Sep 16 2024

TSA again backs down from its REAL-ID threats

The Transportation Security Administration (TSA) has again backed down from its decades-old threats to start requiring all airline passengers to show ID that the TSA deems to be compliant with the REAL-ID Act of 2004. But the new rules proposed by the TSA would create new problems that won’t go away until Congress repeals the REAL-ID Act.

In a notice published in the Federal Register on September 12th , the TSA has proposed another two-year postponement of the most recent  of the “deadlines” the agency has imposed on itself for REAL-ID enforcement.  But that postponement would be combined  with interim rules for the next two years that ignore the law and invite arbitrariness in how travelers are treated.

The TSA notes that “frustrated travelers at the checkpoint may also increase security risks” if the TSA stopped allowing travelers to fly without REAL-ID. But the TSA doesn’t mention its current procedures for flying without any ID or its position in litigation that no law or regulation requires airline passengers to show any ID. Instead, The TSA claims without explanation that without this postponment, “individuals without  REAL ID-compliant DL/ID or acceptable alternative would be unable to board federally regulated aircraft.”

Comments from the public on the proposed rule are due by October 15, 2024. Dozens of comments have already been submitted, almost all of them opposing requiring REAL-ID to fly.

We’ll be submitting comments opposing the proposed rules and reminding the TSA that (1) no state is yet in compliance with the REAL-ID Act, which would require sharing of driver and ID databases with all other states, and (2) neither the REAL-ID Act nor any other Federal law requires air travelers to have, to carry, or to show any ID.

Unless the law is changed to try to impose an unconstitutional ID requirement as a condition on the right to travel by common carrier, the TSA must continue to recognize the right to fly without ID. Any distinction by the TSA or other Federal agencies between state-issued ID, when no state complies with the REAL-ID Act or could do so until all states participate in the national REAL-ID database (SPEXS), would be arbitrary and unlawful.

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Sep 06 2024

Planned new European travel restrictions follow US precedents and pressure

Citizens of the USA and some other most-favored nations have long been able to travel to many European countries for tourism or business without visas or prearrangements and with minimal border formalities, as long as they didn’t stay too long or seek local residence or employment.

This is scheduled to change with the imposition of new controls on foreigners — including US citizens — visiting Europe starting in November 2024. This is to be followed by a further ratcheting up of control and surveillance of  foreign travelers to Europe scheduled for some time in 2025.

Some US citizens are likely to be shocked and humiliated — as any traveler anywhere in the world should be, regardless of their citizenship — to be subjected to fingerprinting and mug shots and additional questionning on arrival in Europe and, starting next year, a de facto visa by another name that they will have to apply and pay for and have approved before they can board a flight (or international ferry or train) to any European destination.

European citizens can and should object to the imposition by their governments of these new restrictions on foreigners, including foreign tourists and business visitors and foreign citizens who reside in Europe. Europe could, and should, set a better example of respect for freedom of movement as a human right that shouldn’t depend on citizenship.

But US citizens who object to these new European measures should direct their objections and, more importantly, their agitation for changes in travel rules to the US government.

These impending new European travel control and surveillance measures are modeled on systems developed in, already in use in, and actively promoted to European and other governments around the world by the US government.

By its precedents and international pressure, the US government is making travel more difficult for everyone, including US citizens, everywhere in the world including in Europe.

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Aug 15 2024

Travel blacklists target political critics

US government travel blacklists (euphemistically described by the government as merely “watchlists”) are being used to restrict airline travel and target searches of electronic devices of organizers of protests against US support for Israel’s military actions in Gaza, according to a complaint filed this week in Federal court by attorneys for two blacklisted Palestinian-American US citizens, Dr. Osama Abu Irshaid and Mr. Mustafa Zeidan.

It might be tempting to interpret the allegations in this complaint as indicative of the need for oversight or guardrails to prevent “abuse” of the blacklisting and travel control system. But we think it makes more sense to see this case as indicative of the risk of political weaponization inherent in the system of algorithmic, identity-based, extrajudicial administrative control of travel. This case shows why this travel control system should be abolished entirely, and why any restrictions on the right to travel should be imposed through existing judicial procedures for restraining orders and injunctions — adversary procedures that incorporate notice, the right to confront one’s accusers, and the other elements of Constitutional due process.

The heavy lifting that makes this use of travel controls to restrict political dissidents possible was carried out when airlines were required to install communication and control lines enabling the US government to decide, in real time, on the basis of information from airline reservations and travelers’ ID documents, whether or not to give airlines “permission” to transport each would-be passenger. That entailed more than $2 billion, by the US government’s own underestimate, in unfunded mandates imposed on airlines and their IT providers for changes to their reservation and departure control systems.

Now that this infrastructure is in place, only the ruleset needs to be changed to change who is, and who is not, allowed to travel by air, or how they are treated when they fly.

Names and other selectors (phone numbers, IP addresses, etc.) can be added to list-based rules. New category-based rules can be added to the ruleset. New real-time “pre-crime” profiling and scoring algorithms can be applied to fly/no-fly decision-making. New external databases and actors can be connected to the system.

All of this has, in fact, been done, making it harder and harder for anyone to exercise effective oversight over the system or the decisions generated by its secret algorithms.

The potential for targeting of dissidents and political opponents is a feature, not a bug, of secret administrative decision-making, especially in the absence of judicial review.

Here’s how it played out in this case, according to the complaint and other reports: Read More

Aug 01 2024

Customs officers need a warrant to search your cellphone at JFK

Judge Nina Morrison of the US District Court for the Eastern District of New York (Brooklyn, Queens, Staten Island, and Long Island) has ruled that police, including officers of U.S. Customs and Border Protection (CBP), need a warrant to search your cellphone at JFK International Airport, even when you are entering or leaving the US.

This ruling is certainly a positive development. It’s a break with a line of judicial decisions that have made US borders and international airports a Fourth Amendment-free zone, even for US citizens. It’s likely to influence other judges and other courts, even though — as a ruling from a District Court rather than an appellate court — it doesn’t set a precedent that’s binding even on other judges in the same Federal judicial district.

But there are important issues that weren’t addressed in this case, and important things you need to know to exercise your rights at JFK or other airports — even if judges in future cases in the same or other judicial districts are persuaded by the ruling in this case.
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Jul 29 2024

5th Circuit reads travel blacklists into Federal law

In a decision issued last week, the 5th Circuit Court of Appeals has offered the first appellate opinion on whether there is any basis in law for the U.S. government’s creation and use of a system of “watchlists” (blacklists) to determine who is allowed to travel by air and how they are treated when they travel, as well as to impose other sanctions.

Numerous lawsuits have challenged various aspects of the government’s blacklistsing system and its application to airline passengers, but this is the first time that any U.S. appellate court has ruled on whether Congress has given the various agencies that created, maintain, and use these lists any statutory authority to so so.

The 5th Circuit panel found multiple mentions in Federal law of the use “databases” for “screening” of airline passengers. But that begs the question that was actually presented. As the Council on American-Islamic Relations (CAIR) argued in their brief on appeal:

Below, both the district court and the Government presented a mishmash of statutory language, none of which clearly authorizes any of the Defendant agencies to create, maintain, administer, or use a million-name list to infringe on the liberty of U.S. citizens and foreign nationals alike….  High-level congressional authorization of general law-enforcement and national-security activity is self-evidently inadequate to satisfy the major questions doctrine. Even the more precisely-worded statutory provisions that the Government offers to justify specific uses of the watchlist fall short because they nowhere authorize the creation or maintenance of the watchlist in the first place. At bottom, a survey of the Government’s cited authorities reveals that Congress did not create the watchlist—unelected bureaucrats did….

The district court did not conclude that the text of any specific statute clearly authorized federal agencies to create, maintain, and use the watchlist. Instead, the district court followed the Government’s lead and cobbled together (supposedly) clear statutory authorization from a hodgepodge of different laws, none of which—whether viewed separately or together—comes close to supplying clear congressional authorization….

Other cited provisions may grant TSA the power to use the watchlist to screen passengers but nowhere authorize any agency to create, maintain, or administer the watchlist in the first place.

Congress’s after-the-fact acquiescence to an agency’s power grab cannot provide the clear congressional authorization for the agency’s action. Rather, Congress’s clear authorization must come before the agency asserts the power to significantly intrude on the liberty of millions of Americans.

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Jul 23 2024

What “consent” really looks like for the DEA and TSA

The Drug Enforcement Agency (DEA) and the Transportation Security Administration (TSA) have been working together for years to steal travelers’ money.

The DEA pays informers to finger people who might be flying with large amounts of cash, and gets the TSA to identify these people when they go through TSA checkpoints at airports, claim that they “consent” to be searched, and then find any money they are carrying and seize it through “civil forfeiture”.

The DEA carries out similar cash-seizure operations on Amtrak trains — mostly domestic trains that don’t cross the US border — in collaboration with US Customs and Border Protection (CBP).

A new video released by the Institute for Justice shows how this “consent” works in practice.

In the w video, a DEA agent won’t take “I don’t consent to a search” for an answer. The agent follows an airline passenger onto their plane (without objection by airline staff), snatches the passenger’s carry-on bag, carries it off the plane, and refuses to return it. The agent claims the right to keep the passenger’s bag as long as it takes to get a warrant (although they don’t have that right, and don’t actually get a warrant).

This is not meaningful “consent”, and it’s not a valid legal basis for a search.

An ongoing class-action lawsuit by the Institute for Justice on behalf  of air travelers who have been searched without probable cause on the pretextual claim of “consent” in order to find, seize, and “forfeit” their cash has shown just how common this pattern of illegal search and seizure is.

We reported on the filing  of this lawsuit in 2020, and on the first substantive ruling in the case, in favor of the plaintiffs and allowing the case to move forward, in 2021.

Since then, the case has bogged down in foot-dragging by the DEA and TSA, resisting discovery of their records of  searches and seizures of cash from travelers at airports.

The DEA and TSA continue to claim — despite the initial ruling against them on this point —  that they don’t have an actionable “policy” of targeting travelers with cash for searches because they haven’t put this policy in writing. But the latest status report on discovery to date indicates that the DEA and TSA have made thousands of seizures of “bulk currency” from air travelers in recent years. This is clearly a routine and officially sanctioned agency practice, whether or not anyone has put it in writing.

The DEA and TSA claim that the volume of records of these searches and seizures would make producing them unduly burdensome. But the volume of these records is symptomatic of the scale and systemic nature of the problem — which is what the plaintiffs are trying to prove. The plaintiffs have suggested examining a statistical sample of the records of airport searches and seizures, but the DEA and TSA are resisting even that.

We wish the plaintiffs in this case and their lawyers success in their pursuit of justice for travelers.

May 09 2024

Office of Legal Counsel recognizes the right to travel

In researching the law on the right to travel to obtain an abortion, we were pleased to notice an advisory opinion from the Office of Legal Counsel (OLC) that, although only in passing, explicitly acknowledges the right to travel.

OLC is the division of the US Department of Justice that serves as the office legal advisor to the White House and all Executive Branch agencies of the federal government. OLC publishes only a handful public advisory opinions each year, so each of them is significant.

In late 2022, the General Counsel of the US Postal Service asked OLC for advice on whether existing Federal laws (specifically the Comstock Act of 1873) should be interpreted as prohibiting the Postal Service from accepting packages containing abortion-inducing drugs.

OLC’s opinion on this issue includes the following comment, with footnote:

[Even] if a state prohibits a pregnant person from ingesting mifepristone or misoprostol for the purpose of inducing an abortion, such an individual has a constitutional right to travel to another state that has not prohibited that activity and to ingest the drugs there.

Footnote: See Dobbs, 142 S. Ct. at 2309 (Kavanaugh, J., concurring) (“[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”); id. (referring to the question as “not especially difficult”); see also Bigelow v. Virginia, 421 U.S. 809, 824 (1975) (explaining that Virginia could not “prevent its residents from traveling to New York to obtain [abortion] services or . . . prosecute them for going there” (citing United States v. Guest, 383 U.S. 745, 757–59 (1966))).

We find this portion of the OLC opinion noteworthy for two reasons:

First, it’s been relatively rare in recent decades for the U.S. government, perhaps especially at the highest levels of overall Federal policy and legal thinking, to explicitly acknowledge the right to travel, much less to acknowledge that it is well established Constitutional law.

Second, the fact that this opinion was issued in this particular context highlights the truism that most people become concerned about rights only when their own rights, or those of people they identify with, are threatened. In other contexts, the same Federal administration (like its predecessors) has been vigorously defending the authority of Federal agencies to impose arbitrary extrajudicial restrictions on the right to travel.

The reality, of course, is that it could be any one of us whose rights are restricted. Human right should be a concern for each of us, whether or not we are currently being targeted. Each of us could become a target of the government, for reasons we may not be able to anticipate. The only way to effectively defend our rights is to defend everyone’s rights.

Legislators and Federal agency officials shouldn’t wait until their own rights, or the rights of those they can identify with, are threatened. But better late than never.

We are glad that OLC has, in this case, recognized the right to travel. We hope they remember to apply the same principles and act consistently in other cases.

Mar 19 2024

Unanimous Supreme Court rules that no-fly case can go forward

In a unanimous 9-0 decision announced today,  the US Supreme Court has ruled that a lawsuit brought by Yonas Fikre challenging the US government’s placing him on its no-fly list can go forward even though the government has, for the time being (and only after he sued), taken him off its travel blacklist.

Mr. Fikre is a US citizen who was put on the US government’s “no-fly” list while he was traveling overseas, in order to pressure him to become an informer working for the FBI to spy on members of a mosque he had attended back home in Portland, OR. As a result of being unable to return to the US, he was eventually arrested (at the behind-the-scenes instigation of the US, he plausibly claims) for overstaying his visa, tortured and further interrogated (also at the behest of the US, he claims, also plausibly), and again told he could be removed from the no-fly list — and thus allowed to be released from immigration detention and deported to the US — if he became an FBI informer.

The Supreme Court’s unanimous decision is narrow but important. The government has never, so far as we can tell, actually tried to defend any of its no-fly decisions and orders in court. Instead, the government has tried to avoid judicial review of either its decision-making procedures (as the Supreme Court notes in its opinion today, “no statute or publicly promulgated regulation describes the standards the government employs when adding individuals to, or removing them from, the list”) or the substantive outcomes (a striking pattern, publicly-revealed when the list was leaked, of anti-Muslim bigotry).

The government’s two-prong strategy for avoiding judicial review has been to argue that the evidentiary basis (if any) for no-fly decisions is a state secret that can’t be disclosed even to judges, much less the subjects of no-fly orders, and to try to render the remaining cases “moot” by taking those who lawyer up and sue off the blacklist before their cases can come to trial, as it did with Mr. Fikre once he was back in the US.

The Supreme Court’s decision today deals solely with the “mootness” issue. So little has been revealed about the government’s  actions in putting Mr. Fikre on, and later off, the no-fly list that there is no basis for confidence that the government actions that he complained of in his lawsuit won’t recur if the case is dismissed.

The unanimous opinion, written by Justice Gorsuch, didn’t reach the question of classified or “privileged” information or “state secrets”. Those issues remain to be addressed as the case proceeds on remand in the U.S. District Court for the District of Oregon. Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion agreeing with the judgment that the case was not moot, but stressing that they “do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course” and that it might be possible to decide the case on the basis of unclassified evidence.

Gadeir Abbas, the lawyer for the Council on American Islamic Relations (CAIR) who argued Mr. Fikre’s case before the Supreme Court, said after today’s decision was announced, “The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”

We congratulate Mr. Fikre and his lawyers for standing up for all blacklisted Americans. Fifteen years after he was blacklisted by his government and ten years after he filed his lawsuit, Mr. Fikre is still a long way from a trial or a ruling on the merits of his case. Today’s ruling is a step toward justice, but shouldn’t be misunderstood as meaning that “the system works” or that Mr. Fikre has been “given his day in court”.

We wish Mr. Fikre and his lawyers all success on remand in the District Court in Portland.

Mar 18 2024

Buses, trains, and US domestic travel without ID

In our previous article, we looked at the state of ID requirements and the the right to international travel for U.S. citizens.

What about domestic travel within the USA without ID?

Flying? Domestic US airline passengers are subject to demands for ID by airlines and the TSA. These demands are of dubious validity, and have arbitrary secret exceptions. Many people fly without ID every day. But not everyone is able or willing to challenge these authoritative-seeming demands for ID to fly.

Driving? States that choose to participate in the national REAL-ID system are making it harder and harder to get driver’s licenses or state IDs. It’s easier for a US citizen to get a passport or passport card than to get a driver’s license in some states. But you can’t legally drive in the US without a driver’s license issued by a state, US territory, or foreign government.

Unless you walk, ride a horse or bicycle, or get a ride in a car driven by someone else, that leaves buses and trains as the primary modes of long-distance travel for people in the U.S. without ID.

Can you take a long-distance bus or train in the US without ID? And if not, what could or should be done to guarantee that right? Read More

Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent  if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

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