Papers, Please!

The Identity Project

Author Archives: Edward Hasbrouck

Sep 11 2017

California DMV proposes to “comply” with the REAL-ID Act

On September 1, 2017, the California Department of Motor Vehicles quietly published a notice of proposed regulations that would purportedly allow the California DMV to issue drivers licenses and state ID cards that would be “compliant” with the Federal REAL-ID Act of 2005:

For many years, the California DMV has appeared intent on eventual “compliance” with the REAL-ID Act, regardless of whether that compliance was authorized by the legislature. The current DMV rulemaking proposal to bring California into “compliance” with the REAL-ID Act by administrative fiat is the latest and most significant step along that path, and a disturbing effort to bypass legislative debate.

We encourage all Californians who are concerned about freedom of movement, Federal commandeering of state agencies to function as agents for enforcing Federal restrictions on individual rights, and lack of transparency, oversight and accountability for biometric and ID databases to submit comments opposing the proposed regulations and, if you can make it to Sacramento, to testify at the hearing on October 16th.

Read More →

Sep 08 2017

No US passports for “terrorist sympathizers”?

Bills are moving forward in both houses of Congress which, if approved, would mandate the administrative, extra-judicial revocation, non-renewal, and refusal of issuance of a US passport to any US citizen, even if their citizenship is unquestioned and they have been accused of no crime, but “whom the Secretary [of State] has determined is a member of or is otherwise affiliated with an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).”

The proposed legislation would leverage administrative determinations related to immigration (which US courts have allowed to be largely exempted from judicial review insofar as they only affect foreigners who aren’t considered by the US to have the same human rights as US citizens) to impose a categorical ban on certain US citizens leaving or entering the US except at the (standardless, i.e. arbitrary) “discretion” of the Secretary of State.

Since June 1, 2009, US citizens have been forbidden by Federal law and regulations from crossing any border into or out of the US by any means (land, sea, or air) without a passport, passport card, or Federally-approved “enhanced” drivers license. Denial of a passport thus amounts to a categorical ban on leaving or returning to the US. As such,  it is a blatant violation of the rights of US citizens pursuant to the First Amendment “right of the people… peaceably to assemble” and their human rights pursuant to Article 12 of the International Covenant on Civil and Political Rights:

2. Everyone shall be free to leave any country, including his own….

4. No one shall be arbitrarily deprived of the right to enter his own country.

The proposed law would not define how, on what basis, according to what procedures, or using what standard of proof the Secretary of State would make determinations as to membership or other “affiliation” of a US citizen with a blacklisted organization.  To make matters worse, the bills proposing this travel ban for US citizens associated with blacklisted organizations contain no definition of “member” or “otherwise affiliated”.

If you don’t like the decision of the Secretary of State, the bill would provide you with a “Right of Review” entitling you to a hearing before … the  Secretary of State.

Substitute “Communist” for “terrorist” in the proposed legislation, and it becomes clear that these bills would recreate the worst of the guilt-by-association witch-hunting of the MyCarthyist and other Red Scares.

Commie sympathizer? No passport for you! Terrorist symp? No passport for you!

Read More →

Aug 01 2017

Biometric entry/exit tracking of US citizens

We were invited to a briefing session today at U.S. Customs and Border Protection (CBP) headquarters: “an information sharing session and open dialog …  with external privacy stakeholders” to discuss “recent enhancements to CBP’s biometric exit initiatives” and “CBP’s implementation plans for a biometric exit system“.

Although we weren’t able  to make it to Washington for today’s meeting, we have many questions about CBP’s ongoing (and illegal, as discussed below)  photographing of the faces of US citizens entering the US, and the agency’s plans to expand the current (also illegal) trials of exit photography to include most or all US citizens leaving the country.

We look forward to another chance to quiz CBP officials about these programs and their (lack of) legal basis. More importantly, we hope that members of Congress and the public will ask hard questions about these programs if regulations or legislation are proposed that would purport to authorize them.

We share the general concerns raised by others about the use of biometric information such as facial photos (mug shots) for suspicionless dragnet surveillance of any travelers. The right to leave any country is explicitly guaranteed by international treaty (Article 12 of the ICCPR) as a human right independent of citizenship.

But we find it especially objectionable — and likely to be illegal — that CBP is extending these surveillance schemes to US citizens. Here are some of the issues: Read More →

Jul 20 2017

Fact-checking the FAQs on ID to fly

In May and June of 2017, several new FAQs about “requirements” for travel on common-carrier airlines were posted on TSA.gov and DHS.gov:

Statements about current and future ID “requirements” similar to those on these websites have also appeared on official signs in some airports.

It should go without saying that neither government websites nor informational signs in airports create legal rights or obligations or can be relied on as authoritative statements of the law.

Federal law is contained in the US Constitution, international treaties duly ratified by the US in accordance with the US Constitution, the US Code, and US Public Laws. Federal regulations are contained in the Code of Federal Regulations. The Freedom of Information Act requires that binding Federal agency rules, regulations, and orders of general applicability be published in the Federal Register.

If you want to know what the law says, you need to read the law, not press releases from government agencies or anyone else (including us!).

This is especially important with respect to the TSA, since the TSA website and TSA signs in airports have for years included statements about ID requirements to fly that have been disclaimed by TSA witnesses testifying under oath and by TSA lawyers arguing before Federal courts.

So what is the TSA saying now about ID to fly? Is it true? And is it legal?

The TSA’s latest public statements are more accurate than some of the agency’s previous press releases about ID to fly, and may (although we can’t really tell, given the absence of fomal proposals or published rules) accurately describe the changes the TSA intends to implement. But major questions remain about the legality of both current and possible future ID practices at TSA and contractor checkpoints at US airports.

Read More →

Jul 16 2017

CBP is taking mug shots of US citizens who leave the country

US Customs and Border Protection (CBP) has expanded its photography of the faces of all non-US citizens entering or leaving the US (under the “US-VISIT” program) to add mug shots of US citizens leaving the country, starting with all passengers on a daily flight on United Airlines from Washington Dulles Airport (IAD) to Dubai, U.A.E. (DXB).

This exit photo scheme is part of a larger program of biometric traveler tracking for which CBP and DHS recently opened an entire new database management and airport procedures simulation facility.

US citizens have the legal right not to submit to this mass surveillance and travel control scheme. But as with your right to fly without ID, CBP notices at airports won’t tell you that. You need to know your rights and be prepared to assert them.

Read More →

May 23 2017

TSA reveals that “Naked American Hero” John Brennan wasn’t alone

Last week three judges of the 9th Circuit Court of Appeals upheld the TSA’s administrative decision to fine “Naked American Hero” John Brennan $500 for taking off all his clothes to protest TSA’s practices and to show that he wasn’t hiding any explosives under his clothes despite a false-positive result from a TSA swab test for residue of explosives.

At the same time, the TSA revealed that Mr. Brennan was not alone: At least two other air travelers have been fined in  recent years for taking off all their clothes in response to TSA demands that they submit to “pat-down” searches for weapons and explosives.

The judges on the 9th Circuit panel claimed not to believe that viewers would understand Mr. Brennan’s symbolic speech — notwithstanding the public reaction that made clear that Mr. Brennan’s expressive intent and message were perfectly clear to those who heard about what he had done. According to thre court’s “unbpublished” (it;s actually public, but can’t be cited as precednt in future cases) opinion:

Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. Therefore, his conduct is not protected by the First Amendment.

The TSA fine was based on the claim that Mr. Brennan “interfered” with TSA screening because the TSA stopped screening him in order to stare at, or perhaps in order to avert their eyes from, Mr. Brennan’s naked body, or diverted their attention to trying to shield other travelers from sight of him.

But the TSA never claimed that Mr. Brennan’s nakedness violated any Federal law or regulation, and the local courts dismissed the criminal charges brought against him under state and municipal law on the grounds that his nakedness was, in the circumstances, protected by Oregon law. Mr. Brennan could legally have shown up at the TSA checkpoint already naked, and the duty of the TSA would have been to allow him to proceed unless “screening” showed him to be a threat to aviation security.

TSA staff and contractors are often distracted from their duties by the appearance of the travelers they are inspecting and groping. But that’s not a lawful basis for sanctions against those travelers. Mr. Brennan is not responsible for the decision of the TSA staff to stop doing their job because of what he looked like or how he was (legally) dressed or undressed.

The court found that the TSA rule against “interfence” isn’t unconstitutionally vague, even as applied to Mr. Brennan’s entirely peaceful and nonviolent conduct:

We have long recognized that “‘interfere’ has such a clear, specific and well-known meaning as not to require more than the use of the word[] . . . in a criminal statute.” In other words, the word has a “settled legal meaning[].” And courts have often defined and applied it, but never in a way that would lead a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint.

The court’s error, of course, is the mistaken claim that it was Mr. Brennan’s actions, rather than the choice of the TSA to abandon their duties and refuse either to screen a naked man or allow him to proceed once they could see he had no concealed weapons, that “led to” the closure of the checkpoint.

The 9th Circuit was the first (and only) court to review the Constitutionality of the TSA’s administrative fine of Mr. Brennan. TSA administrative decision-makers are forbidden from considering whether the regulations, policies, and practices they enforce are legal or Constitutional.

Brennan v. TSA and DHS was fully briefed before the 9th Circuit two years ago. Earlier this year, after a long silence, the court scheduled oral argument, which was to have been held earlier this month in Portland. Then, on its own initiative and without explanation, the court cancelled the scheduled oral argument, and decided the case a few days later on the written arguments. Our best guess is that one of the three judges on the panel had questions about a draft opinion, but was persuaded or decide to withdraw them.

Mr. Brennan discussed his original protest and his thoughts on the 9th Circuit decision in a lengthy interview with Portland TV station KGW. Some excerpts:

Read More →

May 10 2017

New long form proposed for (some) applicants for U.S. visas

The Department of State has requested “emergency” approval  from the Office of Management and Budget for a new questionnaire which some applicants for U.S. visas would be required to complete.

The questions on the proposed new “long form” for disfavored visa applicants would include:

  • Travel history during the last fifteen years, including source of funding for travel [how many frequent business travelers would be able to provide a complete and accurate 15-year retrospective itinerary of their travels?];
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant [for an unspecified time period, so perhaps meaning for your entire life];
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

Applicants required to complete this form could include tourists and other short-stay visitors (business, visiting friend and relatives, etc.) as well as applicants for work, student, refugee, or other visas.

As with the “long form” supplemental questionnaire for U.S. citizens applying for passports, some but not all applicants for visas to visit or reside in the U.S. will be required to complete the proposed new form. The State Department says it expects to require about 65,000 people a year, or half a percent of all applicants for U.S. visas, to complete the proposed new long from.

As with the long form passport application, there are no publicly-disclosed standards or procedures for judicial review of decisions by State Department staff to require particular individuals to complete the long form. Those decisions would be “discretionary”, meaning that they would be arbitrary and could be discriminatory.

Most people would be unable to provide complete answers to some of the questions on the long from, or would inevitably leave things out or make mistakes that would provide a basis for denial of their application.  The proposed “discretionary” long form is thus a pretext for arbitrarily selective denial of entry to the U.S., at the whim of State Department staff and/or on the basis of secret pre-crime algorithms, as well as of arbitrarily selective surveillance of certain foreign citizens.

Comments on the “emergency” proposal for this new questionnaire can be submitted to the Office of Management and Budget through May 18, 2017.

Apr 27 2017

Is the TSA checking domestic airline passengers for warrants?

[Entities and data flows involved in decision-making (“vetting”) about travelers. Larger image, PDF with legend.]

The latest annual report on data-mining by the Department of Homeland Security contains a disturbing hint that the TSA may have gotten the ability to include checks for warrants and police “wants” in its “vetting” of passengers on domestic airline flights.

This would turn airline check-in counters and kiosks and TSA checkpoints for domestic air travel into dragnet suspicionless warrant checkpoints.

According to page 16 (page 19 of the PDF) of the newly-released 2016 DHS Data Mining Report, “An annex to this report containing Sensitive Security Information (SSI) about Secure Flight’s use of ATS-P is being provided separately to the Congress.”

What data from ATS, to which the TSA didn’t already have independent access,  is being used by the TSA as part of Secure Flight? For what purpose?

In the diagram above (larger image, PDF with legend), the solid green line shows the transfer of data from the FBI’s “National Criminal Information System” (NCIC) criminal history database to CBP’s “Automated Targeting System” (ATS) for use in “vetting” international airline passengers. The dashed green line shows the newly-disclosed transfer of ATS data to the “Secure Flight” system used by the TSA to “vet” domestic airline passengers. This could allow the TSA to check all domestic airline passengers for warrants and “wants” listed in NCIC, as CBP already has the ability to dos for all international airline passengers on flights to or from the US.

There is no explicit mention in the public portion of the DHS report of TSA use of NCIC data for decision-making (“vetting”) about domestic air travelers. But as the diagram above shows, almost all of the other data contained in ATS is already available directly to the TSA for use in Secure Flight. It’s not clear what data from ATS, other than criminal history data imported to ATS from NCIC, the TSA doesn’t already obtain directly without needing to get it from ATS.

Records of arrest warrants in NCIC are often inaccurate, as we have noted before. It’s especially common for the issuance of a warrant to be reported to the FBI for inclusion in NCIC, but for the later cancellation of that warrant not to be reported to NCIC. NCIC contains hundreds of thousands, perhaps millions, of listings for warrants that are no longer valid. Using TSA “vetting” of domestic airline passengers as a suspicionless dragnet for “wanted” individuals would inevitably result in the detention and arrest of many innocent people at TSA checkpoints on the basis of inaccurate NCIC data.

Normally, warrant checks are permissible only on the basis of reasonable articulable suspicion that a person has committed a crime. The current CBP checks of international travelers for warrants, police “wants”, and investigative “lookouts” have been permitted only as part of a judicially-created border exception to the 4th Amendment to the US Constitution. There is no comparable “airport exception” to the 4th Amendment that would allow suspicionless dragnet warrant checks on domestic travelers by the TSA. Travel is not an inherently suspicious activity. It’s the exercise of a Constitutional and human right, and cannot in itself be the basis for warrant checks.

Members of Congress should look closely at the secret annex to the 2016 DHS Data Mining Report, and question the DHS and TSA as to whether they are using, or intend to use, data obtained from NCIC (directly or indirectly through ATS or otherwise) to conduct warrant checks on domestic air travelers.

If any of our readers has information about someone being identified for arrest on an outstanding warrant (valid or invalid) on the basis of TSA “screening”, rather than on the basis of an independent police warrant check based on reasonable suspicion, please let us know.

Apr 21 2017

“Stand up to the corrupt Real ID Act”

[Guest commentary by Rep. Chris Tuck, Majority Leader in the Alaska House of Representatives, published in the Alaska Dispatch News, Fairbanks News-Miner, Juneau Empire, Mat-Su Valley Frontiersman, and Alaska Journal of Commerce]

I am disappointed that the Administration of [Alaska Governor] Walker has given in to the fear tactics and misinformation of the Department of Homeland Security and the Transportation Security Administration by putting forth legislation to make Alaska implement the Federal REAL ID Act and pay for it ourselves. It is my duty to set the record straight and make sure people have the facts they need to defend their rights.

The Department of Administration has been reporting that if we do not agree to comply with REAL ID we will not be allowed to use our state IDs to get through TSA checkpoints or to get on base. In reality there is no existing or proposed federal law or regulation requiring ID to travel at all.

A recent reply to a four-year-old Freedom of Information Act request to the DHS has shown that 77,000 people per year fly without ID, and only 2 percent who try are ever turned away. Not only that, it is the Pentagon and individual base commanders who decide what ID is required to get on base.

The Department of Homeland Security does not have authority over the Pentagon. That is why the DHS instead uses fear tactics and misinformation to try and force REAL ID on the states.

Read More →

Apr 19 2017

Fly, Don’t Spy!

Last December, over our formal objections filed with the Department of Homeland Security, US Customs and Border Protection began asking foreign visitors to the US to fill out the online form, shown above, requesting their user names on social media platforms form Facebook to GitHub.

As of then, and as of now, answering this question is still “optional”, although there’s no guarantee that those who decline to respond won’t be denied entry.

However, new Secretary of Homeland Security Kelly has begun speaking publicly about wanting to require foreign visitors to provide CBP not just with their user names but also their passwords for social media and email accounts.

In response, we’ve joined several dozen other organizations in a Fly, Don’t Spy! campaign to oppose “any proposal to require visa applicants, refugees, or other foreign visitors to provide passwords for online accounts, including social media, in order to enter the United States.”

Please add your name to the petition and the coalition mailing list for updates and actions at FlyDontSpy.com, and help spread the word.

More background: