Archive for the ‘Surveillance State’ Category

Searches at airports and US borders

Wednesday, February 15th, 2017

President Trump’s Executive Order expanding the pre-existing and ongoing #MuslimBan from foreign airports to US points of entry, by forbidding entry to the US by citizens of specified blacklisted countries,  doesn’t say anything explicit about searches or interrogation of people entering or leaving the US.

But this Executive Order seems to have been interpreted by US Customs and Border Protection officers at US borders and international airports and at “preclearance” sites abroad as giving them a green light for intensified questioning and searches (“extreme vetting”) of  travelers including searches and demands for passwords to laptops, cellphones, and other digital devices.

In response to this wave of digital harassment and snooping at airports and borders, several news outlets, civil liberties organizations, and free press and journalists’ rights organizations have posted technical and legal advisories about how journalists and ordinary travelers can protect their data when they travel.

We welcome this attention to airport and border search law, and these efforts to educate travelers.

We want to add one potentially significant law that few travelers (or CBP officers or TSA checkpoint staff) are aware of, and that isn’t mentioned in any of the advice to travelers about airport and border searches that we’ve seen recently: The Privacy Protection Act of 1980.

We’ve written about the Privacy Protection Act several times before, especially in the context of border searches of activists and journalists. But the protection offered by this law isn’t limited to journalists. Here’s an unfortunately necessarily refresher on what this law means and what you can do to take advantage of it:

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Trump repudiates agreement with EU on PNR data

Sunday, January 29th, 2017

In a panel discussion Wednesday at the Computers, Privacy, and Data Protection conference in Brussels, Edward Hasbrouck of the Identity Project pointed out that that both the so-called Privacy Shield and the EU-US agreement on transfers of Passenger Name Record (PNR) data from the European Union to the US government depend on non-treaty “promises”, “commitments”, “undertakings”, and executive orders by the Obama Administration.

These are not binding on President Trump, and there is no reason to expect Trump do anything just because Obama said he would do it.

Quite the contrary: President Trump has no intention of continuing many of President Obama’s policies, and every intention of reversing many of them — even if Trump continues others, such as mass surveillance, profiling of US citizens and foreigners, and reliance on executive orders to avoid the need for Congressional approval of his program, which Trump presumably will continue.

“As of this week, with Trump’s inauguration, the EU-US PNR agreement and Privacy Shield are dead letters. The only question is whether the Trump administration will officially renounce them, or whether it will simply ignore them,” Hasbrouck told the audience at CPDP.

The answer came just a few hours later the same day, when President Trump issued an executive order including the following:

Sec. 14.  Privacy Act.  Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

The US recognized privacy as a human right when it ratified the International Covenant on Civil and Political Rights:

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence….

2. Everyone has the right to the protection of the law against such interference or attacks.

But as we have complained to the relevant UN treaty bodies, the US has flouted its obligations under this and other provisions of the ICCPR related to freedom of movement as a human right, and has provided no effective means of redress for these violations.

Instead, on this and other issues the US has acted as though there are no human rights, only privileges of US citizenship. President Trump’s executive order on privacy is only the latest official restatement of this longstanding and bipartisan US government position.

With this Presidential decree, the EU-US PNR agreement is dead.

The next question is when EU institutions will recognize this legal fact, and what they will do about it.

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Obama Admin’s parting gift to foreign visitors: social media surveillance

Sunday, December 25th, 2016

In the Obama Administration’s parting gift to foreign visitors, the Office of Management and Budget (OMB) has approved the collection of social media IDs from foreign visitors to the US.  As part of the online Electronic System for Travel Authorization (ESTA), tourists, business travelers, and foreign citizens visiting friends and relatives in the US are now being asked whether they have accounts on any social media platforms, and if so, their user names or IDs.

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“AFI” is the latest DHS name for “extreme vetting”

Wednesday, December 21st, 2016

We’ve heard a lot of talk in recent months about “extreme vetting” of immigrants, Muslims, and foreign visitors to the US. But what does “extreme vetting” really mean?

“Vetting” of both domestic and international travelers — making predictive pre-crime decisions as to whether or not to allow them to travel — is already extreme, and already routine.

“Vetting” means examining people and deciding who to allow, and who not to allow, to do something.

Under DHS procedures that have been in place for a decade, no airline operating to, from, or within the US is allowed to issue a boarding pass or let you on a plane unless and until it has sent your personal information to DHS and received an individualized, per-passenger, per-flight “Boarding Pass Printing Result” (BPPR) message giving the airline “permission” to “allow” you to exercise your right to travel by common carrier. The default if DHS doesn’t respond is “no”, and both the algorithms used for the decision and the data put into that algorithmic black box are secret.

What could be more “extreme”? Manual strip searches for all travelers, instead of just virtual strip searches using as-though-naked imaging machines?

But as President-Elect Trump’s “extreme” rhetoric suggests, the government’s desire for surveillance and control of our movements is insatiable. It’s always possible to make yet another mirror copy of the government’s warehouse of metadada about our movements, disseminate it more widely, and pile on another layer of pre-crime profiling algorithms. More is always better, right — especially if you call it “intelligence”?

The latest replication and propagation of travel data, and the latest layer of traveler “vetting” tools, is the so-called “Analytical Framework for Intelligence” (AFI) operated by, or under contract to, US Customs and Border Protection (CBP).  As we told Spencer Woodman of The Verge for his story today about AFI:

“When Trump uses the term ‘extreme vetting’, AFI is the black-box system of profiling algorithms that he’s talking about,” says Edward Hasbrouck of the Identity Project, a civil liberties initiative that focuses on the rights of travelers. “This is what extreme vetting means.”

DHS in general, and CBP in particular, have been playing a shell game for many years with their travel surveillance and control systems.

Government copies of airline reservations (Passenger Name Records) were first claimed to be part of a system of records called TECS, then declared to be part of a “new” system of records called the Automated Targeting System (ATS), although still stored in the TECS database. (Huh?)  Now an additional mirror copy of all this PNR data (still stored in TECS and still also deemed part of ATS) is being created as part of another “newer” system of records known as AFI.

If you’re confused by all the acronyms and name changes, and don’t know which government files you should ask for or worry about, that’s exactly what DHS wants.

AFI itself has changed fundamentally and for the worse in the last few months, at least if we can believe what DHS says. It’s always been a suspicion-generating and guilt-by-association machine, but now it’s a much more powerful one.  More powerful, to be clear, does not mean “better” or “more accurate”. It means, “capable of placing more people under suspicion” based on more intrusive data aggregation, data mining, and profiling. Here’s how:

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Controls on land travel vs. the right to free movement

Thursday, December 15th, 2016

In a partial but symbolically significant victory, the Belgian government has postponed a final vote in the national Parliament on legislation to require certain international railways to provide passenger name records (PNRs) to the government for surveillance and advance “vetting” of train travelers, as is already being done for air travelers between the EU, the US, and other countries.

(Text of the proposed law in French and Flemish/Dutch; report on first reading in Parliament; analysis and commentary in English; legislative history; legislative status.)

The Belgian proposal was approved by the anti-terror committee in Parliament despite a threat by the German national railway to suspend its high-speed services to Belgium if the bill passes, as well as other criticism.

One Belgian think tank, analyzing the proposal in the context of other anti-terrorism proposals, concluded that, “The creation of a Belgian PNR system is a good illustration of this dynamic: taking it as a given that it will facilitate the arrest of terrorists who are planning attacks is something of a fairy tale…. Social sciences, unlike astrology, is not about predicting the future.”

The decisive factor in the Belgian government’s decision to postpone the scheduled final vote in the national Parliament appears to have been intervention by the European Commission in response to a formal complaint by Access Now that the law would violate the right of EU citizens to move freely within the EU.

As with “rights” for US citizens that aren’t recognized as human rights for all, a decision by the EU or Belgium based solely on the rights of EU citizens falls short of full recognition of the right to travel. But so far as we know, this is the first time that the EU has blocked any proposed travel surveillance or control measure, in the EU or any of its members states, on the basis of the right to freedom of movement.

We hope that the Belgian government will withdraw its railway PNR proposal entirely, not leave it pending, and that other EU member states will take note of the incompatibility of measures like this with fundamental European and human rights principles.

What does Donald Trump’s election mean for our work?

Friday, November 18th, 2016

We endorsed neither Hillary Clinton, Donald Trump, nor any other candidate for elected office. So what does the presumptive election of Donald Trump as President of the U.S. — when the electors cast their ballots on December 19, 2016, and the votes are counted on January 6, 2017 — mean for the work of the Identity Project?

First and foremost, it means that our work, and the need for it, will continue — as it has under previous administrations, both Democratic and Republican.

Human and Constitutional rights are, by definition, no more dependent on the party affiliation of the President, if any, than on our own. Freedom is universal. Our defense of the right of the people to move freely in and out of the U.S. and within the country, and to go about our business, without having our movements tracked and our activities logged or having to show our papers or explain ourselves to government agents, has been and will remain entirely nonpartisan.

We will continue to criticize those who restrict our freedoms and infringe our rights, regardless of their party, just as we have criticized the actions of both the Obama and Bush administrations and of members of Congress and other officials of both parties, many of whom remain in power despite the changes at the top.

Attacks on our liberty have been, and remain, just as bipartisan as our resistance to them. This is especially true of the imperial power which the Presidency has been allowed to accrue, and which is exercised through Presidential proclamations, executive orders, and the secret law (or, to be more accurate, lawlessness) of Federal agency “discretion”. Those who acquiesced in the expansion of Presidential power and executive privilege because they thought that it would be used to their benefit by a President of their own party have only themselves to blame if that power is later used against them by a new President of a different party, or without allegiance to a traditional party hierarchy.

Many of the most imminent ID-related threats are those that arise from existing laws or extrajudicial administrative practices, the limits of which — in the absence of legislative or judicial oversight and checks and balances — are set solely by executive order. Where President Trump can make changes to ratchet up repression, to register and track both U.S. and foreign citizens, and to monitor and control our movements within the country and across borders, with the stroke of a pen, we don’t expect that he will hesitate to wield the power he has inherited to govern by issuing public decrees or by giving secret orders to his minions.

In some of these cases, Federal officials and the homeland-security industrial complex of contractors, confident that the incoming occupant of the White House will bless their efforts to anticipate has desires, may take action even before they are ordered to do so. This seems especially likely, in our area of concern, with respect to (1) the DHS implementation schedule and requirements for the REAL-ID Act,  (2) the TSA’s longstanding desire to enforce and eliminate exceptions to a de facto ID requirement for air travel that lacks any basis in statute and contravenes the U.S. Constitution and international law, and (3) expanded use of ID and surveillance-based pre-crime profiling (President-to-be Trump calls it “extreme vetting”) as the basis for control of movement, especially across borders.

We will be watching closely and reporting on signs of activity on all these fronts, some of which are already visible.

Now more than ever, we need your support — not just helping us to defend your rights, but asserting your rights and taking direct action to defend them yourselves. “The limits of tyrants are prescribed by the endurance of those whom they oppress.”

We invite you to join us in our continued resistance to all lawless attacks from any and all sides on our Constitution, our freedom, and our human rights.

Profiling travelers to find the “good guys” — and recruit them as informers

Tuesday, October 25th, 2016

targeting

[Some of the multiple sources and types of targeting rules in the TECS algorithms used to profile international travelers, from a CBP/FBI flowchart published by The Intercept. Click on image for larger version. “PAU” = CBP Passenger Analysis Unit at a specific international airport in the USA or abroad.]

Most (although certainly not all) of the people who contact the Identity Project for assistance in finding out what information the government has about their travels, or interpreting responses to their requests for travel records, are Muslims. Many of them, Muslim or not, can’t figure out why they were “targeted” for special treatment at US borders and/or airports despite having done nothing wrong. “What do they suspect me of, and why?” they want to know.

A recent report by The Intercept based on documents from an anonymous whistleblower source confirms what we, and many of the people who have sought our help, already suspected: The FBI is systematically “looking for ‘good guys’ not ‘bad guys'” among international travelers, to recruit them as informers (“confidential human sources”).  US Customs and Border Protection is using profiles and identities provided by the FBI to mine the information airlines are required to collect and provide CBP about passengers on upcoming flights to anticipate when potential informer recruits will be passing through US airports.

Once these potential informers are targeted, CBP arranges special joint CBP/FBI “welcome parties” to interrogate and search them and assess their ability, willingness, and suitability to serve as CHSs.  CBP uses its “border search” authority to conduct the searches and questioning, but FBI agents supply the questions and targeting lists and rules, sit in on the interrogations, and follow up with those who are determined to be potential recruits or who come under suspicion as a result of their response to the attempt to recruit them as informers.

The story in the The Intercept and the leaked documents published along with it don’t reveal much that we and others hadn’t already suspected. But they do fill out the some of the details.  And for anyone who was still in doubt, they show clearly how the government is already using its systematic access to airline reservations for surveillance of non-suspects, and for other general police purposes, contrary to the hollow assurances it has provided to the public and to foreign governments that this data will only be used for prevention of specific categories of crimes.

CDC proposes martial law in the guise of “medical quarantine”

Friday, October 14th, 2016

In the guise of a proposal for “medical quarantine“, the U.S. Centers for Disease Control and Prevention (CDC) have proposed regulations that would give CDC employees sweeping martial-law powers of warrantless search, interrogation, tracking of movements, arrest, and extrajudicial mass detention (at the detainees’ own expense!) of individuals or entire groups of unlimited numbers of people for unlimited periods of time.

The proposal revives a dormant decade-old rulemaking initiated after the 2001 and 2005 anthrax scares in Washington, DC. But rather than finalizing the rules proposed (and widely criticized) in 2005, or responding to the comments submitted back then in response to the original proposal, the CDC has published a new and different but perhaps even more objectionable replacement proposal.  It’s unclear why this is happening now, but it seems likely that the CDC feels a political necessity to be seen as “doing something” to prepare for the possibility of another outbreak of Ebola virus disease.

As we say in comments we filed today with the CDC:

The NPRM [Notice of Proposed Rulemaking] describes the proposed rules as a medical quarantine program. But they go far beyond what is medically indicated, authorized by statute, or permitted by the Constitution.

The CDC’s proposal completely ignores existing medical and legal procedures for involuntary commitment of individuals determined to constitute a danger to themselves or others. Instead, the proposed rules include:

  1.  indefinite extrajudicial mass detention without due process,
  2. compelled responses by travelers to extrajudicial interrogation concerning their exercise of First Amendment rights including rights of movement and assembly, regardless of whether there is any current outbreak of any communicable disease, much less whether there is any basis for belief that any specific traveler subjected to this interrogation is infected with such a disease; and
  3. charging innocent detainees for the costs of their detention.

These misguided, unauthorized, and unconstitutional proposals should be withdrawn.

[Details: Complete comments of the Identity Project, all 13,000+ public comments on the CDC proposal.]

“Following the money” in travel surveillance

Friday, October 7th, 2016

The growth of a homeland-security industrial complex funded by single-source contracts and shielded by knee-jerk invocation of “security” as an excuse for secrecy has created huge opportunities for cronyism and collusion between lobbyists, contractors, and government officials.

The poster child for this revolving door and its invidious effects on government policies and spending is former Secretary of Homeland Security Michael Chertoff and his work as a lobbyist for Rapiscan, the supplier of the TSA’s virtual strip-search machines.

Unsurprisingly, the US isn’t alone in allowing the commercial interests of spy-tech companies to drive government decisions to spy on travelers.

In the latest issue of the EDRi-gram newsletter, our friends  at the European Digital Rights Initiative explore “The curious tale of the French prime minister, PNR and peculiar patterns.”  It seems that the French military technology contractor Safran, whose “Morpho” division is one of the leading vendors of turnkey PNR-based traveler surveillance and profiling systems, is one of the largest employers in the home town of French Prime Minister Manuel Valls.

According to Estelle Massé and Joe McNamee of EDRi:

France has been particularly insistent on the unsubstantiated benefit of profiling all travellers — indiscriminately and in the absence of suspicion. French Interior Minister Bernard Cazeneuve pushed for swift adoption of the EU PNR directive before the EU Council, going so far as to accuse the European Parliament of being “irresponsible for delaying the vote” — implying that democratic debate over a privacy-invasive measure is simply wasting time. French Prime Minister Manuel Valls also pushed for the directive, allegedly arguing for adoption as a strong symbolic gesture in the fight against terrorism…

Safran has a major base in Evry, the small town south of Paris where Valls was mayor from 2001-2012. The company employs more than 3300 people and, earlier this year, Valls visited the site and discussed Safran’s role in ensuring long-term employment in the region. The French government said in a statement following the visit, “We have one aim: that the French industry stays ahead.”

The company now appears to be in fine fettle. It won major contracts to put in place expensive PNR systems in France and Estonia. Now that the PNR directive will make such systems mandatory across the EU, it is also seeking contracts in several other EU countries.

That’s not the end of the story. The pattern of links between Valls and Safran run even deeper. According to the French news outlet Marianne, in 2012, when a Safran contract was not renewed, Valls, who was then interior minister, allegedly intervened to help the company. He appears to have done so despite the fact that the proposed change to the contract could have saved 30 million euro of public funds.

Bertrand Marechaux, the police chief who questioned the contract, kept fighting to modify it and initiating legal proceedings against Morpho, a subsidiary of Safran. He was ultimately removed from his position. Valls’ office didn’t respond to Marianne’s request for comment at the time.

How the DEA uses travel company spies to confiscate travelers’ cash

Monday, October 3rd, 2016

A report by the Office of the Inspector General (OIJ) of the U.S. Department of Justice (DOJ) sheds more light on how the Drug Enforcement Agency (DEA) pays workers for airlines, Amtrak, bus companies, and package delivery services to spy on their customers, troll through reservation and shipping records, and finger travelers and senders and recipients of packages to the DEA in enchange for a share of the cash which can be seized and “forfeited” to the government even if no drugs are found and no criminal charges are brought.

This practice was first reported in August 2016 by Brad Heath in USA  Today, based on case-by-case review of court filings describing the basis for DEA searches that led to “civil forfeiture” proceedings. And the DOJ OIG had released brief interim summaries of its investigations into DEA relationships with one Amtrak employee and one TSA employee who were paid to inform on travelers.

The new OIG report released last week provides much more detail about the scope of the DEA’s use of travel and transportation staff as paid “confidential sources” to target travelers and parcels for cash seizures on the basis of travel reservations and shipping records. The OIG found that the DEA is paying employees of Amtrak, airlines, bus companies, and other transportation companies millions of dollars for individual tips and copies of entire passenger manifests:

[DEA] Special Agents have various ways of receiving these “tips,” but generally receive the information on a daily basis via email or text message, some of which are sent to government accounts and others to non-government private accounts that are established and controlled by the Special Agents. Additionally, we found that although some Special Agents estimated receiving up to 20 “tips,” or passenger itineraries, per day from their… commercial airline confidential sources, the DEA does not maintain a record of receipt of the totality of the confidential source “tips.”….

[S]ome Agents requested that sources provide them with suspicious travel itineraries that met criteria defined by the Agents, and in some cases requested entire passenger manifests almost daily….

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