Edward Hasbrouck – Page 83

Aug 08 2008

New U.S. “exit permit” scheme for visitors goes into effect

The Identity Project filed comments today with the DHS Bureau of Customs and Border Protection CBP) in opposition to the new Electronic System for Travel Authorization (ESTA) which went into effect this week. According to our comments:

The essence of the ESTA rule is to require certain foreign citizens to obtain an exit permit from the United States government before they may leave their own country, or leave other countries.

In this rulemaking, the Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security (DHS) is promulgating an interim final rule imposing a new requirement that “each nonimmigrant alien intending to travel by air or sea to the United States under the Visa Waiver Program (VWP) must … prior to embarking on a carrier for travel to the United States”, (a) provide specified data elements, in specified form and manner, to the CBP, and (b) “receive a travel authorization, which is a positive determination of eligibility to travel to the United States under the VWP, via the Electronic System for Travel Authorization (ESTA), from CBP.”

Under the interim final rule, “[a]n authorization under ESTA is not a determination that the alien is admissible to the United States” and is “not a determination of visa eligibility.” It would be granted, or not granted, by the CBP, in its sole, standardless, secret, and non-reviewable “discretion.” It would be required as a pre-condition for foreign citizens to “embark” from foreign countries if the CBP believes that they intend to apply (at some later time ) for admission to the U.S. under the VWP.

The Identity Project submits these comments because this CBP regulatory requirement that foreign citizens obtain permission from the U.S. in order to leave their own country, or a third country, (1) exceeds the statutory authority of the CBP; (2) exceeds the jurisdiction of the CBP; (3) is contrary to the obligations of the U.S. under the International Covenant on Civil and Political Rights and other international human rights, maritime, and aviation treaties; (4) has been promulgated without complying with the procedural requirements of Executive Order 13107 regarding Implementation of Human Rights Treaties, the Airline Deregulation Act, the Regulatory Flexibility Act, and the Administrative Procedure Act; (5) fails to consider or grossly underestimates many of the major costs of the rule, including its impact on small entities, business travelers, and other travelers; (6) is impermissibly vague, and (7) would be so impractical and unenforceable as to deprive it of any of the benefits claimed by the CBP.

The Identity Project urges the CBP to withdraw the interim final rule, in its entirety. If it does not withdraw the ESTA rule entirely, the CBP must complete the actions directed by Executive Order 13107, prepare the statutorily required analyses, publish them in a full Notice of Proposed Rulemaking (NPRM) , and provide a new opportunity for public comment, before finalizing any ESTA rule.

In their comments, airlines and travel agencies have objected that the CBP is “wrong” to implement the ESTA on an emergency basis, without the public notice and opportunity for public comment normally required for new Federal regulations. But the CBP began accepting “voluntary” applications for travel authorizations, through a (still buggy) Web interface. The CBP says they plan to issue an order later this year to make the ESTA system mandatory starting sometime in January 2009.

Countries that participate in the VWP, mainly in Western Europe, are still considering whether it amounts to a de facto visa requirement for their citixzens to visit the U.S. This could prompt them to reciprocate by ending visa-free entry to their countries for U.S. visitors, and requiring U.S. visitors to apply for permission before embarking for Europe.

Jul 08 2008

TSA “identity verification” procedures

In a series of posts in their blog, the TSA has expanded on its claimed authority for the changes to “ID verification procedures” announced in a press release last month.

Lawmaking by press release exemplifies the evils of “secret law” which the Supreme Court declined to consider in Gilmore v. Gonzalez. The TSA now says that, “Our position is that Gilmore v. Gonzalez affirmed our ability to require ID for transportation via air and the law that formed TSA, the Aviation and Transportation Security Act (ATSA) empowers the TSA to make these decisions.”

In fact:

The 9th Circuit Court of Appeals in Gilmore v. Gonzalez reached its decision without addressing whether it would have been permissible for the airline or the TSA (or anyone else) to require Mr. Gilmore to show evidence of his identity, or to prevent him from travelling if he failed to do so. The court found that, as of that time and in that particular case, Mr. Gilmore could have flown without showing ID. Read More →

Jul 08 2008

Electronic System for Travel Authorization (ESTA)

In a Notice of Proposed Rulemaking (NPRM) in the Federal Register on June 9, 2008 (73 Federal Register 32440-32453), the Department of Homeland Security has proposed a new system for foreign citizens intending to visit the U.S without visas, and to enter the U.S. by air or sea, to apply for and receive an additional form of advance permission to travel to the U.S.

Effective August 8, 2008, a person “intending to travel to the United States by air or sea under the VWP [Visa Waiver Program]” will be permitted to apply in advance for an electronic “travel authorization”(ETA) from the DHS Bureau of Customs and Border Protection (CBP). The ETA application will contain “such information as the Secretary [of Homeland Security] deems necessary to issue a travel authorization, as reflected by the I–94W Nonimmigrant Alien Arrival/Departure Form (I–94W).”

Effective as of a date the CBP intends to specify in another Federal Register notice in early November 2008, at least 60 days after the publication of that follow-up notice but no later than January 12, 2009, each person with such intent will be required to (1) provide certain specified personal information, in specified form, to the CBP in an ETA application and (2) “receive a travel authorization [from the CBP] prior to embarking on a carrier for travel to the United States.”

While the proposed regulations would require travellers to apply for and obtain ETA’s, nothing in the NPRM would require the CBP to respond to or act on such applications at all, much less to do so with any specified timeliness. No standards or criteria for approval, denial, or inaction on an ETA application are specified; no particular decision-making entity within CBP is specified; no administrative appeal is provided for; and no court would have jurisdiction to review an ETA decision (although courts could, of course, review the legality of the program as a whole). Read More →

Feb 03 2008

Will you really need a “REAL-ID” to fly? No.

There’ve been a lot of scary reports lately about how, if your state governor doesn’t “volunteer” to collaborate with the Department of Homeland Security’s “REAL-ID” scheme for a distributed national identity card and linked databases of personal information about every American resident, the DHS won’t “allow” you to board any airline flight in the U.S. of A.

What’s the skinny?

It’s an empty threat, designed to intimidate citizens, state legislators, and governors. You’ll still have a legal right to travel, even by air, even if your state opts out of compliance with the REAL-ID Act.

The DHS does have plans to require everyone who wants to fly to carry government-issued papers and get permission for each flight from the DHS. The DHS is already trying to put some of those into effect this month for international travel, and has proposed to extend them to domestic flights as part of Secure Flight.

But those other rules are independent of the REAL-ID Act, and don’t yet affect domestic air travel. Nothing in the REAL-ID law or regulations would require you to show ID to fly.

Don’t be scared. Ignore the empty threats. Stand up for your rights, and fly freely — with or without papers or permission.

Jan 26 2008

Closing the noose on the USA

A pop quiz for US citizens:

The next time you want to leave the USA. will your government let you go? When you want to come back, will they allow you to come home?

Unless people assert their rights, maybe not. And you’ll need the government to give you papers or permission to do so.

The Department of Homeland Security has already issued regulations effective February 18th that will forbid international airlines from letting anyone on a plane to or from the US without individualized express prior permission from the DHS. Those rules were issued in spite of our objections that they violate the US Constitution international human rights treaties.

And already the Department of Homeland Security is trying to enforce an illegal regulation that purports to require passports (issued at the “discretion” and for the “convenience” of the government, not as a matter of right, and which take weeks to obtain if you want to travel on short notice) for citizens to fly between the USA and Canada or Mexico. (Again, having ignored our objections.)

The DHS has proposed to extend that rule to those crossing the land borders with Canada and Mexico, closing the last possible means of leaving the USA, or returning home from abroad, without DHS papers or permission.

Now, without even considering our objections or any others, the DHS has announced a change in “internal” procedures that would achieve essentially the same result as the “pending” rulemaking: Effective January 31st, the goons from the DHS Customs and Border Protection division will be instructed not to permit anyone to cross the US border — even US citizens — unless they present government-issued documents proving their citizenship to their satisfaction.

The burden will be on you to “prove” your right to travel, rather than on the government to prove you are doing something wrong if they want to prevent you. And only government-issued documents will suffice. If the government won’t give you papers, you can neither leave nor return to your own country.

Sep 16 2007

Tell the Feds what you think of their plans

The Transportation Security Administration will hold a public hearing in Washington, DC, this Thursday morning, September 20, 2007 on the TSA’s so-called Secure Flight scheme to require government-issued travel credentials and individualized, explicit, prior permission for all domestic airline travelers within the U.S., and to subject us to government-compelled search and interrogation by private commercial third parties whenever we fly.

The hearing is open to the public, and you can sign up to speak on site with the TSA staff beginning at 8:00 a.m. Thursday at the Grand Hyatt Washington, 1000 H Street, N.W. (2 blocks from Metro Center station).

The Identity Project will be there to give our comments in person. We are also submitting detailed written comments on what’s wrong with this scheme. If you can make it, we encourage you to come out too, and tell the TSA what you think of their plans.

If you can’t make it to the hearing, you can submit comments to the TSA online. You can submit comments anonymously, and you don’t have to be a U.S. citizen or resident

Sep 06 2007

Identity Project responds to proposals for restrictions on travel

Continuing our work to expose governments’ efforts to control our movements through checkpoints, government records of where we go and what we do, government-issued credentials and travel documents, and other schemes to require, “Your papers, please!”, the Identity Project has filed formal
comments recently with the Department of Fatherland Security on its latest schemes
to monitor and control our travels:

Comments of the Identity Project on proposed exemptions from the Privacy Act for secret derogatory information from airlines and travel companes stored in personal travel histories (along with records of activities protected by the First Amendment) and used against would-be travelers as part of the “Automated Targeting System”: comments, background
Comments of the Identity Project on proposed requirements for passports or other government-issued credentials for all travel across U.S. borders, including land travel to and from Canada and travel by U.S. citizens seeking to leave, or return to, the U.S., as part of the “Western Hemisphere Travel Initiative”: comments, background

Aug 12 2007

DHS proposes to require both ID papers and passes for all air travel

In a series of recent publications in the Federal Register, the Department of Homeland Security is proposing a comprehensive new system of surveillance and, perhaps more important, control of both domestic and international travelers.

The proposed new rules, which are currently open for public comments, would require that:

All would-be international travellers to or from the USA (even US citizens crossing the U.S.-Canada border on foot) would have to have government-issued ID credentials
All would-be passengers on international or domestic flights to, from, over, via, or within the U.S. would have to have both government-issued ID credentials and explicit case-by-case prior permission from the DHS to the airline to allow each passenger to board a plane.

The proposed rules would enforce the requirements for papers and permits through default provisions that would:

Require all air travellers to show their papers (“government-issued photo ID”) to airline staff on request of the DHS, under penalty of denial of transportation.
Forbid any airline from issuing a boarding pass to anyone, or allowing them to baord a plane, unless and until the airline received individual permission (a “cleared message”) authorizing that airline to allow that specific person on that specific flight.

The “Notices of Proposed Rulemaking” (NPRM) and Privacy (invasion) Act “System of Records Notices (SORNs) dismiss the right ot travel out of hand, and ignore provisions of international law, the Bill of Rights, and Federal law recognizing a right to free domestic and international movement and a “public right of transit” by air, requiring airlines to operate as “common carriers” and transport all passengers paying the fare in their published tariff, and requiring the DHS itself to condider these rights in its rulemaking.

If you haven’t gotten the proper papers, you won’t be allowed even to leave the country, much less to return home. If the government doesn’t choose to give the airline permission for any particular trip you want to take, you won’t be allowed to get on a plane. And any time any airline employee or agent says, “Papers, please!”, you’ll have to produce them for their private inspection, copying, and use for whatever purposes they want.
Among other problems, this amounts to a general order subjecting travelers to private searches, and allowing the private searchers to use any information obtained from those searches for their own commercial or other purposes. Since it is impossible to tell who is, and who is not, actually authorized to act on behalf of the government or to whom an airline has delegated its work, the proposed rules would effectively subject travelers to compulsory search by anyone in any airport claiming (unverifiably) to be an agent of an airline.

May 17 2007

What’s the risk of a national ID card?

Some people don’t understand why we oppose a national ID card. “It’s just a piece of paper,” they say. “What does it matter?”

Historian and law professor Eric Muller of the University of North Carolina has been trying to find out exactly what happened to his great-uncle Leopold Muller, who was deported from his home in Germany in 1942 and never heard from again by those of his family who survived. Most likely, he was eventually murdered at the death camp called Belzec.

Recently, in the course of his research, Eric found his Uncle Leopold’s German national ID card. He also found his Uncle Leopold’s medals for his service in the German army in World War I, during which he lost the use of one arm. But his Kemmkarte identified him boldly on the cover as Jew, not a decorated war veteran. Perhaps that’s why he arrived at the “evacuation” center without his ID card:

The Jew Leopold Israel Müller … will be evacuated to the East on April 25, 1942. He alleges that on April 24, 1942, he lost the kennkarte that he formerly had in his possession…. Müller is therefore without identification papers.

Was the ID card “just a piece of paper” to the Nazis? Was it sufficient that they had the person they wanted in their custody, and would soon send him to his death? No. They immedietely sent the police to search his empty house, find his kennkarte, and dutifully forward it after him (although by the time it arrived, he had been sent on, presumably to his death). The card itself mattered. To “lose” the card was, perhaps, to escape the fatal consequences of the definition it imposed.

Eric tells the story much more eloquently than we could. But what we think is noteworthy in contemporary context is the importance the national ID card played in defining the individual, and involuntarily binding the actual person to the designation (in his case, “Jew”) and categorization imposed on him by the government.

We are people, entitled to define (and redefine) ourselves. We are not, and we should not be, “identified” solely by which pigeon-hole(s) a government decides to put us in.

May 17 2007

GAO confirms IDP complaints that ATS was a crime

Auditors from the Government Accountability Office who reviewed the “Automated Targeting System” (who’s a target? anyone who travels) concluded that the DHS Customs and Burder Protection division “has not fully disclosed or assessed the privacy impacts of its use of personal information during international passenger prescreening as required by law.”

CBP has published public notices and reports that describe certain elements of its international prescreening process, but these documents do not fully or accurately describe CBP’s use of personal data throughout the passenger prescreening process. It is important for CBP’s documentation to describe all of the steps of the prescreening process because the interrelationship of various steps of the process allows data to be transferred and used in ways that have not been fully disclosed.

CBP’s international prescreening process involves a wide range of procedures and data sources that CBP utilizes to determine passenger risk levels. According to a CBP official, to help make these prescreening decisions, CBP collects personal data from multiple sources (including passengers and government databases), and uses the data for several purposes, including identity matching against the government watch list, risk targeting, and passenger document validation. According to CBP, its officers also use commercial data, to a limited degree, to assist them in confirming a passenger’s identity when needed. CBP’s public disclosures about APIS and ATS do not describe all of the data inputs or the extent to which the data are combined and used in making prescreening decisions.

That’s one of the specific complaint the Identity Project made in our original and supplementary comments to the DHS in response to its (late and legally inadequate) notices about the targeting system. The GAO report on airline passenger “screening” was submitted to Congress, and to the DHS, in November 2006, but a censored (“redacted”) version wasn’t made public until this week.

As we pointed out in our comments, it’s a crime under the Privacy Act for a Federal official to operate a system of records — to keep dossiers on U.S. citizens or residents — without legal authority and proper notice. Now the government’s own auditors have confirmed that those running this system to target travelers are, indeed, criminals.

Are the DHS’s “Privacy Officers” capable of policing their own colleagues’ criminal violations of the Privacy Act? If not, will anyone else step in to hold them accountable? Or will the public have to take matters into our own hands, by refusing to comply with unlawful, unconstitutional demands to surrender our human rights and freedom of movement?

Papers, Please!

The Identity Project