Papers, Please!

In May and June of 2017, several new FAQs about “requirements” for travel on common-carrier airlines were posted on TSA.gov and DHS.gov:

• “Identification” (TSA.gov)
• “Frequently Asked Questions: REAL ID” (TSA.gov)
• “REAL ID Frequently Asked Questions for the Public” (DHS.gov)

Statements about current and future ID “requirements” similar to those on these websites have also appeared on official signs in some airports.

It should go without saying that neither government websites nor informational signs in airports create legal rights or obligations or can be relied on as authoritative statements of the law.

Federal law is contained in the US Constitution, international treaties duly ratified by the US in accordance with the US Constitution, the US Code, and US Public Laws. Federal regulations are contained in the Code of Federal Regulations. The Freedom of Information Act requires that binding Federal agency rules, regulations, and orders of general applicability be published in the Federal Register.

If you want to know what the law says, you need to read the law, not press releases from government agencies or anyone else (including us!).

This is especially important with respect to the TSA, since the TSA website and TSA signs in airports have for years included statements about ID requirements to fly that have been disclaimed by TSA witnesses testifying under oath and by TSA lawyers arguing before Federal courts.

So what is the TSA saying now about ID to fly? Is it true? And is it legal?

The TSA’s latest public statements are more accurate than some of the agency’s previous press releases about ID to fly, and may (although we can’t really tell, given the absence of fomal proposals or published rules) accurately describe the changes the TSA intends to implement. But major questions remain about the legality of both current and possible future ID practices at TSA and contractor checkpoints at US airports.

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[Guest commentary by Rep. Chris Tuck, Majority Leader in the Alaska House of Representatives, published in the Alaska Dispatch News, Fairbanks News-Miner, Juneau Empire, Mat-Su Valley Frontiersman, and Alaska Journal of Commerce]

I am disappointed that the Administration of [Alaska Governor] Walker has given in to the fear tactics and misinformation of the Department of Homeland Security and the Transportation Security Administration by putting forth legislation to make Alaska implement the Federal REAL ID Act and pay for it ourselves. It is my duty to set the record straight and make sure people have the facts they need to defend their rights.

The Department of Administration has been reporting that if we do not agree to comply with REAL ID we will not be allowed to use our state IDs to get through TSA checkpoints or to get on base. In reality there is no existing or proposed federal law or regulation requiring ID to travel at all.

A recent reply to a four-year-old Freedom of Information Act request to the DHS has shown that 77,000 people per year fly without ID, and only 2 percent who try are ever turned away. Not only that, it is the Pentagon and individual base commanders who decide what ID is required to get on base.

The Department of Homeland Security does not have authority over the Pentagon. That is why the DHS instead uses fear tactics and misinformation to try and force REAL ID on the states.

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Imagine that you’re a U.S. citizen. You were born in the USA. You’ve never been a citizen of any other country, and you have no birthright to any other citizenship.

Now imagine that you are abroad long enough that your passport begins to approach its expiration date. Naturally, you apply to renew it, leaving plenty of time. You have to surrender your old passport with the renewal application, but of course you expect to get your new passport shortly.

Now try to imagine that the State Department puts your passport renewal application into limbo — for almost three years (and still counting). Your application for a new passport is neither granted nor denied, so there is no explicit “decision” to appeal administratively or challenge in court.

Without a passport, you are trapped in whatever country you happened to be in when you applied to renew your passport. No other country is likely to let you in without a passport, nor will any airline let you on an international flight without a passport — not even to return to the USA.

If your visa or permission to remain in that country as a foreigner expires, or if you get into any situation in which you are you are required to show your passport, you are liable to be arrested and thrown into detention or deportation proceedings.

You keep going back to the U.S. Consulate to find out what is happening with your passport application. They tell you they don’t know. They suggest that you go to the end of the line by withdrawing your still-pending application, and starting over — putting your new application at the back of the years-long queue.

Eventually they get tired of putting you off, and order you — a native born sole U.S. citizen — to leave the U.S. Consulate, and not to darken their door again under pain of arrest. Arrest for what violation of what country’s laws, they don’t say.

You try to find a lawyer to hire, but this is outside the expertise or experience of any U.S. lawyer, and none wants to take on your case.

Is this a realistic scenario? Yes.

We’ve heard from more than one person in this situation — and not just the Yemeni-Americans we wrote about a few years ago.

Meet Daniel Bruno, man without a passport:

I was born in Manhattan…. I have a birth certificate…

In May of 2014, I walked into the US Embassy in Buenos Aires with my perfectly valid US passport that was due to expire in six months. I filled out the renewal forms, paid the fees, was interviewed and dismissed by Vice Consul Creaghe. I never had a US passport again because they would not renew it.There is, of course, much more to this story,… but the bottom line is that according to them, Americans have no right to a passport, no right to a nationality document and no right to return to the US… and I know this is illegal.

BTW, let me mention that I’m not wanted for a crime, back taxes, child support, etc….

I am actively seeking constitutional and civil rights lawyers who want to help me defend the rights of all of us.

We’ve met Daniel Bruno in person, and all of the documentation we’ve seen — both from him and from the State Department in response to a Privacy Act and FOIA request we helped him file — supports his account of his bureaucratic ordeal. (The State Department has provided only a partial response, which does not yet include any of the records from the consulate in Buenos Aires.) Is Mr. Bruno now an expatriate? Or has he been effectively exiled by the USA?

We aren’t able to represent Mr. Bruno. But if you are, or you know a lawyer who is, we’ll be happy to put you in touch.

On average, 77,000 people each year — more than 200 a day — pass through TSA checkpoints to board airline flights in the USA without showing ID.

Ninety-eight percent of the would-be travelers who show up at TSA checkpoints without ID are allowed to board their flights. Only two percent are turned back.

The average time spent by the TSA “Identify Verification Call Center” in questioning each traveler without ID has been between seven and nine minutes.

Show up at the airport with no ID (or with ID that isn’t considered “acceptable” by the TSA), and there’s a 98% chance that you will be allowed to fly without ID, after 7-9 minutes of additional questioning and a pat-down (which you would have gotten anyway if you didn’t consent to “virtual strip search” imaging) and search of your carry-on bags.

All this is according to internal TSA logs and summary reports on each person who tried to fly from 2008 (when the TSA started using its current procedures and form for people who fly without ID) through 2011. These reports were finally released to us, after four years of TSA foot-dragging, in response to a Freedom Of Information Act request we made in 2013.

So much for the false claims the TSA, the DHS, and their collaborators at state licensing agencies are making that people who live in states that don’t comply with the REAL-ID Act won’t be allowed to fly without “acceptable” ID.

It doesn’t matter whether your ID is “compliant” or “acceptable”. You can fly with no ID at all, and hundreds of people do so every day after what is typically only a brief delay.

Over the years, we have received a trickle of incident narratives, which have been helpful in understanding how the TSA deals with people who show up without ID and what data the TSA uses to make judgments about travelers. But these narratives are for exceptional incidents in which travelers were not quickly “verified” and allowed to proceed. The annual summaries (2008, 2009, 2010, 2011) were only released as the 14th and last batch of responses to our request. (The TSA illegally substituted PDF files of page images for the original spreadsheet or table files, making them much larger files and harder to tabulate. We will be appealing the TSA’s substitution of less-useful newly-created files for the originals, and failure to produce the files in their original format as we requested.)

We remain concerned, of course, about the 2% of would-be fliers without ID who are wrongly prevented from exercising their right to travel by air. The percentage is small (again, just 2% of the people who show up at TSA checkpoints with no ID or without “acceptable” ID), but it still comes to more than 1500 people a year, throughout the USA, whose rights are violated. States should not only say “no” to compliance with the REAL-ID Act, but start preparing now to defend their residents’ freedom of travel and to ask Federal courts to enjoin the DHS and TSA from any interference with that right.

We’ll be testifying (by teleconference) at hearings today in the Senate State Affairs Committee (3:30 p.m. ADT) and House State Affairs Committee (5:30 p.m. ADT) of the Alaska State Legislature on three state bills related to Alaska’s response to the Federal REAL-ID Act of 2005:

1. SB34: Implementation of the federal REAL ID Act of 2005
2. HB74: Implementation of the federal REAL ID Act of 2005
3. HJR15: Encouraging repeal of the REAL ID Act of 2005

• Alaska and the REAL-ID Act
  (written testimony of Edward Hasbrouck on behalf of the Identity Project)
• REAL-ID Facts for Alaskans
  (fact-checking the FAQ distributed by the Alaska Department of Administration)
• Alaska and the Right to Travel by Air
  (facts about Gilmore v. Gonzales, the legal case cited by the Department of Administration)
• Financial and other implications of the REAL-ID Act

In 2008, shortly before the REAL-ID Act was scheduled to take effect (the DHS has repeatedly postponed that discretionary “deadline” as politically and practically unfeasible, most recently until 2020) the Alaska State Legislature enacted a state law prohibiting any state spending to implement the REAL-ID Act.

Now, in respond to Federal threats to interfere with Alaskan residents’ freedom of movement if the state government doesn’t upload information about all state license and ID-card holders to a national ID database, the state legislature is considering bills to authorize that spending and implementation.

It makes no sense for Alaska to call for repeal of a disliked Federal law of dubious Constitutionality, and simultaneously to authorize state spending to comply with that law, without first getting the courts to rule on whether the (unfunded) mandate for state action or the threatened sanctions against state residents are Constitutional.

As we say today in our written testimony to members of the House and Senate State Affairs Committees:

Alaska HJR15 is an important statement of support by the Alaska State Legislature for efforts in Congress to repeal the REAL-ID Act. But Alaskans and the State of Alaska cannot, and should not, merely sit back and wait for Congress to act.

No Federal law or regulations requires air travelers to show any ID. People fly without ID every day. But the TSA has indicated that it intends to propose regulations, revise TSA Standard Operating Procedures, and/or issue Security Directives to air carriers to require air travelers to show ID acceptable to the DHS in order to fly.

This threat poses a special danger to Alaskan residents, especially those in communities and locations not connected to the North American road network, and/or who rely on air transportation for access to essential and emergency services.

Unless and until this threat is withdrawn, Alaskan state authorities including the office of the Attorney General of Alaska should be preparing to defend any Alaska residents whose rights are interfered with by Federal agents.

And rather than waiting to intervene until after Federal agents start denying Alaska residents access to essential air transportation, the state should, as soon as it is ripe for adjudication, initiate litigation to prevent interference with residents’ rights.

It makes no sense for your state to capitulate, as these bills would have it do, in response to threats of Federal action action whose Constitutionality has yet to be tested.

It would be premature for Alaska to abandon its long-standing and well-founded opposition to the REAL-ID Act in response to DHS threats to interfere with the rights of state residents as a sanction for state noncompliance with the REAL-ID Act, while:

1. A Federal ID credential, a passport card, is available to any U.S. citizen who qualifies for a REAL-ID compliant state ID, and can be used for any purpose for which a compliant state ID can be used as well as for surface travel to Canada;
2. Legislation to repeal the REAL-ID Act or significantly mitigate the dangers of creating an uncontrolled national ID database is pending in Congress;
3. No Federal statute or regulation requires air travelers to show any ID to fly, and residents of Alaska and other states continue to fly every day without ID;
4. No regulations have been proposed that would require anyone to show ID to fly;
5. No court has considered whether it would be Constitutional to require air travelers or passengers of other common carriers to show ID;
6. Compliance with the REAL-ID Act would create special problems for Alaskan residents, especially residents of communities not accessible by road;
7. The lack of alternatives to air transport gives Alaska a uniquely strong legal basis to challenge any Federal attempt to impose an ID requirement for air travel;
8. More populous states that are manifestly not in compliance with the statutory criteria for REAL-ID Act database access have not been similarly threatened; and
9. No court has ruled on the legality of the DHS arbitrarily exercising “discretion” to restrict the rights of residents of some noncompliant states but not others.

We urge the Alaska State Legislature to reject SB34 and HB74, stand firm in your opposition to the REAL-ID Act, and prepare to defend the Constitutional rights of Alaskans and all Americans to freedom of travel and movement, including by air.

San Francisco and Silicon Valley are among the centers of opposition to President Trump and his fascism, especially as it relates to restrictions on movement, border controls, immigration, and asylum.

Bay Area technology companies and their better-paid classes of employees like to think of themselves as building a better world that reflects the distinctive values that have attracted dreamers and futurists to this region  from across the country and around the world. But some of these companies are key developers and providers of “big data” tools for the opposite sort of “Brave New World“.

On Saturday, Edward Hasbrouck of the Identity Project was invited to speak to an ad hoc group of picketers outside the Pacific Heights mansion of Palantir Technologies founder and Trump supporter Peter Thiel (photo gallery from the SF Chronicle, video clip from KGO-TV; more photos from the East Bay Express).

As Anna Weiner reported in the New Yorker (“Why Protesters Gathered Outside Peter Thiel’s Mansion This Weekend“):

David Campos, a former member of the San Francisco board of supervisors, who emigrated from Guatemala, in 1985, stood on the brick stoop and raised a megaphone. “The reason we’re here is to call upon the people who are complicit in what Trump is trying to do,” he said. Clark echoed the sentiment. “If your company is complicit, it is time to fight that,” she said. Trauss, when it was her turn, addressed Thiel, wherever he was. “What happened to being a libertarian?” she asked. “What happened to freedom of movement for labor?”

Edward Hasbrouck, a consultant with the Identity Project, a civil-liberties group, took the stand, wearing a furry pink tiger-striped pussyhat. “The banality of evil today is the person sitting in a cubicle in San Francisco, or in Silicon Valley, building the tools of digital fascism that are being used by those in Washington,” he said. “We’ve been hearing back that there are a fair number of people at Palantir who are working really hard at convincing themselves that they’re not playing a role — they’re not the ones out on the street putting the cuffs on people. They’re not really responsible, even though they’re the ones who are building the technology that makes that possible.”

It’s easy to rationalize the creation of technological tools by saying that they can used for good as well as evil. But you can’t separate the work of tool-making from the ways those tools are being used. Palantir workers’ claims to “neutrality” resemble the claims made in defense of IBM and Polaroid and when they were making and selling “general purpose” computers, cameras, and ID-badge making machines to the South African government in the 1970s. None of this technology and equipment was inherently evil. But in South Africa, it was being used to administer the apartheid system of passbooks and permissions for travel, work, and residence.

The same goes for “big data” today. To understand what’s wrong with the work being done by Palantir for the US Department of Homeland Security, it’s necessary to look not just at what tools Palantir is building but at how and by whom they will be used; not just at the data tools but at the datasets to which they are applied, the algorithms they use, and the outcomes they are used to determine.

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“If you have a current valid visa to travel, we welcome you. But unregulated, unvetted travel is not a universal privilege.” (US Secretary of Homeland Security John Kelly, March 6, 2017)

Taking his words literally, Secretary Kelly got it half right. But fundamentally, he got it all wrong, in his statement today on the #MuslimBan 2.0 Executive Order signed today by President Trump. (Hera’s a redlined comparison with the #MuslimBan 1.0 Executive Order which it replaces.)

Travel by asylum seekers isn’t a universal “privilege”. It’s a universal right.

Much can, and no doubt will, be said about other aspects of today’s Executive Order. Most of our comments on #MuslimBan 1.0 apply equally to #MuslimBan 2.0, which will continue to be enforced (illegally) primarily by airline and travel agency staff at ticket offices and check-in counters at foreign airports.

But as defenders of the right to travel and of the rights of refugees and asylum seekers, we want to make sure that Secretary Kelly’s denial of the existence of these rights doesn’t go unchallenged:

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Earlier this week at least two US Customs and Border Protection officers boarded a domestic Delta Air Lines flight from San Francisco when it arrived at JFK Airport in New York, stood at the doorway as passengers disembarked, and “requested” that each passenger hand over their identification “documents”.

CBP says that this was a “request“.  One passenger told Rolling Stone, “the Delta flight attendant alerted passengers, ‘You’ll need to show your papers to agents waiting outside the door.'” As shown in photos posted to Twitter by passengers here and here, the agents appear to have been between the passengers they were questioning and the exit, closing them in so that they couldn’t have left.

It’s often unclear whether a statement of what law enforcement officers “need” is a request or a demand. Another passenger, a photo editor for Vice News,  says passengers were given an order, not a potentially ambiguous statement of “need”: “We were told we couldn’t disembark without showing our ‘documents.'”

Many air travelers in the US have become inured to requests or demands for ID documents by airline clerks and TSA checkpoint staff and contractors before they are allowed to board domestic flights. But the presence of Customs and Border Protection officers on a domestic flight, and ID checks after an otherwise uneventful flight, have prompted many questions.

Is this normal? Is this legal? Should it be legal? And what should you do if this happens to you?

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The 5th Circuit Court of Appeals has joined other Courts of Appeals in finding that the First Amendment protects the right to make audio and video recording of police activities in public places, including recording police officers and vehicles outside a police station  from a public sidewalk.

The Court also found that Texas Penal Code § 38.02, interpreted in light of the decision of the US Supreme Court in Hiibel v. Nevada, does not and could not Constitutionally authorize an arrest solely for refusal to identify oneself, in the absence of some predicate basis for legitimate suspicion of violation of some other law.

In the 5th Circuit, it is now clearly established law that you can record the police anonymously in public places, without fear of arrest unless there is probable cause to believe that you have violated some other law.

The ruling in  Turner v. Driver et al.  is the the second decision this month by different three-judge panels of the 5th Circuit interpreting the Constitutional limits on Texas ID law, as applied to people engaged in activities protected by the First Amendment in public places. An earlier decision upheld the right to anonymity for a protester standing along a highway (where the sidewalk would have been, if there had been a sidewalk) adjacent to the parking lot of a strip of businesses.

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[D]ue process requires… notice and a hearing prior to restricting an individual’s ability to travel.

(9th Circuit Court of Appeals, Order on Motion for Stay, February 9, 2017, State of Washington and State of Minnesota v. Trump)

President Trump’s Executive Orders prohibiting entry to the US by citizens of specified blacklisted countries and cutting off all Federal grants to designated “sanctuary jurisdictions” that decline to spend their local funds and direct their employees to enforce certain Federal immigration laws have prompted a wave of litigation by individuals and, significantly, by states and cities across the US.

We welcome the increased public interest in Federal government attempts to control the free movement of free people, the new activism on the issues of freedom to travel, and the new willingness of states and municipalities to challenge restrictions on their residents’ right to travel.

There’s been much discussion and analysis of the implications of these lawsuits for these specific Executive Orders. Relatively little attention has been paid, however, to the implications for litigation over other ongoing and emerging issues of freedom to travel of what is being said, and by whom, in the litigation over the recent Executive Orders.

Here are some of our thoughts, from the trenches of more than 15 years of legal and political struggle for the right to travel, on what these cases may portend:

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