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The Identity Project

Category Archives: Freedom To Travel

Jun 08 2012

Should the IRS control international travel by US citizens?

This week the US House of Representatives has been debating whether to accept a proposal, introduced by Sen. Barbara Boxer (D-CA) and already approved by the Senate, which would give the IRS extra-judicial administrative authority and mandate to prevent a US passport being issued or renewed, and to have any existing US passport revoked, for anyone alleged by the IRS to owe more than US$50,000 in “delinquent” taxes.

Since 2009, Federal law and regulations have forbidden US citizens from entering or leaving the US, even by land, without a passport. So if the proposal now in Congress is approved by the House and signed by the President, the mere allegation by the IRS of a delinquent tax debt will effectively constitute confinement of the accused within the borders of the US (if they are in the US at the time), or indefinite banishment from the US (if they are abroad), by IRS administrative fiat.

The State Department would have standardless administrative “discretion” to issue a passport to an accused tax delinquent “in emergency circumstances or for humanitarian reasons”, but would never be required to do so. And the State Department could use the offer of such a discretionary waiver, or the threat not to grant such a waiver, as a carrot and/or stick to induce the accused citizen to, under duress, waive their right to remain silent or other rights, pay a disputed tax bill (as a de facto “exit tax” of the sort the US used to protest when it was imposed by a Communist government on its citizens), “cooperate” with US spying, or do whatever else the government wanted.

What’s missing from this proposal, as from the rest of the State Department’s passport rules and procedures, is any recognition that travel is a right, not a privilege that can be granted or denied at the whim of the government. Under the First Amendment and international law, US citizens have a near-absolute right to leave the US (or any other country) and to return to the US.

The current proposal to ban international travel to or from the US by US citizens accused of “tax delinquency” is included in S. 1813, a generally-unrelated highway funding bill. S. 1813, including the provisions to deny passports to alleged tax delinquents, was approved by the Senate in March.

The parallel House bill, H.R. 4348, doesn’t include any provisions for passport denial, and differs in many other respects from the Senate bill. President Obama has told Congress that for other reasons he would probably veto the House bill, but hasn’t yet made any official statement on the Senate bill or the passport denial proposal.

This week the House has been debating instructions to its members of a conference committee charged with negotiating a compromise between the House and Senate bills.

Tell your Representatives to reject the passport denial and revocation provisions of the Senate bill, or any compromise bill that includes them. Alleged “tax delinquency” is not sufficient or permissible grounds for anyone to be confined within the borders of the US, or banished from their country.

May 10 2012

Is the problem with the TSA the leader? Or the concept?

Rep. Paul Broun, MD, a Georgia Republican member of the House Committee on Homeland Security, has called for the resignation of the Administrator of  the TSA, John Pistole.

We agree with Rep. Broun that “The time has come for serious action to be taken” with respect to the TSA, that “drastic change” is required, and that, “The time for that change is now.” And we agree that those at the top as well as the bottom of the bureaucratic hierarchy need to be held accountable.

Most of all, we’re pleased to see Rep. Broun put civil liberties first in his letter to TSA Administrator Pistole requesting his immediate resignation:

Americans can no longer tolerate the flagrant violations of their civil rights which are occurring at airports nationwide in the name of “security.”

Pistole’s resignation, now or later, would accomplish nothing unless Senators ask more serious questions (we have a few suggestions) before confirming a new TSA Administrator.

As long as the TSA is allowed to wield power over the people (and our exercise of our right to travel)) through secret, extra-judicial administrative fiat, airports and other transportation facilities will remain the domestic counterpart of Guantanamo: law-free zones in which even the most friendly-faced and “respectful” leadership can do little to change the essential illegality of the agency’s operations.

More is required, we think, than another turn of the revolving door on the office of the TSA Administrator.  If the TSA is retained, it needs to be brought within the rule of law.  We have some specific suggestions for interim reform of the TSA’s policies and practices, not just its personalities. But fundamentally, we agree with participants in the White House’s own public poll, whose first choice of requested actions for the President was to abolish the TSA entirely.

May 08 2012

US retaliates against tortured “no-fly” exile with trumped-up criminal charges

For two years, FBI agents tried to recruit Yonas Fikre — a US citizen who came to the US with his family as refugees when he was 12 years old — to infiltrate and inform on members of the congregation of a mosque he attended in Portland, Oregon, as part of an FBI entrapment “sting”.

When Fikre declined to become an FBI snitch or “agent provacateur”, the FBI had him put on the US “no-fly” list while he was overseas, and told him he would only be taken off the list so he could return to the US if he “cooperated” with their investigation of his fellow worshipers. Fikre again said, “No.”

Then the US government tightened the screws on Fikre, more or less literally, by having its “friends” in the dictatorial monarchist government of the United Arab Emirates arrest Fikre, who was in the UAE on business, torture him, and again tell him that the only escape from his predicament was to cooperate with the FBI.  Eeven under torture, Fikre stkill said, “No.”

Eventually Fikre’s torturers in the UAE gave up, released him from prison, and kicked him out of their country.  We can only assume that they decided he was innocent, or at least knew nothing incriminating about anyone to reveal, and wasn’t going to talk to the FBI no matter what they did.

Unable to return to the US because he was still on the “no-fly” list, Fikre then went to Sweden, where he has relatives (refugees who went to Sweden when his immediate family went to the US).

Throughout all this, Fikre was never charged with any crime in any country, as we presume would have happened if the FBI had evidence of any crime to use as leverage in their recruiting of Fikre as an informer.

Now Fikre has been indicted in the US, less than three weeks after he went public with his story of exile by, and torture at the behest of, the government of his own country, and announced that he has sought asylum in Sweden in order to remain there, since he can’t come back to the US.

“Frankly, I think it’s retaliation and retribution,”  one of Fikre’s US attorneys is quoted as saying. Another of his lawyers calls the charges retaliation and “specious”. From everything we’ve seen about the case, we agree.

Fikre is charged with the pettiest of purely procedural violations of Federal law. Allegedly, when he transferred money from the US to Dubai to fund a business he was starting there, he had the money sent in smaller increments rather than all at once, in order to keep each of the amounts below the $10,000 threshold above which he would had to report them to the US government.

For having “structured” his legal personal business so as to avoid having to inform on himself to the Feds who he knew already wanted him to inform on his associates, Fikre has now been indicted for the Federal crime of “structuring”.

Fikre’s brother and another alleged associate, but not Fikre, were also indicted for alleged violations of tax laws.

Fikre’s business was legal. Fikre paid his taxes. The money transfers were themselves legal, and each of them was small enough that Fikre wasn’t required to report them individually. If Fikre had filed an aggregate report on the total of the transfers, everything he did would have been legal.

Fikre had good reasons to fear additional interrogation or worse retaliation if he told the Feds any more about his affairs. If he was “structuring” his finances to avoid self-surveillance requirements, he was also structuring them to try (unsuccessfully, it turns out) to avoid exposing himself to further persecution by the US government. Should this be a crime?

It’s hard to avoid the conclusion that Fikre’s real “crime” is exposing US torture and exile of its own citizens, and embarrassing the US by seeking asylum abroad. Not that he had much choice about seeking asylum somewhere, since he couldn’t come back to the US, or live and work anywhere else indefinitely as a tourist or temporary visitor.

It remains to be seen whether the US will seek to have Fikre arrested and extradited from Sweden, or will merely hold the threat of criminal prosecution over him for life (the clock stops on the statute of limitations while you are out of the country) if he ever manages to return to the US or visits another country sufficiently “friendly” to the US government to arrest him.

Shame on  the US, and best wishes to Mr. Fikre for success in his application for asylum in Sweden.

Apr 27 2012

US citizen exiled to torture by “no-fly” list seeks asylum in Sweden

A US citizen who was imprisoned and tortured for three months by the US government’s “allies” in Abu Dhabi and Dubai, and who can’t come home even after being released from the UAE because the US government has put him on its “no-fly” list and forbidden any airline from transporting him to the US, has requested political asylum in Sweden.

Yonas Fikre came to the US with his family in 1991, when he was 12 years old, as a refugee from Eritrea, and later was naturalized as a US citizen.

In April 2010, while Fikre was abroad on business and visiting family, FBI agents contacted him to try to recruit him as an informer and agent provacateur in an FBI entrapment “sting” directed at members of a mosque Fikri had attended in Portland, Oregon. Fikre declined to become a snitch and infiltrator for the Feds, but the FBI followed up with implicitly threatening email messages that, “[T]he choice is yours to make. The time to help yourself is now.”

In June 2011, he was arrested in Abu Dhabi by plainclothes UAE police, who held him for three months in a secret prison in Dubai while torturing him, interrogating him about members of the Portland mosque, and telling him that he had been put on the US no-fly list and that he would never be released from their custody and torture or allowed to return to the US unless he “cooperated” with the FBI.

Eventually, he was released from detention and allowed to leave the UAE in September 2011 , but told the US still wouldn’t let him go home.  He’s been living in Sweden, where he has other relatives, since then, and has now applied for political asylum on the grounds that he has been effectively exiled from the US by being placed on the US no-fly list (in violation of his human rights under Article 12 of the ICCPR, to which the US and Sweden are both parties) and that his detention and torture in the UAE, presumably at the behest of the US government and/or its agents, gives him reasonable grounds to fear further mistreatment even if he were allowed to return to the US.

This isn’t the first time that the US government has used the no-fly list against US citizens as an as an instrument of exile. Here are just a few of the incidents, among others, that have previously made the news:

It isn’t just US citizens who have been denied their right to return home by the US no-fly list. As recently noted by the 9th Circuit Court of Appeals, the US no-fly list is used by US-flag airlines on flights elsewhere in the world, and is shared with at least 22 foreign governments. Some of the foreigners prevented from returning home, or from traveling to countries other than the US, as  a result of US no-fly orders or “no-board recommendations” from US “advisors” stationed at foreign airports, include:

  • Dawood Hepplewhite: UK citizen stranded in Canada and denied boarding on a flight home to the UK in February 2011.
  • Mohammed Khan: Canadian citizen stranded in Germany and denied boarding on a flight home to Canada in March 2011.
  • Moazzam Begg: UK citizen and former Guantanamo prisoner never charged with any crime in the US, UK, or any other country; denied boarding on a flight to Canada for public speaking engagements in May 2011.
Apr 26 2012

No-fly case goes forward against Feds, while SFO pays through the nose for false arrest of traveler

We’ve noted previously that, as the DHS increasingly relies on state and local law enforcement officers and private contractors to carry out its extrajudicial “no-fly”, search, and surveillance orders, those individuals and their employers face a growing risk of liability for their actions against travelers.

Case in point: Ibrahim v. DHS et al.

We’ve reported previously on some of the earlier stages in this case, originally filed in 2005 by a Malaysian architect, then a doctoral candidate at Stanford University and today (having received her Ph.D. from Stanford in absentia) a professor and Dean of the Faculty of Design and Architecture at UPM in Malaysia.  When she tried to check in at San Francisco International Airport (SFO) for a flight back to Malaysia to give a presentation about her Stanford research, she was arrested by SFO airport police (a branch of the San Francisco police force) on the direction of a private contractor who answered the phone at the TSA’s Transportation Security Operations Center (since renamed — we are not making this up — the “Freedom Center”).  She was told she was on the “no-fly” list, but was allowed to fly home to Malaysia the next day, after which her US student visa was revoked.

Through her lawyers in the US, Ibrahim sued the various Federal agencies involved in no-fly decisions; their individual officials, employees, and contractors; and the San Francisco city and county, airport, police department, and individual police officers, for violations of her 1st and 5th Amendment rights.

The case has a had a tortured procedural history. After seven years, there has been no discovery, fact-finding, or rulings on any of the substantive issues. The case has, however, survived a series of District Court rulings and two appeals to the 9th Circuit Court of Appeals, first in 2008 on which, if any, Federal court (district or circuit, in San Francisco or DC) had jurisdiction to hear the case, and then in February 2012 on whether Dr. Ibrahim had standing, as a non-US citizen now residing (involuntarily) outside the US, to bring her Constitutional claims in US courts.

The latest ruling by the 9th Circuit in Ibrahim v. DHS, which allows the case against the government and its agents to go forward, is significant for its rejection of several of the Federal government’s key arguments against judicial review of no-fly decisions:

Read More →

Apr 25 2012

European Parliament approves PNR agreement with the US. What’s next?

[MEPs picket outside the plenary chamber to ask their colleagues to say “No” to the PNR agreement with the US. (Photo by greensefa, some rights reserved under Creative Commons license, CC BY 2.0)”]

Last week — despite the demonstration shown above (more photos here) by Members of the European Parliament as their colleagues entered the plenary chamber for the vote — the European Parliament acquiesced, reluctantly, to an agreement with the US Department of Homeland Security to allow airlines that do business in the EU to give the DHS access to PNR (Passenger Name Record) data contained in their customers’ reservations for flights to or from the USA. (See our FAQ: Transfers of PNR Data from the European Union to the USA.)

The vote is a setback for civil liberties and the the fundamental right to freedom of movement, in both the US and Europe.

But the vote in the European Parliament is neither the definitive authorization for travel surveillance and control, nor the full grant of retroactive immunity for travel companies that have been violating EU data protection rules, that the DHS and its European allies had hoped for.

Many MEPs voted for the agreement only reluctantly, in the belief (mistaken, we believe), that it was “better than nothing” and represented an attempt to bring the illegal US surveillance of European travelers under some semblance of legal control.

Whatever MEPs intended, the vote in Strasbourg will not put an end to challenges to government access to airline reservations and other travel records, whether in European courts, European legislatures, or — most importantly — through public defiance, noncooperation, and other protests and direct action.

By its own explicit terms, and because it is not a treaty and is not enforceable in US courts, the “executive agreement” on access to PNR data provides no protection for travelers’ rights.

The intent of the US government in negotiating and lobbying for approval of the agreement was not to protect travelers or prevent terrorism, but to provide legal immunity for airlines and other travel companies — both US and European — that have been violating EU laws by transferring PNR data from the EU to countries like the US.  The DHS made this explicit in testimony to Congress in October 2011:

To protect U.S. industry partners from unreasonable lawsuits, as well as to reassure our allies, DHS has entered into these negotiations.

But because of the nature of the PNR data ecosystem and the pathways by which the DHS (and other government agencies and third parties outside the EU) can obtain access to PNR data, the agreement does not provide travel companies with the full immunity they had sought.

Most of the the routine practices of airlines and travel companies in handling PNR data collected in the EU remain in violation of EU data protection law and subject to enforcement action by EU data protection authorities and private lawsuits by travelers against airlines, travel agencies, tour operators, and CRS companies in European courts.

Why is that?

Read More →

Mar 01 2012

Google is now in the PNR hosting business

Today Google and Cape Air announced that Cape Air has migrated its reservations and Passenger Name Records (PNRs) to a new computerized reservation system (CRS) provided by Google’s ITA Software division.

ITA Software was working on a CRS even before it was acquired by Google last year, but had appeared to lack a launch customer to fund the project after its original partner, Air Canada, backed out. In his first public statement last November after the Google acquisition was completed, Google Vice President and former ITA Software CEO Jeremy Wertheimer anticipated today’s announcement and said that with Google’s new backing, his division was “burning the midnight oil” to complete the project.

Cape Air, Google’s CRS launch customer, is a very small US airline that mainly flies 9-seat piston-engined propeller planes to small resort islands. Most of what might look like “international” destinations on their route map are actually US colonies. But Cape Air does serve some British colonies in the Caribbean, including Anguilla and Tortola. All reservations for those flights, as well as any reservations for Cape Air’s domestic US and other flights made through travel agencies, tour operators, or “interline” airline partners in the European Union, are subject to EU data protection laws.

So as of today Google should have in place an airline reservation system, including PNR hosting functionality, which fully complies with EU laws including in particular UK data protection law and the EU Code of Conduct for Computerized Reservation Systems.

We’re doubtful that Google (or Cape Air) have complied with these requirements of EU law. Cape Air’s privacy policy says, “CapeAir does not fly routes within Europe, so this Privacy Policy is not adapted to European laws.” It appears to be true that Cape Air doesn’t fly within Europe, but it does operate flights to and from UK territories that are legally part of the EU. Cape Air also says, “By agreeing to Cape Air’s Privacy Policy, you consent to Cape Air applying its Privacy Policy in place of data protections under your country’s law.” It’s not clear whether such a waiver of rights is valid. The “Privacy Policy” link  on ITAsoftware.com goes directly to Google’s new global privacy policy, which appears to say that Google may merge information from all Google services, presumably including Google’s new PNR-hosting service.

At the same time, in accordance with the Advance Passenger Information System (APIS) and PNR regulations of US Customs and Border Protection (CBP, a division of the DHS), that also means that Google has connected its system to CBP’s Automated Targeting System (ATS).  Whether Google has given CBP logins to “pull” data whenever CBP likes (as the other CRSs have done), or whether Google “pushes” PNR data to CBP, remains unknown until some Cape Air passenger requests their PNR data under EU law.

In accordance with the US Secure Flight rules, the Google CRS for Cape Air must also have a bi-directional connection to the US Transportation Security Administration to send passenger data to the TSA and receive permission-to-board (“cleared”) fly/no-fly messages in response.

This is, so far as we can tell, an unprecedented level of direct connection between Google’s databases and any government agency.  Has Google complied with EU law? Probably not, but we can’t tell. We invite Google to allow independent verification of how it handles PNR data, and whether its CRS system and its connections to the US government comply with EU rules.

[It’s also important to note that the privacy and data protection practices of CRSs, including Google’s “ITA Software” division, are outside the jurisdiction of the Federal Trade Commission and subject to policing only by the do-nothing Department of Transportation.]

There are also interesting questions about what profiling and data mining capabilities are built into Google’s CRS system. “Legacy” CRSs store PNRs in flat files in which PNRs for different trips by the same traveler can be difficult to link. But a report on the new Google CRS in the online trade journal Tnooz says it “enables … call center agents ‘to see customers’ history,’ including past trips and upcoming flights, ‘right in front of them’.” Greater designed-in profiling and data mining capabilities are selling points of Google’s CRS compared to its “legacy” competitors.

EU oversight and enforcement bodies should have demanded answers as well. Last May the European Parliament approved a resolution calling on the European Commission to carry out, “an analysis of … PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU.” In November, shortly after Google’s announcment that they were moving forward with their CRS project, a Member of the European Parliament submitted written follow-up questions to the Commission as to whether the EC has conducted such an analysis, as well as whether the EC has “considered the technical or policy implications of potential new CRS providers such as Google, which may use different technology platforms from those of legacy CRS vendors?”

As we’ve noted, the “response” to these questions by Commission Cecilia Malmström said nothing about Google or other new CRS providers, contradicted the statements that have been made by European airlines, and largely ignored the issues raised by the European Parliament.

Cape Air is a small first step into the CRS industry by Google, but it won’t be the last.  Everyone concerned with how PNR data is stored and processed, including data protection authorities in countries that (unlike the US) have such entities, should carefully scrutinize and demand satisfactory, verifiable answers as to what this means about Google’s relationship to US government agencies and the need for oversight and enforcement of privacy data protection rules applicable to all CRS companies.

Feb 06 2012

Yet another US citizen denied their right of return

In the latest variation on what has become a depressingly-familiar theme, US citizen Jamal Tarhuni was denied boarding on a flight home to the USA last month, apparently because while he was abroad the US government put him on the list of those people it has secretly ordered airlines not to transport.

Mr. Tarhuni had been working in Libya for a nonprofit relief agency.  He is now trapped in Tunisia, separated from his home and family in the USA, as he discusses in this Skype video interview.

My Tarhuni’s de facto banishment from the USA is especially disturbing in light of reports that before being naturalized as a US citizen he was granted asylum in the USA in the ’70s. While conditions may  have changed, a grant of asylum means that Mr. Tarhuni has already established, to the satisfaction of US authorities, that he had a well-founded fear of persecution if he were forced to return to the country of his original citizenship. That makes it, we think, especially critical that the US allow him to return home before his permission to remain in Tunisia expires and he risks being deported to some other country of non-refuge.

It’s one more case for the UN Human Rights Committee to ask questions about when it conducts its next review of US (non)compliance with the International Covenant on Civil and Political Rights: “Everyone has the right to leave any country, including his own, and to return to his country.”

[Update: Jamal Tarhuni is not alone. MSNBC reports that another US citizen, Mustafa Elogbi, is also trapped in Libya after being denied passage on a connecting flight from London to the US, and returned to Libya, where his flights has originated (not the country of his citizenship, the USA) after being detained and interrogated in London.  “Elogbi and Tarhuni have booked new tickets and are scheduled to board a flight back to the United States on Feb. 13, arriving in Portland on Feb. 14. Their Portland attorney Tom Nelson is traveling to the region so he can accompany them on the flight. The two men do not know whether they are included on the U.S. government’s secret no-fly list. As per government security policy, the FBI will not confirm or deny it. … Thus they do not know if they will be prevented from boarding in Tunis, or in Paris or Amsterdam, where they change planes.”]

Feb 06 2012

State Dept. finalizes passport fee increases, continues to ignore human rights complaints

On February 2, 2012, the State Department published a final rule in the Federal Register setting fees for issuance and renewal of U.S. passports and related consular services.

Contrary to some press reports, this rule didn’t actually increase the current fees. It merely “finalizes” the fee increases that have already been in effect for the last 18 months since the publication of an interim final rule (don’t you love that bureaucratic doublespeak?) in June, 2010.

What’s noteworthy about the “final rule” is that while it purports to include an updated analysis of the public comments on the fee increases, it continues to ignore our complaints that these fees, and the process by which they were adopted, violate both U.S. treaty obligations related to freedom of movement as a human right, and Federal law that requires an assessment of their economic impact on freelancers and other self-employed individuals.

We filed our complaint in the State Department’s designated docket, but also submitted it directly to the Secretary of State with a request that it be forwarded to the State Department’s designated “single point of contact” responsible for insuring that complaints of human rights treaty violations are responded to.

Our complaint of human rights treaty violations isn’t mentioned in the State Department’s analyses of public comments, and we’ve received no acknowledge or response from the Secretary’s office or anyone else at the Department.  Our FOIA request and appeal for records of who the Secretary of State has designated as responsible for responding to such complaints, and what (if anything) they have done with ours, has been pending without even a partial response since July 2011.

Jan 27 2012

Retroactive Privacy Act exemptions could cost a US citizen his life

In his ruling this week in Hasbrouck v. CBP, Judge Seeborg of the US. District Court for the Northern District of California suggested that US citizens have no “rights” that would be prejudiced by applying newly-issued Privacy Act exemption rules to previously-made requests for government records.

But a parallel case currently before the U.S. District Court in DC shows how retroactive application of Privacy Act exemptions can be a potentially life-or-death issue.

Sharif Mobley is a native-born U.S. citizen who was living in Yemen with his wife (also a US citizen) and their two infant children when he was shot and seized by agents of the Yemeni government in January 2010, and taken to a Yemeni hospital in police custody.  He’s been in a Yemeni prison ever since, and needs US government records to defend himself against capital charges.

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