Papers, Please!

The Identity Project

Category Archives: Papers, Please

Jun 08 2010

“Freedom Flyer” trial in Albuquerque postponed

The trial of “Freedom Flyer” Phil Mocek, previously scheduled to begin June 14th in Albuquerque, NM,has been postponed due to the recusal of the judge to which the case was assigned, who apparently had a potential conflict of interest with one of the potential witnesses.

Mr. Mocek was arrested at a TSA checkpoint at the airport in Albuquerque, NM. The charges against him remain pending, but no new trial date has yet been set.  We are continuing to follow the case, and will post an update in this blog and in our FAQ as soon as we have more information.

Jun 08 2010

Does the US recognize its citizens’ right to cross its borders?

US citizens generally assume that, whatever mistreatment is meted out to foreigners by US border guards and the DHS, we are entitled to enter and leave our own country without asking for, or receiving, permission from”our” government.

That should be a safe assumption, under both the First Amendment to the US Constitution (which guarantees our right “peaceably … to assemble”) and Article 12 of the International Covenant on Civil and Political Rights, which guarantees that, “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,” and pursuant to which strict standards have been adopted for what is “arbitrary.” All federal agencies have been directed by Executive Order 13107 to “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

As the brave (some would say crazy) few people like Paul Karl Lukacs who actually try to exercise their rights have shown, it remains possible for US citizens to exercise their right to remain silent at the borders of our own country, although many US citizens have been subjected to interrogation, search, harassment, and sometimes detention when they try to return to the USA.

But can we be entirely prevented from coming or going?  More and more, the frightening answer seems to be yes, in practice if not in law.

We first heard about a native-born US citizen being denied the ability to return to the country from overseas because the government wouldn’t allow any airline to transport them as what seemed to be an isolated incident in 2006. They chose not to sue, and after four months the ACLU negotiated “permission” for them to come home to California.

Now the ACLU reportedly has at least seven clients among US citizens abroad who have been unable to come home because the US government won’t let them board common carriers bound for the USA.  One billionaire friend of Bill Clinton managed to get an apology for having been put on the no-fly list, but the others have no idea when or if they’ll be allowed to come home, whether it’s time to apply for refugee status or political asylum somewhere abroad — or whether, if they do make it home, they’ll ever again be given permission to leave the country.

[UPDATE: More on these and and even more outrageous similar incidents reported  by the Council on American Islamic Relations.]

On the ground, the DHS is erecting steel barriers and gates down the middle of streets in the border town of Derby Line, Vermont, and arresting US citizens for walking across the street to and from Canada at intersections without checkpoints — even if they report themselves at the checkpoint a block further along their walking route.

All of these incidents involve people who have, and are wiling to show, US passports.  Things get truly surreal for US citizens without papers.

We’ve heard from several US citizens who left the country without passports, can’t get new passports issued abroad for various reasons, but aren’t being allowed to come back to the USA without  a passport. Under State Department regulations of questionable validity, a citizen can be denied issuance of a passport for various reasons, such as debts for court judgments, that don’t constitute grounds for deprivation of the right to enter or leave the country. And some of them may be difficult or impossible to resolve from outside the country.  Catch 22.

Finally, there are those who would probably qualify for passports, but who are unwilling to apply for them for religious or other reasons.  We’ve been working with a group of missionaries who describe themselves as Amish Mennonites (there are many varieties of Amish and Mennonite belief).  Although they were born in the USA, they can’t, consistent with what seem to be their sincere religious beliefs, apply for or accept passports that identify them as citizens of the USA rather than as citizens of the Kingdom of God.

For several years, this group has been carrying out mission work in a rural area along the border of the Dominican Republic and Haiti.  Despite seeming to have a clear-cut case under the Religious Freedom Restoration Act, they’ve had increasing difficulty each time they’ve gone back and forth between the island and USA. (Some of their stories of these and other incidents of life without papers are included here.)

One might think that “plain folk” and farmers might have particularly appropriate intermediate technology skills to offer to people in a poor and predominantly agricultural country like Haiti, and that governments would be doing what they could to facilitate the arrival of foreigners trying to bring aid to Haiti in the aftermath of the earthquake.

No such luck.  For more than three months, the members of the Amish-Mennonite mission team have been trying to get permission to board a flight from the USA to the Dominican Republic.

After extensive negotiation, the TSA, CBP, and Department of State have agreed not to prevent their departure from the USA.  American Airlines has sold them a ticket, and agreed to board them if they can show that the D.R. will admit them. The D.R. is willing to admit them, but only if they can provide sufficient evidence that they will be re-admitted to the USA when they return.  There’s the rub: Despite clear treaty law and executive orders that require them to allow all US citizens to return to the country, neither the DHS nor the Department of State will provide any written confirmation that they will admit citizens without passports.  So the missionaries are unable to leave the USA for want of proof that they’ll be allowed back in!

Jun 06 2010

UK government admits it was becoming authoritarian. Can the USA do the same?

The new UK coalition government has announced its initial Programme for Government, including a plan of action on civil liberties including, “We will scrap the ID card scheme, the National Identity register and the ContactPoint database, and halt the next generation of biometric passports.”  Talk is cheap, but Bill 1 (text, explanatory notes) already introduced by the new government would repeal the UK national ID card scheme in mid-rollout.

It’s an important precedent even though, as some have already noted, the repeal would be limited to UK citizens.  Foreigners residing in the UK — including citizens of other members of the European Union, who have the right by treaty to live and work anywhere in the EU — would remain subject to a similar ID card requirement under a separate law that is not (yet) proposed for repeal.

Two aspects of the new UK government’s action seem especially significant as examples for the USA:

One, the government is making this plank of its platform a priority for action only because they perceived it as an issue that citizens and voters were prepared to act on, through noncompliance with orders to enroll in the national ID scheme and/or at the ballot box.  The government is following, not leading, UK public opinion and votes. The US government is unlikely to abandon its national ID schemes — in whatever guise they are cloaked — unless US citizens and voters demonstrate a similar commitment to direct action against them.

Two, the new UK government has admitted much more than that “mistakes were made” or that policies need to be changed:

The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.

If the closest allies of the USA can make such an admission, and act on it, is there still a chance for the Obama Administration to make the same bravely honest admission, and take the same sort of straightforward action to scrap authoritarian measures like REAL-ID and the whole system of travel surveillance and control?

We aren’t holding our breath for fundamental change, either in the UK or the USA.  At least in principle, however, the new UK government has paved the way for what needs to be done.  It’s up to the people to see that they follow through, and that the US government follows suit.

May 28 2010

Wanna buy a prepaid SIM card? “Papers, please!”

S. 3427, a bill introduced in the Senate this week by Senators Charles E. Schumer (D-NY) and John Cornyn (R-TX),  would require would require ID “verification” as a prerequite to buying a prepaid cell phone or SIM card.

The seller or reseller of the phone or SIM card would be required to collect your personal information (including name, address, date of birth, and for online sales your Social Security number) and all unique identifiers of the phone or SIM card including the including the EMEI or other serial number and the assigned phone number.

For in-person sales, you would have to show government-issued ID credentials in a form to be determined later by the Attorney General.  For online or other non-face-to-face sales, you would also have to provide “Any other personal identifying information that the Attorney General finds, by regulation, to be necessary for purposes of this section.”

The bill would place no limits on the amount or intrusiveness of the information the Attorney General could demand, as long as it is spelled out in regulations.  And there’s nothing in the bill to stop the AG from making the verification requirements so onerous as to amount to a de facto ban on online or mail order sales of prepaid SIM card or cell phones, as Ken Grunski —  president of Telestial.com, a leading US-based online source of prepaid SIM cards and cell phones for international travelers — immediately picked up on when we sent him a copy of the bill:

The level of verification that the bill requires is critical to e-commerce providers … because they can only verify an identity to a certain extent online. For example, if the bill just required that the billing address match the shipping address, we can do that easily. But if the bill requires a state or country issued identity card, we can’t do that online. You are essentially saying that the product can’t be sold online anymore, because you can’t verify the identity of the person making the purchase.

It really opens up all types of questions, like what types of impositions would that take on the e-commerce companies and why only SIM cards and prepaid cell phones? This could lead to regulation of all types of telecom products – or anything that puts out a transmission signal.

Read More →

May 23 2010

“Freedom Flyer” Phil Mocek to go on trial June 14th in Albuquerque

[UPDATE: The trial which was scheduled to begin June 14, 2010 has been postponed. Check our FAQ about the case or the court calendar for further updates as soon as they are available.]

We’ve written previously about the arrest of Phil Mocek at a TSA checkpoint at the airport in Albuquerque last November. Mr. Mocek had a valid ticket on Southwest Airlines (“You are now free to move about the country”), and was attempting to get to his flight. Like the “Freedom Riders” of the 1960s on interstate buses, Mr. Mocek sought to exercise his Federally and Constitutionally-guaranteed right to travel, but was arrested by local police for alleged violations of state and local laws and ordinances.

So far as we can tell, this is the first time someone in the USA has been arrested or charged with a crime 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.

Mr. Mocek is now scheduled to go on trial starting June 14th on charges of violating four state and local ordinances carrying a total maximum sentence of 15 months in jail.  (The charges could still be dropped, and the trial could be rescheduled.  We’ll post an update in this blog and in our FAQ about the case if we learn of any change in the schedule.)

Read More →

May 20 2010

Is “SPOT” a reasonable basis for suspicion or surveillance?

Today the Government Accountability Office released a detailed report on the TSA’s “Screening Passengers by Observation Techniques” (SPOT) program, providing considerably more detail than the TSA itself has ever provided, confirming the lack of any evidence that the program has spotted any terrorists, and suggesting implicitly that the DHS has been keeping yet another set of illegal records about innocent travelers.

We’ve followed the SPOT program since its existence was first revealed in 2004, and we’ve been detained, interrogated, and subjected to more intrusive search ourselves after being picked out by SPOT “Behavior Detection Officers”.  (Fancy language for, “They didn’t like our looks, so they harassed us and gave us a thorough shakedown.”)

The SPOT program is the TSA’s attempt to adopt Israeli-style passenger profiling based on appearance and behavior (isn’t that supposed to be un-American, or at least illegal?), and now has a budget of more than $200 million a year.  As shown in the diagram above from the GAO report, more than 150,000 people have been subjected to more intrusive search or interrogation as a result of being fingered by BDOs as “suspicious” or allegedly fitting the (secret, of course, this being the TSA) SPOT appearance and behavior profile.  In 14,000 cases, police were called and passengers detained for “investigation”, typically including a police demand for, and logging of, their ID.

The GAO report serves mainly to confirm the obvious: There is no scientific evidence that the SPOT program has identified any actual would-be terrorists, or provides any legitimate basis for suspicion of those it singles out: Read More →

May 20 2010

Statistics on UK travel surveillance and control

It’s tempting to think that ID and PNR-based travel control systems don’t “work” as anti-terrorist measures (they obviously work as surveillance measures and as general law enforcement dragnets, as do house-to-house searches) solely because of the incompetence of the TSA and DHS. Could they be more effective elsewhere, if better implemented?  That seems to be the view of some sectors of center-right opinion in Europe, where the EU continues to consider a mandate for members states to set up their own “Passenger Analysis Units” to decide who to allow to fly, even while the the European Parliament has defined strict standards that they would have to meet.

Newly-reported data from the UK, however, suggests the UK PNR scheme — the most developed and extensive in the EU to date — has all the same problems as the US one. This suggests that the defcst are in the concept, not the details of its execution, and calls in question whether any PNR scheme is likely to likely to be able to meet the Europarl’s criteria for acceptability.

Read More →

May 17 2010

Three Strikes?

Having been passed over for appointment to head the Drug Enforcement Administration, Deputy FBI Director John S. Pistole today got the booby prize as President Obama’s third-choice nominee to head the Transportation Security Administration.

For those who haven’t been keeping score, retired spymaster and Army General Robert A. Harding withdrew his name from nomination in response to questions about overbilling and cronyism in contracts between his security consulting firm and his former military comrades. Obama’s first choice, former Las Angeles airport cop Erroll Southers, withdrew earlier after apparently lying to Congress about his having used his police connections improperly to get derogatory information from supposedly restricted police files about his estranged wife’s lover.

We have the same questions for Mr. Pistole as we’ve had for the previous nominees for TSA administrator.

As of now, the TSA is still being run on auto-pilot by caretakers from the previous administration.  Unfortunately, we don’t see anything in Mr. Pistole’s official biography as a career cop, or the President’s statement about his nomination (which mentions only a desire to “stengthen” screening at airports, and says nothing about strengthening civil liberties or human rights) to suggest any likelihood of improvement in TSA policies.

May 17 2010

What happens when you “show” ID?

It’s tempting to think that when you show a business or government agency your identity credentials, all that happens is an ID “check”.  They verify that your ID is genuine, and that it shows that you are in a category of people who are authorized to cross a border, buy alcohol, operate a motor vehicle, or whatever.  And then you’re on your way.

What’s wrong with this?  Demands for ID are wrong, but what’s also wrong with this picture is that, increasingly often, this isn’t all that’s happening.

A new product announcement shows how much more than “verification” is sometimes going on behind the scenes.  A press release from Uveritech announces their new North American franchise to distribute a document authenticator made by L-1 Identity Solutions, the prime contractor for producing US drivers licenses as well as many countries’ passports.

L-1’s website describes the desktop device as, “A combined hardware and software product that automatically authenticates a wide range of documents, including passports, visas, immigration cards, driver’s licenses and military ID cards.”  But the product description shows that it performs much more than mere “authentication”, including scanning, optical character recognition (conversion of the image of the document to text), and reading of RFID chips in passports, enhanced drivers’ licenses, and other documents, as well as:

  • “Automatically Cross Reference Smartchip data in the MRZ [Machine Readable Zone].
  • “Collect and organize data and images from document transactions through the configurable options in the embedded relational database….
  • “Print and/or send … executable files with the images….
  • “Seamlessly integrate with any existing government or commercial network infrastructure, (i.e. Australian Customs, ABN AMRO, Brazilian Border Police.)”

So what’s being advertised under the rubric of “authentication” is actually automated capture of information about you (not just the visible data but also the machine-readable data in the magnetic stripe, lines of OCR type, and/or RFID chip, using L-1’s expertise in document and data formats derived from its role as government contractor ), conversion of this information about you to standardized digital format, loading of this data into an embedded relational databases, and “seamless[] integrat[ion]” of that database “with any existing government or commercial network infrastructure”.

Still feeling sanguine that it’s “just a quick check” of your ID, after which you can be on your way without further concern for future repercussions as long as you’ve been allowed to pass?

Read More →

May 17 2010

Canadian privacy office questions US surveillance of Canadian travelers

In testimony before a Canadian parliamentary hearing last week by Assistant Commissioner Chantal Bernier, the office of the Privacy Commissioner of Canada raised questions (previously asked in the Canadian press) about the implications for Canadian travelers of the US Secure Flight program — questions that travelers in the US and other countries should share.

Asst. Privacy Commissioner Bernier noted that despite Canadian objections, the US continues to insist on applying the Secure Flight requirements (transmission of passenger data to the DHS, and receipt by the airline of affirmative DHS permission before each prospective passenger is allowed to board a flight) to flights that pass through US airspace to and from Canada, even if they never land in the USA. This includes most flights between Canada and Central America, South America, and the Caribbean.  As Bernier pointed out to Members of Parliament, “This means that DHS will collect personal information of Canadian travelers. This is not without risk.”

It’s worth noting, although it wasn’t reported to have been mentioned at the hearing, that Canada imposes no comparable requirement for the vastly larger number of flights to and form the USA that pass through Canadian airspace.  These include virtually all transatlantic flights to and from the USA, and transpacific flights to and from all points in the USA east of the West Coast. Nor does any other country through which flights routinely pass en route to and from the USA.  Most flights between Miami and Latin America, for example, pass over Cuba.  But American Airlines is required neither to provide the Cuban government with detailed information about each passenger on those flights, nor to obtain Cuban government permission before allowing them to board.

Important as they are, however, the concerns raised in last week’s testimony suggest that even the Office of the Privacy Commissioner of Canada still doesn’t fully appreciate the scope of the problem or of the violations of Canadian law.

Asst. Comm. Bernier’s statement was limited to flights to, from, or overflying the USA.  We suspect that her office is unaware that the DHS already has ways to get access — without the knowledge or consent of anyone in Canada, including airlines and travel agencies — to information about passengers and reservations for flights within Canada and between Canada and other countries, regardless of whether they pass though US airspace.

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