Freedom To Travel – Page 22

Jun 12 2015

If your travel history is “suspicious”, is that cause for search?

If the file about you the DHS has compiled from airline reservations, license-plate readers, and other travel surveillance data sources is deemed “suspicious”, does that constitute probable cause for a search of your home and business or seizure of your possessions?

That question has arisen in the case of Albuquerque antique gun collector and dealer Bob Adams, argued in May 2015 and currently awaiting a decision by the 10th Circuit Court of Appeals in Denver.

On January 23, 2013, Mr. Adams’ home and business was raided by a SWAT team including DHS and other Federal and state agencies. Various of his possessions, including his collection and inventory of firearms, were seized, damaged, and/or destroyed in the raid. On November 4, 2013, after Mr. Adams had filed suit to recover his property, he was indicted for various technical violations of Federal laws relating to firearms imports and dealer licensing and reporting.

Both the search warrant and the indictment were based, in part, on allegations by Federal law enforcement officers regarding the records of Mr. Adams’ international travel history in the DHS Automated Targeting System (ATS). In an affidavit supporting the application to a Federal magistrate for the search of Mr. Adams’ home and business, “Special Agent” Frank Ortiz of the New Mexico Attorney General’s Office claimed that ATS records showed that Mr. Adams had repeatedly flown to Canada without having return flight reservations to the US, and had subsequently re-entered the US as a passenger in a private car. This, agent Ortiz opined (based on his purported “expertise” in interpreting such data) was evidence of a pattern of suspicious behaviour characteristic of Mr. Adams’ alleged modus operandi for unlawful firearms imports.

(There’s a long but generally undisclosed history of airlines “voluntarily” giving police access, without warrants, to PNR data, and of police using it as the basis for interrogations and searches.)

The Federal judge to which the criminal case against Mr. Adams was assigned first upheld the search warrant but then, on reconsideration, ordered all the evidence obtained from the search suppressed, on the basis of other materially false statements, made in apparent bad faith, in Agent Ortiz’s affidavit. The government, which would have no case against Mr. Adams without that evidence, has appealed that ruling to the 10th Circuit Court of Appeals.

The ruling by the District Court, the arguments to the Court of Appeals, and most of the publicity about the case have focused on questions related to firearms. But what concerns us are the issues related to ATS and its use as a surveillance and suspicion-generating system.

First, ATS data is neither accurate nor complete, and should not be relied on. For example, even experts may be unable to tell, from a particular PNR, whether or not it corresponds to actual travel or issuance of a ticket. (Mr. Adams says some of the DHS records of flights he allegedly took to Canada don’t correspond to flights he actually took, which is an inevitable consequence of the DHS orders to airlines to transmit copies to DHS of all reservations for such flights, including reservations that were unticketed and/or cancelled.) And license plate readers and the associated optical character recognition systems are, of course, subject to an unknown but substantial percentage of errors. (Mr. Adams says he has never traveled in some of the private vehicles in which ATS records that he crossed the US-Canada border.) Most importantly, the DHS has itself exempted ATS from the requirements of the Privacy Act for accuracy and completeness, on the basis of a claim that it is necessary to include inaccurate and incomplete data. Having done so, the government should be “estopped” from suggesting that any court or jury rely on this data.

Second, if the purpose of the ATS dragnet of warantless, suspicionless travel surveillance is to develop or support suspicions of criminal activity, that is a general law-enforcement purpose that goes far beyond the scope of permissible administrative searches or seizures of personal information incident to air travel or for purposes of aviation security.

Third, the evidence presented to the court in support of the application for a search warrant, to the grand jury in support of the indictment, and to Mr. Adams as part of pre-trial discovery, appears to have included only excerpts from TECS records (entry/exit logs which are one of the components of ATS), but not the complete TECS records, and none of the Passenger Name Record (PNR) data also included in ATS. Full TECS records would include indications of the source of the data, and PNRs might well have made clear whether airline reservations had actually been ticketed and used, or had been cancelled as Mr. Adams claims.

It seems likely that the complete contents of the ATS records about Mr. Adams’ travel, including full TECS records and all PNR data, constituted potentially exculpatory evidence known to, and in the possession of, the government, which it was required to disclose to the defense pursuant to the decision of the Supreme Court in Brady v. Maryland.

More generally, it would seem that a complete ATS file for any involved individual, including complete TECS and PNR data, would constitute potentially exculpatory evidence in virtually any prosecution in which international travel might be relevant: smuggling, facilitating unlawful immigration, etc. It would be almost impossible for the government to know in which cases such data might support an alibi, support or undermine the credibility of a witness, or support or refute some other testimony or claim. If the government doesn’t proactively produce this material (as it is required to do), defense attorneys should object to this as a violation of the Brady doctrine, and/or specifically include it in routine discovery motions. (We are available to assist defense counsel in interpreting such disclosures, and/or in explaining to courts how they could be exculpatory.)

Having carried out this extensive (although unreliable) surveillance of travelers, DHS appears to be using it selectively, introducing only those excerpts, in those cases, which it thinks it can spin as suspicious — and not mentioning other portions of these files that might refute these or other government allegations. We wonder how many other criminal prosecutions this has tainted.

Jun 02 2015

TSA statements to court reviewing interrogations of travelers

In a filing with the Court of Appeals reviewing a TSA mandate for airlines to interogate passengers on international flights before allowing them to board, the TSA has directly contradicted previous explicit written statements by an official TSA spokesperson as to whether passengers are required by the TSA to answer questions from airline staff about their travel purposes as a condition of being allowed to fly.

Equally if not more disturbingly, the TSA also claimed in the same filing with the 11th Circuit Court of Appeals that an airline licensed by the US government to operate as a common carrier has “independent discretion to deny boarding to any passenger about whom they have a concern.”

In an email message in January of this year to “professional troublemaker” and frequent traveler Jonathan Corbett, the TSA “Office of Global Strategic Communicationsa Desk” said:

American Airlines is required to conduct a security interview with passengers prior to departure to the United States from an overseas last point of departure airport. If a passenger declines the security interview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI).

But when Mr. Corbett petitioned the 11th Circuit Court of Appeals to review the TSA’s secret orders to airlines containing this mandate, the TSA filed the following statement with the court:

Interviews are … intended only to determine screening protocols before a passenger may fly. TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process.

This isn’t the first time the TSA has told Federal judges that official TSA notices and public statements about what air travelers are “required” to do, as a condition of being “allowed” to exercise our right to travel, are false.

In 2006, the TSA told the 9th Circuit Court of Appeals panel reviewing the requirement for air travelers to show government-issued ID credentials in Gilmore v. Gonzalez that there is no such TSA requirement in the secret TSA security directives to airlines, despite notices still posted at TSA checkpoints (and, at the time, on the TSA website) that passengers are required to show ID. Most people who are unable and/or unwilling to show ID are allowed to fly, although some aren’t. There are no rules or publicly-disclosed criteria for who the TSA does or does not allow to fly. The TSA’s orders to the airlines, and the airline policies approved by the TSA, are secret.

At a minimum, the TSA’s repeated disavowals in court of what it has publicly claimed or implied are TSA requirements mean that travelers cannot resoanably be expected to believe or rely on those official but not legally beinding TSA statements, and have good cause to demand that TSA explicitly state whether anything they ask is a legally-binding TSA “order”, a request, or an airline or or other private demand not mandated by the TSA. Noncompliance with requests not explicitly identified by TSA staff as TSA orders cannot reasonably construed as interference with, or refusal to submit to, TSA requirements.

The only way to reconcile the TSA’s statement to the court that “TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process” with the agency’s previous statement to the public that, “If a passenger declines the security interview, American Airlines will deny the passenger boarding,” is that the airline — on its own initiative and inidepndently of the TSA-mandated and TSA-approved “security program” — has committed to the TSA that it will deny boarding to anyone whoi declines to answer the airline’s questions about their travels.

That possible interpretation is supported by the TSA’s further statement to the Court of Appeals:

While … carriers retain their independent discretion to deny boarding to any passenger about whom they have a concern, whether as a result of an interview or otherwise, that outcome is not dictated by the international security interview program.

The problems with this — aside from the TSA’s misleading statements to the public about the source of this “requirement” — are that an airline, by law, has no such discretion, and that the TSA is required by law (49 USC § 40101) to “consider … the public right of freedom of transit through the navigable airspace” in carrying out its responsibilities including approving airline policies.

The duty of the TSA, if it becomes aware of an airline policy or practice to exercise such unlawful “discretion” or claim the “right to refuse service”, is to disapprove the policy or practice. If an airline persists in such a practice, the duty of the TSA is to order the airline to discontinue to the practice or, if that is outside the TSA’s jurisdiction, to refer the airline to the Department of Transportation for the imposition of sanctions, which ultimately could include the revocation of the airline’s certification from the DOT to operate as a common carrier.

It’s bad enough that airlines are trying unilaterally to abrogate their responsibilities as common carriers. It’s far worse that the government is acquiescing in, much less encouraging, such practices.

May 01 2015

“Secondary inspection” used as pretext for airport drug searches

Air travelers are expected to identify themselves truthfully to law enforcement officers and “screening” personnel at checkpoints and in “secure” areas of airports. But the reverse isn’t true, apparently, for the police and other personnel carrying out airport “screening”.

Members of drug interdiction “Task Force Groups” (TFGs) comprised of state and local police and agents of the federal Drug Enforcement Agency (DEA) have been representing themselves to air travelers in “secure” areas of airports (beyond the TSA checkpoints) as conducting “secondary inspections”. In fact, these TFGs were conducting warrantless, suspicionless searches for illegal drugs that can be seized and generate forfeiture revenue for the agencies participating in the TFGs.

When these searches were reported (sometimes no records were kept), they were represented as having been “consensual”, even though the use of the term, “secondary inspection” could reasonably have been interpreted by travelers as implying that the TFG members were conducting airport security “screening” to which travelers were required to submit. Similar misrepresentations may have been made at train and bus stations and other transportation facilities where TFGs operate as part of the DEA’s “Jetway” drug interdiction program.

The misrepresentations by DEA agents and other law enforcement officers were revealed in a report by the DEA Office of Inspector General (OIG), which has the role within the DEA that an “internal affairs” office might play in a local police department.

Apr 24 2015

Feds pay $40K to settle claim for false arrest at airport

The US government has paid $40,000 as part of the settlement of a lawsuit by a traveler who was falsely arrested by Federal agents and local police when a Frontier Airlines flight she was on arrived at the Detroit airport in 2011, arrive, taken off the plane in handcuffs, locked in a cell for four hours, and strip searched (in a cell with a video camera).

All of this happened without probable cause for an arrest, before any attempt was made to question her, and before any attempt was made by any of the police, airline, airport, or TSA staff to determine whether there was any basis for any of their actions. No criminal or administrative charges were ever filed against her.

The traveler, Ms. Shoshana Hebshi, sued the Federal government, the airline, and named and unknown Federal law enforcement agents, TSA employees, and Wayne County Airport Authority police.

Ms. Hebshi’s lawsuit was dismissed earlier this week on the basis of a settlement, after the Federal judge hearing the case rejected the defendants’ claims of “qualified immunity” with respect to Ms. Hebshi’s complaints of both discrimination and false arrest. “There is no ‘suspected terrorist activity exception’ to the probable cause requirement of the Fourth Amendment,” the judge had ruled.

The details of the settlement were not included in court filings, but the ACLU, which represented Ms. Hebshi, disclosed the $40K payment by the Feds in a public statement about the settlement.

No specific Federal agency or individual took responsibility. The lawsuit named “the United States of America” as a defendant, rather than any specific Federal agency or agencies, and multiple Federal agencies (TSA, FBI, ICE, CBP, etc.) were named in the complaint as having been involved in mistreating Ms. Hebshi. We don’t know whether others of the defendants (the airport, the airline, or any of the individual defendants) paid money to Ms. Hebshi as part of the settlement, in additional to the $40K from the US Treasury.

The dollar value of the settlement is obviously inadequate to deter similar misconduct by government, airline, and airport personnel in the future. But we are pleased by several aspects of the preliminary rulings by US District Court Judge Terrence G. Berg which led to the settlement.

First, Judge Berg was willing to let the case against the airline, airport, and Federal government, and their employees, go to trial. We’ve talked before about how difficult it can be to overcome claims of “qualified immunity” if the court’s sympathies lean toward the defendants in a case like this — or, to put it another way, how easy it is for a judge to let government defendants and their private accomplices off the hook.

Apr 22 2015

DHS expands mining of travel data while reducing logging and controls

The US Department of Homeland Security has announced plans to expand its data mining and “sharing”of DHS files about travelers, while removing some of the limited access controls and audit logging that it had only recently claimed to be putting in place for its Department-wide surveillance data framework:

Privacy Impact Assessment for the DHS Data Framework — Interim Process to Address an Emergent Threat (DHS/ALL/PIA-051, April 15, 2015)

DHS has a critical mission need to perform classified queries on its unclassified data in order to identify individuals supporting the terrorist activities of: (1) the Islamic State of Iraq and the Levant (ISIL), (2) al-Qa’ida in the Arabian Peninsula (AQAP), (3) al-Nusrah Front, (4) affiliated offshoots of these groups, or (5) individuals seeking to join the Syria-Iraq conflict. (These individuals are often referred to as “foreign fighters” by the media and in public discourse.) The ability to perform classified searches of unclassified data for this uniquely time sensitive purpose will allow DHS to better identify and track foreign fighters who may seek to travel from, to, or through the United States. This type of comparison is a long-standing mission need; however, the specific threat has shortened the timeframe in which DHS must meet the need.

To meet this critical mission need, DHS will adopt an interim process that foregoes many of the automated protections of the DHS Data Framework, such as the tagging of necessary data sets in the unclassified data lake. By foregoing these automated protections, DHS will be able to expedite transfers of information from the Electronic System for Travel Authorization (ESTA), the Advance Passenger Information System (APIS), Form I-94 records, and Passenger Name Records (PNR) directly from the unclassified DHS domain to the classified DHS domain through a manual process….

The previously announced “protections” on DHS use and sharing of personal data are fig leaves of little value to the subjects of DHS travel surveillance. But the DHS decision to “forego” those protections is significant for what it shows about how the DHS carries out its activities.

Apr 20 2015

Does an airline have the “right” to refuse service to anyone?

This week cyber-security and threat modeling expert Chris Roberts of One World Labs was detained and interrogated for four hours and had his laptop and other electronic devices seized without warrant by the FBI, and later was denied boarding by United Airlines for a flight on which he had a valid ticket, for posting this Tweet questioning the security of IP-based networks on aircraft that commingle in-flight entertainment (IFE) data with data from navigation flight control sensors and avionics systems such as Engine Indication and Crew Alerting System (EICAS) data.

The incident raises important questions about the legality of Mr. Roberts’ detention, the search and seizure of his electronic devices, and the decision by United Airlines to refuse to transport him.

Apr 17 2015

Bill C-51 would match Canadian no-fly scheme to the US — and go further

This week is Stop C-51 Week, marked by events throughout Canada and elsewhere in opposition to Bill C-51, currently under consideration by the Parliament of Canada, “An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.”

We’ve joined a who’s who of civil liberties and human rights organizations, activists, and experts from Canada and around the world who have co-signed a letter to Prime Minister Stephen Harper opposing Bill C-51.

It’s only a slight oversimplification to say that Bill C-51 is Canada’s version of the USA Patriot Act, 13 years later but on steroids. It appears to violate the Canadian Charter of Rights and Freedoms and Canadian obligations pursuant to several human rights treaties including the International Covenant on Civil and Political Rights (ICCPR). But if enacted, and if not voided on constitutional grounds by Canadian courts, it would purport to authorize a wide range of government spying, “pre-crime” policing (profiling), and preemptive interference with the exercise of fundamental rights.

Apr 16 2015

Feds change no-fly procedures to evade judicial review

In updates filed with Federal courts in at least two pending challenges to US government “no-fly” orders, lawyers for the government have revealed plans for changes to the internal procedures administrative agencies use in deciding who they “allow” to fly — and who they don’t.

While these changes look like cosmetic but inadequate improvements, they actually include an obscure but much more significant change designed to make it harder for people on the no-fly list to get the factual basis (if any) for the decision to put them on the list reviewed by a judge.

By shifting official responsibility for administrative no-fly decisions from the FBI to the TSA, the government hopes to bring those decisions fully within the scope of a special Federal jurisdictional law, 49 U.S.C. § 46110, which is designed to preclude any effective judicial review of TSA decisions — but which doesn’t apply to decisions (nominally) made by the FBI or other agencies outside the DHS.

This law allows TSA administrative orders to be reviewed only by Courts of Appeal (which have no ability to conduct trials or fact-finding), on the basis of the “administrative record” supplied to the Court of Appeals by the TSA itself. The Court of Appeals is forbidden to second-guess the TSA’s fact-finding, even if it was made through a secret and one-sided internal process: “Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.” As long as there is substantial evidence in the record constructed by the TSA to justify its actions, the Court of Appeals is forbidden to consider the weight of contrary evidence, even if it is also in the record. And the TSA is free to decide that evidence submitted by anyone on the no-fly list is, for that very reason, not credible.

No-fly cases have been considered by District Courts, and one of them has gone to trial, only because the FBI (as the agency nominally responsible for the inter-agency Terrorist Screening Center) has been declared by both TSA and FBI to be the agency officially responsible for no-fly decisions. When FBI decisions are challenged by people who claim their rights have been violated, those decisions are reviewed in the normal manner by District Courts that can conduct trials, hear testimony, receive evidence, and make their own findings of fact — without being required to rely exclusively on self-serving submissions by the FBI itself.

Apr 09 2015

Why did the TSA prevent these people from flying?

Documents newly released to us by the TSA strongly suggest that the TSA has been lying about whether people are “allowed” by the TSA to fly without showing ID, and that decisions about whether to allow travelers to fly without ID are being made arbitrarily, on the basis of irrelevant and unreliable commercial data and/or at the “discretion” of individual field-level TSA staff. The TSA documents also show that, at least for the limited sample of data initially released, the “false-positive” rate of watch-list matches is 100%.

The TSA has for many years been contradicting itself, both in word and in deed, as to whether travelers are required show government-issued (or any other) ID credentials in order to fly, or whether it is possible to fly without ID.

TSA signs at airports say that passengers are “required” to show ID. But the TSA has repeatedly told courts at all levels — from in camera (secret) submissions to the 9th Circuit Court of Appeals in Gilmore v. Gonzales in 2006 to public testimony of the TSA’s witness in the (unsuccessful) state court frame-up of Phil Mocek in Albuquerque in 2011 — that these and other official TSA notices to passengers are false, that ID is not required to fly, and that the TSA does have (secret) “procedures” that allow people to fly without having or showing ID.

The TSA’s actions are equally bipolar. People who say they have lost their ID cards or had them stolen are “allowed” to fly every day. But people who the TSA deems (for secret or not-so-secret reasons, or completely arbitrarily) to be”suspicious” or “uncooperative” are routinely subjected to retaliation and summary sanctions including denial of their right to travel. Mr. Mocek, for example, was both prevented from boarding the flight for which he had a valid ticket, and falsely arrested by local police at the behest of TSA staff, when he tried to fly without ID and to document the process that the TSA claimed would have allowed him to do so.

What’s the real story? From our close reading of the available evidence, it appears that:

There are no publicly-disclosed “rules” (and probably not even any unambiguous secret rules) defining what is or is not permitted or required of travelers at TSA checkpoints, or what conditions the TSA imposes on the exercise of the right to travel by air.
The TSA claims to have the legal authority, and in practice exercises actual power, to determine who to allow to fly, and who not to allow to fly, in an entirely secret, standardless, and arbitrary manner, at its sole discretion, which discretion is often delegated to front-line TSA staff.

How does this work in practice? We are just beginning to find out.

Apr 08 2015

Where can you complain if your human rights are violated?

As we’ve been pointing out for years, the right to travel is not just a right under the First Amendment to the US Constitution (“the right of the people… peaceably to assemble”) but a human right guaranteed by an international treaty ratified by the US (“the right to freedom of movement”).

But what good is a “human right” guaranteed by international treaty if there is no independent entity to which you can complain, and which has the authority to enforce your rights?

At a minimum, what’s needed is the ability of people whose human rights have been violated by the US government to seek redress through US courts, and the ability of those courts to order the government to comply with its treaty obligations.

Given the US government’s current interpretation of many human rights treaties as not being “self-effectuating”, that would require legislation by Congress to effectuate those treaties by creating a cause of action for treaty violations and give US courts jurisdiction to hear such complaints.

That’s exactly what the UN Human Rights Committee concluded a year ago, following its periodic review of US implementation of the International Covenant on Civil and Political Rights (ICCPR):

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

In the year since this recommendation from the UNHRC, neither the Administration nor any member of Congress has proposed such effectuating legislation for the ICCPR or any other human rights treaty.

So in the meantime, where can you turn if your human rights are violated by the US government?

Papers, Please!

The Identity Project