Nov 14 2018

OIG confirms State Dept. broke its own rules when it seized US citizens’ passports

A report released earlier this month by the State Department’s Office of Inspector General confirms that, as we and others began reporting in 2013 and 2014, State Department staff  “failed to comply with relevant procedures intended to safeguard the rights of U.S. citizens” when they summarily seized or retained the passports of US citizens who sought consular assistance at the US Embassy in Sana’a, Yemen.

Because of incomplete and inconsistent record-keeping and shifting stories told to OIG investigators by State Department staff, the OIG was unable to determine how many US citizens were improperly deprived of their passports, or for how long.

The consequences for these Yemeni-American US citizens were especially dire because many of them were seeking to leave Yemen to escape the escalating civil war and foreign military interventions in Yemen (some of which were backed by the US and its allies).

Without passports, these US citizens were unable to travel legally from Yemen  to other countries, or to return to the US. They were forced either to remain in increasingly war-torn and dangerous Yemen, or use dangerous illegal means of transport to escape.

The de facto policy of the US Department of State as early as 2013 — even before the inclusion of Yemen in the 2017 Muslim ban executive orders — appears to have been to define anyone with Yemeni ancestry, regardless of citizenship, as an enemy of the US, and to use all available legal or illegal methods to deny them US passports. Typical tactics included putting applications by Yemeni-Americans for new or renewal passports into indefinite limbo, and indefinitely retaining US passports presented to consular officials at the US Embassy in Sana’a.

Typically, no formal decision that would be readily subject to judicial review was made. Even when a passport was revoked or an application for a passport was denied, the affected citizen often wasn’t notified until months or years later.

Several lawsuits were brought challenging the denials and delays in issuing, renewing, or returning passports. At least one case led to a  court order for the return of a US passport seized in Sana’a. But the government was able to evade judicial review of most of its passport denials and seizures by reversing its decisions and dropping charges or issuing delayed passports once its victims lawyered up and made it to US courts.

Despite the fairly scathing  report by the OIG, there’s no indication that any of the responsible State Department officials — either at the embassy in Yemen or making policy and directing practices from the US — have lost their jobs, much less been prosecuted, for conspiring to deprive US citizens of their fundamental rights, in circumstances where the ability to exercise those rights could be a matter of life and death.

Nov 02 2018

What China calls “social credit”, the US calls “risk assessment”

A viral video of an announcement on a Chinese high-speed train and a series of reports (here and here) on NPR have prompted a surge of interest this week in China’s “social credit” system:

Dear passengers: People who travel without a ticket, behave disorderly, or smoke in public areas will be punished according to regulations, and the behavior will be recorded in individual credit information system. To avoid a negative record of personal credit, please follow the relevant regulations and help with the orders on the train and at the station.

Despite unwarranted comparisons to US financial credit scores, “social credit” scoring in China is used by the government and para-statal entities, not just private companies, and not just for financial decision-making.

One of the NPR stories as well as a report last month by the Australian Broadcasting Co. include interviews with people who discovered they were barred by the Chinese government from travel on high-speed trains as a result of “social credit” scores, regardless of their ability to pay for tickets.

Dystopian? Yes.

Unjust? Yes?

“It can’t happen here?” No.

It already happens here, every day, to everyone who travels by airline or engages in bank or credit card transactions.

You may not realize it until you are mysteriously unable to obtain a boarding pass or complete a financial transaction, but each of these activities is already subject to secret, permission-based, extrajudicial prior restraint by the US government.

The default is “no”.  Since a little over 10 years ago, US Federal regulations have forbidden any airline from issuing a boarding pass unless and until it has sent the would-be traveler’s itinerary and identifying information to the DHS and has received back an individualized, per-passenger, per-flight, permission-to-travel message from the DHS. The DHS generates a secret “risk score” for each passenger, which determines how closely they are searched and questioned, whether the airline is instructed to call the police when they try to check in, and other aspects of how they are treated.

Even before airlines or banks get to the point of consulting the government, “carrier sanctions” and similar sanctions against financial institutions give them a financial incentive to err on the side of saying “no”, not “yes”.

You don’t have to be on a government blacklist for your air travel or financial transactions to be blocked by the US government or by airlines or banks acting at the government’s behest. There are multiple air travel blacklists (euphemistically and inaccurately called “watchlists”), but no-fly and transaction-processing decisions are also made in real time, on the basis of algorithmic “pre-crime” predictions (euphemistically and misleadingly called “risk assessments”, despite the lack of any evidence of a correlation between these scores and actual “risk”).

What China calls “social credit scoring”, the US calls “risk-based screening”.

Government blacklists and real-time pre-crime policing are being applied to control a growing range of activities of daily life. But air travel and financial transactions are the areas where the US government already has a fully deployed and operational real-time “social credit” system in which private service providers are seamlessly integrated with government agencies to surveil and control our everyday activities.

The question isn’t whether the US should have a “social credit” system — it already does — but whether it should be expanded to more aspects of our lives, or rolled back.

It can happen here. It is happening here. It will continue to happen here until we stop it.

China’s social credit system provides a useful object lesson in the three essential preconditions for a system of ID-based surveillance and control. We can block or impede the expansion of such schemes by undermining any of these three legs of the tripod:

  1. ID requirements to travel or engage in other transactions or activities — If you travel, pay, or act anonymously,  your individualized “score” can’t be used to control you. China’s “social credit” system is enabled by requirements to show government-issued ID to open a bank or mobile payment account or purchase a SIM card.  You can only rent a shared bicycle in China through an app, not by cash, and you can’t use the app without an ID-linked mobile phone and ID-linked payment account. So even if you travel around a Chinese city by shared bicycle, you can be tracked. Travel anonymously, and use cash or other anonymous forms of payment.
  2. Collection of ID-linked transaction and position data  — Chinese “social credit” scores and US “risk assessments” are based on travel, movement, and transaction histories. Some of this data is collected through biometric identification, primarily automated  facial recognition. Other data is “ingested” by the government from commercial databases such as travel reservations and financial transactions. Private companies can and should resist requests for this data, but can’t be counted on to do so. No airline, for example, has ever challenged government demands for warrantless access to the entirety of their reservation database, including free-text derogatory internal comments by front-line reservation and customer-service staff that are imported directly into permanent DHS files used for “risk” scoring. Once personally identified or identifiable data is collected, it’s almost impossible to resist demands for government access made in the name of “security”.  Any data that is collected about you can and will be used against you. The only real way to oppose this mass surveillance is #DoNotCollect. Just say no to requests for information, for consent to search, or for sharing of data with the government.
  3. Government control of movement, activity, and transactions — A key step in the implementation of the “social credit” system for air travel was the installation (at a cost to the airline industry of at least US$2 billion) of the control lines that transformed a reporting (i.e. surveillance) system into a “pre-crime” control system. It’s critical to defend against having our Constitutional and human rights redefined as privileges to be exercised only by prior permission of the government —  as the right to travel by common carrier has already been. Demand that restrictions on the exercise of rights be based on evidence-based court orders, not pre-crime fantasies.

As for the specific Chinese examples of travel by high-speed train, Amtrak, like the operators of Chinese trains, is a para-statal government-charterted corporation. In 2014, we made a FOIA request to Amtrak for records of Amtrak’s sharing of passenger data with the DHS and other law enforcement agencies. Amtrak has been releasing a trickle of responsive records, as we’ve been reporting. But Amtrak’s response remains incomplete, and this is now the oldest pending unanswered request in Amtrak’s FOIA queue.

 

Oct 18 2018

How many air travel blacklists does the US have?

[Click image for full-sized version.]

Heavily redacted records released by the Transportation Security Administration (TSA) last month, more than six years after they were requested by the Electronic Privacy Information Center (EPIC), give fragmentary clues to the answer to an important question: Just how many air travel blacklists does the US government have?

Read More

Oct 09 2018

Another round in 9th Circuit fight over “No-Fly” orders

A 3-judge panel of the 9th Circuit US Court of Appeals heard arguments today in Portland, Oregon, in Kariye v. Sessions, the third and latest round of appeals to the 9th Circuit in a challenge to US government “No-Fly” orders that was filed in 2010 as Latif v. Holder.

The lawsuit has survived two previous appeals to the 9th Circuit. But most recently,  the District Court dismissed the claims of those plaintiffs who remain blacklisted from domestic or international air travel. Today’s third round of argument in the 9th Circuit was on the appeal of that latest dismissal of the complaint.

Today’s oral argument was conducted in a courtroom closed to everyone except the judges, court staff, the parties to the case, and their attorneys. Presumably, the argument was closed because one of the issues was whether the government should have been allowed to submit evidence “ex parte and in camera” for the court to consider without the plaintiffs being able to see it, or whether the District Court and/or the Court of Appeals should consider such submissions.

If you think there’s something Kafka-esque about secret arguments about whether to consider secret evidence, we agree. It’s possible that redacted excerpts from the oral argument will be made available later in the 9th Circuit’s video and audio archives.

Legal documents in the case are available from the ACLU, which is representing the plaintiffs. The best summary of the issues in the current appeal, and the best overview of what’s wrong with the government no-fly decision-making procedures at issue in the case,  is in the plaintiffs’ opening brief in the current appeal.

Read More

Oct 03 2018

3rd Circuit to reconsider impunity of TSA checkpoint staff

Good news: The 3rd Circuit Court of Appeals has decided to reconsider whether, as a panel of that court decided earlier this year, TSA checkpoint staff should have legal impunity to assault or otherwise violate the rights of travelers without consequences.

When it was issued in July 2018, we said that “The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.” There was a well-argued dissent by one of the three members of the panel.

The majority of the panel recognized that the job of TSA checkpoint staff is to search travelers, but then somehow managed to conclude that they aren’t “officer[s] of the United States who [are] empowered by law to execute searches.” The majority of the panel also went outside the factual record to base their decision on false speculation that TSA checkpoint staff don’t conduct searches for general law enforcement purposes.

Based on these arguments and “facts”, the panel majority found that TSA staff are immune from lawsuits for travelers, even if they admit to assaulting travelers.

The decision by a majority of the judges of the 3rd Circuit to grant rehearing en banc in the case of Pellegrino v. TSA voids the original opinion by a three-judge panel. The appeal will now be re-argued de novo, after new briefing, before all of the judges of the 3rd Circuit.

Let’s hope that the full court gets it right this time, and recognizes that TSA checkpoint staff are not above the law.

Oct 01 2018

Yes, the DHS wants mug shots of all air travelers

A new report by the DHS Office of Inspector General (OIG) gives perhaps the most detailed official picture to date of the US government’s plans for ed biometric identification, tracking, and control of international air travelers through automated facial recognition.

Contrary to specious claims in DHS propaganda that the current rollout of mug-shot machines at departure gates at airports across the country is “only a test,” the DHS OIG reports that US Customs and Border Protection (CBP) plans to expand the mug shot and automated facial image recognition program from 6 million air travelers in 2018 to 60 million in 2019, 120 million in 2020, and 129 million — 100% of international airline departures from the US — by 2021.

But that’s not all. “Over time, the program plans to … incrementally deploy biometric capabilities across all modes of travel — air, sea, and land — by fiscal year 2025,” according to the OIG report.

The scope of these plans should make clear that the only thing being “tested” is whether travelers will submit to this program, not whether it is justified or what interests it serves.

The OIG report mentions that US citizens have been “allowed” to opt out of the airport mug shot “pilot program “, but doesn’t say whether they were told they had a right to do so:

CBP allowed U.S. citizens to decline participation in the pilot. In such cases, CBP officers would permit the travelers to bypass the camera and would instead check the individuals’ passports to verify U.S. citizenship. When a U.S. citizen opted to participate in the pilot but did not successfully match with a gallery photo, the CBP officer would examine the individual’s passport but did not collect fingerprints. We observed biometric screening at four airports — a total of 12 flights — during our audit and witnessed only 16 passengers who declined to participate.

[Note the absence of any apparent notice that US citizens can “opt-out”.]

In preparing their report, OIG staff “met with a number of external stakeholders, including the Airlines for America trade association, Delta Airlines, JetBlue Airlines, and British Airways.” Notably, however, OIG made no attempt to consult consumer, civil liberties, or human rights organizations or to consider their objections to mandatory mug shots.

The only objections noted in the OIG report came from airlines and airport operators. But it would be a mistake to interpret this as “resistance” from the airline industry to biometric surveillance of airline passengers through automated facial recognition.

The OIG report makes clear that the only thing being disputed by airlines and airports is who will pay for equipment and staff, not whether these systems will be deployed: Read More

Sep 25 2018

9th Circuit says government can’t moot challenge to “no-fly” order

In a blow to the US government’s evasion of judicial review of no-fly and blacklisting decisions, the 9th Circuit US Court of Appeals has reinstated a lawsuit against the government by Mr. Yonas Fikre, a US citizen who was effectively exiled from the US and consigned to imprisonment and torture abroad by being placed on a “No-Fly” list, in an attempt to pressure him to become an FBI informer, while he was overseas.

Unwiling to become an FBI informer — even when he was tortured to do so — and unable to return to the country of his citizenship, Mr. Fikre fled to Sweden, where he applied for political asylum. In a successful effort to smear Mr. Fikre and thwart his asylum claim in Sweden, the US then had him indicted on trumped-up charges related to his business (and having nothing to do with terrorism, violence, aviation, or dangerousness).

Mr. Fikre’s application for asylum in Sweden was denied, and Sweden paid to deport Mr. Fikre to the US (by private jet, because the US wouldn’t allow him on any airline flights). The bogus charges against Mr. Fikre were promptly dropped once he got back to the US. But he has been unable to resume his international business career without being able to count on being able to travel from and to the US without US government interference.

The decision by the 9th Circuit panel in Fikre v. FBI overturns the dismissal of Mr. Fikre’s complaint as “moot” by a US District Court judge in Oregon after the government defendants told the court that Mr. Fikre’s name had been removed from the no-fly list.

The 9th Circuit allowed the case to proceed, finding that there was no guarantee that the actions Fikre complained of, and the violations of his rights, wouldn’t recur:

Because there are neither procedural hurdles to reinstating Fikre on the No Fly List based solely on facts already known, nor any renouncement by the government of its prerogative and authority to do so…  Fikre’s due process claims are not moot.

Read More

Sep 24 2018

Will the government get mug shots of all air travelers?

The dispute over government-mandated biometric identification of travelers through automated facial recognition continues to sharpen.

ID document requirements for air travel have been imposed on a de facto basis by DHS administrative fiat without ever having been approved by Congress or authorized by law.

In a similar way, requirements for US citizens to submit to mug shots — either by components of the Department of Homeland Security or by airlines, airport operators, or contractors who share photos with DHS — are being imposed on a growing scale without any Congressional debate or statutory  basis.

Last week the World Privacy Forum submitted a petition for rulemaking asking the DHS to “provide formal notice and solicit public comments pursuant to the Administrative Procedure Act” before proceeding with further “trials” of biometric identification of travelers: Read More

Sep 18 2018

Globalization and policy laundering of travel control

An interview with the head of US Customs and Border Protection (CBP) published this month by the U.S. Military Academy as part of a “View From The Foxhole” series provides an unusually revealing, and disturbing, picture of the expansion and globalization of surveillance and control of travelers. It also highlights the ways that policy is being “laundered” through the rationale of “compliance with international standards” to avoid any domestic political debate in the US or other collaborating countries.

CBP Commissioner Kevin K. McAleenan begins his overview of the role of the CBP by referring to “people who are… seeking that permission to travel to the United States”.

But US citizens don’t need “permission” from CBP or any other government agency to travel to the US. McAleenan’s comment makes clear the extent to which the US government has arrogated to itself, and now takes for granted, the illegitimate authority to condition the exercise of the right to freedom of movement on government permission.

CBP Commissioner McAleenan doubles down by asserting that “we have the responsibility to interview and inspect all travelers and make decisions on whether they present a risk.”

But that’s not true either. CBP’s authority to inspect travelers is limited to determining whether there is probable cause to charge them with violations of the law. We have a system of criminal law, not a pre-crime system of “risk-based” predictive denial of rights.

Read More

Sep 04 2018

The US State Department is still denying passports to US citizens

A report in the Washington Post last week has brought renewed attention to the US State Department’s ongoing denial of passports to many US citizens.

The Washington Post story focuses on Mexican-Americans whose passports have been revoked or whose applications for new or renewal passports have been officially or effectively denied, and suggests that, “under President Trump, the passport denials and revocations appear to be surging.”

We’ve been pointing out the varied methods and manifestations of these State Department practices for years. As a result, we’ve become a common point of contact for US citizens seeking to exercise their right to travel and to obtain redress for passport denials and revocations.  We welcome additional spotlighting of these issues.

But it’s important to recognize that these practices are not new; are not limited to Mexican-Americans, Hispanic-Americans, Muslims, and/or immigrants; did not originate with the Trump Administration; and rely on administrative mechanisms first given official approval by, and on the initiative of, the Obama Administration.

Nor are these practices limited to passports and international travel. Similar restrictions on issuance and renewal of drivers’ licenses and state ID cards being imposed as a result of the REAL-ID Act of 2005 are already causing similar problems for travel within the US.

These practices and problems reflect a bipartisan and constant trend, throughout the Bush, Obama, and Trump Administrations, toward growing use of ID requirements and controls on the issuance of ID credentials to control the movement of both US citizens and foreigners, within the US as well as across international borders.

Here’s the back story to the latest reports on passport denials and revocations, with links to some of the more detailed articles about it that we’ve published over the years: Read More