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The Identity Project

Monthly Archives: July 2024

Jul 29 2024

5th Circuit reads travel blacklists into Federal law

In a decision issued last week, the 5th Circuit Court of Appeals has offered the first appellate opinion on whether there is any basis in law for the U.S. government’s creation and use of a system of “watchlists” (blacklists) to determine who is allowed to travel by air and how they are treated when they travel, as well as to impose other sanctions.

Numerous lawsuits have challenged various aspects of the government’s blacklistsing system and its application to airline passengers, but this is the first time that any U.S. appellate court has ruled on whether Congress has given the various agencies that created, maintain, and use these lists any statutory authority to so so.

The 5th Circuit panel found multiple mentions in Federal law of the use “databases” for “screening” of airline passengers. But that begs the question that was actually presented. As the Council on American-Islamic Relations (CAIR) argued in their brief on appeal:

Below, both the district court and the Government presented a mishmash of statutory language, none of which clearly authorizes any of the Defendant agencies to create, maintain, administer, or use a million-name list to infringe on the liberty of U.S. citizens and foreign nationals alike….  High-level congressional authorization of general law-enforcement and national-security activity is self-evidently inadequate to satisfy the major questions doctrine. Even the more precisely-worded statutory provisions that the Government offers to justify specific uses of the watchlist fall short because they nowhere authorize the creation or maintenance of the watchlist in the first place. At bottom, a survey of the Government’s cited authorities reveals that Congress did not create the watchlist—unelected bureaucrats did….

The district court did not conclude that the text of any specific statute clearly authorized federal agencies to create, maintain, and use the watchlist. Instead, the district court followed the Government’s lead and cobbled together (supposedly) clear statutory authorization from a hodgepodge of different laws, none of which—whether viewed separately or together—comes close to supplying clear congressional authorization….

Other cited provisions may grant TSA the power to use the watchlist to screen passengers but nowhere authorize any agency to create, maintain, or administer the watchlist in the first place.

Congress’s after-the-fact acquiescence to an agency’s power grab cannot provide the clear congressional authorization for the agency’s action. Rather, Congress’s clear authorization must come before the agency asserts the power to significantly intrude on the liberty of millions of Americans.

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Jul 23 2024

What “consent” really looks like for the DEA and TSA

The Drug Enforcement Agency (DEA) and the Transportation Security Administration (TSA) have been working together for years to steal travelers’ money.

The DEA pays informers to finger people who might be flying with large amounts of cash, and gets the TSA to identify these people when they go through TSA checkpoints at airports, claim that they “consent” to be searched, and then find any money they are carrying and seize it through “civil forfeiture”.

The DEA carries out similar cash-seizure operations on Amtrak trains — mostly domestic trains that don’t cross the US border — in collaboration with US Customs and Border Protection (CBP).

A new video released by the Institute for Justice shows how this “consent” works in practice.

In the video, a DEA agent won’t take “I don’t consent to a search” for an answer. The agent follows an airline passenger onto their plane (without objection by airline staff), snatches the passenger’s carry-on bag, carries it off the plane, and refuses to return it. The agent claims the right to keep the passenger’s bag as long as it takes to get a warrant (although they don’t have that right, and don’t actually get a warrant).

This is not meaningful “consent”, and it’s not a valid legal basis for a search.

An ongoing class-action lawsuit by the Institute for Justice on behalf  of air travelers who have been searched without probable cause on the pretextual claim of “consent” in order to find, seize, and “forfeit” their cash has shown just how common this pattern of illegal search and seizure is.

We reported on the filing  of this lawsuit in 2020, and on the first substantive ruling in the case, in favor of the plaintiffs and allowing the case to move forward, in 2021.

Since then, the case has bogged down in foot-dragging by the DEA and TSA, resisting discovery of their records of  searches and seizures of cash from travelers at airports.

The DEA and TSA continue to claim — despite the initial ruling against them on this point —  that they don’t have an actionable “policy” of targeting travelers with cash for searches because they haven’t put this policy in writing. But the latest status report on discovery to date indicates that the DEA and TSA have made thousands of seizures of “bulk currency” from air travelers in recent years. This is clearly a routine and officially sanctioned agency practice, whether or not anyone has put it in writing.

The DEA and TSA claim that the volume of records of these searches and seizures would make producing them unduly burdensome. But the volume of these records is symptomatic of the scale and systemic nature of the problem — which is what the plaintiffs are trying to prove. The plaintiffs have suggested examining a statistical sample of the records of airport searches and seizures, but the DEA and TSA are resisting even that.

We wish the plaintiffs in this case and their lawyers success in their pursuit of justice for travelers.

Jul 12 2024

Opting out of facial recognition at airports

 

Next week the Algorithmic Justice League will be launching an awareness and  sousveillance campaign focused on the use of facial recognition in airports by the Transportation Security Administration (TSA) and its airport and airline partners.

The #freedomflyers campaign includes efforts to make travelers aware that the TSA claims that submitting to facial recognition is “optional”. The campaign also includes a free online Freedom Flyers Summit on “Resisting Airport Face Scans” on July 19th and — perhaps most importantly — a scorecard for travelers to report what actually happens when they try to opt out of facial recognition at airports.

In many cases, staff or contractors of airlines, airport operators, or the TSA tell travelers that facial recognition is required. In other cases, facial recognition turnstiles are unattended by any staff, leaving no apparent way to opt opt. Some facial recognition turnstiles are attended only by “line-minders” or security guards or subcontractors with no authority to allow travelers to pass through without submitting to mug shots.

Asking “Did the tech work?” is, of course, a trick question.

The purpose of facial recognition in airports is to enable tracking of travelers, without our being able to tell when, where, or by whom we are being tracked. If “Did it work?” means, “Did it enable those who want to track you to track you, without your knowledge?”, than by definition, if it “worked”, you won’t know.

You may know that your face was scanned once, perhaps when you entered the terminal or checked in or checked your luggage, but you may not know how many other times it was scanned, where, when, by whom, or for what purposes. The goal of public-private partnerships in airport surveillance is seamless multi-purpose data sharing and “curb to curb” traveler tracking through common-use embedded facial recognition infrastructure.

One thing you can do to mitigate the risk of hidden cameras is to wear a face mask in the airport, except when you are ordered to remove it by someone who has identified themselves as an authorized agent of the TSA and has told you that removing your mask is required as a condition of travel. If you have to remove your mask so that a human TSA agent can compare your face to the picture on your ID, make sure that you stand out of the line of of any visible cameras. If they try to point a camera at your face while you have your mask down, hold up your hand to block the camera and tell them you don’t consent to having your face photographed.

The TSA claims that removing your mask for a human check is required, but that being photographed is not. To date, no court has ruled on whether the TSA can require travelers to remove face masks or submit to mug shots or automated facial recognition. Nor has any court ruled on whether a common carrier could require removal of masks or submission to mug shots or automated facial recognition as a condition of carriage.

We welcome the AJL campaign to educate travelers about facial recognition in airports and to encourage them to opt out. Merely opting out won’t put an end to the practice, but it’s an important step. We look forward with interest to the responses to the AJL survey.