Papers, Please!

The Identity Project

Category Archives: Secure Flight

Sep 25 2011

What do we want? “Abolish the TSA!”

The first time the White House conducted a public online poll allowing We, the People to petition the President for redress for our grievances, the petition that got the most signatures called on the Obama Administration to lergalize and regulate marijuana in a manner similar to alcohol. After an elaborate built-up to the petition poll, President Obama dismissed the result as a joke.

Now the White House is at it again, and the leading grievance of the people against the government is even more overwhelmingly clear. Let’s see if the President once again laughs off our petition.

Here’s the most popular petition to the President, with more than 20,000 signatures in the first 3 days since it was posted:

We petition the Obama administration to:

Abolish the TSA, and use its monstrous budget to fund more sophisticated, less intrusive counter-terrorism intelligence.

The Transportation Security Administration has been one of the largest, most expensive and most visible blunders of the post-9-11 homeland security reformation. It has violated countless constitutional rights of average Americans, caused miserable and expensive delays in an already-overburdened air travel system, and allowed multiple known instances of harassment, theft, extortion and sexual abuse by its employees. It has failed approximately 70% of undercover efficacy tests, and for all its excesses, has been unable to catch even a single terrorist since its creation. In our current economic situation, we can no longer afford to continue wasting taxpayer dollars on this kafkaesque embarrassment. Let us instead invest in saner, more effective solutions.

You can add your signature through October 11, 2011.

May 23 2011

Senator wants more ID-based controls on rail passengers

Earlier this month Sen. Chuck Schumer (D-NY) proposed that the TSA’s “Secure Flight” system be extended to passengers on domestic Amtrak trains. That would mean that Amtrak would be required to send passenger information to the government, and receive a “cleared” message for each passenger before allowing them to board a train.

Summary denial of transport by a common carrier, much less a government-operated carrier like Amtrak, would violate both the First Amendment right to assemble and the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights.

But extending “Secure Flight” to train travelers would be a stupid idea even if it were legal. Rail sabotage has often been a tactic of war, but it has rarely been carried out by passengers. Sabotage can be carried out anywhere along the tracks, or anywhere saboteurs can get access to rolling stock, including freight cars.

Even the Chicago Tribune, the conservative and usually hawkish newspaper-of-record of Amtrak’s main hub and the hub of America’s freight rail system, immediately responded to Schumer’s proposal with an editorial characterizing it as “security theater for Amtrak.”

Most press reports incorrectly characterized Schumer’s proposal as calling for the “creation” of a no-ride list for Amtrak trains.  That’s indicative of how little awareness there is of the scope of existing systems of ID-based prior restraint on common carrier travel, including international Amtrak trains.

Under the “Advance Passenger Information System” (APIS) used for international flights, passenger trains, and cruise ships, Amtrak already requires passengers on its international trains to and from Canada to provide personal information (beyond anything needed by Amtrak for operational purposes), and passes that information on to U.S. Customs and Border Protection (CBP) for inclusion in the Automated Targeting System (ATS) which is used to decide whether or not to give each passenger government permission to travel. Read More →

Jan 21 2011

DHS, FBI still try to evade judicial review of no-fly orders

A few minutes ago, a United Airlines flight carrying US citizen Gulet Mohamed reportedly landed at Dulles Airport outside Washington, DC. (video 1, video 2)

That shouldn’t be noteworthy, but it is.

Faced with an imminent judicial slapdown, the DHS and FBI have ended their extra-judicial banishment (“proxy rendition”) of a US citizen who has been detained and tortured in Kuwait but was refused boarding by this same airline earlier this week, despite holding a valid full-fare ticket purchased by his family, when Kuwaiti authorities tried to deport him to the US.

Although Gulet Mohamed has been charged with no crime in either the USA or Kuwait, and although he has been given direct notice of no injunction or other order restraining his right to return to the US, US government spokespeople have confirmed that the US ordered airlines subject to US jurisdiction not to transport him. Presumably, the no-fly order to United Airlines took the form of a “not cleared” message (or a non-response, the default “fly/no-fly” state being “no” in the absence of explicit individualized “clearance”) after Mohamed’s PNR and API date were sent by the airline the DHS as part of the APIS and/or Secure Flight schemes for surveillance and control of air travel.

Kuwaiti law reportedly requires deportation by direct flight directly to the deportee’s destination, at least where such a flight exists. Even if Kuwait allowed deportation by ship, API data and “clearance” permission is required from cruise and ocean shipping lines carrying  passengers to the US, as well as airlines.) So Gulet Mohamed remained in detention in Kuwait, under imminent threat of renewed torture (and under continued interrogation by the FBI, without his lawyer present.

On Monday, Mr. Mohamed was denied passage back to the US by United Airlines. On Tuesday, his lawyers from the Council on American-Islamic Relations filed suit, (copy of complaint) seeking an emergency order prohibiting the DHS or FBI from interfering with Mr. Mohamed’s right of return to the US.  Within hours of the filing of the case on Tuesday, a hearing on their motion was held before a Federal judge, who said the government’s actions appeared, on their face, to be a violation of Mr. Mohamed’s fundamental rights.

The judge ordered the parties to return to his court on Thursday, the plaintiff (Mr. Mohamed) to provide declarations substantiating the allegations in the complaint and the defendants (DHS and FBI) to show cause why an injunction should not be issued.

But rather than make any attempt to justify their actions in extra-judicially exiling Mr. Mohamed form his country, the government’s lawyers responded both aat Tueaday’s hearing and at the follow-up hearting on Thursday by telling the judge that they compliant would soon be moot because they were making “arrangements” to change their orders to the airline and allow Mr. Mohamed to return home.

On Thursday night (early Friday morning Kuwait time), Kuwaiti authorities once again tried, and this time were allowed, to put Mr. Mohamed on a flight home to the U.S. as a deportee from Kuwait. That flight landed at Dulles early Friday morning, Washington time.

Mr.Mohamed, it should go without saying, has never been charged with any crime, either in the U.S. or Kuwait, although we don’t yet know how he’ll be treated by the US on arrival. A US citizen has the right to remain silent at the border or airport when re-entering the country. But given their prior actions and repeated attempts to question Mr. Mohamed without his lawyer, we wouldn’t count on the DHS or the FBI to respect his rights now. [Update: FBI Interrogating Gulet Mohamed Without Counsel at DC Airport]

We’re pleased that Mr. Mohamed is back home in his country.  But we are disturbed that the U.S. government, through a case-by-case exercise of standardless administrative “discretion” exercised only after a lawsuit was filed, has once again fulfilled its repeatedly and explicitly stated goal of avoiding having no-fly decisions and orders subjected to judicial review.

In short, Mr. Mohamed was allowed to come home in order to insure him justice, but in order to insure that the DHS and FBI remain free to inflict similar injustice on others in the future.  As Mr. Mohamed’s lawyer, Gadeir Abbas of CAIR, put it earlier in the week, “The reason I fully expect the government to have Gulet on a plane back by Thursday is that they want to continue this objectionable, immoral, and patently unconstitutional practice.

Mr. Mohamed’s lawsuit is not moot, and will continue. His treatment appears quintessentially “capable of repetition, yet evading review.”

We’re left with this:

In the face of a judicial demand to proffer a justification for its no-fly orders, the government made no attempt to do so.  Instead, they indicated by words and deed that they were more afraid of allowing a Federal judge to review the legality of their actions than they were of allowing Mr. Mohamed — who they had claimed it would be too dangerous to allow on any plane, even seated between armed air marshals — to come home to his country.

When an agency of the U.S. government is more afraid of judicial review than of terrorism, one can only wonder what else — worse even than the torture to which Mr. Mohamed was subjected by U.S. proxies in Kuwait — it has to hide.

Jan 10 2011

Interviews with Antiwar.com and KPFK radio

We were interviewed Friday on Scott Horton’s “Antiwar Radio” podcast on Antiwar.com and on KPFK Pacifica Radio in Los Angeles (play stream) (download).

The two half-hour interviews cover much of the same ground. We recommend the one on Antiwar.com.

Here are some links for more information about things we mentioned on the show:

Dec 01 2010

Testimony to the Canadian Parliament on US access to travel data

Edward Hasbrouck of the Identity Project testified yesterday on behalf of the Liberty Coalition at a hearing before the Canadian House of Commons’ Standing Committee on Transport, Infrastructure and Communities on Bill C-42, which — as we’ve discussed previously — would override Canada’s “Personal Information Protection and Electronic Documents Act” (PIPEDA) to permit airlines to give personal information about passengers to the government of any country whose airspace a flight would pass through, even if it didn’t land in that country.

Bill C-42 was proposed by the government, but is being opposed by some within Parliament as well as civil liberties and human rights activists and (along with the US Secure Flight scheme) by the Office of the Privacy Commissioner of Canada.

The English-language audio archive of the hearing is here; the complete transcript is here. Mr. Hasbrouck’s introductory statement is from 24:45 to 35:15 of the audio stream; he was also questioned extensively by the members of the Committee.

Because of the Thanksgiving holiday in the US, the invitation to testify arrived too late for the requisite translation into French of any written notes or supporting documents. For more background on the information architecture and cross-border data flows of the airline industry, see the slides from Mr. Hasbrouck’s more detailed testimony on related issues earlier this year at the European Parliament in Brussels.

Here’s the transcript of our introductory statement:

Read More →

Nov 23 2010

What you need to know about your rights at the airport

  1. TSA “screeners” are not law enforcement officers. Despite wearing police-type uniforms and calling themselves “officers”, they have no police powers and no immunity from any state or local laws.  At some airports, notably San Francisco (SFO) and Kansas City (MCI), they aren’t government employees at all, but rent-a-cops employed by a private contractor. They cannot legally arrest or detain you (except as a citizen’s arrest, the same way you can arrest them if they commit assault or battery). All they can do is call the local police.
  2. You have the right to remain silent, including when questioned by TSA “Behavior Detection Officers.” Anything you say may be used against you.
  3. You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you. In addition, the Federal “Privacy Protection Act of 1980” (42 USC 2000aa) forbids TSA staff or police from searching or seizing photographs, audio or video recordings, documents, or electronic data, if you possess these materials in connection with an intent to distribute them publicly, including online distribution such as posting them on Facebook, Youtube, etc. There are some exceptions to this law, including a limited exception for searches and seizures by customs inspectors (not the TSA) at international ports of entry (not domestic airports). But there is no general airport or TSA exception to this law.
  4. You have the right not to be assaulted or battered (sexually or otherwise), falsely arrested, unlawfully detained, or kidnapped. You may have the right to make a criminal complaint and/or a citizen’s arrest of someone who assaults you, and/or to sue them for damages.  You should consult the applicable laws, including local laws, and/or an attorney, if you plan to do any of these things.
  5. Under most airlines’ conditions of carriage, you have the right to a full and unconditional refund if the airline refuses to transport you because you won’t show ID or won’t “consent” to whatever they want to do to you in the name of “screening”. Read this first: Here’s what to do to protect your right to a refund.  If the airline refuses to give you a full refund, you can sue them for damages and request that the US Department of Transportation investigate and fine them.
  6. If an airline cancels your reservation or refuses to transport you, you may be entitled to collect damages, and you can request that the US Department of Transportation (and, if you were denied passage to the USA from another country, that country’s authorities) investigate and fine or impose other sanctions on the airline.
  7. You have the right to freedom of movement, guaranteed by the First Amendment (“the right of the people… peaceably to assemble”) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty to which the US is a party: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.” Federal law (49 USC § 40101, part of the Airline Deregulation Act of 1978) requires the TSA to consider “the public right of freedom of transit” by air when it issues regulations.
Nov 17 2010

What is to be done about TSA?

We’re pleased and excited to see the spontaneous outpouring of grassroots outrage at the latest TSA “Standard Operating Procedures”, which offer would-be air travelers a Hobson’s choice between forms of submission to secret rules, illegitimate authority, and invasion of personal privacy.

TSA wants us to choose between a virtual strip-search (x-ray or similar photography through your clothes, with the as-though-naked high-resolution photos viewed by a TSA agent or rent-a-cop out of your sight somewhere in a little porno booth in the bowels of the airport), versus vigorous manual groping of your entire body with special attention to your genitals and breasts.

We’re equally pleased and excited to see that outrage move beyond mere complaint to direct action and resistance, primarily by those “opting out” of both the “whole body imaging” and the groping, and calling on others to do the same.

We thank those who are taking action, even what we think may be ineffective or insufficient action, against TSA’s excesses. The public’s frustration with TSA’s ever-escalating demands was bound to explode eventually, and we hope that time has truly come. We just hope that the results will move us in the direction of real reform, rather than “concessions” that leave us worse off than before, or band-aids followed by more excesses after the public calms down.

For many years, TSA has been writing its own laws, in secret, in the form of “Security Directives” to airlines and “Standard Operating Procedures” for TSA employees and contractors. We’ve requested the directives and procedures that purport to say what travelers are required or prohibited from doing. That’s our right under the Freedom of Information Act (FOIA). To date, TSA has either refused our requests outright or ignored them. For months, until they were caught by the Associated Press, the most senior FOIA and “privacy” officer for DHS gave direct orders to the TSA not to provide us with any responses without express prior permission from DHS headquarters.

“Get photographed as though naked or get groped” isn’t the only new TSA imposition. This month, apparently, TSA issued more secret orders to airlines as part of its illegal Secure Flight passenger surveillance and control scheme. The airlines have begun threatening to cancel reservations and deny transportation to paid and ticketed would-be passengers who haven’t provided the airlines (and thus the TSA) with their “full name”, gender, and date of birth. No law requires passengers to do so, but TSA is trying behind the scenes to force airlines to refuse to carry people who don’t.

So what is to be done? Real reform of TSA procedures would include:

Read More →

Sep 21 2010

How will “Secure Flight” be enforced?

Recent announcements by airlines suggest that, either on their own initiative or in response to secret Security Directives from the TSA, they are implementing new and clearly illegal Secure Flight enforcement measures.

One of the many questions about the TSA’s Secure Flight program has been how it would be enforced.

None of the published Secure Flight regulations include any enforcement provisions or any provisions imposing obligations on travelers, and the details of Secure Flight implementation are spelled out, if at all, only in secret Security Directives to airlines that by their nature cannot impose any obligations on travelers.

The TSA’s own secrecy leaves us no choice but to rely on whistle-blowers and leakers within the government and the airline industry (please keep those calls, letters, and e-mail messages coming!) and on what we can infer from airlines’ public disclosures.

This new notice from American Airlines is typical of what we’ve been seeing and hearing lately:

As a result of the Transportation Security Administration (TSA) and Department of Homeland Security (DHS) mandate, beginning November 1, all passengers will be required to have Secure Flight Passenger Data (SFPD) in their reservation at least 72 hours prior to departure….

In compliance with this mandate you will be required to provide Secure Flight Passenger Data:

  • To purchase any ticket on or after September 15, 2010
  • To travel November 1, 2010, or later regardless of purchase date

What’s wrong with this picture?

The “mandate” described on the AA website doesn’t exist in any Federal statute or publicly-disclosed regulation, or in AA’s tariff or contractual conditions of carriage.  On the contrary, airlines are required by Federal law to be licensed as common carriers. They are required to sell a ticket to, and to transport, any would-be passenger willing to pay the fare and comply with the rules in their published tariff.

Federal agencies including the TSA and Department of Transportation (DOT) are required when issuing regulations to take into consideration “the public right of freedom of transit” by air, and have no authority to issue administrative regulations or directives that would override the statutory definition of airlines as common carriers.

No court has ever even considered, much less upheld, any suggestion that air travelers forfeit their right to remain silent in response to questions from the TSA or other Federal employees, much less from TSA contractors or airlines.

On international routes, bilateral and multilateral aviation treaties similarly require airlines to operate as common carriers, in accordance with published rules and a published tariff.

So if AA or any other airline refuses to sell you or a ticket, or to transport you, solely on the basis of your declining to provide Secure Flight data, they render themselves liable to Federal civil suit and damages for refusal of transportation in violation of their duty as a common carrier, as well as to formal complaint and revocation of their operating license for the same violation.

While the US government might intervene in US court to block such a suit on the grounds that any Security Directives issued to the airline were a state secret, that wouldn’t be possible if the lawsuit for refusal to transport were brought in the courts of a foreign country from which the airline refused to transport you to the US.

If an airline tried to file new conditions of carriage incorporating such a provision for denial of transportation, the US Department of Transportation would be duty bound, by Federal statute, to disapprove it.  And if the DOT approved such a filing applicable to an international route, the government of other affected country or countries would be entitled both to disapprove the filing (by treaty, international tariffs typically require approval by both or all countries involved) and to protest its approval by the US as a treaty violation.

We hope that, faced with these choices and risks, airlines will choose to follow Federal law and international aviation and human rights treaties, and will vigorously and publicly litigate their challenges to any US attempt, through secret Security Directives or otherwise, to get them to depart from their duty to the traveling public as common carriers.

Jul 30 2010

Washington Post: “Secure Flight may be making your privacy less secure”

We’re quoted today in the Washington Post in a story by Christopher Elliott about how airlines are able to use personal information — collected under government duress for the TSA’s Secure Flight passenger surveillance and control scheme — for the airlines’ own marketing and other purposes.

“Could it be that the information we give airlines doesn’t belong to anyone or, worse, isn’t regulated by anyone?” Elliott asks.

A good question — and “privacy” may be the least of the problems with Secure Flight, as discussed in our testimony (quoted from, in part, in the Post story) at the TSA’s only public hearing on Secure Flight, our more detailed written comments submitted to the TSA, and our FAQ about Secure Flight.

Jul 23 2010

“The government shouldn’t decide who can fly”

In one of the first statements in the mainstream media to (a) recognize that the essential feature of the TSA’s Secure Flight program is the requirement for domestic US air travelers to receive government permisison to fly and (b) oppose that requirement, The Chicago Tribune has published an op-ed column by Steve Chapman (also appearing in Reason) arguing that, “The government shouldn’t decide who can fly”:

Get rid of the no-fly list entirely. For that matter, get rid of the requirement that passengers provide government-approved identification just to go from one place to another.

Americans have a constitutionally protected right, recognized by the U.S. Supreme Court, to travel freely. They also have the right not to be subject to unreasonable searches and other government intrusions. But in the blind pursuit of safety, we have swallowed restrictions on travel and infringements on privacy we would never tolerate elsewhere….

If the federal government began requiring every citizen to provide identification for each trip in a car or ride on a bus, there would be a mass uprising. Somehow, though, Americans have come to see commercial air travel as a privilege to be dispensed by the government.