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 Mr. Fikre was extradited to the US — whereupon the bogus charges against him were promptly dropped. 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.

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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.

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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

Aug 31 2018

A broader legal challenge to Federal blacklists

1. The federal government has imposed a kind of second-class citizenship on the Plaintiffs. Without charges, without arrests, without even an investigation sometimes — the agency defendants act in concert to deprive thousands of innocent Americans, mostly Muslim, of their right to be free from a government that extrajudicially designates them as worthy of permanent suspicion.

2. That permanent suspicion has sweeping consequences for the Plaintiffs as well as the more than one million others who bear it. They are separated from their children, denied employment opportunities, prevented from traveling by air to attend weddings and funerals, and denied or delayed immigration benefits. The rights of Plaintiffs to purchase firearms, to wire money and keep a bank account, to receive their passports and be granted visas to foreign countries are all constrained. For one plaintiff, the Defendants’ actions have diminished his standing and ability to provide religious leadership to his community.

3. Through an interagency watchlisting system, led by Defendants’ Watchlisting Advisory Council, the Defendants have identified the Plaintiffs as worthy of permanent suspicion, imposing burdens and disabilities on them in all aspects of their lives.

4. In deciding to target the Plaintiffs, the watchlisting system behaves lawlessly, acting in the absence of and — in some ways — in opposition to what Congress requires of its agencies.

5. To identify its targets, some parts of the watchlisting system, such as the Terrorism Screening Database (“TSDB”), utilize a nonsense-on-stilts standard that is always satisfied. Other parts, such as TSA’s Quiet Skies initiative, do not use any standard and instead rely upon the inarticulate hunches of federal officials, rank profiling, and vulgar guilt-by-association practices.

6. Through their watchlisting system, the federal government makes it known — to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

So begins the complaint filed earlier this month in Federal court in Maryland in the broadest legal challenge to date to the US government’s sweeping program of extrajudicial blacklisting and restriction of the rights of US (and foreign) citizens.

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Aug 28 2018

CBP expands partnership with airlines on facial recognition

This month US Customs and Border Protection (CBP) posted the latest in a series of Privacy Impact Assessments (PIAs) for its Traveler Verification Service (TVS) program.

The  latest PIA gives notice (although not in the form required by Federal law) that CBP and its airline and airport  partners are carrying out a second expanded phase of “demonstrations” of TVS, an identity-as-a-service scheme designed to use automated recognition of images from a shared CBP/airline/airport database of facial photos for purposes including surveillance and control (for CBP) and business process automation and price personalization (for airlines and airports).

CBP (1) describes TVS as a “biometric exit” program, (2) describes the current use of TVS as merely a “demonstration”, (3) continues to claim that airlines and airports “have no interest in keeping or retaining” facial images any longer , or using them for any other purposes, than is required by CBP for “security”, and (4) says that U.S citizens aren’t required to submit to mug shots.

These claims are intended to lull the public into not protesting: “This is only a test, using photos for limited purposes. The photos will be deleted once you get on the plane, and not used for nay commercial or other purpose.” And so forth.

All that might be somewhat reassuring, if any of it were true. But  none of it is:

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Jul 18 2018

California DMV lies about the REAL-ID Act

We’ve heard that the California Department of Motor Vehicles has posted scary new signs in DMV offices around the state misinforming motorists and holders of DMV-issued non-driver state ID cards about the Federal REAL-ID Act of 2005.

We assume that these public disinformation messages are similar in content to the false answers to frequently asked questions and other propaganda about REAL-ID on the DMV website.

We’ve been through all this before with similar false claims about the REAL-ID Act by the California DMV and the Federal Department of Homeland Security. But lest anyone be misled by seemingly authoritative statements from government agencies, here are some of the real facts about REAL-ID that are contradicted, denied, or ignored in DMV press releases. Read More

Jul 17 2018

3rd Circuit gives impunity to TSA checkpoint staff

TSA checkpoint staff often act as though they were above the law. But are they really?

Sadly, they often are, at least in the opinion of some Federal judges.

The 3rd Circuit Court of Appeals recent decision in Pellegrino v. TSA , in combination with its decision last year in Vanderklok v. TSA, mean that — at least for now, and at least in the 3rd Circuit — no civil recourse or remedy is available through the Federal courts against checkpoint staff who deliberately assault travelers, lie about their own actions and those of travellers, and make knowingly and deliberately false complaints to police in order to get travelers wrongly arrested.

The two judges in the majority on the three-judge panel that upheld the dismissal of Nadine Pellegrino’s complaint  explicitly acknowledged the implications of their decision:

We recognize that our holding here, combined with our decision in Vanderklok, means that individuals harmed by the intentional torts of TSOs will have very limited legal redress. And we are sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs’ contact with the flying public. For most people, TSA screenings are an unavoidable feature of flying, 49 U.S.C. §44901(a), and they may involve thorough searches of not only the belongings of passengers but also their physical persons…. For these reasons, Congress may well see fit to …  legislate recourse for passengers who seek to assert intentional tort claims against TSOs. But such policy judgments, particularly as they relate to sovereign immunity and the public fisc, fall squarely in the realm of the legislative branch.
The dissenting member of the panel (the dissent starts at p. 54 of the slip opinion) characterized the decision more bluntly:
My colleagues[‘]…  decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO [Transportation Security “Officer”] assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them.
The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.

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Jul 14 2018

Greyhound, Amtrak, and ID demands

Changes in Greyhound business practices jeopardize the already-limited options for cross-country travel by people in the USA who don’t have, or don’t chose to show, government-issued  ID credentials.

For local transportation, undocumented people who want or need to travel further and/or faster than they can walk can ride bicycles (although there have been proposals in some jurisdictions to require registration of bicycles and/or bicyclists), or use public mass transit (where it exists, and where fares can be paid anonymously in cash, which isn’t the case with some cashless transit fare payment schemes).

Long-distance travel options for people without papers are even more limited. Policies adopted by airlines and Amtrak, combined with ID requirements for drivers of private motor vehicles, have left long-distance bus companies as the carriers of last resort for long-distance travel by undocumented people.

The options for the undocumented get even narrower when one starts looking at specific routes. Greyhound is the only company providing scheduled transcontinental bus service, a truly national route system, or any intercity bus service to many destinations in the USA.

That makes Greyhound’s route system and ID policies, or the lack of any Greyhound policy conditioning domestic US travel on possession or display of government-issued ID, of paramount importance to anyone who wants to move about the US without showing ID.

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Jun 22 2018

Arguments for and against TSA Form 415

We’ve finally begun receiving records from the TSA of how the public responded to the TSA’s proposal in 2016 to start requiring travelers to show ID in order to fly.

Since 2008, TSA and contractor staff at airport checkpoints have been demanding that some travelers who do not have ID, do not show ID to checkpoint staff, or show ID that is initially deemed “unacceptable”, fill out and sign TSA Form 415, “Certification of Identity” and answer questions about the information in the (secret) file about them maintained and made available to the TSA by the commercial data broker Accurint.

Before any Federal agency such as the TSA starts collecting information from the public, whether verbally or through a written form, the agency is required to obtain approval for the “information collection” from the Office of Management and Budget (OMB).

The TSA has never requested or obtained approval for any version of Form 415. But in 2016, the TSA gave notice that it intended to seek OMB approval for Form  415, and accepted comments on that proposal from the public by email. After submitting our own objections to the TSA’s proposal, the Identity Project made a FOIA request for the complete administrative record related to the TSA’s contemplated request.

The TSA has not yet actually submitted a request to OMB for approval of Form 415, but has continued to use it illegally without OMB approval.

In May 2018, we received a heavily redacted version of the TSA’s procedures for “ID verification” including use of Form 415.

Now we’ve received a first partial set of excerpts from the “administrative record” related to the TSA’s proposal, consisting mainly of comments submitted by the public.

Most of the comments were from civil liberties and human rights organizations opposed to the TSA’s proposal, including the Identity Project, the Cyber Privacy Project,  the Constitution Alliance, and the Electronic Privacy Information Center.

But the TSA also received comments questioning the TSA proposal from at least one state government, and a single frighteningly revealing comment urging the TSA to use even more intrusive measures to track people who try to fly without “acceptable” ID.

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