Freedom To Travel – Page 27

Feb 18 2014

Blacklists and controls on the movement of goods and money

We’ve focused mostly on the “no-fly” list and other government blacklists and “watchlists” restricting the movement of people. But the latest administrative injustice involving an innocent British philosopher reminds us that government blacklists also restrict the movement of information, goods, and money — sometimes with serious negative effects on innocent people’s lives.

How the US Treasury imposes sanctions on me and every other “Stephen Law” on the planet – my letter to OFAC

My name is “Stephen Law“. The name “Stephen Law” appear on OFAC’s “specially designated nationals” list….

I have discovered that, as a result of this listing, US Customs block shipments of goods to me here in the UK. Also when people try to wire me money from abroad (not just from the US, but from anywhere), for e.g. occasional travel expenses for academic conference attendance, the payment is interrupted and various checks are made before the funds are released. This became so bad during one period (a series of payments every single one of which triggered a block) that I had to switch to a different bank account. At no point was I told why this was happening (i.e. that you, OFAC, are responsible). The banks concerned believe they must keep this information from me (I was told this by my bank branch). Hence it took me many months to figure out what the source of the problem was: OFAC/US Treasury.

It appears any “Stephen Law” anywhere in the world will suffer this same treatment, as indeed will anyone who merely happens to have the same name or alias as one of your “specially designated nationals”. This has proved frustrating, time-consuming and also costly to me personally. E.g. I have paid US$77 postage for goods it turns out I can never receive because they are returned by US customs to the US vendor because my name is listed. As a result of the OFAC listing, I cannot now order goods from – or receive gifts from friends and relatives in – the United States….

OFAC-caused delays to payments to me can run into weeks. On one occasion I ran up overdraft charges as a result of not receiving funds blocked by OFAC….

How could this happen?

Feb 14 2014

Lessons from the first “no-fly” trial

Information about what happened in Ibrahim v. DHS – the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret. Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part. Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings. We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.” Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary. In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file. Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight. If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended. At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.” That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring. In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

Feb 13 2014

What’s it like to be a TSA checkpoint “officer”?

For more than a year, an anonymous blog called Taking Sense Away has been reporting on what it’s like to work at a TSA checkpoint as a “Transportation Screening Officer”.

Now that he is no longer a TSA employee, the author of the blog has revealed himself in an article in Politico (“Dear America, I Saw You Naked”) as Jason E. Harrington, a graduate student (currently working on a novel based on his time at the TSA) who worked for the TSA at O’Hare Airport in Chicago from 2007 until May 2013.

Thank you, Mr. Harrington. The TSA needs more whistleblowers, leakers, and honest story-tellers.

Sadly, there’s nothing really surprising in the Politico article, and we’ve been following the blog since its launch. We already knew this stuff was happening behind the scenes, such as TSA staff who know that what they are doing is security theater, and enjoy that theater by necking in the back room that’s deliberately designed to enable them to watch the naked images of passengers in private, assured that nobody can see them or catch them on camera while they are fooling around or laughing as passengers’ body-scans.

What we have now that’s different is someone with years of inside experience who who is prepared to put his name and stake his reputation on this testimony (and to provide a publication outlet for other TSA whistleblowers). Read it all and weep, and keep following for more revelations.

Feb 12 2014

Update: The U.S. is still violating travelers’ human rights

The right to freedom of movement and travel is recognized in black-letter international human rights treaty law as Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

Every five years, pursuant to the treaty itself, implementation of the ICCPR by each treaty party is reviewed by the United Nations Human Rights Committee.

The U.S. will be reviewed next month, with two days of public questioning of a high-level U.S. government delegation by the members of the Human Rights Committee at its 110th session in Geneva.

In preparation for that review, the Human Rights Committee has been consulting with human rights advocates in the U.S. and abroad, through written submissions and private face-to-face meetings.

The Identity Project has been an active participant in that process, as part of the U.S. Human Rights Network.

In December 2012, we reported to the Human Rights Committee that that the US has put in place systems of government surveillance and control of travel, enabled by technology to be more comprehensive than the Stasi could ever have imagined. In March 2013, we traveled to Geneva to discuss our report with members of the Human Rights Committee.

This week, in preparation for another trip to Geneva and further meetings with the Human Rights Committee and the U.S. delegation to the U.N. next month, we submitted updates to the Human Rights Committee on how the US violations of the ICCPR have continued and worsened in the last year:

The US treats travel not as a right but as as a privilege that requires government permission; which can be restricted by secret extrajudicial “no-fly” orders; and which justifies intrusive searches and government monitoring and recording of each individual’s movements in a lifetime travel history, which is used to decide whether to give permission for future travels.

The US is now attempting to make these practices a new global norm, rolling back worldwide progress on freedom of movement. For this reason, it is important for the Human Rights Committee to question the US about its controls on travel.

And it is critical to freedom of movement worldwide for the Human Rights Committee, at the conclusion of its review of US implementation of the ICCPR, to reject permission-based controls on free movement, and to reaffirm that the threat of terrorism does not eliminate the right to freedom of movement.

The questioning of the U.S. delegation by the Human Rights Committee will be webcast, and we’ll have a report form Geneva following the release of the Committee’s concluding observations.

Feb 08 2014

U.S. Embassy in Sana’a seizing U.S. citizens’ passports

Imagine that you are a US citizen living or traveling abroad. Imagine that you go to the US Embassy to avail yourself of its “Consular Services” as a US citizen. Then imagine that embassy staff confiscate your US passport.

That’s what’s been happening to many, perhaps most, Yemeni-American US citizens who make the unwitting mistake (!) of showing their US passports at the entrance to the US Embassy in Sana’a, Yemen.

US citizens who have contacted us from Yemen for assistance have told us they believe that there are 500 or more US citizens now stranded in Sana’a, unable to leave Yemen or to return to the US without their passports.

One Yemeni-American who phoned us from Sana’a described going to the US Embassy to apply for a new US passport for his newborn child. Any child of a US citizen is entitled by birth and parentage to US citizenship, and passports for children of US citizens born abroad are routinely issued by US embassies.

But instead of leaving the embassy with a new passport for his child, this Yemeni-American US citizen left the US Embassy without his own passport, which was confiscated without warning by embassy staff. Other Yemeni-Americans have had their US passports seized when they visited the US Embassy in Sana’a for consular services in conjunction with Social Security or veterans’ benefits, visa or immigration applications for non-US citizen relatives, absentee voting in U.S. elections, or authentication of documents for other US government purposes.

A cable to Washington from the U.S. Embassy in Sana’a in 2009 released by Wikileaks (presumably among those leaked by whistleblower Chelsea Manning) revealed that the embassy in Sana’a was already treating all immigrant visa applications as “considered fraudulent until proven otherwise.” The current treatment of US passport holders suggests the embassy has expanded this presumption to US passports in Yemeni-American hands. It’s a clear-cut case of discrimination against certain US citizens on the basis of Yemeni national origin.

The seizure of passports from US citizens at the US Embassy in Sana’a was first reported last year in Yemeni expatriate publications, around the time we were first contacted from Yemen by one of the affected individuals. But most of those affected were understandably unwilling to be identified publicly, lest it reduce their chances of getting out of limbo. It took some time for the scope of the problem to become apparent, for the story to be picked up by mainstream media, and for some of those U.S. citizens stranded in Yemen to begin to begin to identify themselves and tell their stories publicly.

A coalition of civil liberties organizations has now launched a bilingual English and Arabic website, MyEmbassyRights.US, including information on legal assistance and a downloadable “Know Your Rights” informational pamphlet for US citizens preparing to deal with the US Embassy in Sana’a.

Feb 06 2014

More details of Judge Alsup’s decision in “no-fly” case

More details of Judge William Alsup’s decision in Ibrahim v. DHS, the first case challenging the US government’s “no-fly” list to go to trial, were made public today in the form of a redacted version of Judge Alsup’s findings, conclusions, and order.

In deference to the government’s insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual Public Notice and Summary.

Judge Alsup ordered the parties to try to agree on a redacted version of his opinion that both would allow to be made public. But after government’s lawyers declined to tell Dr. Ibrahim’s lawyers what, if any, portions of Judge Alsup’s opinion they believed had to be kept secret, or why, Judge Alsup ordered the government to file a minimally redacted version of the judge’s opinion by noon today.

The version of Judge Alsup’s order that the government has now made public still contains substantial redactions. Some are surreal, such as the government’s belief that the public cannot be allowed to know Judge Alsup’s reasons for describing the treatment imposed on Dr. Ibrahim as “surreal”. Others are more substantive, such as the redaction of all of Judge Alsup’s finding concerning Dr. Ibrahim’s US-citizen daughter, who was prevented from traveling to the US to attend and testify at her mother’s trial.

But the government has, reluctantly, allowed us to know much more about why Dr. Ibrahim was treated so badly and what remedies Judge Alsup has ordered:

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong….

FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose. To be clear, no agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain lists in 2004, for the form instructions were not properly followed. The designations in the November 2004 form should be disregarded for all purposes…. A deadline will be set for defendants to file declarations under oath attesting to compliance.

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake. For example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her daughter was not allowed to fly to the United States even to attend this trial despite the fact that her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the Court.

With respect to the government’s TRIP program, which does provide a measure of post-deprivation relief, this order holds that it is inadequate, at least on this record.

Judge Alsup castigated the government for promising explicitly not to rely on alleged “state secrets” in its defense, and then trying to do so during and after the trial.

In the end, Judge Alsup found it unnecessary to rely on any “secrets” because the government conceded that Dr. Ibrahim did not and does not pose any threat and that her name had been placed on the “no-fly” list by “mistake”. While Judge Alsup was able to find that Dr. Ibrahim was denied due process of law, his discussion of what due process might require if the government claimed (perhaps on the basis of “secret” information) that a “no-fly” listing was justified was consigned to a footnote:

In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources.

We think that the proper basis for inclusion of a name on a no-fly list is a no-fly injunction or restraining order, issued by a judge, with its attendant due process. No other no-fly case has yet made it to trial, but sooner or later the courts will have to address the hypothetical situation described by Judge Alsup in this footnote.

The government has not yet given notice of its intent to appeal Judge Alsup’s decision. (When, as in this case, one of the parties to the case is a federal agency, the deadline for filing a notice of appeal is 60 days after the judgment or order appealed. Judge Alsup’s decision was issued on January 14th, so the government has until March 14th to decide whether to appeal.) Unless the government appeals, the decision will become final and will be made public in its entirety, unredacted, on April 15, 2014.

Jan 31 2014

The price of justice: 9 years, $3.9 million, and counting

On January 2, 2005, Dr. Rahinah Ibrahim found out she was on the US government’s no-fly list when she was denied boarding, arrested, handcuffed, and locked in a cell for two hours when she tried to check in for a flight from San Francisco to Hawaii.

Just over nine years later, on January 14, 2014, a Federal judge entered judgment in Dr. Ibrahim’s favor following the trial in her lawsuit challenging her placement on the no-fly list, her mistreatment by Federal and San Francisco government employees and contractors, and the denial of her right to due process of law.

Dr. Ibrahim’s pro bono lawyers have now applied to Judge William Alsup for reimbursement by the government defendants of their costs: $3.6 million for 11,000 billable hours of attorneys’ and paralegals’ time, plus more than $300,000 in out-of-pocket expenses (including fees charged by the defendants to Dr. Ibrahim’s lawyers for obtaining clearances to see evidence alleged by the defendants to contain Sensitive Security Information).

The total price of justice: Just under $4 million dollars — and counting. The government defendants have until February 13th (30 days after the entry of Judge Alsup’s judgment) to decide whether to appeal that judgment to the 9th Circuit Court of Appeals, where they have already lost two appeals of pre-trial rulings in Dr. Ibrahim’s lawsuit. If the government appeals the judgment, payment of their fees and expenses (which depends on Dr. Ibrahim having “prevailed” in the litigation) will be further delayed while more costs accrue.

The brief in support of the motion for an award of attorneys’ fees and costs by Dr. Ibrahim’s attorneys chronicles a litany of bad faith and dirty tricks on the part of the defendants’ lawyers, such as continuing to withhold evidence from Dr. Ibrahim;s lawyers on the grounds that it was SSI, years after Dr. Ibrahim’s lawyers had been cleared by the defendants to receive SSI for purposes of the case.

Only a summary of Judge Alsup’s opinion has been made public. Unless otherwise ordered by the 9th Circuit Court of Appeals, the full opinion will be made public on April 15, 2014. In the meantime, according to the latest filing on behalf of Dr. Ibrahim, the government defendants are obstructing release of any further details:

Defendants’ overreaching behavior regarding secrecy in this matter continues to this day. The Court ordered the parties to meet and confer on release of a redacted version of the Court’s sealed opinion dated January 14, 2014. The sealed opinion would allow plaintiff and the public to understand more about what happened in the case and contains many facts for which the government asserts no privilege. Plaintiff has twice inquired of defendants regarding their proposed redactions, once on January 15, 2013, and again on January 24, 2013. Defendants have not provided their proposed redactions to plaintiff.

Jan 30 2014

9th Circuit overturns law making hotel guest registry an “open book” for police

Airlines and other common carriers aren’t the only travel companies that are sometimes required by governments to keep logs of their customers’ activities and make those records available to police.

Hotels, in particular, are often required or expected to spy on their customers for the (secret) police.

Sometimes, as in many European countries, this is mandated by national law. In the US, these requirements are more often encountered in state, county, and municipal codes.

The US Court of Appeals for the Ninth Circuit, after rehearing en banc, recently overturned one such local ordinance as being, on its face, a violation of the Fourth Amendment prohibition on unreasonable searches and seizures.

The ruling in Patel v. City of Los Angeles is indicative of what sorts of limits courts currently are, and aren’t, willing to put on these outsourced systems of government surveillance, and who has standing to challenge these requirements.

The case concerned Section 41.49 of the Los Angeles Municipal Code, “Hotel Registers and Room Rentals”, which requires that (1) any guest arriving without a reservation or paying for a room in cash must present a government issued identification document, (2) information about each guest including the details of the guest’s ID document and the license number of any vehicle parked on hotel premises by the guest must be recorded by the hotel in a written log book, card file, or electronic database, and (3) this guest register must be kept on the hotel premises, at or near the guest reception or check-in area, and “made available to any officer of the Los Angeles Police Department for inspection” at any time.

It’s only that last detail of the law — the requirement that the guest register be “made available” to any police officer without warrant, without the consent of the hotelier or the guest, without any requirement for suspicion or probable cause, and without any possibility of judicial review of police demands for the guest register — that was overturned by the 9th Circuit. The ID requirement in the L.A. ordinance was not challenged in this case.

The en banc majority in Patel v. City of Los Angeles starts by taking for granted that information provided by a guest in order to satisfy government conditions on the rental of a place to sleep is being provided “voluntarily”:

To be sure, the guests lack any privacy interest of their own in the hotel’s records. United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000); see United States v. Miller, 425 U.S. 435, 440 (1976). But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.

Whatever validity this doctrine might have with respect to information provided “voluntarily” to a third party, a disclosure is scarcely “voluntary” when, as in this case, (a) it is required by law as a condition of availing oneself of the services of a place of public accommodation, and (b) the alternative to disclosure is sleeping in the street or on the sidewalk. (Under another provision of the same LA Municipal Code, it’s illegal to sit, lie, or sleep in the street or on the sidewalk In the City of Angels. But as part of a settlement following an earlier, now voided, ruling by the 9th Circuit, the LAPD has agreed not to enforce that provision of the law.)

People with no other place to sleep have a “choice” of whether to rent a room or walk the streets all night the same way people required to show government-issued ID in order to fly from Hawaii to the US mainland have a “choice” of whether to fly or walk on water.

But the 9th Circuit was able to find the law in violation of the 4th Amendment, despite this fictive “voluntariness”, because the lawsuit was brought by hotel owners, not hotel guests. It’s the hoteliers’ rights that the court found were violated by (involuntary) warrantless, suspicionless, extrajudicial police inspection of their business records about their guests.

We salute Naranjibhai Patel, Ramilaben Patel, and the Los Angeles Lodging Association for using their legal standing to challenge this law and insist that the police go to a judge and come back with a warrant.

Most travel companies are only too happy to collaborate with government agencies in spying on their customers. They’d prefer that governments pay them for their work as informers and data collectors, of course. But even without cash compensation, they benefit from being able to blame the government for intrusive demands for credentials and personal information, while getting a free ride to monetize this government-coerced informational windfall for their own marketing and other purposes.

We can find no record of any other case in which a travel company has challenged government demands for information about travelers. Nor have we found any travel company that makes public what government requests or demands it has received for data about its customers, how it has responded to those requests or demands, or how much information it has handed over. (Google publishes a “transparency report” for its Web services, but makes no mention of the exchanges of data between Google’s ITA Software airline reservations and PNR-hosting component and government agencies in the US or abroad.)

Police have plenty of ways to make life hard for the proprietors of mom-and-pop motels on skid row. If the plaintiffs in Patel v. City of L.A. could say “No” to big-city police demands for information about their customers and guests, and prevail in court, so could major hotel chains and other large travel companies. Travelers should demand that they do so.

Jan 27 2014

Government finally admits plaintiff was on the “no-fly” list

A month and half after the conclusion of the first trial in any case challenging the US government’s “no-fly” list, and more than a week after Judge William Alsup’s decision that the rights of the plaintiff in the case, Dr. Rahinah Ibrahim, were violated, the government has finally admitted explicitly and publicly that:

Dr. Ibrahim was, in fact, on the US government’s “no-fly” list, which was shared with, among other entities, the Canadian and Australian governments. (There’s no mention of sharing of these lists with the UK or other European Union countries, perhaps because vetting against watchlists and blacklists of passengers on flights to, from, and within the EU is carried out by DHS employees posted in the EU, rather than by European governments.)
After being removed from the “no-fly” blacklist or blocklist, Dr. Ibrahim was placed on a government watchlist (included in the same database with the no-fly list) with a “handling code… allowing law enforcement officers to ask the individual probing but non-alerting questions, and search[] the individual’s passport.” While the “no-fly” list has often been incorrectly and euphemistically described as a “watchlist”, the treatment of Dr. Ibrahim, and these detailed admissions in particular, makes clear that the government itself distinguishes blacklisting/blocking (travel control) and watchlisting (travel surveillance) as different, although related, functions.
The watchlist entry for Dr. Ibrahim included “entry criteria codes” signifying “Corroborated identification as a group member by an informant or individual of unknown reliability” and “Frequents a documented group’s area, associates with known group members, and/or affects group dress, hand signals, tattoos, or symbols.” There’s still no public indication of the basis for these (false) conclusions. The FBI agent who “nominated” Dr. Ibrahim for inclusion on the “no-fly” list did so “mistakenly”. From the latest redacted filings and prior statements in open court, it appears that the agent thought he was filling out the form to nominate Dr. Ibrahim for mere watchlisting rather than inclusion on the “no-fly” blacklist/blocklist.
In closed court, “Agent Kelley testified that until his deposition on September 12, 2013 he had never had a watchlist nomination rejected and that in answer to the question ‘you had also never heard of anyone else having a watchlist nomination rejected?’ he answered ‘no.'” This belies the government’s claims that the basis for each such “nomination” is carefully reviewed before a name is added to a blacklist or watchlist.

Of course, Dr. Ibrahim already knew she was on the “no-fly” list, since but for her listing on this US government blacklist she wouldn’t have been denied boarding on her flight and arrested at SFO in 2005. But until now, both before and throughout the trial, the government refused to confirm this fact publicly, and claimed that it could not do so (or tell Dr. Ibrahim her current status on any blacklist or watchlist) without jeopardizing national security.

These admissions came in snippets between redacted passages in government briefs belatedly filed today in response to Judge Alsup’s latest reiteration of his standing orders for filing of public summaries or redacted versions of all pleadings and declarations filed “under seal” in the case.

The briefs filed today by the government defendants were due this past Friday, but were filed today with a declaration that the government’s lawyers (despite being located in the same building as the clerk’s office, where they could have filed them over the counter) were unable to file them on Friday due to technical problems with the court’s electronic document handling system:

A public redacted version of one more document previously filed only under seal, a declaration from the Director of the CBP National Targeting Center concerning what happened to Dr. Ibrahim’s daughter, a US citizen who was denied boarding when she tried to fly to the US to attend and testify at her mother’s trial, is due to be filed by the government tomorrow. There’s still been no public explanation of what, if any, valid basis US Customs and Border Protection (CBP) could have had for telling airlines that a US citizen might not be admitted to the US.

Jan 24 2014

Defendants in “no-fly” case ignore judge’s deadline to make their arguments public

Last week Judge William Alsup ordered the parties to Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s no-fly list to file redacted public versions, by noon today, of the “sealed” briefs and replies they submitted following the trial in the case last month. These briefs included each side’s proposals of what factual and legal findings they believed the judge should make.

Shortly before noon today, Dr. Ibrahim’s lawyers filed redacted (but nonetheless interesting) versions of their sealed post-trial briefs:

More than an hour after the deadline, nothing had been filed by the defendants, and no explanation had been given. (See the comments below and follow-up articles for updates.) It remains to be seen if the defendants are merely late, if they are ignoring Judge Alsup’s order, or if they are on their way to the 9th Circuit Court of Appeals to seek an emergency writ or stay pending appeal.

Additional information about why Dr. Ibrahim’s daughter Ms. Raihan binti Mustafa Kamal, a US-born citizen, was prevented from flying to the US to testify at her mother’s trial, is due to be made public next Tuesaday, Jan. 28th. Judge Alsup has ordered the government defendants to file a redacted public version of the sworn declaration submitted by Ms. Maureen Dugan, the director of the CBP National Targeting Center and the sole witness at the post-trial hearing concerning what happened to Ms. Mustafa Kamal.

Papers, Please!

The Identity Project