In the guise of a proposal for “medical quarantine“, the U.S. Centers for Disease Control and Prevention (CDC) have proposed regulations that would give CDC employees sweeping martial-law powers of warrantless search, interrogation, tracking of movements, arrest, and extrajudicial mass detention (at the detainees’ own expense!) of individuals or entire groups of unlimited numbers of people for unlimited periods of time.

The proposal revives a dormant decade-old rulemaking initiated after the 2001 and 2005 anthrax scares in Washington, DC. But rather than finalizing the rules proposed (and widely criticized) in 2005, or responding to the comments submitted back then in response to the original proposal, the CDC has published a new and different but perhaps even more objectionable replacement proposal.  It’s unclear why this is happening now, but it seems likely that the CDC feels a political necessity to be seen as “doing something” to prepare for the possibility of another outbreak of Ebola virus disease.

As we say in comments we filed today with the CDC:

The NPRM [Notice of Proposed Rulemaking] describes the proposed rules as a medical quarantine program. But they go far beyond what is medically indicated, authorized by statute, or permitted by the Constitution.

The CDC’s proposal completely ignores existing medical and legal procedures for involuntary commitment of individuals determined to constitute a danger to themselves or others. Instead, the proposed rules include:

1.  indefinite extrajudicial mass detention without due process,
2. compelled responses by travelers to extrajudicial interrogation concerning their exercise of First Amendment rights including rights of movement and assembly, regardless of whether there is any current outbreak of any communicable disease, much less whether there is any basis for belief that any specific traveler subjected to this interrogation is infected with such a disease; and
3. charging innocent detainees for the costs of their detention.

These misguided, unauthorized, and unconstitutional proposals should be withdrawn.

[Details: Complete comments of the Identity Project, all 13,000+ public comments on the CDC proposal.]

A Federal Court of Appeals has found that the latest version  of Michigan’s “Sex Offender Registration Act” (SORA), including restrictions on where registrants can live, work, or “loiter”, constitutes a form of punishment intended to inflict pain or unpleasant consequences. “More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment,” according to the 6th Circuit Court of Appeals.

Both Federal and state governments have enacted a variety of misleadingly misnamed “sex offender registration” laws.

Despite being labeled as applying to “offenders”, these laws typically apply also to ex-offenders who have completed their entire sentence of incarceration, parole, and /or probation. These ex-offenders are subject to few legal restrictions except those of the “sex offender registration” laws and the no-gun list.

And while they are described as “registration” laws, these laws almost invariably require more than mere registration.  This parallels the government’s typical euphemistic use of the term “watchlists” for what are, in fact, blacklists or blocklists.

“Registration” laws typically restrict and regulate the exercise of First Amendment rights and rights recognized by international human rights law, including the rights to freedom of speech and freedom of movement, of people who are required to register.  In several states, these laws restrict free speech by prohibiting use of unregistered Internet access accounts or “identifiers” (whatever that means) by ex-offenders who are subject to these laws.  In a growing number of states, these laws restrict freedom of movement and residence by prohibiting registrants from living or working within a specified distance of any school — a distance which, in a populated area with neighborhood schools, can prohibit registrants from legally living anywhere in a municipality or community, or force them to live in wilderness or wasteland encampments without water, sewer, or electric service in order to stay far enough away from any school.

As we have reported, a Federal District Court judge has issued a preliminary injunction prohibiting California from enforcing its requirement for registration of Internet service accounts and identifiers, and that injunction has been upheld by the 9th Circuit Court of Appeals. The lawsuit challenging the California law drags on, however, while the court keeps giving the state more time for its legislature to try to “fix” the law to make it Constitutional.

But in contrast to this judicial rejection of some “registration” laws that restrict ex-offenders’ free speech on the Internet, courts have upheld restrictions on registrants’ residency, employment, and movement against a variety of challenges. So we were especially pleased that last week’s opinion by the 6th Circuit  in Does v. Snyder recognizes that both the restrictions on movement and those on Internet speech in the Michigan SORA amount to “punishment”:

SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not prohibit the registrant from setting foot in the school zones…  But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:

Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point.

The John and Mary Doe plaintiffs in the Michigan lawsuit were convicted before the SORA law was enacted. The court found that, because the law imposed imposed retroactive “punishment” on the plaintiff, it was an unconstitutional ex post facto law as applied to the plaintiffs:

We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased…. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton)…. The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

The court didn’t reach the question of whether the law would be Constitutional as applied to people convicted after its enactment, but did express strong doubts about how it would rule in such a case:

As we have explained, this case involves far more than an Ex Post Facto challenge. And as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta. We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment consistent with this opinion.

Today we submitted formal comments to U.S. Customs and Border Protection objecting to its proposal to start asking visitors to the USA to list all their “social media identifiers”. USCBP (a division of the Department of Homeland Security) proposes to add this question to the I-94W form for international visitors arriving in the U.S., and to the online ESTA (Electronic System for Travel Authorization) application form for vistors form countries in the U.S. Visa Waiver Program:

Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

We’ve previously argued that the entire ESTA scheme is an illegal de facto visa requirement that violates the rights of foreign visitors to the U.S. But this proposal would make it even worse.  Hundreds of individuals and more than two dozen organizations have already denounced this proposal. You can submit your own comments here until midnight tonight, Eastern time. If you agree with us that this is a terrible idea, feel free to endorse our comments or use them as a template:

We oppose this absurd and un-American questioning of foreign visitors to the U.S., and urge USCBP to withdraw this proposal.

Both freedom of speech and freedom of movement (“the right of the people… peaceably to assemble”) are recognized by the First Amendment to the U.S. Constitution. These rights are also recognized in Article 12 (freedom of movement) and Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by, and binding on, the U.S. In addition, Article 17 of the ICCPR recognizes a right to protection against “arbitrary or unlawful interference with … privacy … or correspondence.”…

The essence of human rights law is that these rights are recognized as universal rights to which all people are entitled regardless of their citizenship or nationality (if any). This proposal … treats foreign visitors to the U.S. as lacking these human rights, and thus implicitly as less than human… This would reinforce the impression around the world that the U.S. does not believe in or respect human rights, but regards these universal human rights as “privileges” granted by the government and enjoyed only by U.S. citizens. We do not want to live under such a government or in such a world…

Read More →

The European Parliament has approved (press release, breakdown of votes, text as adopted) a directive requiring each “member state” (country) in the European Union to:

• Establish or designate a new travel surveillance and control agency (“Passenger Information Unit”),
• Require all airlines operating flights to or from places outside the EU to transmit complete copies of Passenger Name Records (PNRs) for all passengers to the government, and
• Pass on any of this PNR data to any other EU member state on request.

The directive essentially commits the EU to join the US in “pre-crime” predictive mass surveillance and profiling of all air travelers.  Not surprisingly, the vote by the European Parliament was welcomed by leading US advocates for the globalization of pre-crime travel policing, including former DHS Assistant Secretary for Policy Stewart Baker (previously general counsel of the NSA)  and Deputy Assistant Secretary for Policy Paul Rosenzweig.  Baker and Rozenzweig were responsible for DHS negotiating strategy with the EU on the PNR issue during the time when their boss, DHS Secretary Michael Chertoff, was lying repeatedly to the European Parliament about the state of both US and international law relating to PNR data.

Meanwhile, as reported elsewhere, the commercial data architecture for handling PNR data remains fundamentally insecure.

What will happen next?

The proposed directive must still be approved by the European Council (the national governments of the member states), but that approval seems assured.

The EU directive is not “self-effectuating”. Each EU member state is required to “transpose” the directive into national law within two years.

The directive can be, and probably will be, challenged in the European Court of Justice as violating human rights recognized by EU and international law.  Implementing legislation can be, and probably will be in at least some countries, challenged in national courts as violating national Constitutional rights.

Now that the US has gotten the EU on board, the US is likely to increase its pressure on other countries and international organizations — primarily ICAO — to globalize the shift from targeted investigation and arrest of suspects to mass surveillance and predictive pre-crime profiling of travelers.

Airlines are likely to find it inconvenient and expensive to deal with 28 different EU Passenger Information Units with potentially different data content and format demands, in addition to the travel dataveillance regimes already in effect in the USA, Canada, Australia, and other countries. Airlines and the travel industry are thus likely to support US efforts to get ICAO to approve a global “security standard” requiring airlines to share PNR data in a standard format with all governments of countries served by their flights.

This week the European Parliament is scheduled to debate (Wednesday) and vote (Thursday) on  a resolution (PDF) to approve, with amendments, a proposed compromise on a directive “on the use of Passenger Name Record [PNR] data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.”

What does this mean, why does it matter, and why should this proposal be rejected?

To answer this question requires understanding (1) what PNRs are, (2) how PNRs and other travel data are already being used by European governments,  (3) how this would change if the proposed EU PNR directive is approved, and (4) why and how the provisions in the proposed directive that are supposed to protect individuals’ rights would be ineffective. Read More →