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The Identity Project

Monthly Archives: April 2026

Apr 21 2026

D.C. Circuit Court of Appeals keeps U.S. citizen on “no-fly” list

In an interlocking pair of decisions issued the same day by the same panel (one opinion written by the same judge who dissented from the other), the U.S. Court of Appeals for the D.C. Circuit has denied U.S. citizen Saad bin Khalid any meaningful review of the U.S. government’s decision to blacklist him and prohibit him from air travel to, from, within, or overflying the U.S. or on U.S.-registered aircraft.

Having been harassed by FBI and other U.S. agents every time he entered the U.S. since he was 16 or 17 years old, Mr. bin Khalid now lives in Pakistan with his wife and children.

The dissent from one of the two opinions tries hard to tease out a hypothetical procedural pathway to judicial review of a no-fly order in some circumstances. But the practical effect of this pair of decisions is that Mr. bin Khalid will have to fly to Mexico or Canada, then enter the U.S. by land, every time he he wants to return to the country of his citizenship. He will have to repeat that process in reverse to leave the U.S. and rejoin his family in Pakistan.

The knotted logic of both decisions rest primarily rests on 49 U.S.C. § 46110(c), a facially unconstitutional law stripping U.S. District Courts of jurisdiction over TSA “orders” and allowing review by Courts of Appeal only on the basis of the one-sided and secret “record” selected by the TSA for presentation to the Court of Appeals, with no confrontation of witnesses or adversary fact-finding at any stage of the process.

As the dissent sums up the problem in the panel majorities’ logic:

The majority ultimately reads section 46110 to strip the district court of more jurisdiction than it confers on this court. That means that neither we nor the district court can review Khalid’s claims that the Center improperly placed him on the terrorist watchlist.

The Court of Appeals also upheld the Constitutionality of basing this “no-fly” decision in part on evidence provided to the court but not to Mr. bin Khalid or his lawyers, and in part on evidence supposedly relied on by the Threat Screening Center to recommend blacklisting Mr. bin Khalid, but disclosed neither to Mr. bin Khalid, his lawyers, the Court of Appeals, nor the Administrator of the Transportation Security Administration (TSA) who was nominally responsible for the “order” adding Mr. bin Khalid’s name to the more than a million mostly Muslim names  on the U.S. no-fly list.

This was based on a finding  that  the right to travel by common carrier is not a “fundamental” right, and that in today’s world, the ability to travel by land or sea — between, say, Pakistan and the U.S. — is an adequate substitute for air travel:

Khalid may continue to travel to, from, and inside of the United States by means other than airplanes. As a result, the TSA Administrator’s order maintaining Khalid on the No Fly List does not infringe a fundamental right.

Given the unlikelihood that the Supreme Court will choose to review, much less overturn, these decisions of the Court of Appeals, what can be done?

The simplest way to insure that people like Mr. bin Khalid get their day in court would be for Congress to enact the Freedom to Travel Act. This bill would address each of the reasons that the Court of Appeals denied justice to Mr. bin Khalid. It would (1) write explicit recognition of the right to travel into Federal law, (2) create an explicit cause of action for deprivation of that right, and (3) removing TSA orders from the restrictions on judicial review in 49 U.S.C. § 46110(c).

Apr 08 2026

When you fly, you fly with ICE

Further confirming and providing more details about a story first reported here and later confirmed by the New York Times, Ted Hesson and Kristina Cooke of Reuters report that more than 31,000 records of domestic airline reservations obtained by the Transportation Security Administration (TSA) through its Secure Flight passenger surveillance and control system were passed on by the TSA to Immigration and Customs Enforcement (ICE) in the first year of the Trump 2.0 Administration. More than 800 arrests by ICE during that time were based on Secure Flight data.

The TSA has exempted Secure Flight records of domestic air travel from the provisions of the Privacy Act that would normally entitle each traveler to obtain, on request, an “accounting of disclosures” showing what information about them was disclosed by the TSA to which other agencies or third parties. So there is no way for you to find out whether the TSA has provided ICE with your air travel plans, so that ICE can arrange an unwelcoming party for you at the airport on departure or arrival or while changing planes. You have to assume that ICE has the details of all of your planned air travel in the U.S.

The arrests at airports reported to date all appear to have been of non-U.S. citizens. As we noted when we first reported on the additional of immigration lookouts to the Secure Flight ruleset, the TSA has long wanted to expand its airport checkpoints into all-purpose law enforcement checkpoints by checking all airline passengers against the FBI’s aggregated NCIC database of wants and warrants. That still doesn’t appear to be happening, but we have no confidence that the TSA will confine its activities within Constitutional limits, especially in an area where it has exempted itself from accountability.

Please let us know if you hear of U.S. citizens being arrested at airports on outstanding warrants, especially if there is no obvious way police would have known of their travel plans without having been tipped off by the TSA based on airline reservation data.

Apr 06 2026

Is a meeting “public” if you have to show REAL-ID or pay a fee?

At our request, the Minnesota Commissioner of Administration has directed the state’s Data Practices Office (DPO) to issue an advisory opinion as to whether the Minneapolis-St. Paul Metropolitan Airports Commission (MAC) violates the state’s Open Meeting Law by holding its meetings in an area at the MSP airport accessible only by passing through a TSA checkpoint, which requires either REAL-ID compliant ID, a passport, or paying a $45 fee.

The Commissioner has complete discretion to decide when to issue an advisory opinion. We are pleased that they have decided to do so in this case. We thank the DPO for their (unsuccessful buy helpful) efforts at informal mediation with the MAC, which preceded our request for a formal advisory opinion.

So far as we know, this will be the first official review by any state or local government body, under any state or local open meeting law, of whether a meeting of a government body can be considered “public” or “open” if REAL-ID or a fee is required for entry.

As stated in the Commissioner’s notice of the preparation of an advisory opinion, under Minnesota law, “Although the advisory opinion will not be binding on the Board, a court must give the opinion deference.”

We look forward to the Commissioner’s opinion. According to the notice , “Section 13.072 requires the Commissioner to issue an opinion within 50 days of receipt of the request. Therefore, the Commissioner must issue the opinion by May 21, 2026.”

Apr 01 2026

OMB gives blanket approval for USCIS social media surveillance

The White House Office of Management and Budget (OMB) has approved a request by US Citizenship and Immigration Services (USCIS) to require all individuals applying for or associated with applications for US visas, visa-free entry, residency, or citizenship to identify all social media accounts they have used in the last five years.

The new “generic clearance” approved by OMB spares USCIS from having to justify the purpose, relevance, and legality of demanding social media account information separately for each USCIS form or web page on which this information is demanded.

This approval by the current White House expands on the demand for social media identifiers first approved by OMB as one of the last actions of the Obama Administration.

Along with some other agencies, USCIS has adopted a new format for its analysis and response to comments on its regulatory proposals. The summary of comments appears to have been generated by an artificial intelligence chatbot. Unlike previous responses to comments that typically ignored or distorted many of the objections to agency proposals, the summary provided by USCIS to OMB is surprisingly accurate and complete. But rather than actually responding to the objections raised by the Identity Project and others, USCIS simply regurgitates a summary of its original claims about the proposal.

For example, in response to comments pointing out that collection of social media postings violates the Privacy Act’s prohibition on collection of information about acts protected by the First Amendment without explicit statutory authorization, USCIS merely repeats the conclusionary claim that, “Consistent with the requirements of the Privacy Act (5 U.S.C. § 552a(e)(7)), DHS does not maintain records ‘describing how any [citizen of the United States or alien lawfully admitted for permanent residence] exercises rights guaranteed by the First Amendment, unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.'” There’s no meaningful engagement with the comments or explanation of the basis for claiming that postings on social media aren’t protected by the First Amendment or that collecting this information is expressly authorized by any statute — which it isn’t.

The USCIS summary acknowledges our comments that social media surveillance violates US obligations pursuant to international human rights treaties. But in response, USCIS merely summarizes the statutes it claims implicitly authorize these actions — which of course says nothing about whether those statutes comport with US treaty obligations.

The response to comments also repeats the false and conclusionary claim that that, “Social media involves publicly available information that is accessible to anyone without a warrant”, even though in fact the identification of an individual with an anonymous or pseudonymous social media account isn’t otherwise accessible without a warrant.

We urge other countries not to follow this bad example of the US government.