Freedom To Travel – Page 35

Jan 18 2013

US cites ICCPR in its lobbying against reform of EU privacy law

The US government has been lobbying hard in Brussels and Strasbourg against proposals to strengthen European Union (EU) rules protecting personal information, including information “shared” with the US and other governments for law enforcement, surveillance, profiling, and other purposes.

The European Digital Rights initiative (EDRi), to which we are an accredited observer, has posted a leaked lobbying document being distributed to EU decision-makers by the US mission to the EU.

As discussed in EDRi’s excellent analysis, the US position paper explicitly references the International Covenant on Civil and Political Rights as part of the common foundation of US and EU privacy principles. That curious, since (1) the US has previously avoided or ignored all attempts (such as those by the European Parliament in its 2010 resolution on airline Passenger Name Records) to include the ICCPR in the terms of reference for US-EU negotiations, and (2) the US is in flagrant violation of the provisions of the ICCPR related to, among other issues, privacy rights and freedom of movement.

It’s especially odd for the US to bring the ICCPR into the EU debate just now, as the UN Human Rights Committee is beginning its periodic, treaty-mandated review of US compliance with the ICCPR.

We hope the EU will take up the US invitation to bring the ICCPR into the debate, and will conduct its own inquiry into US compliance with its treaty obligations as well as paying close attention to the UNHRC review.

Jan 09 2013

Judge refuses to look at secret “no-fly” evidence, reaffirms that travel is a right

What’s been most noteworthy in DHS legal arguments in “no-fly” and other related cases isn’t that the government has tried to argue in defense of intrusive and repressive surveillance and control of travel.

Instead, the consistent strategy of the DHS has been to argue (1) that it doesn’t have to give any arguments or evidence in support of these practices, because they are exempt from judicial review, and (2) that if it does have to give the courts any evidence or arguments, it can do so in secret, so that opposing parties and their lawyers are unable to know, or respond to, the government’s secret arguments and secret evidence.

Fortunately, some judges seem to be running out of patience with these claims that the executive branch of government is above the law.

We’re particularly encouraged by the latest order issued December 20, 2012 in the case of Ibrahim v. DHS, which continues to appear likely to result in the first review of a no-fly order, on its merits, by any court.

Since 2005, when she was refused boarding and detained by police when she tried to board a flight at San Francisco International Airport, Rahinah Ibrahim has been trying to find out who put her on the “no-fly” list and why, get off the “no-fly” lost, and obtain damages from the government agencies, contractors, and individuals responsible for her false arrest and the interference with her right to travel.

The city and county of San Francisco (responsible for the airport police) eventually paid Dr. Ibrahim $225,000 to settle her claims against them. But the federal government defendants have continued to try to get the case dismissed before any discovery, fact finding, or trial on the merits of Dr. Ibrahim’s claims.

The 9th Circuit Court of Appeals has twice rejected the government’s appeals of preliminary rulings allowing the case to go forward and allowing Dr. Ibrahim’s lawyers to proceed with discovery. But even after the federal defendants’ latest appeal was rejected, the government again moved the District Court to stay any discovery and dismiss the complaint.

In support of their latest motion to dismiss, the government went beyond filing evidence and legal arguments with the court “under seal” for in camera review by the judge (but not Dr. Ibrahim or her lawyers).

Instead, the government called the judge’s chambers to advise that a courier was on his way from Washington to the courthouse in San Francisco with some secret documents, which he proposed to show the judge, alone in chambers, and then take back to Washington so that there would be no record with the court, even in a “sealed” file, that would enable the court of appeals to review the basis for the judge’s decision.

Judge William Alsup of the U.S. District Court for the Northern District of California told the courier not to darken his door, and refused to look at any of the secret evidence, even in camera. Then he delivered a smackdown to the government in his ruling dismissing its motions.

Identity Project tells UN Human Rights Committee that US violates the right to travel

It’s that time, as it is every five years, for the U.N. Human Rights Committee (UNHRC) to review the status in the U.S of the rights protected by the International Covenant on Civil and Political Rights (ICCPR) — including the right to travel.

The Identity Project is taking part in this process by informing the UNHRC about the ways the US has violated the right to travel, and making recommendations for issues related to the right to travel which the UNHRC should raise with the US during its review.

On December 28, 2012, as part of a joint submission to the UNHRC by the U.S. Human Rights Network, the Identity Project submitted our recommendations for issues related to freedom of movement that we think the UNHRC should take up with the U.S., questions that should be asked by the UNHRC, and recommendations that the UNHRC should make to the US in its concluding observations:

TSA updates its “notice” of Secure Flight records

The TSA published a revised System of Records Notice in the Federal Register on November 19th, updating its disclosures of what information about our “travel histories” it collects, retains, and uses through its Secure Flight program for airline passenger surveillance and control.

The new notice is both better and worse than it might appear at first glance. The new “Secure Flight” SORN describes some disturbing TSA practices that were not explicitly disclosed in the previous “Secure Flight” SORN published in 2008.

In particular, the new SORN discloses that if you are turned down or predetermined to be ineligible for the TSA’s “Pre-Check” or other “Registered Traveler” (a/k/a “Possibly Slightly Less Mistrusted Traveler”) programs, you can be placed on a new watchlist, as a result of which logs of your air travel will be retained by the TSA for 99 years. That’s especially problematic because applicants for the Pre-Check program aren’t told that being turned down could leave them worse off than if they had never applied, and subject to lifetime TSA air travel monitoring and itinerary logging.

Bad as this is, however, it isn’t really a change in what data TSA claims the right to collect, or how long it claims the right to retain and use it. These practices were already covered under “catch-all” clauses of the prior SORN, which are retained in the revised SORN, and that actually purport to authorize a much wider range of even worse practices.

Specifically, the “Secure Flight” SORN already disclosed that “Secure Flight” records might contain:

Records obtained from the TSC [Terrorist Screening Center] of known or suspected terrorists in the TSDB [Terrorist Screening Database] and records regarding individuals identified on classified and unclassified governmental watch lists…

There’s no definition or limitation on the sources or purposes of these additional “watch lists”. But it’s clear from the description quoted above that these are watch lists other than those of suspected terrorists: lists of people who are to be watched, and whose air travel itineraries are to be logged for life, for (secret, unrestricted) reasons other than that they are suspected of terrorism. Read More →

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:

“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.
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.

Papers, Please!

The Identity Project