Papers, Please – Page 20 – Papers, Please!

Apr 17 2013

Federal court voids New York subway “ID rule”

In a case touching on several issues of concern for us here at the Identity Project, a Federal magistrate has struck down the N.Y. Transit Authority’s “ID rule” as unconstitutionally vague.

This was the right decision in the case, and it was issued on the right basis. And it articulates the sort of analysis and judgment that courts ought to apply to a range of other ID and related rules applicable to travelers, including in particular the TSA’s regulations requiring us to submit to “screening” as a condition of travel, without any definition of what constitutes “screening”.

Barry v. City of New York, et al. began with a complaint that focused on the right to take photographs and to be in public (in public areas of the New York City subway system) without identifying documents:

This is a civil rights action to vindicate the rights of the plaintiffs and of the public to take
photographs in the New York City subway system without fear of arrest and to be in public without identification documents.

But the case was decided neither on the basis of the right to take photographs nor the right not to carry or produce ID credentials — although those rights were implicated, and helped establish the applicable standard for vagueness — but on the basis of the vagueness of the underlying rule.

Apr 15 2013

Can you fly without ID? Only if the TSA gives you permission.

While we’re picking on what the TSA posts in its official blog, let’s take a look at what the TSA said in another blog post earlier this week entitled, “Can you fly without ID?”

It’s an important question, but the TSA only hints at the answer.

One might expect that the answer to the question, “Can you fly without ID?”, would start with the ID rules. But no, there are no rules about this or anything else the TSA does. The TSA has “Standard Operating Procedures”, but (a) they aren’t rules, and the TSA can’t be required to follow them, and (b) they are secret. Gotta keep the terrorists (and the innocent travelers) guessing, apparently.

According to the TSA’s latest blog post:

If we can’t confirm your identity with the information you provide or you’re not willing to provide us with the information to help us make a determination, you may not be able to fly.

What does this mean?

Obviously, the only reason you might “not be able to travel” would be that the TSA would prevent you from doing so, or direct someone else — most likely the airline or local law enforcement officers — to do so. So the TSA statement amounts to an assertion of authority to issue no-fly orders.

But the TSA doesn’t say that you won’t be able to travel, only that you “may” not be able to do so. So the TSA’s assertion is of discretionary no-fly authority.

There is no requirement in any TSA regulation or law for would-be travelers to identify themselves or provide any information to the TSA. Nor is there any definition of what it might mean for the TSA to “confirm your identity”, or what information might be required for that purpose. So the TSA’s assertion is of administrative no-fly authority not derived from any public source and not bounded by any publicly-disclosed standards.

To sum it up, even while saying that yes, you might sometimes be allowed to fly without ID, the TSA is claiming the authority, in its standardless administrative discretion, to prevent you from flying if you don’t provide whatever information it asks for, or if it claims to have been unsuccessful (for whatever reason) in accomplishing whatever it thinks constitutes “confirming” your identity.

So much for the “right” to fly without ID, and for TSA compliance with its explicit statutory duty to treat air travel as a public right.

Mar 30 2013

“Travel Surveillance, Traveler Intrusion” at the Cato Institute

Edward Hasbrouck of the Identity Project will be speaking at a free, public forum on Travel Surveillance, Traveler Intrusion from noon-1 p.m. EDT next Tuesday, 2 April 2013, at the Cato Institute in Washington DC (with a live webcast):

Travel Surveillance, Traveler Intrusion

[photo by kind permission of Jeramie D. Scott]

Video from the Cato Institute (recommended)

Video from C-SPAN

C-SPAN video on Youtube

Audio podcast (listen while viewing the slides)

Slides and notes (PDF)

Featuring Edward Hasbrouck, Journalist, Consumer Advocate, Travel Expert, and Consultant, The Identity Project (PapersPlease.org), Author of the book and blog, The Practical Nomad; and Ginger McCall, Director, Open Government Program, Electronic Privacy Information Center; moderated by Jim Harper, Director of Information Policy Studies, Cato Institute.

The United States government practices surprisingly comprehensive surveillance of air travel, amassing data about the comings and goings of all Americans who fly. Travel expert Edward Hasbrouck has been researching travel surveillance for many years. His findings reveal a stunning level of government surveillance, control of the traveler, and intrusion into commercial travel IT systems.

By April 2, the Transportation Security Administration will have begun a public comment process on its policy of putting travelers through imaging machines that can see under their clothes. Ginger McCall of the Electronic Privacy Information Center has been handling the litigation that prompted the D.C. Circuit Court of Appeals ruling requiring it to do so, and she will assess the proposed regulation and her renewed efforts to bring the TSA within the law.

If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live.

The Cato Institute asks that you pre-register if you plan to attend in person, but that’s just so they have an estimate of the expected attendance.

Hasbrouck will be presenting examples of what he found in his files when he sued the DHS for its records of his travels, what other travelers have found in theirs, and how the DHS obtains and uses this information to track us and to control who is allowed to travel.

As part of the same program, Ginger McCall of EPIC will be discussing the TSA’s proposed “rules” to require all air travelers to submit to virtual strip-searches. You have 90 days, until 24 June 2013, to tell them what you think of their proposal. (On the form to submit comments to the TSA, note that all of the fields except your comment itself are optional.) You can find some ideas for what to say in our previous article about the rulemaking.

There will be a live webcast, for those who aren’t in DC.

If you’d like to follow along, you can download the slides from Hasbrouck’s presentation as a PDF file.

[Update: C-SPAN broadcast the event live. Streaming video is available from the Cato Institute event archives (recommended), the C-SPAN archives, or on Youtube. The C-SPAN and Youtube camera angles don’t show the slides which illustrate Hasbrouck’s talk, so we recommend watching the Cato version and/or downloading the slides to follow along with the talk on C-SPAN. If you want to find out what’s in the file about you in the DHS “Automated Targeting System”, you can use the forms here. We would welcome a chance to review the government’s response, if you get one, and help you interpret it.]

Mar 01 2013

Will “E-Verify” become the new national ID?

The House Homeland Security Subcommittee on Immigration and Border Security held a hearing this week on How E-Verify Works and How it Benefits American Employers and Workers.

Despite the boosterish title, the Subcommittee still heard testimony and received written statements that “E-Verify” doesn’t work, doesn’t benefit American employers or workers, and costs billions of dollars a year. But what’s even worse about “E-Verify” is the likelihood that what is now an identity “verification” system will be expanded to include a mandatory national biometric identity card and permission-for-employment system, with a default of “No”.

According to the Wall Street Journal:

Key senators are exploring an immigration bill that would force every U.S. worker—citizen or not—to carry a high-tech identity card that could use fingerprints or other personal markers to prove a person’s legal eligibility to work.

The idea, signaled only in vaguely worded language from senators crafting a bipartisan immigration bill, has privacy advocates and others concerned that the law would create a national identity card that, in time, could track Americans at airports, hospitals and through other facets of their lives….

The Senate group, in a statement guiding their work on a new law, called for workers to prove their legal status and identities through “non-forgeable electronic means.” Senate aides said the language was intentionally broad because of the sensitivity of the issue. Mr. Graham [Sen. Lindsey Graham, R-SC], in an interview, said that in his mind the language refers to a requirement for biometric ID cards.

How did the U.S. come to this?

The slippery slope began in 1986, with a law effectively repealing the right to work and shifting the burden of proof of legal eligibility for employment onto would-be workers. Since then, all employees have been required to provide their employers with evidence either of citizenship or immigration status entitling them to paid employment in the U.S. In effect, this law created a (rebuttable) legal presumption of non-entitlement to employment, giving new literal meaning to the slogan, “We are all illegal”.

The next step was E-Verify, “an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.”

E-Verify continued the presumption of illegality, and raised the burden of proof even higher: No evidence of identity, citizenship, immigration status, or eligibility for employment is deemed acceptable or sufficient unless it corresponds to records in the same error-riddled government databases that routinely categorize live people as dead.

Extending E-Verify to all employees would make employment a privilege contingent on Since not being listed correctly in those databases typically leads to denial of other government entitlements, “safety-net” benefits, and even access to bank accounts, failing an “E-Verify” check can be a sentence to starvation, not just unemployment, or to existence on the sufferance of family, friends, or private charity.

Adding a biometric “worker ID card” would add much to the cost, but little to the benefits (if any) of the system, since undocumented workers would simply obtain (valid) ID cards in stolen identities. A study last year by Professors Jonathan Weinberg and Michael Froomkin for the Earl Warren Institute on Law & Social Policy at UC Berkeley School of Law found conservatively estimated the costs of such a scheme at more than $40 billion.

This isn’t the first time, and won’t be the last, that proponents of a national ID card have tried to sneak it through Congress in the guise of a measure related to immigration, terrorism, or something else. But as with the Social Security account number, which has become an all-purpose personal ID number, it’s unlikely that government credentials and identifiers will be limited to the purposes for which they are originally created.

Tell Congress you oppose any national ID card — no matter what the excuse.

Feb 04 2013

Update on Mocek v. Albuerque

On January 14, 2013, U.S. District Judge James O. Browning issued his first major ruling in Mocek v. Albuquerque, the Federal civil rights lawsuit brought for false arrest at a TSA checkpoint brought by Philip Mocek following his acquittal by a jury on trumped-up criminal charges.

Judge Browning dismissed Mr. Mocek’s complaints against the Federal (TSA) defendants. The reasoning of that ruling is in marked conflict with several findings on the same issues by the 4th Circuit Court of Appeals in Tobey v. Jones, although that decision isn’t binding on the District Court hearing Mr. Mocek’s case since it’s in a different Federal judicial circuit.

According to the Albuquerque Journal, “Mary Lou Boelcke, Mocek’s attorney, said she expects to appeal the ruling, either before trial or after Browning decides other issues regarding the city.”

On February 1, 2013, the remaining Albuquerque defendants (the city, airport, and individual police officers) filed their own motion to dismiss the complaints against them. That motion is now pending.

Dec 02 2012

TSA updates its “notice” of Secure Flight records

The TSA published a revised System of Records Notice in the Federal Register on November 19th, updating its disclosures of what information about our “travel histories” it collects, retains, and uses through its Secure Flight program for airline passenger surveillance and control.

The new notice is both better and worse than it might appear at first glance. The new “Secure Flight” SORN describes some disturbing TSA practices that were not explicitly disclosed in the previous “Secure Flight” SORN published in 2008.

In particular, the new SORN discloses that if you are turned down or predetermined to be ineligible for the TSA’s “Pre-Check” or other “Registered Traveler” (a/k/a “Possibly Slightly Less Mistrusted Traveler”) programs, you can be placed on a new watchlist, as a result of which logs of your air travel will be retained by the TSA for 99 years. That’s especially problematic because applicants for the Pre-Check program aren’t told that being turned down could leave them worse off than if they had never applied, and subject to lifetime TSA air travel monitoring and itinerary logging.

Bad as this is, however, it isn’t really a change in what data TSA claims the right to collect, or how long it claims the right to retain and use it. These practices were already covered under “catch-all” clauses of the prior SORN, which are retained in the revised SORN, and that actually purport to authorize a much wider range of even worse practices.

Specifically, the “Secure Flight” SORN already disclosed that “Secure Flight” records might contain:

Records obtained from the TSC [Terrorist Screening Center] of known or suspected terrorists in the TSDB [Terrorist Screening Database] and records regarding individuals identified on classified and unclassified governmental watch lists…

There’s no definition or limitation on the sources or purposes of these additional “watch lists”. But it’s clear from the description quoted above that these are watch lists other than those of suspected terrorists: lists of people who are to be watched, and whose air travel itineraries are to be logged for life, for (secret, unrestricted) reasons other than that they are suspected of terrorism. Read More →

Nov 17 2012

Air Canada lies about government access to reservations

Airlines should have been defending their customers against government demands for information. Instead, they have chosen to collaborate with governments not just in surveillance and violation of the rights of their customers, but in the cover-up of those practices and the attempt to keep travelers from realizing their extent.

We got a letter from Air Canada yesterday informing us that, “Your personal information was not disclosed to a government agency with respect to the flights mentioned in your Request…”

If we didn’t know better, this would be reassuring. But it’s not true.

As it happens, we had gotten another letter earlier this week from the Canadian Border Services Administration (CBSA), containing portions of its records of Passenger Name Record (PNR) and Advance Passenger Information (API) data about our flights on Air Canada, which CBSA had obtained from computerized reservation systems and Air Canada’s Departure Control System (DCS):

[Excerpt from Air Canada API and PNR data from the CBSA “Air Targeting” system]

The information in the CBSA Air Targeting files includes both PNR and API data for Air Canada flights, despite the “claim”: that, “Air Canada is not in a position to provide you with APIs records and logs for the flights listed in your Request since no such APIs records were created.”

And earlier this year, in the last batch of information disclosed by US Customs and Border Protection in response to our Privacy Act and FOIA lawsuit for records from the CBP Automated Targeting System, we received copies of two PNRs that CBP had obtained from different reservation systems for those same Air Canada flights:

[Excerpt from Air Canada PNR from the USCBP Automated Targeting System]

[Excerpt from Air Canada & Swiss International PNR from the USCBP Automated Targeting System]

Nov 16 2012

The facts on the ground in Arizona

“Don’t trust, and don’t verify“, would seem to be the motto of authorities in Arizona when it comes to demands for documents and “proof” of citizenship and status — if your skin is brown.

Arizona’s SB1070 requires police, in certain circumstances, to “attempt” to determine your immigration status. But that obligation on the police does not create any obligation on individuals. In its initial decision on SB1070, the Supreme Court made clear that this provision of the law cannot Constitutionally be used as the basis to detain people without some other lawful basis.

Actions on the ground in Arizona, however, suggest that in practice the burden of proof is being placed on (brown-skinned) Arizonans to prove that they are “not illegal”, on pain of prolonged detention on the basis of mere suspicion (and regardless of the weight of the actual evidence).

The Phoenix New Times has been following the case of Briseira Torres. She was born (at her mother’s home, which the Department of State seems to find inherently suspicious) in Arizona, and her birth was registered (albeit late, as is common for home births) with the Arizona Office of Vital Records.

One doesn’t have to be registered with the government to be born, or to be a US citizen. But that didn’t stand in the way of Arizona and US authorities. When Torres went to the Federal Building to apply for a passport for her daughter, after submitting a copy of her own birth certificate as evidence of her daughter’s US citizenship by birth, the State Department employees at the passport office called in Arizona state law enforcement officers to help interrogate Ms. Torres.

Eventually, on the theory that the original registration of Ms. Torres’ home birth had been falsified, the Feds turned her over to state authorities, who had her indicted (withholding from the grand jury the state’s official record of her valid birth certificate, and falsely claiming to the grand jury that her birth registration had been “cancelled”) for fraud. She was jailed for 4 1/2 months, during which time she was separated from her child and lost her home and car because she couldn’t make the payments on them, before she got a lawyer and the state withdrew the charges.

Now, to try to retroactively justify their deprivation of Ms. Torres’ rights, state officials have initiated a newly-created administrative process to revoke the registration of her birth.

In other words, the state of Arizona wants to “un-birth” Ms. Torres — at age 31.

We’re glad Ms. Torres has a lawyer, and we hope she collects substantial damages from both Arizona state and county officials and the State Department “special agent” who initially detained her, called in the state cops, and eventually turned her over to their custody.

This incident began with Ms. Torres being called in to answer questions about her passport application for her daughter. The role of the Passport Office and other State Department employees shows exactly why we are so concerned about the State Department’s proposed new questionnaire for passport applicants.

Government “un-birthing” of citizens isn’t the only strange thing going on in Arizona, unfortunately.

At the Deconcini border crossing between the central business districts of Nogales, Arizona, and Nogales, Sonora, US Customs and Border protection is requiring some “trusted travelers” to submit to interrogation by allegedly lie-detecting robots developed (with DHS grant money, we presume) by the National Center for Border Security and Immigration at the University of Arizona.

If the robot thinks you are lying, “a more through interview would follow”, according to news reports.

But Ms. Torres’ example shows that if a human Fed in Arizona thinks you are lying about your papers, they will detain you and turn you over to the state of Arizona to be locked up without bail for months, without bothering even to look at your actual papers (not that you have to have any “papers” in the first place to be born or have rights).

In that light, we hope courts will look skeptically at the legality of prolonging the detention of a border crosser based on the statement of a semi-anthropomorphic animated robot that, “I think you are lying.”

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data. Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing whatever its oracle decrees. In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it. Just remember, as you study his presentation, that:

“Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government. Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.

Oct 17 2012

Cuba makes it easier to leave the country, while the US makes it harder

We’re pleased that Cuba has promulgated rules, effective January 13, 2013, which will eliminate the requirement for most (but not all) would-be emigrants to obtain the government’s permission to leave the country, and to make the issuance of a passport a matter of right for most Cuban citizens.

At the same time, the US has ordered airline common carriers not to allow any would-be passenger to board any international flight departing from the US without individualized prior permission from the government. Any attempt to leave the US, even by land, without a passport, has been criminalized, without any recognition of passport issuance as a right. The State Department, in its claimed “discretion” to deny passports to US citizens at whim, has increasingly been demanding that passport applicants answer impossibly detailed and irrelevant interrogatories to establish their identity and citizenship. At the same time, the State Department has tried to suppress knowledge of its own regulations which entitle passport applicants to establish their identity by the testimony of a witness rather than by paper credentials.

And the State Department continues to ignore our complaints that these practices violate US obligations under the same provisions of the same human rights treaties that the US has invoked against Cuba.

So our challenge to those in Congress who have criticized Cuba’s restrictions on freedom of movement is this:

By January 13, 2013, when these new rules take effect in Cuba, will you have introduced and enacted legislation to require the State Department to treat passport issuance as a matter of right for US citizens, and to repeal the prohibitions on departure from the US without government permission?

We encourage our readers and supporters to let your representatives know that you expect the US to do at least as much as Cuba’s government to effectuate the right to freedom of movement.