Papers, Please – Page 12 – Papers, Please!

Feb 16 2017

Executive Orders, lawsuits, and the right to travel

[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:

Feb 14 2017

The right to anonymous pedestrian travel and protest

In a victory for the right to anonymous pedestrian travel and protest, the 5th Circuit Court of Appeals has reinstated a civil rights lawsuit brought by a protester who was arrested while holding a sign alongside a road in Stafford, Texas (near Houston), and charged with violating Texas Penal Code § 38.02:

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

The opinion of the 5th Circuit panel in Jonathan Davidson v. City of Stafford, et al. breaks no new ground, but it’s an important reminder to the public and to police of the right to protest, the right to walk the streets and highways, the right to do so anonymously — and the potential liability of police who abridge those rights.

State and local ID laws vary greatly, and it’s important to know the law in your jurisdiction. We reiterate the importance of knowing the law in your jurisdiction and seeking legal advice in advance (this blog is not legal advice) if you anticipate being questioned by police.

As we read this decision, however, the key lesson it reinforces is that laws like Texas Penal Code § 38.02 which require people who are arrested to identify themselves can’t be used to bootstrap a general requirement for anyone on the street to identify themselves to police on demand. Such a law imposes an obligation to identify oneself only if there is probable cause for police to believe that some other law was violated.

Without some other lawful basis for an arrest, such an ID-if arrested law creates no obligation for a pedestrian or protester to identify herself to police.

Feb 01 2017

Carrier sanctions kill. Airlines collaborate.

[Sign carried by Dan Malashock at San Francisco International Airport, January 29, 2017. Photo by Ruth Radetsky.]

Since the start of our work against restrictions on freedom to fly, well before September 11, 2001, we’ve been wondering what further outrage it would take to provoke mass protests at airports, and when that would finally happen.

Now we know. Thousands of protesters (including at least one of President Trump’s fellow billionaires) filled international airports across the country for several days and nights starting last weekend, in reaction against President Trump’s executive order to detain and deport any arriving non-US citizen known to be a citizen (even a dual citizen) of one of seven publicly blacklisted Muslim-majority countries: Iraq, Iran, Libya, Somalia, Syria, Sudan, and Yemen.

We’ve been talking about related issues for years. Now that they are out in the open, the question is what the outraged public will do, at whom the outrage will be directed, and how airlines — yes, airlines, and not just governments — will respond.

For what it’s worth, it’s unclear whether this executive order would apply to an asylum seeker who renounces their original citizenship in one of the blacklisted countries, even one who makes that renunciation at the check-in counter or in flight, and thereby arrives in the US stateless. This may seem a far-fetched scenario, but it is common for stateless asylum seekers to use “invalid”, forged, or fraudulent documents to board flights, and then to destroy those documents in flight so as to arrive without papers. Deportation of any stateless person, and most of all a stateless asylum seeker, is especially problematic under international human rights law. But that’s the least of the problems with President Trump’s executive order.

Here are some key things we’ve learned from our work over the last 20 years that people — including those just now beginning to think about the right to fly, especially as it relates to immigrants, refugees, and asylum seekers — need to understand about what is happening, who is responsible, what will happen next, and what can be done:

Jan 09 2017

IDP comments on TSA proposal to require ID to fly

Today the Identity Project and the Cyber Privacy Project filed comments with the Transportation Security Administration opposing a stealthy TSA proposal to start requiring ID to fly.

The TSA has long harassed people who try to fly without being required to show their “Papers, Please!” at TSA checkpoints.

But the TSA’s official position in court has always been that ID is not required to fly: “You don’t have to show ID to fly. You can fly without ID. We have a procedure for that.”

You can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about you obtained by the TSA from the commercial data broker Accurint, and (3) submit to more intrusive than standard search (“secondary screening”) as a “selectee”.

That’s the way it is, and that’s the way it’s been for years.

Now, as we reported in November of last year, the TSA is contemplating a new pattern and practice of preventing anyone from passing through a TSA checkpoint or getting on an airline flight unless either they have ID the TSA deems acceptable, or they reside in a state that the TSA deems sufficiently compliant with the REAL-ID Act.

Dec 08 2016

The rhetoric and reality of counterterrorism

Remarks by President Barack Obama on the Administration’s Approach to Counterterrorism, MacDill Air Force Base, Tampa, Florida, December 6, 2016:

Let my final words to you as your Commander-in-Chief be a reminder of what it is that you’re fighting for, what it is that we are fighting for…

The United States of America is not a place where some citizens have to withstand greater scrutiny, or carry a special ID card, or prove that they’re not an enemy from within. We’re a country that has bled and struggled and sacrificed against that kind of discrimination and arbitrary rule, here in our own country and around the world.

We’re a nation that believes freedom can never be taken for granted and that each of us has a responsibility to sustain it…. We are a nation that stands for the rule of law.

That sounds great in theory. But in practice?

Some citizens do have to withstand greater scrutiny. That’s the whole point of the pre-crime profiling that the Obama Administration has called “risk-based security” and that President-Elect Trump has called “extreme vetting”.
Under the REAL-ID Act and the TSA’s latest proposal, some citizens — those who want to exercise our right to freedom of movement and to air travel by common carrier — will have to carry a special “REAL-ID Act compliant” ID card and have our personal information added to a national ID database maintained by a private contractor that isn’t subject to government rules for transparency or accountability.
The DHS has held itself above the law, arguing that its actions should not be subject to judicial review and that it needs to be allowed to act secretly and unpredictably (i.e arbitrarily) in order not to reveal “rules” that would help terrorists “game” the system — as if asserting one’s legal rights was tantamount to terrorism.

We’ll be watching closely to see whether the gap between the rhetoric and reality of profiling, discrimination, rights, and rule of law widens or narrows under President-Elect Trump and his nominee for Secretary of Homeland Security, retired Marine Gen. John F. Kelly.

In the meantime, we’ll keep doing our part, as we encourage our readers to do theirs, to act on the President’s statement that “freedom can never be taken for granted and that each of us has a responsibility to sustain it.”

Nov 21 2016

TSA proposes to require ID to fly

Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

Nov 18 2016

What does Donald Trump’s election mean for our work?

We endorsed neither Hillary Clinton, Donald Trump, nor any other candidate for elected office. So what does the presumptive election of Donald Trump as President of the U.S. — when the electors cast their ballots on December 19, 2016, and the votes are counted on January 6, 2017 — mean for the work of the Identity Project?

First and foremost, it means that our work, and the need for it, will continue — as it has under previous administrations, both Democratic and Republican.

Human and Constitutional rights are, by definition, no more dependent on the party affiliation of the President, if any, than on our own. Freedom is universal. Our defense of the right of the people to move freely in and out of the U.S. and within the country, and to go about our business, without having our movements tracked and our activities logged or having to show our papers or explain ourselves to government agents, has been and will remain entirely nonpartisan.

We will continue to criticize those who restrict our freedoms and infringe our rights, regardless of their party, just as we have criticized the actions of both the Obama and Bush administrations and of members of Congress and other officials of both parties, many of whom remain in power despite the changes at the top.

Attacks on our liberty have been, and remain, just as bipartisan as our resistance to them. This is especially true of the imperial power which the Presidency has been allowed to accrue, and which is exercised through Presidential proclamations, executive orders, and the secret law (or, to be more accurate, lawlessness) of Federal agency “discretion”. Those who acquiesced in the expansion of Presidential power and executive privilege because they thought that it would be used to their benefit by a President of their own party have only themselves to blame if that power is later used against them by a new President of a different party, or without allegiance to a traditional party hierarchy.

Many of the most imminent ID-related threats are those that arise from existing laws or extrajudicial administrative practices, the limits of which — in the absence of legislative or judicial oversight and checks and balances — are set solely by executive order. Where President Trump can make changes to ratchet up repression, to register and track both U.S. and foreign citizens, and to monitor and control our movements within the country and across borders, with the stroke of a pen, we don’t expect that he will hesitate to wield the power he has inherited to govern by issuing public decrees or by giving secret orders to his minions.

In some of these cases, Federal officials and the homeland-security industrial complex of contractors, confident that the incoming occupant of the White House will bless their efforts to anticipate has desires, may take action even before they are ordered to do so. This seems especially likely, in our area of concern, with respect to (1) the DHS implementation schedule and requirements for the REAL-ID Act, (2) the TSA’s longstanding desire to enforce and eliminate exceptions to a de facto ID requirement for air travel that lacks any basis in statute and contravenes the U.S. Constitution and international law, and (3) expanded use of ID and surveillance-based pre-crime profiling (President-to-be Trump calls it “extreme vetting”) as the basis for control of movement, especially across borders.

We will be watching closely and reporting on signs of activity on all these fronts, some of which are already visible.

Now more than ever, we need your support — not just helping us to defend your rights, but asserting your rights and taking direct action to defend them yourselves. “The limits of tyrants are prescribed by the endurance of those whom they oppress.”

We invite you to join us in our continued resistance to all lawless attacks from any and all sides on our Constitution, our freedom, and our human rights.

Oct 24 2016

Is it suspicious to avoid the police when they might want to ask for ID?

In a case resting on the same Nevada law that was at issue in the Supreme Court’s 2004 decision in Hiibel v. Nevada, the 9th Circuit Court of Appeals has held that someone who runs away from approaching police can be found guilty of “obstructing” the police by denying them the opportunity to question him about his identity.

The 9th Circuit overturned findings by the U.S. District Court for the District of Nevada that the police lacked reasonable suspicion to detain the person in the first place and, even if they had a basis to detain him, lacked probable cause to arrest him. The decision signficantly undermines, in the 9th Circuit, the positive aspects and the limitations in the Supreme Court’s decision on police demands for ID in Hiibel v. Nevada, as well as the right to remain silent and the right to be free from unreasonable searches.

Oct 20 2016

DHS continues to threaten states that resist the REAL-ID Act

[Status of REAL-ID compliance as of October 17, 2016 (Source: AAMVA.org)]

Last week the Department of Homeland Security denied requests by five states for “extensions” of time to comply with the REAL-ID Act of 2005. The DHS denials of requests for extensions were accompanied by renewed threats of restrictions on residents of those states: “Starting January 30, 2017, federal agencies and nuclear power plants may not accept for official purposes driver’s licenses and state IDs from a noncompliant state/territory without an extension,” said DHS spokesman Aaron Rodriguez in a statement.

Does this mean that a deadline is approaching? That every state except these five has “complied” with the REAL-ID Act? That these “holdouts” have no choice but to comply? That the sky will fall on these states, or their residents, if they don’t?

No, no, no, and no.

As we told the Washington Times:

Not everyone thinks states will, or should, be swayed by the federal government’s determination.

“These are not states that stand out because they are less compliant,” said Edward Hasbrouck, a spokesman for the privacy advocacy group The Identity Project.

He says Homeland Security is arbitrarily enforcing aspects of the Real ID Act by deeming states compliant even when they have not met every requirement, noting specifically few “compliant” states have met the requirement that they provide access to information contained in their motor vehicle database via electronic access to all other states.

“It’s a game of chicken, it’s a game of intimidation, and very little of it has to do with actual requirements or actual deadlines,” Mr. Hasbrouck said.

If Homeland Security, which repeatedly has pushed back compliance deadlines for Real ID, does go through with the commercial airline restrictions in 2018, Mr. Hasbrouck said he expects grounded passengers would eventually bring litigation challenging the law.

Let’s look at some of the questions skeptical citizens and state legislators ought to be asking about these DHS scare tactics:

- How many states have complied with the REAL-ID Act? Noncompliant states are neither alone nor isolated. According to the Washington Times, “Homeland Security reports that 23 states and Washington, D.C., have met enough of the Real ID standards to be deemed in compliance with the law.” In fact, as we’ve reported previously and as we noted in the comments above, the most significant component of compliance with the REAL-ID Act is participation in the national ID database (the one the DHS keeps claiming doesn’t exist). That database, called SPEXS, is operated by a subcontractor to the American Association of Motor Vehicle Administrators (AAMVA) as a component of its S2S system. When last we checked, in February of this year, only 4 of 55 US jurisdictions (states, the District of Columbia, and US territories) had connected their state drivers license and ID databases to S2S. With the addition of the latest two states this month, the total of states participating in S2S is up to nine, as shown on the AAMVA map at the top of this article. We don’t know whether all nine of those states have implemented all the other requirements of the REAL-ID Act. But we do know that no state not participating in S2S is in compliance. So at most nine states are in compliance with the REAL-ID Act. The vast majority of jurisdictions are noncompliant. And at this rate, it will take many years, if it ever happens at all, for the DHS to whip the rest of them into line.

- When is the deadline for states to comply with the REAL-ID Act? There is no deadline for compliance in the law itself. The DHS could set deadlines by promulgating regulations, but it could also change them in the same way, at any time, for any reason. In practice, the current DHS threats aren’t event based on DHS regulations, but on dates specified solely in DHS press releases and changeable at DHS whim.

- What is required for DHS certification of material compliance or progress toward compliance by individual states? There are no criteria in the law. The law leaves this up to the “discretion” of the DHS, which in practice means that it can be standardless, secret, and arbitrary. DHS choices of which states to threaten are political and tactical choices about which states the DHS thinks it can intimidate, and in which order. They aren’t based, or required to be based, on any actual measurement, checklist, or relative degree of compliance.

What will happen, and when will it happen, to residents of states that don’t comply sufficiently or quickly enough? Probably nothing. What the DHS will try to do, and when, is once again totally up to its discretion. There are no deadlines in the law. But as our analysis and the responses to our FOIA requests have shown, the threat to deny access to Federal facilities is a red herring. Most workers at these facilities, for example, already have Federally-issued employee IDs, and don’t rely on state-issued IDs for entry. Members of the public generally enter these facilities to exercise various of their rights, which the DHS recognizes they have a right to do without any ID. If the DHS changes its tune, and tries to interfere with those rights, what the DHS can get away with will be determined by Federal judges in the inevitable lawsuits brought by residents of disfavored states (hopefully with the support of state governments) whose rights are interfered with on the basis of the REAL-ID Act.

Oct 07 2016

“Following the money” in travel surveillance

The growth of a homeland-security industrial complex funded by single-source contracts and shielded by knee-jerk invocation of “security” as an excuse for secrecy has created huge opportunities for cronyism and collusion between lobbyists, contractors, and government officials.

The poster child for this revolving door and its invidious effects on government policies and spending is former Secretary of Homeland Security Michael Chertoff and his work as a lobbyist for Rapiscan, the supplier of the TSA’s virtual strip-search machines.

Unsurprisingly, the US isn’t alone in allowing the commercial interests of spy-tech companies to drive government decisions to spy on travelers.

In the latest issue of the EDRi-gram newsletter, our friends at the European Digital Rights Initiative explore “The curious tale of the French prime minister, PNR and peculiar patterns.” It seems that the French military technology contractor Safran, whose “Morpho” division is one of the leading vendors of turnkey PNR-based traveler surveillance and profiling systems, is one of the largest employers in the home town of French Prime Minister Manuel Valls.

According to Estelle Massé and Joe McNamee of EDRi:

France has been particularly insistent on the unsubstantiated benefit of profiling all travellers — indiscriminately and in the absence of suspicion. French Interior Minister Bernard Cazeneuve pushed for swift adoption of the EU PNR directive before the EU Council, going so far as to accuse the European Parliament of being “irresponsible for delaying the vote” — implying that democratic debate over a privacy-invasive measure is simply wasting time. French Prime Minister Manuel Valls also pushed for the directive, allegedly arguing for adoption as a strong symbolic gesture in the fight against terrorism…

Safran has a major base in Evry, the small town south of Paris where Valls was mayor from 2001-2012. The company employs more than 3300 people and, earlier this year, Valls visited the site and discussed Safran’s role in ensuring long-term employment in the region. The French government said in a statement following the visit, “We have one aim: that the French industry stays ahead.”

The company now appears to be in fine fettle. It won major contracts to put in place expensive PNR systems in France and Estonia. Now that the PNR directive will make such systems mandatory across the EU, it is also seeking contracts in several other EU countries.

That’s not the end of the story. The pattern of links between Valls and Safran run even deeper. According to the French news outlet Marianne, in 2012, when a Safran contract was not renewed, Valls, who was then interior minister, allegedly intervened to help the company. He appears to have done so despite the fact that the proposed change to the contract could have saved 30 million euro of public funds.

Bertrand Marechaux, the police chief who questioned the contract, kept fighting to modify it and initiating legal proceedings against Morpho, a subsidiary of Safran. He was ultimately removed from his position. Valls’ office didn’t respond to Marianne’s request for comment at the time.