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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.

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.

Nov 17 2010

What is to be done about TSA?

We’re pleased and excited to see the spontaneous outpouring of grassroots outrage at the latest TSA “Standard Operating Procedures”, which offer would-be air travelers a Hobson’s choice between forms of submission to secret rules, illegitimate authority, and invasion of personal privacy.

TSA wants us to choose between a virtual strip-search (x-ray or similar photography through your clothes, with the as-though-naked high-resolution photos viewed by a TSA agent or rent-a-cop out of your sight somewhere in a little porno booth in the bowels of the airport), versus vigorous manual groping of your entire body with special attention to your genitals and breasts.

We’re equally pleased and excited to see that outrage move beyond mere complaint to direct action and resistance, primarily by those “opting out” of both the “whole body imaging” and the groping, and calling on others to do the same.

We thank those who are taking action, even what we think may be ineffective or insufficient action, against TSA’s excesses. The public’s frustration with TSA’s ever-escalating demands was bound to explode eventually, and we hope that time has truly come. We just hope that the results will move us in the direction of real reform, rather than “concessions” that leave us worse off than before, or band-aids followed by more excesses after the public calms down.

For many years, TSA has been writing its own laws, in secret, in the form of “Security Directives” to airlines and “Standard Operating Procedures” for TSA employees and contractors. We’ve requested the directives and procedures that purport to say what travelers are required or prohibited from doing. That’s our right under the Freedom of Information Act (FOIA). To date, TSA has either refused our requests outright or ignored them. For months, until they were caught by the Associated Press, the most senior FOIA and “privacy” officer for DHS gave direct orders to the TSA not to provide us with any responses without express prior permission from DHS headquarters.

“Get photographed as though naked or get groped” isn’t the only new TSA imposition. This month, apparently, TSA issued more secret orders to airlines as part of its illegal Secure Flight passenger surveillance and control scheme. The airlines have begun threatening to cancel reservations and deny transportation to paid and ticketed would-be passengers who haven’t provided the airlines (and thus the TSA) with their “full name”, gender, and date of birth. No law requires passengers to do so, but TSA is trying behind the scenes to force airlines to refuse to carry people who don’t.

So what is to be done? Real reform of TSA procedures would include:

Sep 21 2010

How will “Secure Flight” be enforced?

Recent announcements by airlines suggest that, either on their own initiative or in response to secret Security Directives from the TSA, they are implementing new and clearly illegal Secure Flight enforcement measures.

One of the many questions about the TSA’s Secure Flight program has been how it would be enforced.

None of the published Secure Flight regulations include any enforcement provisions or any provisions imposing obligations on travelers, and the details of Secure Flight implementation are spelled out, if at all, only in secret Security Directives to airlines that by their nature cannot impose any obligations on travelers.

The TSA’s own secrecy leaves us no choice but to rely on whistle-blowers and leakers within the government and the airline industry (please keep those calls, letters, and e-mail messages coming!) and on what we can infer from airlines’ public disclosures.

This new notice from American Airlines is typical of what we’ve been seeing and hearing lately:

As a result of the Transportation Security Administration (TSA) and Department of Homeland Security (DHS) mandate, beginning November 1, all passengers will be required to have Secure Flight Passenger Data (SFPD) in their reservation at least 72 hours prior to departure….

In compliance with this mandate you will be required to provide Secure Flight Passenger Data:

To purchase any ticket on or after September 15, 2010

To travel November 1, 2010, or later regardless of purchase date

What’s wrong with this picture?

The “mandate” described on the AA website doesn’t exist in any Federal statute or publicly-disclosed regulation, or in AA’s tariff or contractual conditions of carriage. On the contrary, airlines are required by Federal law to be licensed as common carriers. They are required to sell a ticket to, and to transport, any would-be passenger willing to pay the fare and comply with the rules in their published tariff.

Federal agencies including the TSA and Department of Transportation (DOT) are required when issuing regulations to take into consideration “the public right of freedom of transit” by air, and have no authority to issue administrative regulations or directives that would override the statutory definition of airlines as common carriers.

No court has ever even considered, much less upheld, any suggestion that air travelers forfeit their right to remain silent in response to questions from the TSA or other Federal employees, much less from TSA contractors or airlines.

On international routes, bilateral and multilateral aviation treaties similarly require airlines to operate as common carriers, in accordance with published rules and a published tariff.

So if AA or any other airline refuses to sell you or a ticket, or to transport you, solely on the basis of your declining to provide Secure Flight data, they render themselves liable to Federal civil suit and damages for refusal of transportation in violation of their duty as a common carrier, as well as to formal complaint and revocation of their operating license for the same violation.

While the US government might intervene in US court to block such a suit on the grounds that any Security Directives issued to the airline were a state secret, that wouldn’t be possible if the lawsuit for refusal to transport were brought in the courts of a foreign country from which the airline refused to transport you to the US.

If an airline tried to file new conditions of carriage incorporating such a provision for denial of transportation, the US Department of Transportation would be duty bound, by Federal statute, to disapprove it. And if the DOT approved such a filing applicable to an international route, the government of other affected country or countries would be entitled both to disapprove the filing (by treaty, international tariffs typically require approval by both or all countries involved) and to protest its approval by the US as a treaty violation.

We hope that, faced with these choices and risks, airlines will choose to follow Federal law and international aviation and human rights treaties, and will vigorously and publicly litigate their challenges to any US attempt, through secret Security Directives or otherwise, to get them to depart from their duty to the traveling public as common carriers.

Sep 21 2010

ESTA fees: the whole is worse than the sum of its parts

New U.S. Customs and Border Protection (CBP) regulations took effect this month that combine two bad ideas — fees to encourage foreigners to visit the US by charging them more to do so, and fees for the Electronic System for Travel Authorization (ESTA) — in a way that creates new possibilities for travel surveillance and control that are far worse than either component alone.

The Interim Final Rule for ESTA and Travel Promotion Act fees took effect on an emergency basis on September 8, 2010, with public comments and objections being taken only after the fact. In promulgating the new rule, CBP continues to ignore the objections we raised to the fundamental illegality of the ESTA scheme. CBP also continues to ignore the Presidential Directive that it consider in its rulemakings US obligations under international human rights law, and continues to claim, in direct contravention of the applicable law, that it doesn’t need to consider the impact of the rule on individuals because “individuals are not small economic entities”, despite the fact that a sole proprietor, freelancer, or other self-employed individual is the epitome of a small economic entity (as the DHS has itself admitted in response to some of our previous objections to this same false boilerplate claim in other rulemakings). And it remains unclear if and when an ESTA is actually required, or how the “requirement” is supposed to be enforced.

But the most problematic consequences of the new rule result from the new requirement, completely lacking in statutory authority, that the the new “travel promotion” and ESTA fees can be paid only by one of four specified brands of credit or debit cards. This implies:

Travel control by credit and debit card issuers: If you do not have one of these four types of cards, you cannot travel to the US intending to enter under the Visa Waiver Program (VWP), but may enter the US only if you obtain a visa at a cost of at least US$135 plus a personal interview at a US consulate or embassy (for which there may be a waiting list of several months). Since the regulations impose no obligations whatsoever on the issuers of these cards, this means that collectively the four companies (Visa, MasterCharge, American Express, and Discover) have absolute, secret, standardless commercial veto power over eligibility for VWP entry to the US.
Universal financial surveillance of VWP travellers: Because the credit or debit card details must be provided as part of the same online ESTA application with the would-be visitor’s personal information, it is now illegal to travdel to the US intending to enter under the VWP without having at least one currently valid credit or debit card on file with CBP and linked to your identifying and travel details. As some news reports have already noted, this creates new possibilities for financial surveillance of travelers. All of the four acceptable types of cards are issued through US-based commercial entities, so all records related to them can be accessed by the US government in secret, without warrant, through “National Security Letters”. Even if you use a different card while in the US, it will in almost all cases be linkable through card application or other banking records (such as those obtainable by the US government from SWIFT or other companies through the “Terrorist Finance Tracking Program”).
Vastly increased potential for identity theft, phishing, and other ESTA-based fraud: Because ESTA requires entry through an easy-to-imitate website of exactly the sort of personal information that’s needed for identity theft, together with travel itinerary information that makes it easy to carry out the attack while the victim is away from home and less likely to notice or be able to respond quickly and effectively, ESTA phishing and fraud are already rampant. But the addition of current valid credit or debit card data to the online-only ESTA application requirements has put phony ESTA websites in the vanguard of current phishing techniques. Already, most of the top search results for “ESTA application” in the languages of countries in the VWP are fraudulent phishing sites, and the problem is getting steadily worse. We can tell you that the only legitimate ESTA application website is at https://esta.cbp.dhs.gov — but how do you, or anyone else, know to believe us rather than to believe any of the other bogus websites that say otherwise?:Visitor beware!

Sep 03 2010

Napolitano outlines US travel control agenda for ICAO

In a speech to the Air Line Pilots Association earlier this week, Secretary of Homeland Security Janet Napolitano made explicit the US government’s intentions to, as we have repeatedly predicted, use the International Civil Aviation Organization (ICAO) as its primary international policy-laundering forum to bypass and override national laws restricting surveillance and control of travel.

ICAO isn’t mentioned in the DHS press release, and the DHS doesn’t seem to have posted the full text of Napolitano’s speech. But according to reports in Homeland Security Today and elsewhere:

Napolitano will seek a formal resolution from the general assembly of the International Civil Aviation Organization (ICAO) Sept. 28-Oct. 8 in Montreal, Canada, to build upon five regional security declarations obtained by the United States….

Each of the five meetings resulted in a security declaration focusing on vulnerabilities in the international aviation system in four key areas: developing and deploying new security technology, strengthening aviation security measures and standards, enhancing information collection and sharing, and coordinating international technical assistance

ICAO assisted in coordinating the five agreements, which Napolitano hopes to use as a springboard to obtain a declaration covering the international organizations 190 member states in the fall.

“Enhancing information collection and sharing” is of course a euphemism for mandatory airline and national government participation in the compilation of lifetime logs of individuals’ movements, while “developing and deploying new security technology” refers mainly, as of now, to mandatory use on airline passengers of virtual strip-search machines.

With Members of the European Parliament asking new questions about DHS demands for European collaboration in US travel surveillance and control schemes, DHS and the US government are turning increasingly to ICAO as a less transparent, less publicly accountable “plan B” for internationalization of its travel regime.

It’s unclear whether the resolutions to be proposed for adoption by ICAO at its upcoming general assembly will constitute ICAO “security standards”, or will merely be a step toward their adoption through he slow but inexorable multi-year ICAO decision-making process. But the goal of the US government is clear: Whatever surveillnace and control measures can be incorporated into ICAO security standards can be backported into national and international laws through innocuous-seeming statutory and treaty mandates for compliance with ICAO security standards, and imposed on recalcitrant countries through denial of landing rights oin the US to flights from countries or on airlines that don’t comply with such surveillance and control standards.

Aug 07 2010

Public says “No” to national cyberspace ID proposal

In June, the Department of Homeland Security and the President’s Cybersecurity Coordinator published a proposal and request for comments on a for a “National Strategy for Trusted Identities in Cyberspace” (NSTIC).

It’s hard to belive that such a system implemented from the top down at the behest of DHS and the White House would remain, as its proponents claim it would be, truly “voluntary”.

In practice, it will be required for online interactions with government agencies as well as private compnaies, rendering it “voluntary” the way it’s “voluntary” to show ID to travel: you don’t have have government ID credentials as long as you are prepared to walk (or walk on water or paddle a sea kayak if you want to get between, say, Hawaii and the U.S. mainland).

Although the official public comment period lasted only 30 days, many others have pointed out key problems with the NSIC concept. The NSTIC proposal places no value on anonymity; indeed, it evinces an apparent lack of understanding of what anonymity really means. It takes for granted the need for authentication (if we pay in cash, why does a merchant, much less a common carrier or government agency, need to know anything about us other than that our money isn’t counterfeit?) and confuses a policy that purportedly restricts disclosure of our identity with actual non-knowledge of our identity. The former protects us from those who comply with their own policies, while the latter protects us from bad actors as well. But in reality, many of the threats to our freedom come from those who can’t be counted on not to cross the boundaries of privacy “policy”, including those within governments. Actual anonymity, non-linkability of transactions and identities, and the ability of the system (and our anonymity) to survive capture of the “identity provider” and/or the government by malign interests should be key design criteria, but weren’t even considered.

The question now is what the White House and DHS will do with the response to their request for public comment on the NSTIC draft. In the online forum where the public could submit and vote on feedback and ideas for NSTIC, the single most popular suggestion was an anonymous one (no, we didn’t submit it, and we don’t know who did), “Decentralize further, don’t centralize”:

A single centralized identity is inherently less secure than a dozen identities because it creates a single point of failure. Once that identity has been compromised – which will certainly happen no matter what technological measures are taken to protect it because there will always be a user in the chain – an individual’s entire life will be open for hijacking…. This effort will be counterproductive at best and has the potential to cause problems that are orders of magnitude worse than current identity theft issues. And this is before even considering aspects that potentially compromise privacy, anonymous speech, free access to the devices that an individual has purchased, etc.

Instead of attempting to centralize identity, simply ensuring that current best practices are followed would vastly improve online security. Making authentication services responsible for all outcomes of a data theft would be a good first step, as well as outlawing EULA language that forfeits a user’s ability to hold such services responsible for technology failure that result in theft, downtime, and data loss. Providing incentives such as these, combined with increased enforcement, will force corporations large and small to work toward increasing security. There should also be an enforced decoupling of identity data; if one of a user’s accounts is compromised, it should not contain personal identity information like SSNs which would allow another of the user’s accounts to be compromised. Web-based authentication has no need to have access to such information and it should be kept in separate, firewall-divided databases as a matter of law, not just habit.

There was more in this vein from other commenters, such as this on “Multiple roles, multiple identities”:

I play many roles in life. Some associated with my work, some associated with a sports league, others associated with my hobbies. If I can easily get several identities, I can use a different one for each role that I play and the issue of a national identity becomes less of a problem. I don’t have to worry about my employer having a problem with views I have shared as an individual person.

There were also numerous calls for a lengthier public comment period and more explanation of the details of any plan before it is adopted.

We urge the White House and DHS to heed the public comments on the NSTIC draft and scrap this scheme for a single, centralized scheme for de facto mandatory online credentialing and identification.

Jul 27 2010

US but not UK gives travel “permission” for Iroquois lacrosse team

The good news: In one of the first tests of US rules purporting to forbid US citizens from crossing US borders without first obtaining US passports (issued at the government’s apparently standardless discretion), the US Department of State issued “one-time waivers” authorizing the “Iroquois Nationals” lacrosse team to leave the US (and presumably to return, although that’s not entirely clear from news reports) without carrying US passports.

The dispute arose because some Iroquois, like other Native Americans, have for many years used passports issued by their own tribes or nations. Whether those passports were “passports” within the meaning of US law was largely irrelevant as long as passports were merely a convenience, not a requirement, for international travel. Lacrosse was an Iroquois invention (for an introduction to the sport, see John McPhee’s essay last year in the New Yorker, “Spin Right and Shoot Left”, included in his latest anthology, “Silk Parachute”), and travel on Iroquois passports was and is especially significant for the Iroquois Nationals team, who compete on behalf of their own nation in international lacrosse tournaments.

While it was framed as a dispute over the sovereignty of the iroquois Confederations and/or the validity of Iroquois-issued passports, the US appears to have seen it purely as a question of whether native Americans who are also US citizens may leave or return to the US without US passports.

At first, the US had threatened to prevent the team from boarding flights to the UK for the international lacrosse championships. But without admitting either the “validity” of Iroquois passports (i.e. not whether they are genuine but whether they satisfy US requirement for exit or entry permits), or the invalidity of the passport requirements for US citizens, the US effectively backed down by granting the team “waivers” and, more importantly, saying that they would not interfere with their departure from the US.

This continues the pattern we have sen to date: We have yet to hear of a case in which the US government has actually prevented a US citizen from leaving or returning to the country on the basis of their not having, or declining to carry or display, a US passport. In every incident that has been brought to our attention, the US government has eventually indicated its willingness to stand aside from interference with departure from or return to the country without passports — although travel has sometimes been frustrated in other ways, such as refusal to give airlines permission to transport them. Presumably, the US government realizes that preventing its own citizens form leaving or returning to the country would be such a flagrant violation of international human rights law as to lead to diplomatic complications, even if it would be difficult to challenge on those grounds in US courts.

The bad news: After finally obtaining “permission” to leave the US without US passports, the Iroquois Nationals lacrosse team was denied visas by the UK — not on the grounds that their passports were invalid, or weren’t issued by a sovereign entity, but on the grounds that their passports don’t contain ICAO-standard “security” features required by the UK for visitors from the US. It is, again, unclear from news reports what absent “features” were at issue, but they might have included machine-readability (OCR or RFID) or other aspects of formatting or data content.

Jul 23 2010

“The government shouldn’t decide who can fly”

In one of the first statements in the mainstream media to (a) recognize that the essential feature of the TSA’s Secure Flight program is the requirement for domestic US air travelers to receive government permisison to fly and (b) oppose that requirement, The Chicago Tribune has published an op-ed column by Steve Chapman (also appearing in Reason) arguing that, “The government shouldn’t decide who can fly”:

Get rid of the no-fly list entirely. For that matter, get rid of the requirement that passengers provide government-approved identification just to go from one place to another.

Americans have a constitutionally protected right, recognized by the U.S. Supreme Court, to travel freely. They also have the right not to be subject to unreasonable searches and other government intrusions. But in the blind pursuit of safety, we have swallowed restrictions on travel and infringements on privacy we would never tolerate elsewhere….

If the federal government began requiring every citizen to provide identification for each trip in a car or ride on a bus, there would be a mass uprising. Somehow, though, Americans have come to see commercial air travel as a privilege to be dispensed by the government.

Jul 09 2010

Australian government expanding air travel surveillance

Closely following the bad example (controversial both in the US and Australia) of the USA, the government of Australia is moving toward increasing detailed and integrated ID-based surveillance and control of air travelers.

As of the first of this month, under the so-called Enhanced Passenger Assessment and Clearance (EPAC) systems, Australian authorities have real-time access to all passenger name record (PNR) data for all passengers on all international flights to Australia. And an additional A$24.9 million is being spent by the government over the next two years, in addition to uncounted amounts that airlines and other travel companies will have to spend, to expand the amounts of data collected by airlines and passed on to government agencies as well as the automated profiling (“risk assessment”) conducted on the basis of this data.

The changes and the heightened surveillance and control of travelers to Australia come at the same time that the European Union is simultaneously renegotiating agreements with Australia and the USA for government access to PNR data related to flights to and from the EU.

The Sydney Morning Herald quotes the president of the Australian Council for Civil Liberties, Terry O’Gorman, as saying that the scheme “increases the risk of a person wrongly being put on a no-fly list.”

Jul 09 2010

Social networks, identity services, and national ID

Most of the reporting on last month’s conference on Computers, Freedom and Privacy (where we joined a panel on current hot topics in privacy) has focused on the issuance of a Social Network User’s Bill of Rights. That’s testimony to the importance of Facebook, but the implications extend even to those who aren’t currently users of Facebook or similar services.

As Brad Templeton has described it, “Facebook [is] mak[ing] a play to be the main provider of what is sometimes called ‘identity’ services on the internet,” with greater domination (monopolization?) of that niche than any previous provider of “single sign-on” services — even Microsoft. If a third party wants to offer an online service that depends on a unique identifier, and doesn’t want to put the speed bump of needing to remember a separate user name and password or other identifier in front of customers, the default today has become to offer that service as a Facebook app, on the assumption that most potential users are already signed in to Facebook. You can opt out of Facebook, but that option is a cop-out, not least because then you can’t use any of the other services that, as Facebook apps, rely on Facebook for their user ID and authentication.

Inherent in using Facebook for authentication is that Facebook itself, as the ID services provider, is aware of each ID-verification or authentication event involving any Facebook app, just as a credit bureau has a record of each time a third party has verified your ID or credit using their service. Facebook has a duty to its shareholders to monetize this information, if it can figure out a way to do so, and a legal duty to hand it over to the government in response to a court order.

Worse — and the deeper reason for this blog post — government agencies are increasingly turning to commercial ID services, if not yet to Facebook, as outsourced ID verification services for the provision of government services and the exercise of citizens’ legal rights.

Already the TSA is using an (illegal, but still in operation after more than two full years) ID verification scheme under which would-be airline passengers who decline to display acceptable government-issued credentials are required to “verify” their identity by asking them questions about the information contained in the records about them maintained by Choicepoint or Acxiom. And the latest issue of Privacy Journal reports that the Social Security Administration is considering a similar system using questions and answers based on the records of commercial data aggregators as a way to “authenticate” individuals for online management of their Social Security accounts.

In such a world, your “identity” is what these companies say it is. Where do these private companies think you lived, and with whom, in a certain year, for example? An identity thief who has gotten your files may be more likely than you are to to know the “correct” answer. And each time such a commercial service is used to verify your ID for government purposes, the service provider has a record of the transaction to add to its dossier about you, and use for whatever purposes it chooses.

At present, our use of one set of credentials or identifiers to pass through TSA checkpoints (if we choose to provide them), our checking our record of Social Security contributions, and many other dealings with government agencies are tracked separately, using (at least sometimes) separate identifiers. But as we discussed with representatives of the NO2ID, drawing on the UK example, and others at CFP, the more dangerous part of a national ID scheme isn’t necessarily the single national ID card (if any) but the reliance on a single identifier for multiple purposes, and the resulting ease of compilation of a database of transactions and events which are all linked to that ID even when they are carried out by different government agencies or third parties. That’s just as much of a danger whether the monopolistic ID services provider is a government Ministry of Identity or if it’s Facebook, Acxiom, or Choicepoint.

Papers, Please!

The Identity Project