Freedom To Travel – Page 52

Jul 17 2009

Secure Flight to use same data mining tools as CAPPS-II

The TSA has been anxious to convince us that the renamed Secure Flight scheme for airline passenger profiling, surveillance, and control is fundamentally different and (despite the great new name) less Orwellian than its prdecessor, the thoroughly discredited CAPPS-II (“Computer-Assisted Passenger Pre-Screening System, version 2”).

The TSA also wants us to believe that Secure Flight “does not use commercial data” (actually, it relies primarily on commercial data in airline reservations or Passenger Name Records) or data mining.

Now we learn from the boasts of one of the TSA’s contractors that “Secure Flight” will rely on the same fuzzy matching and data mining software that was used in the first trials of CAPPS-II in 2002 — which were unsuccessful, and which used illegally obtained PNRs for real travelers on real flights.

And despite the TSA’s claims that it isn’t a data-mining system, the contractor, Infoglide Software, describes the software being incorporated into “Secure Flight” as a tool for “mining today’s evergrowing sources of data”. Oops! perhaps the TSA forgot to tell them the party line about how to describe their products, or their marketing department didn’t get the message.

Nothing has really changed in CAPPS-3, a/k/a “Secure Flight”. Depite all the minor tweaks from CAPPS-II, it still doesn’t meet the standards required by international human rights treates, the Constitution, or Federal statutes. Nothing has changed, including the need to stop it now — before another billion dollars or more is spent over the next year or two on implementing this system of surveillance and control of our movements.

Jul 14 2009

D.C. Circuit court enjoins checkpoints on public streets

Striking down both a permission-based system of controls of movement (under which motorists on public streets in the District of Columbia were required to explain the purposes of their intended movements to the satisfaction of police before being permitted to pass police checkpoints, with the burden of justification placed on the would-be travellers), and the use of “security”, generalized crime prevention or deterrence, and general law enforcement as justifications for the use of checkpoints as de facto general warrants to stop, detain, interrogate, and compel responses to questions by travellers on public rights of way, the Court of Appeals for the D.C. Circuit has overturned the denial by the D.C. District Court of a permanent injunction against the Metropolitan Police scheme of so-called Neighborhood Safety Zones.

In Mills v. District of Columbia (No. 08-7127, decided July 10, 2009), the D.C. Circuit Court explicitly addressed, and reaffirmed, both the right to movement on public ways (“It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access”) and the unconstitutionality of checkpoint stops, searches, or seizures “whose primary purpose was to detect evidence of ordinary criminal wrongdoing…. Because the primary purpose of the … checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment” (quoting City of Indianapolis v. Edmond, 531 U.S. 32).

It’s also notable that the Court ruled as it did despite explicitly noting that the checkpoints at issue applied only to travellers by motor vehicle, and not to pedestrians. (It’s unclear from the appellate opinion how bicyclists and other travellers by non-motoirized vehicle were treated.) The undisputed fact that there existed an alternative, unrestricted mode of travel — by foot — was not a factor in the decision.

We’ll leave it as an exercise for the reader, and the TSA, to consider how the logic of this decision — and the Supreme Court precedent in Indianapolis v. Edmond on which it relies — would apply to TSA checkpoints at airports.

Our friends at Checkpoint USA have more details in their Roadblock Revelations blog.

Jun 25 2009

Courts and Congress finally start to rein in the TSA

Until recently, the TSA has been a domestic legal Guantanamo, and the TSA has treated their domain of “checkpoints” and travel control and surveillance as a law-free zone where their powers of search, seizure, detention, and denial of passage were unconstrained by the Constitution, human rights treaties, judicial review, or stautory or regulatory standards. As indeed it has been: Congress has enacted no law specifically defining any limits on the authority of TSA agents at checkpoints (or elsewhere), and the TSA itself has never conducted any rulemaking or issued any publicly-disclosed regulations defining its authority, the limits of that authority, what orders travellers do or don’t have to comply with, and which forms of “noncooperation” are considered grounds for which sanctions (more intrusive search, denial of transportation, admninistrative fine, detention, etc.). While the TSA has never been explicitly exempted from the Constitution or treaties such as the International Covenant on Civil and Political Rights, the DHS has sought to avoid ever allowing judicial review of fly/no-fly decisions, and the courts themselves have gone out of their way to avoid ruling on the legality of TSA actions — such as when the 9th Circuit invented a counter-factual claim (without ever allowing an evidentiary hearing on the facts) that John Gilmore hadn’t actually been required to show ID credentials in order to fly, as a way to avoid ruling on whether an ID-to-fly requirement would be Constitutional. As for the Executive, President Obama has yet to nominate an Administrator of the TSA, leaving this one of the highest-ranking vacancies in the Administration and leaving the TSA operating on autopilot under lame-duck holdovers.

In the absence of any explicit rules or any judicial, legislative, or executive oversight, the TSA has felt no need to seek authority for its ever-expanding assertions of authority through legislation or rulemaking. Nor has the TSA recognized any duty of self-restraint or self-policing to ensure its actions conform to the law. Instead, the TSA has simply wielded its power to do whatever it wished, on the disgraceful assumption that, “If we’re doing something wrong, the courts will tell us — if and when someone can afford to sue us, and they win a court judgment against us.” In the meantime, the TSA will do, and claim the right to do, anything that hasn’t already specifically been ruled illegal. Kind of like the thief who assumes that they can steal whatever they want, and that if something turns out not be theirs, they’ll give it back if and when someone sues and wins a court judgment ordering its return.

Time and again we’ve pointed out this failure to subject the TSA to the rule of law. See, for example, our most recent prior post on this topic, our agenda on the right to travel submitted to the Obama Administration and Congress after the 2008 elections, and our comments earlier this month at the Computers, Freedom, and Privacy conference session with Obama Administration representatives and others at 1:45:53 of this video. Until recently, however, neither the Courts, the Congress, nor the Executive branch have wanted to confront the question of what rules govern the TSA.

We’re please to report that this is finally beginiing to change, in small ways but on numerous fronts:

Are there any rules at airport checkpoints?

We had a chance to ask some questions (starting at 55:00 of the video, although the entire panel is worth watching) of the TSA’s Chief Privacy Officer, Peter Pietra, when he showed up at the Computers, Freedom, and Privacy conference to talk about the SPOT program, under which roving teams of TSA agents watch people in airports for a (secret, of course) checklist of “suspicious” behavior, question some of those people, and finger some of them for more intrusive search or further questioning when they reach the “screening” checkpoints.

Petra claimed that, “There isn’t any search or seizure … until the checkpoint”, even if you decline to respond to questions from the SPOT teams or other TSA agents. But, “At the checkpoint, it’s a different story … There’s a ‘special circumstances’ exception that would permit at least a reasonable search.”

But what does the TSA consider “reasonable”? In particular, once we get to the checkpoint, are we required to answer questions from the TSA?

“I don’t know,” Petra said.

If we decline to answer questions at a TSA checkpoint, does the TSA claim the authority to detain us, prevent us from traveling, or impose administrative sanctions? Or is the maximum penalty for declining to answer TSA questions having to submit to a pat-down search and hand search of our carry-on baggage (“secondary screening”)?

“Once you get to the checkpoint, you have to ‘cooperate’ with screening.”

What does “cooperate” mean? Are there any guidelines that tell us what we are required to do to consitutute “cooperation” with screening at a checkpoint?

“I don’t know,” Petra again answered.

We asked Petra to try to find out, but we won’t hold our breath waiting for an answer.

Jun 03 2009

Congress to vote on virtual strip searches

The U.S. House of Representatives will vote this week on a proposal to (1) restrict the use of virtual strip search machines at airports, (2) prohibit their use as a “primary” screening method (i.e. in place of curent metal detectors) or “unless another method of screening, such as metal detection, demonstrates cause for preventing such passenger from boarding an aircraft,” and (3) require that people selected for “secondary sccreening” be told what the “Whole Body Imaging” machines do (a TSA agent out of your sight in a back room examines and can zoom in on any area of a picture taken using microwaves that pass through your clothes and show your body as though naked) and be offered the choice of a pat-down instead of a virtual strip search.

This proposal doesn’t go nearly far enough, but it’s an important first step. Currently, no law or published regulation places any restrictions on any aspect of TSA activities at checkpoints. What’s needed is to subject the TSA’s domestic Guantanamo at every airport to the rule of law and the standards applicable to search, seizure, interrogation, and detention in any other context.

As travel commentator Charlie Leocha wrote in his column yesterday, “The last time I checked, there was a law about ‘reasonable suspicion’ before subjecting someone to a strip search. Is simply the act of getting on a plane now considered ‘reasonable suspicion’?” (Today Leocha reports on the result of an informal online survey of his readers, showing that more than two-thirds of respondents think this is “an invasion of privacy”.)

The proposal was originally a standalone bill (H.R. 2027) introduced by Rep. Jason Chaffetz (R-UT), but will now be voted on as an amendment to H.R. 2200, the TSA Authorization Act.

What can you do? Visit StopDigitalStripSearches.org and sign the online petition endorsed by the Identity Project. More importantly, call and/or email your member of Congress today and urge them to vote FOR the “Chaffetz amendment on Whole Body Imaging” to H.R. 2200, the TSA authorization bill.

Rep. Chaffetz’ point person on this issue tells us they expect the House floor vote will most likely be Thursday, June 4, 2009.

Jun 01 2009

Today we’re all prisoners in the USA

As of today, June 1, 2009, even U.S. citizens are officially prisoners in the USA, or exiles barred from entering our own country without the government’s permission.

We are now forbidden by Federal regulations from leaving or entering the USA, anywhere, by any means — by air, by sea, or by land, to or from any other country or international waters or airspace — unless the government chooses to issue us a passport, passport card, or “enhanced” drivers license (any of which “travel documents” are now issued only with secretly and remotely-readable uniquely-numbered radio tracking beacons in the form of RFID transponder chips), or unless the Department of Homeland Security chooses to to exercise its standardless “discretion” to decide — in secret, with no way for us to know who is making the decision or on what basis — to issue a (one-time case-by-case) “waiver” of the new travel document requirements.

If you’re in the USA without such documents — even if you were born here, or are a foreigner who entered the USA legally without such documents (a Canadian, for example, who entered the USA by land yesterday when no such documents were yet required), or your document(s) have expired or have been lost or stolen — you are forbidden to leave the country unless and until you procure such a document, or unless and until the DHS gives you an exit permit in the form of a discretionary one-time waiver to leave the country — but not necessarily to come home, unless they again exercise their discretion to “grant” you another waiver.

If you are a U.S. citizen abroad without such a document (for example, if you entered Canada legally without it yesterday by land, when it wasn’t required, or again if your document(s) are expired, lost, or stolen) you are forbidden to come home unless and until you can procure a new document acceptable to the DHS, or unless and until the DHS gives you permission to come home in the form of a discretionary one-time waiver. Read More →

May 26 2009

TSA releases (censored) ID checking procedures

In response to a request by the Identity Project under the Freedom of Information Act, the TSA has for the first time given us a (redacted) version of the section on Travel Document and ID Checks from the TSA’s “Screening Management SOP” (Standard Operating Procedures) manual. Our request was made June 21, 2008, the day the TSA announced what they claimed were changes to ID “requirements” for air travelers. It took the TSA almost seven months to respond.

The version of the SOP manual which the TSA has now made public is dated June 30, 2008, so it ought to reflect the changes announced in the TSA’s June 21, 2008 press release. But there is nothing at all in the sections of the manual the TSA has released about the new procedures and new ID verification form which the TSA had, in fact, started using. Rather than requiring people who don’t have or don’t choose to show government-issued ID credentials to execute affidavits stating who they are under penalty of perjury, the TSA procedures manual requires that such people be allowed to proceed through secondary screening as “selectees”, and specifically directs screeners and other TSA staff not to make any attempt to detain or delay them.

Add your name to the campaign against TSA “Virtual Strip Searches”

The Identity Project has joined with the Privacy Coalition in a campaign to stop “Whole Body Imaging” in U.S. airports.

The TSA is in the process of substituing these “Virtual Strip Search” machines as a replacement for, or an addiiton to, metal detectors for primary screening of all travelers. You’ll be able (at least at first) to opt out of the virtual strip search “Whole Body Imaging”, but then you’ll automatically get the full secondary screening pat-down, as though you had set off the metal detector. The “Whole Body Imaging” machines use microwaves that go through your clothes and reflect off your skin to display a detailed picture of your naked body to a TSA operator, in a back room where you can’t see who they are or what they are doing while they ogle your as-though-naked image.

Individual travelers as well as organizations can sign up until May 31, 2009 (Sunday) to endorse a joint letter (scroll ot the bottom of this page for the sign-on form) calling for on Secretary of Homeland Security Napolitano to suspend the use of “Whole Body Imaging” for primary screening. Read More →

May 18 2009

GAO moves the goalposts to “approve” Secure Flight

We were surprised last week to see that the GAO has issued a report certifying that, “As of April 2009, TSA had generally achieved 9 of the 10 statutory conditions related to the development of the Secure Flight program and had conditionally achieved 1 condition (TSA had defined plans, but had not completed all activities for this condition).”

Surprised, that is, until we we saw how the GAO had defined (re-defined?) those statutory conditions in ways very different from what we thought they meant, or what we think Congress thought they meant: Read More →

May 18 2009

Time to stop tinkering with “watchlists”

This month the Office of the Inspector General (OIG) of the Department of Justice has released a report on their recent audit of the FBI’s “Terrorist Watchlist Nomination Practices”.

The OIG report contains far more detail than has previously been made public about how and by whom (although very little about why) the government’s watchlists are compiled. It’s must reading for anyone interested in how the US government is deciding who to allow, and who not to allow, to travel or to engage in other activities for which these watchlists are used as blacklists.

As we discuss in our FAQ about Secure Flight, these watchlists serve as the primary determinant of who the DHS (both the CBP for international flights and the TSA for domestic flights, although eventually the TSA under Secure Flight for both) gives permission to fly.

Unfortunately, because it is confined to the “nomination” component of the system, the OIG report fails to address the more fundamental problems with the watchlist system — problems that cannot be resolved by the sort of tinkering with the watchlisting process that is suggested by the OIG’s recommendations. A much more fundamental change is required in how the watchlists and their use are conceptualized.

Papers, Please!

The Identity Project