Another “deadline” for enforcement of the REAL-ID Act of 2005 passed uneventfully today.
The US Department of Homeland Security had advertised that DHS extensions of time for voluntary compliance with the REAL-ID Act by many states would expire today.
The DHS threatened that starting today it would “enforce” the REAL-ID Act through harassment or denial of the right to travel of airline passengers without ID or with ID issued by states or territories that the DHS, in its standardless administrative discretion, deemed insufficiently compliant with Federal wishes.
Every US state and territory subject to the REAL-ID Act was either certified by the DHS as sufficiently compliant to satisfy the DHS (at least for now), or was given a further extension of time to comply without penalty until at least January 10, 2019.
Yesterday, the day before the “deadline”, the DHS quietly posted notices on its website that it had granted further extensions until January 2019 to the last two states, California and New Jersey.
Perhaps the DHS is still unwilling to provoke riots at airports by stopping people without ID, or with ID from disfavored states and territories, from flying. Perhaps it isn’t yet prepared to face, and likely lose, the inevitable lawsuits from would-be flyers.
Even American Samoa, which — because the second-class status of American Samoans as US subjects but not US citizens would make it harder for them to challenge DHS restrictions of their rights — had been the first trial by the DHS of enforcement of the REAL-ID Act, was given an extension until October 10, 2019.
So far as we can tell, REAL-ID Act “enforcement” meant only modestly enhanced harassment of American Samoans at airports. Our FOIA request for records of how many people tried to fly with American Samoa IDs, and what happened to them, remains pending with no response after more than five months.
American Samao isn’t the limit of REAL-ID Act expansion beyond US borders and overseas. H.R. 3398, a bill to extend eligibility for REAL-ID Act compliant drivers licenses and IDs to citizens of several nominally independent de facto US dependencies, has passed the House and is pending in the Senate.
Meanwhile, the real movement toward state compliance with the REAL-ID Act is behind the scenes — as the DHS, its collaborators among state driver licensing agencies, and AAMVA, the operator of the outsourced and pseudo-privatized national ID database, want it to be.
Since we last reported on the status of REAL-ID Act compliance six months ago, agencies in three more states — Pennsylvania, New Mexico, and most recently Washington in September 2018 — have uploaded information about all licensed drivers and holders of state-issued IDs to the SPEXS national database. That brings to 19 the number of states whose residents’ personal information is included in the aggregated database.
But even as the database grows to include information about more and more US residents, the DHS persists in denying its existence. According to the DHS public FAQ about the REAL-ID Act:
A: Is DHS trying to build a national database with all of our information?
No…. REAL ID does not create a federal database of driver license information.
To the extent that there is any truth at all in this statement, it’s that the SPEXS national database isn’t under direct Federal or state control, but has been handed over to AAMVA and AAMVA’s contractors. (The database is apparently actually hosted by Microsoft.)
For obvious reasons, nobody is more eager than AAMVA to have you pay no attention to the national ID database behind the REAL-ID Act curtain.
In June 2018, we were honored to receive an urgent letter by Fedex from the President & CEO of AAMVA, demanding that we immediately remove from our website the specifications for the SPEXS database, which we had obtained in 2016 from AAMVA’s own public website. After AAMVA made that whole section of its site “members-only”, we posted a copy of the SPEXS specification to help readers understand the details of the system, and as one of the key sources for our analysis of SPEXS.
SPEXS already includes personal information obtained from government records of drivers licenses and state IDs, including dates of birth and the last five digits of Social Security Numbers, for more than 50 million US residents. We think the people whose data is included in this system are entitled to know what information is being kept about them, who has access to it, and how it is used.
According to the SPEXS specifications, development of SPEXS was funded by grants from componetns of the DHS and the Department of Transportation. (We’re waiting for responses to our FOIA requests for those agencies’ records about SPEXS.) If SPEXS were being operated directly by a Federal agency, the Privacy Act would require it to provide notice of the types of records in the system, how they are used, and with whom they are shared, as well as procedures for individuals to see the records about themselves and to obtain an “accounting of disclosures” to third parties of information about themselves.
But because the SPEXS database has been outsourced to a nominally private contractor, AAMVA, both Federal and state agencies can disclaim any responsibility for it. That leaves the SPEXS specifications as the best available evidence of what the system is and does.
In a later message to our Web hosting provider, a lawyer for AAMVA claimed that, “The information contained in this work is sensitive and its unauthorized publication could jeopardize the security of the governmental program to which this document relates.” This is nonsense. AAMVA waived any claim of sensitivity by making the specifications public.
When it was still struggling to sell the first states on buying into SPEXS, AAMVA posted the SPEXS specification on its website for anyone to download. More than two years after we called attention to what this document reveals, AAMVA is trying to suppress it. Not because it contains any secrets — it’s been publicly available for years — but because it conclusively disproves the DHS big lie that there is no national REAL-ID database, and shows the essential role that AAMVA itself is playing in this surveillance system.
We encourage you to pay close attention to the AAMVA man behind the REAL-ID Act curtain. And if you have questions about SPEXS or the SPEXS specifications, feel free to contact us.
A 3-judge panel of the 9th Circuit US Court of Appeals heard arguments today in Portland, Oregon, in Kariye v. Sessions, the third and latest round of appeals to the 9th Circuit in a challenge to US government “No-Fly” orders that was filed in 2010 as Latif v. Holder.
The lawsuit has survived two previous appeals to the 9th Circuit. But most recently, the District Court dismissed the claims of those plaintiffs who remain blacklisted from domestic or international air travel. Today’s third round of argument in the 9th Circuit was on the appeal of that latest dismissal of the complaint.
Today’s oral argument was conducted in a courtroom closed to everyone except the judges, court staff, the parties to the case, and their attorneys. Presumably, the argument was closed because one of the issues was whether the government should have been allowed to submit evidence “ex parte and in camera” for the court to consider without the plaintiffs being able to see it, or whether the District Court and/or the Court of Appeals should consider such submissions.
If you think there’s something Kafka-esque about secret arguments about whether to consider secret evidence, we agree. It’s possible that redacted excerpts from the oral argument will be made available later in the 9th Circuit’s video and audio archives.
Legal documents in the case are available from the ACLU, which is representing the plaintiffs. The best summary of the issues in the current appeal, and the best overview of what’s wrong with the government no-fly decision-making procedures at issue in the case, is in the plaintiffs’ opening brief in the current appeal.
In a blow to the US government’s evasion of judicial review of no-fly and blacklisting decisions, the 9th Circuit US Court of Appeals has reinstated a lawsuit against the government by Mr. Yonas Fikre, a US citizen who was effectively exiled from the US and consigned to imprisonment and torture abroad by being placed on a “No-Fly” list, in an attempt to pressure him to become an FBI informer, while he was overseas.
Unwiling to become an FBI informer — even when he was tortured to do so — and unable to return to the country of his citizenship, Mr. Fikre fled to Sweden, where he applied for political asylum. In a successful effort to smear Mr. Fikre and thwart his asylum claim in Sweden, the US then had him indicted on trumped-up charges related to his business (and having nothing to do with terrorism, violence, aviation, or dangerousness).
Mr. Fikre’s application for asylum in Sweden was denied, and Sweden paid to deport Mr. Fikre to the US (by private jet, because the US wouldn’t allow him on any airline flights). The bogus charges against Mr. Fikre were promptly dropped once he got back to the US. But he has been unable to resume his international business career without being able to count on being able to travel from and to the US without US government interference.
The decision by the 9th Circuit panel in Fikre v. FBI overturns the dismissal of Mr. Fikre’s complaint as “moot” by a US District Court judge in Oregon after the government defendants told the court that Mr. Fikre’s name had been removed from the no-fly list.
The 9th Circuit allowed the case to proceed, finding that there was no guarantee that the actions Fikre complained of, and the violations of his rights, wouldn’t recur:
Because there are neither procedural hurdles to reinstating Fikre on the No Fly List based solely on facts already known, nor any renouncement by the government of its prerogative and authority to do so… Fikre’s due process claims are not moot.
1. The federal government has imposed a kind of second-class citizenship on the Plaintiffs. Without charges, without arrests, without even an investigation sometimes — the agency defendants act in concert to deprive thousands of innocent Americans, mostly Muslim, of their right to be free from a government that extrajudicially designates them as worthy of permanent suspicion.
2. That permanent suspicion has sweeping consequences for the Plaintiffs as well as the more than one million others who bear it. They are separated from their children, denied employment opportunities, prevented from traveling by air to attend weddings and funerals, and denied or delayed immigration benefits. The rights of Plaintiffs to purchase firearms, to wire money and keep a bank account, to receive their passports and be granted visas to foreign countries are all constrained. For one plaintiff, the Defendants’ actions have diminished his standing and ability to provide religious leadership to his community.
3. Through an interagency watchlisting system, led by Defendants’ Watchlisting Advisory Council, the Defendants have identified the Plaintiffs as worthy of permanent suspicion, imposing burdens and disabilities on them in all aspects of their lives.
4. In deciding to target the Plaintiffs, the watchlisting system behaves lawlessly, acting in the absence of and — in some ways — in opposition to what Congress requires of its agencies.
5. To identify its targets, some parts of the watchlisting system, such as the Terrorism Screening Database (“TSDB”), utilize a nonsense-on-stilts standard that is always satisfied. Other parts, such as TSA’s Quiet Skies initiative, do not use any standard and instead rely upon the inarticulate hunches of federal officials, rank profiling, and vulgar guilt-by-association practices.
6. Through their watchlisting system, the federal government makes it known — to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.
So begins the complaint filed earlier this month in Federal court in Maryland in the broadest legal challenge to date to the US government’s sweeping program of extrajudicial blacklisting and restriction of the rights of US (and foreign) citizens.
We’ve finally begun receiving records from the TSA of how the public responded to the TSA’s proposal in 2016 to start requiring travelers to show ID in order to fly.
Since 2008, TSA and contractor staff at airport checkpoints have been demanding that some travelers who do not have ID, do not show ID to checkpoint staff, or show ID that is initially deemed “unacceptable”, fill out and sign TSA Form 415, “Certification of Identity” and answer questions about the information in the (secret) file about them maintained and made available to the TSA by the commercial data broker Accurint.
Before any Federal agency such as the TSA starts collecting information from the public, whether verbally or through a written form, the agency is required to obtain approval for the “information collection” from the Office of Management and Budget (OMB).
The TSA has never requested or obtained approval for any version of Form 415. But in 2016, the TSA gave notice that it intended to seek OMB approval for Form 415, and accepted comments on that proposal from the public by email. After submitting our own objections to the TSA’s proposal, the Identity Project made a FOIA request for the complete administrative record related to the TSA’s contemplated request.
The TSA has not yet actually submitted a request to OMB for approval of Form 415, but has continued to use it illegally without OMB approval.
In May 2018, we received a heavily redacted version of the TSA’s procedures for “ID verification” including use of Form 415.
Now we’ve received a first partial set of excerpts from the “administrative record” related to the TSA’s proposal, consisting mainly of comments submitted by the public.
Most of the comments were from civil liberties and human rights organizations opposed to the TSA’s proposal, including the Identity Project, the Cyber Privacy Project, the Constitution Alliance, and the Electronic Privacy Information Center.
But the TSA also received comments questioning the TSA proposal from at least one state government, and a single frighteningly revealing comment urging the TSA to use even more intrusive measures to track people who try to fly without “acceptable” ID.
The state of Alaska has sent us a whopper of a “the records you have requested do not exist” response to one of our attempts to find out about government oversight (or lack thereof) of the private contractor operating the national ID database created to implement the REAL-ID Act of 2005.
Here’s what’s happened and why it’s significant:
One of the key goals and consequences of the REAL-ID Act is a national database of information about every drivers license or ID card issued by any of the states and territories that have chosen to “comply” with the (optional for states) Federal law.
This “SPEXS” database includes both compliant ID documents and “noncompliant” IDs issued to people who think they have opted out of being included in the national ID system. There are currently about 50 million records in this national ID database.
The SPEXS database is operated as part of the “S2S” system by a for-profit contractor to AAMVA, a “private” nonprofit corporation whose voting members are the directors of state driver licensing agencies (“DLAs” in AAMVA-speak).
According to AAMVA and officials of participating states, S2S including SPEXS is “governed” by an AAMVA subcommittee created in 2017 and consisting of representatives from DLAs in each state that has added its residents’ ID data to the SPEXS database. We don’t yet know how much actual authority the SPEXS governing body has, or how it exercises that authority.
SPEXS became a focus of attention in Alaska last year after we pointed out in testimony to the state legislature that he Alaska Department of Motor Vehicles had uploaded information about all Alaska drivers’ licenses and state IDs to SPEXS shortly before seeking legislative approval for the state to take actions to comply with the REAL-ID Act.
Five years after we requested them under the Freedom Of Information Act, the TSA has released a redacted copy of its Identity Verification Call Center (IVCC) procedures for interrogation and “screening” of people who show up at TSA checkpoints without ID or with ID the TSA initially deems unacceptable.
Most of these people — 98% of them, according to summaries and logs eventually released to us by the TSA in response to our FOIA request — are eventually “allowed” by the TSA or TSA contractors to exercise their right to travel by common carrier, but only after being put through the TSA’s identity verification procedures.
The TSA’s Standard Operating Procedures for travelers without ID or with initially unacceptable ID include requiring them to complete and sign an (illegal) TSA Form 415, “Certification Of Identity” (COI), and playing a pointless game of 20 questions by telephone with the ID Verification Call Center to see if the traveler’s answers to questions match the information in the files secretly maintained by a commercial data broker, the Accurint division of LexisNexis (part of Reed Elsevier).
In 2013, we asked the TSA for its records of what happens to people who try to fly without ID or with ID that the TSA or its contractors initially deem unacceptable. As part of the same request, we asked for related email messages and policies.
The TSA dragged its feet for years, gradually releasing a trickle of redacted and scanned page-view images of derivative reports, but none of the email messages or reports.
A year ago, the TSA declared its munged partial response “complete”. We filed an administrative appeal, and six months later, the TSA’s appeal officer partially upheld our appeal and remanded our request for a further search for email messages and policies.
After eight more months, we’ve finally received a redacted image of the 2013 version (the version in effect when we first made our request) of the TSA’s ID Verification Call Center “Standard Operating Procedures”.
By the time the TSA finally looked for the email messages on which some of the reports were based, after our appeal was upheld, those messages had all been deleted:
No email messages pertaining to the responsive records were located. The email account utilized to prepare and distribute the TSOC reports was centralized into the National Transportation Vetting Center email account, and all emails created during that time associated with the TSOC reports already released to you have been deleted.
Ultimately, the ID Verification SOP leaves the final decision on whether a would-be airline passenger is allowed to travel to the standardless discretion of the TSA staff person in charge for each airport, the Federal Security Director (FSD) or their designee.
There are some other curious statements between the redactions in the version of the ID Verification SOP. released to us by the TSA.
According to the SOP:
Under these procedures, passengers are required to produce acceptable identification to a TSA Screening Representative (TSR) before proceeding to the security checkpoint. Passengers who do not produce acceptable identification and who fail to assist TSA personnel in adequately identifying their identity will be denied entry.
There is no indication of the legal basis, if any, for this TSA claim that airline passengers have an affirmative duty to “produce acceptable identification” or “assist TSA personnel in adequately identifying their identity”, or what the basis would be for denial of passage.
The SOP also contains a bizarre assertion in section 2.5.9 of the SOP that the COI form (TSA Form 415), which travelers without ID or with unacceptable ID are required to complete and sign, is “Sensitive Security Information” (SSI) which is “not to be circulated to the public” and which passengers must surrender to checkpoint or TSA staff on demand. The SOP doesn’t say how this form could be held to constitute SSI.
TSA Form 415 has already been made public in response to another of our FOIA requests, and the Paperwork Reduction Act requires that forms used to collect information from the public be published for comment before they are approved.
In 2016, after using Form 415 and its unnumbered predecessor illegally for years, the TSA published a notice that it planned to apply for approval of this form (to which we objected). But the TSA has yet to apply for, much less receive, the approval it would need before using this form.
A press release last week from Unisys gives a disturbing glimpse into the extent to which border guards — possibly including US Customs and Border Protection (CBP) and other components of the US Department of Homeland Security — are making decisions on the basis of automated “pre-crime” predictions of future bad actions or bad intentions.
Unisys describes its “LineSight” (TM) product as,
[N]ew software that uses advanced data analytics and machine learning to … enable border agents to make … on-the-spot decisions about whether to trigger closer inspection of travelers … before admitting them into a country…. The solution [sic] uses advanced targeting algorithms to continuously ingest and analyze high volumes of data from multiple sources and to flag potential threats in near real time. For travelers crossing borders, LineSight assesses risk from the initial intent to travel and refines that risk assessment as more information becomes available – beginning with a traveler’s visa application to travel, reservation, ticket purchase, seat selection, check-in and arrival.
Think about what this means: This is not a tool for investigation of illegal conduct or prosecution of people who have committed crimes. It presumes that government agencies will be sufficiently deeply embedded in travel industry infrastructure and have the surveillance capability to know as soon as you form an “initial intent to travel”. It’s being marketed to government agencies as a “pre-crime” system alleged to have “pre-cognitive” ability to predict intentions and future actions, and to generate its own algorithms for doing so:
“Many legacy border security solutions identify potentially risky travelers and cargo based on previously known threats – which is kind of like driving a car and only using your rear view mirror,” said Mark Forman, global head of Unisys Public Sector….
LineSight does not depend solely on pre-defined pattern matching rules; it also includes predictive analytics and machine learning that allow the system to learn from experience and automatically generate new rules and algorithms to continuously improve assessment accuracy over time.
Decisions about which travelers should be subjected to more intrusive searches should be be made on the basis of probable cause to believe that crimes have been committed, not on the basis of fantasies of “pre-cognitive” pre-crime prediction.
It’s wrong to delegate judicial decisions to administrative agencies, wrong to further delegate those decisions to software ‘bots, and wrong to set those robots loose to make up their own rules to govern whch individuals are subjected to searches or other sanctions.
Despite a “shell game” of changing program names, most recently “Visa Lifecycle Vetting”, the general intent of what the DHS and President Trump previously refered to as the “Extreme Vetting Initiative” is clear and has remained unchanged:
- To expand the ongoing unconstitutional warrantless and suspicious surveillance of refugees, asylum seekers, immigrants, foreign residents, and US citizens who travel internationally, so that this dragnet sureveillance will be carried on continuously rather than only in conjunction with specific controlled actions such as vsia issuance or entering or leaving the US, as though international travel were per se probable cause for search and surveillance rather than the exercise of a right; and
- To convert the present systems for making decisions as to who is or is not issued a visa or electronic “travel authorization“, allowed to enter or leave the US, or allowed to exercise their right to travel by common carrier, which are already based on pre-crime profiling, into a system of continuous pre-crime policing under which DHS pre-cogs can assign extrajudicial adverse consequences at any time, not just when individuals are attempting to engage in specific controlled actions.
While the DHS has made its intent clear, it has provided few details about who would be subjected to this “vetting”, what data would be used as inputs to the pre-crime prediction system, what algorithms would be used to make predictions, or what procedures would be followed in assigning consequences. More of this information has been provided in “Industry Day” briefings to private contractors to which these extraducial functions would be outsourced than to the public.
In November 2017, we joined dozens of other organizations in a letter to the Secretary of Homeland Security opposing and requesting more information about this program.
So this month, as part of a coalition led by Muslim Advocates, we filed a request under the Freedom of Information Act (FOIA) for more information about these DHS programs, including infomation about outsourcing of “vetting” to private conteractors and about DHS monitoring of social media.
We requested expedited processing of our request, but we don’t expect a prompt response. The DHS has a dismal track record of noncompliance with FOIA deadlines. But we hope that this request will eventually help us learn more about DHS surveillance and control of immigrants, foreigners, and travelers, including which companies are building the infrastructure of this police state.