Papers, Please!

The Identity Project

Category Archives: Freedom To Travel

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.

Read More →

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The Washington Post story focuses on Mexican-Americans whose passports have been revoked or whose applications for new or renewal passports have been officially or effectively denied, and suggests that, “under President Trump, the passport denials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.

Read More →

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:

Read More →

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.
Read More →

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.

Read More →

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 Freedom Of Information Act (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.

Read More →

May 29 2018

More stupid questions for applicants for U.S. visas

The list of questions asked of applicantas for U.S. visas goes on for page after page, including:

  • Do you belong to a clan or tribe?
  • Are you or have you ever been a drug abuser or addict?
  • Are you coming to the United States to engage in prostitution or unlawful commercialized vice?
  • Do you seek to engage in espionage, sabotage, export control violations or any other illegal activity in the United States?
  • Are you a member of a terrorist organization?
  • Have you ever participated in genocide?
  • Have you ever been directly involved in the coercive transplantation of human organs or bodily tissue?
  • Have you ever committed torture?
  • Have you ever engaged in the recruitment or the use of child soldiers?
  • Are you coming to the U.S. to practice polygamy?
  • Are you a member of the Communist party?

Some of these questions are pointless. How many people have been denied admission to the U.S. because they volunteered that they were terrorists, torturers, or genocidists?

Others of these questions are vague, irrelevant, and/or intrusive.

Unfortunately, the list of questions asked of would-be travelers to the U.S. has grown ever longer, under both Democratic and Republican administrations.

In 2016, questions about social media identifiers were added to the online application for the Electronic System for Travel Authorization (ESTA), a sort of short-form electronic visa used by tourists and some short-stay business visitors from most-favored countries.

Now those same questions are being added to the printed and  online forms used by all other applicants for any type of visa to visit, transit, or immigrate to the U.S.

Today the Identity Project and five other national civil liberties and human rights organizations — Government Information Watch, Cyber Privacy Project (CPP), American-Arab Anti-Discrimination Committee (ADC), Restore the Fourth, Inc., and National Immigration Law Center (NILC) — filed comments with the Department of State objecting to this questioning as unconstitutional and contrary to international human rights treaties and Federal laws.

Read More →

May 14 2018

Senators say US citizens shouldn’t have to submit to airport mug shots

Senators Mike Lee (R-UT) and Ed Markey (D-MA) have sent another joint letter to Secretary of Homeland Security Kirstjen Nielson renewing their objections to requiring US citizens to submit to mug shots (“facial recognition”) as part of a DHS “biometric exit” program for identifying and tracking international travelers departing from US airports and seaports.

The letter sent last Friday is a follow-up to an earlier letter six months ago, in which the Senators told the DHS that such a requirement for US citizens is “facially unauthorized”:

Most crucially, while Congress has repeatedly voted to authorize biometric entry-exit scanning of foreign nationals, it has never authorized biometric exit screening for U.S. citizens. In fact, Congress has pointedly neglected to authorize DHS to use the program on U.S. citizens for any purpose. Additionally, while airport infrastructure may not be conducive to separate boarding procedures for U.S. citizens and non-citizens, convenience should not be placed above congressionally mandated requirements. We are concerned that the use of the program on U.S. citizens remains facially unauthorized.

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