Jul 28 2020

Senate bill would exempt REAL-ID from due process and oversight

Rather than responding to our comments on the latest proposal by the Department of Homeland Security to require ID for airline travel, the DHS has quietly gone to Congress to try to get the law changed so that it doesn’t have to answer us, and to preclude potential litigation to challenge an ID requirement or defend people who try to fly without ID.

A bill introduced earlier this month in the Senate, and already approved in commitee, would exempt the implementation and administration of the REAL-ID Act from normal administrative requirements for due process in rulemaking and oversight and transparency in demands by Federal agencies for information.

Included in S. 4133, both as introduced and as amended and reported by the commiteee, are provisions that would allow the Secretary of Homeland Security, at his or her “discretion”, to issue regulations and administer the REAL-ID Act without regard for the Paperwork Reduction Act (PRA) or the notice-and-comment requirements of the Administrative Procedure Act (APA).

As of now, no comparable bill has been introduced in the House. (Several bills to amend the REAL ID Act are pending in the House, but none of them contain PRA or APA exemptions.) It’s unclear what effect these provisions would have if enacted. All Federal agencies are, of course, still subject to Constitutional requirements for due process. But these provisions of S. 4133  appear to be a direct response to the objections we raised in May 2020 to the latest DHS proposal to impose an ID requirement for airline travel without complying with the PRA or the APA.

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Jul 23 2020

CBP to buy license-plate reader data to track vehicles away from borders

Are parking garages and toll roads spying on innocent motorists for Federal police?

Reversing a decision made in response to public pressure in 2014, US Customs and “Border” Protection (CBP) plans to pay a commercial aggregator of license-plate reader data to track vehicles that aren’t near any US border or in the “border zone” within 100 miles of coasts and borders where CBP has its own license plate readers, according to a Privacy Impact Assessment (PIA) published this month.

According to the new PIA, the aggregated commercial database that CBP is paying to query includes “nationwide… license plate image information from private businesses (e.g., parking garages), local governments (e.g., toll booth cameras), law enforcement agencies, and financial institutions via their contracted repossession companies.”

The PIA is worded in the future tense (“CBP plans to…”), but the contract is describes may already have gone into effect, or could do so at any time.

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Jul 17 2020

FBI enlists reservation services to spy on travelers

[The role of CRSs in the travel data ecosystem and government access to airline data. Slide from Identity Project presentation on C-SPAN, April 2, 2013.]

A report by Thomas Brewster published yesterday by Forbes discloses that the FBI has used court orders issued under the “All Writs Act” (AWA) to order operators of computerized reservation systems (CRSs) to provide weekly reports on any new reservations made by specified persons of interest, for periods of as long as six months at a time.

The article in Forbes includes a copy of one of these orders issued to Sabre, which mentions, by way of legal precedents, some other such orders issued to Sabre:

Forbes also describes a similar All-Writs Act order issued to Travelport, another of the three major CRS operators.

Who are these CRSs? What are we to make of these court orders? And is there anything really surprising about the newly-revealed All Writs Act orders to Sabre and Travelport?

This report in Forbes and these orders aren’t a surprise, but they do provide positive confirmation of (previously suspected) facts about US government activities and US law that may be of considerable significance to challenges to travel surveillance under the laws of other countries including the European Union, Canada, and possibly others.

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Jul 16 2020

European court (again) finds US data protection inadequate

Today the highest court in the European Union ruled (summary, full decision) for the second time, that US law does not provide an “adequate” level of protection for personal information transfered from the EU to companies or servers in the US.

What does this mean for Passenger Name Records (PNRs) or other records of our travels?

Understanding the implications of today’s decision — especially with respect to airline reservations and other  information about when, where, how, and with whom we have traveled — requires some review of the background:

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Jul 03 2020

Two courts deny injunctions against state restrictions on interstate travel

Following separate hearings yesterday, two Federal District Court judges in New York and Hawaii denied applications for temporary restraining orders against state health orders mandating quarantine of some or all people arriving from out of state.

A ruling in Corbett v. Cuomo was issued orally, immediately following argument by phone, by Judge Lorna Schofield in New York.  A written ruling in Carmichael v. Ige was issued late last night by Judge Jill Otake in Hawaii, following an afternoon hearing by videoconferencing.

Neither of yesterday’s rulings is a final decision in either of these cases, even at the District Court level. Both cases are continuing, and motions for temporary restraining orders can be renewed if conditions change and/or new evidence becomes available. The standard that must be met to persuade a court to issue a temporary restraining order or preliminary injunction, especially against government action, is always high, and is generally higher than what must be shown to support a favorable decision on the merits.

The judges issuing yesterday’s rulings indicated a disturbing willingness to accept conclusionary hand-waving, by anyone designated by the state as an expert, as sufficient to justify restrictions on the right to travel. During the oral arguments, both judges paid lip service to the idea that there might be some limits on what state authorities could do once they invoked the magic words, “because pandemic“.  But neither Assistant New York Attorney General Matthew Lawson nor Hawaii Attorney General Clare Connors was prepared to say where those limits might be, and neither of the judges’ rulings spelled out meaningful criteria or limits to state officials’ discretion.

We are concerned, and the public should be concerned, if Federal courts wash their hands of oversight over state officials, and leave it to “discretion” of those state officials to decide for themselves to what extent they can infringe on people’s fundamental right in the name of whatever they consider to be the exigency of the moment, whether that be defense against Communism, anarchism, terrorism, pandemic, or tomorrow’s demon of the day.

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