Freedom To Travel – Page 24

Feb 02 2015

You can’t fly because… we don’t like your brother?

The US government’s use of smear tactics to evade judicial review of its secret, standardless administrative”no-fly” orders has reached a new low with the latest developments in the case of Gulet Mohamed.

Mr. Mohamed’s saga began when his name was added to the US no-fly list in 2010, while the then-teenaged US citizen was visiting relatives abroad. Unable to return home to his family in the suburbs of Washington, he was eventually locked up incommunicado in Kuwait for overstaying his visa. Between sessions of torture by his Kuwaiti captors, he was interrogated by FBI agents who told him the only way out of his predicament would be to become an FBI informant.

Eventually Mr. Mohamed was able to contact family members, including his older brother Liban Mohamed. His family got a lawyer to file suit on his behalf in Federal court in Virginia, and contacted journalists including Glenn Greenwald and the New York Times.

Ever since then, Mr. Mohamed and his lawyers have been struggling for his day in court, before a judge and/or a jury, to decide whether he was rightfully deprived of his rights to travel by licensed common carrier, to return to the country of his citizenship (the USA), to travel freely within the US, and to leave the country again if he should so choose.

After four years of unsuccessful efforts by the US government to get the case thrown out of court without a trial, Mr. Mohamed was on the verge of the first-ever review by a judge of the “derogatory information” purportedly justifying an administrative no-fly order. After the rejection of motions to dismiss the case as moot (after Mr. Mohamed was given a “one-time waiver” to return to the US) and then on the grounds that the entire question of whether he was on the no-fly list was a state secret (despite being a painfully obvious fact), the government defendants tried to buy time or avert a trial with motions to reconsider, motions for “clarification“, and a “response” to the judge’s latest and final order to show him the alleged “secrets” that amounted to a renewed request for reconsideration.

A hearing on whether the case should be dismissed or should proceed to trial was scheduled for last Friday, January 30th.

On Thursday, the day before the hearing in Gulet Mohamed’s case, the FBI — the principal defendant as the agency nominally in charge of the inter-departmental “Terrorist Screening Center” that supposedly has the final say on whether to accept “nominations” to the no-fly list — made a surprise announcement: Gulet Mohamed’s older brother Liban Mohamed has been accused of “providing material support and resources to a designated terrorist organization” and placed on the FBI’s “Most Wanted” list. The FBI also unsealed an arrest warrant for Liban Mohamed issued almost a year ago.

(There’s more about Liban Mohamed from Glenn Greenwald — who had interviewed him several times over the years in conjunction with his brother’s lawsuit and his own later discovery that he too had been placed on the no-fly list — and from Gulet Mohamed’s lawyer Gadeir Abbas, via the AP. It appears that, if the accusations against Liban are true, they mostly reflect the government’s success in alienating its own citizens and creating enemies through its crudely Islamophobic tactics of political repression.)

What are we to make of these developments? We can’t be certain, but we have a theory that fits the facts. And it doesn’t reflect well on the US government.

Throughout more than a decade of no-fly litigation, the government has treated judicial review as a greater threat than air terrorism. People on the no-fly list, including Gulet Mohamed, have been allowed to fly (at the “discretion” of the people giving the secret orders, and possibly with “air marshals” sitting next to them). But nobody has yet been allowed to have a judge or jury review whether there is a lawful basis for depriving them of their right to travel by common carrier.

Attorney General Eric Holder personally swore to the court under penalty of perjury that it would gravely damage national security to disclose whether, or if so why, Dr. Rahinah Ibrahim was placed on the no-fly list. But when it became clear that Dr. Ibrahim’s challenge to her placement on the no-fly list would go to trial, the government admitted that she was placed on the no-fly list because an FBI agent checked the wrong box on the “nomination” form.

That may seem like a damaging admission, and it was. But it also allowed the government to argue that, because the government had now admitted that Dr. Ibrahim didn’t “belong” on the no-fly list, it was no longer necessary for the judge to decide what would constitute sufficient grounds for a no-fly order, review any evidence that might have supported a no-fly order, to determine whether any such evidence should be disclosed to Dr. Ibrahim and/or her lawyers, or to determine whether it was a “state secret”.

Dr. Ibrahim has never been a US citizen, so the US government was able to effectively prevent her from ever flying to the US again, even while taking her off the no-fly list, by revoking her US visa. And under US law, a foreign citizen is not entitled to judicial review of a visa denial. Mission (of secrecy) accomplished.

Because Gulet Mohamed is a US citizen, the government couldn’t moot his legal case as easily.

We suspect that the government’s goal in making public its accusations against Gulet’s brother Liban is to provide a purported basis for placing Gulet on the no-fly list — his brother is a “most wanted” person accused of terrorism — that is now public and doesn’t depend on any alleged “state secrets”. So the government can now argue that Judge Trenga doesn’t need to inquire further into the purported “state secrets”, whether there is any further evidence against Gulet, or whether any such evidence is sufficient to justify the no-fly order approved by the FBI and secretly given to airlines by the DHS.

Three things are profoundly wrong with this picture, of course:

First, there’s no need to put Liban Mohamed on the no-fly list if there’s already a warrant out for his arrest.

Second, what happened to the presumption of innocence?

Liban Mohamed has been accused “by complaint” — that is, by a prosecutor’s accusation that hasn’t even been put before a grand jury, much less a judge.

Travel restrictions are a common condition of release pending trial, but as such they can be imposed only by a court order, on the basis of a showing that they are necessary to assure attendance at trial — not on a prosecutor’s say-so before the accused has even been brought before a judge or had a chance to contest whether there is sufficient basis for the accusations against him to justify bringing him to trial.

Third, isn’t this the crudest and most illegitimate sort of guilt by association?

What would we think, in any other situation, of a government claim that your rights can be restricted or denied because of something one of your siblings has done, even if they were proven to have done it, without the need to show that you had any involvement or culpability for their illegal actions? Should we, and can we legally, be held liable for every act of any of our siblings (even if they have been convicted, which Liban Mohamed has not)? And if our sibling has merely been accused but not convicted, should we and all his other siblings be subject to government constraints on our movements while he awaits trial?

This sort of familial taint comes frighteningly close to the “corruption of the blood” expressly forbidden by the Constitution even in cases of treason (a crime of which neither Mohamed brother has been accused).

Whatever the truth or falsehood or evidentiary basis, if any, for the FBI’s accusations against Liban Mohamed, they provide no excuse whatsoever for what has been done, and continues to be done, to his brother. Gulet Mohamed remains entitled to confront his accusers, to see the evidence (if any) against him, and to have the basis for the no-fly order against him reviewed by a judge and/or a jury.

Jan 30 2015

You shouldn’t be arrested just because the TSA calls the cops on you

In the final episode of a legal saga we’ve been following for the last five years, Philadelphia police have agreed to pay $25,000 to a college student who was arrested after TSA checkpoint staff at the airport called in the police because he was carrying a a set of Arabic-English flash cards and a book critical of US foreign policy, “entitled, “Rogue Nation: American Unilateralism and the Failure of Good Intentions.”

In addition, as part of the settlement agreement with Nick George and the police (who had made a counter-claim the TSA for telling them to arrest Mr. George), the TSA has issued a fascinating official declaration that it has no authority to order anyone arrested and that police are not required to take any action on TSA “referrals”.

The TSA can (and sometimes does, as in the ongoing case of “Naked American Hero” John Brennan) initiate its own administrative procedures to fine you for whatever it defines as “interfering” with “screening”. But the latest TSA declaration confirms that TSA staff (much less TSA contractors at airports such as SFO) are not law enforcement officers, have no power to arrest anyone (except at their own risk, as a citizen’s arrest), and cannot legally order anyone arrested. As we have been saying for years, all they can do is call the local police. Once the police arrive, they can only detain or arrest you if they — the police, not the TSA — have a lawful basis for doing so. “The TSA asked us to hold you or take you away” is not sufficient.

A federal District Court judge initially rejected the TSA’s claim of “qualified immunity”, but that decision was reversed in late 2013, as we reported at the time, by the Court of Appeals for the 3rd Circuit, against both common sense and an earlier ruling by the 4th Circuit.

In another case of retaliation for the exercise of 1st Amendment rights as a TSA checkpoint, the 4th Circuit had found that, “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested.” But the 3rd Circuit begged to differ, finding that, “it seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody.”

(This isn’t the first time DHS personnel have drawn improper adverse content-based inferences from travelers’ reading habits. John Gilmore was detained and subjected to “secondary screening” and notes made in his permanent DHS file (see slide 32) in 2007 because he was carrying a book entitled, “Drugs and Your Rights.”)

The decision by the 3rd Circuit left alive Mr. George’s claims against the police, and the police counter-claim against the TSA. The settlement dismisses those remaining claims in exchange for a $25,000 payment by the police to Mr. George, an agreement to re-educate the Philadelphia airport police about their duty not to delegate their authority to decide who to detain or arrest to the TSA, and the release of the TSA declaration.

We’re disappointed that the settlement leaves the ACLU unreimbursed for its costs of defending Mr. George’s rights, and that the TSA personnel got off scot free. But if there’s a silver lining in the settlement, it’s the TSA declaration, which may make it harder for local police to claim ignorance of the law or immunity from liability when they arrest people on the say-so of the TSA or on the basis of a TSA “referral”.

If you think there’s a chance that the TSA might call the cops on you — and as Mr. George’s experience shows, the TSA could call the cops on anyone, for any reason or no reason — you might want to consider carrying a copy of this declaration to show the police when they show up at checkpoint. And remember that you have the same rights in this setting as in any other encounter with police, including the right to remain silent.

Jan 13 2015

Is the attack on Charlie Hebdo a reason for air travel surveillance?

In a speech today in Strasbourg opening the current session of the European Parliament, the President of the European Council (the executive branch of the European Union, comprised of national governments) invoked the attack on the satirical cartoonists of Charlie Hebdo as a reason for popularly-elected EU legislators to put aside their previous objections and enact a comprehensive EU-wide mandate for surveillance and profiling of airline passengers on the basis of Passenger Name Record (PNR) data from airline reservations.

Today’s speech by Council President Donald Tusk of Poland echoed similar statements by “security” (policing and surveillance) officials of other EU governments in conjunction with a summit meeting of EU ministers. The summit is also being attended by senior US officials from the DHS and other agencies that have been lobbying the EU for years to set up a PNR-based surveillance and profiling scheme modeled on the one used by the US.

Tusk and other EU officials have made PNR-based profiling of air travelers a priority as a “response” to the Charlie Hebdo attack in Paris, claiming that it “can help in detecting the travel of dangerous people.”

Is this true? And does the attack on Charlie Hebdo provide any reason for Members of the European Parliament, or the European Court of Justice, to change their opinion that mandatory root access by governments to airline reservation databases is unjustified and violates fundamental rights?

No, and no.

The attack on Charlie Hebdo was an act of domestic terrorism carried out within France by French citizens. They didn’t travel by air or cross international borders. Their means of transportation to and from the scene of the crime in Paris was a car stolen elsewhere in the Paris metropolitan area. Airline reservations or border controls would have given no indication of the impending attack, and could not have been used to prevent it.

After the fact, police pursuing the perpetrators could have obtained search warrants, including warrants for PNR data or other airline records if there was a likelihood that they would be relevant, through normal judicial procedures.

(And as Wikileaks recently revealed, European governments are already obtaining PNR data “informally” from airlines, and using it to profile travelers, without legal authority.)

Nothing about the attack on Charlie Hebdo provides any reason to give governments more power to engage in warrantless surveillance or profiling of travelers who aren’t suspected of any crime.

Comprehensive PNR surveillance is like the NSA’s dragnet interception and mining of Internet and telephone records — except that metadata about the movements of our physical bodies (PNR data) can be far more intimate that metadata about the movement of our messages. Which is more intrusive: For the NSA to know that you talked on the telephone or exchanged email messages or were in the same mobile phone “cell” with someone, or for the DHS or a European “Passenger Analysis Unit” to know from a hotel reservation passed on to the government as part of your PNR data that you slept in the same bed with that person?

The purpose of PNR-based surveillance is neither to investigate past crimes nor to track people who are already suspected of crimes. Those activities require neither new procedures nor new police powers. The only reason for governments to obtain the entire rich and intimately revealing PNR dataset for all air travelers is to identify new potential suspects, based on profiles and associations. Profiling and suspicion-by-association are the central purposes of a PNR system, not side effects or aberrations.

We’ll be in Brussels next week to discuss these issues with our European colleagues at a Privacy Camp on “Big Data & Ever Increasing State Surveillance“, and at the Computers, Privacy & Data Protection (CPDP) conference.

Jan 12 2015

Wikileaks publishes CIA reports on travel ID checks

Wikileaks has published two internal briefing documents produced for the use of CIA undercover agents, describing the methods used by airlines and governments to identify international travelers.

Both of these reports were produced as part of the CIA’S previously-unknown CHECKPOINT program of travel ID-related activities:

This product has been prepared by CIA’s CHECKPOINT Identity and Travel Intelligence Program. Located in the Identity Intelligence Center (i2c) within the Directorate of Science and Technology, CHECKPOINT serves the Intelligence Community by providing tailored identity and travel intelligence products. CHECKPOINT collects, analyzes, and disseminates information to help US intelligence personnel protect their identities and operational activities while abroad.

One of the reports, “Surviving Secondary“, describes ID-related “secondary screening” procedures at international airports, with examples from the US, EU, and other countries around the world. The other report is an overview of, “The European Union’s Schengen biometric-based border-management systems.”

Most of the airline and government profiling and “screening” activities described in the reports, are already well-known. These include many of the ways that governments obtain and use Passenger Name Record (PNR) and Advance Passenger Information (API or APIS) data derived form airline reservations.

But these newly-released reports also confirm that the CIA (and the other agencies with which the reports have been shared within the US government) are aware of some airline and government activities and some vulnerabilities for travelers which we and others have complained about, but which the US government has not previously acknowledged.

One problem confirmed by the CIA report on secondary screening is that government agencies can, and routinely do, obtain and use PNR, API, and other airline data, without legal authority or due process:

Security services lacking APIS or PNR information may have other arrangements to receive passenger manifests ahead of time. For example, the Airport Police Intelligence Brigade (BIPA) of the Chilean Investigative Police does not routinely obtain advance passenger manifests but can request the information from airlines on an ad hoc basis to search for targets of interest. Strict privacy laws covering Danish citizens extend to all passengers traveling through Copenhagen airport such that the Danish Police Intelligence Service (PET) cannot legally obtain routine access to flight manifests. However, if one of PET’s four cooperative airline contacts is on duty, the service can unofficially request a search on a specific name, according to August 2007 liaison reporting.

Airline data obtained by government agencies through these extrajudicial channels is used for profiling and targeting of searches, questioning, and other adverse actions against travelers.

This practice is illegal in many of the countries where it is routine, but typically occurs without leaving a trace. Many airline staff are willing to betray their customers’ privacy to government agencies. And because no records are kept of who accesses PNR data, both government agents and their airline collaborators know that they are unlikely to be held accountable unless they confess or are caught in the act.

The persistence of routine “informal”, often illegal, and almost always unrecorded government access to airline data about travelers highlights a crucial issue we’ve been talking about for years: the complete absence of access logging in the architecture of the computerized reservation systems (CRSs) which host airlines’ PNR databases. CRSs have PNR change logs, but no PNR access logs.

Governments and travelers must demand that CRSs add comprehensive access logging to their core functionality for PNR hosting. That won’t stop the problem. Airline staff will still be able to show government agents printouts or let them look at displays, with only the airline personnel’s access being logged. But access logs will help, and are an essential first step toward control of PNR data “leakage”.

The CIA report on secondary screening also confirmed that the CIA is aware of the sensitivity and use by European governments (and presumably other governments) of associational information contained in fare basis codes, ticket designators, and travel agency IDs:

April 2007 reporting resulting from a liaison exchange with the Hungarian Special Service for National Security (SSNS) provides insights into factors considered by officers at Ferihegy airport in Budapest, Hungary when examining tickets. Officers check … whether the ticket fare code represents a government or military discount, or whether a government travel agency booked the ticket. Hotel and car reservations are similarly examined for unusual discounts or government affiliation.

Of course, the same PNR data elements and pricing and ticket designators can reveal other, non-governmental, affiliations between travelers and with other individuals and groups. If an airline gives a discount to members of a political organization, trade union, or other group attending a convention or meeting, for example, each PNR and ticket for a member who receives the discount typically includes some unique code.

Despite complaints, including ours, both US and European officials have denied that ticket designators and similar codes in PNRs can reveal sensitive associational data. Now we know that this information is already being used by European governments, and that the CIA is aware of these uses. There’s no more excuse for pretending that these data elements are innocuous or that they can be “shared” without risk to travelers.

Jan 09 2015

“CAPPS IV”: TSA expands profiling of domestic US airline passengers

Under color of a vestigial provision of Federal law related to an airline passenger profiling program that was discontinued more than four years ago, and applying the name of that program (and attempting to apply the same legal mandate) to an entirely new scheme, the TSA is adding a new, additional layer of passenger profiling to its pre-crime system for domestic airline flights within the United States.

The existence and TSA-mandated implementation of the new so-called “Computer-Assisted Passenger Prescreening System (CAPPS)” was first disclosed publicly in an obscure posting this Monday on the DHS website and an equally obscure notice published the same day in the Federal Register. According to both documents, the new CAPPS scheme has been under development since at least 2013, in secret collaboration between the TSA, the inter-departmental National Counterterrorism Center (NCTC), airlines, and private contractors.

What was the old CAPPS? What is the new CAPPS? And what does this mean for the rights of travelers?

Answering these simple-seeming questions requires understanding the history of government-mandated airline passenger profiling in the US and the shell game of labels that the government has applied to profiling schemes, as well as careful parsing of this week’s abstruse and uninformative (to the uninitiated) official notices.

Dec 11 2014

DHS proposes ID and search rules for passengers on ocean-going ships

In a Notice of Proposed Rulemaking (NPRM) published yesterday in the Federal Register, the Coast Guard has proposed that all so-called “cruise ship” ports be required to carry out airport-style searches (“screening) and check identity credentials of all embarking and disembarking passengers and any other visitors entering the port.

Entities responsible for the operations of large passenger vessels and ports are already required to submit “security” plans to the Coast Guard. Because those current plans are filed in secret, it’s not entirely clear how the proposed requirements differ from current practices.

According to the NPRM, the Coast Guard’s guidelines for complying with the current regulations, in addition to various other supporting documents, were included in the rulemaking docket. We’ve confirmed with the docket office, however, that the Coast Guard never provided any of the supporting documents for posting on Regulations.gov or over-the-counter availability at the docket office. Presumably, a corrected notice with a new due date for comments will be published in the Federal Register once these documents are made publicly available.

From the summary in the NPRM, it appears that the main proposed changes are new requirements for port operators to:

(a) Screen all persons, baggage, and personal effects for dangerous substances and devices in accordance with the requirements in subpart E of this part;

(b) Check the identification of all persons seeking to enter the facility in accordance with §§ 101.514, 101.515, and 105.255 of this subchapter….

The difference in “screening” practices contemplated by the proposed rules seems to be that they would be more standardized than at present, more like those at airports, and would be required to enforce a Coast Guard “prohibited items” list. Although the list of items prohibited from aircraft is designated as “Sensitive Security Information”, the Coast Guard has included a tentative list of items proposed to be prohibited from cruise ship cabin baggage in the proposed rules. At the same time, the proposed rules would provide that:

The Prohibited Items List does not contain all possible items that may be prohibited from being brought on a cruise ship by passengers. The Coast Guard and the cruise ship terminal reserve the right to confiscate (and destroy) any articles that in our discretion are considered dangerous or pose a risk to the safety and security of the ship, or our guests, and no compensation will be provided.

Cruise ship passengers are already required to “present personal identification in order to gian entry to a vessel [or port] facility,” but it isn’t clear how or by whom this is supposed to be enforced. The propsoed rules would create a new obligation for port operators to check passengers’ ID credentials.

As with the definition of “prohibited items”, the definition of acceptable ID credentials is defined for air travel only in secret (SSI) TSA Security Directives and/or Standard Operating Procedures, but is defined publicly in Federal regulations for cruise ships.

The NPRM would leave the definition of acceptable ID unchanged. In addition to government-issued ID credentials, the regulations specifically provide for the acceptance of ID issued under thre authority of, “The individual’s employer, union, or trade association”, as long as it is laminated, includes a current photo, and baears the name of the issuing authority.

By its plain language, this regulation allows any self-employed person to issue their own self-signed personal ID credentials for access to port facilities.

That’s not inappropriate, since many self-employed contractors need to enter ports for business reasons.

In practice, most cruise lines enforce (with or without legal authority) ID requirements more stringent than those in Federal regulations. But we’d be interested in hearing from anyone who has presented self-signed ID credentials, in accordance with these regulations, for purposes of entry to a port or to board a cruise ship. Some cruise lines alloow guests onboard while ships are in port, such as friends seeing off passengers. So you might be able to experiment without being a passenger yourself.

Dec 10 2014

Dept. of Justice guidance against profiling exempts borders and “screening”

The US Department of Justice has issued new Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity.

“This Guidance … reaffirms the Federal government’s deep commitment to ensuring that its law enforcement agencies conduct their activities in an unbiased manner” — except at and near borders and coastlines and during any activity labelled “screening”.

According to a footnote, “This Guidance… does not, create any right … enforceable … against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.”

And in a huge exception hidden in the same footnote:

[T]his Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.

Most of the US population lives “near” (within 100 miles of) a border or seacoast, and the ACLU’s “Blog of Rights” has a good analysis of the what’s wrong allowing racial and other profiling at and near US borders.

On a daily basis, however, more people are stopped and subjected to “administrative” searches as part of TSA and other Federal “screening activities” than are stopped at border and near-border checkpoints. These are the searches that are labelled as “screening”, rather than searches, by the TSA and other agencies that don’t want to admit that these searches are subject to the 4th Amendment.

The DOJ guidance is applicable to all Federal law enforcement officers, not just DOJ personnel. It includes TSA and other DHS officers everywhere except when they are in the vicinity of the border or carrying out “screening activities.” (Most TSA checkpoint staff aren’t law enforcement officers, despite their badges and their job title of “officer”, but some other TSA employees are.) So this exception isn’t about the DOJ not having jurisdiction over employees or contractors of the DHS or other agencies. The job of the DOJ includes interpreting Federal law for all executive agencies.

The only reason these activities were exempted from the DOJ guidelines is because the DHS argued successfully, to the DOJ and in whatever White House or other inter-agency process led to the issuance of the guidelines, that racial and other profiling was a proper element of its border, near-border, and “screening” activities — not an accident, oversight, or something DHS is trying to reduce or eliminate.

That should be no surprise, since the DHS has made explicit that it now profiles all air travelers as a part of so-called “screening”, and has added questions about profiling critieria such as national origin to its forms for would-be border crossers. But it’s yet another indication of the belief by the DHS that it is above the law and exempt from the norms of justice that apply to the rest of the government.

Dec 05 2014

US Supreme Court asked to clarify limits of TSA searches

Are the Transportation Security Administration’s (TSA) administrative checkpoint searches limited to those “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives” as required by the Ninth Circuit, or may the TSA conduct more extensive searches as allowed in this case by the Eleventh Circuit?

This is the first and perhaps most significant of the questions presented to the US Supreme Court by a petition for certiorari in the case of Jonathan Corbett v. TSA, et al. The petition as filed last month was rejected on trivial procedural grounds, but is being resubmitted and should appear shortly on the Supreme Court’s voluminous docket of pending petitions.

This is an important case because almost the only limit on TSA searches which the courts have recognized has been the requirement that they be limited to searches for weapons and explosives, and that TSA checkpoints not be used as pretexts for general law enforcement dragnets.

In press releases and blog posts, the TSA has claimed that it has broader authority to detain, search, and interrogate travelers about matters unrelated to weapons, explosives, or transportation security. In practice, TSA checkpoint staff and contractors routinely rifle through wallets, read and copy books and papers, and search for any evidence that might create a suspicion of any criminality. But even while upholding the legality of these searches in specific cases, courts have continued to uphold, at least in theory and rhetoric, the principle that searches at TSA checkpoints are “limited”.

So far as we can tell, the decision by the 11th Circuit in Corbett v. TSA is the first appellate opinion explicitly to approve the use of TSA checkpoints for a broader general (warrentless and suspicionless) search of all travelers for evidence of any sort of potential crime.

Dec 02 2014

European court to rule on legality of air travel surveillance

The European Parliament has voted to refer a proposed agreement between the European Union and Canada concerning transfers from the EU to Canada of Passenger Name Record (PNR) data about air travelers to the European Court of Justice (ECJ) for the court’s opinion on whether the agreement is consistent with EU treaties and the EU Charter of Fundamental Rights.

This action might easily — and correctly — be dismissed as narrow, technical, evasive of legislators’ responsibility to consider the propriety and legality of their own actions (and to reject proposals outright if they think they would violate treaties or fundamental rights), and of no direct relevance to the US.

But this could, nevertheless, prove to be a significant setback to the efforts of the US “homeland-security” and surveillance establishment, and its allies in Europe and Canada, to globalize the PNR-based system of surveillance and control of travelers that has been put in place in the USA since 9/11.

Canada requires all international airlines to hand over passenger data to the Canadian government, and passengers on flights to, from, within, or overflying Canada are “vetted” against both Canada’s own no-fly list and the US government’s no-fly list. Canadian data privacy law has been amended twice since 9/11 to allow cross-border transfers of data about airline passengers. But while those requirements have some domestic support in Canada, they have been enacted somewhat reluctantly by the Canadian Parliament, mainly in order to avoid interference by the US with the large fraction of flights to, from, and within Canada that routinely pass through US airspace. There has been opposition by some Members of the Canadian Parliament, by the Privacy Commissioner of Canada, and by Canadian NGOs such as the International Civil Liberties Monitoring Group / Coalition pour la surveillance internationale des libertés civiles.

There’s been extensive discussion of the issue of government access to airline PNR data in Europe as well, including by the European Parliament and by NGOs such as EDRi and NoPNR.

In April of 2012, the European Parliament approved — over objections from a substantial minority of MEPs — an “agreement” to permit transfers of PNR data to the US. But European opinion on this issue has shifted significantly since between then and this month’s debate on the EU-Canada PNR agreement, as a result of (1) Edward Snowden’s revelations about NSA spying, (2) growing recognition of the parallels between surveillance of communications metadata and surveillance of travel metadata, and (3) the ruling in April of 2014 by the ECJ that an EU directive mandating retention and government access to communications, internet, and transaction metadata violates European law and fundamental rights.

The ruling by the ECJ has voided the EU data retention directive. The hope is that the EU-Canada PNR agreement will be the second domino to fall, with the EU-USA PNR agreement next in line.

Dec 01 2014

Judge insists on right to review “no-fly” order

Four years after the US government put Gulet Mohamed on its “no-fly” list, Mr. Mohamed is still waiting for his day in court. But he hasn’t given up, and he’s getting slowly closer to the first judicial review of the merits of a no-fly order.

Here’s some quick background and then an update on his recent legal travails:

Mr. Mohamed, a US citizen of Somali ancestry, was 18 years old and visiting family members in Kuwait when the US put him on the no-fly list. When his visa expired, he ended up in a Kuwaiti immigration prison, where between sessions of torture he was interrogated by FBI agents who told him (as they have told other US citizens on the US no-fly list) that he would be allowed to go home to the US only if he became an FBI informer.

Eventually Mr. Mohamed was able to contact his family in Virginia, and they found him a lawyer from the Council on American-Islamic Relations. Faced with an order from U.S. District Court Judge Anthony Trenga to show cause why the court shouldn’t issue an injunction prohibiting the government from interfering with Mr. Mohamed’s right to return to the US, the government let him fly back to the US, and then tried to get the court to dismiss his complaint as “moot”. But that initial attempt to get Mr. Mohamed’s case thrown out of court was unsuccessful, as were a series of motions and appeals by the government during the last four years on the grounds of standing, jurisdiction, and “state secrets”.

(The portion of the court docket freely available through PACER is here, and our previous reports on the case are here. The most thorough coverage of recent legal developments has been by Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy.)

The last time we reported on Mohamed v. Holder, in September of this year, the government was still trying to persuade Judge Trenga to reverse his prior rulings and dismiss Mr. Mohamed’s case on the ground’s that, “There is no fundamental right to international travel.” The government was also asking Judge Trenga to reconsider his order that the government must allow him to review the allegedly secret evidence in camera before he decides whether it is, in fact, properly designated as “state secrets” and if so, whether he can decide the case without relying on any legitimately “secret” evidence.

In October, the government handed over the allegedly “secret” evidence to Judge Trenga (but not to Mr. Mohamed or his lawyers), while continuing to argue that it shouldn’t be required to do so. After in camera review of the allegedly secret documents, Judge Trenga ruled that the case could go forward without the need to decide whether they were actually state secrets: “None of the documents are so related to plaintiff’s procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents…. The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability.”

Faced with the imminent prospect of a decision on the merits of Mr. Mohamed’s claim that he was denied due process of law when the government secretly ordered airlines not to transport him, the government asked for a “do-over”: a three-month postponement of the court case and a “remand” to the FBI to give the government time to develop a revised set of extrajudicial administrative “no-fly” decision-making procedures, and to subject Mr. Mohamed to this “kangaroo court version 2.0.” This is essentially the same request that the government has made in another no-fly case, Latif v. Holder, in which U.S. District Judge Anna Brown has already found that the plaintiffs’ rights were violated.

According to Mr. Mohamed’s response, the government’s request for a do-over is, in effect, yet another attack on the authority of the court to order redress for violations of the Constitution by Federal agencies:

Defendants’ assertion that “the only appropriate result” of a ruling in Plaintiffs’ favor on their substantive claims would be a remand order to “apply new procedures in reaching a new substantive decision,” … misconstrues the nature of Plaintiffs’ claims and implies that the only remedy for a substantive due process violation is further agency proceedings. That is not the case. If, as Plaintiffs’ request, the Court finds that Defendants violated Plaintiffs’ substantive due process rights by placing them on the No Fly List, the Court plainly has the authority to order Plaintiffs to be removed from the List.

On November 20th, Judge Trenga denied the government’s motion for postponement and “remand”. That leaves Mr. Mohamed’s claims that his rights were violated on schedule for briefing, argument, and decision on their merits by Judge Trenga.

We look forward to seeing Mr. Mohamed finally, after four years of government obstruction and foot-dragging, receive his day in court, perhaps some time in early 2015.

Papers, Please!

The Identity Project