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The Identity Project

Category Archives: Secret Law

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an  unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian  government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data.  Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing  whatever its oracle decrees.  In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it.  Just remember, as you study his presentation, that:

  1. “Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
  2. Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government.  Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.
Nov 06 2012

DHS Scrooge says U.S. citizen can’t come home for the holidays to see his ailing mother

In the latest episode in the increasingly bizarre but all too real saga of standardless secret administrative no-fly orders from the DHS to airlines, prohibiting the transportation back to their home country of US citizens,  Oklahoma native Saadiq Long is being prevented from returning home to the US to spend the holiday season with his terminally ill mother.

Long is a US citizen and a veteran of the US Air Force, never charged with any crime in the US or any other country, who has been living and working as an English teacher in Qatar for the last several years.  He’s also a convert to Islam, which shouldn’t be relevant but probably is.

When he learned of his mother’s illness back home in Oklahoma, he made reservations and bought tickets from KLM for flights from Qatar to the US for what might be a last visit with his mother.

Less than 24 hours before his scheduled departure from Qatar in May, KLM told Mr. Long that the airline (and all others serving the US) had been forbidden from allowing him to board any flight to the US.

Mr. Long has been trying ever since to find out why the government of his country has forbidden all airlines from transporting him, or to find a way to get those orders rescinded. But to date, the DHS has maintained its position that it will neither confirm nor deny whether it has issued any no-fly orders with respect to any specific person, much less the basis (if any) for such orders.

KLM explicitly informed Mr. Long that it had received a no-fly order from the DHS. So in theory, KLM would be required by Dutch data protection law to disclose that order to Mr. Long on request. That wouldn’t tell Mr. Long why he had been banned form returning to his country (the DHS probably didn’t share the reasons for its order with the airline), but would prevent the DHS from claiming in court that whether Mr. Long has been prohibited form flying is a state secret.

Given KLM’s poor track record when individuals have requested KLM’s records of its communications with governments, and the Dutch data protection authority’s poor track record of enforcing the law, it’s hard to predict whether KLM would comply with a request from Mr. Long for all orders or communications pertaining to him between KLM and the US government.

Mr. Long is being assisted by the Council on American-Islamic Relations (CAIR), which has led the struggle for judicial review of no-fly orders. CAIR staff attorney Gadeir Abbas, the leading advocate for US citizens exiled by no-fly orders, told Glenn Greenwald that, “Every few weeks I hear of another Muslim citizen who cannot return to the country of which he is a citizen.”

[Update: Mr. Long was again denied boarding by KLM in Qatar on November 8, 2012.]

Oct 18 2012

US citizen banished by no-fly order: Is it because he stood up for his rights?

In another depressingly familiar episode in an ongoing saga of de facto banishment of US citizens from their own country, New York City native Samir Suljovic has been trapped in immigration limbo in Frankfurt since October 1st, following a visit to some of his relatives in Montenegro, because of a no-fly order from the DHS forbidding any airline to allow him to board a flight home to the USA.

What’s noteworthy in Mr. Suljovic’s case — other than the persistence of the DHS in these flagrant violations of the right of US citizens to return to their home country — is that he appears to be the same person who got some publicity two years ago when he sued a New York hotel for refusing to hire him unless he shaved off his beard, which he argued was an expression of his religious belief as a Muslim.

Based on what was said in the press, Mr. Suljovic would appear to have had a good case against the hotel. There’s plenty of case law about discrimination against people with religiously-required beards, mainly involving Sikhs and orthodox Jews, and his arguments were far from novel or extreme.

But in other cases, notably that of Julia Shearson, there are indications that DHS designations of “suspected terrorists” have been based on press reports of civil rights activism by Muslims.

The secrecy of the administrative “no-fly” decision-making process leaves us to wonder whether Mr. Suljovic, like Ms. Shearson, was singled out by the DHS for restriction of his right to travel because he stood up, publicly, for his rights as a Muslim.

If no-fly injunctions were issued, as they should be, by judges, following adversary fact-finding proceedings in which the burden of proof is on those who advocate restrictions on the right to travel, we wouldn’t have to wonder what (if any) evidence they were based on, or whether they were being used for invidious discrimination against particular religions or political activists.

Oct 03 2012

Government Surveillance of Travelers

For those attending today’s discussion of Government Survelliance of Travellers and the DHS “Automated Targeting System” (ATS) at the Brennan Center for Justice at NYU School of Law, or those who can’t make it but are interested in the topic, here are the slides from the presentation by Edward Hasbrouck of the Identity Project (PapersPlease.org), and links to additional references:

Today’s event is open to the public, so please join us if you are in New York and free at mid-day.

Sep 21 2012

Department of State Form DS-71: “Affidavit of Identifying Witness”

We don’t normally require our friends and family to show us their papers to establish their identities. We have better ways of recognizing who they are.

Many US government agencies, however, seems to want to make government-issued ID credentials the only way to establish who we are — even when Federal regulations require them to accept other forms of evidence of identity.

Case in point: Department of State Form DS-71: “Affidavit of Identifying Witness” for passport applicants.

As we’ve noted previously, the State Department’s own regulations at 22 C.F.R. § 51.28 entitle applicants for US passports to establish their identity by the affidavit of an identifying witness, in lieu of documentary evidence of identity.  But it seems like the State Department doesn’t really respect this right, and prefers to get all applicants to provide papers, rather than people, to “prove” who we are.

As of today, the version of Form DS-71 posted on the State Department’s website is an obsolete one whose use was approved by the Office of Management and Budget only until Dec. 31, 2005. Elsewhere on the State Department site, the link for Form DS-71 in the index of passport forms links to a PDF of an otherwise-blank page that says, “Please visit your local [passport] Acceptance Facility to obtain this form.”

Disturbingly, we’ve received reports from people who went to the State Department’s own passport offices, accompanied by witnesses prepared to identify them, and were told that no current version of Form DS-71 was actually available.

We can’t see any reason not to make this form available online with all the rest of the passport forms, much less not to have it available at passport offices, other than to hide its existence and discourage its use.

Having let its approval for any version of this form lapse for several years, and having now obtained only temporary approval that expires at the end of this month, the State Department is now in the process of seeking renewed OMB approval for a revised form, to be used for the next three years.

According to to the State Department’s application to OMB (which includes both the current and proposed versions of Form DS-71), the number of passport applicants using this form has declined dramatically, from 163,400 in 2009 to 44,000 this year.

The State Department claims that this decline is due to greater use of other “public records” by passport examiners. But a better explanation for the abrupt decline in use of this form is its removal from the State Department website and from availability at passport offices. Applicants for passports are providing other identifying records because they aren’t being told they have the alternative of establishing their identity with an affidavit from an identifying witness.

Have you tried to establish your identity to the Passport Office by having a witness identify you? Have you had trouble obtaining the proper form, or been discouraged from using it in favor of obtaining and providing other types of evidence of identity?  Please let us know.

[Update: Here’s the version of Department of State Form DS-71, “Affidavit of Identifying Witness”, most recently submitted to and approved by OMB.]

Sep 12 2012

Secret “watchlist” used as basis for preventive detention

Secret, standardless, extra-judicial administrative “watchlists” of supposed terrorists aren’t just being used to decide who to “watch” — they are now being used as the basis for preventive detention.

A Charlotte, North Carolina man arrested for allegedly driving with a suspended license during the Democratic National Convention had his bail increased to $10,000, cash-only, and spent 36 hours during the convention in jail before getting his bail reduced, on the basis of a police report that gave the basis for detention as, “Known activist + protester who is currently on a terrorist watchlist. Request he be held due to DNC being a National Special Security Event.”

James Ian Tyson told the Charlotte Observer he was shocked to learn that he was on a terrorist watch list. “I haven’t done anything remotely criminal involving politics. No one knows how you get on this list … or the accountability process or, most importantly, how they get off this list….  I am a local Charlottean and an activist and I believe this is an attempt to stifle my First Amendment rights and keep my voice from being heard.”

According to this CNN report and video interview with Tyson and his lawyer, “Tyson … says he has no idea how he wound up on the government’s terrorist watch list. He just wants to save the rain forest. The only dings on his record, at least as far as he knows, consist of fishing for trout out of season and driving while impaired.”

As U. of Miami law professor Michael Froomkin notes,  “[T]his is the first documented example of a non-air-travel-related domestic consequence of being on a ‘terrorist watch list”… I think this small incident is actually a big deal.”

Aug 24 2012

Does an airline pilot have the right to refuse to let you fly?

Last Saturday, Arijit Guha, a Ph.D. student at Arizona State University trying to fly back from Buffalo to Phoenix with his wife after a family funeral, was kept off a Delta Air Lines flight because …  well, as usual in such cases, we don’t know exactly why.

You can read Arijit’s story in his own words here. At first, a Delta supervisor objected to the parody t-shirt (with a design by Cory Doctorow originally published on BoingBoing) that Arijit was wearing.

After Arijit changed his t-shirt (and after he was interrogated, searched, and subjected to racist and xenophobic comments by multiple TSA staff and local police), “the Delta supervisor informed us the pilot had decided, regardless of the outcome of the multiple TSA screenings and my willingness to change shirts, that due to the discomfort my shirt has caused, my wife and I would not be allowed to board the aircraft. Passengers on the plane supposedly felt uncomfortable with my very presence on the flight. And the Delta manager went out of his way to point out that he wholeheartedly agreed with the pilot’s decision.”

If you ever find yourself in a similar situation, what are your rights?

As long as you’ve paid for a ticket and complied with all valid rules in the airline’s published tariff, you have a right to travel. That’s what it means for an airline to be licensed as a “common carrier”.

Your right to travel is guaranteed by, in ascending order of precedence, Federal law, the First Amendment to the U.S. Constitution, and international human rights treaties: Read More →

Aug 04 2012

Will the TSA ever follow any rules?

The TSA is a lawless agency, and its checkpoints are a domestic counterpart of Guantanamo:

A formal rulemaking wouldn’t prevent the TSA from adopting unconstitutional rules. But it would provide an opportunity for public review of proposed checkpoint rules or procedures, public submission of comments on them (such as, “These are unconstitutional and violate our human rights”), public knowledge of what rules have been adopted, and a (relatively) straightforward procedural pathway for judicial review of those rules. This last, presumably, is why the TSA has avoided the formal rulemaking process, instead either issuing secret administrative “directives” to airlines and checkpoint staff, or standardless ad hoc administrative orders for which no basis at all is disclosed.

Three years ago, we were among the signers of a petition to the TSA requesting that it conduct a formal rulemaking concerning its deployment of “virtual strip-search” machines as a primary “screening” mechanism, and its requirement that travelers submit either to these “whole-body” scanners or to even more intrusive whole-body groping by checkpoint staff.

Two years ago, after that petition was ignored, EPIC filed suit to compel the TSA to conduct such a formal rulemaking concerning the “naked scanners”. (That’s separate, of course, from the logical protest response of getting naked ourselves to show the checkpoint  staff that we pose no threat.)

A year ago, the Court of Appeals for the D.C. Circuit upheld EPIC’s complaint, ruling that the TSA must “act promptly” to conduct such a formal rulemaking:

[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, … we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

For more than a year since then, the TSA has done nothing to even begin the rulemaking process.

Our friend Jim Harper at the Cato Institute has started a petition asking President Obama to order his executive-branch underlings at the TSA to obey the court’s order and start the rulemaking. If it gets 25,000 signatures by August 8th (it currently has 18,000 and counting), White House policy is to provide a public “reply” to the petitioners.

We’re not too optimistic as to what that reply will be, judging from the response from the TSA on behalf of the White House to last year’s petition by more than 30,000 people calling for the TSA to be entirely abolished, not just subjected, at least in part, to the rule of law.

EPIC has supported the petition campaign, but has also continued to litigate: Last month EPIC asked the Court of Appeals to set a date certain by which the TSA’s “whole-body imaging” program would be “vacated” by the Court if the TSA hasn’t begun a formal rulemaking for it. On Wednesday of this week, the Court ordered the TSA to respond to EPIC’s latest motion by the end of August.

Slowly, slowly, with the government resisting at every step, we crawl toward subjecting the homeland-security state and its attacks on our rights to the rule of law.

Aug 03 2012

9th Circuit Court of Appeals keeps another “no-fly” case alive

For the second time this year, the 9th Circuit Court of Appeals has rejected jurisdictional and procedural challenges and claims of immunity, and remanded a case challenging “no-fly” orders for further proceedings on the merits of the plaintiff’s claims that their rights were violated by being prevented from flying.

The decision last week in Latif v. Holder is complex and technical. There’s still no certainty that the case will make it to trial, or that any court will ever review the legality of the government’s secret “no-fly” orders to airlines preventing them transporting the 15 plaintiffs (all US citizens or green card holders) to or from the US or through US airspace.

But as in the decision of another panel of the same court in Ibrahim v. DHS this February, the 9th Circuit was unwilling to dismiss the claims of travelers grounded by the government without any substantive hearing on the basis for their inclusion on the “no-fly” list. And this time the court went further to reject the government’s attempt to force grounded travelers to exhaust their “remedies” through the TSA’s “Traveler Redress Inquiry Program”, a charade in which an “inquiry” is “resolved” (after an indefinite amount of time) without the complainant ever finding out anything about why they have been prevented from flying, having any chance to rebut the evidence (if any) against them, or knowing what, if any, decision has been made.

According to the latest, unanimous decision by a panel of three 9th-Circuit judges:

At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List? … Today, we take another step toward providing an answer.

The Court of Appeals also noted the issue of banishment from the US by no-fly order, but relegated it to a footnote:

A few of the plaintiffs were allegedly stranded abroad at the time this lawsuit was originally filed, but all have now been granted “one-time waivers” to return home.

To date, despite these and other lawsuits, neither the general legality of secret, standardless, administrative no-fly orders, nor the validity or substantive basis for any individual no-fly order, has been reviewed on its merits by any US court.  We’ll see if that changes in the wake of these decisions.

Jul 18 2012

John Brennan, “Naked American Hero”, found not guily

John Brennan, who took off all his clothes while being detained by the TSA at the Portland [OR] International Airport (PDX) in protest of his continued detention and the TSA’s excessively intrusive “screening”, was found not guilty today of indecent exposure at the conclusion of a bench trial (during which Mr. Brennan testified, clothed, in his own defense) in Multnomah County Court. According to an Associated Press report on the trial:

A Multnomah County prosecutor said if Brennan’s actions are considered protected by the First Amendment, then anyone who is arrested while nude can also claim that their actions are a protest.

That leaves Mr. Brennan out of pocket for the legal expenses of defending his innocence. The “not guilty” verdict in the criminal case brought against Mr. Brennan leaves open the possibility, as already threatened by the TSA, of a civil action to fine Mr. Brennan for “interfering” with TSA screeners in the performance of their duties. On the other hand, the “not guilty” verdict also leaves open the possibility of a civil suit by Mr. Brennan against the checkpoint staff and police who violated his rights.