by bicycle,  for which no drivers’ license is needed); what address is shown on their ID (if any —  U.S. passports, for example, show no address); which direction they are traveling; and whether they have been sponsored for an “entry permit” by an entity with a business license issued in Dare County.

County officials represented their emergency orders imposing these restrictions on travel  as health measures in response to the COVID-19 pandemic. But none of the criteria for who is allowed to pass through the checkpoints, or in which direction, have anything to do with whether travelers were believed, suspected, or likely to be infected with the novel coronavirus.

The emergency orders gave no indication of what, if any, procedures were available for administrative or judicial review of decisions to deny passage in or out of the county. But non-resident owners of homes in Dare County quickly brought suit in Federal court against the prohibition on traveling to their own seasonal, rental, or second homes.

Since then, the case has been referred for mediation, and the parties (non-resident property owners and the Dare County government) have requested and been granted a delay on the basis that they are in negotiations towards a possible settlement.

Today Dare County is beginning to allow passage across the bridges and into the county by non-resident owners of real property in Dare County, if and only if they have both an “entry permit” issued by the county and matching government-issued ID.

Read More