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The Identity Project

Category Archives: Papers, Please

Jan 10 2011

Interviews with Antiwar.com and KPFK radio

We were interviewed Friday on Scott Horton’s “Antiwar Radio” podcast on Antiwar.com and on KPFK Pacifica Radio in Los Angeles (play stream) (download).

The two half-hour interviews cover much of the same ground. We recommend the one on Antiwar.com.

Here are some links for more information about things we mentioned on the show:

Jan 08 2011

Tidbits from the TSA show “screening” being used as illegal general criminal dragnet, not for aviation security

The TSA has reviewed 929 pages of policies we requested, and released one page of them and parts of 12 other pages. All the rest are still being kept secret.  But even those tidbits show that the TSA is exceeding its legal authority.

The TSA continues to drag its feet in responding to our outstanding Freedom Of Information Act (FOIA) requests for the policies and procedures that they expect travelers to comply with.  When the TSA answers our requests at all, the answer is mostly, “No.”

Case in point: The letter we just received from the TSA, dated December 15, 2010, in response to the FOIA request we sent on December 9, 2009.  The TSA took more than a year to answer, even though it is required to release records requested under FOIA within at most 30 business days.

We asked for various TSA policy documents whose existence was revealed when the TSA posted a copy of its “Screening Management Standard Operating Procedures” (SOP) on a public government website. (We are currently appealing their refusal to release the current SOPs.)

One of the few excerpts the TSA chose to release was the “TDC Referral Form” (see page 16) used by “travel document checkers” for reporting travelers they have “referred” for further action such as a ordering them to submit to a more intrusive search or interrogation, summoning local law enforcement officers, etc.  Although courts have upheld administrative searches at airports only when they are limited to the detection of weapons, explosives, or other threats to aviation, neither “suspected terrorism” nor any other “threat to aviation security” appears in the TSA’s menu of reasons for arrest:

  1. Suspect documents
  2. Outstanding warrant
  3. Suspect drugs
  4. Undeclared currency
  5. Illegal Alien
  6. Other

On its face, this document makes clear that TSA “screening” is being used primarily for purposes that are outside the TSA’s legal authority, as a general screening dragnet for illegal drugs and other crimes and not for the limited purpose of aviation safety or security.

And this is true specifically of the travel document checks, not just of TSA screening in general.

The form also says that, “No personally identifiable information is permitted in this database,” even though the form includes drivers license, passport, government ID, military ID, and visa numbers. Presumably, this is an attempt to evade having the Privacy Act applied to these referral reports.

Bizarrely, the TSA withheld the policies that relate directly to the obligations of travelers as pertaining primarily to internal TSA procedures, while posting those policies that actually are primarily internal, and directed at TSA staff and contractors rather than the public, on a new page on the TSA website.

Perhaps the most interesting of these, in light of the TSA’s past actions, is the policy on issuance and use of administrative subpoenas such as those the TSA served on bloggers and journalists to try to find the sources of their stories about other leaked TSA policies. The version now posted was reviewed in October, 2010, after the TSA had withdrawn those subpoenas to bloggers and journalists. but it’s unclear whether any changes were made to the policy. The TSA policy still contains no mention of the Federal law which restricts searches of journalists’ work products and other material, or any specific policies for subpoenas against journalists.  That’s especially odd in light of the fact that the relevant law, 42 U.S.C. 2000aa, also applies to searches at TSA checkpoints (and, except to the extent such searches are conducted solely to enforce customs laws and not immigration or other laws, to CBP searches at border crossings and international air and seaports).

Dec 08 2010

Phil Mocek trial postponed again; no hearing Thursday

Yesterday, as we’ve reported, Phil Mocek and his attorney were ready for trial, but the prosecution asked for a delay to allow them more time to review the video evidence of the events at the TSA checkpoint — despite defense counsel’s statement to the judge that the prosecution had already been aware of this evidence. and that it only depicts facts that should have been known to the prosecution.

The trial was originally expected to take two to three days. Judge Kevin Fitzwater continued the start of the trial until Thursday, but also said that he is doing military reserve duty next week and the following week. So a trial that started this Thursday would have had to go to the  jury by the end of the day Friday, or be interrupted for two weeks in mid-trial, with unpredictable effects on jurors’ memories of testimony. It’s also possible that whatever issues the prosecution has with the defense video evidence will lengthen the time the prosecution will take to present their case or question defense witnesses.

Not surprisingly in light of all this, we’ve been told by Mr. Mocek that the trial is being postponed to a date to be determined later (probably in January or February), and there will be no further court hearing or appearance by Mr. Mocek on Thursday or any other day this week.

Read More →

Dec 07 2010

Phil Mocek’s trial continued to Thursday, December 9th

What is the TSA afraid of? [TSA: Goon squad or Keystone rent-a-cops?]

When the case of State of New Mexico v. Phillip Mocek (misspelled in the court docket as “Moesack”) was called this morning in Bernalillo County Metropolitan Court in Albuquerque, the defense was ready for trial.

But Assistant District Attorney Dan Rislove claimed that he had only just yesterday learned of the existence of additional video evidence, and needed more time to review this video.

Defense attorney Molly Schmidt-Nowara told the court that the prosecution had already been aware of the existence of this video, but agreed to a 2-day delay of the trial until 9 a.m. Thursday morning, December 9th, to allow the prosecutor more time to review the video.

Most of the Albuquerque police and TSA “officers” (not) already identified in the videos and other records released in response to Mr. Mocek’s requests for public records were present in court.

But when (by prior arrangement and with the court’s explicit prior permission) we began photographing those in attendance, the TSA and police became visibly agitated, to the point of apparent near-panic. They got the prosecutor to point out our camera to Judge Kevin Fitzwater. Judge Fitzwater, however, said that he was already aware of our camera and audio recorder and had given us permission to use them as long we didn’t record or photograph members of the jury pool, none of whom were yet in the room.

Meanwhile, the men from the TSA held up manila folders for the remainder of the hearing to hide their faces — already familiar from their own videos and surveillance camera photos — from any photos after our first one reproduced above.  It seems that the intense fear of public scrutiny they showed in going after Mr. Mocek for allegedly trying to take photos at the checkpoint at ABQ continues today, and extends even into a courtroom where the defendant has a Constitutional right to a public trial.

What is the TSA trying to hide?

Stay tuned. We’ll be there when Phil Mocek returns to court in Albuquerque on Thursday morning.

[Update: We’ll be talking about the case with Adam Kokesh on KIVA 1550 AM in ABQ and online from 9-11 p.m. MT tonight.  Video archive of the show.]

Dec 06 2010

“TSA case goes to trial tomorrow in Albuquerque”

Albuquerque’s Weekly Alibi reports today in their blog on the trial of “Freedom Flyer” Phil Mocek scheduled to begin Tuesday morning:

Phil Mocek’s trial in Bernalillo County Metro Court tomorrow might be the first of its kind in the country. He was arrested after refusing to present identification to the Transportation Security Administration….

Edward Hasbrouck is a consultant to the Identity Project in California…. “We were obviously disturbed to find that Mr. Mocek had been arrested and had been essentially framed on these charges,” Hasbrouck says in an interview with the Alibi.

He adds that the four charges leveled against Mocek are not the real reasons he was arrested. “The real reason he was arrested is that the TSA didn’t like what he was doing,” Hasbrouck says. “The real charge is questioning the illegitimate authority of the TSA. Now, why the local authorities are choosing to put themselves out on a limb, trumping up bogus charges just to keep the TSA [happy] is a question that you’d have to ask the prosecutor in Albuquerque.”

Neither Dan Rislove, the attorney representing the state, nor TSA spokesperson Luis Casanova have yet returned the Alibi’s calls.

Ironically, despite the nationally precedent-setting TSA resistance case about to go to trial, an airport spokesperson told Albuquerque’s KRQE-13 TV news last month that, with respect to TSA “screening” procedures at ABQ,  “We have not seen a lot of resistance locally here.”

We’ll be posting updates on the trial here.  But since no cell phones, laptops, pagers, or other electronic communications devices are allowed anywhere in the courthouse, don’t expect live-blogging or for us to be able to return phone calls or e-mail messages from the courthouse or until the end of each day of the trial.

Dec 01 2010

Testimony to the Canadian Parliament on US access to travel data

Edward Hasbrouck of the Identity Project testified yesterday on behalf of the Liberty Coalition at a hearing before the Canadian House of Commons’ Standing Committee on Transport, Infrastructure and Communities on Bill C-42, which — as we’ve discussed previously — would override Canada’s “Personal Information Protection and Electronic Documents Act” (PIPEDA) to permit airlines to give personal information about passengers to the government of any country whose airspace a flight would pass through, even if it didn’t land in that country.

Bill C-42 was proposed by the government, but is being opposed by some within Parliament as well as civil liberties and human rights activists and (along with the US Secure Flight scheme) by the Office of the Privacy Commissioner of Canada.

The English-language audio archive of the hearing is here; the complete transcript is here. Mr. Hasbrouck’s introductory statement is from 24:45 to 35:15 of the audio stream; he was also questioned extensively by the members of the Committee.

Because of the Thanksgiving holiday in the US, the invitation to testify arrived too late for the requisite translation into French of any written notes or supporting documents. For more background on the information architecture and cross-border data flows of the airline industry, see the slides from Mr. Hasbrouck’s more detailed testimony on related issues earlier this year at the European Parliament in Brussels.

Here’s the transcript of our introductory statement:

Read More →

Nov 23 2010

What you need to know about your rights at the airport

  1. TSA “screeners” are not law enforcement officers. Despite wearing police-type uniforms and calling themselves “officers”, they have no police powers and no immunity from any state or local laws.  At some airports, notably San Francisco (SFO) and Kansas City (MCI), they aren’t government employees at all, but rent-a-cops employed by a private contractor. They cannot legally arrest or detain you (except as a citizen’s arrest, the same way you can arrest them if they commit assault or battery). All they can do is call the local police.
  2. You have the right to remain silent, including when questioned by TSA “Behavior Detection Officers.” Anything you say may be used against you.
  3. You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you. In addition, the Federal “Privacy Protection Act of 1980” (42 USC 2000aa) forbids TSA staff or police from searching or seizing photographs, audio or video recordings, documents, or electronic data, if you possess these materials in connection with an intent to distribute them publicly, including online distribution such as posting them on Facebook, Youtube, etc. There are some exceptions to this law, including a limited exception for searches and seizures by customs inspectors (not the TSA) at international ports of entry (not domestic airports). But there is no general airport or TSA exception to this law.
  4. You have the right not to be assaulted or battered (sexually or otherwise), falsely arrested, unlawfully detained, or kidnapped. You may have the right to make a criminal complaint and/or a citizen’s arrest of someone who assaults you, and/or to sue them for damages.  You should consult the applicable laws, including local laws, and/or an attorney, if you plan to do any of these things.
  5. Under most airlines’ conditions of carriage, you have the right to a full and unconditional refund if the airline refuses to transport you because you won’t show ID or won’t “consent” to whatever they want to do to you in the name of “screening”. Read this first: Here’s what to do to protect your right to a refund.  If the airline refuses to give you a full refund, you can sue them for damages and request that the US Department of Transportation investigate and fine them.
  6. If an airline cancels your reservation or refuses to transport you, you may be entitled to collect damages, and you can request that the US Department of Transportation (and, if you were denied passage to the USA from another country, that country’s authorities) investigate and fine or impose other sanctions on the airline.
  7. You have the right to freedom of movement, guaranteed by the First Amendment (“the right of the people… peaceably to assemble”) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty to which the US is a party: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.” Federal law (49 USC § 40101, part of the Airline Deregulation Act of 1978) requires the TSA to consider “the public right of freedom of transit” by air when it issues regulations.
Nov 23 2010

Airlines threaten illegal actions against travelers who opt out of groping

Can you get your money back if you opt out of the TSA’s assault on your freedom? Yes, but airlines don’t want to admit that.  (That’s nothing new.)  You may have to put up a fight.

Here’s what’s happening, and what you can do:

With National Opt-Out Day coming up, travel journalist Christopher Elliott contacted several airlines to see how they would handle requests for refunds from ticketed passengers who aren’t allowed to fly because they opt out of being x-rayed or groped.

Disturbingly, several airlines (American, Southwest, United/Continental, and US Airways) told Elliott that they would not give refunds to such passengers holding nonrefundable tickets.

Airlines can’t just make up new rules governing tickets and refunds after tickets are issued. Those rules are published in airlines’ tariffs and conditions of carriage, as filed with the Department of Transportation.

Almost all airlines’ conditions of carriage provide that, if an airline refuses to transport you, you are entitled to a full and unconditional “involuntary refund” of all fares, fees, and charges, even if the fare at which your ticket was issued  is otherwise completely nonrefundable.

American Airlines, for example, told Elliott:

“Our refund rules that are in place now, apply,” says a spokeswoman. “If the customer has a refundable ticket, then we will refund. If the customer has a non-refundable ticket, then we can offer a voucher.”

But American’s actual rules are contained in their conditions of carriage, as follows:

Involuntary Refunds

In the event the refund is required because of American’s failure to operate on schedule or refusal to transport, the following refund will be made directly to you –

  1. If the ticket is totally unused, the full amount paid (with no service charge or refund penalty), or
  2. If the ticket is partially used, the applicable fare for the unused segment(s).

If American or another airline with similar terms in its contractual conditions of carriage refuses to give you a full and unconditional refund (not merely a voucher), they are liable to you for damages if you sue them, and liable to enforcement action and fine by the Department of Transportation.

So what’s the best strategy if you already have a ticket and want to opt out of virtual strip-search and groping?

Read More →

Nov 22 2010

Self-restraint is not the solution for the TSA

This morning on the “Today” show, TSA Administrator and former FBI agent John Pistole said that the TSA is “actively rethinking its policy” to require all travelers to submit to either an x-ray virtual strip search or vigorous groping of their breasts and genitals.

We aren’t reassured or appeased.  The process of “rethinking” described by Pistole, like the TSA procedures themselves, would remain entirely secret, internal, and extra-judicial.

The problem with the TSA is not with exactly how it has exercised its secret, standardless administrative “discretion,” but the fact that the TSA has been allowed to opt itself out of the rule of law.

Last Friday the New York Times editorialized that, “The government could start by making their screening guidelines clear.”  The government could do so — but the TSA won’t unless it is forced by direct orders from the President, the Congress, or the Federal courts.  We cannot rely on the TSA to restrain or reform itself.

There are no laws or published regulations defining what the TSA is allowed to do. The TSA has claimed in response to our requests that all of its procedures and directives for airport checkpoints are exempt from the Freedom of Information Act (FOIA). The DHS Privacy Office ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, including the White House liaison. Apparently that approval has never been given. We’re still waiting.

When John Gilmore challenged the checkpoint practices in court, the DHS refused to show him the documents that they showed the judges “in camera” to persuade them to dismiss his case. The Supreme Court refused to consider his appeal of this secret lawmaking.

Former Secretary of Homeland Security Chertoff said repeatedly and publicly that administrative DHS “no-fly” decisions should be exempt from judicial review. Neither current DHS Secretary Napolitano nor President Obama have done anything to dissociate themselves from that position.

Now the ACLU and EPIC are both collecting reports and complaints about what happens at TSA checkpoints. But we have no confidence that public exposure of what is happening will in itself prompt any change in behavior by an agency whose motto appears to be, “We don’t care – we don’t have too.” Everyone already knows that the TSA is groping grandmothers, probing under diapers and sanitary napkins, and requiring removal and examination of breast and other prostheses.  All while threatening or even arresting those who try to protect themselves by documenting the process with photographs and/or recordings.

EFF has information on how to complain to the TSA and DHS.  But those complaints would also be dealt with, if they aren’t ignored, solely by secret procedures within those agencies.  What, if anything, is done as a result will remain unknown to the complainants and the public.

Clearly, the TSA has crossed the line of what the traveling public will tolerate. But the solution is not for the TSA to retreat slightly (and perhaps only temporarily) in response to public outrage. That will only leave us with endless scrimmages over where to draw the line, with the TSA not an iota less invasive than the most intrusive processes that they think they can get away with.

The real need is to put the TSA — for the first time in its existence —  clearly within the rule of law.  That’s why we think what’s most important about EPIC’s lawsuit against the TSA is not the specific issue of virtual strip searches (important though this is) but the fundamental complaint that the TSA has ignored formal petitions for rulemaking. EPIC’s central claim is that the TSA has refused to give public notice of proposed rules, accept public comments, and make a public determination that could be subjected to review by the Federal courts.

Liability, both organizational and personal, is also important. Talk to a lawyer about bringing a criminal complaint or civil lawsuit against any TSA employees or contractors who act illegally against you.  We’re pleased to see discussion of citizens’ arrests of overreaching (so to speak) TSA and contractor gropers. At least some local prosecutors are open to possibly pressing such charges. That’s especially significant at San Francisco International Airport (SFO), where the screeners are out on an especially thin limb of liability as private contractors rather than employees of the TSA or any other government agency.

Nov 21 2010

Trial to begin December 7th in TSA checkpoint case

“Opting out” of TSA demands or questioning and photographing the TSA is not a crime!

We’ve reported before on the arrest of Phillip Mocek just over a year ago at a TSA checkpoint at the airport in Albuquerque, New Mexico, and his prosecution by local authorities on trumped-up criminal charges.

Phil Mocek

Now, after several postponements, Phil Mocek’s trial is scheduled to begin with jury selection on Tuesday morning, December 7th, 2010, in Albuquerque.  The trial is expected to last 2-3 days. There’s more information here.

(The trial has been postponed several times, and might be postponed again, but this date appears to be for real, and Mr. Mocek is making firm travel plans — by land, not by air — to be in Albuquerque.)

We encourage everyone who opposes the TSA’s lawless assault on our liberties to support Mr. Mocek. Spread the word about this case, especially to people you know in New Mexico. Contribute to Mr. Mocek’s legal defense. (He had to hire private lawyers to defend himself.)  Come to the trial in Albuquerque if you can. Pass out a leaflet.  Speak out and stand up to the TSA yourself.

This is the first TSA checkpoint resistance case to come to trial, and this trial comes during an unprecedented and spontaneous explosion of grassroots resistance to the TSA’s claim to unlimited authority. The outcome of Mr. Mocek’s trial will be critical to whether that resistance continues to snowball, or whether the TSA and its allies in authoritarianism can terrorize and intimidate law-abiding travelers into submission to their illegitimate authority.

There are no laws or published regulations defining what the TSA is allowed to do. In response to a Freedom of Information Act (FOIA) request from Mr. Mocek, the TSA has refused to release its secret procedures and directives for airport checkpoints.  And the DHS Privacy office has ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, which apparently has never been given.

In these circumstances, only the courts can define the limits of TSA authority to search, interrogate, x-ray, and grope innocent travelers who are not suspected of any crime. So far as we know, Mr. Mocek’s case is the first time someone in the USA has been brought to trial on criminal charges for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.

Read More →