When we reported last week on the passport provisions in the new “Fixing America’s Surface Transportation Act”, we focused on the details of the rules for denial or revocation of US passports of citizens alleged to owe more than $50,000 in Federal taxes.

We should, perhaps, have put more emphasis on the other new basis we mentioned for the denial of a passport application: failure to provide a valid Social Security account number on the passport application form. This could affect more people than the linkage of passports to taxes.

While the shorthand title on our blog post referred to people who “don’t have” a Social Security number, the same fate could befall anyone who chooses not to disclose their Social Security number. The new law would authorize but not require the Secretary of State — at her standardless “discretion” — to deny any passport application that doesn’t contain a valid Social Security number.

There are probably more US citizens who don’t have a Social Security number than who owe more than $50,000 in taxes. And there are good reasons for even those citizens who do have a Social Security number not to want to disclose it to the State Department and to all the other government agencies (including the DHS) with which it shares passport data.

Federal law and IRS regulations already imposed a $500 civil penalty for applying for a passport without providing a Social Security number. This was a high price to pay for freedom from travel dataveillance based on Social Security number. But it wasn’t always enforced (more “discretion”), and it was not a basis for denial of a passport. Now it is.

Why would someone who has a Social security number not want to give it to the State Department? The answer is obvious once you reverse the question: Why does the State Department want to record the Social Security number of each passport holder? And how do the State Department, and the other agencies with which it shares this data, plan to use it?

There’s a separate legal requirement and required form, which includes the passport number, for reporting any international transportation of $10,000 or more in cash or “monetary instruments”, either as accompanied baggage or in an unaccompanied shipment. So the State Department doesn’t need Social Security numbers in passport files to know whether large sums of money are being taken in or out of the country by the holder of a particular passport.

The new law doesn’t just require that you show that you have a valid Social Security number before you can receive or renew your passport. You must provide your Social Security number to the State Department, so that it can be entered into the passport records database.

Nor is your Social Security number used only to check with the IRS whether you are suspected of owing back taxes. The principal routine users of this data outside the State Department are the DHS, “for border patrol, screening, and security purposes.” Screening is, of course, a euphemism for algorithmic profiling and profile-based search and control.

In other words, the real point of requiring each US passport applicant to supply their Social Security number is to enable all the financial records linked to that Social Security number to be combined with the travel records linked to the passport number in the DHS “Automated Targeting System” and included in the inputs to the pre-crime “black box” that decides whether to give airlines and other common carriers permission to transport each US citizen, and how intrusively to search and/or interrogate each US citizen who is allowed to travel.

DHS Automated Targeting System records include many identifiers and pointers that can be used to link them to other databases: timestamped IP addresses, cellphone numbers, passport numbers, credit card numbers, names of emergency contacts and traveling companions, etc. But they haven’t yet contained Social Security numbers, so far as we know. Now they will, or will be linked to a related database that does.

Government records indexed by Social Security number aren’t just tax records, but records of your worldwide assets and financial affairs. Records identified by Social Security Number (but not passport number, so they would otherwise be at least somewhat more difficult for DHS to use for this profiling), include not only US bank accounts but also foreign bank accounts (reported by Social Security number on the required annual FBAR form) and other foreign “financial assets” (a partially overlapping category) required to be reported each year on IRS Form 8938.

None of this has anything to do with citizenship, which should be the sole criterion of entitlement (not merely “eligibility” at the government’s “discretion”) to a US passport.

President Obama’s televised speech last Sunday included a smorgasbord of proposals (and endorsements for proposals already made by members of Congress) for more control and surveillance of travel.

We’ll look first at the proposals for restrictions on travel by foreign visitors to the US, followed in our next post by some of those that would affect US citizens.

According to the President:

We should put in place stronger screening for those who come to America without a visa so that we can take a hard look at whether they’ve traveled to warzones. And we’re working with members of both parties in Congress to do exactly that.

What does “stronger screening” mean? And what’s a “warzone” [sic] when on the one hand there has been no declaration of war against anyone, anywhere, and on the other hand the government apparently believes that it has the authority to treat the entire planet as a battlefield on which to wage its “War on Terror”?

To understand what the President really means, let’s look at the proposed legislation. The President appears to have been referring to H.R.158, the so-called “Visa Waiver Program Improvement Act of 2015”, which passed the House this week and is pending in the Senate.

The “Visa Waiver Program” (VWP) is a scheme under which citizens of certain preferred countries are given US government permission through the “Electronic System for Travel Authorization” (ESTA) to board flights to the US — provided that they agree in advance that they when they arrive in the US, they can be denied admission for any or no reason, that they will not contest any denial of admission, and that they will bear their own costs of deportation if they aren’t admitted.

This isn’t based on reciprocity. Citizens of all other second-class countries must obtain paper visas, which require a much higher fee and an in-person interview at a US Embassy or Consulate, even for short visits as tourists or to change planes in the US in transit between e.g. Europe or Asia and Latin America.

Most of the countries that the US “allows” to participate in the VWP allow US citizens to enter as tourists, and sometimes for other purposes, without obtaining any permission or submitting any information to the destination government prior to their arrival.

An ESTA walks like a visa and quacks like a visa, except that it is issued electronically rather than stamped in a passport. To obtain an ESTA, a would-be foreign visitor must apply through a cumbersome CBP Web site, providing a variety of personal information to enable the application to be matched with the applicant’s “travel history” and other secret data in the CBP’s Automated Targeting System (the information required on the ESTA application was just increased last month) and pay a fee with a credit card so that the application can also be matched with any US government records about the applicant’s finances.

The travel industry reportedly wants the current euphemistic name of this program changed to the more Orwellian, “Secure Travel Partnership”, which gives a pretty accurate indication of the industry’s willingness to partner with governments in surveillance and control of travelers, as long as doing so doesn’t cost the industry money.

Any foreign citizen who “intends” to enter the US under the VWP is required to obtain an ESTA before CBP will give an airline permission to issue a boarding pass for a flight to the U S.

After operating the VWP/ESTA scheme for seven years under an “interim” rule, the DHS finalized the VWP/ESTA regulations and made them permanent earlier this year, dismissing our objections that the rules are unconstitutional, violate US obligations under international human rights treaties, and exceed the authority of CBP or the DHS.

How would any of this change if the bill endorsed by the President, H.R.158, becomes law?

Aside from reporting requirements, the only substantive change that would be made by the House bill would be to require that the secret pre-crime prediction algorithm incorporated into the ESTA approval/denial decision-making black box must consider “terrorism risk” in addition to, as is already required, “security risk”. We have no idea what this means. What sort of “terrorism risk” wouldn’t also constitute a “security risk”? But we can only assume that the proponents of this bill, including the President, want more secret rules added to the algorithm, to keep away even more visitors.

The White House has also talked about denying ESTA approvals and entry under the VWP on the basis of which other countries travelers have previously visited. A European citizen who has visited friends or family in Syria, for example, might find themselves barred from the US for the next five years unless they go through the drawn-out and expensive process of applying for a full US visa. A provision to this effect is part of both the Democratic (S. 2337) and Republican (S. 2362) versions of Visa Waiver Program bills pending in the Senate, but wasn’t included in the version approved by the House.

The Supreme Court has found unconstitutional on its face a Los Angeles ordinance requiring operators of hotels and motels to demand specified personal information from and about each guest and their behavior (date and time of arrival and departure, license plate number of the vehicle in which they arrived, etc.), log this travel metadata, and make this log (“guest register”) available for warrantless, suspicionless inspection by police at any time, under penalty of immediate arrest and imprisonment of the hotelier, without possibility of judicial review before complying with a demand for inspection.

The Supreme Court rejected the contention that hotels are so instrinsically dangerous as to justify their treatment as a “closely regulated industry” subject to inspection (i.e. search) without probable cause: “[N]othing inherent in the operation of hotels poses a clear and significant risk to the public welfare.”  By implication, this is a significant rebuff to post-9/11 (and pre-9/11) arguments that travel or travelers are per se suspicious, and to claims that there is or should be some sort of travel (or travel industry) exception to the Fourth Amendment.

And lest anyone be tempted to say that travel services providers with legally-imposed duties to accommodate the public are somehow different when it comes to the applicability of the Fourth Amendment, the Supreme Court also found that, “laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches.”  The same logic, of course, would appear to apply to common carriers, who are obligated by law to provide transportation to all paying passengers.

The ruling by the Supreme Court in Los Angeles v. Patel upholds an en banc decision last year by the 9th Circuit Court of Appeals in a lawsuit first brought seven years ago by hotel owners Naranjibhai Patel and Ramilaben Patel and by the Los Angeles Lodging Association, an association of Indian-American proprietors of the sort of budget hotels that might, if allowed to do so by the government, provide accommodations of last resort to people without government-issued ID credentials who would otherwise have to sleep on the streets or under bridges.

We again commend Messrs. Patel and the LA Lodging Association for doing the right thing and standing up for their customers, even as small business owners highly vulnerable to police harassment and retaliation for questioning authority.

The Supreme Court ruling addresses only the rights of hotel owners, not those of hotel guests, and does noting in itself to establish a right to obtain lodging without having or showing government-issued permission papers. Nor does it address the requirement for hotels to monitor and log their guests’ identities and activities — only the requirement to make those logs available to the government without any possibility of prior judicial review of government demands for access.

As others have noted, and as we discussed in relation to the 9th Circuit’s decision and the Supreme Court’s decision to review it, much of the logic of this decision is equally applicable to other dragnet travel surveillance schemes involving compelled compilation, retention, and government access to travel metadata held by third parties (in this case, hotels) rather than by travelers themselves.

But as we have also noted before, this remains the only case we are aware of in which any of those travel companies — not just hotels but also airlines and other types of travel companies– have gone to court to challenge government demands for information about their customers.

Especially in light of this decision by the Supreme Court, it should be apparent that there’s an Achilles heel for the government to the “third-party” doctrine that individuals have no standing to challenge government demands for information  provided to and held by third parties, because that information is owned by those third parties and not by the individuals to whom it pertains:  As this case makes clear, those third parties — not just hotels but also airlines and others — do have standing to challenge these demands, and have a good chance of success if they persevere.

The shame is on larger travel companies with deeper pockets for going along with government surveillance of their customers and guests without question, and leaving it to highly vulnerable small businesses with fewer resources to challenge this dragnet travel surveillance scheme.

In the wake of the Supreme Court’s decision in L.A. vs. Patel, there’s more reason than ever for travelers to demand that all travel companies make public, contractually binding commitments, in their tariffs or terms of service, not to disclose information about their customers to the government without challenging those demands and without seeking to notify their customers of those demands.