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The Identity Project

Author Archives: Edward Hasbrouck

Mar 30 2021

Expanding travel policing beyond no-fly lists (and the Fourth Amendment)

According to an article in POLITICO based on interviews with unnamed “law enforcement officials,” the US Department of Homeland Security (DHS) is considering expanded use of airline reservation data  to target travelers  for more intrusive searches:

The department could begin analyzing the travel patterns of suspected domestic extremists, monitor flights they book on short notice and search their luggage for weapons, a senior law enforcement official told POLITICO. There have also been discussions about putting suspected domestic violent extremists — a category that includes white supremacists — on the FBI’s No Fly List, the official said. When suspected extremists travel internationally, officials may be more likely to question them before they pass through customs and to search their phones and laptops.

A second law enforcement official told POLITICO that conversations about monitoring domestic extremists’ travel have involved multiple federal agencies at the interagency level, including the FBI.

We’ve recently discussed what’s wrong with the no-fly lists (there are several, created and maintained by different, although interlocking, entities, for different ostensible purposes) and why they shouldn’t be used like this or in most of the other ways that they are now used.

As Gary Leff puts it in his View from  the Wing travel blog:

Denying the freedom of travel, without trial, is precisely the mob rule outside of the rule of law that we’re supposed to be pushing back on after the events of January 6th. Having the government ban travel on all airlines without judicial review is frightening in a democracy.

The latest article in POLITICO suggests tactics that go well beyond no-fly lists. It’s important to understand what’s being talked about, and how it would differ from previously-disclosed practices and exceed what is permitted by current law.

It’s crucial to recognize that, in this proposal, the DHS is testing the waters not for an expansion of existing authority, but an entirely new category of exception to the Fourth Amendment: a “pre-crime” search that is based on neither a warrant nor probable cause, but that — unlike an administrative search — targets individuals selectively.

Read More →

Mar 18 2021

Laundering Federal funding for the national ID database

The latest response to one of our Freedom Of Information Act (FOIA) requests shows the lengths to which the Federal government has gone to obscure its underwriting of the construction of a national ID database.

Supporters of  a national ID database know that there is resistance to exactly that idea. So they try to pretend that there is no such thing.

They can’t credibly claim that the SPEXS database doesn’t exist, so they try to pretend (1) that this isn’t a national database but merely a distributed national network of state drivers license and ID databases (which it could be, but isn’t, since it includes a national “pointer” database with a record of personal information for each drivers’ license or state-issued ID card), (2) that this State-to-State  network isn’t mandated by Federal law (a clearly false claim, since the Federal REAL-ID Act of 2005 requires that to be “compliant”, each state  must “Provide electronic access to all other States to information contained in the motor vehicle database of the State”), and (3) that this network and database are being built by states, not by the Feds.

The problem with this third and last line of rhetorical defense against opposition to the creation of a national ID database is that much of the funding actually is coming from the Federal government. But the Feds have gone to great lengths to obscure their role in funding the creation of the infrastructure for a national ID scheme.

Here’s how it works:

Read More →

Mar 05 2021

Court says you can sue TSA agents who don’t let you film them

Judge John A. Gibney, Jr. of the US District Court for the Eastern District of Virginia has ruled that TSA checkpoint staff can be sued (and, potentially, held personally liable for damages) for stopping a traveler from recording video with his cellphone of them searching (“patting down”) his wife, and ordering him to delete the video.

The initial decision in the case of Dyer v. Smith is likely to be appealed to the Court of Appeals for the 4th Circuit. But Judge Gibney’s ruling is an important step toward holding the TSA accountable to the 1st Amendment (freedom of speech and of the press) and 4th Amendment (freedom from unreasonable search and seizure) to the US Constitution.

In particular, Judge Gibney not only (1) recognized that members of the public have a Constitutional right to film at TSA checkpoints, and not to have their recordings seized, but also (2) rejected the claim that this right was not “clearly established” and thus that TSA checkpoint staff should have “qualified immunity” from lawsuits, and (3) allowed the lawsuit against the TSA to go forward, under the so-called “Bivens doctrine” already recognized by courts in other contexts, even though there is no specific law (other than the Constitution itself, which ought to suffice) providing for lawsuits against TSA staff who violate travelers’ Constitutional rights.

We are particularly pleased that Judge Gibney recognized that the Constitutional right to film the TSA is “clearly established,” contrary to the court finding in 2015 in Phil Mocek’s lawsuit against TSA checkpoint staff and Albuquerque Police that, while Mr, Mocek’s rights had been violated, the right to film at TSA checkpoints was not (yet) clearly established — so Mr. Mocek was not entitled to any redress through the courts for the violation.

The plaintiff, Dustin Dyer, is himself a lawyer, but served only as pro se local counsel to civil rights attorney Jonathan Corbett, one of whose specialties is TSA wrongdoing.

(Mr. Corbett is also, we are pleased to report, representing Sai in his challenge to the Constitutionality of 49 USC § 46110, the Federal law which establishes special and especially limited procedures and criteria for judicial review of “orders” issued by the TSA.)

As with Mr. Mocek, Mr. Dyer was able to recover the “deleted” video, although it’s not clear how important that may have been in deterring the TSA from making up stories about what happened, as the TSA and police did (unsuccessfully, in the face of video and audio evidence falsifying their official reports) with respect to Mr. Mocek.

It’s worth reading both Mr. Corbett’s brief in support of his client Mr. Dyer, and the amicus brief by Constitutional law professors Brandon Hasbrouck of Washington and Lee School of Law and Katherine Mims Crocker of William and Mary Law School (where Judge Gibney is also an adjunct professor). As friends of the court, these law professors note that “The logic of the single decision [the defendants] cite [Mocek v. Albuquerque] is quite strained.” Judge Gibney seems to have agreed.

Feb 25 2021

Precog in a Box

[Flowchart of “goTravel” software package developed by the government of the Netherlands and offered to U.N. members through the Countering Terrorist Travel Programme of the U.N. Office of Counter-Terrorism (UNOCT)]

National governments of all members of the United Nations are being pressured to implement new U.N. mandates for surveillance, profiling,  and control of air travelers.

These unprecedented mandates for the creation and deployment of new surveillance and “pre-crime” policing systems in every U.N. member state  are the result of a successful twenty-year campaign carried out by the US and its allies through the U.N. Security Council and the International Civil Aviation Organization (ICAO) as policy laundering proxies.

This U.N. mandate is illegal: it contravenes provisions of the International Covenant on Civil and Political Rights, to which almost all U.N. members are parties. It’s immoral: it goes against basic principles of justice, including the presumption of innocence and punishment for criminal actions rather than for inferred criminal states of mind. And it’s wrong: it presumes the existence of human and/or robotic “precogs” that can predict future crimes.

U.N. members that haven’t yet set up “pre-crime” police agencies to surveil and profile air travelers are being pushed by Security Council and ICAO directives, and pulled by offers of  their choice of free “Precog in a Box” software and other training and support from US Customs and Border Protection (CBP) through the World Customs Organization (WCO), or from the government of the Netherlands through the Countering Terrorist Travel Programme of the U.N. Office of Counter-Terrorism (UNOCT).

But how did we get here? What’s going on? And what’s wrong with this picture?

Read More →

Feb 10 2021

ID demand was unconstitutional, but sheriffs get “qualified immunity”

[Dashcam video of George Wingate being wrongfully arrested by Stafford County, VA Deputy Sheriffs, April 2017]

In its 2004 decision in Hiibel v. Nevada, 2004, the U.S. Supreme Court upheld a demand for a pedestrian to identify himself to police only on the basis that (1) there was already a reasonable articulable basis for suspicion that he had committed some crime before the police demanded that he identify himself, and (2) the state law at issue, as interpreted by the Supreme Court,  required only verbal self-identification (“My name is John Smith”) and not the production of ID credentials or other evidence of his identity.

You might think that a precedent established by the Supreme Court would be “clearly established”. But that would often be wrong, at least in the topsy-turvy world “qualified immunity“.

Some Federal Court of Appeals have held that police who unconstitutionally demand ID can be held liable for violating the civil rights of their victims — as, of course, they should be.

In other cases, however, such as that of Philip Mocek, Courts of Appeal have let ID-demanding police off the hook. The judges theory in these cases has been that, although the police demands for ID were unconstitutional, that illegality wasn’t yet “clearly established. The police might, judges speculated, have had a good-faith, although mistaken, belief that they had a right to demand ID in the particular circumstances at issue.

The latest example of this strained excuse for police impunity comes from the Fourth Circuit Court of Appeals in its recent decision in Wingate v. Fulford.

George Wingate was accosted by Stafford County, VA, Deputy Sheriffs while standing by his car, which he had pulled off the road to try to diagnose the cause of an engine warning light. Nothing about the circumstances gave the sheriffs reason to suspect Mr. Wingate of any crime, the court found. But the sheriffs nonetheless wanted to know who he was.

As captured on this dashcam video, Mr. Wingate knew and properly asserted his rights. The conversation between Mr. Wingate and Deputy Sheriff Scott Fulford went like this:

Fulford: Well, in Stafford County —
Wingate: Have I committed a crime?
Fulford: — it’s required.
Wingate: Have I committed a crime?
Fulford: No. I didn’t say you did.
Wingate: All right then.
Fulford: You’re still required to —
Wingate: Am I free to go?
Fulford: — identify yourself.
Wingate: Am I free to go?
Fulford: Not right now, no.
Wingate: Am I being detained?
Fulford: You’re not detained.
Wingate: Am I free to go?
Fulford: No.
Wingate: Am I being detained? If I’m not being detained, then I’m free to go.
Fulford: You’re not free to go until you identify yourself to me.

All this was, the Court of Appeals found, unconstitutional. And “You’re not being detained, but you’re not free to go” sound a lot more like a pretext for logging the identity and movements of a Black man than good faith. But the Court of Appeals let Fulford and his partner, Deputy Sheriff Dimas Pinzon, off scott-free for their false arrest of Mr. Wingate on the basis of qualified immunity (although they did allow Mr. Wingate to proceed with his case against the police for falsely detaining him in the first place).

Congress needs to end this nonsense by repealing qualified immunity.

Feb 04 2021

“Hypothetical” briefing ordered in TSA lawsuit

The most significant legal challenge since the creation of the Transportation Security Administration to the TSA’s attempt to operate outside the law, and to avoid judicial review of its actions, is coming to a head in the next month in the First Circuit Court of Appeals in Boston. It’s a David v. Goliath legal battle, and the plaintiff wants and needs help.

We’ve talked about Sai’s various challenges to TSA practices before. A little over five years ago, Sai (they go by only one name) filed a pro se challenge to the Constitutionality of 49 USC § 46110, the Federal law which establishes special (and especially limited) procedures and criteria for judicial review of “orders” issued by the TSA.

49 USC § 46110 exempts TSA orders from the usual jurisdiction of Federal District Courts. TSA orders can be reviewed only by the Circuit Courts of Appeal, where there are no trials. Circuit Courts must base their decisions on the “administrative record” as supplied by the  TSA, and must grant the truth of any TSA claims supported by “substantial” evidence, regardless of the existence of any (perhaps more persuasive) evidence to the contrary or impeaching the credibility of the TSA and its claims, and regardless of any evidence that the TSA doesn’t chose to include in its “administrative record”. Needless to say, no objections at all will be in the TSA-created “record” with respect to secretly-issued orders.

In a case of first impression, Sai challenged the Constitutionality of this law both on its face and as applied to them. This is the case that will determine, for all practical purposes, whether the TSA is subject to the rule of law, or can continue to make up and enforce its own secret “rules” as it goes along, changing or disregarding them at whim.

We won’t try to recount the history of the case. Suffice it to say that, although motion practice has been extensive, none of the fundamental issues have yet been addressed. The RECAP docket mirror of the docket doesn’t capture most of the filings in the Court of Appeals. There’s a link to a folder of court filings and other related  documents here on Sai’s website, but they haven’t been able to keep that index up to date.

A few days ago, after months of silence, the 1st Circuit went from “wait” to “hurry up” and  gave Sai just 30 days to brief all their remaining issues and claims, or have them deemed denied. Sai is indigent, proceeding pro se (on their own without a lawyer), and has substantial vision and other physical disabilities that limit the pace of their work.

But that’s not all, and maybe not the worst, of the unfairness in the Court’s latest order.

“Order” isn’t defined in 49 USC § 46110. But in other cases, the TSA has interpreted this definition as broadly as possible, to shield as many of its activities as possible from normal procedures for judicial review. And this is the exclusive procedure for review of such orders.

Sai still doesn’t know what orders the TSA has issued that might apply to them (and that the TSA might try to impose sanctions for unwittingly violating), or what if any basis the TSA claims for these orders. The TSA claims the right to keep all this secret from Sai, while submitting secret lists of secret orders, and secret arguments to justify them, to the Court of Appeals “ex parte and in camera”.

Here’s how the Court of Appeals has now told Sai to respond “hypothetically” to these secret arguments about secret laws:

The matter will proceed to briefing based on the administrative record as just designated. A portion of that administrative record has been accepted for filing ex parte and in camera, and petitioner’s request for clearance to access those materials is denied. Nonetheless, briefing shall proceed. The purpose of a proceeding of this sort is to allow for the challenge of specific agency orders, see 49 U.S.C. § 46110(a), not to facilitate broad discovery of agency policies and practices. With this purpose in mind, the court discerns no reason why petitioner cannot prepare a brief that fully conveys challenges to specific orders despite the unavailability of a portion of the administrative record. Petitioner need only clearly articulate the nature of any orders petitioner reasonably believes may have been disclosed in the sealed portion of the administrative record and then explain why such an order, if it exists, would be amenable to review under § 46110 and why the existence or enforcement of such an order would be illegal or unconstitutional. In other words, to the extent petitioner cannot discern from the publicly filed portion of the administrative record whether a particular order exists, petitioner may present arguments hypothetically assuming the existence of the order and explaining why such an order, if it existed, would be illegal or unconstitutional. Once briefing is complete, the ultimate merits panel will be in a position to review the full administrative record, including the portions of the administrative record filed ex parte and in camera. The ultimate merits panel can assess petitioner’s claims in light of that review.

All this to be completed, on Sai’s part, in the next 30 days.

If you thought arguing hypotheticals was for law school exercises and the bar exam, thnk again. Alice In Wonderland, here we come!

We think that any orders that have been issued in secret, can’t be disclosed to those who are supposed to obey them and against whom they are to be enforced, which are justified (if at all) only by secret arguments and/or secret evidence not subject to independent examination, and that can be challenged only “hypothetically” on the basis of guesses about what the orders are or what secret excuses have been made for them, are unconstitutional on their face, as is this “review” procedure itself.

Sai needs and wants legal help to make this argument to the Court of Appeals. One way or another, this case will set an important precedent. Sai is indigent and significantly disabled, and asked the court to appoint counsel for them. But that’s discretionary in civil cases, and the court declined. If you might be able to provide immediate pro bono legal assistance, please contact Sai ASAP.

 

Feb 01 2021

CDC orders air travelers to unmask for government surveillance

Putting government surveillance and control of travelers ahead of what is supposed to be their mission of protecting of the public against infectious diseases, the U.S Centers for Disease Control and Prevention (CDC) has ordered that, effective today, all air travelers must risk their lives by removing their face masks on demand of Transportation Security Administration (TSA) checkpoint staff or airline ticketing or gate agents.

Until today, as we have noted previously, many state and local health orders issued in response to the COVID-19 pandemic required everyone in public indoor spaces such as airports to wear face masks, without any exception that would have applied at TSA checkpoints. Although we are not aware of any litigation that ensued, air travelers could have asserted their right — and even their  duty — not to remove their face masks, under pain of criminal penalties for violating public health orders.

The CDC order effective today appears to be designed to preempt those state and local health orders, and open the door for the TSA, TSA contractors, and airline staff to endanger the lives of air travelers in the interest of surveillance and control (by the TSA) and “revenue protection” against transfers of nontransferable tickets  (by airlines):

The requirement to wear a mask shall not apply under the following circumstances: … When necessary to temporarily remove the mask to verify one’s identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.

The CDC order aloows — and, in fact, requires — TSA and airline staff and contractors to leave their masks on. Only travelers’ lives are to be endangered.

It remains unclear, of course, whether it is “necessary .. to verify one’s identity” either to the TSA, its contractors, or airline staff, much less whether looking at faces is the way to do so. We think not. But whatever the legality of “ID verification”, the CDC officials responsible for this unmasking order should be ashamed of their betrayal of their medical mission and for promulgating an “insecure flight” requirement.

Jan 26 2021

First appellate-court ruling on COVID-19 travel restrictions

Last week, the First Circuit Court of Appeals in Boston issued the first ruling by a Federal  Federal appellate court concerning restrictions on the right to travel imposed on the basis of the COVID-19 pandemic.

There have been other Federal District Court rulings on COVID-19 travel restrictions, as we have reported previously. But so far as we can tell, no other Federal appeals court has yet ruled on any of these cases. And while there have been other Federal appellate decisions concerning restrictions on gatherings and activities, they haven’t involved the right to travel.

The decision by a panel of the First Circuit came in the case of Bayley’s Campground v. Mills, which we mentioned before in a round-up of COVID-19 right-to-travel cases.

Bayley’s Camground v. Mills is a challenge by the owners and several frequent out-of-state guests of a campground in Maine to an Executive Order by Governor Janet Mills requiring 14 days self-quarantine by anyone entering the state of Maine, and prohibiting the operation of lodging services, including campgrounds, with limited exceptions.

Ruling on an interlocutory appeal of the denial of a motion for a preliminary injunction, the First Circuit panel upheld the District Court decision denying an injunction against enforcement of the Maine state order while the case is pending,  Most of the First Circuit opinion, however, is favorable to future challenges to state actions that encroach on the right to interstate travel.

First, the Court of Appeals found that it could consider the merits of the case, even though the challenged order was modified and partially rescinded while the case was pending:

A contrary ruling… would run the risk of insulating from judicial review an allegedly overly broad executive emergency response, so long as it is iteratively imposed for only relatively brief periods of time. Accordingly, we conclude that the plaintiffs’ request for injunctive relief from [the Executive Order’s] self-quarantine requirement is not moot,… and so we turn to the merits.

Second, the Court of Appeals accepted the District Court’s premise that there is a Constitutional right to interstate travel and that any state action which restricts the exercise of that right is subject to “strict scrutiny” including a requirement for the government to show that no less restrictive measure could adequately achieve the “compelling governmental interest” that is the goal of the restrictive measure.

The Court of Appeals  found that the state of Maine had produced sufficient evidence of the compelling need for the self-quarantine and other travel restrictions that the campground owners and would-be campers were unlikely to succeed on the merits. But the ruling concerns only the request for a temporary order while the case is pending.

Proceedings in the District Court were stayed pending the interlocutory appeal, but will now resume. No trial or final decision appears imminent.

Jan 19 2021

“Put them on the no-fly list!”

Flowchart of no-fly lists and the U.S. government's no-fly decision-making process.
[“How do you get on the no-fly list?” Larger image; PDF with legend.]

In the aftermath of the storming of the U.S. Capitol last week, there’s been a confused cacophony of calls to “put the rioters on the no-fly list.”

At the same time, there have been equally confusing claims and denials that some people found out that they had already been “put on the no-fly list” when they were denied boarding on flights home from Washington.

Are these people “on the no-fly list”? Could they be? Should they be? Is this legal?

More generally:

How do you get on the no-fly list? How do you know if you are on the list? How do you get off? What substantive and procedural legal standards apply?

The answers to all of these questions are much more complicated, and different, than many people seem to think — including the chairs of relevant Congressional committees, who ought to know better. The reality is that:

  1. There isn’t just one U.S. Federal government no-fly list — there are several, created by different agencies for different purposes.
  2. There are also non-list-based ways that real-time no-fly decisions can be made.
  3. No-fly decisions can be, and are, made independently, on the basis of different lists and other criteria, by multiple Federal agencies and by individual airlines.

So a better starting point for understanding what’s happening — before we can begin to assess whether it is legal or what should be happening — is to ask, “How can a would-be passenger be prevented from boarding a scheduled airline flight?”

The diagram above (larger version; PDF with legend of acronyms and color-coding) gives only a summary of the U.S. government’s no-fly decision-making process, not including individual airines’ no-fly decision-making practices. (We’ve published versions of the diagram before. The latest version above has been updated to include the Angel Watch Center, the CDC Do Not Board List and Lookout List, and the Watchlisting Advisory Council.)

As discussed in more detail below, no-fly decisions can be based on any of the following:

  • U.S. government no-fly orders:
  • Airline no-fly decisions, based on:
    • Airline conditions of carriage.
    • Airline no-fly lists (created and maintained separately by each airline).
    • Other non-list-based “rules” interpreted and enforced by airlines (most significantly the entry requirements described in the Timatic “travel information manual”).

How does all this work? Here are some FAQs about the no-fly list and no-fly orders:

Read More →

Jan 03 2021

REAL-ID Act amended, but DHS doesn’t get the exemptions it wanted

Amendments to the REAL-ID Act of 2005 were included in the Consolidated Appropriations Act of 2021, which was signed into law by President Trump on December 27, 2020.

But somewhere in the sausage-making that saw the REAL-ID Modernization Act and numerous other unrelated measures inserted into the 2,124-page omnibus pandemic relief and appropriations bill, the key provisions sought by the Department of Homeland Security (DHS) were removed from the final bill.

That leaves the DHS still required by existing Federal laws to respond to our objections, to request and obtain approval from the White House Office of Management and Budget (OMB), and to post OMB-approved notices at TSA checkpoints explaining what is required, and on what legal basis, before it can try to deny anyone passage through a checkpoint or travel by common carrier on the basis of their failure or refusal to show ID. Read More →