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The Identity Project

Author Archives: Edward Hasbrouck

Jul 06 2010

Lawsuit seeks suspension of TSA virtual strip-searches

Last year the Identity Project was one of more than 30 organizations that filed a joint petition with the DHS requesting a formal rulemaking on use of virtual strip-search machines or “body scanners”, then being referred to by DHS and TSA as “whole body imaging” machines and since re-euphemized as “advanced imaging technology”, as though the name itself could make them inherently more “advanced”.

In May of this year, after the DHS ignored our petition and moved forward with deployment of virtual strip-search machines without a formal rulemaking, we joined most of the same groups in filing a renewed petition for a formal rulemaking (including an opportunity for public comment) and for rescinsion of the rules requring submission to a virtual strip-search as a condition of passage through TSA checkpoints and travel by air common carrier.  We also filed a series of FOIA requests and appeals, which the TSA has to date ignored, for the TSA Standard Operating Procedures, screening-related directives to airlines, and other documents embodying the secret rules that include the virtual strip-search requirements.  We’ve also speculated about what legal recourse travelers denied passage on the basis of refusal to submit to a virtual strip-search might have, particularly in jurisdictions abroad where it would be easier than it is in the USA to raise issues of international human rights law.

This past Friday, July 2nd, the Electronic Privacy Information Center (EPIC) filed a federal lawsuit seeking to have the Court of Appeals for the District of Columbia review the TSA and DHS failure to conduct a formal rulemaking before deploying virtual strip-search machines and issue an emergency stay of the TSA/DHS decision to deploy and require them as a condition of passage through checkpoints and air travel.

The Identity Project was a party to the original petitions for rulemaking, and while we aren’t a party to the EPIC lawsuit, we fully support it.

As EPIC notes in its latest filings, even after September 11th Federal courts have upheld “administrative (warrantless, suspicionless) searches in airports only to the extent that they are limited to what is “necessary” — meaning that they are actually effective and are the least restrictive available means — to detect weapons and explosives. Even beyond the specific issue of virtual strip-searches, this lawsuit is likely to be significant in helping define the bounds of TSA authority to conduct ever more intrusive searches as a condition of common-carrier travel.

The petition filed in May by EPIC, the Identity project, and others stated that, “The undersigned file this petition pursuant to 5 U.S.C. § 553(e), which requires that ‘[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.'”  Notwithstanding this explicit statement, the DHS and TSA responded with the bizarre claim that, for unspecified reasons, it did not constitute such a petition.  Unfortunately, that’s characteristic of the behavior of the DHS and TSA, which have repeatedly refused to acknowledge or docket our formal complaints and then falsely claimed, including to the US public and to foreign governments  that they have received no such complaints.

Jul 01 2010

Should the identities of petition signers be public?

We note with interest the recent decision in Doe v. Reed (No. 09-599), which marks the first time in a few years that the Supreme Court has directly (albeit somewhat uncertainly) addressed whether the government can permissibly require individuals to be publicly identified.  Leaving aside what the legal implications of the ruling may be, we think the case carries an important lesson about technology and identity policy.

The case concerned whether individual registered voters can sign petitions to place an initiative or referendum on the ballot without having their identities as signatories made public.

Since the right to vote without having it be made public for whom you have voted is considered fundamental to democracy, it might seem natural that you would be able to sign a petition to put Initiative I or Referendum R on the ballot without having it be a public record which such measure(s) you have endorsed.  But traditionally, the list of signatories for each individual ballot proposition has been considered a public record.

Why? The answer, we suspect, lies in the technological history.

Paper-based technologies have long made it possible to verify that each ballot is cast by a registered voter, and that only one ballot is cast by each voter, while making it impossible to identify, after the fact, which voter has cast any given ballot.  This isn’t rocket science. Even when you submit an absentee ballot by mail in a signed (outer) envelope, for purposes of verification of your entitlement to cast that ballot, the ballot itself is enclosed in a second, inner (anonymous) envelope.  Paper technology —  the envelopes — makes it easy to separate verification of eligibility to vote from identifiability of the individual ballots or votes with specific voters.

On paper, it’s harder to separate the validation of signatures and elimination of duplicates from the counting of signatures.  It could be done, through essentially the same techniques as are used for paper absentee ballots, but that would require a different system than the traditional petition with multiple signatures on each sheet.  There’s really no policy reason behind the public identification of signatories that we have come to take for granted as “natural”. Rather, the lack of any possibility for anonymous endorsement of petitions is a corollary of the technique and format in which signed endorsements for a petition are collected.

There’s a lesson here of wide applicability. Providing for anonymity requires effort.  It requires that the systems be designed to provide for the possibility of anonymity, and that authorization (Is this the signature of a unique registered voter?) be separated from identification (Which voters signed this particular petition?).  If that isn’t a design criterion from the start, it’s likely to be simpler to munge those functions together in ways that preclude anonymity.

Jun 30 2010

New lawsuit challenges no-fly orders

In a lawsuit filed today by the ACLU in Federal court in Oregon, Latif, et al. v. Holder, et al., ten U.S. citizens who have been refused permission to board flights to, from, or within the US, or have boarded flights to the U.S. only to have them turn back en route, are suing the Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center for denying their rights by ordering airlines not to transport them.

At least one of the plaintiffs even flew to Mexico, to avoid overflying the US, with the hope of returning to the US by land.  Instead, he was arrested by Mexican police (presumably at the behest of the U.S. government, and deported not to the country of his citizenship, the USA, but to Colombia, where he has only a temporary visa and can’t remain.  That should have prompted diplomatic protest by the US to Mexico for the improper deportation of a US citizen to a third country.  But presumably Mexico acted at the behest of the US, and there has been no sign of US objection.

So far as we know, this is only the second lawsuit to directly challenge the legality of no-fly orders, and the first on behalf of US citizens.  The previous case was brought by Rahinah Ibrahim, a Malaysian graduate student at Stanford University, after she was detained by San Francisco Airport police and prevented from flying home to her country in 2005. While her complaint remains pending against the individual police in U.S. District court for the Northern District of California, the cases against all of the Federal agencies and officials have been dismissed.

The latest case will test whether the Obama Administration still agrees with former Secretary of Homeland Security Chertoff that no-fly decisions should not be subject to judicial review.  [Update: From the latest statement by the Director of the National Counterterrorism Center, it appears that they may.] And it will be closely watched in Europe as well, where the Obama Administration has assured the European Union that adequate means of redress do exist in U.S. courts for individuals — including some of the plaintiffs in the latest case — denied permission to travel from the EU to the U.S. on the basis of passenger data transmitted to the DHS.

Jun 30 2010

Will Canadian travelers be subject to more US tracking and control?

After a series of investigative reports in the Canwest newspapers in March of this year called attention to the lack of any legal basis under Canadian law for US government access to information about flights to and from Canada that overfly the US (notably including Canada-Cuba flights), the Canadian Conservative minority government has responded by introducing a bill earlier this month that would, if approved by the Canadian Parliament, override Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) to allow the US or any foreign government to find out who is on flights to and from Canada overflying those countries, even if they don’t land in the US.

Canadian law was amended after September 11, 2001, to override PIPEDA and allow US government access to airline reservation data, but only for flights that actually carry passengers to or from the USA. BIll C-42 would extend that to overflights of any country that wants to vet (or simply log) who’s on flights through its airspace.

The sponsors of the latest proposal, Bill C-42, expect it to be controversial, and it has already been criticized by opposition MPs.  Opposition parties have united to pass other legislation supported by the minority government related to collaboration with US wars (such as a measure supporting political asylum in Canada for people resisting service in the US military in wars in Iraq and Afghanistan that violate Canadian and international law), and some observers predict that could happen with Bill C-42 as well.

We certainly hope that Canadians learn from the mistakes of the USA, stand up for their sovereignty, and say “no” to US surveillance of overflights, just as people in the USA would say “no” if the Cuban government demanded to know who is on the dozens of flights every day that fly over Cuba en route between Miami and South America.

Jun 29 2010

State Dept. brushes off critics, raises passport fees

Yesterday the Department of State published an interim final rule putting its previously proposed increases in passport and visa fees into effect as of July 13, 2010.

The State Department admitted that more than 98% of the comments received from individual members of the public were opposed to the fees, as were comments from the travel industry and from the Identity Project and other consumer and civil liberties organizations.  But the State Department brushed off those objections (failing even to acknowledge our complaint that the rulemaking violated US international treaty obligations on freedom of movement, or our complaint and those of travel companies that it violated the Administrative Procedure Act) and finalized the proposed fee increases unchanged.  No consideration was given to their economic impact on self-employed or freelance business travelers, despite the requirement for such an assessment under the Regulatory Flexibility Act.

Unless the interim final rule is challenged in court (perhaps by travel companies, on APA grounds), fees for new or renewal passports and “passport cards” will all increase for applications received by the Passport Office on or after July 13, 2010.  The most extreme increase will be for adding blank visa pages to a current passport, currently a free service for which a new fee of $82 will be imposed.  If your passport might fill up before it expires, apply for new pages now.

Jun 29 2010

TSA has a new top cop

Following hasty hearings by the Senate Commerce, Science & Transportation and Homeland Security Committees, the Senate gave unamimous consent on Friday, without a recorded vote, to the nomination of John S. Pistole, the pistol-packing deputy director of the FBI and right-hand man to Robert Mueller in the FBI’s often extra-judicial “war” on terror, to be an Assistant Secretary of Homeland Security and the Administrator of the TSA.

The hearings (see the links above for archived webcasts) were a mix of praise for Pistole’s police “toughness” and criticism of the possibility that he might allow TSA employees to form a labor union.  “Should law enforcement officers be unionized?”, several Senators asked, apparently duped by their badges, uniforms, titles, and attitudes of presumed authority into thinking that at Transportation Security “Officers” and contractors are law enforcement officers, when in fact they are civilians without police powers (except for a handful of investigators like the ones the TSA sent to serve subpoenas on journalists who published leaked descriptions of some of their procedures).

Civil liberties were scarcely mentioned during the confirmation hearings and none of our suggested questions were asked. Nor was there any mention of Mr. Pistole’s lack of civilian experience.

The last thing the TSA needs, in our opinion, is more cop-think and an even more paramilitary attitude.  We’re hoping for the best, but we suspect that this appointment will make it even more important for US citizens’ and visitors to exercise our rights rather than relying on the TSA or Congress to recognize on their own initiative.

Jun 22 2010

TSA reaches out to the Identity Project

After years of having our complaints ignored, we were pleased to be invited by the TSA to participate in the ongoing “Multi-Cultural Coalition” organized by the Office of Traveler Specialized Screening and Outreach of the TSA Office of Civil Rights and Liberties, under the direction of the TSA Office of the Special Counselor.

In response to an invitation to submit questions and concerns for the agenda of today’s TSA outreach briefing with this coalition — our first such — we submitted the following questions.  We only got notice of the conference call and submitted our questions at the last minute, and didn’t expect these issues to be addressed on such short notice, but we were pleased to be able to put them on the table for TSA consideration, should the agency chose to respond:

  1. Now that the TSA is carrying out all fly/no-fly decision-making for domestic flights through Secure Flight, what is the procedure for obtaining judicial review of no-fly decisions? Or is it the TSA’s belief that no-fly decisions are not subject to judicial review? (We are particularly concerned, of course, about the situation and the means for judicial review of these decisions against US citizens trapped overseas and unable to return to the USA, or unable to leave the USA, because the DHS will not permit them to fly. The upcoming transition to Secure Flight for international flights means, we presume, that these decisions will shortly be transferred to the TSA. We would like to work this out with the TSA before this transition, so that after the transition travelers denied passage have clear information as to the procedures for judicial review.)
  2. Does the TSA have any plans to promulgate regulations defining what orders travelers are required to comply with from TSA employees or contractors, and/or what questions travelers are required to answer, as a condition of being given TSA permission to proceed through checkpoints or board flights? (The Identity Project has received no response, after more than 6 months, to our FOIA requests for the TSA’s standard operating procedures, and of course those procedures are not binding regulations.)
  3. In particular, does the TSA assert the authority to deny passage to travelers who remain silent in response to TSA or TSA-contractor interrogatories? What language would the TSA prefer travelers use (or would you prefer that they simply remain mute?) in order to most clearly and concisely invoke their right to remain silent in response to interrogatories by TSA employees or contractors?
  4. There have recently been problems with TSA employees and contractors calling local law enforcement officers and making complaints against travelers for exercising their rights to photograph and record their own interactions with TSA employees and contractors, and/or for exercising their right to remain silent in response to TSA or contractor interrogatories. Has the TSA conducted any training or issued any guidance to screeners regarding travelers’ rights to remain silent and/or to record and photograph their interactions with TSA employees and contractors (just as the TSA, airport operators, and/or law enforcement agencies and officers record and/or photograph those interactions)? If so, will the TSA make that guidance public, so that travelers who wish to exercise these rights would be able to carry copies of this TSA guidance to show to TSA employees, contractors, and/or local law enforcement officers?
  5. Has the TSA and/or DHS designated a point of contact and procedures for complaints of violations of human rights treaties, including the International Covenant on Civil and Political Rights, in accordance with Executive Order 13107 on implementation of human rights treaties? If not, when does the TSA and/or DHS expect to do so? Will pending complaints need to be re-submitted once this designation is made? (The complaints of the Identity Project that TSA regulations and procedures violate the ICCPR have been pending without response since 2007 in the case of Secure Fight, and since 2009 in the case of the TSA’s practices of secondary screening on the basis of nationality, in addition to our similar unanswered complaints against other DHS components on closely-related issues.)
  6. The TSA changed its office locations without promulgating new Privacy Act SORN’s or FOIA notices, so that none of the addresses of record in the most recent Federal Register notices or the CFR are valid. As a consequence, none of the TSA’s current SORN’s or FOIA notices are valid, and the knowing operation of each TSA system of records, without a valid SORN with a valid current address having been published in the Federal Register, is a criminal violation of the Privacy Act. What action, if any, is the TSA taking to promulgate valid SORN’s and a valid FOIA notice, to discipline those responsible for the current violations of FOIA and the Privacy Act, and/or to alert those who have sent FOIA or Privacy Act requests into the black hole of the current addresses of record that their requests have not been received, and will need to be re-submitted? What is the proper point of contact for complaints of these violations?
  7. In general, what is the proper point of contact in the TSA and/or DHS for complaints of criminal violations of the Privacy Act, e.g. knowing operation of systems of records by TSA without having promulgated a valid SORN? (The Identity Project has never received any response to any of our complaints, filed in TSA and other DHS component regulatory dockets, of criminal violations of the Privacy Act by TSA or other DHS components.)
  8. 42 USC 2000aa prohibits search or seizure of media, journalism, or other public communications work product materials in the absence of specified conditions (probable cause, etc.). We have received several reports of, and have ourselves experienced, search and seizure of such materials by TSA and its contractors. Has the TSA given any training or produced any guidance to TSA employees and contractors regarding 42 USC 2000aa? If so, will that guidance be made public, so that it can be carried and shown at checkpoints by journalists and others carrying work product materials protected from search and seizure? What procedure would the TSA recommend to people carrying such materials, as a way to alert TSA employees and contractors that certain material is exempt from search or seizure under this statute, and to invoke its protections?

In the course of today’s conference call, the TSA asked for suggestions to improve the signs at TSA checkpoints where virtual strip-search machines (Advanced Imaging Technology (AIT), previously “Whole-Body Imaging” (WBI) in the latest TSA-speak) are being used.  We suggested that the signs should include whole-body images at the same size, scale, and resolution as the displays used by the operators of the machines, when the display is zoomed in on a portion of the body to its maximum magnification.  “That’s new information to me” that the current signs don’t do that, said TSA Special Counselor Kimberly Walton. “We’ll have to look into that. I will take that under advisement.”

Jun 18 2010

More reports of US violations of citizens’ right of return

“No one shall be arbitrarily deprived of the right to enter his own country.” (International Covenant on Civil and Political Rights, Article 12)

This week the Council on American-Islamic Relations held a news conference in Washington (statements, testimony, and links to adiditonal info) featuring first-hand accounts of US citizens who have been trapped overseas, unable to exercise their right to return to the USA, because the US refuses to give airlines “permission” to transport them to the USA.

We’ve reported previously on some of the same and similar incidents.  The denial of transport, in the absence of judicial orders such as a no-fly injunction, violates airlines’ contractual and regulatory obligations as common carriers, and the extra-judicial government denial of transport and entry to the country fails to satisfy the substantive and procedural standards under the ICCPR for measures that implicate freedom of movement under Article 12, and violate US international obligations as a party to that treaty.

The US signed and ratified the ICCPR with the reservation that in the USA it would not be “self-efeectuating”, and it is not clear to what degree it has been effectuated by other US legislation. Since no-fly orders are given to airlines by the government, and the orders themselves are kept secret from the (would-be) traveler, it’s difficult for travelers to establish standing to challenge them against the government in US courts. Former Secretary of Homeland Security Chertoff’s publicly declared goal was never to allow judicial review of no-fly orders, and the Obama Administration has announced no change in that policy.

But US citizens who are trapped abroad, unable to return to the USA because airlines won’t transport them (presumably because the US government has told them not to, or hasn’t given them affirmative clearance to do so), aren’t limited to recourse through US courts.  By depriving them of their right of return, while they are outside the USA, the US has given them the opportunity to shop the world for the jurisdiction form which to try to return, and to sue the airline (and, perhaps, the US government) for extra-judicial refusal of, and interference with, common-carrier transportation, and violation of Article 12 of the ICCPR. Those lawsuits won’t be heard in the USA, but in jurisdictions that ratified the ICCPR without reservations, and where the USA may not be able to invoke its “state secrets” doctrines to give impunity to airlines that chose to obey, rather than to challenge, illegal orders form the US government.

Jun 08 2010

“Freedom Flyer” trial in Albuquerque postponed

The trial of “Freedom Flyer” Phil Mocek, previously scheduled to begin June 14th in Albuquerque, NM,has been postponed due to the recusal of the judge to which the case was assigned, who apparently had a potential conflict of interest with one of the potential witnesses.

Mr. Mocek was arrested at a TSA checkpoint at the airport in Albuquerque, NM. The charges against him remain pending, but no new trial date has yet been set.  We are continuing to follow the case, and will post an update in this blog and in our FAQ as soon as we have more information.