Papers, Please – Page 33 – Papers, Please!

Jul 17 2009

PASS ID or REAL-ID? Tweedle-dum or Tweedle-dee?

The Senate Homeland Secuirty Committee hearing this Wednesday on “Reevaluating the REAL ID Act” was a sham, in which the only”opponents” or “critics” of the current REAL-ID law allowed to testify were those who prefer the PASS-ID bill to substitute an alternate national ID card mandate. Critics of any national ID need not apply to be heard as part of this debate between Tweedle-dee and Tweedle-dum.

Eevn the few positive features of the PASS-ID bill came under attack. Senator Collins of Maine wanted to know whether the bill would allow the sort of airport “security” measures that are used in Israel (notorious for ethnic profiling), and specifically whether the PASS-ID provision that, ““no person shall be denied boarding a commercial aircraft solely on the basis of failure to present a driver’s license or identification card issued pursuant to this subtitle,” would still allow denail of boarding, regardless of ID, solely on the basis of “behavioural profiling”. And the National Retail Association wants to make sure that the PASS-ID prohibition on non-governmental scanning or use of machine-readable (bar-code, mag stripe, or RFID) data on government-issued ID cards would still allow stores to skim this data in order to profile patterns of “suspicious” merchandise returns. Would anyone object, they want to know, to an exception to this provision that would allow scanning and tracking of machine-readable ID data to detect or prevent “fraud or other illegal activity”?

Yes, we would object to such an open-ended exception. More importantly, we object to any mandatory national ID. So do tens of millions of Americans, regardless of whether Congress does’t want our views to be part of the debate.

Jul 14 2009

D.C. Circuit court enjoins checkpoints on public streets

Striking down both a permission-based system of controls of movement (under which motorists on public streets in the District of Columbia were required to explain the purposes of their intended movements to the satisfaction of police before being permitted to pass police checkpoints, with the burden of justification placed on the would-be travellers), and the use of “security”, generalized crime prevention or deterrence, and general law enforcement as justifications for the use of checkpoints as de facto general warrants to stop, detain, interrogate, and compel responses to questions by travellers on public rights of way, the Court of Appeals for the D.C. Circuit has overturned the denial by the D.C. District Court of a permanent injunction against the Metropolitan Police scheme of so-called Neighborhood Safety Zones.

In Mills v. District of Columbia (No. 08-7127, decided July 10, 2009), the D.C. Circuit Court explicitly addressed, and reaffirmed, both the right to movement on public ways (“It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access”) and the unconstitutionality of checkpoint stops, searches, or seizures “whose primary purpose was to detect evidence of ordinary criminal wrongdoing…. Because the primary purpose of the … checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment” (quoting City of Indianapolis v. Edmond, 531 U.S. 32).

It’s also notable that the Court ruled as it did despite explicitly noting that the checkpoints at issue applied only to travellers by motor vehicle, and not to pedestrians. (It’s unclear from the appellate opinion how bicyclists and other travellers by non-motoirized vehicle were treated.) The undisputed fact that there existed an alternative, unrestricted mode of travel — by foot — was not a factor in the decision.

We’ll leave it as an exercise for the reader, and the TSA, to consider how the logic of this decision — and the Supreme Court precedent in Indianapolis v. Edmond on which it relies — would apply to TSA checkpoints at airports.

Our friends at Checkpoint USA have more details in their Roadblock Revelations blog.

Jun 25 2009

Courts and Congress finally start to rein in the TSA

Until recently, the TSA has been a domestic legal Guantanamo, and the TSA has treated their domain of “checkpoints” and travel control and surveillance as a law-free zone where their powers of search, seizure, detention, and denial of passage were unconstrained by the Constitution, human rights treaties, judicial review, or stautory or regulatory standards. As indeed it has been: Congress has enacted no law specifically defining any limits on the authority of TSA agents at checkpoints (or elsewhere), and the TSA itself has never conducted any rulemaking or issued any publicly-disclosed regulations defining its authority, the limits of that authority, what orders travellers do or don’t have to comply with, and which forms of “noncooperation” are considered grounds for which sanctions (more intrusive search, denial of transportation, admninistrative fine, detention, etc.). While the TSA has never been explicitly exempted from the Constitution or treaties such as the International Covenant on Civil and Political Rights, the DHS has sought to avoid ever allowing judicial review of fly/no-fly decisions, and the courts themselves have gone out of their way to avoid ruling on the legality of TSA actions — such as when the 9th Circuit invented a counter-factual claim (without ever allowing an evidentiary hearing on the facts) that John Gilmore hadn’t actually been required to show ID credentials in order to fly, as a way to avoid ruling on whether an ID-to-fly requirement would be Constitutional. As for the Executive, President Obama has yet to nominate an Administrator of the TSA, leaving this one of the highest-ranking vacancies in the Administration and leaving the TSA operating on autopilot under lame-duck holdovers.

In the absence of any explicit rules or any judicial, legislative, or executive oversight, the TSA has felt no need to seek authority for its ever-expanding assertions of authority through legislation or rulemaking. Nor has the TSA recognized any duty of self-restraint or self-policing to ensure its actions conform to the law. Instead, the TSA has simply wielded its power to do whatever it wished, on the disgraceful assumption that, “If we’re doing something wrong, the courts will tell us — if and when someone can afford to sue us, and they win a court judgment against us.” In the meantime, the TSA will do, and claim the right to do, anything that hasn’t already specifically been ruled illegal. Kind of like the thief who assumes that they can steal whatever they want, and that if something turns out not be theirs, they’ll give it back if and when someone sues and wins a court judgment ordering its return.

Time and again we’ve pointed out this failure to subject the TSA to the rule of law. See, for example, our most recent prior post on this topic, our agenda on the right to travel submitted to the Obama Administration and Congress after the 2008 elections, and our comments earlier this month at the Computers, Freedom, and Privacy conference session with Obama Administration representatives and others at 1:45:53 of this video. Until recently, however, neither the Courts, the Congress, nor the Executive branch have wanted to confront the question of what rules govern the TSA.

We’re please to report that this is finally beginiing to change, in small ways but on numerous fronts:

“Clear” registered traveler company fails after wasting $116M

260,000 members down the tubes. No refunds.

Congratulations, suckers! Not only did you sign up for and pay money to a totalitarian program, but as usual, the police state was run by incompetents. Your little attempt to suck up to the TSA gestapo now won’t be doing you any good.

Their competitor “Flo Corp” is working hard to “analyze the implications of this announcement”. We can give them some help. A tiny minority of Americans signed up for the National Security State you offered them. You lost the election, the people voted with their wallets and their feet. Your fly-by-night stock is hovering right near 1cent per share. So get a clue and get out of the business while you still can pay your debts. What the public deserves is reform of the whole TSA system, so it provides real rights and real service and real accountability to EVERY traveler — not just to rich guys happy to have their iris and fingerprints on file. TSA’s culture of impunity needs to end, then we’ll all get along a lot better.

Oh, and to investors in Clear? It’s charming how you hoped to profit from funding the totalitarian tracking of the movements of all the citizens. (You couldn’t hope to make money at it unless pretty much every traveler signed up for it.) We’re so glad that every dollar you gave Clear is now a dollar that you can’t waste on your next socially destructive idea.

Jun 01 2009

Today we’re all prisoners in the USA

As of today, June 1, 2009, even U.S. citizens are officially prisoners in the USA, or exiles barred from entering our own country without the government’s permission.

We are now forbidden by Federal regulations from leaving or entering the USA, anywhere, by any means — by air, by sea, or by land, to or from any other country or international waters or airspace — unless the government chooses to issue us a passport, passport card, or “enhanced” drivers license (any of which “travel documents” are now issued only with secretly and remotely-readable uniquely-numbered radio tracking beacons in the form of RFID transponder chips), or unless the Department of Homeland Security chooses to to exercise its standardless “discretion” to decide — in secret, with no way for us to know who is making the decision or on what basis — to issue a (one-time case-by-case) “waiver” of the new travel document requirements.

If you’re in the USA without such documents — even if you were born here, or are a foreigner who entered the USA legally without such documents (a Canadian, for example, who entered the USA by land yesterday when no such documents were yet required), or your document(s) have expired or have been lost or stolen — you are forbidden to leave the country unless and until you procure such a document, or unless and until the DHS gives you an exit permit in the form of a discretionary one-time waiver to leave the country — but not necessarily to come home, unless they again exercise their discretion to “grant” you another waiver.

If you are a U.S. citizen abroad without such a document (for example, if you entered Canada legally without it yesterday by land, when it wasn’t required, or again if your document(s) are expired, lost, or stolen) you are forbidden to come home unless and until you can procure a new document acceptable to the DHS, or unless and until the DHS gives you permission to come home in the form of a discretionary one-time waiver. Read More →

May 26 2009

TSA releases (censored) ID checking procedures

In response to a request by the Identity Project under the Freedom of Information Act, the TSA has for the first time given us a (redacted) version of the section on Travel Document and ID Checks from the TSA’s “Screening Management SOP” (Standard Operating Procedures) manual. Our request was made June 21, 2008, the day the TSA announced what they claimed were changes to ID “requirements” for air travelers. It took the TSA almost seven months to respond.

The version of the SOP manual which the TSA has now made public is dated June 30, 2008, so it ought to reflect the changes announced in the TSA’s June 21, 2008 press release. But there is nothing at all in the sections of the manual the TSA has released about the new procedures and new ID verification form which the TSA had, in fact, started using. Rather than requiring people who don’t have or don’t choose to show government-issued ID credentials to execute affidavits stating who they are under penalty of perjury, the TSA procedures manual requires that such people be allowed to proceed through secondary screening as “selectees”, and specifically directs screeners and other TSA staff not to make any attempt to detain or delay them.

California DMV plans crackdown on “look-alikes”

Has anyone ever looked at your face and mistaken you for someone else?

If so, and if you live in California, you could be a victim of a proposal by the California Department of Motor Vehicles which is now under consideration in the state legislature.

At a hearing yesterday (May 13, 2009) before the Assembly Budget Subcommittee No. 5 on Information Technology/Transportation, the Director and Chief Information Officer of the DMV pleaded for more money (in spite of the desperate state budget crisis) to hire a contractor to digitize and store the photographs taken for every California drivers license or state ID, and then use “biometric” facial recognition and matching software to compare each new photo of an applicant for a license or ID with every photo in the database. (The DMV proposal next goes before the Senate Budget Subcommittee No. 2 on Resources, Environmental Protection, Energy and Transportation on Wednesday, March 20th.)

If the computer thinks your picture looks like any other picture in the database, both you and the other person whose photo the robot thinks looks like yours would be placed under suspicion of fraud, identity theft, or worse. Read More →

May 14 2009

“Warden’s skills a plus for TSA chief”

Has it ever seemed like the TSA treats passengers the way prison guards treat convicts? Here’s what the TSA thinks it takes to run their operations at the world’s busiest airport:

Warden’s skills a plus for TSA chief

Newly appointed Byrd has a background in corrections.

By Kelly Yamanouchi, The Atlanta Journal-Constitution (Thursday, May 14, 2009)

Mary Leftridge Byrd sees some similarities between her career in corrections and her new job as head of the Transportation Security Administration at the Atlanta airport….

Byrd, 60, joined the TSA last month from a position as assistant and deputy secretary at the Washington State Department of Corrections, and she is a former prison warden and superintendent in Pennsylvania and Maryland.

… The TSA has about 900 security officers in Atlanta.

May 03 2009

EU Council renews push for government access to PNR data

The Council of the European Union has put forward its new version of the “Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes” originally made by the European Commission. (More background on the proposal is available from Statewatch.)

The latest Council version of the proposal is essentially the same as the original Commision proposal, with only trivial changes in repsonse to input from Council members. Like the original version introduced by the European Commission, the new Council version of the PNR proposal would require each member state to establish a new surveillance agency (a government “Passenger Information Unit” or PIU), and would require each airline operating flights to, from, or within the EU to make PNR data available to the PIU of each origin or destination state.

The Council appears to have entirely ignored the criticisms raised by the European Parliament in its consideration of the PNR proposal, as detailed in its most recent November 2008 resolution withholding Europarl approval. As the Europarl rapporteur said in the plenary session preceeding the vote:

I think the European Parliament is a serious partner, fully available to give input in this process. However, we will only issue a formal position once there are full, satisfactory and detailed answers to all the concerns and objections that were raised on several occasions by the European Parliament, the European Data Protection Supervisor, the national data protection authorities, the fundamental rights agencies and the airlines, because I think they are entitled to a real answer.

The latest Europarl vote in favor of this resolution (and against approval of the PNR proposal) was overwhelming: 512 to 5, with 19 abstentions. Under the “codecision” procedure, Europarl approval is required in order for the PNR proposal to be adopted. But neither the Commission nor the Council have responded in any meaningful way to their critics, or provided any evidence that any benefit of the PNR scheme would be proportionate to the grave damage it would do to funadamental freedoms.

Europeans should encourage their MEPs to continue to demand answers before they approve any scheme with such profound implications for justice and civil liberties, and not to allow the EU to repeat the mistakes made by the U.S. in establishing PNR-based systems of travel surveillance and control.

Mar 18 2009

NPR parrots the government line on RFID passports

Today’s edition of “All Things Considered” includes a puff piece on e-passports with embedded RFID chips, based entirely on propaganda statements by government spokespeople. For the other side of the story that NPR didn’t bother to cover, see the listener comments in NPRs blog, our previous articles on RFID chips in government-issued identity documents, and reports elsewhere on how RFID passports facilitate ID theft, how the globally unique ID numbers on the RFID chips facilitate surveillance, how the encryption used for the rest of the data on the RFID chip has already been cracked, and how space has already been reserved in the data structure on the chip for logs of travelers’ movements.

Papers, Please!

The Identity Project