Feb 04 2010

“No scan, no fly.” What can a would-be traveler do?

With some British airports introducing “No scan, No fly” policies, we’ve been seeing renewed questions about what you can do if a government agency or agent, airline, or private third party won’t let you into or through an airport or onto a flight on a common carrier.

A would-be traveler holding a valid ticket and complying with the conditions of the airline’s published tariff, but denied passage by the airline, could bring a civil lawsuit for breach of contract, and possibly seek enforcement action against the airline for failing to comply with its obligation (under the terms of its tariff, operating license, applicable national laws, and the treaties pursuant to which it is authorized to operate international flights) to operate as a “common carrier” and transport all would-be passengers complying with its tariff.

Government action to deny passage to such a person for refusal to “consent’ to a virtual strip-search would violate Article 12 of the International Covenant on Civil and Political Rights, which as interpreted (pursuant to the treaty itself) by the U.N. Human Rights Committee, allows only such administrative rules that burden free movement as can be shown to be “necessary” for national security (i.e. actually effective, and more effective than any less restrictive alternative). The fact that a rule is intended to protect national security is, quite properly and explicitly, not sufficient, since most such rules restrictive of human rights (old South African passbook laws, etc.) have been justified on grounds of national security and counter-terrorism.

The UK and the USA have both signed and ratified the ICCPR, the US with explicit reservations that it is not “self effectuating”. That make it difficult to raise in a US court unless and until Congress passes a law creating a Federal civil cause of action, with a right of private action, against violators of the ICCPR. (This should be high on the agenda of any US administration desirous of showing that the US holds itself accountable to international human rights law). We don’t know whether there is any history of cases brought under the ICCPR in UK courts. If any is familiar with UK case law or precedent for invocation of the ICCPR, please tell us about it in a comment.

In addition, Optional Protocol #1 to the ICCPR creates a private right for any individual to bring a complaint to the U.N. Human Rights Committee against any state that is a party to the Optional Protocol.

Unfortunately, neither the USA nor the UK are among those that has ratified Optional Protocol #1 to the ICCPR. Thirty-five nations have ratified that protocol, however, and anyone denied passage by agencies or agents or state action of any of those governments (including inter alia Mexico, Australia, New Zealand, and most European Union members other than the UK) could bring such a complaint to the U.N. That remedy would seem to be available for denial of passage on the basis of any rule that doesn’t meet the test of necessity, including not just mandatory submission to body scanners but also extra-judicial no-fly orders or inability to present government-issued credentials.

[Update: the U.K. Department of Transport Interim Code of Practice for the Acceptable Use of Advanced Imaging Technology (Body Scanners) in an Aviation Security Environment contains an explicit, “No Scan, No Fly” provision:  “All passengers selected for screening by a body scanner must be scanned. If a passenger declines to be scanned that passenger must be refused access to the Restricted Zone, with the result that the passenger will not be able to fly. Information should be adequate, clear and provided ideally before ticket purchase.”  Since some people have already purchased tickets for travel as much as a year in the future, that would require at least a year’s delay, after notice begins to be provided by every one of the hundreds of thousands of travel agencies around the world.  More importantly, the new “Code of Practice for Body Scanners” appears to violate U.K. obligations under the ICCPR as well as potentially those respecting “common carriers” under international aviation treaties.]

Feb 01 2010

TSA budget: 1000 more strip-search machines

The Obama Administration announced their fiscal year 2010 budget proposal today. Under the administration’s proposal for DHS appropriations, the TSA’s annual budget would increase by more than a billion dollars from 2009 to 2011, with most of that going toward the purchase of “up to 1,000” new virtual strip-search (“Whole Body Imaging” or, in the latest euphemistic language of the budget, “Advanced Imaging Technology”) machines.

Up to a point, it was possible to argue that the TSA was still being operated on auto-pilot by holdovers from the previous administration — as indeed it still is.  But the President has had plenty of time in the year since his inauguration to clean house, to put someone new in charge, or simply to give the legacy administrators new marching orders (for which we gave his transition team an explicit itemized blueprint to bring the TSA within the rule of law).

The President’s budget makes clear his deliberate choice to identify his Administration with, and to perpetuate and expand, the TSA’s culture of disregard for civil liberties, human rights, or judicial accountability.  It also makes clear the need for Americans who oppose that march toward the abyss to let their members of Congress and the Senate know how they feel about being inspected by virtual voyeurs who themselves are protected from public view in a private back room, and then being groped, if they are wearing a sanitary napkin or a padded bra or anything else underneath their clothes, every time they want to exercise their right to move about the country.

Feb 01 2010

Albuquerque police still pressing charges against traveler who tried to exercise his rights

The trial originally scheduled for this Friday of Phil Mocek, who was arrested by local police at a TSA checkpoint in the Albuquerque airport in November, has been postponed at least until early May.  But that only happened after he retained retained private defense counsel, at considerable personal expense. You can help out by making a donation to his defense fund.

Mocek has made no comment, on the advice of his attorney.  But from news reports, it appears that he was arrested in retaliation for trying to exercise his right to travel without showing tangible evidence of his identity, and or for recording and/or photographing the TSA’s response to his assertion of his rights.  Since everything he did was entirely within his rights, and the TSA agents have no authority to make arrests, they followed their de facto standard operating procedures by calling in the local police and getting them to trump up an array of false and/or unconstitutional charges under local and state law: criminal trespass (Albuquerque Code of Ordinances § 12-2-3), resisting, obstructing or refusing to obey a lawful order of an officer (§ 12-2-19), concealing identity with intent to obstruct, intimidate, hinder or interrupt (§ 12-2-16), and disorderly conduct (NMSA § 30-2-1). [Note: It appears that direct links to sections of the Albuquerque Code of Ordinances will work only after you click on the Albuquerque Code of Ordinances link and then on either “frames” or “no frames”, to set the required cookies in your Web browser.] The “trespass” charge seems particularly problematic in light of the fact that the airport is publicly owned and that Mocek was attempting to exercise his right to travel by common carrier, a right not only guaranteed by Federal law but protected by explicit Federal statutory preemption against any local or state interference.

Nothing we’ve learned has suggested that any of these charges are supported by the facts, or are other than retaliation.  So we’re disturbed that the prosecutor hasn’t dropped the charges yet, even though a review of the evidence and the case should have made clear that these charges were unfounded.  We hope the district attorney will come to their senses and drop the charges.

[For the status of the case, go to the county court website, complete the “captcha”, and enter “2573709” in the “criminal case number” field.  Documents obtained by Mr. Mocek in response to his requests under New Mexico’s public records laws, including police reports and audio recordings, have been posted here.  For further updates, see the ongoing discussion in the travel “security” forum at Flyertalk.com.]

Jan 13 2010

TSA lies again about what the strip-search machines see

Already this week the TSA was caught in a lie about what it likes to call whole body imaging (virtual strip search) machines, when the Electronic Privacy Information Center (EPIC) obtained documents showing that, despite TSA claims that “this state-of-the-art technology cannot store, print, transmit or save the image,” the TSA actually requires all of these capabilities — image storage, printing, and transmission — as part of the contract specifications for the body scanners.

But the TSA can’t seem to keep their nose from growing: the post in their official propaganda blog responding to EPIC’s analysis of TSA documents contains even more lies about what they see when they look under your clothes with these machines.

According to the TSA blog, “Below, you will see accurate examples of what our officers see while using advanced imaging technology. Anything else you see is inaccurate.”

Above, we’ve linked directly to the images on the TSA website, exactly as sized and posted by them.

In fact, it’s the images posted by the TSA that are inaccurate and misleading. The actual images seen by the people in the back room (they watch you through your clothes, but you can’t watch them) are: (1) full-screen, not thumbnail-sized like those the TSA posted in their blog, (2) higher-resolution than those on the TSA blog, and (3) capable of being zoomed even larger, on the actual TSA displays, using the magnifying-glass tool in the lower right corner of the TSA-provided thumbnails.

Accurate images are visible in the video below (although even if you click through to the full-screen version the video doesn’t have as high resolution as the displays used by the TSA, especially when they zoom in on areas of the body that attract their interest):

Note also that the video clearly demonstrates that the TSA policy for pat-down searches to be performed by a person of the same gender won’t be applied to the virtual strip-searchers.

The TSA website says that, “Multiple signs informing passengers about the technology, including sample images, are displayed in plain sight at the security checkpoints, in front of the advanced imaging units.” When the signs are displayed, however, the “sample images” — like the ones above from the TSA website — are only a small fraction of the size and resolution of those the scanner operator sees.

EPIC has now filed another FOIA lawsuit against the TSA for failing to disclose what the images look like. Notably, the EPIC complaint filed in court today confirms that our experience with the ongoing TSA FOIA black hole wasn’t an isolated incident. EPIC’s request for expedited FOIA processing was made on July 2, 2009 — more than six months ago — and referred to the TSA by the DHS on July 16, 2009. On July 31, 2009, EPIC filed an administrative appeal of the constructive denial of its request. An expedited request should have been acted on within 10 days, and an appeal within twenty days. But to date, according to the complaint, the TSA has made no response whatsoever to either the request or the appeal. In our experience, this is typical of the TSA’S complete contempt for the FOIA law.

We aren’t reassured by the TSA’s further claim in the same blog post that, “These machines are not networked, so they cannot be hacked.” Apparently they’ve never heard of an inside job, or anyone hacking a computer from the keyboard. (Security hint to the TSA: The keyboard is the easy way, compared to having to carry out an attack over a network.) That just reconfirms that the TSA’s threat model is grossly deficient and that they aren’t really even trying to rein in the temptations (can you say, “naked celebrity pix”?) that the virtual strip-searchers inevitably will face.

Finally, the TSA is still saying that “Use of advanced imaging technology is optional to all passengers.” What they don’t say is that your other “option” will be to submit to a full manual pat-down, regardless of whether you would have set off the metal detector. So if the alternative to a virtual strip-search is a non-virtual strip search, can someone explain to us how that’s a “choice” that should make us more willing to submit to either option?

If we have to be exposed to the TSA, maybe we should just expose ourselves when we get to the airport.

P.S. We forgot to mention the TSA’s claim that no 8-year-old is on the no-fly list, debunked today in the New York Times. Maybe 8-year-old Mikey Hicks isn’t on a watch list, but his name is, and the effect is the same: He can’t fly without getting the 3rd degree. What did that entail? We can’t show you. The TSA demands the right to look (and feel) under your clothes, but they wouldn’t let Mikey’s mother take pictures of how he was frisked.

Jan 12 2010

“Fleshmob” against virtual strip-search machines at Berlin airport

Don’t like being stripped naked by “whole body imaging” machines or “body scanners”, and then groped to determine whether what they see under your underwear is a padded bra, a mastectomy prosthesis, a menstrual pad, an adult diaper, … or plastic explosives?  You could sign this petition …  and/or you could organize your own “fleshmob” like this one (video) at Tegel Airport in Berlin. (More links including videos of similar fleshmobs at other airports here.)

We invite you to compare what’s exposed by the Pirate Party fleshmob video with what’s exposed to the TSA agents in the little room hidden behind the strip-search machines in the video below:

Jan 08 2010

Lessons from the case of the man who set his underpants on fire

We’ve been having a hard time keeping up with events over the last few weeks. Every time we think the keystone cops from the Department of Homeland Security can’t come up with anything dumber to do, they prove us wrong. At this point we’re not sure who is most deserving of derision: (1) the would-be terrorist who tried but failed to explode his underpants, and succeeded only in burning his balls, (2) the goons the TSA sent to intimidate bloggers who tried to tell travelers what to expect when they got to the airport, and find out who had “leaked” the TSA’s secrets, but who left their own notebook of “secret” notes about their investigation of this and other cases behind in a public place, or (3) the TSA agents who felt so ill at the smell of honey they found in checked luggage that they checked themselves into a hospital and shut down the airport. It’s a tough call. Leave your votes, or other nominations, in the comments.

What’s most striking about the government’s response to this unsuccessful bombing attempt is the complete lack of any rational relationship between the actions that have been taken and are being proposed, any analysis of which of these and similar tactics did or did not contribute to the success or failure of the Christmas Day attack on Northwest Airlines flight 253, and any likelihood that they would make future attempts at terrorism less likely to succeed.

Now that the dust has settled a bit, perhaps it’s time to survey the security, security theater, surveillance, and travel control techniques at issue: Read More

Dec 16 2009

TSA won’t tell Congress what its procedures are

Today the Acting Director of the TSA is scheduled to appear before a Congressional subcommittee to testify about the posting of an unredacted version of the TSA’s “Screning Management Standard Operating Procedures (SOP)” on a government website.   (Confirmation of President Obama’s nominee for TSA Director has been held up by questions about whether he would allow TSA screeners to unionize.)

Members of the Committee have already asked questions about whether the TSA will ignore the First Amendment and prosecute people who legally reposted the information released by the government. On the other hand, we doubt that they will ask about the blatantly discriminatory and illegal provisions in the SOP, even though we’ve discussed our complaint with the subcommittee’s staff and made sure they had a copy.

We had to fight to get even censored excerpts from the Screening Management SOP in response to our earlier FOIA requests and appeals, and we’re not surprised that the TSA is stonewalling our current appeal for the complete current version. This morning, the Washington Times reports that the TSA is resisting showing the current SOP even to Congress:

[W]hen Gale Rossides, acting administrator of the Transportation Security Administration (TSA), testifies before a House panel Wednesday, key members say they will press for a copy of what the government says is a newer, more secretive manual to examine for themselves.

Rep. Charlie Dent, Pennsylvania Republican and ranking member of the House of Homeland Security subcommittee on transportation security and infrastructure protection, along with Rep. Gus Bilirakis, Florida Republican and ranking member of the investigations and oversight subcommittee, asked for a copy of the current version in a letter to Ms. Rossides on Friday.

But the agency is stonewalling and allowed only select committee staffers to review the new manual and its half-dozen revisions for one hour on Monday.

Mr. Dent questions whether the revisions are as substantial as the TSA claims, why mitigation efforts are being put in place if there are no new risks exposed by the leak, and why Congress can’t have a copy.

Today’s hearing will be webcast, and we’ll be watching with interest.

Dec 13 2009

Congress members: “Kill the messenger!”

Three members of Congress have sent a joint letter to Secretary of Homeland Security Janet Napolitano about the posting of a version of the TSA’s Screening Management Standard Operating Procedures on a Federal government website.  (We’re still pursuing our FOIA appeal for the current version and related documents, which the TSA has been stonewalling, as well as our complaint against the blatantly discriminatory portions of the procedures.)

The signers of the letter to the DHS Secretary include Rep. Pete King, ranking Republican members of the House Homeland Security Committee, which has scheduled a hearing on the release of the TSA procedures this Wednesday, December 16, 2009.  (The Committee’s Chairman has already sent the TSA some questions of his own in advance of the hearing.)

Among the questions the three Representatives ask are the following:

6. How has the Department of Homeland Security and the Transportation Security Administration addressed the repeated reposting of this security manual to other websites and what legal action, if any, can be taken to compel its removal?

7. Is the Department considering issuing new regulations pursuant to its authority in section 114 of title 49, United States Code, and are criminal penalties necessary or desirable to ensure such information is not reposted in the future?

Perhaps these members of Congress haven’t bothered to read the current law that protects the right to “use” (such as by removing the black blocks that were coded to appear over portions of the document) and “redissemination” of documents (such as by reposting on other websites), once they are made available to the public as this one was on a public government website:

44 U.S.C. 3506(d)

With respect to information dissemination, each agency shall—

(1) ensure that the public has timely and equitable access to the agency’s public information, including ensuring such access through—
(A) encouraging a diversity of public and private sources for information based on government public information;
(B) in cases in which the agency provides public information maintained in electronic format, providing timely and equitable access to the underlying data (in whole or in part); and
(C) agency dissemination of public information in an efficient, effective, and economical manner;

(2) regularly solicit and consider public input on the agency’s information dissemination activities;

(3) provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products; and

(4) not, except where specifically authorized by statute—
(A) establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public;
(B) restrict or regulate the use, resale, or redissemination of public information by the public;
(C) charge fees or royalties for resale or redissemination of public information; or
(D) establish user fees for public information that exceed the cost of dissemination.

Dec 13 2009

FBI reveals claimed No-Fly criteria

In the course of testimony before the Senate Homeland Security Committee, the Director of the FBI’s “Terrorist Screening Center” (TSC) has, for the first time, stated publicly what the government claims to be the “substantive derogatory criteria” used in the (secret, non-adversarial, extra-judicial) process of determining whether to place a name on the “No-Fly” list, i.e to deny a person their Constitutional and human rights to travel, as well as some tidbits about how that decision-making process works.

We wonder about the cadre of people Director Healy of the TSC is describing: Federal employees (your tax dollars at work!) who spend their working hours, day after day, in some secret room in a secret FBI facility, reviewing one dossier of one-sided “derogatory” information after another, never meeting or communicating with any of the people they judge, and deciding based solely on the dossier (including the records about the subject and their travel history from the “Automated Targeting System”) whether or not to “permit” that person to continue to exercise their rights.

Until someone from this team comes forward to talk about their work, the closest we can come to understanding what it might be like may be the Federal bureaucrats of an earlier era of infamy whose job it was to evaluate interned Japanese-Americans to decide which to allow out of the camps, which to allow to live where in the country, and which to allow to hold which jobs.  Their story is told by Prof. Eric Muller (isthatlegal.org) of the University of North Carolina Law School in American Inquisition: The Hunt for Japanese American Disloyalty in World War II. But unlike today’s TSC staff, they were able to interview and/or see responses to questionnaires completed by internees, rather than judging completely in the dark, from the file of “derog” alone.

If anyone at the TSC wants to talk about their job, we’re all ears. In the meantime, here’s what the head of the TSC had to say about their work:  Read More