Freedom To Travel – Page 46

Aug 10 2010

DHS designates point of contact for human rights complaints

Apparently in response to repeated inquiries from the Identity Project about what has happened to our most recent complaint to the DHS and TSA that their procedures violate the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights (ICCPR), the TSA has officially informed us that “the Department has designated the Officer for Civil Rights and Civil Liberties as the point of contact for Executive Order 13107” on implementation of human rights treaties.

Executive Order 13107 requires that, “The head of each agency shall designate a single contact officer who will be responsible for overall coordination of the implementation of this order” including “responding to … complaints about violations of human rights obligations that fall within its areas of responsibility or, if the matter does not fall within its areas of responsibility, referring it to the appropriate agency for response.”

Despite that clear requirement, none of our previous complaints of violations of the ICCPR have been acknowledged or answered. So far as we can determine, the July 22, 2010 letter we received from the TSA is the first public indication by any Federal agency, ever, of the designation of the point of contact for human rights complaints required of each agency by Executive Order 13107.

Since the TSA has, at the same time, said that they will take no action to investigate complaints unless the complaint is received while the violation is ongoing — which in most cases is impossible — we have forwarded our latest complaint and our previous unanswered complaints of violations of the ICCPR by the DHS and DHS component agencies to the DHS Officer for Civil Rights and Civil Liberties for Departmental action. Our letter to the OCRCL: with attachments (2 MB), without attachments

[Immediate response the same day from Margo Schlanger, DHS Officer for Civil Rights and Civil Liberties: “I have received your email and, as requested, we will examine your complaints. ” But that was followed not by an acknowledgement letter but by a “request for clarification” from the OCRCL. We responded but only in February 2011 did we finally receive confirmation that our complaints had docketed. Further correspondence with the DHS Office for Civil Rights and Civil Liberties (CRCL): Letter from CRCL to IDP, Jan. 18, 2011; email from IDP to CRCL, Jan. 31, 2011; email from CRCL to IDP, Feb. 2, 2011; email from IDP to CRCL, Feb. 2, 2011; email from CRCL to IDP, April 1, 2011]

Aug 02 2010

TSA says all their Standard Operating Procedures are secret

The TSA is still stonewalling our FOIA requests for their Standard Operating Procedures (SOPs), which we presume are among those that have been (illegally) sidetracked and delayed for review by DHS and other administration political commissars.

But after the Associated Press pried loose internal DHS e-mail messages confirming the delays in processing “politically sensitive” FOIA requests and the DHS Inpector General started asking questions, the TSA has responded to a request from Phil Mocek (some months older than ours) for the TSA Screening Management SOP.

Not, of course, that the TSA has actually disclosed any more information about its standard operating procedures. The TSA’s response to Mr. Mocek’s request consists of a blanket claim that the entirety of the Screening Management SOP is exempt from disclosure because it would “benefit those attempting to violate the law” (by exercising their rights?) and “be detrimental to the security of transportation” if disclosed. Despite having released excerpts from an earlier version of the same document in response to one of our previous FOIA requests, and despite an unredacted copy of the entire document having been posted on a public Federal government website, the TSA now claims that no portion of the current version can be released.

Mr. Mocek’s request had been pending for more than a year before he received even this categorical denisal. In response to his periodic requests for information concerning the status of his request, he was told by the same TSA FOIA office staff who are handling our requests that “processing” of his request was completed in January 2010, but that the response (i.e. informing Mr. Mocek that his request had been denied in its entirety) was delayed until July for “management review”. According to one e-mail message from the TSA to Mr. Mocek in February, “Your FOIA has been processed and is currently being reviewed by TSA management before a response can be sent to you.” This seems to indicate that Mr. Moceks’s request — and, we presume, our still-pending request for the same document — was subjected to the process of political review and illegal delay described in the documents released to the AP.

[We eventually received a response identical to that sent to Mr. Mocek, denying our request in its entirety. We have appealed that denial. To confirm whether our requests were among those improperly delayed or subjected to political scrutiny, we’ve filed new FOIA requests for the documents released to the AP and for all records of the processing of our previous FOIA requests and appeals.]

Jul 30 2010

Washington Post: “Secure Flight may be making your privacy less secure”

We’re quoted today in the Washington Post in a story by Christopher Elliott about how airlines are able to use personal information — collected under government duress for the TSA’s Secure Flight passenger surveillance and control scheme — for the airlines’ own marketing and other purposes.

“Could it be that the information we give airlines doesn’t belong to anyone or, worse, isn’t regulated by anyone?” Elliott asks.

A good question — and “privacy” may be the least of the problems with Secure Flight, as discussed in our testimony (quoted from, in part, in the Post story) at the TSA’s only public hearing on Secure Flight, our more detailed written comments submitted to the TSA, and our FAQ about Secure Flight.

Jul 27 2010

US but not UK gives travel “permission” for Iroquois lacrosse team

The good news: In one of the first tests of US rules purporting to forbid US citizens from crossing US borders without first obtaining US passports (issued at the government’s apparently standardless discretion), the US Department of State issued “one-time waivers” authorizing the “Iroquois Nationals” lacrosse team to leave the US (and presumably to return, although that’s not entirely clear from news reports) without carrying US passports.

The dispute arose because some Iroquois, like other Native Americans, have for many years used passports issued by their own tribes or nations. Whether those passports were “passports” within the meaning of US law was largely irrelevant as long as passports were merely a convenience, not a requirement, for international travel. Lacrosse was an Iroquois invention (for an introduction to the sport, see John McPhee’s essay last year in the New Yorker, “Spin Right and Shoot Left”, included in his latest anthology, “Silk Parachute”), and travel on Iroquois passports was and is especially significant for the Iroquois Nationals team, who compete on behalf of their own nation in international lacrosse tournaments.

While it was framed as a dispute over the sovereignty of the iroquois Confederations and/or the validity of Iroquois-issued passports, the US appears to have seen it purely as a question of whether native Americans who are also US citizens may leave or return to the US without US passports.

At first, the US had threatened to prevent the team from boarding flights to the UK for the international lacrosse championships. But without admitting either the “validity” of Iroquois passports (i.e. not whether they are genuine but whether they satisfy US requirement for exit or entry permits), or the invalidity of the passport requirements for US citizens, the US effectively backed down by granting the team “waivers” and, more importantly, saying that they would not interfere with their departure from the US.

This continues the pattern we have sen to date: We have yet to hear of a case in which the US government has actually prevented a US citizen from leaving or returning to the country on the basis of their not having, or declining to carry or display, a US passport. In every incident that has been brought to our attention, the US government has eventually indicated its willingness to stand aside from interference with departure from or return to the country without passports — although travel has sometimes been frustrated in other ways, such as refusal to give airlines permission to transport them. Presumably, the US government realizes that preventing its own citizens form leaving or returning to the country would be such a flagrant violation of international human rights law as to lead to diplomatic complications, even if it would be difficult to challenge on those grounds in US courts.

The bad news: After finally obtaining “permission” to leave the US without US passports, the Iroquois Nationals lacrosse team was denied visas by the UK — not on the grounds that their passports were invalid, or weren’t issued by a sovereign entity, but on the grounds that their passports don’t contain ICAO-standard “security” features required by the UK for visitors from the US. It is, again, unclear from news reports what absent “features” were at issue, but they might have included machine-readability (OCR or RFID) or other aspects of formatting or data content.

Jul 23 2010

“The government shouldn’t decide who can fly”

In one of the first statements in the mainstream media to (a) recognize that the essential feature of the TSA’s Secure Flight program is the requirement for domestic US air travelers to receive government permisison to fly and (b) oppose that requirement, The Chicago Tribune has published an op-ed column by Steve Chapman (also appearing in Reason) arguing that, “The government shouldn’t decide who can fly”:

Get rid of the no-fly list entirely. For that matter, get rid of the requirement that passengers provide government-approved identification just to go from one place to another.

Americans have a constitutionally protected right, recognized by the U.S. Supreme Court, to travel freely. They also have the right not to be subject to unreasonable searches and other government intrusions. But in the blind pursuit of safety, we have swallowed restrictions on travel and infringements on privacy we would never tolerate elsewhere….

If the federal government began requiring every citizen to provide identification for each trip in a car or ride on a bus, there would be a mass uprising. Somehow, though, Americans have come to see commercial air travel as a privilege to be dispensed by the government.

Jul 09 2010

Australian government expanding air travel surveillance

Closely following the bad example (controversial both in the US and Australia) of the USA, the government of Australia is moving toward increasing detailed and integrated ID-based surveillance and control of air travelers.

As of the first of this month, under the so-called Enhanced Passenger Assessment and Clearance (EPAC) systems, Australian authorities have real-time access to all passenger name record (PNR) data for all passengers on all international flights to Australia. And an additional A$24.9 million is being spent by the government over the next two years, in addition to uncounted amounts that airlines and other travel companies will have to spend, to expand the amounts of data collected by airlines and passed on to government agencies as well as the automated profiling (“risk assessment”) conducted on the basis of this data.

The changes and the heightened surveillance and control of travelers to Australia come at the same time that the European Union is simultaneously renegotiating agreements with Australia and the USA for government access to PNR data related to flights to and from the EU.

The Sydney Morning Herald quotes the president of the Australian Council for Civil Liberties, Terry O’Gorman, as saying that the scheme “increases the risk of a person wrongly being put on a no-fly list.”

Jul 06 2010

Lawsuit seeks suspension of TSA virtual strip-searches

Last year the Identity Project was one of more than 30 organizations that filed a joint petition with the DHS requesting a formal rulemaking on use of virtual strip-search machines or “body scanners”, then being referred to by DHS and TSA as “whole body imaging” machines and since re-euphemized as “advanced imaging technology”, as though the name itself could make them inherently more “advanced”.

In May of this year, after the DHS ignored our petition and moved forward with deployment of virtual strip-search machines without a formal rulemaking, we joined most of the same groups in filing a renewed petition for a formal rulemaking (including an opportunity for public comment) and for rescinsion of the rules requring submission to a virtual strip-search as a condition of passage through TSA checkpoints and travel by air common carrier. We also filed a series of FOIA requests and appeals, which the TSA has to date ignored, for the TSA Standard Operating Procedures, screening-related directives to airlines, and other documents embodying the secret rules that include the virtual strip-search requirements. We’ve also speculated about what legal recourse travelers denied passage on the basis of refusal to submit to a virtual strip-search might have, particularly in jurisdictions abroad where it would be easier than it is in the USA to raise issues of international human rights law.

This past Friday, July 2nd, the Electronic Privacy Information Center (EPIC) filed a federal lawsuit seeking to have the Court of Appeals for the District of Columbia review the TSA and DHS failure to conduct a formal rulemaking before deploying virtual strip-search machines and issue an emergency stay of the TSA/DHS decision to deploy and require them as a condition of passage through checkpoints and air travel.

The Identity Project was a party to the original petitions for rulemaking, and while we aren’t a party to the EPIC lawsuit, we fully support it.

As EPIC notes in its latest filings, even after September 11th Federal courts have upheld “administrative (warrantless, suspicionless) searches in airports only to the extent that they are limited to what is “necessary” — meaning that they are actually effective and are the least restrictive available means — to detect weapons and explosives. Even beyond the specific issue of virtual strip-searches, this lawsuit is likely to be significant in helping define the bounds of TSA authority to conduct ever more intrusive searches as a condition of common-carrier travel.

The petition filed in May by EPIC, the Identity project, and others stated that, “The undersigned file this petition pursuant to 5 U.S.C. § 553(e), which requires that ‘[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.'” Notwithstanding this explicit statement, the DHS and TSA responded with the bizarre claim that, for unspecified reasons, it did not constitute such a petition. Unfortunately, that’s characteristic of the behavior of the DHS and TSA, which have repeatedly refused to acknowledge or docket our formal complaints and then falsely claimed, including to the US public and to foreign governments that they have received no such complaints.

Jun 30 2010

New lawsuit challenges no-fly orders

In a lawsuit filed today by the ACLU in Federal court in Oregon, Latif, et al. v. Holder, et al., ten U.S. citizens who have been refused permission to board flights to, from, or within the US, or have boarded flights to the U.S. only to have them turn back en route, are suing the Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center for denying their rights by ordering airlines not to transport them.

At least one of the plaintiffs even flew to Mexico, to avoid overflying the US, with the hope of returning to the US by land. Instead, he was arrested by Mexican police (presumably at the behest of the U.S. government, and deported not to the country of his citizenship, the USA, but to Colombia, where he has only a temporary visa and can’t remain. That should have prompted diplomatic protest by the US to Mexico for the improper deportation of a US citizen to a third country. But presumably Mexico acted at the behest of the US, and there has been no sign of US objection.

So far as we know, this is only the second lawsuit to directly challenge the legality of no-fly orders, and the first on behalf of US citizens. The previous case was brought by Rahinah Ibrahim, a Malaysian graduate student at Stanford University, after she was detained by San Francisco Airport police and prevented from flying home to her country in 2005. While her complaint remains pending against the individual police in U.S. District court for the Northern District of California, the cases against all of the Federal agencies and officials have been dismissed.

The latest case will test whether the Obama Administration still agrees with former Secretary of Homeland Security Chertoff that no-fly decisions should not be subject to judicial review. [Update: From the latest statement by the Director of the National Counterterrorism Center, it appears that they may.] And it will be closely watched in Europe as well, where the Obama Administration has assured the European Union that adequate means of redress do exist in U.S. courts for individuals — including some of the plaintiffs in the latest case — denied permission to travel from the EU to the U.S. on the basis of passenger data transmitted to the DHS.

Jun 30 2010

Will Canadian travelers be subject to more US tracking and control?

After a series of investigative reports in the Canwest newspapers in March of this year called attention to the lack of any legal basis under Canadian law for US government access to information about flights to and from Canada that overfly the US (notably including Canada-Cuba flights), the Canadian Conservative minority government has responded by introducing a bill earlier this month that would, if approved by the Canadian Parliament, override Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) to allow the US or any foreign government to find out who is on flights to and from Canada overflying those countries, even if they don’t land in the US.

Canadian law was amended after September 11, 2001, to override PIPEDA and allow US government access to airline reservation data, but only for flights that actually carry passengers to or from the USA. BIll C-42 would extend that to overflights of any country that wants to vet (or simply log) who’s on flights through its airspace.

The sponsors of the latest proposal, Bill C-42, expect it to be controversial, and it has already been criticized by opposition MPs. Opposition parties have united to pass other legislation supported by the minority government related to collaboration with US wars (such as a measure supporting political asylum in Canada for people resisting service in the US military in wars in Iraq and Afghanistan that violate Canadian and international law), and some observers predict that could happen with Bill C-42 as well.

We certainly hope that Canadians learn from the mistakes of the USA, stand up for their sovereignty, and say “no” to US surveillance of overflights, just as people in the USA would say “no” if the Cuban government demanded to know who is on the dozens of flights every day that fly over Cuba en route between Miami and South America.

Jun 29 2010

State Dept. brushes off critics, raises passport fees

Yesterday the Department of State published an interim final rule putting its previously proposed increases in passport and visa fees into effect as of July 13, 2010.

The State Department admitted that more than 98% of the comments received from individual members of the public were opposed to the fees, as were comments from the travel industry and from the Identity Project and other consumer and civil liberties organizations. But the State Department brushed off those objections (failing even to acknowledge our complaint that the rulemaking violated US international treaty obligations on freedom of movement, or our complaint and those of travel companies that it violated the Administrative Procedure Act) and finalized the proposed fee increases unchanged. No consideration was given to their economic impact on self-employed or freelance business travelers, despite the requirement for such an assessment under the Regulatory Flexibility Act.

Unless the interim final rule is challenged in court (perhaps by travel companies, on APA grounds), fees for new or renewal passports and “passport cards” will all increase for applications received by the Passport Office on or after July 13, 2010. The most extreme increase will be for adding blank visa pages to a current passport, currently a free service for which a new fee of $82 will be imposed. If your passport might fill up before it expires, apply for new pages now.

Papers, Please!

The Identity Project