Freedom To Travel – Page 19

Jul 05 2016

How travel restrictions turn refugees into criminals

It’s not a crime to flee from persecution, to try to get to a place of refuge, or to apply for asylum once you get there.

The case of a man who walked 30 miles from France to England through the tunnel under the Channel shows how wrong-headed restrictions on airlines, railroads, ferry operators, and other common carriers turn righteous refugees into common criminals in the eyes of the law.

Thousands of refugees seeking to get to the UK to apply for asylum have congregated in squatter camps and tent cities around the mouth of the Chunnel in Calais, France. Every night, hundreds of them try to get over, under, or through the barricades around the rail yard, and hide on freight trains bound for what they hope will be freedom and asylum on the other side of the Channel. Most of them are stopped at the barriers, and most of those few people who make it into the tunnel, whether on foot or hidden in or on trains, are crushed by high-speed trains, electrocuted on the live wires that power the electric trains, or suffocated in enclosed containers.

Abdul Rahman Haroun was one of the few lucky ones, perhaps the first, to make it alive, in August of last year, through the Chunnel to England — where he was arrested on arrival and charged under the UK “Malicious Damage Act” with criminal interference with trains.

When he arrived in the UK and was arrested, Mr. Haroun applied for asylum. UK authorities eventually determined that he had a well-founded fear of persecution in Sudan, from which country he had fled, and granted him asylum and the right to remain in the U.K.

But he was still prosecuted on criminal charges and spent four months behind bars for walking through the Chunnel to get to the UK.

Why didn’t Mr. Haroun take a train, plane, or ferry? Because that was prohibited by UK law — even for refugees who are legally entitled to asylum in the UK.

Even while it has been part of the European Union, the UK has never been a party to the Schengen Treaty, under which most border checkpoints and controls on movement within the Schengen Zone have been eliminated. UK immigration officers (like the US “pre-clearance” officers at airports in Canada) check the passports and visas of all Eurostar passengers in France or Belgium before they are allowed to board UK-bound trains.

As for travel by air or sea, airlines and ferry operators are subject to a fine of 2,000 pounds (about US$3,000) for each passenger they transport to the UK from any other country who is later found to be inadmissible or who lacks the documents “required” for admission, whatever that means. Carriers are fined millions of pounds a year for violating this law. These carrier sanctions create, as they are intended to do, a compelling financial incentive for carriers to err on the side of denial of transportation (for which there is, in practice, no judicial review and no sanction) in case of any doubt about admissibility to the UK.

It’s impossible to request asylum in the UK, or to obtain a definitive ruling as to whether such a request will be approved, until after one arrives in the UK. There is no document that would prove, before one arrives in the UK, that one will be granted asylum and allowed to maintain. There is no possible way to satisfy the demand of an immigration officer or airline check-in clerk for documents “proving” that one is entitled to asylum in the UK No such documents exist.

In other words, it’s illegal for a legitimate refugee qualified for asylum and right of permanent residency in the UK to board any type of common carrier that might provide transportation to the UK. Unless a refugee has their own boat to cross the Channel to the UK, or can get to the Irish Republic and then walk across the land border into Northern Ireland, the only legal way to get to the UK as a place of refuge from persecution is to swim across the English Channel or walk through the tunnel under the Channel.

It should be no surprise that some people in this situation choose to try to dodge the trains through the Chunnel as the best of a bad lot of choices. This is the choice forced on them by laws that deny them access to any mode of common carrier and leave them no legal route to asylum.

Should this be a crime, especially when they are found to be qualified for asylum and entitled to remain in the UK? Of course not.

If the UK doesn’t want people trying to walk through the Chunnel, the obvious solution is to stop denying asylum-seekers access to safe and legal transport by common carrier.

Lest we be accused of unfair criticism of the UK, we should make clear that the same is true of the US, which has a similar law (8 USC 1322) imposing a similar penalty of US$3,000 per passenger on any person or company that transports anyone whose asylum application is later denied.

As we pointed out last year to the UN Office of the High Commissioner for Human Rights:

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives… and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

No documents are or can be required of refugees, who have often lost any papers, documents, or other possessions in the course of their flight from persecution. Carriers should be required to carry all fare-paying passengers, not sanctioned for fulfilling their duties as common carriers.

Jun 09 2016

How does the TSA decide if you are who you say you are?

An ongoing trickle of still-incomplete responses by the TSA to a Freedom Of Information Act (FOIA) request we made in June 2013 continues to shed more light on the TSA’s procedures for air travelers who don’t have ID credentials the TSA deems satisfactory.

It’s difficult to compile statistics from files in the image format in which the TSA has released them, but we can make some anecdotal observations about what happens to people who try to fly without “acceptable” ID. Read More →

Apr 20 2016

EU mandates US-style pre-crime profiling of air travelers

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.

Apr 12 2016

What’s at stake in the EU PNR debate?

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 →

Apr 06 2016

UN human rights office cites our concerns about migrants’ rights

The United Nations Office of the High Commissioner for Human Rights has released a new report prepared at the request of the UN Human Rights Council on the situation of migrants in transit and their human rights. The report cites with approval our submission to the OHCHR on the ways that the right to freedom of movement is violated by governments and by airlines and other common carriers:

Physical barriers to the movement of migrants in transit have been accompanied by a wide range of restrictive measures to restrict or deny access to territory, asylum procedures and other screening and identification procedures by migrants in transit, as well as accelerated or even summary returns. OHCHR has provided guidance to States to ensure the accountability of private transport companies and other private actors that are implementing entry restriction measures. OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, guideline 4.6. [“Ensuring the accountability of private transport companies and other private actors that are involved in implementing entry restriction measures such as pre-departure screening and decisions on access to transportation, and providing effective remedies for those unlawfully denied transport. Developing and encouraging the adoption of human rights-based codes of conduct for private actors in this regard that set out expected standards of behaviour and the consequences of failure to adhere to those standards.”] See also the contribution to the present study from the Identity Project (http://papersplease.org).

Much of the discussion of migrants in transit, and many of the concerns of other contributors to the OHCHR study, relate to treatment in intermediate countries (such as while passing through Mexico en route from other countries to the US, or though Greece or Malta en route from Africa or Asia to other countries in Europe) and/or the extreme hazards of “irregular” modes of transportation used by those who are unable to travel by common carrier.

But refugees and asylum seekers would not need to pass through intermediate countries or rely on human smugglers and irregular and unsafe means of transport (overcrowded and unseaworthy small boats, treks on foot through the desert, etc.) if they were allowed to travel directly from their countries of origin to countries of potential refuge and asylum by air or on other licensed, inspected, and regulated common carriers (ferries, railroads, etc.). As we noted:

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

Most of the problems of migrants in transit are directly attributable to their illegal (but government-induced) exclusion from airlines and other common carriers, and could easily be avoided by eliminating government sanctions against common carriers that fulfill their duty to transport all would-be passengers (including refugees and asylum seekers), and respecting the human right to leave any country, including one’s own — by whatever route and means one chooses to leave, and irrespective of one’s identity (by definition, human rights are universal and independent of identity) or what, if any, documents issued by any government one may happen to possess (often none, in the case of legitimate asylum seekers who are often denied ID credentials by the governments they are seeking to flee).

“Carrier sanctions” are not a side issue to the migration crisis. They are the root cause of much of the suffering of migrants in transit, and a fundamental violation of the human rights to due process (carrier sanctions turn airline staff into unqualified de facto asylum judges of first and last resort) and freedom of movement.

In our submission to the OHCHR, we also noted that “screening” of passengers is a euphemism for “control” (passengers are “screened” to decide who will be allowed to travel, and who will not), and that algorithmic “screening” and permission-based travel control regimes are likely to result in systematic discrimination against refugees and asylum seekers:

Their nationality or place of origin in a conflict zone may cause them to be deemed “risky” according to the profiling and “risk scoring” algorithms. There may be limited, inconsistent, or nonexistent records pertaining to migrants in irregular situations in the databases used for profiling and risk scoring, and screening algorithms may equate uncertainty with risk. In order not to violate the right to freedom of movement, denial of transportation as part of “screening” or otherwise must be based on valid substantive grounds, and must be made by qualified officials through procedures that ensure due process and are subject to effective judicial review, taking into consideration the special difficulties that asylum seekers in countries where they are subject to persecution are likely to face in obtaining access to the courts of destination countries in which they want to seek asylum.

We are pleased to see the interest of UN human rights bodies in these issues. We urge national and international authorities considering carrier sanctions or traveler “screening” proposals to consider the impact of these schemes on human rights.

Apr 05 2016

Class action challenges Federal blacklists (“watchlists”)

The broadest and most fundamental legal challenge to the waging of the US “War on Terror” through standardless, secret, extra-judicial government blacklists was filed today in the Federal court for the district in Virginia where the National Counterterrorism Center (NCTC), Terrorist Screening Center (TSC), and Transportation Security Administration (TSA) are headquartered. (Video backgrounder and interviews with plaintiffs and attorneys; more video interviews; PACER links)

Both an individual complaint (Elhady et al. v. Piehota at al.) and a class action complaint (Baby Doe et al. v. Piehota et al.) were filed. Presumably, that is so that that the individual complaint for injunctive and declaratory relief could go forward even if class action certification is denied, while the class action lawsuit could go forward even if the named plaintiffs are delisted. (An earlier, similar lawsuit was dismissed as moot after the plaintiffs were told they were no longer on blacklists.) Almost all of the individual complaint is repeated in the class action complaint, so if you are going to read just one, read the class action complaint which includes additional plaintiffs and their stories.

The case takes its name from the first of the listed representatives of the class of people on US government blacklists (“watchlists”):

Plaintiff Baby Doe is a four year old toddler.

He was seven months old when his boarding pass was first stamped with the “SSSS” designation, indicating that he had been designated at a “known or suspected terrorist.”

While passing through airport security, he was subjected to extensive searches, pat downs and chemical testing.

Every item in his mother’s baby bag was searched, including every one of his diapers.

Let’s get one thing straight from the start: as we’ve noted before, calling the “Terrorist Screening Database” (TSDB) and similar lists “watchlists” is at best misleading euphemism, and at worst Orwellian doublespeak.

The government uses the term “watchlist” to avoid the stigma deservedly associated with the label “blacklist”, with its connotations of McCarthyism and J. Edgar Hooverism. A “watchlist” suggests a list of people who are being watched, a component of a system of surveillance or investigation. “Watchlisting” might, one presumes, lead to eventual intervention such as the criminal prosecution or an application to a court for a restraining order or injunction. But inclusion on the TSDB occurs after, not before, a decision to intervene is (secretly) made, and the consequences of listing in the TSDB are not limited to mere passive surveillance or watching. Each listing on the TSDB includes a “handling code” which determines what happens to the people who are deemed (typically by automated pattern-matching algorithms) to match the listing.

As the litany of horror stories in the complaint in Baby Doe v. Piehota makes clear, and as we’ve seen in previous incidents, being “watchlisted” can trigger consequences ranging from denial of transportation by common carriers to freezing of bank accounts, inability to rent an apartment, or inability to get or keep a job, even with a private non-governmental employer. As when a jury must decide which of a progression of more and less serious offenses to convict a defendant of, without knowing what sentences are mandated for any of those offenses, it’s not clear whether the Federal administrative staff in the secret rooms reviewing the secret dossiers of derogatory information and deciding which secret lists to put people on, or which secret “action codes” to assign them, even know what the full panoply of collateral consequences of their decisions will be.

The US government doesn’t have to issue binding orders to convert “watchlisting” into de facto blacklisting. As the complaint filed today points out, “Defendants disseminated the the records pertaining to Plaintiffs from its terrorist watch list to foreign governments with the purpose and hope that those foreign governments will constrain the movement of the Plaintiffs in some manner.” We saw one of the ways that can work during the trial of Dr. Rahinah Ibrahim’s challenge to her placement on the no-fly list. The US government successfully used a “POSSIBLE NO BOARD REQUEST” message to induce a foreign airline to refuse to transport Dr. Ibrahim’s daughter, a US citizen, even though the US claimed that she was merely on a “watchlist” and not on the no-fly list.

It’s time to to reject the government’s “watchlist” doublespeak, and start calling the TSDB what it is: a government blacklist.

The first of the named defendants, Christopher Piehota, is the Director of the Terrorist Screening Center (TSC), an inter-agency entity responsible for the TSDB and nominally under the control of the FBI.

Most of the previous attempts to challenge actions taken against individuals as a result of their being listed in the TSDB have foundered on an elaborate shell game of buck-passing between businesses and government agencies. Airlines that refuse to transport blacklisted people (or those with similar names) say that they are only following (secret) orders from the government. Normal judicial review of actions by the TSA and CBP, the components of the DHS that issue no-fly orders (or refuse to issue permission for boarding pass issuance — the default is now “No,” not “Yes”) is precluded by a special law, 49 U.S.C. § 46110. No trials are allowed, and appellate courts are allowed to review these decisions only on the basis of the “administrative record” created by the DHS itself, which will show only that the DHS action was based on “watchlist” status as determined by the TSC, and not the basis (if any) for the FBI’s “watchlisting” decision.

The only previous cases in which District Courts have been able to consider no-fly decisions, and the only trial in a no-fly lawsuit, have been when the FBI, and not just the DHS or DHS components, has been named as a defendant. Today’s cases follow in that line, challenging the blacklisting decisions by the FBI.

To head off lawsuits of exactly this sort, the government has recently shifted nominal final authority over no-fly decisions from the FBI to the TSA. In theory, the government claims, the TSA could now decline to issue a no-fly order, even after the FBI has put someone on the no-fly list. It’s unclear, however, whether this has ever happened, or in what circumstances or on what basis it might happen. The possibility seems remote: Even the FBI, in practice, acts as a rubber-stamp for the decisions of FBI and DHS agents who make effectively final blacklisting decisions when they “nominate” people for listing in the TSDB. According to today’s complaint, 98.96% of the 468,749 people “nominated” for Federal “watchlists” in 2013 were added to those lists by the TSC.

The plaintiffs in the lawsuits filed today are represented by Gadeir Abbas, Lena Masri, and co-counsel from the Council on American-Islamic Relations, who have been leading the legal campaign against US government blacklisting, harassment, and interference with the rights and freedoms of Muslim and other Americans.

Feb 02 2016

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

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.

Jan 08 2016

DHS doubles down on its big lie about ID to fly

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.

Jan 07 2016

Minnesota Legislative Working Group on REAL-ID Act Compliance

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):

Dec 28 2015

You don’t have to show any ID to fly

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.

Papers, Please!

The Identity Project