Apr 06 2020

Airline passenger data and COVID-19

The New York Times published a lengthy but deeply flawed report last week,  “Airlines Refused to Collect Passenger Data That Could Aid Coronavirus Fight.” Here’s the lede:

For 15 years, the U.S. government has been pressing airlines to prepare for a possible pandemic by collecting passengers’ contact information so that public-health authorities could track down people exposed to a contagious virus.

The airlines have repeatedly refused, even this month as the coronavirus proliferated across the United States. Now the country is paying a price.

The implication of both the headline and the article is that airlines “could” have collected and provided the government with the (additional) information it wants. But that isn’t true.

While the Times’ reporters interviewed multiple government sources, they failed to fact-check this allegation with any sources independent of airlines or the government. And they failed to mention — if they even realized, which they may not have — that this isn’t an isolated dispute, but part of a continuing saga that has been going on since 9/11.

The supposed basis for the government’s demands for airlines to collect and pass on more information about travelers has shifted from “security” to “health.” But what’s happening is just another chapter in a long-running story.

Understanding that story requires a deep dive into twenty years of history of airline and government collaboration and conflict over collection and use of data about travelers.

Here’s some of the factual and historical context that the Times overlooked:

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Mar 30 2020

“Known Traveler Digital Identity” (KTDI)

On March 26, 2020, the World Economic Forum published specifications  and launched a new website for a project it has christened “Known Travel Digital Identity” (KTDI):

KTDI is a “surveillance-by-design” vision for tracking and control of travelers more dystopian than anything we have seen before.

KTDI would use a blockchain-based distributed ledger to bind together, through an app on a traveler’s mobile device, all of the following data:

  • Biometrics (initially facial images, possibly also fingerprints, etc.)
  • Government-issued ID credentials (passport number, etc.)
  • Travel history including logs of border crossings, hotel stays, and possibly also car rentals and/or other events
  • Purchase logs and possibly bank account information and/or other financial and transaction records
  • Pre-crime predictive “risk assessment” and profiling scores generated at each “intervention” point before and during each trip or transaction

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Mar 23 2020

In a pandemic, freedom is the first casualty

We’ve seen before — notably after September 11, 2001 — how a crisis can result in damage to rights and freedoms that persists long after the initial cause of public panic.

Some advocates for restrictions on individuals and our movements and activities will exploit any crisis to ratchet the mechanisms of surveillance and control tighter.

Other officials, including many who mean well but are too traumatized to recognize the long-term consequences of their short-term actions, will advocate “temporary” restrictions on individual rights and freedoms that almost inevitably become permanent.

We don’t yet know what the cost in lost lives of the coronavirus pandemic will be. But we can already see the outlines of some of its potential cost in lost civil liberties.

Earlier in the pandemic, we reminded our readers of the risks of abuse of overbroad quarantine powers. But that’s only one aspect of the problem.

The basic methodology of control of travel and movement is that compulsory identification of travelers enables surveillance (tracking and logging) of travel and movement histories, and control of future movements based on individuals’ identities and the histories and other databases of personal information linked to those identities.

Already, changes to policies and practices related to (1) identification, (2) surveillance, and (3) control of travelers have all been proposed in response to the coronavirus pandemic: Read More

Feb 18 2020

It’s time for Greyhound to say no to police harassment of bus riders

A memo from the Border Patrol component of US Customs and Border Protection (CBP) first reported last Friday by the Associated Press confirms what critics of Greyhounds’s collaboration with the US Border Patrol and other police have been saying for years: unless they have a warrant or in exigent circumstances, CBP agents can’t board Greyhound’s buses without Greyhound’s permission.

Greyhound has defended itself by claiming that it has no legal right to keep Border Patrol agents from boarding buses and questioning passengers. But those claims — which we’re pretty sure Greyhound’s lawyers have always known to be false — have now been shown to be directly contrary to the instructions given to all Border Patrol field supervisors:

When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company’s owner or one of the company’s employees.

It’s time for Greyhound to stop making excuses or blaming the government for its corporate choices. Greyhound could and should decline to consent to police boarding its buses, and explicitly prohibit its employees and agents from giving such consent.

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Feb 13 2020

REAL-ID Act amendments don’t address the real ID problem

In response to fears by the travel industry (fueled by government lies) that businesses dependent on air travel will lose money if their would-be customers are prevented by the Transportation Security Administration (TSA) from flying because they don’t have ID credentials that the Department of Homeland Security (DHS) deems sufficiently “compliant”, a proposal was introduced in Congress this week by Rep. Debbie Lesko of Arizona to amend the REAL-ID Act of 2005.

What’s really called for, though, is repeal, not revision, of the REAL-ID Act, and explicit Congressional recognition that travel by common carrier is a right that cannot be conditioned on government-issued credentials or other permission. The amendments proposed in H.R. 5827 would only exacerbate the Constitutional flaws in the REAL-ID Act, and would do nothing to rein in the TSA and other DHS components in their violations of travelers’ rights.

H.R. 5827 appears to have been drafted by travel industry lobbyists. Its provisions exactly match the recommendations of the U.S. Travel Association, the umbrella trade association for the travel industry in the USA. Rep. Lesko’s press release announcing the filing of H.R. 5827 quotes endorsements for the bill from spokespeople for U.S. Travel and its constituent trade associations of airlines, airports (which in the US are almost all publicly operated, but tend to act like self-interested businesses rather than operating in the public interest), and travel agents. No advocates for travelers , civil liberties, or freedom to travel are quoted — nor are they likely to endorse H.R. 5827 or the REAL-ID Act it would amend.

H.R. 5827 is styled as the “Trusted Traveler REAL ID Relief Act of 2020”, and is described as a bill “To exempt certain travelers from certain requirements of the REAL ID Act of 2005 for purposes of boarding a federally regulated commercial aircraft, and for other purposes.”

But what would H.R. 5827 actually do, and would that make things better or worse?

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Feb 10 2020

DHS doesn’t trust New Yorkers

In a new twist on the familiar US Department of Homeland Security (DHS) tactic of trying to intimidate state governments into sharing drivers license data with the DHS by threatening to harass, delay, or interfere with the rights of residents of those states when they travel,  the Acting Secretary of Homeland Security has declared that New York residents won’t be allowed to apply for or renew participation in any of the DHS Customs and Border Protection (CBP) “trusted traveler” programs.

The DHS says that this is because New York’s new “Driver’s License Access and Privacy Act… effective December 14, 2019… forbids New York Department of Motor Vehicles (DMV) officials from providing… driver’s license and vehicle registration information to the United States Department of Homeland Security (DHS).”

That provision of New York state law appears to be intended to prevent New York DMV records pertaining to driver’s licenses issued to otherwise undocumented New York residents from being used by the DHS to round these New Yorkers up and deport them. The DHS doesn’t like it that New York, like at least fifteen other states, issues driver’s licenses on the basis of whether residents demonstrate competence to drive, not their immigration status.

The DHS knows that it has no authority to tell states to whom they can or can’t issue drivers’ licenses. Instead, it has used the data sharing prohibition in New York law as the pretext for retaliating against the state government by discriminating against New Yorkers.

As New York Governor Mario Cuomo pointed out in his response to the DHS decision, the DHS has never previously required applicants for any of its “trusted traveler” programs to have a driver’s license at all. No law supports the DHS demand for access to DMV data about drivers as part of its pre-crime assessments of would-be air travelers.

It’s clear from a comparison with DHS actions related to the REAL-ID Act that the DHS claim that it “needs” state DMV data to “vet” (i.e., make pre-crime assessments of) air travelers is pretextual, hypocritical, and fully warrants a judicial finding that it constitutes an arbitrary denial of equal protection of the law to New York residents.

The REAL-ID Act — unlike any law or regulation related to “trusted traveler” programs — does require states to share drivers license and state-issued ID data if they want to deemed “compliant” (although state compliance is optional).  An outsourced national ID database has been set up by a nominally private contractor to allow states that want to comply to do so. However, New York, like more than half of the other states and territories subject to the REAL-ID Act, hasn’t chosen to participate in the SPEXS database or share its data.

But the DHS, despite this manifest noncompliance with the explicit statutory criteria for driver’s license data sharing, has chosen to certify New York (and almost all of the other noncompliant states and territories) as “compliant” with the REAL-ID Act.

Members of the House of Representatives have already asked the DHS for an explanation of the legal basis for its new discrimination against New York residents. And both the state of New York and the New York Civil Liberties Union have announced that they plan to sue the DHS on behalf of New Yorkers who are being discriminated against.

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Jan 31 2020

Can “quarantine” orders restrict travel and movement?

Imagine that you are a US citizen living or traveling overseas, and find yourself in a place of possible danger. The US government, as part of its “services” to US citizens abroad, offers to charter a plane to evacuate US citizens and repatriate them to the US, and you agree to pay a pro-rated share of the cost of the flight back to a US gateway airport, from which you are told you will be free to proceed to your home or to wherever else you choose to go.

But the flight, which was scheduled to take you to San Francisco International Airport, is diverted first to Ontario [CA] Airport and then to an Air Force Reserve Base in the Mojave Desert, where passengers are confined in a  cordoned-off section of the base. When one of you tries to leave, they are detained by the authorities.

This is what has happened to 195 US citizens “evacuated” from Wuhan, China.

Have they been “rescued” by their government? Or have they been kidnapped?

Questions are already being raised about this and other incidents of individual and mass “quarantines”.  Some have questioned the medical argument for quarantine orders, while others have suggested that the current panic reflects ethnic and national bigotry.

Our particular concern is — as it has been for many years, and as it has been for other legal experts who have criticized the Federal quarantine regulations — with the legal basis and procedures for restricting the right to freedom of movement, extrajudicially, on ostensibly medical grounds, rather than  relying on existing legal mechanisms for the issuance by judges of temporary restraining orders or injunctions restricting individuals’ movements.

Unfortunately, US authorities, especially the Centers for Disease Control and Prevention (CDC), have tried to avoid acknowledging the scope of the authority they claim, or giving either the public or specifically affected individuals clear notice of their rights. Instead, as in other recent incidents of quarantine orders, they have tried to avoid any judicial review of their actions by persuading individuals to waive their rights, just as police avoid judicial review of other types of detentions, searches, and interrogations by intimidating members of the public into giving “consent”.

KTLA television reports that “None of the passengers showed signs of the illness after being evacuated from the epicenter of the deadly coronavirus outbreak. However, they agreed to stay voluntarily, according to Dr. Chris Braden of the U.S. Centers for Disease Control and Prevention.”

The CDC claim that passengers “agreed to stay voluntarily” seems to be contradicted by other facts reported in the same news story: Read More

Jan 17 2020

Is the TSA “screening” for threats to aviation, or for cash and drugs?

A class-action lawsuit filed this week in Pittsburgh by the Institute for Justice, Brown v. TSA, exposes the dirty non-secret that TSA checkpoints are used primarily as drug checkpoints  and as a revenue center for law enforcement agencies, not to protect aviation.

Warrantless, suspicionless dragnet administrative searches at TSA checkpoints are justified as measures to “screen” travelers for weapons, explosives, and other threats to aviation.

When the actions of TSA Transportation Security “Officers” are challenged in court, the TSA has claimed that its “Officers” are not the “officers” referred to in the Federal Tort Claims Act (“any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”) ; conduct only limited administrative searches for weapons, explosives, and threats to aviation; do not have any authority to conduct searches for any other purpose; and neither have nor exercise authority to arrest or seize travelers.

In practice, however, the primary use of TSA checkpoints by the government is to “screen” travelers for drugs and cash, and to seize and expropriate illegal drugs, drug-related cash, and all “large” sums of cash being carried by airline passengers, regardless of the presence or absence of any evidence linking that cash to illegal drugs or any other illegal activity.

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Dec 03 2019

Seattle Port Commission to consider rules for airport facial recognition

We’ll be in Seattle on December 10, 2019, to give public comments (see our detailed written testimony submitted in advance) at a meeting of the Port of Seattle Commission concerning a proposed resolution on use of facial recognition by airlines at the Seattle-Tacoma International Airport (SEA).

This will be the first time that any operator of a US airport has publicly considered any policies to govern use of facial recognition by airlines or on airport property.

The public authorities that operate almost all major US airports have a key role to play in oversight of traveler surveillance systems deployed on their premises by their tenants.

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Nov 21 2019

What will the REAL-ID Act mean for Californians?

Steve Gordon, Director of the California Department of Motor Vehicles

The director of a $9 million state publicity campaign to persuade Californians that they will be “turned away at the TSA checkpoint” if they try to fly without ID and that “you will need to show federally-compliant identification in order to board a domestic flight within the U.S.” admits that he knows you can fly without any ID, and he’s flown without ID himself.

That admission by Steve Gordon, Director of the California Department of Motor Vehicles (DMV), came following a hearing in Los Angeles yesterday at which we also testified (written testimony, video starting at 1:10:23) before the California Assembly Budget Subcommittee responsible for oversight of the DMV.

California DMV Director Gordon said the DMV has an “overall budget north of $9 million” for an “awareness and motivational campaign” in all media — billboards, online keyword advertising buys , etc. — to “drive people to action” to apply for REAL-ID cards.

Gordon said that the DMV had changed its message from “You can apply for either a REAL-ID ‘compliant’ or ‘noncompliant’ drivers license or ID card” to, “You should get a REAL-ID card,” because it was “too confusing” to tell people they have a choice.

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