Jun 30 2020

Freedom to travel across state lines

Oral arguments have been scheduled by two different Federal District Court judges for this Thursday, July 2, 2020, on motions for temporary restraining orders against enforcement of separate state health orders mandating 14-day quarantine of all people arriving in New York or Hawaii from out of state.

Corbett v. Cuomo will be argued at 2 p.m. EDT by telephone in New York; Carmichael v. Ige will be argued in person (and not available for remote auditing) at 11 a.m. HST in Hawaii.

The Hawaii quarantine order, as we’ve discussed previously, applies to anyone arriving from out of state. The New York order only applies to people who have visited certain states designated by New York authorities, but those states include almost half the US population. The blacklisted states include Georgia and Texas, so anyone who changes planes in Atlanta, Houston, or Dallas-Ft. Worth — all major airline hubs — en route to New York is affected, even if they are coming from some other, less-infected state.

As the complaint in the New York case notes, it’s unclear whether those involuntarily quarantined in New York will be held in jails, hospitals, or some other locations, but according to a public statements by New York Governor Cuomo cited in the complaint, they are to be detained at their own expense.

On its face, the New York order applies to anyone arriving in New York who has recently been in any of the blacklisted states, even if they don’t intend to stay in New York. This would include people changing planes in New York, or passing through on the short New York section of Interstate 95 or on the Northeast Corridor between New England and New Jersey, Pennsylvania, and points south and west. All routes between New England and the rest of the US pass through either New York or Canada. With the US-Canada border mostly closed, enforcement of the New York travel restrictions would render New England an isolted island accessible only by air.

In addition to the 14-day quarantine, New York state has also begun demanding that each interstate traveler arriving by air (regardless of their state of residence or whether they have visited any of the blacklisted states) complete and sign a written declaration (Exhibit B to the complaint) about themselves, their business affairs, and their travels.

The Hawaii and New York quarantines and the New York questionnaire for interstate air travelers are all backed with threats of arrest and fines for noncompliance.

The New York quarantine order and travel declaration are being challenged by Jonathan Corbett, who has his primary residence and business interests in Brooklyn, New York, but is also a member of the California bar who practices law in California. Before his admission to the bar, Mr. Corbett had brought multiple pro se lawsuits challenging restrictions on air travel and searches of travelers, including the TSA’s use of “virtual strip-search” imaging machines.

Significantly, in light of the written declaration that the state of New York is now ordering arriving air travelers to fill out and sign, Mr. Corbett has also previously challenged administrative interrogations of air travelers (who aren’t suspected of any crime) by, or at the behest of, the TSA. That case was dismissed without the court reaching the Constitutionality of administrative interrogation of travelers. So far as we know, Corbett v. Cuomo is the first time this issue has arisen in a COVID-19 quarantine case.

There’s extensive case law on administrative searches, but very little on administrative interrogations. Mr. Corbett argues, and we concur, that he has an absolute right to stand mute in response to interrogatories by state authorities at state borders or airports.

In the current circumstances, it’s tempting to give health authorities a free pass for whatever they do, “because pandemic”. But that would be a mistake. We’ve already seen what happened when authorities were given free rein to impose new restrictions on travelers after September 11, 2001, “because terrorism”. Many of those measures had no rational relationship to the prevention of terrorism, were implemented without regard for Constitutional rights, and have become permanent, or effectively so.

How long will the current health emergency last? And will Federal, state, and local government agencies return to their prior practices at airports and borders if and when the emergency is declared to have ended, or will restrictions imposed during the pandemic become the permanent “new normal”?

If our Constitution is to have meaning, and if there is a sufficient justification for restrictions on travel, it should be possible to defend those restrictions on the basis of the Constitution. It should not be necessary to argue for suspending the Constitution.

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Jun 23 2020

TSA wants more authority for ID demands, “vetting”, and data use

The Transportation Security Administration (TSA) wants more power to require ID from travelers (“credentialing”), control who is and who is not allowed to exercise their right to travel (“vetting”), and use and share information about travelers with more third parties and for more purposes (“expanded data use”).

These TSA priorities for the next two years are included in a 2020 update released today to the 2018 implementation road map for the TSA and White House long-term strategic plans for travel surveillance and control.

TSA Administrator David Pekoske’s oddly-named “Intent 2.0” strategy update also prioritizes “biometric vetting and [identity] verification”, a “near-contactless experience” at TSA checkpoints, and “vetting as a service”.

The “near-contactless experience” would be achieved, it appears, not through reduced hands-on groping or fewer demands for ID, but through increased use of remote sensing such as facial recognition.

“Vetting as a service” refers to allowing airlines, airport operators, and perhaps other government agencies and/or commercial third parties to use the TSA’s databases of profiles, risk scores, travel histories, free-text comments in reservations by travel industry workers, unverified aggregated derogatory data form other sources, and biometric and other identifiers for their own purposes. This not only expands the potential adverse impact of arbitrary secret algorithmic profiling based on secret databases, but gives airlines a financial incentive to carry out facial-recognition surveillance on the TSA’s behalf in order to get a free ride to use the TSA’s identification/vetting service for business process automation, personalization (including personalized pricing), or other purposes.

None of the TSA’s strategy documents say how the TSA hopes to acquire “expanded vetting and credentialing authorities” or “expanded approvals for data use”. Will the TSA seek to have these included in new laws? Or will to try to grant itself wider authority through  rulemaking or press releases, as it has often done in the past?

At least now we know, if we didn’t already, what to watch out for from the TSA in the months and years ahead.

Jun 02 2020

“Immunity passports”, opportunism, and COVID-19

Today the Appropriations Committee of the California Assembly held another hearing on A.B. 2004, a bill that would add to state law a provision that:

An issuer, including an issuer that is a public entity, of COVID-19 test results or other medical test results may use verifiable credentials, as defined by the World Wide Web Consortium (W3C) for the purpose of providing test results to individuals.

What does this mean? Why does it matter? Is it part of a larger pattern?

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May 19 2020

TSA tries again to impose an ID requirement to fly

Air travel in the US has been reduced by more than 90%, measured by the numbers of people passing through checkpoints at airports operated by the Transportation Security Administration (TSA) and its contractors.

And the Department of Homeland Security (DHS) has postponed its threat to start unlawfully refusing passage to travelers without ID credentials compliant with the REAL-ID Act of 2005 for another year, from October 1, 2020, to October 1, 2021.

So relatively little attention is being paid right now to air travel or TSA requirements — making it the ideal time for the TSA to try to sneak a new ID requirement for air travel (to take effect in 2021) into place without arousing public protest.

Today, in collaboration with nine other organizations concerned with freedom of travel, identification, privacy, human rights, and civil liberties, we filed comments with the TSA in opposition to what is ostensibly a “Notice of intent to request approval from the Office of Mangement and Budget” for a new form, TSA Form 415.

Our comments were joined by the Identity Project, Freedom To Travel USA, Fiat Fiendum, Inc., National Center For Transgender Equality (NCTE), Restore The Fourth, Inc., Patient Privacy Rights, Defending Rights And Dissent, The Constitutional Alliance, Privacy Times, and Just Futures Law.

According to our comments, the TSA is attempting to “use the innocuous-seeming device of a request for approval of an information collection to introduce a fundamental and profoundly controversial change in substantive TSA requirements and the rights of travelers”: Read More

May 04 2020

Dare County tries to evade court review of its entry controls

Local government controls on travel to the Outer Banks (barrier-beach islands) of North Carolina remain in place, but local officials are making changes to try to head off a court decision on the Constitutionality of their emergency orders restricting free movement.

A month ago, as we reported earlier,  Dare County, North Carolina, set up checkpoints on all three roads leading into or out of the county. Police began denying passage along these public rights-of-way on the basis of  criteria including whether travelers have government-issued ID (even if they are passengers rather than drivers, or traveling on foot or by bicycle,  for which no drivers’ license is needed); what address is shown on their ID (if any —  U.S. passports, for example, show no address); which direction they are traveling; and whether they have been sponsored for an “entry permit” by an entity with a business license issued in Dare County.

County officials represented their emergency orders imposing these restrictions on travel  as health measures in response to the COVID-19 pandemic. But none of the criteria for who is allowed to pass through the checkpoints, or in which direction, have anything to do with whether travelers were believed, suspected, or likely to be infected with the novel coronavirus.

The emergency orders gave no indication of what, if any, procedures were available for administrative or judicial review of decisions to deny passage in or out of the county. But non-resident owners of homes in Dare County quickly brought suit in Federal court against the prohibition on traveling to their own seasonal, rental, or second homes.

Since then, the case has been referred for mediation, and the parties (non-resident property owners and the Dare County government) have requested and been granted a delay on the basis that they are in negotiations towards a possible settlement.

Today Dare County is beginning to allow passage across the bridges and into the county by non-resident owners of real property in Dare County, if and only if they have both an “entry permit” issued by the county and matching government-issued ID.

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Apr 29 2020

No cellphone? Not at address on your ID? Hawaii threatens arrests.

“Aloha!” Passengers arriving at Honolulu International Airport on April 28th are interrogated and their cellphones are tested. Photo provided by the Hawaii Department of Transportation.

We’ve been puzzling over this press release issued April 24th by the Department of Transportation of the State of Hawaii, entitled, “Improved verification process implemented for airline passenger,” which begins as follows:

The Hawaii Department of Transportation (HDOT) has implemented improved measures to verify incoming passenger information before they leave the airport to help ensure people are abiding by the traveler quarantine order. The enhanced process is underway at the Daniel K. Inouye International Airport (HNL) and will begin statewide in the coming days.

We’ve read through the emergency proclamations by the Governor of Hawaii, and can’t find anything in the quarantine orders purporting to give authority to state officials to “verify passenger information.”

The press release threatens that anyone who arrives without  a working cellphone, charged, with service and coverage in the arrival area at the airport, will be arrested:

An airport representative will collect the two forms and begin verifying their information. First, they will call their mobile phone number to confirm it rings right in front of them. If it does not ring, the person may have listed inaccurate information and is asked to verify the number. If the person refuses to provide a phone number that can be answered on the spot, law enforcement is contacted and they are subject to citation and arrest.

We have no idea what the purported basis would be for arresting someone who isn’t carrying a cellphone, whose phone doesn’t have service in Hawaii (especially likely if they are arriving from another country), or whose cellphone battery has run down from watching  videos or playing games in airplane mode during a trans-oceanic flight.

But that’s not all:

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Apr 20 2020

COVID-19, the REAL-ID Act, and ID to fly

A month ago — in what seems like it was long ago and in a galaxy far, far, away, before the COVID-19 pandemic reduced air travel in the US by more than 95% —  the US Department of Homeland Security was stepping up its baseless threats to begin “enforcement” of the REAL-ID Act against airline passengers on October 1, 2020.

There’s been no change (yet) in the REAL-ID Act or the regulations for its implementation, despite proposals that remain pending in Congress.

Over the last month, though, President Trump, Acting Secretary of Homeland Security Chad Wolf, and the Transportation Security Administration have each issued formal or informal notices or statements about their intentions with respect to the REAL-ID Act and ID demands for air travel.

As of now, it appears that the DHS/TSA “ultimatum” to air travelers to obtain “compliant” ID cards or be denied passage through TSA and contractor checkpoints at airports will be postponed yet again, this time for another year, until October 1, 2021.

After that date, it appears that the TSA intends to continue to allow people to fly even if they don’t show ID at checkpoints, but only if it the TSA or its contractors thinks that they have been issued some compliant ID (even though they don’t have it with them).

Is this legal? No. Does this make any sense? No. But it’s what the TSA seems to saying it plans to propose. The TSA  is asking for comments on this proposal from the public through May 19, 2020.

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Apr 14 2020

Dare County wants to see your papers

Providing the rest of the USA with an object lesson in how not to react to a pandemic,  Dare County, North Carolina, has established checkpoints on all roads crossing the county borders, at which travelers must show their papers to enter the county.

Pursuant to a series of emergency declarations issued by the Dare County Board of Commissioners, law enforcement officers are demanding that each person seeking to enter the county show either a government-issued ID card with an address in Dare County, or both some other government-issued photo ID and a county-issued entry permit.

A Federal lawsuit has been filed, seeking to have this enjoined as unconstitutional (at least as applied to the named plaintiffs). But as discussed below, the lawsuit barely scratches the surface of the issues this raises.

Why is Dare County doing this? What’s wrong with this ID requirement? Is it legal?

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Mar 30 2020

“Known Traveler Digital Identity” (KTDI)

On March 26, 2020, the World Economic Forum published specifications  and launched a new website for a project it has christened “Known Travel Digital Identity” (KTDI):

KTDI is a “surveillance-by-design” vision for tracking and control of travelers more dystopian than anything we have seen before.

KTDI would use a blockchain-based distributed ledger to bind together, through an app on a traveler’s mobile device, all of the following data:

  • Biometrics (initially facial images, possibly also fingerprints, etc.)
  • Government-issued ID credentials (passport number, etc.)
  • Travel history including logs of border crossings, hotel stays, and possibly also car rentals and/or other events
  • Purchase logs and possibly bank account information and/or other financial and transaction records
  • Pre-crime predictive “risk assessment” and profiling scores generated at each “intervention” point before and during each trip or transaction

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Mar 24 2020

How drivers license photos are aggregated and shared

During a press conference yesterday, President Trump announced a postponement of the “deadline” previously announced by the Department of Homeland Security for “enforcement” of the REAL-ID Act of 2005 at TSA checkpoints:

I’m also announcing that we’re postponing the deadline for compliance with REAL ID requirements…. We will be announcing the new deadline very soon. It’s going to be announced in a very short moment.

The REAL-ID Act “deadline” was set by DHS press release, not by law or regulation. It’s unclear if a new date will be announced by decree of the Secretary of Homeland Security, or by promulgation of regulations. There has been no further announcement by the DHS, and there is no notice of rulemaking in the Federal Register today.

As we noted yesterday, neither a postponement nor any of the other proposed amendments to the REAL-ID Act would address the central problems in this law: the requirement for states that want to be deemed “compliant” to share their drivers’ license and state-ID databases with all other states.

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