Archive for the ‘Freedom To Travel’ Category

“Border” search and ID demand from passengers on a domestic flight

Friday, February 24th, 2017

Earlier this week at least two US Customs and Border Protection officers boarded a domestic Delta Air Lines flight from San Francisco when it arrived at Newark “Liberty” International Airport  (an ironic name in this context, obviously), stood inside the doorway as passengers disembarked, and “requested” that each passenger hand over their identification “documents”.

CBP says that this was a “request“.  One passenger told Rolling Stone, “the Delta flight attendant alerted passengers, ‘You’ll need to show your papers to agents waiting outside the door.'” In fact, the agents were inside the door, as clearly shown in photos posted to Twitter by passengers here and here, and in some cases appear to have been between the passengers they were questioning and the exit, closing them in so that they couldn’t have left.

It’s often unclear whether a statement of what law enforcement officers “need” is a request or a demand. Another passenger, a photo editor for Vice News,  says passengers were given an order, not a potentially ambiguous statement of “need”: “We were told we couldn’t disembark without showing our ‘documents.'”

Many air travelers in the US have become inured to requests or demands for ID documents by airline clerks and TSA checkpoint staff and contractors before they are allowed to board domestic flights. But the presence of Customs and Border Protection officers on a domestic flight, and ID checks after an otherwise uneventful flight, have prompted many questions.

Is this normal? Is this legal? Should it be legal? And what should you do if this happens to you?

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Executive Orders, lawsuits, and the right to travel

Thursday, February 16th, 2017

[D]ue process requires… notice and a hearing prior to restricting an individual’s ability to travel.

(9th Circuit Court of Appeals, Order on Motion for Stay, February 9, 2017, State of Washington and State of Minnesota v. Trump)

President Trump’s Executive Orders prohibiting entry to the US by citizens of specified blacklisted countries and cutting off all Federal grants to designated “sanctuary jurisdictions” that decline to spend their local funds and direct their employees to enforce certain Federal immigration laws have prompted a wave of litigation by individuals and, significantly, by states and cities across the US.

We welcome the increased public interest in Federal government attempts to control the free movement of free people, the new activism on the issues of freedom to travel, and the new willingness of states and municipalities to challenge restrictions on their residents’ right to travel.

There’s been much discussion and analysis of the implications of these lawsuits for these specific Executive Orders. Relatively little attention has been paid, however, to the implications for litigation over other ongoing and emerging issues of freedom to travel of what is being said, and by whom, in the litigation over the recent Executive Orders.

Here are some of our thoughts, from the trenches of more than 15 years of legal and political struggle for the right to travel, on what these cases may portend:

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Carrier sanctions kill. Airlines collaborate.

Wednesday, February 1st, 2017

[Sign carried by Dan Malashock at San Francisco International Airport, January 29, 2017. Photo by Ruth Radetsky.]

Since the start of our work against restrictions on freedom to fly, well before September 11, 2001, we’ve been wondering what further outrage it would take to provoke mass protests at airports, and when that would finally happen.

Now we know. Thousands of protesters (including at least one of President Trump’s fellow billionaires) filled international airports across the country for several days and nights starting last weekend, in reaction against President Trump’s executive order to detain and deport any arriving non-US citizen known to be a citizen (even a dual citizen) of one of seven publicly blacklisted Muslim-majority countries: Iraq, Iran, Libya, Somalia,  Syria, Sudan, and Yemen.

We’ve been talking about related issues for years. Now that they are out in the open, the question is what the outraged public will do, at whom the outrage will be directed, and how airlines — yes, airlines, and not just governments — will respond.

For what it’s worth, it’s unclear whether this executive order would apply to an asylum seeker who renounces their original citizenship in one of the blacklisted countries, even one who makes that renunciation at the check-in counter or in flight, and thereby arrives in the US stateless.  This may seem a far-fetched scenario, but it is common for stateless asylum seekers to use “invalid”, forged, or fraudulent documents to board flights, and then to destroy those documents in flight so as to arrive without papers. Deportation of any stateless person, and most of all a stateless asylum seeker, is especially problematic under international human rights law. But that’s the least of the problems with President Trump’s executive order.

Here are some key things we’ve learned from our work over the last 20 years that people — including those just now beginning to think about the right to fly, especially as it relates to immigrants, refugees, and asylum seekers — need to understand about what is happening, who is responsible, what will happen next, and what can be done:

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Trump repudiates agreement with EU on PNR data

Sunday, January 29th, 2017

In a panel discussion Wednesday at the Computers, Privacy, and Data Protection conference in Brussels, Edward Hasbrouck of the Identity Project pointed out that that both the so-called Privacy Shield and the EU-US agreement on transfers of Passenger Name Record (PNR) data from the European Union to the US government depend on non-treaty “promises”, “commitments”, “undertakings”, and executive orders by the Obama Administration.

These are not binding on President Trump, and there is no reason to expect Trump do anything just because Obama said he would do it.

Quite the contrary: President Trump has no intention of continuing many of President Obama’s policies, and every intention of reversing many of them — even if Trump continues others, such as mass surveillance, profiling of US citizens and foreigners, and reliance on executive orders to avoid the need for Congressional approval of his program, which Trump presumably will continue.

“As of this week, with Trump’s inauguration, the EU-US PNR agreement and Privacy Shield are dead letters. The only question is whether the Trump administration will officially renounce them, or whether it will simply ignore them,” Hasbrouck told the audience at CPDP.

The answer came just a few hours later the same day, when President Trump issued an executive order including the following:

Sec. 14.  Privacy Act.  Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

The US recognized privacy as a human right when it ratified the International Covenant on Civil and Political Rights:

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence….

2. Everyone has the right to the protection of the law against such interference or attacks.

But as we have complained to the relevant UN treaty bodies, the US has flouted its obligations under this and other provisions of the ICCPR related to freedom of movement as a human right, and has provided no effective means of redress for these violations.

Instead, on this and other issues the US has acted as though there are no human rights, only privileges of US citizenship. President Trump’s executive order on privacy is only the latest official restatement of this longstanding and bipartisan US government position.

With this Presidential decree, the EU-US PNR agreement is dead.

The next question is when EU institutions will recognize this legal fact, and what they will do about it.

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IDP comments on TSA proposal to require ID to fly

Monday, January 9th, 2017

Today the Identity Project and the Cyber Privacy Project filed comments with the Transportation Security Administration opposing a stealthy TSA proposal to start requiring ID to fly.

The TSA has long harassed people who try to fly without being required to show their “Papers, Please!” at TSA checkpoints.

But the TSA’s official position in court has always been that ID is not required to fly: “You don’t have to show ID to fly. You can fly without ID. We have a procedure for that.”

You can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about you obtained by the TSA from the commercial data broker Accurint, and (3) submit to more intrusive than standard search (“secondary screening”) as a “selectee”.

That’s the way it is, and that’s the way it’s been for years.

Now, as we reported in November of last year, the TSA is contemplating a new pattern and practice of preventing anyone from passing through a TSA checkpoint or getting on an airline flight unless either  they have ID the TSA deems acceptable, or they reside in a state that the TSA deems sufficiently compliant with the REAL-ID Act.

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Obama Admin’s parting gift to foreign visitors: social media surveillance

Sunday, December 25th, 2016

In the Obama Administration’s parting gift to foreign visitors, the Office of Management and Budget (OMB) has approved the collection of social media IDs from foreign visitors to the US.  As part of the online Electronic System for Travel Authorization (ESTA), tourists, business travelers, and foreign citizens visiting friends and relatives in the US are now being asked whether they have accounts on any social media platforms, and if so, their user names or IDs.

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“AFI” is the latest DHS name for “extreme vetting”

Wednesday, December 21st, 2016

We’ve heard a lot of talk in recent months about “extreme vetting” of immigrants, Muslims, and foreign visitors to the US. But what does “extreme vetting” really mean?

“Vetting” of both domestic and international travelers — making predictive pre-crime decisions as to whether or not to allow them to travel — is already extreme, and already routine.

“Vetting” means examining people and deciding who to allow, and who not to allow, to do something.

Under DHS procedures that have been in place for a decade, no airline operating to, from, or within the US is allowed to issue a boarding pass or let you on a plane unless and until it has sent your personal information to DHS and received an individualized, per-passenger, per-flight “Boarding Pass Printing Result” (BPPR) message giving the airline “permission” to “allow” you to exercise your right to travel by common carrier. The default if DHS doesn’t respond is “no”, and both the algorithms used for the decision and the data put into that algorithmic black box are secret.

What could be more “extreme”? Manual strip searches for all travelers, instead of just virtual strip searches using as-though-naked imaging machines?

But as President-Elect Trump’s “extreme” rhetoric suggests, the government’s desire for surveillance and control of our movements is insatiable. It’s always possible to make yet another mirror copy of the government’s warehouse of metadada about our movements, disseminate it more widely, and pile on another layer of pre-crime profiling algorithms. More is always better, right — especially if you call it “intelligence”?

The latest replication and propagation of travel data, and the latest layer of traveler “vetting” tools, is the so-called “Analytical Framework for Intelligence” (AFI) operated by, or under contract to, US Customs and Border Protection (CBP).  As we told Spencer Woodman of The Verge for his story today about AFI:

“When Trump uses the term ‘extreme vetting’, AFI is the black-box system of profiling algorithms that he’s talking about,” says Edward Hasbrouck of the Identity Project, a civil liberties initiative that focuses on the rights of travelers. “This is what extreme vetting means.”

DHS in general, and CBP in particular, have been playing a shell game for many years with their travel surveillance and control systems.

Government copies of airline reservations (Passenger Name Records) were first claimed to be part of a system of records called TECS, then declared to be part of a “new” system of records called the Automated Targeting System (ATS), although still stored in the TECS database. (Huh?)  Now an additional mirror copy of all this PNR data (still stored in TECS and still also deemed part of ATS) is being created as part of another “newer” system of records known as AFI.

If you’re confused by all the acronyms and name changes, and don’t know which government files you should ask for or worry about, that’s exactly what DHS wants.

AFI itself has changed fundamentally and for the worse in the last few months, at least if we can believe what DHS says. It’s always been a suspicion-generating and guilt-by-association machine, but now it’s a much more powerful one.  More powerful, to be clear, does not mean “better” or “more accurate”. It means, “capable of placing more people under suspicion” based on more intrusive data aggregation, data mining, and profiling. Here’s how:

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Controls on land travel vs. the right to free movement

Thursday, December 15th, 2016

In a partial but symbolically significant victory, the Belgian government has postponed a final vote in the national Parliament on legislation to require certain international railways to provide passenger name records (PNRs) to the government for surveillance and advance “vetting” of train travelers, as is already being done for air travelers between the EU, the US, and other countries.

(Text of the proposed law in French and Flemish/Dutch; report on first reading in Parliament; analysis and commentary in English; legislative history; legislative status.)

The Belgian proposal was approved by the anti-terror committee in Parliament despite a threat by the German national railway to suspend its high-speed services to Belgium if the bill passes, as well as other criticism.

One Belgian think tank, analyzing the proposal in the context of other anti-terrorism proposals, concluded that, “The creation of a Belgian PNR system is a good illustration of this dynamic: taking it as a given that it will facilitate the arrest of terrorists who are planning attacks is something of a fairy tale…. Social sciences, unlike astrology, is not about predicting the future.”

The decisive factor in the Belgian government’s decision to postpone the scheduled final vote in the national Parliament appears to have been intervention by the European Commission in response to a formal complaint by Access Now that the law would violate the right of EU citizens to move freely within the EU.

As with “rights” for US citizens that aren’t recognized as human rights for all, a decision by the EU or Belgium based solely on the rights of EU citizens falls short of full recognition of the right to travel. But so far as we know, this is the first time that the EU has blocked any proposed travel surveillance or control measure, in the EU or any of its members states, on the basis of the right to freedom of movement.

We hope that the Belgian government will withdraw its railway PNR proposal entirely, not leave it pending, and that other EU member states will take note of the incompatibility of measures like this with fundamental European and human rights principles.

TSA proposes to require ID to fly

Monday, November 21st, 2016

Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice  issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

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What does Donald Trump’s election mean for our work?

Friday, November 18th, 2016

We endorsed neither Hillary Clinton, Donald Trump, nor any other candidate for elected office. So what does the presumptive election of Donald Trump as President of the U.S. — when the electors cast their ballots on December 19, 2016, and the votes are counted on January 6, 2017 — mean for the work of the Identity Project?

First and foremost, it means that our work, and the need for it, will continue — as it has under previous administrations, both Democratic and Republican.

Human and Constitutional rights are, by definition, no more dependent on the party affiliation of the President, if any, than on our own. Freedom is universal. Our defense of the right of the people to move freely in and out of the U.S. and within the country, and to go about our business, without having our movements tracked and our activities logged or having to show our papers or explain ourselves to government agents, has been and will remain entirely nonpartisan.

We will continue to criticize those who restrict our freedoms and infringe our rights, regardless of their party, just as we have criticized the actions of both the Obama and Bush administrations and of members of Congress and other officials of both parties, many of whom remain in power despite the changes at the top.

Attacks on our liberty have been, and remain, just as bipartisan as our resistance to them. This is especially true of the imperial power which the Presidency has been allowed to accrue, and which is exercised through Presidential proclamations, executive orders, and the secret law (or, to be more accurate, lawlessness) of Federal agency “discretion”. Those who acquiesced in the expansion of Presidential power and executive privilege because they thought that it would be used to their benefit by a President of their own party have only themselves to blame if that power is later used against them by a new President of a different party, or without allegiance to a traditional party hierarchy.

Many of the most imminent ID-related threats are those that arise from existing laws or extrajudicial administrative practices, the limits of which — in the absence of legislative or judicial oversight and checks and balances — are set solely by executive order. Where President Trump can make changes to ratchet up repression, to register and track both U.S. and foreign citizens, and to monitor and control our movements within the country and across borders, with the stroke of a pen, we don’t expect that he will hesitate to wield the power he has inherited to govern by issuing public decrees or by giving secret orders to his minions.

In some of these cases, Federal officials and the homeland-security industrial complex of contractors, confident that the incoming occupant of the White House will bless their efforts to anticipate has desires, may take action even before they are ordered to do so. This seems especially likely, in our area of concern, with respect to (1) the DHS implementation schedule and requirements for the REAL-ID Act,  (2) the TSA’s longstanding desire to enforce and eliminate exceptions to a de facto ID requirement for air travel that lacks any basis in statute and contravenes the U.S. Constitution and international law, and (3) expanded use of ID and surveillance-based pre-crime profiling (President-to-be Trump calls it “extreme vetting”) as the basis for control of movement, especially across borders.

We will be watching closely and reporting on signs of activity on all these fronts, some of which are already visible.

Now more than ever, we need your support — not just helping us to defend your rights, but asserting your rights and taking direct action to defend them yourselves. “The limits of tyrants are prescribed by the endurance of those whom they oppress.”

We invite you to join us in our continued resistance to all lawless attacks from any and all sides on our Constitution, our freedom, and our human rights.