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The Identity Project

Category Archives: Papers, Please

Sep 10 2013

9th Circuit considers Constitutionality of ban on Internet anonymity

Last year, we reported on a Federal district court hearing on the Constitutionality of portions of the law enacted by California’s Proposition 35, which requires California residents who have been convicted of certain sex-related crimes to register with the local police, annually and within 24 hours of any addition or change, for the rest of their lives, “A list of any and all Internet identifiers established or used by the person [and] A list of any and all Internet service providers used by the person… For purposes of this chapter, (a) “Internet service provider” means a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet…. (b)  “Internet identifier” means an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication.”

The challenge to this portion of the law, being argued by Electronic Frontier Foundation and the ACLU of Northern California on behalf of as-yet-anonymous clients who would be subject to this registration requirement, is a crucial test of the right to anonymity on the Internet.

It’s easy to say, “This only affects sex offenders.”

But restrictions on First Amendment rights are always imposed first on the most stigmatized groups of people, whether the villians du jour are serial killers, perverts, Communists, or Jews.  Once they are accepted by the public as applied to those disfavored classes, these measures can gradually be expanded until everyone has to register with the government, carry government-assigned credentials identifying them and/or their group affiliation (Star of David, pink triangle, etc.), or comply with other restrictions that have come to be accepted  as merely “administrative” rules for how they can exercise their rights, and are no longer considered substantive restrictions on rights.

Judge Thelton Henderson of the U.S. District Court for the Northern District of California had issued a temporary restraining order prohibiting the state form enforcing this part of the law. Following the hearing we reported on, Judge Henderson converted that order into a preliminary injunction.  Both the state of California, and the sponsors of the ballot initiative (as “intervenors” in the court case) appealed to the Circuit Court before the District Court could resolve the issue of whether to make the injunction permanent.

Today a three-judge panel of he 9th Circuit Court of Appeals heard arguments on whether to let the preliminary injunction remain in force while the District Court proceedings continue.

Today’s hearing focused on whether the provisions of Prop. 35 requiring registration of Internet service providers and “identifiers” chill the exercise of free speach and are overbroad, i.e are not “narrowly tailored” to restrict no more activity protected by the First Amendment than is necessary. (The vagueness of the terms “Internet service provider” and “Internet identifier” was raised in the briefs, but barely mentioned at argument.)

Early in the hearing, Judge Jay Bybee observed that, “We’re living in a post-Snowden world now, where we all have to wonder whether all of our communications are being monitored by the NSA.” It was an intriguing suggestion of how much judicial attitudes may have been reshaped by the actions of whistleblowers.

The law’s proponents argued that free speech would not be chilled because under the law the police would have only limited authority to make Internet identifiers public.

But Michael Risher of the ACLU pointed out that chilling effects result primarily from fear of official retaliation — such as by the police. Police don’t have to make registration information public to use it themselves against people who say things they don’t like.

“A registrant who wants to criticize the local police department in comments on a local newspaper’s website, but doesn’t want to face retaliation, will be chilled if they know that their identifier is on file with those local police…. Among the reasons for protection of anonymous speech is to protect against this sort of official retaliation.”  It’s easy for the police to make life hard for a registered sex offender, Risher pointed out.

The law’s defenders had a particularly hard time justifying the breadth of the registration requirement, which they conceded applied (at least as the law is written) to screen names or accounts used to post comments on websites from the New York Times to eBay, and to people whose crimes had nothing to do with the Internet.

“If I open an account so I can sell my bicycle on Craigslist, do I have to report that?”, Judge Bybee asked.

When counsel for the intervenors tried to justify the requirement for registration of Internet identifiers (but not pseudonyms used for other sorts of communications) by claiming that “sex crimes are moving to the Internet”, Judge Mary Schroeder shot back, “So is shopping. So what?”

We’re relatively optimistic that this panel of the 9th Circuit will allow the District Court’s preliminary injunction to remain in force. But it’s still up to the District Court to make that injunction permanent.

Aug 22 2013

California considers “enhancing” drivers licenses with radio tracking beacons

California’s legislature is considering a bill to authorize adding radio tracking beacons to drivers licenses and state non-driver ID cards.

Each such card would broadcast a unique tracking number which could legally be intercepted by anyone with a suitable radio transceiver within range, and which would be linked to a national DHS database of drivers license, state ID card, and citizenship information.

The tracking beacons are designed to allow the tracking numbers on ID cards carried by travelers in motor vehicles to be read from outside their vehicles as they approach or pass through checkpoints.

Independent academic studies of actual ID cards issued by other states, using the same standards proposed for use in California, have found that they can sometimes be read from more than 50 yards away.

S.B. 397 has already been approved by the California Senate, and is now under consideration in the Assembly. Because it has been amended by the Assembly, it will need to be reconsidered by the Senate (to decide whether to accept the Assembly amendments) if and when it is approved by the Assembly.

To date, S.B. 397 has been largely unopposed in the California legislature, and it is likely to be approved unless legislators start hearing a groundswell of opposition from their constituents.

What excuse is being offered for this scheme? And what’s its real purpose?

Read More →

Aug 19 2013

White House approves new “long forms” for some passport applicants

After a year-long “review”, the White House on August 12, 2013, approved the State Department’s proposed new “long form” questionnaires for some (unspecified) subset of applicants for US passports:

Form DS-5513, “Supplemental Questionnaire to Determine Entitlement for a U.S. Passport”:

Form DS-5520, “Supplemental Questionnaire to Determine Identity for a U.S. Passport”:

In approving these forms, the Office of Management and Budget (OMB) ignored overwhelmingly public outrage at these questionnaires, which ask such questions as:

  • List all your parent(s) residences one year before your birth.
  • Parent(s) place of employment at the time of your birth (Dates of employment, Name of employer, Address of employer).
  • Did your mother receive medical care while pregnant with you and/or up to one year after your birth? (Name of hospital or other facility, Address, Name of Doctor, Approximate dates of appointments).
  • Please provide the names (as well as address and phone number, if available) of persons present at your birth such as medical personnel, family members, etc.
  • Please list any schools, day care centers, or developmental programs you attended from birth to age 18 in or outside of the United States.
  • Please list all of your permanent residences inside and outside of the United States starting with your birth until age 18.

The proposed forms were slightly (but not significantly) revised by the State Department during the review by OMB. But there are still no publicly-disclosed guidelines for which passport applicants would be sent one or both of these “long forms”.  We requested this information from the State Department more than two years ago under the Freedom of Information Act (FOIA), but the State Department has not yet responded to our request. (This is, we’ve been told, typical of the State Department’s failure to comply with FOIA deadlines.)  The most reasonable inference is that the new forms are designed to be impossible to complete, so as to provide a pretext to deny you a passport if the State Department doesn’t like your looks (or your opinions, or whatever).

The State Department has also ignored our formal complaint that these conditions for passport issuance violate U.S. obligations as a party to the International Covenant on Civil and Political Rights, and our FOIA request for any records of what (if anything) was done with that complaint.

OMB declined our written request to meet with them to discuss our objections to the proposed forms. OMB policy is to meet with groups interested in its reviews of proposed regulations, but it doesn’t apply that policy to its reviews of proposed “information collections”.

In the course of the review by OMB, the State Department admitted that, as we had already reported, it has already been using these forms illegally. According to the latest State Department submission to OMB:

The DS-5520 has been created to correct a procedure that may have been inconsistent with the Paperwork Reduction Act (PRA)….   Field offices have, in the past, sent the applicant a letter containing a questionnaire asking for the supplemental information.  The Department has become aware of this procedure and is now seeking OMB approval to rectify the oversight….

The DS-5520 is a new collection based on the previously internal Information Request Letter (IRL) titled, “Supplemental Identification List”.  To estimate the number of respondents per year, therefore, the Department ran a report using our Management Information System (MIS) to determine the number of these IRLs filed in 2011 by every passport agency and acceptance facility.  The results revealed that in 2011, 54,723 letters were filed along with the DS-11.

Until the forms were approved (as they now have been) by OMB, the Paperwork Reduction Act (PRA) prohibited the State Department from denying anyone a passport or imposing any other penalties for failure or refusal to fill out these forms.

Now that these forms have been approved, objections to the denial of a passport on the basis of failure to complete these forms (or to do so to the satisfaction of the State Department) will have to be based on other grounds than the PRA.  These objections may be more fundamental, but may also be more difficult to establish in administrative or judicial proceedings.

If you are a US citizen but are denied a US passport because you are unable or unwilling to answer these questions, or you are prevented from entering or leaving the USA because you don’t have a passport, we’d like to hear from you.

Jun 14 2013

How many people fly without ID? How many are denied the right to fly?

Buried in the TSA’s response last month to our FOIA request for information about its ID verification forms a and procedures was a fragmentary report on how many people try to fly without ID, and what happens to them.

An e-mail message discussing the changes made in 2008 to the TSA’s (secret) procedures for flying without ID — the last time TSA Form 415 for air travelers without ID was revised — included a TSA Operation Center (TSOC) “ID Verification Report” for the 15-hour period from 5 p.m. on June 21, 2008, to 8 a.m. on June 22.

On what was described as a “quiet” night, 74 people (nationwide, apparently) tried to fly without ID and were subjected to the TSA “ID verification” procedures between 5 p.m. and 5 a.m., and an additional 45 between 5 and 8 a.m. the next morning, for a total of 119. This didn’t include what is presumably the busiest shift, from 8 a.m. to 5 p.m., but what still suggest that tens of thousands of people try to fly without ID each year.

It appears that most of these people were allowed to fly without ID. Of the total of 119, only 8 were reported as “denials” (presumably meaning that they were identified, but deemed on the basis of that identification to be subject to no-fly orders), while 23 were reported a “not verified”. It’s unclear if those “not verified” were denied travel,  or were allowed to travel despite not being “verified”.

Now that we know that records are being kept of how many people try to fly without ID, and of what happens to them, we’ve filed a follow-up FOIA request for all “TSOC ID Verification Reports” as well as any records of how incidents and outcomes are categorized for reporting purposes.

May 29 2013

TSA never got OMB approval for “Certification of ID” (Form 415)

In June 2008, the TSA began requiring would-be travelers who didn’t show government-issued ID credentials to fill out and sign — under penalty of perjury — a new “Certification of Identity” form, and answer questions based on the records about them retrieved by a TSA contractor from some commercial data-aggregation company.

Since then, we’ve made a series of FOIA requests to try to obtain the current form, the rules (if any) for its use, and whether the TSA had gotten this collection of information approved by the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act (PRA).

We’ve recently received a response to one of our FOIA requests, filed more than two years ago, which includes the latest version of TSA Form 415 and makes clear that the TSA has never obtained the requisite OMB approval.

In the absence of OMB approval and a valid OMB control number on TSA Form 415, travelers who decline to respond to these questions or fill  out or sign this form cannot be subjected to any government sanctions, including TSA “civil penalties”.

There are several noteworthy features of the latest documents released by the TSA in response to our FOIA request, particularly TSA Form 415 itself and this email thread regarding how the form is used and whether it requires OMB approval.

First, the e-mail correspondence with the FOIA Office to identify records responsive to our request appears to have been completed within a few weeks. Then the TSA sat on the response for more than two years, presumably while waiting for approval from the DHS FOIA “front office”. From responses to our previous requests, we know that the FOIA “front office” has ordered the TSA not to respond to our requests without this approval, even if responses are complete and otherwise ready to go out.

Second, if the TSA’s latest FOIA response to our request for the “most recent version” is to be believed, the version of the “Certification of Identity” currently in use is this TSA Form 415 dated August 2008.

Third, the TSA never even applied for OMB approval for TSA Form 415 or its unnumbered predecessor “Certification of Identity” form, because the office responsible for obtaining OMB approval was led to believe that the form was to be completed by TSA staff, not by travelers (a manifestly implausible claim, since all versions of the form have included a space labeled for the signature of the would-be traveler).

Fourth, the TSA completely misunderstood the statutory criteria for determining when OMB approval is required. Who fills out the form, or whether there even is a paper form (or information is collected by verbal questioning), is completely irrelevant to the definition in the Paperwork Reduction Act of a “collection of information” for which OMB approval is required:

[T]he term “collection of information” … means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for … answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States….

The consequence is that you aren’t required to complete TSA Form 415 (since it doesn’t have an OMB control number),  you aren’t required to answer any TSA questions (if the same questions are asked of ten or more people), and you can’t be penalized for declining to fill out the form or answer such questions.

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.

Read More →

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.

/p

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.