Fourteen years to the day after she discovered she was on the no-fly list when she was arrested at SFO, and five years after her legal victory in the first trial of a challenge to a government no-fly order (a Pyrrhic victory as she has still been denied a visa to return to the US), Dr. Rahinah Ibrahim won a third decision in her favor in the same case in 9th Circuit Court of Appeals yesterday, this time en banc and on the issue of reimbursement by the government of Dr. Ibrahim’s attorneys’ fees and costs.
And does the US government have extraterritorial jurisdiction over travel worldwide?
Apparently so, at least in the eyes of the Department of Homeland Security.
Case in point: The National Vetting Center (NVC).
The NVC was established pursuant to President Trump’s February 2018 executive order NSPM-9. The “vetting” in the name is what President Trump has referred to as “extreme vetting” of immigrants and non-US citizens visiting or transiting the US. The first use of the NVC will be to “vet” citizens of countries in the US Visa Waiver Program applying for ESTA permits (online visas) to travel to the US.
The NVC is an inter-departmental body coordinated by a DHS component, US Customs and Border Protection (CBP), and this week the DHS has published a Privacy Impact Assessment (PIA) and released a redacted version of the Implementation Plan for the NVC.
Here’s how the DHS describes the purpose and role of the NVC:
Every day, the U.S. Government determines whether to permit individuals to travel to and enter the United States… and consider other actions…. The U.S. Government has developed several different processes and procedures to evaluate an individual’s suitability for access to the United States or other travel- or immigration- related benefits against information available to the U.S. Government (generally referred to as “vetting”)….Creating, maintaining, and facilitating the operation of that process is the primary mission of the NVC.
As even this summary self-description shows, the NVC is founded on a fundamental disregard for human and Constitutional rights.
A report released earlier this month by the State Department’s Office of Inspector General confirms that, as we and others began reporting in 2013 and 2014, State Department staff “failed to comply with relevant procedures intended to safeguard the rights of U.S. citizens” when they summarily seized or retained the passports of US citizens who sought consular assistance at the US Embassy in Sana’a, Yemen.
Because of incomplete and inconsistent record-keeping and shifting stories told to OIG investigators by State Department staff, the OIG was unable to determine how many US citizens were improperly deprived of their passports, or for how long.
The consequences for these Yemeni-American US citizens were especially dire because many of them were seeking to leave Yemen to escape the escalating civil war and foreign military interventions in Yemen (some of which were backed by the US and its allies).
Without passports, these US citizens were unable to travel legally from Yemen to other countries, or to return to the US. They were forced either to remain in increasingly war-torn and dangerous Yemen, or use dangerous illegal means of transport to escape.
The de facto policy of the US Department of State as early as 2013 — even before the inclusion of Yemen in the 2017 Muslim ban executive orders — appears to have been to define anyone with Yemeni ancestry, regardless of citizenship, as an enemy of the US, and to use all available legal or illegal methods to deny them US passports. Typical tactics included putting applications by Yemeni-Americans for new or renewal passports into indefinite limbo, and indefinitely retaining US passports presented to consular officials at the US Embassy in Sana’a.
Typically, no formal decision that would be readily subject to judicial review was made. Even when a passport was revoked or an application for a passport was denied, the affected citizen often wasn’t notified until months or years later.
Several lawsuits were brought challenging the denials and delays in issuing, renewing, or returning passports. At least one case led to a court order for the return of a US passport seized in Sana’a. But the government was able to evade judicial review of most of its passport denials and seizures by reversing its decisions and dropping charges or issuing delayed passports once its victims lawyered up and made it to US courts.
Despite the fairly scathing report by the OIG, there’s no indication that any of the responsible State Department officials — either at the embassy in Yemen or making policy and directing practices from the US — have lost their jobs, much less been prosecuted, for conspiring to deprive US citizens of their fundamental rights, in circumstances where the ability to exercise those rights could be a matter of life and death.
Dear passengers: People who travel without a ticket, behave disorderly, or smoke in public areas will be punished according to regulations, and the behavior will be recorded in individual credit information system. To avoid a negative record of personal credit, please follow the relevant regulations and help with the orders on the train and at the station.
Despite unwarranted comparisons to US financial credit scores, “social credit” scoring in China is used by the government and para-statal entities, not just private companies, and not just for financial decision-making.
One of the NPR stories as well as a report last month by the Australian Broadcasting Co. include interviews with people who discovered they were barred by the Chinese government from travel on high-speed trains as a result of “social credit” scores, regardless of their ability to pay for tickets.
“It can’t happen here?” No.
You may not realize it until you are mysteriously unable to obtain a boarding pass or complete a financial transaction, but each of these activities is already subject to secret, permission-based, extrajudicial prior restraint by the US government.
The default is “no”. Since a little over 10 years ago, US Federal regulations have forbidden any airline from issuing a boarding pass unless and until it has sent the would-be traveler’s itinerary and identifying information to the DHS and has received back an individualized, per-passenger, per-flight, permission-to-travel message from the DHS. The DHS generates a secret “risk score” for each passenger, which determines how closely they are searched and questioned, whether the airline is instructed to call the police when they try to check in, and other aspects of how they are treated.
Even before airlines or banks get to the point of consulting the government, “carrier sanctions” and similar sanctions against financial institutions give them a financial incentive to err on the side of saying “no”, not “yes”.
You don’t have to be on a government blacklist for your air travel or financial transactions to be blocked by the US government or by airlines or banks acting at the government’s behest. There are multiple air travel blacklists (euphemistically and inaccurately called “watchlists”), but no-fly and transaction-processing decisions are also made in real time, on the basis of algorithmic “pre-crime” predictions (euphemistically and misleadingly called “risk assessments”, despite the lack of any evidence of a correlation between these scores and actual “risk”).
What China calls “social credit scoring”, the US calls “risk-based screening”.
Government blacklists and real-time pre-crime policing are being applied to control a growing range of activities of daily life. But air travel and financial transactions are the areas where the US government already has a fully deployed and operational real-time “social credit” system in which private service providers are seamlessly integrated with government agencies to surveil and control our everyday activities.
The question isn’t whether the US should have a “social credit” system — it already does — but whether it should be expanded to more aspects of our lives, or rolled back.
It can happen here. It is happening here. It will continue to happen here until we stop it.
China’s social credit system provides a useful object lesson in the three essential preconditions for a system of ID-based surveillance and control. We can block or impede the expansion of such schemes by undermining any of these three legs of the tripod:
- ID requirements to travel or engage in other transactions or activities — If you travel, pay, or act anonymously, your individualized “score” can’t be used to control you. China’s “social credit” system is enabled by requirements to show government-issued ID to open a bank or mobile payment account or purchase a SIM card. You can only rent a shared bicycle in China through an app, not by cash, and you can’t use the app without an ID-linked mobile phone and ID-linked payment account. So even if you travel around a Chinese city by shared bicycle, you can be tracked. Travel anonymously, and use cash or other anonymous forms of payment.
- Collection of ID-linked transaction and position data — Chinese “social credit” scores and US “risk assessments” are based on travel, movement, and transaction histories. Some of this data is collected through biometric identification, primarily automated facial recognition. Other data is “ingested” by the government from commercial databases such as travel reservations and financial transactions. Private companies can and should resist requests for this data, but can’t be counted on to do so. No airline, for example, has ever challenged government demands for warrantless access to the entirety of their reservation database, including free-text derogatory internal comments by front-line reservation and customer-service staff that are imported directly into permanent DHS files used for “risk” scoring. Once personally identified or identifiable data is collected, it’s almost impossible to resist demands for government access made in the name of “security”. Any data that is collected about you can and will be used against you. The only real way to oppose this mass surveillance is #DoNotCollect. Just say no to requests for information, for consent to search, or for sharing of data with the government.
- Government control of movement, activity, and transactions — A key step in the implementation of the “social credit” system for air travel was the installation (at a cost to the airline industry of at least US$2 billion) of the control lines that transformed a reporting (i.e. surveillance) system into a “pre-crime” control system. It’s critical to defend against having our Constitutional and human rights redefined as privileges to be exercised only by prior permission of the government — as the right to travel by common carrier has already been. Demand that restrictions on the exercise of rights be based on evidence-based court orders, not pre-crime fantasies.
As for the specific Chinese examples of travel by high-speed train, Amtrak, like the operators of Chinese trains, is a para-statal government-charterted corporation. In 2014, we made a FOIA request to Amtrak for records of Amtrak’s sharing of passenger data with the DHS and other law enforcement agencies. Amtrak has been releasing a trickle of responsive records, as we’ve been reporting. But Amtrak’s response remains incomplete, and this is now the oldest pending unanswered request in Amtrak’s FOIA queue.
A 3-judge panel of the 9th Circuit US Court of Appeals heard arguments today in Portland, Oregon, in Kariye v. Sessions, the third and latest round of appeals to the 9th Circuit in a challenge to US government “No-Fly” orders that was filed in 2010 as Latif v. Holder.
The lawsuit has survived two previous appeals to the 9th Circuit. But most recently, the District Court dismissed the claims of those plaintiffs who remain blacklisted from domestic or international air travel. Today’s third round of argument in the 9th Circuit was on the appeal of that latest dismissal of the complaint.
Today’s oral argument was conducted in a courtroom closed to everyone except the judges, court staff, the parties to the case, and their attorneys. Presumably, the argument was closed because one of the issues was whether the government should have been allowed to submit evidence “ex parte and in camera” for the court to consider without the plaintiffs being able to see it, or whether the District Court and/or the Court of Appeals should consider such submissions.
If you think there’s something Kafka-esque about secret arguments about whether to consider secret evidence, we agree. It’s possible that redacted excerpts from the oral argument will be made available later in the 9th Circuit’s video and audio archives.
Legal documents in the case are available from the ACLU, which is representing the plaintiffs. The best summary of the issues in the current appeal, and the best overview of what’s wrong with the government no-fly decision-making procedures at issue in the case, is in the plaintiffs’ opening brief in the current appeal.
Good news: The 3rd Circuit Court of Appeals has decided to reconsider whether, as a panel of that court decided earlier this year, TSA checkpoint staff should have legal impunity to assault or otherwise violate the rights of travelers without consequences.
When it was issued in July 2018, we said that “The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.” There was a well-argued dissent by one of the three members of the panel.
The majority of the panel recognized that the job of TSA checkpoint staff is to search travelers, but then somehow managed to conclude that they aren’t “officer[s] of the United States who [are] empowered by law to execute searches.” The majority of the panel also went outside the factual record to base their decision on false speculation that TSA checkpoint staff don’t conduct searches for general law enforcement purposes.
Based on these arguments and “facts”, the panel majority found that TSA staff are immune from lawsuits for travelers, even if they admit to assaulting travelers.
The decision by a majority of the judges of the 3rd Circuit to grant rehearing en banc in the case of Pellegrino v. TSA voids the original opinion by a three-judge panel. The appeal will now be re-argued de novo, after new briefing, before all of the judges of the 3rd Circuit.
Let’s hope that the full court gets it right this time, and recognizes that TSA checkpoint staff are not above the law.
A new report by the DHS Office of Inspector General (OIG) gives perhaps the most detailed official picture to date of the US government’s plans for ed biometric identification, tracking, and control of international air travelers through automated facial recognition.
Contrary to specious claims in DHS propaganda that the current rollout of mug-shot machines at departure gates at airports across the country is “only a test,” the DHS OIG reports that US Customs and Border Protection (CBP) plans to expand the mug shot and automated facial image recognition program from 6 million air travelers in 2018 to 60 million in 2019, 120 million in 2020, and 129 million — 100% of international airline departures from the US — by 2021.
But that’s not all. “Over time, the program plans to … incrementally deploy biometric capabilities across all modes of travel — air, sea, and land — by fiscal year 2025,” according to the OIG report.
The scope of these plans should make clear that the only thing being “tested” is whether travelers will submit to this program, not whether it is justified or what interests it serves.
The OIG report mentions that US citizens have been “allowed” to opt out of the airport mug shot “pilot program “, but doesn’t say whether they were told they had a right to do so:
In preparing their report, OIG staff “met with a number of external stakeholders, including the Airlines for America trade association, Delta Airlines, JetBlue Airlines, and British Airways.” Notably, however, OIG made no attempt to consult consumer, civil liberties, or human rights organizations or to consider their objections to mandatory mug shots.CBP allowed U.S. citizens to decline participation in the pilot. In such cases, CBP officers would permit the travelers to bypass the camera and would instead check the individuals’ passports to verify U.S. citizenship. When a U.S. citizen opted to participate in the pilot but did not successfully match with a gallery photo, the CBP officer would examine the individual’s passport but did not collect fingerprints. We observed biometric screening at four airports — a total of 12 flights — during our audit and witnessed only 16 passengers who declined to participate.
The only objections noted in the OIG report came from airlines and airport operators. But it would be a mistake to interpret this as “resistance” from the airline industry to biometric surveillance of airline passengers through automated facial recognition.
The OIG report makes clear that the only thing being disputed by airlines and airports is who will pay for equipment and staff, not whether these systems will be deployed: Read More
In a blow to the US government’s evasion of judicial review of no-fly and blacklisting decisions, the 9th Circuit US Court of Appeals has reinstated a lawsuit against the government by Mr. Yonas Fikre, a US citizen who was effectively exiled from the US and consigned to imprisonment and torture abroad by being placed on a “No-Fly” list, in an attempt to pressure him to become an FBI informer, while he was overseas.
Unwiling to become an FBI informer — even when he was tortured to do so — and unable to return to the country of his citizenship, Mr. Fikre fled to Sweden, where he applied for political asylum. In a successful effort to smear Mr. Fikre and thwart his asylum claim in Sweden, the US then had him indicted on trumped-up charges related to his business (and having nothing to do with terrorism, violence, aviation, or dangerousness).
Mr. Fikre’s application for asylum in Sweden was denied, and Sweden paid to deport Mr. Fikre to the US (by private jet, because the US wouldn’t allow him on any airline flights). The bogus charges against Mr. Fikre were promptly dropped once he got back to the US. But he has been unable to resume his international business career without being able to count on being able to travel from and to the US without US government interference.
The decision by the 9th Circuit panel in Fikre v. FBI overturns the dismissal of Mr. Fikre’s complaint as “moot” by a US District Court judge in Oregon after the government defendants told the court that Mr. Fikre’s name had been removed from the no-fly list.
The 9th Circuit allowed the case to proceed, finding that there was no guarantee that the actions Fikre complained of, and the violations of his rights, wouldn’t recur:
Because there are neither procedural hurdles to reinstating Fikre on the No Fly List based solely on facts already known, nor any renouncement by the government of its prerogative and authority to do so… Fikre’s due process claims are not moot.
ID document requirements for air travel have been imposed on a de facto basis by DHS administrative fiat without ever having been approved by Congress or authorized by law.
In a similar way, requirements for US citizens to submit to mug shots — either by components of the Department of Homeland Security or by airlines, airport operators, or contractors who share photos with DHS — are being imposed on a growing scale without any Congressional debate or statutory basis.
Last week the World Privacy Forum submitted a petition for rulemaking asking the DHS to “provide formal notice and solicit public comments pursuant to the Administrative Procedure Act” before proceeding with further “trials” of biometric identification of travelers: Read More