Archive for the ‘Freedom To Travel’ Category

Congress votes to stigmatize and surveil the travel of second-class US citizens

Tuesday, February 2nd, 2016

Can second-class US citizens be required to carry second-class US passports with a conspicuous stigmatizing “scarlet letter” label? Congress has now said yes.

Do DHS pre-cogs have the omniscience and infallibility of angels at predicting and protecting the US and the world against future crimes? Congress has now said yes.

Yesterday Congress completed its approval of a bill which, assuming it is signed into law by the President, will stigmatize and surveil the international movements of certain US citizens by (1) requiring the State Department to mark their passports with a modern equivalent of an “A for Adulterer” or “J for Jew” (a “visual designation affixed to a conspicuous location on the passport indicating” their status), (2) requiring these individuals to notify the government, in advance, of any intended travel outside the US, including their complete itinerary and any details of their planned movements demanded by the Attorney General, and (3) creating a new pre-crime travel surveillance and policing agency within the DHS to track, log, and alert foreign governments to the intended movements of these travelers.

The bill, H.R. 515, obtained final approval yesterday in the House of Representatives by voice vote, with no real debate and only a handful of members present, under procedures allowing for suspension of normal Congressional rules. [The bill had already been approved by the Senate in December.] But in previous statements about the bill and its predecessors, which Congress has been considering for years, members of Congress have made clear their hope that the combined effect of stigmatized passports, deliberately burdensome reporting requirements, and advance notice to foreign governments from the US government (carrying with it an implicit message that the US wants those foreign governments to deny entry to these US citizens) will effectively prevent these US citizens from traveling abroad at all, and confine them within the borders of the USA.

In an astonishing Orwellianism — but one that perfectly describes the fallacy of the vision embodied in the law — Congress has named the new pre-crime travel policing unit within the DHS the “Angel Watch Center”, claiming for the DHS the omniscient and infallible divine predictive ability of angels to watch over us and protect us from the people they think, or “know” by means that mortals cannot question, are going to commit future crimes.

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DHS doubles down on its big lie about ID to fly

Friday, January 8th, 2016

Just days after posting an out-and-out lie on DHS.gov about whether states that want to comply with the REAL-ID Act have to give other states unconditional access to their drivers’ license and ID database (they do, contrary to what the DHS claims), the DHS has posted an equally blatant lie about whether domestic air travelers do or will have to show ID (they don’t and they won’t, contrary to what the DHS claims).

Today’s whopper is part of a press release attributed to Secretary of Homeland Security Jeh Johnson, announcing arbitrary dates for “enforcement” of alleged REAL-ID Act requirements. One might expect those dates and requirements to be spelled out in the U.S. Code or in regulations published in the Federal Register. But rulemaking by press release, Web posting, or Tweet has become the norm for the DHS as part of its enforcement of standardless, discretionary, and secret adminstrative “law”.

Today’s announcement by the DHS comes in the midst of a new round of vigorous debate by state officials as to whether to agree to comply with requirements of the REAL-ID Act that they continue to find objectionable — especially with respect to its mandate for a distributed but integated and nationally accessible ID database. It also comes almost simultaneously with the introduction in both houses of Congress of bills to repeal the REAL-ID Act.

The REAL-ID Act does not purport to create any legal obligation on states to comply. It can’t: The Federal government has no authority to compel the enactment of state legislation. If financial carrots in the form of Federal grants to fund REAL-ID Act implementation aren’t sufficient to win over states that stand up for their residents’ rights, the only stick the Federal government has available to induce those states to comply with the REAL-ID Act is the threat to harass, delay, or prevent residents of those states from traveling by air.

Today’s DHS press release and Tweet make that threat explicit.

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Minnesota Legislative Working Group on REAL-ID Act Compliance

Thursday, January 7th, 2016

We attended and testified at the first meeting of Minnesota’s “Legislative Working Group on REAL-ID Act Compliance” today in St. Paul. Like other states, Minnesota has been told (falsely) that it’s the only state that isn’t planning to “comply” with the Federal requests in the REAL-ID Act, and (also falsely) that Minnesota residents will be prevented from boarding domestic airline flights if the state doesn’t agree to “comply”.

You can watch the full meeting here (our testimony is at 1:37-1:40 of the video).

Here’s what we told Minnesota legislators (Download as PDF):

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You don’t have to show any ID to fly

Monday, December 28th, 2015

We’re quoted in an article today in the New York Times about the Federal government’s efforts to use the threat of denial of air travel to scare state legislators into connecting their state drivers license and ID databases to the distributed national “REAL-ID” database through the REAL-ID “hub” operated by the American Association of Motor Vehicle Administrators (AAMVA).

We welcome the Times’ coverage of this issue. But some readers might be misled by the Times’ headline, “T.S.A. Moves Closer to Rejecting Some State Driver’s Licenses for Travel“.

As Edward Hasbrouck of the Identity Project, who was quoted in the New York Times story, discussed in detail in this presentation earlier this year at the Cato Institute in Washington, the most important thing you need to know about this issue is that you do not — and you will not, regardless of how or when the TSA “implements” the REAL-ID Act — need to show any ID to fly. People fly, legally, every day, without showing any ID, and that will continue to be the case. You have a legal right to fly, and the REAL-ID Act does not and cannot deprive you of that right.

The TSA often lies in its public statements, including on its website and on signs at airports, and claims that airline passengers “must” or are “required” to have and to show government-issued photo ID. Currently, the page on TSA.gov headed “Identification” begins with the knowingly false and deliberately misleading statement, “Adult passengers 18 and over must show valid identification at the airport checkpoint in order to travel.” But the consistent official position of the TSA in court has been that no law, no TSA regulation, and no policy or practice of the TSA — not even the secret TSA “Standard Operating Procedures” (SOPs) and other secret TSA orders to its checkpoint staff and contractors — requires anyone to show any ID to pass through TSA checkpoints and travel by air.

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TSA may require virtual strip-searches for flyers

Monday, December 28th, 2015

The TSA may try to prevent (some) people who can’t or won’t submit to virtual strip-searches from traveling by air, according to a Privacy Impact Assessment (PIA) update quietly posted on the DHS website a few days before Christmas:

TSA is updating the AIT [“Advanced (sic) Imaging Technology”] PIA to reflect a change to the operating protocol regarding the ability of individuals to opt out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations.

The DHS and TSA may have hoped that nobody would notice this change in “operating protocol”, but the new requirement for some air travelers to submit to virtual strip-searches has already been challenged in at least two Federal Circuit Courts of Appeal, as discussed further below.

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Are TSA actions subject to judicial review?

Friday, December 18th, 2015

The real test of whether the TSA is above the law isn’t whether TSA or DHS officials, flacks, or lobbyists claim that there are legal procedures which (hypothetically) permit judicial oversight of TSA actions. The real test is what happens when real people object to specific conduct by TSA staff and contractors, or private parties such as airlines acting at the behest of the TSA, and ask the courts to review and decide whether the TSA or its minions are breaking the law or violating the US Constitution.

Nobody has done more to test the real-world limits of TSA lawlessness than our friend Sai, who has been waging a one-person, pro se legal crusade against the TSA for its disregard of the Constitution and of a variety of Federal laws providing for transparency, fairness, and due process. Sai’s pending lawsuits against the TSA include one of the most important challenges anyone has made to the TSA’s claims of authority for secret lawmaking, as discussed below.

Remarkably, and unlike most of those aggrieved by TSA general disregard for the law as well as more specific misconduct, Sai has even had some success. But that limited success gives a sense of just how outrageous is the TSA’s disregard for the law, and how far it has to go before the courts will rein it in.

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No Social Security number? No passport. Why?

Tuesday, December 15th, 2015

When we reported last week on the passport provisions in the new “Fixing America’s Surface Transportation Act”, we focused on the details of the rules for denial or revocation of US passports of citizens alleged to owe more than $50,000 in Federal taxes.

We should, perhaps, have put more emphasis on the other new basis we mentioned for the denial of a passport application: failure to provide a valid Social Security account number on the passport application form. This could affect more people than the linkage of passports to taxes.

While the shorthand title on our blog post referred to people who “don’t have” a Social Security number, the same fate could befall anyone who chooses not to disclose their Social Security number. The new law would authorize but not require the Secretary of State — at her standardless “discretion” — to deny any passport application that doesn’t contain a valid Social Security number.

There are probably more US citizens who don’t have a Social Security number than who owe more than $50,000 in taxes. And there are good reasons for even those citizens who do have a Social Security number not to want to disclose it to the State Department and to all the other government agencies (including the DHS) with which it shares passport data.

Federal law and IRS regulations already imposed a $500 civil penalty for applying for a passport without providing a Social Security number. This was a high price to pay for freedom from travel dataveillance based on Social Security number. But it wasn’t always enforced (more “discretion”), and it was not a basis for denial of a passport. Now it is.

Why would someone who has a Social security number not want to give it to the State Department? The answer is obvious once you reverse the question: Why does the State Department want to record the Social Security number of each passport holder? And how do the State Department, and the other agencies with which it shares this data, plan to use it?

There’s a separate legal requirement and required form, which includes the passport number, for reporting any international transportation of $10,000 or more in cash or “monetary instruments”, either as accompanied baggage or in an unaccompanied shipment. So the State Department doesn’t need Social Security numbers in passport files to know whether large sums of money are being taken in or out of the country by the holder of a particular passport.

The new law doesn’t just require that you show that you have a valid Social Security number before you can receive or renew your passport. You must provide your Social Security number to the State Department, so that it can be entered into the passport records database.

Nor is your Social Security number used only to check with the IRS whether you are suspected of owing back taxes. The principal routine users of this data outside the State Department are the DHS, “for border patrol, screening, and security purposes.” Screening is, of course, a euphemism for algorithmic profiling and profile-based search and control.

In other words, the real point of requiring each US passport applicant to supply their Social Security number is to enable all the financial records linked to that Social Security number to be combined with the travel records linked to the passport number in the DHS “Automated Targeting System” and included in the inputs to the pre-crime “black box” that decides whether to give airlines and other common carriers permission to transport each US citizen, and how intrusively to search and/or interrogate each US citizen who is allowed to travel.

DHS Automated Targeting System records include many identifiers and pointers that can be used to link them to other databases: timestamped IP addresses, cellphone numbers, passport numbers, credit card numbers, names of emergency contacts and traveling companions, etc. But they haven’t yet contained Social Security numbers, so far as we know. Now they will, or will be linked to a related database that does.

Government records indexed by Social Security number aren’t just tax records, but records of your worldwide assets and financial affairs. Records identified by Social Security Number (but not passport number, so they would otherwise be at least somewhat more difficult for DHS to use for this profiling), include not only US bank accounts but also foreign bank accounts (reported by Social Security number on the required annual FBAR form) and other foreign “financial assets” (a partially overlapping category) required to be reported each year on IRS Form 8938.

None of this has anything to do with citizenship, which should be the sole criterion of entitlement (not merely “eligibility” at the government’s “discretion”) to a US passport.

The right to travel and the right to bear arms

Monday, December 14th, 2015

Last Thursday, December 3rd, the US Senate rejected a proposal to authorize the Attorney General to deny firearms licenses or permits to anyone the Attorney General suspects to “be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism.”

Just three days later, President Obama made a somewhat similar proposal, but based on the no-fly list and thus — under the latest revisions to no-fly listing procedures — on the discretion of the Secretary of Homeland Security rather than the discretion of the Attorney General:

“Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” (Address to the Nation by the President, December 6, 2015)

Since the President asks, we’ll try to answer.

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More pre-crime profiling of visitors to the US?

Friday, December 11th, 2015

President Obama’s televised speech last Sunday included a smorgasbord of proposals (and endorsements for proposals already made by members of Congress) for more control and surveillance of travel.

We’ll look first at the proposals for restrictions on travel by foreign visitors to the US, followed in our next post by some of those that would affect US citizens.

According to the President:

We should put in place stronger screening for those who come to America without a visa so that we can take a hard look at whether they’ve traveled to warzones. And we’re working with members of both parties in Congress to do exactly that.

What does “stronger screening” mean? And what’s a “warzone” [sic] when on the one hand there has been no declaration of war against anyone, anywhere, and on the other hand the government apparently believes that it has the authority to treat the entire planet as a battlefield on which to wage its “War on Terror”?

To understand what the President really means, let’s look at the proposed legislation. The President appears to have been referring to H.R.158, the so-called “Visa Waiver Program Improvement Act of 2015”, which passed the House this week and is pending in the Senate.

The “Visa Waiver Program” (VWP) is a scheme under which citizens of certain preferred countries are given US government permission through the “Electronic System for Travel Authorization” (ESTA) to board flights to the US — provided that they agree in advance that they when they arrive in the US, they can be denied admission for any or no reason, that they will not contest any denial of admission, and that they will bear their own costs of deportation if they aren’t admitted.

This isn’t based on reciprocity. Citizens of all other second-class countries must obtain paper visas, which require a much higher fee and an in-person interview at a US Embassy or Consulate, even for short visits as tourists or to change planes in the US in transit between e.g. Europe or Asia and Latin America.

Most of the countries that the US “allows” to participate in the VWP allow US citizens to enter as tourists, and sometimes for other purposes, without obtaining any permission or submitting any information to the destination government prior to their arrival.

An ESTA walks like a visa and quacks like a visa, except that it is issued electronically rather than stamped in a passport. To obtain an ESTA, a would-be foreign visitor must apply through a cumbersome CBP Web site, providing a variety of personal information to enable the application to be matched with the applicant’s “travel history” and other secret data in the CBP’s Automated Targeting System (the information required on the ESTA application was just increased last month) and pay a fee with a credit card so that the application can also be matched with any US government records about the applicant’s finances.

The travel industry reportedly wants the current euphemistic name of this program changed to the more Orwellian, “Secure Travel Partnership”, which gives a pretty accurate indication of the industry’s willingness to partner with governments in surveillance and control of travelers, as long as doing so doesn’t cost the industry money.

Any foreign citizen who “intends” to enter the US under the VWP is required to obtain an ESTA before CBP will give an airline permission to issue a boarding pass for a flight to the U S.

After operating the VWP/ESTA scheme for seven years under an “interim” rule, the DHS finalized the VWP/ESTA regulations and made them permanent earlier this year, dismissing our objections that the rules are unconstitutional, violate US obligations under international human rights treaties, and exceed the authority of CBP or the DHS.

How would any of this change if the bill endorsed by the President, H.R.158, becomes law?

Aside from reporting requirements, the only substantive change that would be made by the House bill would be to require that the secret pre-crime prediction algorithm incorporated into the ESTA approval/denial decision-making black box must consider “terrorism risk” in addition to, as is already required, “security risk”. We have no idea what this means. What sort of “terrorism risk” wouldn’t also constitute a “security risk”? But we can only assume that the proponents of this bill, including the President, want more secret rules added to the algorithm, to keep away even more visitors.

The White House has also talked about denying ESTA approvals and entry under the VWP on the basis of which other countries travelers have previously visited. A European citizen who has visited friends or family in Syria, for example, might find themselves barred from the US for the next five years unless they go through the drawn-out and expensive process of applying for a full US visa. A provision to this effect is part of both the Democratic (S. 2337) and Republican (S. 2362) versions of Visa Waiver Program bills pending in the Senate, but wasn’t included in the version approved by the House.

No passports for US citizens who haven’t paid taxes or don’t have a Social Security number

Wednesday, December 9th, 2015

Buried in the Fixing America’s Surface Transportation Act (“FAST Act”) signed into law last week is an unrelated rider to provide for revocation of the passport and/or refusal to issue a passport to anyone against whom the IRS has assessed a lien or levy for $50,000 or more in tax debt, or who doesn’t provide a valid Social Security number.

Since a change in Federal regulations in 2009 eliminated the last exception for crossing land borders to or from Canada and Mexico, it is a violation of Federal law “for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.”

This requirement for a passport can be “waived” at the “discretion” of the Department of State. But there is no right to a waiver, no formal procedures or standards for requesting such a waiver, and no apparent mechanism for judicial review of denial of a waiver.

So denying or revoking a US passport amounts to closing the US borders to that US citizen.

A US citizen who is denied a passport, or whose passport is revoked, is still a US citizen even if they are unable to exercise the rights of a citizen. As a citizen, they are still liable for US taxes on their worldwide income and assets, even if they are living outside the US. So any tax debt will continue and is likely to increase with interest, penalties, and new taxes.

It’s not clear at whom, or at what conduct, this new provision in US law is directed.

Are Congress and the President concerned that suspected criminal violators of the tax laws might flee the country before they can be charged or arrested? So much for the presumption of innocence, the distinction between tax debts and crimes, and the Constitutional prohibition on imprisonment for debt.

Is the intent to prevent tax debtors from spiriting their untaxed assets out of the country before they can be seized? If so, restrictions on personal movement are both overbroad and likely to be ineffectual. Most international transfers of wealth occur electronically, and most cross-border shipments of tangible goods are in the form of unaccompanied freight, not accompanied luggage.

Is the goal to exile tax debtors from US territory? Many of the US citizens who might be assessed large tax debts are already living outside the US. Under international human rights treaty law, the right to enter the country of one’s citizenship is the most absolute of the rights of freedom of movement: “There are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”

Denial or revocation of a US passport under this new law is an elaborate five-step process, although most of the steps are purely clerical:

  1. The IRS “assesses” a tax liability of at least $50,000 in 2016, or the equivalent amount adjusted according to the cost of living index in future years.
  2. The IRS issues a lien or levy for the tax assessment (again, for at least $50,000 or the latest adjusted equivalent).
  3. The Commissioner of Internal Revenue certifies the existence of this assessment and lien or levy to the Secretary of the Treasury (the head of the parent department of the IRS), and notifies the citizen of this certification and of their right to challenge it in court.
  4. The Secretary of the Treasury transmits the IRS certification to the Secretary of State
  5. Once the State Department receives this certification, it must not issue a new passport to the citizen, and may (apparently at the standardless discretion of the Secretary of State) revoke any current passport.

There are some options, but they are entirely at the discretion of the Secretary of State:

If the Secretary of State decides to revoke a passport…, the Secretary of State, before revocation, may — (i) limit a previously issued passport only for return travel to the United States; or (ii) issue a limited passport that only permits return travel to the United States.

The law also permits (although it does not require — more standardless discretion for the Secretary of State) the denial of any application for a US passport that doesn’t include a valid Social Security number.

There’s an impunity clause in the law, although it’s unclear to what if any extent it is Constitutional, that attempts to protect government agents from liability for violating US citizens’ right to travel:

The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue.

There is a procedure for judicial review, but only of the certification of a tax assessment and lien or levy:

After the Commissioner notifies an individual … , the taxpayer may bring a civil action against the United States in a district court of the United States or the Tax Court to determine whether the certification was erroneous or whether the Commissioner [of Internal Revenue] has failed to reverse the certification. If the court determines that such certification was erroneous, then the court may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.

The new law is silent on what, if any, redress is available, or through what procedures, for a US citizen whose right to travel is violated when they are denied a passport, their passport is revoked or restricted, or they are subsequently prevented from entering or leaving the US. Responsibility for the deprivation of rights is divided among three Departments: Treasury certifying a tax debt, State denying or revoking a US passport, and DHS enforcing the passport requirement at airports and borders.

A citizen could bring an action for a writ of mandamus ordering the State Department to issue a passport, which in some other cases has prompted the State Department to issue a passport before the case could be decided.

Or a citizen could bring an action for an injunction prohibiting the DHS from interfering with their entry or exit to or from the US.

In either case, we look forward to a declaratory judgement that this law is unconstitutional, and violates US obligations as a party to the International Covenant on Civil and Political Rights.