Papers, Please!

The Identity Project

Category Archives: Papers, Please

Sep 30 2011

How would REAL-ID affect the right to travel?

In the latest step in the implementation of the REAL-ID Act and the establishment of a de facto national ID card and database, the Department of Homeland Security has requested OMB approval for the collection of additional information from states and individuals.

The public response to the DHS request, particularly these comments submitted by the Electronic Privacy Information Center (EPIC), highlight the important unanswered questions about how REAL-ID Act implementation will affect the right to travel:

EPIC’s comments focus on the widely-publicized recent case of  Lewis Brown, a former high school and college basketball star who died on a street in Southern California homeless, earlier this month:

EPIC writes today to draw the agency’s attention to the death of Lewis Brown, a former college basketball prodigy, who died on the streets of Los Angeles because he could not scrape together the money to obtain a state-issued identity document…. According to the New York Times, Brown, a basketball legend at the University of Nevada at Las Vegas, planned to fly to visit his family in New York and could not. Homeless and destitute, living on the sidewalks of Hollywood, Brown had developed cancer and planned to go to the hospital. Brown’s mother learned about his condition and stated that she wanted to see him “before he died.” Brown’s sister, Anita, told him to visit New York. Brown told confidants that he lacked funds to qualify for a California identification card, and was taking donations and borrowing money.

Read More →

Sep 25 2011

What do we want? “Abolish the TSA!”

The first time the White House conducted a public online poll allowing We, the People to petition the President for redress for our grievances, the petition that got the most signatures called on the Obama Administration to lergalize and regulate marijuana in a manner similar to alcohol. After an elaborate built-up to the petition poll, President Obama dismissed the result as a joke.

Now the White House is at it again, and the leading grievance of the people against the government is even more overwhelmingly clear. Let’s see if the President once again laughs off our petition.

Here’s the most popular petition to the President, with more than 20,000 signatures in the first 3 days since it was posted:

We petition the Obama administration to:

Abolish the TSA, and use its monstrous budget to fund more sophisticated, less intrusive counter-terrorism intelligence.

The Transportation Security Administration has been one of the largest, most expensive and most visible blunders of the post-9-11 homeland security reformation. It has violated countless constitutional rights of average Americans, caused miserable and expensive delays in an already-overburdened air travel system, and allowed multiple known instances of harassment, theft, extortion and sexual abuse by its employees. It has failed approximately 70% of undercover efficacy tests, and for all its excesses, has been unable to catch even a single terrorist since its creation. In our current economic situation, we can no longer afford to continue wasting taxpayer dollars on this kafkaesque embarrassment. Let us instead invest in saner, more effective solutions.

You can add your signature through October 11, 2011.

Sep 12 2011

Illegal Israeli-style traveler interrogations come to Boston

If you’re going to be flying through Logan Airport in Boston, you might want to have a copy of the Paperwork Reduction Act handy when you go through the TSA checkpoint.

The TSA has celebrated the 10th anniversary of the September 11, 2001, hijackings — two of them of flights that originated at Logan — by rolling out a new program of Israeli-style interrogations of air travelers passing through TSA checkpoints at Logan.

Rafi Ron, a former director of security at Ben-Gurion Airport in Tel Aviv, relocated to the U.S. and hung out his shingle (“New Age Security Systems”) as an airport security consultant just before September 11, 2001. His first post-9/11 U.S. client was MASSPORT, which operates Logan. Ever since, as Ron’s client list has expanded to the Massachusetts State Police (the notorious racists who patrol Logan) and then the TSA, Logan has remained the cutting edge of U.S. testbed for Ron’s Israeli-style gospel of  human profiling, from the TSA’s SPOT “behavior detection” program to the new TSA “chat-downs“.

We’re pleased that Rep. Bennie Thompson (D-MS), the ranking minority member of the House Committee on Homeland Security, has publicly questioned the TSA about the Logan pilot program.

But whether or not it’s a good idea (it’s not), the immediate problem for the TSA is that it’s illegal.

Previous case law on airport checkpoints has authorized administrative searches, but never compelled responses to administrative interrogations.  Responses to police questioning in such circumstances have been presumed by courts to be voluntary.

If the TSA’s Constitutional case for such interrogation is untested, their lack of statutory authority is clear. The Paperwork Reduction Act, — a Reagan-era Republican anti-bureaucracy law — requires that any Federal “information collection” be justified in advance to, and approved in advance by, the Office of Management and Budget. An “information collection” is defined as any solicitation — even verbally — of answers to identical questions from ten or more people by a Federal agency, which clearly covers what the TSA “Assessors” (interrogators) are doing in Boston.

OMB approval is evidence by an OMB control number provided on the form or to those being questioned. in the absence of an OMB control number, (a) the collection of information is illegal, (b)  nobody can be required to answer the questions or provide the requested information, and (c) no sanctions can be imposed for failure to respond or provide information.

The TSA has never gone through the process of seeking OMB approval, or obtained an OMB control number, for its ID verification form or any of its other information collections from travelers.

So if the TSA’s goons at logan (or anywhere else) ask you, “Who are you?”, “Where are you going?”, “What’s the purpose of your trip?”, or any of their other standard questions, ask them what the OMB control number is for their collection of that information.

If they can’t or won’t provide you with a valid OMB control number (you can look up and verify any valid OMB control number here), politely but firmly decline to answer. If necessary, remind them — it might help to show them a copy of the law — of the provisions of  44 U.S.C. § 3512:

§ 3512. Public protection

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if–

(1) the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

Document what happens, so that you can, if necessary, prove that any sanctions such as a more intrusive search, denial of passage through the checkpoint, or denial of access to common-carrier transportation were based on your refusal to provide illegally-request information without having been provided with a valid OMB control number and notice that without it you don’t have to answer.

Sep 07 2011

“Why should I care about PNR?”

Our guest post for European travelers at NoPNR.org:

Why should I care about PNR?

More for our European readers about PNR data and how it is used by governments:

What can Europeans do?

Jul 15 2011

Appeals Court rules TSA rules require prior notice and public comment

Today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that the TSA deployment of virtual strip-search machines is subject to the requirements of the Administrative Procedure Act for formal notice and an opportunity for public comment before it is put into effect.

[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, … we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

The ruling came in a lawsuit by EPIC based on a petition for rulemaking in which the Identity Project had joined.

The logic of the decision would appear to apply equally to other requirements imposed on travelers at TSA checkpoints, including any mandate for travelers to identify themselves:

Read More →

Jun 30 2011

TSA calls for more “ID-based screening” — but won’t say if ID will be required

At a panel at the 2011 Computers, Freedom, and Privacy conference earlier this month, TSA Special Counselor and FOIA Appeals Officer Kimberly Walton (the same person who has been stonewalling our pending FOIA appeals), made explicit that the TSA plans more “identity-based screening” (i.e. profiling).

But any “screening” based on identity requires, of course, that travelers be identified. And the TSA — knowing it has no legal authority to compel travelers to identify themselves, produce evidence of their identity, or answer questions —  has consistently claimed in court cases such as Gilmore v. Gonzales and New Mexico v. Mocek that travelers are not required to produce any evidence of their identity.

So is the TSA planning to seek new statutory authority (or start claiming it already has it) to require travelers to identify themselves, or to deny passage to those who decline to do so?

We asked Walton directly, starting at 5:45 of the video here.  Walton said she “wasn’t the person to answer that”, but didn’t say who (if anyone) was.

If the TSA is reading this (and we know they are), we’d welcome an answer. We won’t hold our breath, though.

Once again, the TSA is launching a major expansion of its claimed authority over the traveling public, seemingly without either knowing or carrying whether it has any legal basis for the power it seeks to exercise over us.

The video of the panel on the TSA (most of which focused on groping and virtual strip-searches at TSA checkpoints) starts here; complete CFP 2011 video coverage is here.

Jun 03 2011

U.S. Embassy confiscates citizen’s passport so he can’t come home

In a new twist on the control of movement through control of issuance of ID credentials, the Associated Press reports that a U.S. citizen has been trapped in Kuwait after the local U.S. Embassy summarily confiscated his passport:

Aziz Nouhaili, a naturalized U.S. citizen from Morocco, has been trying for nearly four months to get home from Kuwait, where he worked for several years as a military contractor…. Kuwaiti officials have made clear they will allow Nouhaili to leave only if he has a valid U.S. passport.

Kuwait is a party to the International Covenant on Civil and Political Rights (ICCPR), which provides in its Article 12 that, “Everyone shall be free to leave any country, including his own,” and “No one shall be arbitrarily deprived of the right to enter his own country.”

Regardless of his citizenship or whether he has any passport, Mr. Nouhali is entitled by black-letter international treaty law, expressly acceded to by the Kuwaiti monarchy, to leave Kuwait.

As long as Mr. Nouhali is a U.S. citizen (which appears to be undisputed, at least as of now), the proper course of action for the U.S. State Department, if Kuwait refuses to allow Mr. Nouhali to leave, is a formal diplomatic protest by the U.S. to the Kuwaiti government, followed by a formal complaint to the U.N. Human Right Committee if Kuwait persists in denying Mr. Nouhali’s right to leave.

Mr. Nouhali’s treatment also highlights the significance of State Department or DHS passport issuance procedures and decisions to deny, withhold, or confiscate a passport as tantamount to decisions on whether to permit individual citizens to exercise their right to travel.

Instead of helping Mr. Nouhali to exercise his rights as a U.S. citizen, however, the U.S. government is helping to deny him his rights. A  press release from the Council on American-Islamic Relations (CAIR) says that: Read More →

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 →