Feb 16 2018

Will “continuous vetting” include new demands for travel information?

Congress is currently considering multiple “immigration” bills containing provisions for “continuous screening” or “continuous vetting” of foreign residents, visitors, and would-be visitors to the US. As we have noted previuosly, “continuous screening” and “continuous vetting” are euphemisms for “continuous surveillance and control”.

These so-called “immigration” bills would not be limited to foreigners. Many of them would include US citizens exercising our right to leave our country, and to return, in pre-crime travel surveillance and control schemes.

One question that has been raised about some of these proposals is (1) whether they would require airlines to provide the DHS with additional informaiton about  air travelers, or require information about potential passengers to be provided further in advance of scheduled flights, and (2) if so, whether this would violate the US “agreement” with the European Union regarding US government use of PNR data obtained from airlines.

Here’s some background, and some analysis, of what “continuous vetting” might mean for US government use of data from airlines, and for the US agreement with the EU:

Read More

Feb 06 2018

New “National Vetting Center” will target travelers

The White House today announced the creation by executive order of a new “National Vetting Center”, led by the DHS, to coordinate efforts to surveill, profile, and control movement by U.S. citizens, residents, immigrants, and visitors.

The “National Security Presidential Memorandum” was not made public, and the  press release announcing it gives few details. So far as we can tell, it appears that the intent  is to integrate the pre-crime functions of the DHS, particularly those of the National Targeting Center that currently issues extrajudicial yes-fly and no-fly orders or “recommendations” to airlines, with the travel and immigrant surveillance components of other departments, and to extend it from border crossings to continuous surveillance and control.

Since “pre-cogs” capable of making pre-crime predictions are a Hollywood sci-fi fantasy, not a reality, what would be the criteria for this “Extreme Vetting”?

A report commissioned last month by the head of US Customs and Border Protection and  made public by Foreign Policy gives an indication of the likely “vetting” criteria for action against individuals by the new National Vetting Center. Read More

Jan 31 2018

DHS threatens to harass American Samoan travelers

In the latest installment of the game of chicken between the Department of Homeland Security and US states and territories over the REAL-ID Act of 2005, the DHS has announced that drivers licenses and IDS issued by American Samoa won’t be accepted at TSA checkpoints for “domestic” flights beginning next Monday, February 5, 2018 — unless the DHS, in its standardless discretion, backs down again as it has so many times before, and gives American Samoan travelers a last-minute reprieve.

Why American Samoa? And what will this actually mean?

Read More

Jan 30 2018

Government and industry collaborate in travel surveillance

Senior officials of US Customs and Border Protection (CBP) came to San Francisco last week to meet with representatives of the Identity Project and other civil liberties and human rights organizations regarding CBP “biometric entry/exit” schemes. These CBP programs, some of which are already in operation, involve taking digital mug shots of international travelers — including US citizens — as they enter and leave the US. The meeting in San Francisco was a follow-up to one in Washington, DC, in August 2017.

Debra Danisek, CBP Privacy Officer, and John Wagner, Deputy Executive Assistant Commissioner in charge of the CBP “Office of Field Operations”, were accompanied to the meeting by CBP national, regional, and SF Bay Area local CBP policy anbd operations staff.

We welcomed the opportunity to point out to the CBP officials in charge of these programs that — especially as they apply to US citizens — they violate multiple Federal laws,  involve unconstitutional warrantless, suspicionless dragnet surveillance of how we exercise our right to assemble  as protected by the First Amendment, and should be abandoned.

It was an infuriating meeting, however. Rather than offering explanations for many of the CBP’s practices, the CBP officials acorss the table flatly denied much of what is happening at airports throughout the US, even in the face of first-person testimony to the contrary from many of the civil liberties advocates in attendance.

Since they wouldn’t admit that some of the most abusive CBP practices — the ones we thought the meeting had been called to discuss — are actually happening, the CBP officials wouldn’t talk about what, if any, legal basis these practices might have. Meanwhile, these unlawful practices by CBP and other DHS components continue and  expand.

Here are some of the counter-factual claims made by CBP in our meeting, and some of the issues left unaddressed: Read More

Jan 21 2018

Kudos to Lufthansa. Coals to the DHS.

A redacted version of the report of an internal review by the DHS Office of the Inspector General (OIG) of DHS implementation of President Trump’s January 2017 “Muslim Ban” Executive Order has been made public several months after the report was prepared.

Both the manner in which the OIG report was eventually released and the contents of the report are worthy of note, as discussed below.

Federal law requires every Cabinet-level Federal department, including the DHS, to have  an Inspector General. The DHS Inspector General is part of the DHS, but is appointed by the President, operates with considerable autonomy, and comes closer to the role of an “independent counsel” than does any other officer or office within the DHS.

The existence of the OIG report on DHS actions under the first “Muslim Ban” Executive Order (EO) was revealed in a November 2017 letter to Congress from IG John Roth. In this letter, IG Roth said that his office had delivered a draft of the Muslim Ban EO report to DHS “leadership” (presumably meaning the office of the Secretary of Homeland Security) in early October 2017, but that DHS leadership was taking an unusually long time to approve release of the report and had requested unusually extensive redactions. Days later, Roth took early retirement.

Open The Government (OTG) requested a copy of the report under the Freedom Of Information Act, but that request was denied on highly questionable grounds.  However, two days after Open The Government and the Project on Government Oversight (POGO) appealed that FOIA denial, the DHS posted a redacted version of the report.

OTG and POGO are continuing to appeal the redactions, but even the expurgated version of the report is a damning indictment of DHS operational divisions, particularly US Customs and Border Protection (CBP), for illegal defiance of Federal court orders.

In our analysis of the Muslim Ban Executive Orders, we focused on DHS efforts to induce airlines to (illegally) deny boarding at foreign airports to blacklisted individuals and citizens of blacklisted countries, preventing refugees from reaching the US and thus preventing them from even applying for asylum.

We are struck that the OIG report assessing the legality of DHS actions focused on exactly the same issue we had highlighted: DHS efforts to induce airlines not to board citizens of the countries subject to the Muslim Ban EO on flights to the US from foreign airports, even after Federal courts in Boston and later elsewhere in the US had enjoined DHS to admit these people to the US.

The OIG concluded that, “It is our considered view that the issuance of no-board instructions violated the Louhghalam and Mohammed [U.S. District Court] orders.”

The OIG report includes examples such as the following: Read More

Jan 20 2018

All the fake news that’s fit to print about REAL-ID and ID to fly

We’ve been spending a lot of our time lately writing letters to the editor pointing out errors and requesting corrections of news stories reporting DHS propaganda as fact.

Earlier this month, the DHS postponed from January 22, 2018, to October 10, 2018, the date on which it had threatened to have the TSA begin (illegally) interfering with air travel by residents of certain states.  Since neither the January 22, 2018, date nor the choice of which states to threaten was set by law or regulation, but solely by DHS press release, the DHS could and did withdraw its threat merely by issuing another press release.

The DHS had little choice, after its bluff was called by reality (compliance with the REAL-ID Act would require more money, more time, and changes to state laws and in some states incluidng California, changes to state constitutions) and the likelihood of resistance by the flying public (any attempt to prevent residents of certain states from flying without ID would lead to protests at airports and lawsuits that the TSA and DHS would likely lose).

But we are not surprised, given the long history of DHS lies about the REAL-ID Act and ID to fly, that the DHS press release withdrawing the threat of a January 22, 2018, crackdown on air travel without ID by residents of certain states was immediately followed by a renewed DHS public relations campaign of lies about the law and the facts.

DHS press releases should no more be published as “facts” without fact-checking or acknowledgment that they contain contested (and readily refuted) factual and legal claims than should President Trump’s,  President Obama’s, or anyone else’s Tweets.

The New York Times is the latest news outlet to have been taken in, yet again, by this DHS “fake news” campaign, with an article this week on the Times’ website and in the travel section, “Is Your ID Approved for Travel? These Are the Latest Rules“. Many of the DHS falsehoods in this article were reported as facts in an earlier story in the Times in November, 2017, by the same reporter, Shivani Vora. We wrote to Ms. Vora at that time to correct the errors in that story, but received no reply.

To be clear, DHS claims are worthy of reporting as news. It is newsworthy that the DHS has engaged in a decade-long campaign, through both Democratic and Republican Administrations,  of brazen public lies about the REAL-ID Act and ID to fly.

It is equally newsworthy, however, that a “newspaper of record” appears to have made no attempt to fact-check the claims made by DHS spokespeople or to include any other points of view, and repeats demonstrably false DHS claims as undisputed facts even after their falsehood was pointed out to the reporter on the story.

Specifically, the latest article in the New York Times reports the following DHS “fake news” as fact: Read More

Jan 08 2018

DHS postpones threats of REAL-ID Act enforcement

Again postponing its threats to interfere with air travel by residents of “noncompliant” states, the Department of Homeland Security announced today that it has given the last three remaining states either certifications of “compliance” with the REAL-ID Act of 2005, or extensions of time to comply until at least October 10, 2018.

Travelers in all 50 states can continue to ignore the false signs at airports, the false claims being made by state authorities collaborating with the Feds in the national ID scheme, and the blizzard of confused  and error-filled news stories (largely based on unverified and misleading DHS and state government press releases) claiming that U.S. citizens will need to obtain, carry, or show passports or other government-issued ID in order to travel by air.

This does not mean that all or most states have actually complied with the REAL-ID Act or are planning to do so. At most 14 states are arguably compliant with the Federal law.

The plain language of the Federal law requires that, “To meet the requirements of this section, a State shall … Provide electronic access to all other States to information contained in the motor vehicle database of the State.”  Only 14 states are participating in the outsourced SPEXS national ID database set up to enable this nationwide data access:

In addition to the 14 current SPEXS particpants, the contractor managing the national ID database optimistically lists 4 other states as “actively working on implementation.” But none of these states are listed as having signed letters of intent  to join the SPEXS national ID database.

The other 32 states are not compliant with the data-sharing provision of the REAL-ID Act, and have given no indication of intent to comply.

What will happen next?

Read More

Jan 05 2018

A REAL-ID Christmas present from the California DMV

On the Friday before Christmas Monday, when state officials hoped that everyone who might object would be sleeping, the California Department of Motor Vehicles finalized its regulations for partial compliance by the state with the Federal REAL-ID Act of 2005.

The final regulations and a statement of responses to public testimony and comments were posted on the DMV website on December 22, 2017, and went into effect the same day.

The final regulations are essentially unchanged from those the DMV proposed in September 2017, and that we objected to in written comments and in-person testimony at the DMV’s one hearing on the proposal in Sacramento in October.

The DMV’s response to public testimony and comments brushes off our objections, and the objections by other commenters and witnesses, on the basis of repeated invocation of patently false and/or irrelevant and unresponsive legal and factual claims.

Read More

Dec 18 2017

Canada puts U.S. Customs and Border Protection officers above the law

A Canadian law which received final approval last week, Bill C-23, gives officers of U.S. Customs and Border Protection (CBP) staffing “preclearance” facilities within Canada police powers to detain, interrogate, and search travelers, while granting these agents of the U.S. government absolute and unconditional immunity from any civil lawsuit or liability under Canadian law, and immunity from criminal liability except in limited cases of death, injury, or property damage.

This immunity from civil lawsuits or liability in Canada extends to violations by US CBP officers at preclearance sites of fundamental rights, including the Canadian Charter of Rights and Freedoms, that are protected by law everywhere else in Canada,. Bill C-23 places CBP officers above Canadian law, as though they were diplomats enjoying immunity from local law inside extraterritorial enclaves, while giving them police-like powers to use force against ordinary people seeking to travel between the US and Canada.

Travelers passing through US preclearance facilities at Canadian airports, train stations, and ferry terminals are now required by Canadian law to: Read More

Dec 15 2017

“Continuous screening” means continuous surveillance and control

Today the Identity Project joins more than 20 other government-accountability and civil liberties organizations in a joint letter opposing S. 2192, the “SECURE Act of 2017”, which  was introduced in the Senate earlier this month and immediately placed on the Senate calendar for a floor vote at any time.

The name of this bill is Newspeak. It is not about security, but about surveillance and control of immigrants, borders, and international travelers, including  U.S. citizens.

The coalition letter to members of Congress that we signed today focuses on Sections 6002-6003 (pp. 488-499) of S. 2192,  which would authorize the Secretary of Homeland Security, Secretary of State, or Attorney General to exempt their respective Federal departments from the Administrative Procedure Act,  the Privacy Act, and the Paperwork Reduction Act with respect to a wide range of border control and surveillance activities.

The Administrative Procedure Act (APA) spells out the details of Constititionally-required “due process” as it applies to administrative decision-making by Federal agencies. Decisions adversely affecting individuals’ rights made without complying with the APA would be highly likely to violate Constitutional norms of due process.

Exemption from the Privacy Act  would allow the creation and maintenance, without notice, of secret Federal government databases about U.S. citizens, and the use of secret, unreliable, uncorrected, and/or irrelevant data as the basis for decisions to deny U.S. citizens their rights. These practices would also be likely to be unconstitutional.

Many of the provisons of S. 2192 are copied from S. 1757, an earlier omnibus “border control” bill we criticized when it was introduced in September.

Like its predecessor S. 1757, S. 2192 incorporates a patently unconstitutional “Passport Revocation Act” (Section 1632, pp. 446-448), which would purport to authorize revocation or refusal to issue or renew a U.S. passsport, and the prohibition of departure from or return to the U.S., on the guilt-by-association basis of (1) an extrajudicial  administrative designation of an organization as a “foreign terrorist organization”, and (2) an extrajudicial  administrative determination by the State Department that a U.S. citizen is “affiliated” with such an organization (without the law defining the meaning of “affiliated”).

The number of references to the “unreviewable discretion” of officials and agencies has increased from 14 in S. 1757 to 17 in S. 2192.

S. 2192 also includes provisions from S. 1757 mandating government monitoring of activities and ideas expressed on social media, and the use of this surveillance data for making visa decisions and for “continuous screening” (continuous surveillance and control) of immigrants, foreign residents (including permanent residents), and foreign-citizen visitors to the U.S.

As the letter we sent today concludes, “We oppose these provisions in S.2192 and any other border security bill.”