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The Identity Project

Category Archives: Secret Law

May 18 2010

TSA still has no answers to key questions about “Secure Flight”

The procedures and timeline for implementation of the TSA’s Secure Flight scheme for identity-based surveillance and control of airline passengers are spelled out not in laws or published regulations but in secret Security Directives to airlines.  So we noted with considerable interest this report today by travel journalist Charlie Leocha of a relatively rare public appearance by the head of the Secure Flight program (emphasis added below):

Paul Leyh, TSA Director Secure Flight Program, claimed that all U.S. airlines will be enrolled in Secure Flight within a month and that all foreign carriers will be working in the program by the end of 2010.

Speaking at U.S. Travel Association’s Pow Wow conference to encourage foreign tourism, Leyh noted that TSA is about to complete their mission of … performing the [watchlist] matches prior to allowing passengers to board….

The system sounds simple, however, there were significant IT hurdles to be overcome. Expanded data field requirements for online travel agents such as Expedia, Travelocity, Orbitz and Priceline were more complex than originally thought. The new data collection by brick and mortar travel agents meant internal profile systems to accommodate the storage of this very valuable and confidential information had to be developed…

Foreign journalists attending the press conference asked whether there is a judicial process to use should the normal DHS TRIP process not result in having your name cleared. Leyh didn’t have an answer for that question….

Leyh didn’t have an answer about privacy issues regarding the GDS [Global Distribution Systems, also known as Computerized Reservation Systems], airline reservation systems or travel agents who are allowed to keep all passenger information indefinitely and who fall under no privacy legislation.

Leyh may not have had answers today, but the TSA can’t avoid those questions forever, especially when they are being raised from abroad.  Last month, the European Parliament voted to include both judicial review of no-fly orders and a review of US government access to CRS/GDS data in its conditions for any agreement to give the DHS access to data about passengers on flights between the EU and the US.

May 17 2010

Three Strikes?

Having been passed over for appointment to head the Drug Enforcement Administration, Deputy FBI Director John S. Pistole today got the booby prize as President Obama’s third-choice nominee to head the Transportation Security Administration.

For those who haven’t been keeping score, retired spymaster and Army General Robert A. Harding withdrew his name from nomination in response to questions about overbilling and cronyism in contracts between his security consulting firm and his former military comrades. Obama’s first choice, former Las Angeles airport cop Erroll Southers, withdrew earlier after apparently lying to Congress about his having used his police connections improperly to get derogatory information from supposedly restricted police files about his estranged wife’s lover.

We have the same questions for Mr. Pistole as we’ve had for the previous nominees for TSA administrator.

As of now, the TSA is still being run on auto-pilot by caretakers from the previous administration.  Unfortunately, we don’t see anything in Mr. Pistole’s official biography as a career cop, or the President’s statement about his nomination (which mentions only a desire to “stengthen” screening at airports, and says nothing about strengthening civil liberties or human rights) to suggest any likelihood of improvement in TSA policies.

May 17 2010

Canadian privacy office questions US surveillance of Canadian travelers

In testimony before a Canadian parliamentary hearing last week by Assistant Commissioner Chantal Bernier, the office of the Privacy Commissioner of Canada raised questions (previously asked in the Canadian press) about the implications for Canadian travelers of the US Secure Flight program — questions that travelers in the US and other countries should share.

Asst. Privacy Commissioner Bernier noted that despite Canadian objections, the US continues to insist on applying the Secure Flight requirements (transmission of passenger data to the DHS, and receipt by the airline of affirmative DHS permission before each prospective passenger is allowed to board a flight) to flights that pass through US airspace to and from Canada, even if they never land in the USA. This includes most flights between Canada and Central America, South America, and the Caribbean.  As Bernier pointed out to Members of Parliament, “This means that DHS will collect personal information of Canadian travelers. This is not without risk.”

It’s worth noting, although it wasn’t reported to have been mentioned at the hearing, that Canada imposes no comparable requirement for the vastly larger number of flights to and form the USA that pass through Canadian airspace.  These include virtually all transatlantic flights to and from the USA, and transpacific flights to and from all points in the USA east of the West Coast. Nor does any other country through which flights routinely pass en route to and from the USA.  Most flights between Miami and Latin America, for example, pass over Cuba.  But American Airlines is required neither to provide the Cuban government with detailed information about each passenger on those flights, nor to obtain Cuban government permission before allowing them to board.

Important as they are, however, the concerns raised in last week’s testimony suggest that even the Office of the Privacy Commissioner of Canada still doesn’t fully appreciate the scope of the problem or of the violations of Canadian law.

Asst. Comm. Bernier’s statement was limited to flights to, from, or overflying the USA.  We suspect that her office is unaware that the DHS already has ways to get access — without the knowledge or consent of anyone in Canada, including airlines and travel agencies — to information about passengers and reservations for flights within Canada and between Canada and other countries, regardless of whether they pass though US airspace.

Read More →

Apr 18 2010

DHS “update” still misstates compliance with EU agreement on PNR data

At the meeting of the LIBE (civil liberties) committee of the European Parliament on the 7th of April, a representative of the European Commission announced that the EC will shortly be releasing a report on the second closed-door EC-DHS joint review of DHS compliance with the current “agreement” on DHS access to and use of PNR data related to flights between the EU and USA.

We haven’t yet seen this report of the second joint review, although drafts of an EU report on the joint review and the DHS response to the EU draft have been posted by Statewatch. But since the first joint review in 2005, the DHS has published two reports — one in December 2008 and an update in February 2010 — on its own self-assessment and claims of compliance with the agreement, and we have studied  them carefully..

These 2008 and 2010 DHS reports are seriously misleading and contain significant legal and factual misstatements.  Their inaccuracy makes clear that DHS claims cannot be relied on without independent verification. The willingness of the DHS to publish such false claims calls into question the good faith of DHS participation in the joint review, and reinforces the need for a truly independent review including an audit of DHS actions by technical experts with access to legal process to compel full access to DHS records.

It’s not for us, as Americans, to tell European politicians what policies they should adopt. Nonetheless, as Americans who have systematically tested what happens when travellers attempt to access PNR data about themselves held by the DHS, and what happens when they attempt to complain about misuse of PNR data by the DHS, we think it is important for Europeans not to be misled about the status of DHS compliance or noncompliance with the current DHS-EU “agreement” on PNR data.

Here’s what we can say about the current situation, and about the claims in the 2008 and 2010 DHS reports regarding compliance with the agreement. Read More →

Apr 07 2010

Testimony to the European Parliament on PNR data

Identity Project consultant and technical expert Edward Hasbrouck is testifying Thursday in Brussels on the proposed agreement between the European Union and the U.S. Department of Homeland Security on transfers of Passenger Name Records (PNR’s) from the European Union to the DHS, at a public hearing on “Protection of Personal Data in Transatlantic Security Cooperation: SWIFT, PNR & Co. – which way forward?”, hosted by Jan Philipp Albrecht, Member of the European Parliament. 14:00-17:00 (8-11 a.m. Eastern time, 5-8 a.m. Pacific time), European Parliament, Brussels, room ASP 1G-3 (open to the public, but prior arrangement required for access to the building).

Apr 02 2010

DHS shifting from national origin to ID-based passenger profiling

Today the DHS announced that it is partially replacing its practice of illegally profiling air travelers seeking to board flights destined to the US by national origin — the subject of our still-unanswered formal complaint — with a new scheme to illegally profile passengers individually, bsed on based on mining of commercial data in passenger name records (PNRs) obtained from airlines and other travel companies and on secret DHS dossiers about would-be passengers including their lifetime travel histories maintained in the illegal Automated Targeting System and other databases.

The consequences if you fit the secret profile would continue to include, as before, being subjected to “secondary screening” (more intrusive search and/or interrogation, with no publicly-disclosed rules governing which questions you are required to answer) or having the airline not be given “clearance” under the APIS permission system to allow you to board the flight.  (Under the APIS system already on the books, the default is “No fly” unless the airline receives an affirmative, individualized, per-passenger, per-flight “clearance to board” message from the DHS.)

The new profiles reportedly could include both individual identities and vaguer patterns of suspicion such as countries previously visited (a clear case of targeting based on activities protected by the First Amendment), association (a matching phone number in a PNR, such as from having reconfirmed flights form the name hotel as thousands of other travelers), or appearance (leaving room for continued racial and/or ethnic profiling).

The profiling and selection algorithm, the identity of the decision-makers, and the data on which they will base their determinations remain secret.  No mechanism for judicial review of these decisions, or of actions taken on the basis of them, was mentioned in the DHS press release or FAQ.

The new practice greatly increases the significance of the DHS’s decision in February of this year to exempt much of the information in PNRs, including derogatory personal information submitted by travel companies without travelers’ knowledge, from release to data subjects in response to requests under the Privacy Act. It also highlights the significance of the DHS’s routinely late, incomplete, and improper responses to requests for travel records, when they respond at all.

Some of our Privacy Act requests to the DHS for travel records are 6 months old with no response at all (a year is not unusual), while one of our appeals of an obviously incomplete and improper response has been pending for more 2 1/2 years without a decision.  Of the responses we have seen to requests for PNRs and ATS travel history records, all are obviously incomplete, and invoke inapplicable exemptions (such as invoking the broader exemptions applicable to third-part requests under FOIA in response to first-party requests under the Privacy Act, to which FOIA exemptions don’t apply).  None actually appear to have been processed under the Privacy Act, only under the more limited FOIA rules, even when the requests were explicitly made under the Privacy Act.

So far as we know, nobody has actually received the “accounting of disclosures” (access log) that the DHS is required to provide on request.  And none of the major computerized reservation systems (CRSs) to which airlines outsource hosting of their PNR databases maintains logs of access to PNRs, which would be necessary for CRSs or their airline and travel company subscribers to comply with “Safe Harbor”, European Union data protection law, and other international privacy norms.  Since CRSs keep no records, nobody knows who actually accesses PNRs.

There are also still unanswered questions as to the extraterritorial US claim of jurisdiction over actions related to boarding of foreign-flag aircraft at foreign airports, especially where international aviation treaties between the US and those countries require airlines to operate as “common carriers” and transport all passengers willing to pay the fare and comply with the rules in the published tariff.

Both Americans and foreigners — including members of the European Parliament who are currently debating whether to approve continued DHS access to European PNR data — should be outraged that the DHS is simultaneously increasing the weight given to commercial and other information in secret DHS dossiers about us, while hiding even more of that information from us, even if we specifically ask to see it.  We’ll be bringing this to their attention in meetings and testimony in Brussels and Strasbourg, and talks with European activists, over the next few weeks.

Mar 23 2010

Rules of engagement for the TSA

The U.S. Senate Committee on Commerce, Science, and Transportation held a desultory hearing this morning on the nomination of retired U.S. Army Major General Robert A. Harding to be Administrator of the Transportation Security Administration and an Assistant Secretary of the U.S. Department of Homeland Security.

Despite the nominee’s exclusively military background and total lack of experience with the rights of civilian U.S. citizens, domestic civil liberties, or law enforcement, neither any of our questions nor any others about the limits of TSA authority were asked.  Despite some questions about how quickly General Harding has gone back and forth through the military-industrial-government revolving door since his retirement, founding and selling a military “intelligence” consulting contractor and then serving as advisor to a venture capital firm investing in similar companies, Committee members from both sides of the aisle generally praised the nominee’s background.

General Harding, in turn, praised Secure Flight and Israeli-style vetting of would-be travelers, which typically involves both intrusive searches and compulsory responses to open-ended questioning:

We should move even more to an Israeli model where there’s more engagement with passengers.

Harding didn’t define ‘engagement’, although he used the term repeatedly.  In context, though, it was clear that it would include approaching and questioning travelers.

The problem with that, of course, is that that there are no rules of engagement for TSA agents at checkpoints.  No statute or regulation spells out what the TSA is allowed to demand, or what questions a would-be traveler can be required to answer as a condition of the exercise of their right to travel.  Without that, the greater “engagement” that Harding wants is an unconstitutionally open-ended all-purpose general administrative warrant for search and interrogation of people who are neither suspected nor accused of any crime, have received no Miranda warnings, and are not free to leave once they enter the TSA checkpoint.  Once can see why a soldier might like that, but that’s not the way civilians are supposed to be dealt with by civilian law enforcement agencies in the USA.

And near the end of his testimony, Harding gave a clue as to the importance being placed by the DHS on international lobbying:

International [air] carriers will meet in Canada in September.  If I’m confirmed, the Secretary [of Homeland secuirty] would send me to that.

It’s not clear whether he was referring to IATA or ICAO — both have their secretariats in Montreal and Geneva — but the rest of the world shouldn’t be talked into imposing a US-style permission-based travel control regime just because some old soldiers from the U.S. Army like Harding think that’s the way to run the civilian travel world.

Mar 17 2010

Long reach of “Secure Flight” angers Canadians

On September 11, 2001, Canada followed the US in closing its airspace and grounding all aircraft, stranding tens of thousands of passengers on flights to and from the US (mostly on inbound flights from Europe and Asia) at airports like Gander and St. John’s, Newfoundland.  The Canadian welcome and hospitality for these travelers became the stuff of legend.  But ever since, Canada has struggled to retain sovereignty over its airspace in the face of US “security” demands.

Canadian privacy law was amended, under US pressure, to allow “sharing” with the US government of information contained in reservations for flights between Canada and the US.  But most Canadians assumed that the role of the US in determining who is permitted to fly is limited to flights to and from the US.

This month a four-part series by Kevin Dougherty in the Montreal Gazette, syndicated across Canada in the Canwest newspaper chain, has broken open that Canadian complacency about the long reach of US claims to passenger information and “fly/no-fly” decision-making authority:

The series raises serious questions as to the legal basis for denying boarding to passengers on Canadian-flag aircraft not landing in the US on the basis of secret blacklists or decisions by the black-box Secure Flight system in the US.

Since publication of the Canwest series about “Secure Flight”, letters to the editor, op-ed colums, and editorials across Canada have denounced the application of the Secure Flight scheme to Canadian airlines and travelers.  Many have pointed out the hypocrisy: As was made evident when all those flights were grounded on September 11th, almost all trans-Atlantic and many trans-Pacific flights to and from the US pass over Canada, but Canada demands no information about who is on those planes and asserts no authority to control who is allowed to be.

On top of all this, there’s another shoe still to fall:  Canadians remain unaware that the vast majority of travel agencies, and tour operators in Canada subscribe to computerized reservation systems (CRSs) based in the US.  That means all their passenger name records (PNRs) and customer profiles are stored in the USA, even for flight that go nowhere near the US.  These travel agencies, tour operators, and other travel companies don’t tell their customers that they have outsourced their travel records to the USA, where the government could get them secretly from the CRS with a “National Security Letter”.

That’s a flagrant violation of the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA). Canadians should complain to their Privacy Commissioner and demand that she take action against companies — of which travel agencies are leading examples — that outsource their customer data to the US without their customers’ knowledge or consent, and without any way to know what’s done with that data once it is in the hands of CRSs in the US.

Feb 25 2010

DHS accomplices face legal liability

The most recently filed lawsuit to result from detention of a would-be traveler at a TSA checkpoint highlights an interesting pattern:

While Federal departments themselves, and their agents in their official capacities, have thus far largely escaped legal liability for interference with travelers’ rights, multiple lawsuits against individuals who have enforced secret DHS directives — including DHS officers in their individual capacities as well as city, state, and tribal police acting as their accomplices and/or at their behest — are moving forward.  Yet at the same time, the DHS continues to use local law enforcement officers to carry out its secret orders, and has in some cases revealed policies directing DHS agents to take a literal “hands-off” attitude themselves, even while calling in local police to enforce what are at root (illegal) Federal orders.

Here’s a round-up of some pending cases across the country, leading up to the latest, with apologies for the sometimes tortured procedural histories which tend to characterize such cases and obscure the real issues: Read More →

Feb 23 2010

DHS using ICAO again for policy laundering

News reports about recent diplomatic initiatives by the US Department of Homeland Security suggest that the DHS may once again be using the International Civil Aviation Organization (ICAO) as a vehicle for policy laundering.

In the past, ICAO has been the focus of attention for its role in the imposition of RFID passports and the associated systems of automated monitoring and control of international travel.

Now, the DHS appears to be trying to use ICAO as the vehicle through which to impose its ideas of passenger searching (virtual strip-search machines) and passenger surveillance (pre-flight government access to PNR data and its use in conjunction with identity-linked travel histories and personal profiles for control of who is allowed to fly)  as global norms.

Secretary of Homeland Security Napolitano, accompanied by Asst. Secretary for Policy David Heyman (successor to former NSA and DHS attorney Stewart Baker), has been barnstorming the globe in pursuit of this agenda over the last month.  She met with ICAO officials and their airline industry partners at IATA in Geneva, attended a regional European ministerial meeting on aviation security in Spain which issued a joint statement agreeing to “Promote international co-ordination … through ICAO”, followed by a regional ICAO meeting in Mexico for the Americas and the Caribbean (attended by ICAO’s Secretary General) which declared participating goverments’ commitment to “systematically collaborate within ICAO… with a view to convene both international expert and intergovernmental meetings to agree upon actions in the following fields:”

  • Broaden existing cooperation mechanisms among our countries and with other parties to the Chicago Convention, and the civil aviation industry, for information exchange …
  • Share best practices in a range of areas related to civil aviation, such as … screening and inspection techniques, airport security, behavioral detection, passenger targeting analysis…
  • Utilize modern technologies to detect prohibited materials and to prevent the carriage of such materials on board aircraft.
  • Transmit in a timely manner passengers’ information prior to takeoff to effectively support screening … as well as develop and improve compatible systems for the collection and use of advance passenger information (API) and passenger name record (PNR) information.

In a detailed video news release, Napolitano herself described this as “an unprecedented international initiative” centered on “a series of regional meetings around the globe facilitated by ICAO”:

There were four broad areas for discussion: Information sharing, passenger vetting, technology, and international standards…. Look for announcement in each of these four areas in the weeks ahead.

The agenda and the forum could not be more clear: Unless defenders of civil liberties and human rights mobilize effective opposition, the goal of the US and the DHS is for ICAO to put forward “international standards”, effectuated by national laws on “compliance with standards”, which will mandate virtual strip-search machines (“modern technology”), worldwide government access to PNR data, and government “vetting” (identity-based and permission-based control) of international air travelers.  That is perfectly in line with the 10-year plan of ICAO’s working group on Machine-Readable Travel Documents (MRTD), “MRTD Vision 2020,” as laid out in the latest ICAO MRTD Report.

ICAO is a UN-affiliated intergovernmental organizing most of whose decisions are made in invitation-only working groups. The interests of citizens are supposed to be represented in ICAO decision-making by their national governments, but national delegations to ICAO are invariably drawn from security, surveillance, law enforcement, and aviation regulatory agencies, and have never included representatives of data protection, civil liberties, or human rights authorities.

In effect, ICAO’s decisions reflect the desires of the world’s police.  By enacting national laws requiring “compliance” with ICAO “standards”, national governments can effectively outsource national law-making to those police, while justifying repressive measures (which their own representatives have proposed and championed at ICAO) as being the reult of an extenral, international mandate for which they aren’t responsible. Policy laundering.

ICAO’s importance to the DHS (and its counterparts in Europe and elsewhere) is heightened by the likelihood that, in the wake of the precedent set by its rejection of the SWIFT agreement on financial transaction data sharing with the US government, the European Parliament will reject the similar PNR agreement for travel transaction data sharing with the US government. The DHS had been pressuring the Europarl to fast-track approval of the PNR agreement. With the writing on the wall that the PNR agreement is headed for defeat in the Europarl, the DHS is already making it clear that ICAO standards are their back-door “Plan B” for how to impose a global PNR and identity-based travel sureveillance and control regime.  They are losing in Brussels, so they are trying to shift to more “Big Brother friendly” ICAO forums in Geneva and Montreal.

ICAO draws on invited technical experts from the aviation industry, but unfortunately their interests in surveillance for commercial purposes coincide with those of the police in the same surveillance for political purposes. Airlines and other travel companies are happy to help governments monitor travelers, as long as they get get paid for collecting the data and are allowed to use it themselves too. We’ve heard them tell ICAO so in so many words.

ICAO’s dual secretariats in Montreal and Geneva, and its process in which most decisions have effectively been made before they are presented to rubber-stamp plenaries, makes effective civil society participation difficult without long-term commitment and international cooperation.  A useful model is provided by environmental activists, who have formed a single-issue international NGO coalition for the sole purpose of obtaining accreditation and observer status with ICAO. Despite previous joint appeals to ICAO by an ad hoc international civil liberties coalition, human rights groups haven’t yet formalized their coalition or sought observer status with ICAO, and have had no presence at ICAO meetings or working groups.

If you are interested in working with the Identity Project to get our voices heard at ICAO, please get in touch — before its too late.