Papers, Please!

The Identity Project

Category Archives: Papers, Please

Jul 01 2010

Should the identities of petition signers be public?

We note with interest the recent decision in Doe v. Reed (No. 09-599), which marks the first time in a few years that the Supreme Court has directly (albeit somewhat uncertainly) addressed whether the government can permissibly require individuals to be publicly identified.  Leaving aside what the legal implications of the ruling may be, we think the case carries an important lesson about technology and identity policy.

The case concerned whether individual registered voters can sign petitions to place an initiative or referendum on the ballot without having their identities as signatories made public.

Since the right to vote without having it be made public for whom you have voted is considered fundamental to democracy, it might seem natural that you would be able to sign a petition to put Initiative I or Referendum R on the ballot without having it be a public record which such measure(s) you have endorsed.  But traditionally, the list of signatories for each individual ballot proposition has been considered a public record.

Why? The answer, we suspect, lies in the technological history.

Paper-based technologies have long made it possible to verify that each ballot is cast by a registered voter, and that only one ballot is cast by each voter, while making it impossible to identify, after the fact, which voter has cast any given ballot.  This isn’t rocket science. Even when you submit an absentee ballot by mail in a signed (outer) envelope, for purposes of verification of your entitlement to cast that ballot, the ballot itself is enclosed in a second, inner (anonymous) envelope.  Paper technology —  the envelopes — makes it easy to separate verification of eligibility to vote from identifiability of the individual ballots or votes with specific voters.

On paper, it’s harder to separate the validation of signatures and elimination of duplicates from the counting of signatures.  It could be done, through essentially the same techniques as are used for paper absentee ballots, but that would require a different system than the traditional petition with multiple signatures on each sheet.  There’s really no policy reason behind the public identification of signatories that we have come to take for granted as “natural”. Rather, the lack of any possibility for anonymous endorsement of petitions is a corollary of the technique and format in which signed endorsements for a petition are collected.

There’s a lesson here of wide applicability. Providing for anonymity requires effort.  It requires that the systems be designed to provide for the possibility of anonymity, and that authorization (Is this the signature of a unique registered voter?) be separated from identification (Which voters signed this particular petition?).  If that isn’t a design criterion from the start, it’s likely to be simpler to munge those functions together in ways that preclude anonymity.

Jun 30 2010

New lawsuit challenges no-fly orders

In a lawsuit filed today by the ACLU in Federal court in Oregon, Latif, et al. v. Holder, et al., ten U.S. citizens who have been refused permission to board flights to, from, or within the US, or have boarded flights to the U.S. only to have them turn back en route, are suing the Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center for denying their rights by ordering airlines not to transport them.

At least one of the plaintiffs even flew to Mexico, to avoid overflying the US, with the hope of returning to the US by land.  Instead, he was arrested by Mexican police (presumably at the behest of the U.S. government, and deported not to the country of his citizenship, the USA, but to Colombia, where he has only a temporary visa and can’t remain.  That should have prompted diplomatic protest by the US to Mexico for the improper deportation of a US citizen to a third country.  But presumably Mexico acted at the behest of the US, and there has been no sign of US objection.

So far as we know, this is only the second lawsuit to directly challenge the legality of no-fly orders, and the first on behalf of US citizens.  The previous case was brought by Rahinah Ibrahim, a Malaysian graduate student at Stanford University, after she was detained by San Francisco Airport police and prevented from flying home to her country in 2005. While her complaint remains pending against the individual police in U.S. District court for the Northern District of California, the cases against all of the Federal agencies and officials have been dismissed.

The latest case will test whether the Obama Administration still agrees with former Secretary of Homeland Security Chertoff that no-fly decisions should not be subject to judicial review.  [Update: From the latest statement by the Director of the National Counterterrorism Center, it appears that they may.] And it will be closely watched in Europe as well, where the Obama Administration has assured the European Union that adequate means of redress do exist in U.S. courts for individuals — including some of the plaintiffs in the latest case — denied permission to travel from the EU to the U.S. on the basis of passenger data transmitted to the DHS.

Jun 29 2010

State Dept. brushes off critics, raises passport fees

Yesterday the Department of State published an interim final rule putting its previously proposed increases in passport and visa fees into effect as of July 13, 2010.

The State Department admitted that more than 98% of the comments received from individual members of the public were opposed to the fees, as were comments from the travel industry and from the Identity Project and other consumer and civil liberties organizations.  But the State Department brushed off those objections (failing even to acknowledge our complaint that the rulemaking violated US international treaty obligations on freedom of movement, or our complaint and those of travel companies that it violated the Administrative Procedure Act) and finalized the proposed fee increases unchanged.  No consideration was given to their economic impact on self-employed or freelance business travelers, despite the requirement for such an assessment under the Regulatory Flexibility Act.

Unless the interim final rule is challenged in court (perhaps by travel companies, on APA grounds), fees for new or renewal passports and “passport cards” will all increase for applications received by the Passport Office on or after July 13, 2010.  The most extreme increase will be for adding blank visa pages to a current passport, currently a free service for which a new fee of $82 will be imposed.  If your passport might fill up before it expires, apply for new pages now.

Jun 29 2010

TSA has a new top cop

Following hasty hearings by the Senate Commerce, Science & Transportation and Homeland Security Committees, the Senate gave unamimous consent on Friday, without a recorded vote, to the nomination of John S. Pistole, the pistol-packing deputy director of the FBI and right-hand man to Robert Mueller in the FBI’s often extra-judicial “war” on terror, to be an Assistant Secretary of Homeland Security and the Administrator of the TSA.

The hearings (see the links above for archived webcasts) were a mix of praise for Pistole’s police “toughness” and criticism of the possibility that he might allow TSA employees to form a labor union.  “Should law enforcement officers be unionized?”, several Senators asked, apparently duped by their badges, uniforms, titles, and attitudes of presumed authority into thinking that at Transportation Security “Officers” and contractors are law enforcement officers, when in fact they are civilians without police powers (except for a handful of investigators like the ones the TSA sent to serve subpoenas on journalists who published leaked descriptions of some of their procedures).

Civil liberties were scarcely mentioned during the confirmation hearings and none of our suggested questions were asked. Nor was there any mention of Mr. Pistole’s lack of civilian experience.

The last thing the TSA needs, in our opinion, is more cop-think and an even more paramilitary attitude.  We’re hoping for the best, but we suspect that this appointment will make it even more important for US citizens’ and visitors to exercise our rights rather than relying on the TSA or Congress to recognize on their own initiative.

Jun 22 2010

TSA reaches out to the Identity Project

After years of having our complaints ignored, we were pleased to be invited by the TSA to participate in the ongoing “Multi-Cultural Coalition” organized by the Office of Traveler Specialized Screening and Outreach of the TSA Office of Civil Rights and Liberties, under the direction of the TSA Office of the Special Counselor.

In response to an invitation to submit questions and concerns for the agenda of today’s TSA outreach briefing with this coalition — our first such — we submitted the following questions.  We only got notice of the conference call and submitted our questions at the last minute, and didn’t expect these issues to be addressed on such short notice, but we were pleased to be able to put them on the table for TSA consideration, should the agency chose to respond:

  1. Now that the TSA is carrying out all fly/no-fly decision-making for domestic flights through Secure Flight, what is the procedure for obtaining judicial review of no-fly decisions? Or is it the TSA’s belief that no-fly decisions are not subject to judicial review? (We are particularly concerned, of course, about the situation and the means for judicial review of these decisions against US citizens trapped overseas and unable to return to the USA, or unable to leave the USA, because the DHS will not permit them to fly. The upcoming transition to Secure Flight for international flights means, we presume, that these decisions will shortly be transferred to the TSA. We would like to work this out with the TSA before this transition, so that after the transition travelers denied passage have clear information as to the procedures for judicial review.)
  2. Does the TSA have any plans to promulgate regulations defining what orders travelers are required to comply with from TSA employees or contractors, and/or what questions travelers are required to answer, as a condition of being given TSA permission to proceed through checkpoints or board flights? (The Identity Project has received no response, after more than 6 months, to our FOIA requests for the TSA’s standard operating procedures, and of course those procedures are not binding regulations.)
  3. In particular, does the TSA assert the authority to deny passage to travelers who remain silent in response to TSA or TSA-contractor interrogatories? What language would the TSA prefer travelers use (or would you prefer that they simply remain mute?) in order to most clearly and concisely invoke their right to remain silent in response to interrogatories by TSA employees or contractors?
  4. There have recently been problems with TSA employees and contractors calling local law enforcement officers and making complaints against travelers for exercising their rights to photograph and record their own interactions with TSA employees and contractors, and/or for exercising their right to remain silent in response to TSA or contractor interrogatories. Has the TSA conducted any training or issued any guidance to screeners regarding travelers’ rights to remain silent and/or to record and photograph their interactions with TSA employees and contractors (just as the TSA, airport operators, and/or law enforcement agencies and officers record and/or photograph those interactions)? If so, will the TSA make that guidance public, so that travelers who wish to exercise these rights would be able to carry copies of this TSA guidance to show to TSA employees, contractors, and/or local law enforcement officers?
  5. Has the TSA and/or DHS designated a point of contact and procedures for complaints of violations of human rights treaties, including the International Covenant on Civil and Political Rights, in accordance with Executive Order 13107 on implementation of human rights treaties? If not, when does the TSA and/or DHS expect to do so? Will pending complaints need to be re-submitted once this designation is made? (The complaints of the Identity Project that TSA regulations and procedures violate the ICCPR have been pending without response since 2007 in the case of Secure Fight, and since 2009 in the case of the TSA’s practices of secondary screening on the basis of nationality, in addition to our similar unanswered complaints against other DHS components on closely-related issues.)
  6. The TSA changed its office locations without promulgating new Privacy Act SORN’s or FOIA notices, so that none of the addresses of record in the most recent Federal Register notices or the CFR are valid. As a consequence, none of the TSA’s current SORN’s or FOIA notices are valid, and the knowing operation of each TSA system of records, without a valid SORN with a valid current address having been published in the Federal Register, is a criminal violation of the Privacy Act. What action, if any, is the TSA taking to promulgate valid SORN’s and a valid FOIA notice, to discipline those responsible for the current violations of FOIA and the Privacy Act, and/or to alert those who have sent FOIA or Privacy Act requests into the black hole of the current addresses of record that their requests have not been received, and will need to be re-submitted? What is the proper point of contact for complaints of these violations?
  7. In general, what is the proper point of contact in the TSA and/or DHS for complaints of criminal violations of the Privacy Act, e.g. knowing operation of systems of records by TSA without having promulgated a valid SORN? (The Identity Project has never received any response to any of our complaints, filed in TSA and other DHS component regulatory dockets, of criminal violations of the Privacy Act by TSA or other DHS components.)
  8. 42 USC 2000aa prohibits search or seizure of media, journalism, or other public communications work product materials in the absence of specified conditions (probable cause, etc.). We have received several reports of, and have ourselves experienced, search and seizure of such materials by TSA and its contractors. Has the TSA given any training or produced any guidance to TSA employees and contractors regarding 42 USC 2000aa? If so, will that guidance be made public, so that it can be carried and shown at checkpoints by journalists and others carrying work product materials protected from search and seizure? What procedure would the TSA recommend to people carrying such materials, as a way to alert TSA employees and contractors that certain material is exempt from search or seizure under this statute, and to invoke its protections?

In the course of today’s conference call, the TSA asked for suggestions to improve the signs at TSA checkpoints where virtual strip-search machines (Advanced Imaging Technology (AIT), previously “Whole-Body Imaging” (WBI) in the latest TSA-speak) are being used.  We suggested that the signs should include whole-body images at the same size, scale, and resolution as the displays used by the operators of the machines, when the display is zoomed in on a portion of the body to its maximum magnification.  “That’s new information to me” that the current signs don’t do that, said TSA Special Counselor Kimberly Walton. “We’ll have to look into that. I will take that under advisement.”

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.

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