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Jan 22 2019

9th Circuit: Passengers in a car don’t have to identify themselves

Passengers in a car stopped by police don’t have to identify themselves, according to the 9th Circuit Court of Appeals.

That holds even in a state with a “stop and identify” law, and even if the initial stop of the car (for a traffic violation committed by the driver) was legal.

The opinion by a three-judge panel of the 9th Circuit earlier this month in US v. Landeros is one of the most significant decisions to date interpreting and applying the widely-misunderstood 2004 US Supreme Court decision in Hiibel v. Nevada.

Many police think that the Hiibel decision upheld the Constitutionality of requiring anyone stopped by police to show ID. But that’s not what the Supreme Court actually said.

The 9th Circuit panel that decided US v. Landeros read the Hiibel decision carefully and correctly, and gave important and explicit guidance on the narrowness of its findings and what it actually means for people who are stopped and asked for ID by police.

What does this mean for you, especially when or if you are in the 9th Circuit or want to raise the 9th Circuit’s latest decision as persuasive authority in another circuit?

Jan 21 2019

“Refugees could travel to Europe or America by air. What’s stopping them?”

An article by Saad Hasan for TRT World (the English-language news service of Turkey’s national public broadcasting network) highlights a life-and-death issue for refugees: Why are thousands of asylum seekers who could afford to buy a plane ticket to Europe or the USA dying every year trying to cross the Mediterranean Sea or the Sonoran Desert to reach a country where they can find sanctuary from persecution?

The answer, as we told TRT World, is that, “These deaths of the asylum seekers during migration are a direct consequence of carrier sanctions. Sanctions imposed by governments on airlines for transporting unsuccessful asylum seekers are killing thousands of people a year directly around the world.”

The article notes that, “The Geneva Convention allows an asylum seeker to board a commercial flight even without a visa. But airlines face the risk of paying a fine if that person’s application is rejected and he has to be flown back.”

We’ve raised this issue repeatedly with the UN Office of the High Commissioner for Human Rights. Just last week, we asked the UN Human Rights Committee to include it in its list of issues for the upcoming review of US implementation of the International Covenant on Civil and Political Rights:

An asylum claim cannot be made or adjudicated until after a claimant arrives in a country of refuge. Asylum seekers cannot be required to have any specific documents, and their inability to obtain travel documents from a government from which they arefleeing may be part of the evidence supporting their asylum claim.

A common carrier has an obligation to transport all passengers willing to pay the fare in its tariff.

But the U.S. imposes civil fines on airlines and other carriers that transport unsuccessful asylum seekers. These “carrier sanctions” turn inherently unqualified airline ticket sales and check-in clerks into de facto asylum judges of first and last resort, with a government-imposed financial incentive to err on the side of denial of transport. For asylum seekers, denial of air transportation either acts as a categorical bar to reaching U.S. territory to make a claim for asylum, or leads asylum seekers to use irregular and often fatally unsafe routes and modes of land or sea travel to reach the U.S.

Some other sources interviewed by TRT World suggested that the consequences of “carrier sanctions” could be mitigated by issuance of “humanitarian visas” for asylum seekers. But as we pointed out, “Foreign embassies and airports are closely watched by local police. If someone comes to the embassy seeking asylum and isn’t immediately given sanctuary then they can be subject to additional persecution.”

Solving the problem of deaths in transit doesn’t take a lengthy legislative process like introducing a humanitarian visa. Almost by definition, not everybody who applies will be given such a visa. And any visa will have to be applied for at a consulate or embassy in a country where an asylum seeker may be subject to retaliation for visiting such a consulate.

All it takes to reduce these deaths is a small change in administrative practice: Stop fining airlines when they bring people to a border or port of entry and the people are not admitted, and enforce their duty as common carriers to transport anyone willing to pay the fare in their tariff.

If the country and the airline don’t want the expense of returning failed applicants for asylum, airline regulations could require that an airline must transport passengers without visas if they have purchased a return ticket or a ticket onward to another country. This is already required for most visitors to the US or the European Union, even if they have visas. This would double the revenue to the airline for each such refugee. For legitimate refugees, most of those return tickets would expire unused, making them free money for the airline — but not risking the lives of refugees by denying them access to safe air transport.

It’s tempting to some people to think of freedom of movement as something “abstract” or important only to the “jet set”. But nothing could be further from the truth. Administrative restrictions like carrier sanctions, and failure to enforce the duties of common carriers, are a life-and-death matter for some of the world’s most destitute and deserving refugees, those who would qualify for asylum if they could only reach a country of refuge.

Jan 09 2019

How many times will the DHS cry wolf on REAL-ID?

The last time we checked in on the status of the seemingly endless game of “chicken” being played by the US Department of Homeland Security with its threats to start harassing air travelers who reside in states the DHS deems insufficiently “compliant”, every state and territory had been given another “extension” of time to demonstrate commitment to compliance until at least January 10, 2019.

Since then, the DHS, in its standardless administrative discretion, has announced further extensions until at least April Fools Day, 2019 (for the US Virgin Islands), for every state and territory except California and Guam.

But as of today, the DHS website says that, “California has an extension for REAL ID enforcement, allowing Federal agencies to accept driver’s licenses and identification cards from California at Federal facilities, nuclear power plants and federally regulated commercial aircraft until January 10, 2019.”

As of this morning, with the “deadline” less than 48 hours away, we got the following response to our questions about this from a spokesperson for the California DMV:

The State of California has been working for the better part of a year to be deemed compliant with the REAL ID act, unfortunately due to a lack of response on the part of the Federal Government with the ongoing shutdown there has been no final confirmation.

So was that a real deadline for REAL-ID in California?

Is the DHS really prepared to have TSA checkpoint staff — working for indefinitely deferred pay — start trying to carry out time-consuming “ID verification procedures” for everyone who shows up at an airport checkpoint with a California drivers’ license or ID, starting the day after tomorrow?

The answer turns out to be, “No.”

The DHS and TSA have blinked yet again in the face of insufficient state “compliance”.

We’ve just received the following updated statement from the DMV:

The California DMV has confirmed with the Department of Homeland Security (DHS) that they will be granting California an extension to April 1, 2019. Due to the furlough, the letter might not arrive until tomorrow and DHS will likely not be updating their website until the furlough ends. All driver licenses will remain valid and can continue to be used for federal purposes.

And this from a spokesperson for the TSA:

I recently learned from DHS that California’s extension has been extended through April 1, 2019…. Updates to their website are underway.

California doesn’t actually comply with the REAL-ID Act. That would require uploading data about all California drivers’ licenses and ID cards to the SPEXS national ID database, which California hasn’t done and which would probably violate multiple provisions of California’s state constitution. But DHS certifications and extensions are discretionary, and need not be based on any specific criteria or on actual compliance.

There’s still no public word about Guam, the extension for which is also scheduled to expire tomorrow.

“Phase 4b” of REAL-ID Act enforcement at airports supposedly started on January 22, 2018. Since then, the only state or territory where the DHS has let a REAL-ID extension lapse, even temporarily, has been American Samoa, for which another extension has now been granted until October 10, 2019. We’re still waiting for any response to our FOIA request for records of what happened to American Samoans who tried to fly during the period last year when the extension had lapsed.

Jan 07 2019

Amtrak thinks it’s OK to spy on passengers because it makes the trains run on time

Buried in the final 500-page PDF file of redacted and munged e-mail messages released by Amtrak in December 2018 in response to a FOIA request we made in 2014, we got the first hint at an answer to one of the questions that originally prompted our request:

What did Amtrak think was its legal basis for requiring passengers to show ID and provide other information, and for handing this data over to DHS components and other police agencies for general law enforcement purposes?

When US Customs and Border Protection (CBP) asked Amtrak to start transmitting passenger data electronically, it described this as a request for “voluntary” cooperation, noting that while the law requires airlines to collect and transmit this data to CBP, “these mandates do not currently extend to land modes of transportation” (as they still don’t today).

Despite this statement from CBP, someone at Amtrak came up with a way to describe the changes to Amtrak’s systems and procedures to require ID information in reservations for all international trains, and to transmit this data to CBP, as “required by the U.S. Department of Homeland Security (DHS)” and as “being mandated by the US Border Inspection Agencies [sic].”

In 2004, an Amtrak technology manager was asked, “Do you know if such a [Federal] mandate [to collect information about passengers] exists, or is Amtrak not obliged to participate in this program?”

The unnamed Amtrak IT manager’s response was that:

By statute, the federal government … in cooperation with Amtrak “shall maintain, consistent with the effective enforcement of immigration and customs laws, en route customs inspections and immigration procedures for international intercity rail passenger transportation that will (1) be convenient for passenger; and (2) result in the quickest possible international rail passenger transportation.” 49 USC 24709.

In other words,someone at Amtrak thinks it’s not merely permitted but required by this provision of Federal law to implement whatever level of intrusiveness of data collection and data sharing will make international trains run more quickly.

It’s arguable, to say the least, whether Congress intended this law as a mandate for ID credentials or data collection, whether collection of passenger data prior to ticketing actually expedites international trains (compared to, as used to happen, conducting customs and immigration inspections onboard while trains are in motion), or whether demands for ID and passenger information are consistent with the clause of this section requiring that measures taken be “convenient for passengers”. But someone at Amtrak seems to have interpreted this statute as such a mandate, and represented it as such to other Amtrak staff and contractors.

Are there any limits to what information or actions Amtrak would think is required of passengers on international trains, if that would keep US and Canadian border guards from stopping or delaying trains at the border for customs inspection?

Questions about whether Advance Passenger Information (APIS) was required had been asked not only within Amtrak but by Amtrak-appointed travel agencies, as was relayed to Amtrak by a product manager for the “Worldspan by Travelport” reservation system:

There’s no indication in the documents we received as to whether this Worldspan subscriber, or any other travel agency, was given any answer to this question.

Notably, no legal basis whatsoever for requiring ID from passengers on domestic trains was mentioned anywhere in the records we’ve received from Amtrak. Nor were any records released that related to Amtrak’s privacy policy, or the legal basis for it, although such records were covered by our request. We’re still following up with Amtrak on this and other issues, and will file administrative appeals if necessary.

As part of Amtrak’s response to a separate FOIA request, however, we’ve received a redacted copy of Amtrak’s internal directive to staff regarding passenger ID requirements. According to this document, Amtrak stopped requiring passengers to show ID in order to buy tickets as of October 25, 2017. But no records related to this change, or the reasons for it, were released in response to our request.

Amtrak train crews are supposed to check ID of a randomly selected 10% or 20% of passengers. In our experience, however, Amtrak staff rarely require any passengers to show ID.

Although Amtrak is a Federal government entity, Amtrak’s of list of acceptable ID is much more inclusive than the list of ID that comply with the REAL-ID Act. Amtrak’s list of ID acceptable for train travel includes, among other acceptable credentials, any ID issued by a public or private middle school, high school, college, or university, and drivers’ licensed issued by US states and territories to otherwise undocumented residents.

Amtrak even accepts a “California state issued medical marijuana card“, which doesn’t have the cardholder’s name, only their photo. We’ll leave it as an exercise to our readers to figure out what relationship Amtrak thinks there is between being being eligible for medical cannabis and being eligible for Amtrak train travel.

The most reasonable inference is that someone at Amtrak has decided that Amtrak should make a show of requiring ID, but that others at Amtrak don’t really want to turn away travelers without ID. Perhaps they recognize that travellers who don’t have or don’t want to show ID are a valuable Amtrak customer demographic.

Dec 17 2018

Do you need ID to get OFF a plane?

We’ve reported on several legal challenges to demands for ID as a condition of boarding airline flights.

But what about demands for ID after such a flight, as a condition of disembarking or leaving the airport at your destination? Is such a demand legal? Must you comply?

The first court case we are aware of to raise this issue began when DHS law enforcement officers from US Customs and Border Protection (CBP) blocked the only exit from a Delta Airlines plane when it arrived at its gate at JFK Airport in February 2017 after a flight from San Francisco, and required passengers to show ID before they were allowed to leave the plane.

Several passengers, represented by the ACLU, sued the DHS, the CBP and the responsible officials, supervisors, and front-officers in Federal court for the Eastern District of New York, which covers Brooklyn, Queens (where JFK Airport is located) and Long Island.

The plaintiffs in the lawsuit, originally Amadei v. Duke and now Amadei v. Neilsen, complain that the demand for ID violated their 4th Amendment right to be free from unreasonable searches and seizures. They also complain that the DHS policy or practice of demanding ID from some passengers disembarking from domestic airline flights was adopted without complying with the due process requirements of the Administrative Procedure Act (APA).

The first significant — although far from final — ruling in the case came on December 13, 2018. The District Court rejected government motions to dismiss the complaint. Judge Nicholas Garaufis found that the passengers had raised sufficiently credible allegations of violations of the 4th Amendment and the APA to entitle them to their day in court.

Nov 14 2018

OIG confirms State Dept. broke its own rules when it seized US citizens’ passports

A report released earlier this month by the State Department’s Office of Inspector General confirms that, as we and others began reporting in 2013 and 2014, State Department staff “failed to comply with relevant procedures intended to safeguard the rights of U.S. citizens” when they summarily seized or retained the passports of US citizens who sought consular assistance at the US Embassy in Sana’a, Yemen.

Because of incomplete and inconsistent record-keeping and shifting stories told to OIG investigators by State Department staff, the OIG was unable to determine how many US citizens were improperly deprived of their passports, or for how long.

The consequences for these Yemeni-American US citizens were especially dire because many of them were seeking to leave Yemen to escape the escalating civil war and foreign military interventions in Yemen (some of which were backed by the US and its allies).

Without passports, these US citizens were unable to travel legally from Yemen to other countries, or to return to the US. They were forced either to remain in increasingly war-torn and dangerous Yemen, or use dangerous illegal means of transport to escape.

The de facto policy of the US Department of State as early as 2013 — even before the inclusion of Yemen in the 2017 Muslim ban executive orders — appears to have been to define anyone with Yemeni ancestry, regardless of citizenship, as an enemy of the US, and to use all available legal or illegal methods to deny them US passports. Typical tactics included putting applications by Yemeni-Americans for new or renewal passports into indefinite limbo, and indefinitely retaining US passports presented to consular officials at the US Embassy in Sana’a.

Typically, no formal decision that would be readily subject to judicial review was made. Even when a passport was revoked or an application for a passport was denied, the affected citizen often wasn’t notified until months or years later.

Several lawsuits were brought challenging the denials and delays in issuing, renewing, or returning passports. At least one case led to a court order for the return of a US passport seized in Sana’a. But the government was able to evade judicial review of most of its passport denials and seizures by reversing its decisions and dropping charges or issuing delayed passports once its victims lawyered up and made it to US courts.

Despite the fairly scathing report by the OIG, there’s no indication that any of the responsible State Department officials — either at the embassy in Yemen or making policy and directing practices from the US — have lost their jobs, much less been prosecuted, for conspiring to deprive US citizens of their fundamental rights, in circumstances where the ability to exercise those rights could be a matter of life and death.

Oct 15 2018

TSA announces “biometrics vision for all commercial aviation travelers”

Today the US Transportation Security Administration released a detailed TSA Biometric Roadmap for Aviation Security & the Passenger Experience, making explicit the goal of requiring mug shots (to be used for automated facial recognition and image-based surveillance and control) as a condition of all domestic or international air travel.

This makes explicit the goal that has been apparent, but only implicit, in the activities and statements of both government agencies and airline and airport trade associations.

It’s a terrifyingly totalitarian vision of pervasive surveillance of air travelers at, quite literally and deliberately, every step of their journey, enabled by automated facial recognition and by the seamless collaboration of airlines and airport operators that will help the government surveil their customers in exchange for free use of facial images for their own business purposes and profits.

The closest contemporary counterpart to what the TSA envisions for the USA is the pervasive surveillance and control of travelers in China through automated facial recognition by the Public Security Bureau.

Oct 10 2018

What AAMVA doesn’t want you to know about the national REAL-ID database

Another “deadline” for enforcement of the REAL-ID Act of 2005 passed uneventfully today.

The US Department of Homeland Security had advertised that DHS extensions of time for voluntary compliance with the REAL-ID Act by many states would expire today.

The DHS threatened that starting today it would “enforce” the REAL-ID Act through harassment or denial of the right to travel of airline passengers without ID or with ID issued by states or territories that the DHS, in its standardless administrative discretion, deemed insufficiently compliant with Federal wishes.

Today’s supposed “deadline” was fixed neither by law nor by regulation. Not surprisingly, the DHS blinked in the final days before its self-imposed ultimatum, as it has done again and again.

Every US state and territory subject to the REAL-ID Act was either certified by the DHS as sufficiently compliant to satisfy the DHS (at least for now), or was given a further extension of time to comply without penalty until at least January 10, 2019.

Yesterday, the day before the “deadline”, the DHS quietly posted notices on its website that it had granted further extensions until January 2019 to the last two states, California and New Jersey.

Perhaps the DHS is still unwilling to provoke riots at airports by stopping people without ID, or with ID from disfavored states and territories, from flying. Perhaps it isn’t yet prepared to face, and likely lose, the inevitable lawsuits from would-be flyers.

Even American Samoa, which — because the second-class status of American Samoans as US subjects but not US citizens would make it harder for them to challenge DHS restrictions of their rights — had been the first trial by the DHS of enforcement of the REAL-ID Act, was given an extension until October 10, 2019.

So far as we can tell, REAL-ID Act “enforcement” meant only modestly enhanced harassment of American Samoans at airports. Our FOIA request for records of how many people tried to fly with American Samoa IDs, and what happened to them, remains pending with no response after more than five months.

American Samao isn’t the limit of REAL-ID Act expansion beyond US borders and overseas. H.R. 3398, a bill to extend eligibility for REAL-ID Act compliant drivers licenses and IDs to citizens of several nominally independent de facto US dependencies, has passed the House and is pending in the Senate.

Meanwhile, the real movement toward state compliance with the REAL-ID Act is behind the scenes — as the DHS, its collaborators among state driver licensing agencies, and AAMVA, the operator of the outsourced and pseudo-privatized national ID database, want it to be.

Since we last reported on the status of REAL-ID Act compliance six months ago, agencies in three more states — Pennsylvania, New Mexico, and most recently Washington in September 2018 — have uploaded information about all licensed drivers and holders of state-issued IDs to the SPEXS national database. That brings to 19 the number of states whose residents’ personal information is included in the aggregated database.

But even as the database grows to include information about more and more US residents, the DHS persists in denying its existence. According to the DHS public FAQ about the REAL-ID Act:

A: Is DHS trying to build a national database with all of our information?

No…. REAL ID does not create a federal database of driver license information.

To the extent that there is any truth at all in this statement, it’s that the SPEXS national database isn’t under direct Federal or state control, but has been handed over to AAMVA and AAMVA’s contractors. (The database is apparently actually hosted by Microsoft.)

For obvious reasons, nobody is more eager than AAMVA to have you pay no attention to the national ID database behind the REAL-ID Act curtain.

In June 2018, we were honored to receive an urgent letter by Fedex from the President & CEO of AAMVA, demanding that we immediately remove from our website the specifications for the SPEXS database, which we had obtained in 2016 from AAMVA’s own public website. After AAMVA made that whole section of its site “members-only”, we posted a copy of the SPEXS specification to help readers understand the details of the system, and as one of the key sources for our analysis of SPEXS.

SPEXS already includes personal information obtained from government records of drivers licenses and state IDs, including dates of birth and the last five digits of Social Security Numbers, for more than 50 million US residents. We think the people whose data is included in this system are entitled to know what information is being kept about them, who has access to it, and how it is used.

According to the SPEXS specifications, development of SPEXS was funded by grants from componetns of the DHS and the Department of Transportation. (We’re waiting for responses to our FOIA requests for those agencies’ records about SPEXS.) If SPEXS were being operated directly by a Federal agency, the Privacy Act would require it to provide notice of the types of records in the system, how they are used, and with whom they are shared, as well as procedures for individuals to see the records about themselves and to obtain an “accounting of disclosures” to third parties of information about themselves.

But because the SPEXS database has been outsourced to a nominally private contractor, AAMVA, both Federal and state agencies can disclaim any responsibility for it. That leaves the SPEXS specifications as the best available evidence of what the system is and does.

In a later message to our Web hosting provider, a lawyer for AAMVA claimed that, “The information contained in this work is sensitive and its unauthorized publication could jeopardize the security of the governmental program to which this document relates.” This is nonsense. AAMVA waived any claim of sensitivity by making the specifications public.

When it was still struggling to sell the first states on buying into SPEXS, AAMVA posted the SPEXS specification on its website for anyone to download. More than two years after we called attention to what this document reveals, AAMVA is trying to suppress it. Not because it contains any secrets — it’s been publicly available for years — but because it conclusively disproves the DHS big lie that there is no national REAL-ID database, and shows the essential role that AAMVA itself is playing in this surveillance system.

We encourage you to pay close attention to the AAMVA man behind the REAL-ID Act curtain. And if you have questions about SPEXS or the SPEXS specifications, feel free to contact us.

Sep 18 2018

Globalization and policy laundering of travel control

An interview with the head of US Customs and Border Protection (CBP) published this month by the U.S. Military Academy as part of a “View From The Foxhole” series provides an unusually revealing, and disturbing, picture of the expansion and globalization of surveillance and control of travelers. It also highlights the ways that policy is being “laundered” through the rationale of “compliance with international standards” to avoid any domestic political debate in the US or other collaborating countries.

CBP Commissioner Kevin K. McAleenan begins his overview of the role of the CBP by referring to “people who are… seeking that permission to travel to the United States”.

But US citizens don’t need “permission” from CBP or any other government agency to travel to the US. McAleenan’s comment makes clear the extent to which the US government has arrogated to itself, and now takes for granted, the illegitimate authority to condition the exercise of the right to freedom of movement on government permission.

CBP Commissioner McAleenan doubles down by asserting that “we have the responsibility to interview and inspect all travelers and make decisions on whether they present a risk.”

But that’s not true either. CBP’s authority to inspect travelers is limited to determining whether there is probable cause to charge them with violations of the law. We have a system of criminal law, not a pre-crime system of “risk-based” predictive denial of rights.

Aug 05 2018

New lies from a Federal official about ID requirements

In a speech this week in Florida, President Trump falsely claimed that, “You know, if you go out and you want to buy groceries, you need a picture on a card, you need ID. You go out and you want to buy anything, you need ID and you need your picture.”

Some commentators have expressed surprise that a high Federal official would make a claim about an ID requirement for an everyday activity, when (1) that claim is false, and known to be false by all of the people who engage in that activity without having ID, (2) that claim is not based on any law or regulations, and (3) any such law or regulation would exceed the government’s authority and likely be subject to legal challenge.

Whether Pres. Trump is so out of touch with the reality of ID requirements that he made this claim in sincere ignorance, or whether he knew it was false, it comes as no surprise to us.

Rather, Pres. Trump’s false claim that you need ID to buy groceries is perfectly consistent with the pattern of lies about ID requirements by high Federal and state officials, especially the big lie that you need ID to fly.

Hundreds of people fly without ID every day, just as tens of millions of people every day buy groceries without showing ID. No current or proposed law or regulation requires air travelers to show ID, and any such law would be invalid as a violation of human rights recognized by the US Constitution and international treaties.

Claims by the Secretary of Homeland Security and state driver licensing agencies that you need (or will need) ID to fly are as baseless as Pres. Trump’s claim that you need ID to buy groceries. Anyone who has ever flown without ID — perhaps after their ID was lost or stolen, perhaps because they forgot their ID, or perhaps because they don’t have ID — knows that these claims are false.

But rather than questioning or fact-checking these baseless claims by the DHS and state agencies, or mocking the officials who make these false claims about ID to fly the way they have mocked Pres. Trump for his false claims about ID to buy groceries, major news media have reprinted this fake news about ID to fly as fact.

The real lesson to be learned from the obvious falsehood of Pres. Trump’s claims is that you can’t trust the government to tell you the truth about ID requirements or your rights. You need to know your rights, assert them, and be prepared to defend them in court — or the false government claim that you have no rights will become a self-fulfilling myth.

We hope that this incident leads more journalists and members of the public alike to question the truth and the legitimacy of government claims about ID “requirements”.

Papers, Please!

The Identity Project