Secret Law – Page 9 – Papers, Please!

Feb 25 2016

Why the Judicial Redress Act is worthless

Yesterday President Obama signed the Judicial Redress Act into law. European Union Commissioner for Justice Věra Jourová described the new law as, “a historic achievement [that] will ensure that all EU citizens have the right to enforce data protection rights in U.S. courts…. The entry into force of the Judicial Redress Act will pave the way for the signature of the EU-U.S. Data Protection Umbrella Agreement.”

Is the Judicial Redress Act really so historic? And will it actually “ensure that all EU citizens have the right to enforce data protection rights in U.S. courts”?

Sadly, no.

Europeans should not be fooled by statements such as those from Commissioner Jourová or her counterparts in other EU institutions. As we know from our own experience in court as US citizens, there are almost no real-world cases in which the Judicial Redress Act will provide any actual protection or enforceable legal rights to citizens or residents of the EU, or anywhere else.

The Judicial Redress Act gives some foreign citizens some of the rights that US citizens currently have, with respect to some of the uses and misuses by the US government of their personal information. But in no case will any foreigner have more rights under the Judicial Redress Act than US citizens have under the Privacy Act.

Serious scrutiny of the terms of the Privacy Act, and of the history of attempts by US citizens to use the Privacy Act to protect themselves against misuse of our personal information by the US government, has been largely absent from the debate about the Judicial Redress Act. But from our experience as parties to one of the key lawsuits attempting to assert Privacy Act claims by US citizens in relation to one of the most controversial categories of personal information being transferred from the EU to the US — passenger name records (PNRs) for international airline flights — we have learned an important lesson that Europeans need to know: the Privacy Act is so limited and riddled with exceptions that it is almost worthless. It is because the Privacy Act is useless, not because the US government follows fair personal information practices in its dragnet surveillance, that there are so few examples of successful litigation against the US government by US citizens under the Privacy Act.

All of the limitations and exceptions that always rendered the “protection” of the Privacy Act inadequate — even for US citizens — will continue to render the protection of the Judicial Redress Act inadequate for foreigners, in all of the same ways, and in additional ones.

What are these exceptions and limitations? In order to make sense out of the Judicial Redress Act, it’s essential to understand the exemptions in the Privacy Act, as courts have interpreted them.

Federal agencies can exempt themselves from almost all of the requirements of the Privacy Act with respect to “investigatory material compiled for law enforcement purposes,” a catch-all category that has been applied to records of dragnet surveillance and other information compiled and used for “pre-crime” profiling, even when the data subjects have never been accused or suspected of any crime. All an agency has to do to opt-out is to publish a notice in the Federal Register that a particular system of records has been declared exempt by the agency that maintains the records. An agency can wait to promulgate such a notice until after it receives a request for access to records, a request for an accounting of disclosures, or a request for correction of records.

Jan 08 2016

DHS doubles down on its big lie about ID to fly

Just days after posting an out-and-out lie on DHS.gov about whether states that want to comply with the REAL-ID Act have to give other states unconditional access to their drivers’ license and ID database (they do, contrary to what the DHS claims), the DHS has posted an equally blatant lie about whether domestic air travelers do or will have to show ID (they don’t and they won’t, contrary to what the DHS claims).

Today’s whopper is part of a press release attributed to Secretary of Homeland Security Jeh Johnson, announcing arbitrary dates for “enforcement” of alleged REAL-ID Act requirements. One might expect those dates and requirements to be spelled out in the U.S. Code or in regulations published in the Federal Register. But rulemaking by press release, Web posting, or Tweet has become the norm for the DHS as part of its enforcement of standardless, discretionary, and secret adminstrative “law”.

Today’s announcement by the DHS comes in the midst of a new round of vigorous debate by state officials as to whether to agree to comply with requirements of the REAL-ID Act that they continue to find objectionable — especially with respect to its mandate for a distributed but integated and nationally accessible ID database. It also comes almost simultaneously with the introduction in both houses of Congress of bills to repeal the REAL-ID Act.

The REAL-ID Act does not purport to create any legal obligation on states to comply. It can’t: The Federal government has no authority to compel the enactment of state legislation. If financial carrots in the form of Federal grants to fund REAL-ID Act implementation aren’t sufficient to win over states that stand up for their residents’ rights, the only stick the Federal government has available to induce those states to comply with the REAL-ID Act is the threat to harass, delay, or prevent residents of those states from traveling by air.

Today’s DHS press release and Tweet make that threat explicit.

Dec 28 2015

TSA may require virtual strip-searches for flyers

The TSA may try to prevent (some) people who can’t or won’t submit to virtual strip-searches from traveling by air, according to a Privacy Impact Assessment (PIA) update quietly posted on the DHS website a few days before Christmas:

TSA is updating the AIT [“Advanced (sic) Imaging Technology”] PIA to reflect a change to the operating protocol regarding the ability of individuals to opt out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations.

The DHS and TSA may have hoped that nobody would notice this change in “operating protocol”, but the new requirement for some air travelers to submit to virtual strip-searches has already been challenged in at least two Federal Circuit Courts of Appeal, as discussed further below.

Dec 18 2015

Are TSA actions subject to judicial review?

The real test of whether the TSA is above the law isn’t whether TSA or DHS officials, flacks, or lobbyists claim that there are legal procedures which (hypothetically) permit judicial oversight of TSA actions. The real test is what happens when real people object to specific conduct by TSA staff and contractors, or private parties such as airlines acting at the behest of the TSA, and ask the courts to review and decide whether the TSA or its minions are breaking the law or violating the US Constitution.

Nobody has done more to test the real-world limits of TSA lawlessness than our friend Sai, who has been waging a one-person, pro se legal crusade against the TSA for its disregard of the Constitution and of a variety of Federal laws providing for transparency, fairness, and due process. Sai’s pending lawsuits against the TSA include one of the most important challenges anyone has made to the TSA’s claims of authority for secret lawmaking, as discussed below.

Remarkably, and unlike most of those aggrieved by TSA general disregard for the law as well as more specific misconduct, Sai has even had some success. But that limited success gives a sense of just how outrageous is the TSA’s disregard for the law, and how far it has to go before the courts will rein it in.

Dec 14 2015

The right to travel and the right to bear arms

Last Thursday, December 3rd, the US Senate rejected a proposal to authorize the Attorney General to deny firearms licenses or permits to anyone the Attorney General suspects to “be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism.”

Just three days later, President Obama made a somewhat similar proposal, but based on the no-fly list and thus — under the latest revisions to no-fly listing procedures — on the discretion of the Secretary of Homeland Security rather than the discretion of the Attorney General:

“Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” (Address to the Nation by the President, December 6, 2015)

Since the President asks, we’ll try to answer.

Nov 06 2015

Most Federal agencies still ignore human rights complaints

Despite a recent decision by the European Court of Justice based in part on the inability of US courts to enforce US obligations under human rights treaties to which the US is a party, and despite a direct order from the President, most Federal agencies have still done nothing to create even administrative channels or points of contact for handling complaints of human rights violations.

Last April, we joined a broad coalition of civil liberties and human rights organizations in a public letter to some of the Federal departments engaged in the most egregious human rights violations — torture, extrajudicial killings, mass surveillance, denial of freedom movement, etc. — calling on them to carry out the President’s longstanding orders to designate points of contact responsible for responding to complaints that they have violated human rights treaties.

Six months later, there’s been no response to our letter and no publicly-disclosed indication that any of the agencies and departments to which it was sent has taken any action to fulfill its duties under Executive Order 13107, which was issued by President Clinton in 1998 and has remained in effect ever since.

This week, we joined in a follow-up letter, pointing out the failure to act and the heightened importance of showing a US government commitment to human rights, including the right to privacy, if the US wants to persuade other countries and their citizens that personal information transferred to via the US will be adequately protected against unwarranted mass surveillance.

The real lesson, of course, is that neither US citizens nor foreigners can rely on merely administrative mechanisms for the protection of fundamental rights. If direct orders from the President aren’t enough to get Federal department heads even to receive and log human rights complaints, what could be?

As the UN Human Rights Committee recommended last year at the conclusion of its latest review of US (non)implementation of its human rights treaty obligations, what’s really needed is for Congress to enact effectuating legislation for human rights treaties to grant US courts — not the agencies that are the subjects of the complaints — the jurisdiction to hear and rule on complaints of violations of rights guaranteed by those treaties that the US has ratified and promised to honor and implement.

Oct 28 2015

6th Circuit Court of Appeals rules for right to trial over no-fly order

On October 26th, by a 2-1 vote, a panel of judges of the 6th Circuit Court of Appeals has overruled a District Court’s decision that it lacked jurisdiction to hear a substantive challenge to the order by the “Terrorist Screening Center” (TSC) placing a US citizen on the “No-fly” list.

While the decision was based on arcane-seeming jurisdictional issues, and the government is already maneuvering to evade it and some other similar court decisions, it is a significant victory for the fundamental right to a trial in cases of challenges to no-fly orders.

The decision sends the lawsuit brought by Mr. Saeb Mokdad, represented by the Arab-American Civil Rights League, back to the US District Court in Michigan where it was first filed more than two years ago.

The TSC is an inter-agency and inter-departmental entity, but the government has assigned nominal “ownership” of the TSC and its decisions — including, until recently, final authority for no-fly orders — to the FBI (a component of the Department of Justice).

At the same time, the government has argued that any challenges to the TSC’s no-fly orders must be made first through the kangaroo-court DHS TRIP administrative process, and then in a Court of Appeals that is allowed to consider only the “administrative record” of the TSA’s decision, as supplied to the court by the TSA itself.

Unlike some other people who have tried to challenge the government’s interference with their right to travel, Mr. Mokdad didn’t sue the TSA or DHS for implementing the TSC’s decision to put him on the no-fly list. Instead, he sued the TSC, FBI, and DOJ for ordering the TSA and DHS to put him on the no-fly list.

The government’s position is that no challenge to a no-fly order can be made with the agency that made the decision (the TSC/FBI/DOJ), and that any court review of the TSC decision must be based solely on TSA records (which will show, at most, that the TSA relied on a no-fly order from the TSC, and may not show anything about the factual basis, if any, or the criteria or procedures relied on by the TSC in its decision).

In its decision this week, the 6th Circuit rejected that duplicitous government position:

To the extent that Mokdad brings a direct challenge to his placement by TSC on the No Fly List, … he is challenging a TSC order, not a TSA order…. TSA does not determine who is placed on the No Fly List; TSC does. Notwithstanding the government’s attempts to characterize his claim as a challenge to TSA’s decision to deny him boarding, Mokdad makes clear that he is “challeng[ing] his actual placement on the No Fly List by the TSC.” R. 17, Appellant Br., 11. TSC is administered by the FBI. The fact that TSC is an inter-agency center that is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and also TSA, does not transform TSC’s order placing an individual on the No Fly List into an order of the TSA.

The 6th Circuit panel correctly held that the law assigning exclusive jurisdiction over challenges to TSA orders to Circuit Courts of Appeal, based on TSA administrative records, does not apply to challenges to TSC or other FBI orders — including no-fly listing orders.

The FBI’s hypocrisy in Mr. Mokdad’s case hasn’t been limited to its arguments in court. The FBI has told Mr. Mokdad that it can’t tell him anything about why it put him on the no-fly list, and can’t even confirm or deny that he is barred from flying (although that’s obvious from the fact that he is denied boarding whenever he tries to fly). At the same time that the FBI officially declined to comment or give any information to Mr. Moktad, the FBI was happy to disclose derogatory alleagations about him to the local newspaper of record, the Detroit Free Press, in the form of leaks by “sources familiar with Mokdad” about what “the FBI suspects”.

Unfortunately, the next move in this legal chess game was already played by the government between the time that Mr. Mokdad’s case was argued a little over a year ago and when it was decided this week. While the Court of Appeals was contemplating its decision, the government shifted nominal final responsibility for no-fly decisions from the TSC/FBI/DOJ to the TSA/DHS, to try to bring them back within the scope of the jurisdiction-stripping statute, 49 USC §46110 (the Constitutionality of which is already being challenged in another no-fly case).

It’s unclear, in light of this evasive move by the government, what will happen to Mr. Mokdad’s case on remand. The next step will be discovery, and likely an assertion by the government in response that everything about no-fly decisions is a “state secret”. Even if Mr. Mokdad eventually puts the FBI on trial, as has happened in only one no-fly case to date, he might win only a Pyrrhic victory, overturning the TSC’s no-fly order but then having to start from scratch, in a different court, with a new challenge to a new TSA no-fly order. Stay tuned.

Oct 23 2015

Court orders TSA to publish “rules” for use of strip-search machines

Acting on a petition submitted in July 2015 by the Competitive Enterprise Institute, the National Center for Transgender Equality, and the Rutherford Institute, the Court of Appeals for the D.C. Circuit today ordered the Department of Homeland Security to, within 30 days from today, “submit to the court a schedule for the expeditious issuance of a final rule” governing the TSA’s use of virtual strip search machines or body scanners (what the TSA calls “Advanced Imaging Technology “within a reasonable time”.

The court didn’t say what it would consider “expeditious” or a “reasonable” time for the TSA to finalize rules for its use of body scanners. Nor did the court even consider what such a rule should say, or what it would take for such a rule to be Constitutional.

But as we pointed out in the comments we submitted to the TSA three years ago in this as-yet-incomplete rulemaking, any “final rule” on body scanners promulgated by the TSA would be the first and to date only publicly-disclosed definition of any aspect of what the TSA and DHS think travelers are required to do and/or prohibited from doing in order to satisfy our obligation under Federal law to “submit” to “screening” as a condition of the exercise of our right to air travel by common carrier.

Five years ago, we were one of 35 organizations that petitioned the TSA and DHS to conduct a public “rulemaking” — including notice of the proposal, and opportunity for public comment, consideration of the comments by the agency, and finally the publication of rules for what is and isn’t prohibited and/or required — before deploying or continuing to deploy as-though-naked body imaging machines in airports.

In 2011, in response to a lawsuit brought by one of the other petitioners, EPIC, the D.C. Circuit court ordered the DHS to conduct such a rulemaking. The DHS dragged its feet, but under pressure from the Coiurt, finally published proposed (vague and unconstitutional) rules for body scanners in 2013. Basically, the DHS proposed rules that would require travelers to submit to whatever “imaging technology” the TSA chooses to use.

The Identity Project and more than 5000 other organizations and individuals submitted comments to the DHS, the overwhelming majority of which opposed the proposed rules, the TSA’s use of virtual strip-search machines, and the TSA practices of groping travelers including those who “opt out” of the imaging machines.

In response to the latest lawsuit by CEI, the DHS says that it is still working diligently, three years later, to read, analyze, and respond to the public comments and prepare a (possibly revised) final rule.

Today, the Court declined (for now, at least) to set a deadline for the DHS to stop dragging its feet and publish final rules for the body scanners. But the Court ordered the DHS to come up with a timeline of specific dates by which it intends to do so. Once the DHS gives dates certain to the Court, it will risk sanctions for contempt if it fails to meet those deadlines without an explanation satisfactory to the Court.

It’s a small but significant step toward subjecting the TSA, for the first time, to the rule of law.

Aug 28 2015

In the wrong place at the wrong time? You might end up on the no-fly list.

If you exercise your right to travel, will the US government use your past travel as the basis for denying you the right to travel in the future?

Reading between the lines of the redacted public versions of recent filings in one of the ongoing legal challenges to US government no-fly orders, the answer appears to be, “Yes”.

Merely having visited the “wrong” place at the “wrong” time (as subsequently and secretly determined by the precogs who devise the government’s algorithms for predicting future terrorist behavior) can be sufficient to get you put on the no-fly list.

Did you visit Yemen in 2009? Now you might be on the no-fly list — for that reason, and maybe that alone.

Jun 22 2015

Will the REAL-ID Act deny you access to Federal facilities?

As we’ve noted in our previous commentaries on the REAL-ACT in this blog and in our recent presentation at the Cato Institute, there are two components to the threats against individual residents of “noncompliant” states (and territories and the District of Columbia) that are being used by the DHS to try to induce reluctant state governments to incorporate their state drivers license and ID databases to the distributed national REAL-ID database by connecting them to the contractor-operated REAL-ID hub:

Threatened denial of common carrier airline transportation to individuals who present drivers licenses or other ID credentials issued by noncompliant states; and
Threatened denial of access to (certain) Federal facilities to these individuals.

The first of these threats appears to be hollow. The TSA has consistently argued, when demands for ID from air travelers have been challenged in court, that no ID credentials at all are required to fly.

The TSA claims the right to subject any traveler to more intrusive search and interrogation, without probable cause, and may use this arbitrary power against residents of states that don’t comply with the REAL-ID Act. But the TSA appears to realize that it has no legal authority for outright denial of air travel to people who don’t have, or decline to carry or show to the TSA or its contractors, government-issued ID credentials, REAL-ID Act compliant or not.

With respect to its threat to deny access to Federal facilities, the DHS (in its usual fashion of rulemaking by press release) has posted an announcement on its website that this will be implemented in phases determined by the “Federal Security Level” (FSL) assigned to individual facilities.

But what are the facilities, if any, to which these levels have been assigned, and to which individuals with ID from noncompliant states will therefore be denied access? We’ve filed a series of Freedom of Information Act requests to find out.

The responses to our FOIA requests suggest that this prong of the REAL-ID Act enforcement cattle prod is, to mix metaphors, a paper tiger. We’ve been unable to find any Federal facility to which such an FSL has actually been assigned.