Papers, Please!

The Identity Project

Category Archives: Freedom To Travel

Nov 29 2012

No place at Department of “Justice” for complaints of human rights violations

It’s been almost fourteen years since President Clinton, in an Executive Order that remains in force, directed each Cabinet-level executive department to designate a single contact officer responsible for insuring that all complaints to that department of violations of human rights treaties are investigated and responded to.

That Presidential order, however, has never been carried out, and remains widely ignored.

In the latest example, the Department of Justice has responded (belatedly, as usual) to our request under the Freedom of Information Act, saying that they can find no record that any Attorney General has ever designated anyone responsible for carrying out this Executive Order or responding to complaints of human rights violations; no policies or instructions for dealing with such complaints; and no records of such complaints, what issues they have raised, or what has been done with them.

Given that the Department of Justice might have been expected to be responsible for investigating various sorts of human rights violations that would also constitute crimes, this failure by the DOJ to do anything about human rights complaints has serious implications for the entirety of the US government.

We got the same answer earlier from the Department of Transportation, which is supposed to be responsible for ensuring that passenger common carriers act as, well, common carriers, and respect the “public right of freedom of transit” guaranteed by federal law as well as international treaties.

Only the DHS has told us they actually designated someone responsible for responding to human rights complaints. But it took the DHS almost five years to actually respond to our complaints, and when they did, they improperly suggested that US law could override international treaties.

We’re still trying to get an answer from the Department of State about its handling of human rights complaints. And we’ll be bringing these issues to the attention of the UN Human Rights Committee next year, when it reviews US compliance with the International Covenant on Civil and Political Rights.

Nov 20 2012

TSA spreads FUD on “Opt Out and Film” week

This week is national Opt Out and Film Week. Across the country, travelers will be documenting the TSA’s practices of groping the genitals of anyone who wants to exercise their right to travel without “voluntarily” submitting to an x-ray or RF virtual strip search.

The TSA even acknowledges Opt Out and Film Week in its official blog, where Blogger Bob sez:

We’re also aware of the Opt Out and Film week, where some are planning on opting out of the body scanner and then filming their experience. TSA respects passengers rights to exercise freedom of speech as well as the rights of fellow travelers trying to get to their destination safely and without unnecessary delay. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances may.

That looks to us like an attempt to sow Fear, Uncertainty, and Doubt (FUD) on clear-cut Constitutional rights.

While the TSA has a history of improperly calling local cops on photographers (for which we are currently suing both the TSA staff and the police who acted on their bogus complaints), it’s not true that  “local laws, state statutes, or local ordinances may” restrict the exercise of First Amendment rights.

As we say in our cheat sheet, What you need to know about your rights at the airport:

You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you.

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an  unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian  government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data.  Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing  whatever its oracle decrees.  In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it.  Just remember, as you study his presentation, that:

  1. “Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
  2. Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government.  Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.
Nov 06 2012

DHS Scrooge says U.S. citizen can’t come home for the holidays to see his ailing mother

In the latest episode in the increasingly bizarre but all too real saga of standardless secret administrative no-fly orders from the DHS to airlines, prohibiting the transportation back to their home country of US citizens,  Oklahoma native Saadiq Long is being prevented from returning home to the US to spend the holiday season with his terminally ill mother.

Long is a US citizen and a veteran of the US Air Force, never charged with any crime in the US or any other country, who has been living and working as an English teacher in Qatar for the last several years.  He’s also a convert to Islam, which shouldn’t be relevant but probably is.

When he learned of his mother’s illness back home in Oklahoma, he made reservations and bought tickets from KLM for flights from Qatar to the US for what might be a last visit with his mother.

Less than 24 hours before his scheduled departure from Qatar in May, KLM told Mr. Long that the airline (and all others serving the US) had been forbidden from allowing him to board any flight to the US.

Mr. Long has been trying ever since to find out why the government of his country has forbidden all airlines from transporting him, or to find a way to get those orders rescinded. But to date, the DHS has maintained its position that it will neither confirm nor deny whether it has issued any no-fly orders with respect to any specific person, much less the basis (if any) for such orders.

KLM explicitly informed Mr. Long that it had received a no-fly order from the DHS. So in theory, KLM would be required by Dutch data protection law to disclose that order to Mr. Long on request. That wouldn’t tell Mr. Long why he had been banned form returning to his country (the DHS probably didn’t share the reasons for its order with the airline), but would prevent the DHS from claiming in court that whether Mr. Long has been prohibited form flying is a state secret.

Given KLM’s poor track record when individuals have requested KLM’s records of its communications with governments, and the Dutch data protection authority’s poor track record of enforcing the law, it’s hard to predict whether KLM would comply with a request from Mr. Long for all orders or communications pertaining to him between KLM and the US government.

Mr. Long is being assisted by the Council on American-Islamic Relations (CAIR), which has led the struggle for judicial review of no-fly orders. CAIR staff attorney Gadeir Abbas, the leading advocate for US citizens exiled by no-fly orders, told Glenn Greenwald that, “Every few weeks I hear of another Muslim citizen who cannot return to the country of which he is a citizen.”

[Update: Mr. Long was again denied boarding by KLM in Qatar on November 8, 2012.]

Oct 22 2012

US Department of Transportation ignores human rights

As we’ve noted many times before, the right to travel is spelled out more explicitly and in more detail in international human rights treaties, particularly Article 12 of the International Covenant on Civil and Political Rights, than in the U.S. Constitution (although it’s also implicit in several of the rights guaranteed by the First Amendment).

As we’ve also noted, each Cabinet-level head of an executive department was ordered by the President in 1998 (through an Executive Order that remains in force) to designate a “single contact officer” responsible for ensuring that the department carries out its functions (including rulemaking and other regulatory activities) in such a manner as to fully respect and comply with human rights treaties including the ICCPR, and to insure that complaints of human rights violations by the Department are responded to and reviewed.

It should be obvious that the Department of Transportation (DOT) has a key role in protecting the right to freedom of movement as guaranteed by Article 12 of the ICCPR.  And the Secretary of Transportation is expressly required by the Airline Deregulation Act of 1978 (49 USC 40101) to consider “the public right of freedom of transit through the navigable airspace” in issuing any DOT regulations.

Having found no indication that the DOT has ever designated a point of contact for human rights complaints, responded to any such complaints, or considered the right to freedom of travel in any rulemaking, we made a request under the Freedom Of Information Act for any records of DOT activities related to the implementation of human rights, consideration of human rights in rulemaking, or handling of human rights complaints.

We wouldn’t have been surprised if our FOIA request to the DOT had been ignored.  The DHS took more than five years to respond (improperly) to our complaints of violations of the right to travel, and after a year and a half the Department of State still hasn’t responded to our complaints of human rights treaty violations or our FOIA request for information about them.

To its credit, the Department of Transportation responded promptly to our FOIA request.

To DOT’s discredit, its response was that more than 30 years after being ordered by statute, and 20 years after being ordered by the President, to consider the right to freedom of travel in all its rulemaking activities, the DOT has no record of ever having done anything to carry out these explicit statutory and Presidential directives and obligations:

  • DOT has no record of ever having designated a point of contact for human rights complaints or implementation of human rights treaty obligations.
  • DOT has no record of any of the complaints of human rights violations it has received, what issues they raised, which provisions of which treaties they alleged had been violated, what if anything was done with them, or whether they were responded to.
  • DOT has never adopted any policies or procedures or issued any guidance to DOT components for the consideration of the right to travel, or any other human rights, in DOT rulemaking.
  • DOT has no record of any discussion of whether to carry out any of these responsibilities.
Oct 18 2012

US citizen banished by no-fly order: Is it because he stood up for his rights?

In another depressingly familiar episode in an ongoing saga of de facto banishment of US citizens from their own country, New York City native Samir Suljovic has been trapped in immigration limbo in Frankfurt since October 1st, following a visit to some of his relatives in Montenegro, because of a no-fly order from the DHS forbidding any airline to allow him to board a flight home to the USA.

What’s noteworthy in Mr. Suljovic’s case — other than the persistence of the DHS in these flagrant violations of the right of US citizens to return to their home country — is that he appears to be the same person who got some publicity two years ago when he sued a New York hotel for refusing to hire him unless he shaved off his beard, which he argued was an expression of his religious belief as a Muslim.

Based on what was said in the press, Mr. Suljovic would appear to have had a good case against the hotel. There’s plenty of case law about discrimination against people with religiously-required beards, mainly involving Sikhs and orthodox Jews, and his arguments were far from novel or extreme.

But in other cases, notably that of Julia Shearson, there are indications that DHS designations of “suspected terrorists” have been based on press reports of civil rights activism by Muslims.

The secrecy of the administrative “no-fly” decision-making process leaves us to wonder whether Mr. Suljovic, like Ms. Shearson, was singled out by the DHS for restriction of his right to travel because he stood up, publicly, for his rights as a Muslim.

If no-fly injunctions were issued, as they should be, by judges, following adversary fact-finding proceedings in which the burden of proof is on those who advocate restrictions on the right to travel, we wouldn’t have to wonder what (if any) evidence they were based on, or whether they were being used for invidious discrimination against particular religions or political activists.

Oct 17 2012

Cuba makes it easier to leave the country, while the US makes it harder

We’re pleased that Cuba has promulgated rules, effective January 13, 2013, which will eliminate the requirement for most (but not all) would-be emigrants to obtain the government’s permission to leave the country, and to make the issuance of a passport a matter of right for most Cuban citizens.

At the same time, the US has ordered airline common carriers not to allow any would-be passenger to board any international flight departing from the US without individualized prior permission from the government. Any attempt to leave the US, even by land, without a passport, has been criminalized, without any recognition of passport issuance as a right. The State Department, in its claimed “discretion” to deny passports to US citizens at whim, has increasingly been demanding that passport applicants answer impossibly detailed and irrelevant interrogatories to establish their identity and citizenship. At the same time, the State Department has tried to suppress knowledge of its own regulations which entitle passport applicants to establish their identity by the testimony of a witness rather than by paper credentials.

And the State Department continues to ignore our complaints that these practices violate US obligations under the same provisions of the same human rights treaties that the US has invoked against Cuba.

So our challenge to those in Congress who have criticized Cuba’s restrictions on freedom of movement is this:

By January 13, 2013, when these new rules take effect in Cuba, will you have introduced and enacted legislation to require the State Department to treat passport issuance as a matter of right for US citizens, and to repeal the prohibitions on departure from the US without government permission?

We encourage our readers and supporters to let your representatives know that you expect the US to do at least as much as Cuba’s government to effectuate the right to freedom of movement.

Oct 03 2012

Government Surveillance of Travelers

For those attending today’s discussion of Government Survelliance of Travellers and the DHS “Automated Targeting System” (ATS) at the Brennan Center for Justice at NYU School of Law, or those who can’t make it but are interested in the topic, here are the slides from the presentation by Edward Hasbrouck of the Identity Project (PapersPlease.org), and links to additional references:

Today’s event is open to the public, so please join us if you are in New York and free at mid-day.

Sep 25 2012

“Flying While Handicapped”

Last week the TSA’s Aviation Security Advisory Committee (ASAC) held its second meeting since being reconstituted almost a year ago.

As in the past, the latest reincarnation of ASAC remains largely window-dressing, lacking authority, with no civil liberties or privacy experts or consumer advocates among its members, and with a track record of unconcern for transparency in its own operations.

But since the real TSA decision-makers remain walled off from public input or questioning in their “secure” fortress-offices, comments at ASAC meetings sometimes serve as the only available way for members of the public to let the TSA know what we think.

Wendy Thomson has a report on the latest ASAC meeting, the most interesting portion of which was undoubtedly her own testimony about flying while handicapped:

I have an artificial leg. I have joint replacements. I have metal plates. I am cyborg. I used to fly a lot – in my original comments you can tally the 21 airports I have used, many more than once, between 2001 and October 2010. Those dozens upon dozens of flights introduced me to being stripped down to my pantyhose while screeners were asking themselves whether they would require me to get totally naked, all while we were in a makeshift lean-to in Concourse A. I have had hands down my pants. I have had my breasts checked after the MMW screener called out “check her thigh.” I spent 2-1/2 hours in Dallas once insisting that TSA agents could check only what alarmed. Dressed in a similar fashion as I am today, I finally turned and left after the TSA insisted they needed to check my breasts because my right knee-to-ankle set off the metal detector.

I have been so groped and molested in so many ways that I am now properly traumatized. I was actually going to take my leg off at this point and set it up here on the dais, but I am hoping that such an extreme level of theatrics will not be required to garner your attention. I actually did that for several years: before I had these metal plates and joints I figured out that if I merely took this leg off and placed it on the conveyor belt I was not harassed. Leg on: breast and butt fondle, hand swabs, the whole nine yards. Leg off: none of the above. So now I’m thinking that I would need to take this leg off and hop on over to the AIT machine, stand there like a total criminal as the machine tried to figure out what to do when there is someone who doesn’t have two feet to spread their legs.

Spread their legs? Think about that phrase for a minute….

Read Ms. Thomson’s full statement here.

Sep 24 2012

State Dept. admits passport form was illegal, but still wants it approved

The new U.S. passport application forms are back, worse than ever.

Ignoring massive public opposition, and despite having recently admitted that it is already using the “proposed” forms illegally without approval, the State Department is trying again to get approval for a pair of impossible-to-complete new passport application forms that would, in effect, allow the State Department to deny you a passport simply by choosing to send you either or both of the new “long forms”.

Early last year, the State Department proposed a new “Biographical Questionnaire” for passport applicants, which would have required anyone selected to receive the new long-form DS-5513 to answer bizarre and intrusive personal trivia questions about everything from whether you were circumcised (and if so, with what accompanying religious rituals) to the dates of all of your mother’s pre- and post-natal medical appointments, your parents’ addresses one year before you were born, every address at which you have ever resided, and your lifetime employment history including the names and phone numbers of each of your supervisors at every job you have ever held.

Most people would be unable to complete the proposed new form no matter how much time and money they invested in research. Requiring someone to complete Form DS-5513 would amount to de facto denial of their application for a passport — which, as we told the State Department, appeared to be the point of the form.

The State Department’s notice of the proposal in the Federal Register didn’t include the form itself. After we published the proposed Form DS-5513, the story went viral and more than 3,000 public comments objecting to the proposal were filed with the State Department in the final 24 hours of the comment period.

After that fiasco, the State Department went dark for several months, and claimed that they would “revise” the form. But they didn’t give up, and apparently they didn’t listen to (or didn’t care) what they had been told by members of the public in our comments.

The State Department is now seeking approval for a (slightly) revised Form DS-5513 as well as a new Form DS-5520, also for passport applicants, containing many of the same questions.

The State Department no longer wants you to tell the passport examiner about the circumstances of your circumcision, but does still want to know the dates and locations of all of your mother’s pre- and post-natal medical appointments, how long she was hospitalized for your birth, and a complete list of everyone who was in the room when you were born. The revised forms no longer ask for all the addresses at which you have lived, but only for those addresses you are least likely to know: all the places you lived from birth until age 18.

And so on, as you can see for yourself on the proposed Form DS-5513 and Form DS-5520.

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