Oct 02 2019

Do I need ID to ride a train?

We’ve been trying for years to find out what the real story is with respect to ID requirements for travel by train, especially on Amtrak.

Amtrak and Greyhound ID policies and practices are of paramount importance to the mobility of undocumented people and people who, whether or not they are eligible for or have chosen to obtain government-issued ID credentials, don’t want to show their papers to government agents as a condition of exercising their right to freedom of movement.

Amtrak and Greyhound policies and practices will become even more important if the government and/or airlines further restrict air travel by people who don’t have, or don’t show, ID credentials that comply with the REAL-ID Act.

The latest responses to our requests for Federal and state public records reveal more about passenger railroad policies and practices, but still don’t give a clear answer.

What we can say at this point, based on the records disclosed to us to date, is that:

  1. There are substantial discrepancies and contradictions between what the TSA has told Amtrak to do, what Amtrak tells its own staff about what is required, what Amtrak tells travelers about what is required and the basis for those requirements, and what Amtrak staff actually do. Those variations make it impossible to determine unambiguously what “the rules” are for Amtrak travel, or what is “required”.
  2. Some of Amtrak’s claims, including its claim that passengers are required by the TSA to have and to show ID to travel by Amtrak, are blatant lies.
  3. TSA Security Directive RAILPAX-04-02, cited by Amtrak in its employee manual as the basis for demanding that passengers show ID, requires Amtrak to “request” (not demand) that passengers show ID, but does not purport to require passengers to respond to such requests and does not prescribe any sanctions on passengers for failure, refusal, or inabiity to show ID.
  4. Amtrak has instructed its staff that “If the customer responds they are 18 or older and do not have valid identification, … the Amtrak police must be notified by the quickest available means away from the customer,” but also that, “Failure to possess the proper photo identification is not, by itself, sufficient reason to have the customer removed from the train.” Amtrak has not yet responded to our FOIA request for Amtrak Police policies and staff directives for what to do in such cases.
  5. Although Amtrak is unquestionably an instrumentality of the Federal government, and transportation by Amtrak is unquestionably a Federal government activity, the list of ID credentials deemed acceptable by Amtrak does not correspond to the list of forms of ID deemed by the DHS to be acceptable for “Federal purposes” pursuant to the REAL-ID Act of 2005.  Amtrak says it accepts several forms of ID that do not comply with the REAL-ID Act. None of Amtrak’s ID policies, procedures, or staff directives disclosed to date mention the REAL-ID Act or when or how it might be implemented by Amtrak, although records of such policies or of discussions related to them would be responsive to soem of our pending FOIA requests.

Where does this leave undocumented long-distance travelers, including those who turn to Amtrak as a government-operated common carrier of last resort?

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Sep 04 2019

US government blacklisting system is unconstitutional

In an opinion issued late today in Alexandria, VA, US District Court Judge Anthony Trenga has upheld the complaint by 23 victims of US government blacklisting that the system pursuant to which the government has designated them as “suspected terrorists” on the basis of secret algorithms applied to secret datasets, without notice or an opportunity to contest any allegedly “derogatory”  information, does not provide those who are stigmatized, and whose stigmatized status is broadcast to tens of thousands of law enforcement and other government agencies and private entities around the world, with the procedural due process required by the US Constitution.

This decision is one of the most fundamental victories for the rule of law since 9/11.

According to today’s opinion, it is undisputed that the DHS and FBI define anyone who has been arrested or charged with an offense related to terrorism as a “known” terrorist, even if they have been acquitted of that charge.  In other words, the DHS and FBI think that what is “known” is what they believe, not what judges or juries have found the facts to be. That presumption that by definition their secret judgements are more reliable than judicial fact-finding pretty much sums up why this decision is correct, why it is so important, and why it should be upheld if, as seems a near certainty, the government appeals.

None of the plaintiffs have even been arrested, much less convicted, for any criminal offense, terrorist or otherwise. The plaintiffs include, among others, several infants whom the government has apparently blacklisted as “suspected terrorists”. But even though the government will neither confirm nor deny that anyone is or is not, or has or has not been, included in the “Terrorist Screening Database” (TSDB), the court found that the plaintiffs have demonstrated sufficient basis for their belief that they have been blacklisted.

The government calls this database and decsion-making system a “watchlist”, but it is really a blacklist intended and used to determine adverse consequences for individuals.

The “No-Fly List” is only a subset of the TSDB, and not being allowed to fly is only a subset of the consequences of blacklisting detailed in the plaintiffs’ submissions to the court and the government’s admissions during discovery and depositions. The TSDB is used as the basis for a plethora of decisions, as the plaintiffs have experienced, from whether to have them arrested at gunpoint when they try to cross land borders  to whether to interrogate them for hours about their religious beliefs, seize their electronic devices for copying and forensic analysis of the data stored on them, deny them public or private-sector jobs, or close their bank accounts and deny them other fincial services.

The government’s use of secret criteria, secret datasets, and guilt by association as the basis for secret decisions — communicated to tens of thousands of other decision-makers, but not to those who have been blacklisted —  resembles the worst of McCarthyism, just with “terrorist sympathizer” or (literal) “fellow traveler” substituted for “Communist  sympathizer” or (ideological) “fellow traveler”.

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Aug 30 2019

3rd Circuit finds TSA checkpoint staff conduct “searches” and can be sued for misconduct

By a vote of 9 to 4, the 3rd Circuit Court of Appeals has found that TSA checkpoint staff are “officers or employees” of the Federal government who “execute searches… for violations of Federal law”, and therefore that the US government is subject to private lawsuits for damages for  certain intentional torts by TSA “screeners” including “assault, battery, false imprisonment, false arrest, [and] malicious prosecution.”

The decision by the judges of the 3rd Circuit following rehearing en banc in the case of Pellegrino v. TSA reverses an earlier decision by a three-judge panel that would have given impunity to checkpoint staff for even the most egregious violations of travelers rights.

The language of the Federal Tort Claims Act and its applicability to TSA checkpoint staff are clear. The TSA’s strained attempt to exempt checkpoint staff from FTCA lawsuits should never have gotten this far.

But the TSA’s highest priority, ahead of protection of transportation safety or security, has always been the protection of itself and its  activities against judicial review.

Any lawsuit against the TSA or anyone associated with it is regarded by the agency as an existential threat to its assertion of unlimited discretion to define, by its own secret internal procedures, which people, possessions, and activities are and aren’t allowed at TSA checkpoints — as if the conduct to date of the TSA and its minions had earned the  agency the entitlement to expect and demand that travelers defer to its good judgement and self-restraint. The TSA doesn’t want to have to respond to allegations of misconduct by its employees, contractors, or law enforcement or industry “partners”. Nor does it want to have to explain or defend its actions in court. It wants all such cases dismissed out of hand.

In order to intimidate travelers into submission to its unlawful orders with a show of purported authority, while keeping itself above the law, the TSA’s takes a two-faced position that was its comeuppance in the en banc decision in Pellegrino v. TSA.

TSA checkpoint employees wear blue police-type uniforms and badges that identify them as Transportation Security “Officers”, while even the rent-a-cop contractors who staff TSA checkpoints at SFO and some other airports wear similar uniforms and badges prominently emblazoned with “TSA” insignia. They present themselves to travelers as though they were police, and they claim police-type (or even greater) powers to demand obedience to their orders and to search travelers and their personal property.

But the TSA always refers to these searches by the euphemism of “screening”, to avoid the obvious implication that as “searches” they are subject to the 4th Amendment to the US Constitution. In court, the TSA claims that these aren’t the “searches” meant by the provision of the FCTA which refers to officers or employees who “execute searches”.

In some cases, the TSA claims the right to search documents, papers, currency, and electronic data, which can’t possibly pose a direct threat to aviation safety or security, notwithstanding special statutory protection for many such items, “if criminal activity  is suspected” and even if the suspected crimes are unrelated to aviation safety or security.

But when its actions are challenged, the TSA claims that its searches are not conducted for general law enforcement purposes and thus are exempt from the FCTA provisions intended to hold those who conduct such searches legally accountable for torts (violations of civil rights) against individuals.

The 3rd Circuit judges took due note of these self-contradictory TSA claims, and of the consequences that would follow from accepting them as a basis for TSA impunity:

Consequences of Our Ruling

Before concluding, we note the implications of the choice before us. If TSOs [Transportation Security Officers] are not “investigative or law enforcement officers” under the proviso, then plaintiffs like Pellegrino are left with no avenue for redress. We have
already held (and correctly so) that TSOs are not susceptible to an implied right of action under Bivens for alleged constitutional violations, see Vanderklok, 868 F.3d at 209, so a Tort Claims Act action is the only remaining route to recovery. Without recourse under that Act, plaintiffs like Pellegrino will have no remedy when TSOs assault them, wrongfully detain them, or even fabricate criminal charges against them.

We look forward to seeing at least some TSA checkpoint staff found liable for damages for these sorts of actions in the wake of the 3rd Circuit’s en banc decision in Pellegrino v. TSA.

Aug 05 2019

Questions about the REAL-ID Act

Fragmentary and jumbled records related to the REAL-ID Act of 2005 released by the US Department of Homeland Security in response to one of our Freedom Of Information Act (FOIA) requests don’t reveal much about DHS policy, but do provide a glimpse of DHS practices and plans.

The DHS has been threatening to harass, interfere with, or bar access to facilities or passage through checkpoints (including, but not limited to, those at airports) to people who don’t have, don’t carry, or don’t show ID; show ID that the DHS doesn’t deem compliant with the REAL-ID Act; or show ID issued by states or territories that the DHS deems insufficiently compliant with the REAl_ID Act.

These threats to deny equal rights to residents of noncompliant states and territories have been central to the DHS campaign to extort compliance from state and territorial officials reluctant to upload their residents’ data to an outsourced, privately-held national ID database.

But what sort of enforcement problem, at what scale, is this likely to pose for the DHS and those collaborators carrying out its REAL-ID directives? How many people will be affected, at what sorts of facilities and locations, in what circumstances?  Inquiring minds want to know, including opponents of the REAL-ID Act like ourselves, but also including officials at DHS headquarters trying to devise a workable REAL-ID enforcement plan.

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Jul 25 2019

Can you “opt out” of TSA groping or virtual strip-searches?

Two recent decisions — one an administrative decision by the TSA,  and the other a judicial decision by the 11th Circuit Court of Appeals —  have dealt with, but failed to resolve, the question of whether, in the face of unpredictable demands for more intrusive searches, an airline passenger can “opt out” if they decide they would rather abandon their attempt to board a flight than submit to whatever search TSA or contractor checkpoint staff demand.

The TSA has withdrawn its proposed administrative fine against Jonathan Cobb, a passenger who, when selected for a pat-down (manual groping of his body, including his genitals, by which he had previously been traumatized), chose to abandon his attempt to fly and left the airport. That’s good, but sets no legally binding precedent.

Meanwhile, the 11th Circuit Court of Appeals has dismissed a petition filed by Jonathan Corbett seeking judicial review of the TSA’s policy of requiring selected passengers to submit to imaging of their bodies by virtual strip-search machines. That’s bad, but at least the decision was based solely on whether Mr. Corbett could expect to be selected for this sort of search, and left undecided whether these searches are Constitutional.

These decisions leave the law unclear in practice — even if the Constitution seems clear — as to whether or when an airline passenger can opt out of which sorts of searches.

How far can the TSA and its contractors legally go? How can tell if they are going too far? And when, if ever, can you “opt out” or say no to an escalated search?

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Mar 13 2019

US government blacklisting system is unconstitutional, victims say

The Terrorist Screening Database (TSDB) “fails to provide constitutionally sufficient procedural due process,” according to a motion for summary judgement filed this week in a lawsuit brought by people who have been placed on the TSDB blacklist.

We’ve been following this case, Elhady v. Kable, since it was filed in 2016. Discovery and depositions taken in the case, as well as leaks by whistleblowers while the case has been pending, have revealed an unprecedented level of detail about the operation of the blacklisting system, the inter-agency “Watchlisting Advisory Council” which overseas the blacklist, and the dissemination of blacklist information.

The TSDB is described euphemistically by the US government as a “watchlist”, but in reality it’s a blacklist. Individuals — including infants and children as well as adults, and US citizens and residents as well as non-residents — are subjected to adverse government and private action by having the government place them on the TSDB blacklist and disseminate this stigmatizing designation — with the intent that the designation will be used against listed individuals — to Federal, state, and local government agencies and  private entities.

The government has refused to disclose the criteria for TSDB listings, but has conceded that being listed does not require suspicion of having committed or intending to commit any crime. Listings are determined through a secret, extrajudicial administrative process, without those being blacklisted being notified or having any opportunity, before or after the fact, to know whether or why they are being blacklisted, what the basis  is for their blacklisting, or what the evidence against them is.

The case has survived multiple attempts by the government to have it dismissed on jurisdictional and procedural grounds and to avoid discovery and depositions.  Now the plaintiffs’ motion for summary judgement that the TSDB is unconstitutional is scheduled for oral argument on April 4, 2019, before US District Court Judge Anthony Trenga in Alexandria, VA.

Jan 09 2019

How many times will the DHS cry wolf on REAL-ID?

The last time we checked in on the status of the seemingly endless game of “chicken” being played by the US Department of Homeland Security with its threats to start harassing air travelers who reside in states the DHS deems insufficiently “compliant”, every state and territory had been given another “extension” of time to demonstrate commitment to compliance until at least January 10,  2019.

Since then, the DHS, in its standardless administrative discretion, has announced further extensions until at least April Fools Day, 2019 (for the US Virgin Islands), for every state and territory except California and Guam.

But as of today, the DHS website says that, “California has an extension for REAL ID enforcement, allowing Federal agencies to accept driver’s licenses and identification cards from California at Federal facilities, nuclear power plants and federally regulated commercial aircraft until January 10, 2019.”

As of this morning, with the “deadline” less than 48 hours away, we got the following response to our questions about this from a spokesperson for the California DMV:

The State of California has been working for the better part of a year to be deemed compliant with the REAL ID act, unfortunately due to a lack of response on the part of the Federal Government with the ongoing shutdown there has been no final confirmation.

So was that a real deadline for REAL-ID in California?

Is the DHS really prepared to have TSA checkpoint staff — working for indefinitely deferred pay — start trying to carry out time-consuming “ID verification procedures” for everyone who shows up at an airport checkpoint with a California drivers’ license or ID, starting the day after tomorrow?

The answer turns out to be, “No.”

The DHS and TSA have blinked yet again in the face of insufficient state “compliance”.

We’ve just received the following updated statement from the DMV:

The California DMV has confirmed with the Department of Homeland Security (DHS) that they will be granting California an extension to April 1, 2019. Due to the furlough, the letter might not arrive until tomorrow and DHS will likely not be updating their website until the furlough ends. All driver licenses will remain valid and can continue to be used for federal purposes.

And this from a spokesperson for the TSA:

I recently learned from DHS that California’s extension has been extended through April 1, 2019…. Updates to their website are underway.

California doesn’t actually comply with the REAL-ID Act. That would require uploading data about all California drivers’ licenses and ID cards to the SPEXS national ID database, which California hasn’t done and which would probably violate multiple provisions of California’s state constitution. But DHS certifications and extensions are discretionary, and need not be based on any specific criteria or on actual compliance.

There’s still no public word about Guam, the extension for which is also scheduled to expire tomorrow.

Phase 4b” of REAL-ID Act enforcement at airports supposedly started on January 22, 2018. Since then, the only state or territory where the DHS has let a REAL-ID  extension lapse, even temporarily, has been American Samoa, for which another extension has now been granted until October 10, 2019. We’re still waiting for any response to our FOIA request for records of what happened to American Samoans who tried to fly during the period last year when the extension had lapsed.

 

Jan 04 2019

Issues for the revitalized Privacy and Civil Liberties Oversight Board

With its recent revival, the Federal government’s Privacy and Civil Liberties Oversight Board (PCLOB) has a chance to take a fresh look at how far the USA has gone since 9/11 in implementing a combination of “pre-crime” policing (à la Minority Report) and “social credit scoring” integrated with commercial service providers (à la China) as a means of control of what people can and cannot do, and where they can and cannot go.

The PCLOB didn’t have a quorum since early 2017, and was down to only one member. But three new members were confirmed in October 2018. An Executive Director – who may end up with longer-term influence than the members of the Board, especially given that the new members weren’t appointed and confirmed until just three months before one of their terms is scheduled to end – is currently being hired. Civil libertarians able to obtain a security clearance and willing to relocate to DC are encouraged to apply.

What should the PCLOB focus on, with its limited time and resources? The PCLOB is an advisory committee with neither legislative nor prosecutorial authority. The best use it can make of its limited mandate is to ask hard questions and raise issues that Federal agencies won’t otherwise acknowledge or address.

The TSA and DHS were created in haste after 9/11 without consideration of the privacy and civil liberties implications of their new activities, many of which have never been explicitly approved by Congress. The reactivation of the PCLOB after the latest hiatus is a chance to take a fresh look at the big picture of what these agencies are doing, and what this means for privacy and civil liberties. It might be tempting to focus on “emerging” threats, but the first priority should be to assess the DHS surveillance and control systems that are already in place:

  1. Conversion of state licensing of motor vehicle operators into a national ID system. More than a decade after Congress enacted the REAL-ID Act of 2005, we are entering the endgame of DHS efforts to pressure states into participating in an outsourced, privately-operated, national ID database created to enable compliance with the REAL-ID Act. SPEXS already includes records sourced from states about more than 50 million Americans, but is not subject to any direct government control and has never been the subject of any publicly-disclosed review of its implications for privacy and civil liberties.

  2. Mass surveillance and permission-based predictive control of movement and travel. Congress has never debated whether air travelers should be required to identify themselves, whether the government should keep histories of innocent citizens’ movements (compiled from commercial airline reservations for common carrier travel, license plate readers for travel by private vehicle, and facial recognition for pedestrian movement), or whether existing judicial mechanisms for restricting the right to travel and movement through injunctions or restraining orders should be replaced with secret, extrajudicial administrative prior restraint through “no-fly” and similar orders. How has travel been transformed from a right to a privilege exercised only by government permission? How does this implicate the 1st Amendment right to assemble and the right of freedom of movement recognized by international human rights treaties? How widely, and with what implications for privacy and civil liberties, has the precedent set by real-time “pre-crime” predictive control of travel expanded to other activities and transactions?

  3. Suspicionless dragnet administrative searches. Today, the most common hands-on interaction between a Federal agent and a person not suspected of any crime is a TSA pat-down. But there’s never been any comprehensive review of the legality or the implications for privacy and security of the proliferation of suspicionless administrative searches since the creation of the DHS and TSA: security theater in airports, warrantless searches at internal checkpoints (domestic airports, CBP roadblocks on roads that don’t cross the US border, etc.), and attempts to claim the right to impose searches on the public in other forms of transportation.

There’s much more that we and others could say about each of these issues, if the PCLOB choses to consider them. But the first challenge for the PCLOB is whether it will tackle these big-picture issues.

Jan 03 2019

Plaintiff in first no-fly trial wins another appeal on attorneys’ fees and government lawyers’ bad faith

Fourteen years to the day after she discovered she was on the no-fly list when she was arrested at SFO, and five years after her legal victory in the first trial of a challenge to a government no-fly order (a Pyrrhic victory as she has still been denied a visa to return to the US), Dr. Rahinah Ibrahim won a third decision in her favor in the same case in 9th Circuit  Court of Appeals yesterday, this time en banc and on the issue of reimbursement by the government of Dr. Ibrahim’s attorneys’ fees and costs.

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Dec 12 2018

The Department of “Mother, May I?”

[Federal Probation System Form PROB-37, “Permission To Travel”. Note that even as used for probationers, this form is illegal: It lacks the required OMB approval, OMB control number, and Paperwork Reduction Act notice.]

Have all travelers become convicted criminals subject to court supervision, who have to apply in advance for permission from the government every time they want to travel?

And does the US government have extraterritorial jurisdiction over travel worldwide?

Apparently so, at least in the eyes of the Department of Homeland Security.

Case in point: The National Vetting Center (NVC).

The NVC was established pursuant to President Trump’s February 2018 executive order NSPM-9. The “vetting” in the name is what President Trump has referred to as “extreme vetting” of immigrants and non-US citizens visiting or transiting the US. The first use of the NVC will be to “vet” citizens of countries in the US Visa Waiver Program applying for ESTA permits (online visas) to travel to the US.

The NVC is an inter-departmental body coordinated by a DHS component, US Customs and Border Protection (CBP), and this week the DHS has published a Privacy Impact Assessment (PIA) and released a redacted version of the  Implementation Plan for the NVC.

Here’s how the DHS describes the purpose and role of the NVC:

Every day, the U.S. Government determines whether to permit individuals to travel to and enter the United States…  and consider other actions…. The U.S. Government has developed several different processes and procedures to evaluate an individual’s suitability for access to the United States or other travel- or immigration- related benefits against information available to the U.S. Government (generally referred to as “vetting”)….Creating, maintaining, and facilitating the operation of that process is the primary mission of the NVC.

As even this summary self-description shows, the NVC is founded on a fundamental disregard for human and Constitutional rights.

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