Papers, Please!

The Identity Project

Category Archives: Papers, Please

May 24 2011

US “Friends of Privacy” criticize US government efforts to weaken European privacy laws

A group of US-based privacy and civil liberties advocates, including the Identity Project, has issued joint open letters calling on Congress and President Obama “to protect privacy and civil liberties and not to undermine those fundamental rights in high-level negotiations that are underway with the European Union over the sharing of personal information including intimately revealing Passenger Name Records (PNRs) and other travel information. The joint letters also called on libertarians and defenders of privacy in Europe not to capitulate to U.S. pressure to reduce the protection of these fundamental rights of citizens and other travelers:

Read More →

May 23 2011

Senator wants more ID-based controls on rail passengers

Earlier this month Sen. Chuck Schumer (D-NY) proposed that the TSA’s “Secure Flight” system be extended to passengers on domestic Amtrak trains. That would mean that Amtrak would be required to send passenger information to the government, and receive a “cleared” message for each passenger before allowing them to board a train.

Summary denial of transport by a common carrier, much less a government-operated carrier like Amtrak, would violate both the First Amendment right to assemble and the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights.

But extending “Secure Flight” to train travelers would be a stupid idea even if it were legal. Rail sabotage has often been a tactic of war, but it has rarely been carried out by passengers. Sabotage can be carried out anywhere along the tracks, or anywhere saboteurs can get access to rolling stock, including freight cars.

Even the Chicago Tribune, the conservative and usually hawkish newspaper-of-record of Amtrak’s main hub and the hub of America’s freight rail system, immediately responded to Schumer’s proposal with an editorial characterizing it as “security theater for Amtrak.”

Most press reports incorrectly characterized Schumer’s proposal as calling for the “creation” of a no-ride list for Amtrak trains.  That’s indicative of how little awareness there is of the scope of existing systems of ID-based prior restraint on common carrier travel, including international Amtrak trains.

Under the “Advance Passenger Information System” (APIS) used for international flights, passenger trains, and cruise ships, Amtrak already requires passengers on its international trains to and from Canada to provide personal information (beyond anything needed by Amtrak for operational purposes), and passes that information on to U.S. Customs and Border Protection (CBP) for inclusion in the Automated Targeting System (ATS) which is used to decide whether or not to give each passenger government permission to travel. Read More →

Apr 28 2011

State Dept. responds to passport form furor — with lies

Several readers (among the thousands who submitted comments) have forwarded copies of the email message the State Department is sending as an auto-response to all mail to the point of contact for their proposed new “Biographical Questionnaire” for passport applicants, Form DS-5513.

For your entertainment, and so we won’t be accused of quoting out of context, we’ve copied the State Department’s statement in full below the fold.

The good news is that the State Department seems to have realized that they’ve gone too far, and “may very well” revise the proposal.  The bad news is that they are still talking about trying to get Office of Management and Budget approval for a “revised version” of the proposed form, rather than scrapping the idea entirely.  And they make no mention of the (illegal) unapproved form that the public comments revealed they are already using.

But rather than admit they have gone too far, much less done anything wrong, the State Department lies about what the proposed form says, and tries to attribute the surge of outrage to “misperceptions regarding this form.”

The State Department says that, “Many of these questions may not apply to the majority of applicants.” But both proposed Form DS-5513 and the current (unapproved and illegal) Supplemental Worksheet state that the respondent must “Complete this form in its entirety” and under penalty of perjury. Proposed Form DS-5513 says that, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

That’s not a “misperception.”  That’s the plain and unambiguous language of the form. Read More →

Apr 27 2011

State Dept. already using illegal passport questionnaire

The most frequently asked question in the ongoing discussion about the State Department’s proposed new “Biographical Questionnaire” for (some) passport applicants has been, “Is this a hoax?”

We wish this were a joke, but it’s for real. The proposed Form DS-5513 that we published is the one we and others who requested it received from the State Department’s designated contact for the proposal.

The second most frequently asked question about this proposal is, “Why is the State Department doing this?”

We think we’ve found the answer: The State Department is already using a version of this form, illegally, without OMB approval, and has probably been doing so for several years. The point of the current proposal is to try to regularize and give legal cover to an ongoing and clearly illegal practice — and, while they are at it, to make the current form even worse. Read More →

Apr 26 2011

Public outrage at proposed questionnaire for passport applicants

Back in March, the State Department published a notice in the Federal Register that they were proposing a new “Biographical Questionnaire” for (some) passport applicants. But the notice didn’t include the proposed form itself. Curious, and concerned, we requested a copy of the proposed form from the State Department contact person listed in the Federal Register notice.

When we got the proposed Form DS-5513, we were horrified. We immediately posted the form here on our website, with an alert about the proposal. We also prepared and submitted formal comments to the State Department opposing the proposal, which were co-signed by the Center for Financial Privacy and Human Rights (CFPHR), Knowledge Ecology International (KEI), Center for Media and Democracy (CMD), Privacy Activism, Consumer Travel Alliance (CTA), Robert Ellis Smith, and John Gilmore.

Unfortunately, the mainstream media didn’t pick up the story until after we wrote about the filing of our comments at ConsumerTraveler.com last Friday. After that, the story went viral.  And it’s still spreading: today it’s reported on MSNBC and across the spectrum of political blogs and news sites from Glenn Beck to the Daily Kos.

What’s consistent across that political spectrum is the outrage. From fewer than 50 public comments in the State Department docket on Friday, the count went to more than 900 before the comment deadline yesterday (Monday) at midnight. But that’s not all. State Department docket clerks are still processing the backlog of last-minute submissions, which can take up to a couple of weeks. By lunchtime today, the count of public comments was up to more than 3000. We haven’t had time to read them all, but we haven’t found any in those we sampled that support the State Department’s proposal.

Organizational comments opposing the proposed “Biographical Questionnaire” were submitted by:

In addition to the comments submitted to the Department of State, here are some of the other discussions of this issue going on around the Web as news of this scheme spreads: Read More →

Apr 11 2011

California bill would condition the right to travel on … draft registration?

A bizarre bill currently pending in the California Senate, S.B. 251, introduced Feb. 10, 2011, by Senator Lou Correa of Orange County, would require all applicants for California drivers’ licenses to consent to having the information they provide to the state Department of Motor Vehicles forwarded to the U.S. Selective Service System and used to register them for a possible military draft.

Whatever one may think of Selective Service, the draft, draft registration, or the wars for which they might be used, this bill reflects a disturbing failure by its sponsors to recognize that travel, within and between states as well as internationally, is a right — subject only to the most limited and essential administrative restrictions — and not a privilege that can at the government’s whim, to serve unrelated purposes, be granted, denied, encumbered, or conditioned on the waiver of other rights.

In our letter to the California Senate’ Standing Committee on Transportation and Housing, which will hold a hearing on S.B. 251 tomorrow where we plan to testify, we outlined our objections as follows:

Read More →

Mar 18 2011

State Dept. proposes “Biographical Questionnaire” for passport applicants

The U.S. Department of State is proposing a new Biographical Questionnaire for passport applicants. The proposed new Form DS-5513 asks for all addresses since birth; lifetime employment history including employers’ and supervisors names, addresses, and telephone numbers; personal details of all siblings; mother’s address one year prior to your birth; any “religious ceremony” around the time of birth; and a variety of other information.  According to the proposed form, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

The State Department estimated that the average respondent would be able to compile all this information in just 45 minutes, which is obviously absurd given the amount of research that is likely to be required to even attempt to complete the form.

The proposed “Biographical Questionnaire” follows the introduction in December 2010 of a new Form DS-11 for all passport applicants. It seems likely that only some, not all, applicants will be required to fill out the new questionnaire, but no criteria have been made public for determining who will be subjected to these additional new written interrogatories.

It’s not clear from the supporting statement, statement of legal authorities, or regulatory assessment submitted by the State Department to the Office of Management and Budget (OMB) why declining to discuss one’s siblings or to provide the phone number of your first supervisor when you were a teenager working at McDonalds would be a legitimate basis for denial of a passport to a U.S. citizen.

The State Department is accepting comments for OMB on this proposal on this proposal for 60 days, which began February 24, 2011, and thus should run through April 25, 2011. (Under the Paperwork Reduction Act,  OMB must approve and assign an OMB control number before any new form can be used.) Details and instructions for submitting comments are in the Federal Register notice (also available here as a PDF):

You may submit comments by any of the following methods:

E-mail: GarciaAA@state.gov
Mail (paper, disk, or CD-ROM submissions): Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037
Fax: 202-736-9202
Hand Delivery or Courier: Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037

You must include the DS form number [DS-5513], information collection title [Biographical Questionnaire for U.S. Passport], and OMB control number [none yet assigned; 1405-XXXX requested by Dept. of State] in any correspondence.

Alternatively, you can submit comments online at Regulations.gov until midnight EDT on Monday, April 25, 2011.  Go here, then click the “Submit a Comment” button at the upper right of the page.

(Note that the proposed form itself was not published in the Federal Register. We were eventually provided with a copy after requesting it from the Department of State, and have posted it here.)

We’ve submitted comments, and we encourage others to do so as well.

Our comments (PDF) were co-signed by the Center for Financial Privacy and Human Rights (CFPHR), Knowledge Ecology International (KEI), Center for Media and Democracy (CMD), Privacy Activism, Consumer Travel Alliance (CTA), Robert Ellis Smith, and John Gilmore. If you would like to use these for ideas for comments of your own, here’s a version in OpenOffice format for easier editing.

You can view the comments docketed to date here. (There’s sometimes a delay of up to several days before comments are docketed, so don’t panic if you don’t see yours immediately.)

Extra points to the person who gives the best answer in the comments to the question, “”Please describe the circumstances of your birth including the names (as well as address and phone number, if available) of persons present or in attendance at your birth.”

[P.S. – To those who have been wondering if this is a hoax: We understand that it may seem fishy that the State Department chose to publish a notice in the Federal Register that it was proposing a new form, but didn’t publish the proposed form itself in the Federal Register. But that was their choice of how to proceed, not ours. We were sent the proposed Form DS-5513 in March, in response to our request, by the person identified in the Federal Register notice as the point of contact from whom it could be obtained: Alexys Garcia, GarciaAA@state.gov, 212-736-9216. We immediately published the form we received from the State Department here on our website. There’s more at the links in the sidebar on who we are and how to contact us, as well as links to press reports on our previous work and current projects. You can also check out the other co-signers of the comments we submitted to the State Department. We’re for real, and so is this proposal from the State Department. We wish this were a hoax, but it’s not.]

[Follow-up: Public outrage at proposed questionnaire for passport applicants]

[Follow-up: State Dept. already using illegal passport questionnaire]

[Follow-up: State Dept. responds to passport form furor — with lies]

Jan 24 2011

Audio: State of New Mexico v. Phillip Mocek

We’ve uploaded our complete audio recording and some of our photos of Phil Mocek’s trial to the Internet Archive (Archive.org). Trials at this level in New Mexico are neither recorded nor transcribed by the court, so this is the most nearly complete record of the trial available.

The MP3 recordings can be streamed from here or downloaded directly from the links below:

Thursday, January 20, 2011 (Day 1):

Friday, January 21, 2011 (Day 2):

Dramatis Personae:

  • Phillip Mocek, Defendant

    Phillip Mocek

  • Judge Kevin L. Fitzwater, Bernalillo County Metropolitan Court

  • Bernalillo County Chief Deputy District Attorney Mark Drebing (closing argument)

  • Bernalillo County Deputy District Attorney Daniel Rislove (opening argument)

  • Molly Schmidt-Nowara, Defense Counsel (closing argument)

  • Nancy Hollander, Defense Counsel (opening argument)

  • TSA Lead Transportation Security “Officer” Jonathon Breedon

  • Albuquerque Aviation Police Department Officer Robert F. Dilley

  • The ladies of the jury (not publicly named and not heard on the recording)

White noise heard on the recording was played in the courtroom during “sidebar” discussions when the jury was present, to keep these discussions from being heard by the jury.

Except during opening and closing arguments, when the recordings were made from the podium, these recordings were made from a single spot in the audience, behind the bar. We were permitted to record, with the court’s permission, but we were not permitted to fix microphones or wires or tap into the public address system.  We apologize for any inadvertent gaps.

More:

(Click images for high-resolution versions. Please credit photos to PapersPlease.org.)

 

Jan 22 2011

Phil Mocek found “NOT GUILTY” by Albuquerque jury

A six-woman Bernalillo [NM] County Metropolitan Court jury has found Phil Mocek “NOT GUILTY” (video) of all of the charges brought against him following his arrest in November 2009 at the TSA checkpoint at the Albuquerque airport.

We’ll be posting audio recordings and photos of the trial.  The jury returned its verdict Friday evening after about an hour of deliberation, following a two-day trial we attended. (Video of the verdict and excerpts from Mr. Mocek’s reaction; longer audio of Mr. Mocek’s responses to questions in the hallway outside the courtroom immediately after the verdict; complete audio and pohotos of the trial.)

Mr. Mocek did not testify, and the defense rested on Friday without calling any witnesses or presenting any evidence. The jury found that even without rebuttal, the TSA and Albuquerque police had failed to satisfy their burden of proving any of the four charges: concealing his identity, refusing to obey a lawful order (it was never entirely clear whether this was supposed to have been an order to turn off his camera, an order to leave the airport despite having a valid ticket, or an order to show ID, none of which would have been lawful orders), trespassing, and disorderly conduct.

The best evidence in the case was the video from Mr. Mocek’s digital camera that both the TSA and the police had tried to stop Mr. Mocek from filming, and which ended when they seized his camera out of his hands and shut it off.

In her closing argument, defense counsel Molly Schmidt-Nowara argued that the police and TSA witnesses were not credible, that their testimony was contradicted by the video and by common sense, that what they really objected to was having Mr. Mocek legally take pictures, and that any disorderly conduct was on the part of the police and TSA.

The verdict of “NOT GUILY” on all counts shows that the jurors saw through the police and TSA lies.

Mr. Mocek, of course, is still out thousands or tens of thousands of dollars in legal fees and expenses for repeated trips to Albuquerque to defeat this frame-up attempt.

But we hope that Mr. Mocek’s acquittal will encourage and empower others to question the unlawful demands of the TSA — including their demands that we waive our right to remain silent, provide them with evidence as to our identity, and submit to virtual strip-search machines or groping — and to photograph and record our interactions with the TSA’s cop-wannabes and rent-a-cops and the local law enforcement officers who provide their muscle.

(See also our FAQ: What you need to know about your rights at the airport.)

We also hope that this verdict will teach police not to blindly back up the TSA when the TSA calls upon law enforcement officers to “deal with” travelers to whose actions the TSA has, for whatever reason, taken a dislike. This verdict shows that jurors can see through their lies when they make up stories and false accusations against travelers.

Uncontested TSA and police testimony at the trial established, among other things, three important points:

  1. Despite calling themselves “officers”, TSA checkpoint staff are not law enforcement officers and have no police powers — and both TSA and police are fully aware of this. When the TSA calls for the police, they are just like any other civilians who call the police, and the police have no obligation to do what they ask.  Police should not act, and have no right to act, in such a case, unless the police have a reasonable basis for believing that a crime has actually been committed or is being committed.
  2. You have the right, recognized by the TSA, to fly without showing ID. “It happens all the time. We have a procedure for that,” according to the lead TSA “Travel Document Checker” at the Albuquerque airport. Signs and announcements in airports saying that all passengers must present ID are false.
  3. You have the right, recognized by the TSA, to photograph or film anywhere in publicly accessible areas of airports including TSA checkpoints, as long as you don’t violate any local laws, photograph the images on the screening monitors, interfere with the screening process, or slow down the line. (Whether those limitations to your First Amendment rights claimed by the TSA are legal or Constitutional was not decided in this case, since Mr. Mocek wasn’t violating any local law, filming the images on the screening monitors, interfering with the screening process, or slowing down the line.) Signs or statements that photography is prohibited at Federal checkpoints are, in general, false.

Annoying the TSA is not a crime. Photography is not a crime. You have the right to fly without ID, and to photograph, film, and record what happens.  Your best defense is your own camera and microphone.  Ordinary jurors know, and are prepared to recognize with their verdict, that the TSA and police lie about what they are doing and why.

We salute Phil Mocek for standing up for all of us and our rights, and encourage supporters to contribute to help pay off his legal bills.

Jan 21 2011

Why are we here in Albuquerque at Phil Mocek’s trial?

Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right) [Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right); Albuquerque police (center, turning towards camera)]

Why are we here? We’re here in Albuquerque to observe the the trial of Phil Mocek, which began yesterday and continues today. We’re here with other folks who’ve flown, driven, and ridden trains and buses from across the country to show our support for those who question the illegitimate claims to authority of the TSA and try to document what happens when you try to travel without showing ID.

Once we are able to process them, we’ll be posting audio recordings and photos as well as more details from the trial.

Before we get to what’s happened in court, however, we need to answer a preliminary question: Why is this case in Bernalillo County Metropolitan Court (above, left) and not across the street in Federal court (above, right)?

That question seems especially natural to those who read the hit-piece on the front page of the Albuquerque Journal the day before the trial began.  Apparently intended to prejudice potential jurors against Mr. Mocek, and posted approvingly by the District Attorney on Twitter and her Facebook wall, that story focused on (false) claims that passengers are “required” to show government-issued ID to fly.

But the reason this case isn’t in Federal court is that TSA procedures (and, more importantly, neither any Federal law or regulation, the U.S. Constitution, or international  human rights treaties) don’t require travelers to show ID and don’t prohibit photography or recroding at TSA checkpoints.

If there were any such Federal rule against what Mr. Mocek was doing, the TSA would have called the FBI, not the local police, and Mr. Mocek would have been charged with Federal offenses.

That didn’t happen.  Mr. Mocek has never been accused of any violation of any TSA or other Federal regulations or laws.  He was arrested and is on trial on (false) state and local charges precisely because the TA and Albuquerque police objected to his exercising his rights under Federal law.

On the contrary, the first day of this trial confirmed that, as we’ve said all along:

  • You have the right to travel without showing ID. TSA “officers” know this, are trained to deal with it, and do so every day, despite signs to the contrary at every airport and on the TSA’s website.
  • You have the right under Federal law and TSA rules to record and photograph throughout TSA checkpo0ints, as long as (they say) you aren’t “interfering” with screening or photographing the displays on the X-ray machines and other monitors.

In their opening statements, both Assistant District Attorney Daniel Rislove and defense attorney Nancy Hollander agreed that ID is not required to fly. That was confirmed by the sole witness to testify (for the prosecution) before the trial recessed yesterday.

Lead Transportation Security “Officer” Jonathan Breedon (he admitted that TSA checkpoint personnel are not law enforcement officers), who was in charge of the “travel document checking station”, testified that the TSA doesn’t require anyone to have or show ID to travel. You can travel without ID, and, “It happens all the time. We have a procedure for that,” he testified, although he claimed that the procedure for flying without ID is secret “Sensitive Security Information,” as is the form that is given to each person who flies without ID for them to sign, and which we posted online years ago.

Cross-examined about the version of the form from 2008 on our website, he said the current form has different typography and a few additional check-boxes at the bottom, but contains essentially the same information. If anyone has a copy of the current version of the form, please let us know ASAP.

What the TSA doesn’t have procedure for, apparently, is what to do when a traveler exercises their right to photograph or record what is being done to them.  Under cross-examination, Lead TSO Breedon admitted that the statement to Mr. Mocek on the video played in court, “It’s a Federal checkpoint. You can’t take pictures here,” was false. But despite knowing that was false, the TSA staff called in the local police and then stood aside while they arrested Mr. Mocek on false charges.

The trial will resume at 9:30 Friday morning with testimony from the Albuquerque police, followed by the case for the defense. The case could go to the jury Friday afternoon.

To be continued…