Sep 15 2021

DHS must explain failure to release e-mail files

In a victory for the Freedom Of Information Act (FOIA), an Administrative Law Judge (ALJ) has ruled that the Department of Homeland Security (DHS) must either disclose records of e-mail messages which we requested in the “native” file formats in which they are held on DHS servers or archival storage media, or must “demonstrate with sufficient justification that they cannot produce the documents in their original fully digital version.”

This ruling was made in response to an administrative appeal by the Identity Project of the DHS (non)-response to a FOIA request we made in 2016 for the reports submitted to the DHS each month on how may people attempted to enter Federal facilities without ID or with ID deemed “noncompliant” with the REAL-ID Act of 2005, and what happened to these people. How many were eventually allowed to enter, and how many were turned away?

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Jul 23 2021

The right to international travel and the right to a U.S. passport

In late 2015, as we noted at the time, Congress voted — as part of an unrelated surface transportation bill — to authorize the Department of State to revoke and/or refuse to issue a U.S. passport to anyone against whom the IRS has assessed an administrative lien or levy (even in the absence of any judicial action) for $50,000 or more in tax debt.

This week, the first appellate court to review this law upheld it as Constitutional, although on limited grounds. In its “per curiam” opinion in Maehr v. Department of State, the 10th Circuit Court of Appeals upheld a decision by a U.S. District Court judge in Colorado dismissing a lawsuit by Jeffrey T. Maehr, one of almost half a million people who have been deemed subject to revocation or non-issuance of U.S. passports, and thus prohibited from legally leaving (or returning to) the U.S.,  for alleged tax debts.

Two judges wrote opinions in support of the “per curiam” decision, each joined in different parts by the third member of the three-judge panel.

All three judges found (wrongly, we think) that, although there is some sort of “right” to international travel by U.S. citizens, it is not such a “fundamental” right as to make restrictions on the exercise of the right to travel be subject to to what courts call “strict scrutiny”.

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Jun 17 2021

DHS still evades review of no-fly orders

Two recent court cases, and follow-up articles and interviews with the plaintiffs and their lawyers, show how the highest priority for the U.S. government with respect to no-fly orders continues to be preventing judicial review of these government decisions, not preventing terrorism.

When an airline requests permission to allow an individual to board a flight, and the U.S. Department of Homeland Security (DHS) declines to give permission, that “Boarding Pass Printing Result” (BPPR) message is communicated only to the airline,  not the would-be traveler. Even the airline is not told the basis, if any, for the negative BPPR message. (The default is “No”, in the absence of affirmative, individualized government permission-to-board.)

Again and again and again, when people have challenged these no-fly orders in U.S. courts, the government has chosen not to disclose or defend the basis for its decisions that these people constitute a threat to aviation sufficient to justify restricting their right to travel.

Instead, the government has told the plaintiffs that they have been (although perhaps only temporarily) removed from “the no-fly list” (although with no assurance that they won’t again be prevented from traveling in the future), and then gotten their complaints dismissed in court as “moot”. Only rarely has it been possible to pursue these cases.

A special law restricting the jurisdiction of the Federal courts over “orders” of the Transportation Security Administration (TSA), 49 U.S.C. § 46110, has also been used to avoid fact-finding as to the basis, if any, for these orders. In our opinion this law is clearly unconstitutional. But the Constitutionality of this law has not yet been directly ruled on, and it has been the subject of little Congressional scrutiny.

If the government really thought these people were dangerous, it should have gone to court sooner to obtain injunctions or restraining orders restricting their freedom of movement. If challenged, it should have defended its actions before Federal judges in adversarial, evidence-based fact-finding proceedings.

The government has chosen to do neither, and has consistently responded to no-fly lawsuits by taking almost everyone with the means and will to pursue extended litigation off the not-fly list. This reflects the reality that the DHS sees judicial oversight of its actions, not terrorism, as the greater threat to its standard operating procedures. The top DHS priority is to be able to continue its practice of extrajudicial secret decision-making — disconnected from facts and based instead on fantasies of “pre-crime” predictive ability — about who is, and who is not, allowed to exercise their Constitutional rights.

The stories of Ahmad Chebli and Ashraf Maniar illustrate how this plays out in real life —  and how it wrecks real people’s lives and livelihoods.

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Apr 12 2021

Connecting the DHS to the airline industry

A Request For Information (RFI) posted on a website for Federal government contractors gives a glimpse into the degree to which the Department of Homeland Security (DHS) has embedded itself into the information technology infrastructure of the airline industry.

The RFI for Services to Electronically Transmit Airline Data was posted April 5, 2021, by US Customs and Border Protection (CBP). Responses from potential vendors are due by April 19, 2021.

CBP says it is “conducting market research to gain a greater understanding of the full range of available options for services for obtaining names and related information of passengers who are arriving and departing the U.S. on commercial airlines.” Although the RFI was put out by CBP, which surveils and controls international air travel and cargo transport to and from the US, it appears to contemplate integration with the parallel systems used by the Transportation Security Administration (TSA) for data-driven surveillance and control of domestic US air travel as well.

According to the RFI:

CBP is evaluating transmission options for air carriers to use in compliance with these requirements.

  • The vendor must have established connectivity with the airline community.
  • The vendor must be able to test and certify with the air carriers, the vendor, CBP and TSA as required.

For those unfamiliar with the “parallel universe” of airline IT and data communications networks, this RFI might best be conceptualized by analogy to the specifications for the equipment — revealed by whistleblower Mark Klein — that was installed in the facilities of AT&T and other telecommunications companies to provide real-time copies of message data to the National Security Agency (NSA).

While the NSA receives metadata about the movements of our messages in the form of telephone calls, email messages, Web browsing, and other Internet traffic, CBP receives metadata about the movements of our physical bodies, whenever we travel by air, in the form of, according to the RFI,  “Passenger Name Records (PNR), air cargo manifests, advance passenger information (API), passenger manifests, and other airline-related data.”

The TSA receives a similar but somewhat different dataset of all domestic airline flights in the form of Secure Flight Passenger Data (SFPD).

The RFI requests information from vendors that already have  “an available global private network primarily used by the aviation industry to enable the aviation industry to send/receive API, PNR, and other information to CBP and other entities.”

The gateways provided by these vendors would also, presumably, position these vendors to serve other governments wanting to surveil and control air travel while using common gateways to connect to airlines without having to connect to each airline separately.

As the NSA did with telecommunications companies, CBP embeds itself in vendors’ data centers and message switching hubs:

The contractor shall provide the following to permit the electronic transmission of airline data to CBP’s computer network and host systems:

Provide Ethernet Internet Protocol (IP) connections to the contractor’s private global network. CBP routers are located on vendor’s premises. Contractor provides physical space at their datacenter(s) to include ¼ communications rack to house DHS/CBP co-located equipment that connects to the contractor’s private global network.

Unlike the “black boxes” installed in AT&T and other telecommunications and Internet switching centers to send mirror copies of messages to the NSA, the CBP/DHS connection to the global airline reservation cloud is bidirectional. The role of the DHS is not limited to passive surveillance, which would require only a unidirectional data feed.  DHS exercises positive permission-based prior restraint and control of the issuance of each boarding pass, which requires reliable real-time transmission of Boarding Pass Printing Result (BPRR) permission messages from DHS to airline check-in counters and Web check-in systems worldwide.

Currently, each airline has the option of connecting directly to CBP for bi-directional  transmission of PNR and API data and receipt of BPPR messages through a virtual private network using CBP-specified protocols and vendors, or connecting to DHS through one of two vendors approved by CBP to act as intermediaries: ARINC or SITA.

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Apr 07 2021

4th Circuit panel rejects rights to travel and to due process

In one of the worst court decisions on the right to travel since Gilmore v. Gonzales,  a three-judge panel of the 4th Circuit Court of Appeals has reversed the decision of a U.S. District Court in the case of Elhady v. Kable that  the U.S. government’s system of extrajudicial administrative blacklists (euphemistically and inaccurate called “watchlists” although the consequences for the people who are listed include much more then merely being “watched”) is unconstitutional.

The decision comes in a class-action lawsuit brought on behalf of blacklisted Muslim  American travelers in 2018 by the Council on American Islamic Relations (CAIR). It folows a disturbing trend of decisions in similar cases by courts in the 6th Circuit and the 10th Circuit.

According to Gadeir Abbas, the CAIR attorney who has led the national campaign of lawsuits (many others of which are still pending) against post-9/11 blacklists, CAIR plans to petition for “rehearing en banc” by the 4th Circuit Court of Appeals:

A three-judge panel on the Fourth Circuit reversed a historic U.S. District Court decision that declared the entirety of the watchlist unconstitutional. In doing so, the judges ignored the dire consequences experienced by American citizens placed on the watchlist and took a dim view of what the Constitution requires. We are disappointed in this decision, but we remain undeterred. The fight is not over. CAIR will now ask the entire Fourth Circuit to review the case.

The 4th Circuit panel gets off on the wrong foot by declaring that it is reviewing a challenge to a “system vital to public safety”, despite the absence of any finding by the District Court to that effect or any evidence in the record to support such a claim. In fact, watchlists/blacklists are based on anything but actual dangerousness. If an individual were actually demonstrably dangerous, the government could and should either arrest them or apply to a court for an injunction restricting their dangerous actions. But the government has never done that with any of the people it has blacklisted.

The 4th Circuit panel opinion is dismissive of almost every aspect of the right to travel or of due process. It finds that government-imposed travel delays of hours or perhaps even days aren’t sufficient interference with the right to travel to constitute a legally-cognizable infringement of the right to travel, and that denial of air transport is Constitutionally insignificant because, “Plaintiffs can travel internationally by boat.”

Despite acknowledging that the blacklists/watchlists were “created by executive order” and not by any Congressional action, and that the Terrorist Screening Center “receives around 113,000 nominations annually and around 99% are accepted,” the 4th Circuit panel finds that no judicial review of these decisions is necessary.

Relying on an outdated history of entry and exit procedures when an intercontinental journey took weeks, and a delay of hours or days would only lengthen the journey time by a small percentage, the 4th Circuit panel brushes off the detention (in many cases at gunpoint), interrogation, and search of the plaintiffs. “Delays and inconveniences at the borders are… as old as the nation itself…. The experiences alleged by plaintiffs do not rise to the level of constitutional concern…. Given the government’s broad power to control movement across the nation’s borders, the burdens experienced by plaintiffs are not infringements of  ‘liberty’ within the meaning of the Due Process Clause.”

We join CAIR and the many friends of the court who fiuled briefs in support of the plaintiffs in Elhady v. Kable in looking forward to en banc rehearing and reversal of this ill-founded decision.

Apr 05 2021

Can TSA checkpoints be used as a general law enforcement dragnet?

Airline travelers who were searched at Transportation Security Administration (TSA) checkpoint for cash and other items unrelated to any threat to aviation are entitled to their day in court, according to the first significant ruling by a Federal judge in Pittsburgh in a class action lawsuit filed a year ago.

The class action complaint in Brown v. TSA was brought by the Institute for Justice on behalf of all air travelers whose cash was seized at TSA checkpoints. It charges that searches at TSA checkpoints for “general law enforcement purposes” that aren’t limited to searches for weapons, explosives, and incendiaries that could pose a danger to aviation are (1) “ultra vires”,  that is, outside the scope of any authority granted by law to TSA checkpoint staff, and (2) unconstitutional as warrantless, unreasonable searches and seizures prohibited by the 4th Amendment.

The TSA and Drug Enforcement Administration (DEA) defendants tried to get the court to dismiss the complaint on such specious grounds as that the dozens of incidents of seizures of air travelers’ cash described in the complaint were merely “isolated incidents” unlikely to be repeated, and that a Federal law that has often frustrated judicial review of TSA actions, 49 U.S.C. § 46110, denies any Federal District Court jurisdiction to even consider such a complaint.

After review of initial recommendations by a Federal Magistrate, U.S. District Judge Marilyn Horan has denied most of the government’s motions to dismiss the class action complaint, allowing the case to move forward toward a decision on the merits.

As we noted when we first reported on the filing of this lawsuit, its importance extends well beyond the specific issues of searches and seizures of cash. This is one of two key pending lawsuits (along with one filed by Sai that’s pending in the 1st Circuit Court of Appeals with friend-of-the-court briefs due to be filed by the end of this week) challenging the TSA’s attempt to expand its checkpoints from limited special-purpose administrative searches for items posing a hazard to aviation to general law enforcement checkpoints like the “4th Amendment-free zones” at international borders and points of entry.

There have been, and continue to be, strong pressures from within the Department of Homeland Security and from other law enforcement agencies to use TSA checkpoints for an even wider range of general law enforcement purposes. That would create a new airport exception to the 4th Amendment, based on treating travel as presumptively grounds for suspicion (and thus subject to search and/or seizure) rather than the exercise of a right.

We are pleased to see this case go forward as an important test of the limits to the TSA’s authority, the meaning of the 4th Amendment, and the existence of a right to travel.

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.

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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?

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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.