Feb 08 2019

Government permission to travel: “Authority to Transport”

A white paper on the use of PNR and API data (airline reservations), published by the Organization for Security and Co-operation in Europe (OSCE) in January 2019, lays out more starkly than ever before the goal of governments around the world: a permission-based system of government control and prior restraint in which a common carrier must receive “Authority to Carry” (authority to transport) with respect to each passenger, before allowing them to  board any flight.

We’ve talked about this sort of permission-based travel control before, including in this 2013 overview of the system of US government surveillance and control of travel. (See our slides from that presentation).  But we’ve rarely seen governments spell out so explicitly their intent to convert travel from a right to a privilege which can be exercise only by permission of the police:

An iAPI system allows for a two-way communication in near real-time. The airlines transmit the API message on a per-person basis to the requesting authorities at the time of check-in, while law enforcement agencies have the opportunity to decide whether a certain person is allowed or not to board a plane by issuing a board/no-board message.

The OSCE document, brought to our attention by Statewatch and NoPNR, is the latest revision of a white paper on “the use of Advance Passenger Information (API) and Passenger Name Record (PNR)” data, revised following an OSCE seminar on “Passenger Data Exchange” with governments held in November 2018.

The diagram and description of the iAPI permission system and the mention of “Authority to Carry” — transforming the use of API and PNR from passive surveillance to active government control and prior restraint — have been added since the previous version of the white paper posted by OSCE in March 2018, less than a year ago.

Why the new openness about this government agenda? As the white paper and other recent international initiatives for surveillance and control of travel make clear,  governments have been emboldened by their largely successful (to date) policy laundering efforts to get travel surveillance and control mandated by the UN Security Council in the name  of the War On Terror and/or “aviation security” mandate.

This purported authority is of questionable validity, given that it contravenes rights to freedom of movement recognized by international treaties and the  US Constitution. And the actual basis, if any, for declining to give “Authority to Carry” a particular disfavored individual often has nothing to do with terrorism, aviation security, or any crime.

But the willingness of governments such as the members of OSCE to talk openly about their travel control agenda reflects their belief that they have obtained all the legal authority they need, and no longer have to worry about public outrage at the idea that they think freedom of movement is a special privilege, not a right.

The OSCE white paper also includes this chilling map of the countries where governments already obtain copies of commercial information about air travelers, before their flights:

These travel surveillance and control systems rely on systems for identification of travelers, which are being developed and mandated in parallel. Those efforts will be the focus of the next  annual symposium and exhibition on ICAO’s Traveller Identification Programme (TRIP)  at ICAO headquarters in Montreal from June 25-28, 2019.

Only public expressions of outrage, and public acts of resistance, will get governments that want to control our movements to back down before this sort of permission-based control  of our movements becomes, as they intend, the global norm.

Jan 23 2019

New US push for an ICAO air travel surveillance mandate

Having successfully used the International Civil Aviation Organization (ICAO) as a vehicle for policy laundering on RFID transceivers in passports, the US government is making a new push toward its decade-old goal of getting ICAO to adopt a standard mandating (a) government access to Passenger Name Record (PNR) data and (b) the creation of airline passenger surveillance and profiling units, in all ICAO member countries.

As first noticed by Statewatch, the US made a proposal to ICAO’s High-Level Conference on Aviation Security in late November 2018, “for ICAO to establish a Standard(s) regarding the collection, use and analysis of PNR data.”  The US argued that:

Of urgent concern to combat would-be terrorists and terrorist activities, is the need to elevate the collection, use, processing and protection of Passenger Name Record (PNR) data to standards within Annex 9 and/or Annex 17.
To insure compliance with aviation safety norms, many countries’ laws require airlines to comply with ICAO standards.  So elevating an ICAO “recommendation” to a “standard” amounts to making it a de facto international legal obligation for airlines — without the need for the potentially messy and public process of adopting new national laws or ratifying a new treaty.

The US proposal for an ICAO PNR standard also alludes to resolutions regarding government access to and use of PNR data, which the US has pushed through the UN Security Council in a parallel policy laundering campaign:

At the Tenth ICAO Facilitation Panel that took place in Montréal in September of 2018, the Panel noted that UNSCR 2396 had urged ICAO to work with its Member States to establish a Standard for the collection, use, processing and protection of PNR data. This issue was raised as one with some urgency to help address issues relating to the protection of such data and to help resolve the conflict of laws between requirements to disclose and to protect the data. Several States offered to support the Secretariat in working towards developing the Standard in question without which States cannot derive the full benefits of using PNR data.
What this really means is that requiring airlines to allow governments to use their commercial data about travelers for purposes of surveillance and control of air travel would violate national laws which can be overridden only by making this an obligation through an international treaty body such as ICAO.

The US proposal calls for restrictions on freedom of air travel based on “risk-based  assessments” (i.e. pre-crime predictive profiling)  and on “associations” between individuals (i.e. how and with whom individuals exercise rights of assembly and association protected in the US by the 1st Amendment to the Constitution) :

Effective border security incorporates analysis of secure electronic data, some of which is provided at the time a passenger buys a ticket and some that becomes known when a passenger boards an aircraft. Passenger identification controls must be applied before the arrival of the passenger in the country of destination, to enable relevant border agencies to perform risk-based assessments of passengers and the goods they are carrying. Analysis of this data can illuminate the hidden connections between known terrorists and their unknown associates.
The recommendations made by the 2018 High-Level Conference  on Aviation Security will be considered by ICAO’s governing Council of member countries in 2019. There doesn’t yet appear to be a publicly-disclosed PNR standard ready for adoption, but it couldn’t be clearer that this is the goal toward which the US continues to push ICAO.
Jan 10 2019

CBP finalizes rules for social media surveillance

Is suspicionless spying on what US citizens, foreign residents, visitors to the US, and their families, friends and associates do and say on social media an “essential” function of the US government?

Federal employees deemed “inessential” have been furloughed. But those still working for deferred paychecks apparently include staff  of the Department of Homeland Security, including the DHS Privacy Office, responsible for promulgating rules exempting DHS surveillance from the minimal limitations imposed by the Privacy Act.

In 2017, the DHS gave notice of a new system of social media and travel surveillance records, the US Customs and Border Protection (CBP) Intelligence Records System (CIRS). At the same time, the DHS proposed to exempt these records from as many as possible of the requirements of the Privacy Act. The proposed exemptions would purport to authorize the DHS to include social media and other information in the CIRS database without regard to its accuracy or relevance to any investigation or suspicion of unlawful activity, and to keep these files and any recrods of how thety are used and shared secret from the individuals to whom they pertain.

Joined by eight other national civil liberties and human rights organizations, the Identity Project filed comments with the DHS in October 2017 opposing both the creation of this illegal database of records of suspicionless surveillance of activities protected by the First Amendment and the proposed Privacy act exemptions.

More than a year later, on December 27, 2018 — a week after the Federal government had partially shut down, and during a holiday week when fewer people than usual would be scrutinizing the Federal Register —  the DHS finalized the proposed Privacy Act exemptions for CIRS.

The DHS analysis of the comments on the proposed rule completely ignored some our objections. There’s no response from the DHS to our comments on the Privacy Act’s prohibition (from which an agency cannot exempt itself) on the collection of information about how individuals exercise rights protected by the First Amendment without explicit statutory authorization, which is lacking for collection of social media data.

Others of our objections were brushed off with conclusory claims that such broad surveillance is “necessary” for predictive profiling:

Comment: DHS’s collection of records in CIRS is overly broad because, as stated in the NPRM, DHS may be collecting information that ‘‘may not be strictly relevant or necessary to a specific investigation.’’

Response: In order to conduct a complete investigation, it is necessary for DHS/CBP to collect and review large amounts of data in order to identify and understand relationships between individuals, entities, threats and events, and to monitor patterns of activity over
extended periods of time that may be indicative of criminal, terrorist, or other threat.

Comment: Proposed routine uses would circumvent Privacy Act safeguards and contravene legislative intent.
Response: DHS’s collection of records in CIRS is intended to permit DHS/CBP to review large amounts of data in order to identify and understand relationships between individuals, entities, threats and events, and to monitor patterns of activity over extended periods of time that may be indicative of criminal, terrorist, or other threat.
The CIRS database has already been in operation since at least October 2017. The Privacy Act exemptions took effect December 27, 2018, so it is no longer possible for anyone to find out what information about them is contained in CIRS, or to whom it has been disclosed.
Jan 07 2019

Amtrak thinks it’s OK to spy on passengers because it makes the trains run on time

Buried in the final 500-page PDF file of redacted and munged e-mail messages released by Amtrak in December 2018 in response to a FOIA request we made in 2014, we got the first hint at an answer to one of the questions that originally prompted our request:

What did Amtrak  think was its legal basis for requiring passengers to show ID and provide other information, and for handing this data over to DHS components and other police agencies for general law enforcement purposes?

When US Customs and Border Protection (CBP) asked Amtrak to start transmitting passenger data electronically, it described this as a request for “voluntary” cooperation, noting that while the law requires airlines to collect and transmit this data to CBP, “these mandates do not currently extend to land modes of transportation” (as they still don’t today).

Despite this statement from CBP, someone at Amtrak came up with a way to describe the changes to Amtrak’s systems and procedures to require ID information in reservations for all international trains, and to transmit this data to CBP,  as “required by the U.S. Department of Homeland Security (DHS)” and as “being mandated by the US Border Inspection Agencies [sic].”

In 2004, an Amtrak technology manager was asked, “Do you know if such a [Federal] mandate [to collect information about passengers] exists, or is Amtrak not obliged to participate in this program?”

The unnamed Amtrak IT manager’s response was that:

By statute, the federal government … in cooperation with Amtrak “shall maintain, consistent with the effective enforcement of immigration and customs laws, en route customs inspections and immigration procedures for international intercity rail passenger transportation that will (1) be convenient for passenger; and (2) result in the quickest possible international rail passenger transportation.” 49 USC 24709.

In other words,someone at  Amtrak thinks it’s not merely permitted but required by this provision of Federal law to implement whatever level of intrusiveness of data collection and data sharing will make international trains run more quickly.

It’s arguable, to say the least, whether Congress intended this law as a mandate for ID credentials or data collection, whether collection of passenger data prior to ticketing actually expedites international trains (compared to, as used to happen, conducting customs and immigration  inspections onboard while trains are in motion), or whether demands for ID and passenger information are consistent with the clause of this section requiring that measures taken be “convenient for passengers”. But someone at Amtrak seems to have interpreted this statute as such a mandate, and represented it as such to other Amtrak staff and contractors.

Are there any limits to what information or actions Amtrak would think is required of passengers on international trains, if  that would keep US and Canadian border guards from stopping or delaying trains at the border for customs inspection?

Questions about whether Advance Passenger Information (APIS) was required had been asked not only within Amtrak but by Amtrak-appointed travel agencies, as was relayed to Amtrak by a product manager  for the “Worldspan by Travelport” reservation system:

There’s no indication in the documents we received as to whether this Worldspan subscriber, or any other travel agency, was given any answer to this question.

Notably, no legal basis whatsoever for requiring ID from passengers on domestic trains was mentioned anywhere in the records we’ve received from Amtrak. Nor were any records released that related to Amtrak’s privacy policy, or the legal basis for it, although such records were covered by our request.  We’re still following up with Amtrak on this and other issues, and will file administrative appeals if necessary.

As part of Amtrak’s response to a separate FOIA request, however, we’ve received a redacted copy of Amtrak’s internal directive to staff regarding passenger ID requirements. According to this document, Amtrak stopped requiring passengers to show ID in order to buy tickets as of October 25, 2017.  But no records related to this change, or the reasons for it, were released in response to our request.

Amtrak train crews are supposed to check ID of a randomly selected 10% or 20% of passengers. In our experience, however, Amtrak staff rarely require any passengers to show ID.

Although Amtrak is a Federal government entity, Amtrak’s of list of acceptable ID is much more inclusive than the list of ID that comply with the REAL-ID Act. Amtrak’s list of ID acceptable for train travel includes, among other acceptable credentials, any ID issued by a public or private middle school, high school, college, or university, and drivers’ licensed issued by US states and territories to otherwise undocumented residents.

Amtrak even accepts a “California state issued medical marijuana card“, which doesn’t have the cardholder’s name, only their photo. We’ll leave it as an exercise to our readers to figure out what relationship Amtrak thinks there is between being being eligible for medical cannabis and being eligible for Amtrak train travel.

The most reasonable inference is that someone at Amtrak has decided that Amtrak should make a show of requiring ID, but that others at Amtrak don’t really want to turn away travelers without ID. Perhaps they recognize that travellers who don’t have or don’t want to show ID are a valuable Amtrak customer demographic.

Read More

Jan 04 2019

Issues for the revitalized Privacy and Civil Liberties Oversight Board

With its recent revival, the Federal government’s Privacy and Civil Liberties Oversight Board (PCLOB) has a chance to take a fresh look at how far the USA has gone since 9/11 in implementing a combination of “pre-crime” policing (à la Minority Report) and “social credit scoring” integrated with commercial service providers (à la China) as a means of control of what people can and cannot do, and where they can and cannot go.

The PCLOB didn’t have a quorum since early 2017, and was down to only one member. But three new members were confirmed in October 2018. An Executive Director – who may end up with longer-term influence than the members of the Board, especially given that the new members weren’t appointed and confirmed until just three months before one of their terms is scheduled to end – is currently being hired. Civil libertarians able to obtain a security clearance and willing to relocate to DC are encouraged to apply.

What should the PCLOB focus on, with its limited time and resources? The PCLOB is an advisory committee with neither legislative nor prosecutorial authority. The best use it can make of its limited mandate is to ask hard questions and raise issues that Federal agencies won’t otherwise acknowledge or address.

The TSA and DHS were created in haste after 9/11 without consideration of the privacy and civil liberties implications of their new activities, many of which have never been explicitly approved by Congress. The reactivation of the PCLOB after the latest hiatus is a chance to take a fresh look at the big picture of what these agencies are doing, and what this means for privacy and civil liberties. It might be tempting to focus on “emerging” threats, but the first priority should be to assess the DHS surveillance and control systems that are already in place:

  1. Conversion of state licensing of motor vehicle operators into a national ID system. More than a decade after Congress enacted the REAL-ID Act of 2005, we are entering the endgame of DHS efforts to pressure states into participating in an outsourced, privately-operated, national ID database created to enable compliance with the REAL-ID Act. SPEXS already includes records sourced from states about more than 50 million Americans, but is not subject to any direct government control and has never been the subject of any publicly-disclosed review of its implications for privacy and civil liberties.

  2. Mass surveillance and permission-based predictive control of movement and travel. Congress has never debated whether air travelers should be required to identify themselves, whether the government should keep histories of innocent citizens’ movements (compiled from commercial airline reservations for common carrier travel, license plate readers for travel by private vehicle, and facial recognition for pedestrian movement), or whether existing judicial mechanisms for restricting the right to travel and movement through injunctions or restraining orders should be replaced with secret, extrajudicial administrative prior restraint through “no-fly” and similar orders. How has travel been transformed from a right to a privilege exercised only by government permission? How does this implicate the 1st Amendment right to assemble and the right of freedom of movement recognized by international human rights treaties? How widely, and with what implications for privacy and civil liberties, has the precedent set by real-time “pre-crime” predictive control of travel expanded to other activities and transactions?

  3. Suspicionless dragnet administrative searches. Today, the most common hands-on interaction between a Federal agent and a person not suspected of any crime is a TSA pat-down. But there’s never been any comprehensive review of the legality or the implications for privacy and security of the proliferation of suspicionless administrative searches since the creation of the DHS and TSA: security theater in airports, warrantless searches at internal checkpoints (domestic airports, CBP roadblocks on roads that don’t cross the US border, etc.), and attempts to claim the right to impose searches on the public in other forms of transportation.

There’s much more that we and others could say about each of these issues, if the PCLOB choses to consider them. But the first challenge for the PCLOB is whether it will tackle these big-picture issues.

Dec 12 2018

The Department of “Mother, May I?”

[Federal Probation System Form PROB-37, “Permission To Travel”. Note that even as used for probationers, this form is illegal: It lacks the required OMB approval, OMB control number, and Paperwork Reduction Act notice.]

Have all travelers become convicted criminals subject to court supervision, who have to apply in advance for permission from the government every time they want to travel?

And does the US government have extraterritorial jurisdiction over travel worldwide?

Apparently so, at least in the eyes of the Department of Homeland Security.

Case in point: The National Vetting Center (NVC).

The NVC was established pursuant to President Trump’s February 2018 executive order NSPM-9. The “vetting” in the name is what President Trump has referred to as “extreme vetting” of immigrants and non-US citizens visiting or transiting the US. The first use of the NVC will be to “vet” citizens of countries in the US Visa Waiver Program applying for ESTA permits (online visas) to travel to the US.

The NVC is an inter-departmental body coordinated by a DHS component, US Customs and Border Protection (CBP), and this week the DHS has published a Privacy Impact Assessment (PIA) and released a redacted version of the  Implementation Plan for the NVC.

Here’s how the DHS describes the purpose and role of the NVC:

Every day, the U.S. Government determines whether to permit individuals to travel to and enter the United States…  and consider other actions…. The U.S. Government has developed several different processes and procedures to evaluate an individual’s suitability for access to the United States or other travel- or immigration- related benefits against information available to the U.S. Government (generally referred to as “vetting”)….Creating, maintaining, and facilitating the operation of that process is the primary mission of the NVC.

As even this summary self-description shows, the NVC is founded on a fundamental disregard for human and Constitutional rights.

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Dec 03 2018

Smile, travelers! You’re on candid DHS cameras.

The Department of Homeland Security has posted the latest update to a series of Privacy Impact Assessments attempting to whitewash the invasions of privacy and human rights inherent in a comprehensive system of automated facial identification of travelers.

The latest PIA reveals more than the DHS has previously admitted about the nature and scope of its planned use of automated facial ID technology.

The DHS plans to use image data aggregated from commercial surveillance systems operated by airlines and airports, as well as DHS cameras, including non-obvious cameras, to identify air travelers (including both domestic and international travelers), international ferry and cruise passengers, and travelers crossing US land borders in vehicles or on foot.

Automated identification of travelers based on facial images would be used as the basis for who is, and who is not, allowed to travel, based on travel histories and algorithmic “risk assessments” that form the US counterpart of, and predecessor to, China’s control of  travel and other activities through facial recognition and “social credit” scoring.

The latest PIA makes a variety of claims about how the risks to privacy and human rights inherent in this scheme will purportedly be “mitigated”. Some of these “reassurances” are implausible, while others are already contradicted by the facts on the ground. And none of them would cure some of the ongoing violations of Federal law in current DHS practices.

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Oct 15 2018

TSA announces “biometrics vision for all commercial aviation travelers”

Today the US Transportation Security Administration released a detailed TSA Biometric Roadmap for Aviation Security & the Passenger Experience, making explicit the goal of requiring mug shots (to be used for automated facial recognition and image-based surveillance and control) as a condition of all domestic or international air travel.

This makes explicit the goal that has been apparent, but only implicit, in the activities and statements of both government agencies and airline and airport trade associations.

It’s a terrifyingly totalitarian vision of pervasive surveillance of air travelers at, quite literally and deliberately, every step of their journey, enabled by automated facial recognition and by the seamless collaboration of airlines and airport operators that will help the government surveil their customers in exchange for free use of facial images for their own business purposes and profits.

The  closest contemporary counterpart to what the TSA envisions for the USA is the pervasive surveillance and control of travelers in China through automated facial recognition by the Public Security Bureau.

Read More

Oct 03 2018

3rd Circuit to reconsider impunity of TSA checkpoint staff

Good news: The 3rd Circuit Court of Appeals has decided to reconsider whether, as a panel of that court decided earlier this year, TSA checkpoint staff should have legal impunity to assault or otherwise violate the rights of travelers without consequences.

When it was issued in July 2018, we said that “The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.” There was a well-argued dissent by one of the three members of the panel.

The majority of the panel recognized that the job of TSA checkpoint staff is to search travelers, but then somehow managed to conclude that they aren’t “officer[s] of the United States who [are] empowered by law to execute searches.” The majority of the panel also went outside the factual record to base their decision on false speculation that TSA checkpoint staff don’t conduct searches for general law enforcement purposes.

Based on these arguments and “facts”, the panel majority found that TSA staff are immune from lawsuits for travelers, even if they admit to assaulting travelers.

The decision by a majority of the judges of the 3rd Circuit to grant rehearing en banc in the case of Pellegrino v. TSA voids the original opinion by a three-judge panel. The appeal will now be re-argued de novo, after new briefing, before all of the judges of the 3rd Circuit.

Let’s hope that the full court gets it right this time, and recognizes that TSA checkpoint staff are not above the law.

Oct 01 2018

Yes, the DHS wants mug shots of all air travelers

A new report by the DHS Office of Inspector General (OIG) gives perhaps the most detailed official picture to date of the US government’s plans for ed biometric identification, tracking, and control of international air travelers through automated facial recognition.

Contrary to specious claims in DHS propaganda that the current rollout of mug-shot machines at departure gates at airports across the country is “only a test,” the DHS OIG reports that US Customs and Border Protection (CBP) plans to expand the mug shot and automated facial image recognition program from 6 million air travelers in 2018 to 60 million in 2019, 120 million in 2020, and 129 million — 100% of international airline departures from the US — by 2021.

But that’s not all. “Over time, the program plans to … incrementally deploy biometric capabilities across all modes of travel — air, sea, and land — by fiscal year 2025,” according to the OIG report.

The scope of these plans should make clear that the only thing being “tested” is whether travelers will submit to this program, not whether it is justified or what interests it serves.

The OIG report mentions that US citizens have been “allowed” to opt out of the airport mug shot “pilot program “, but doesn’t say whether they were told they had a right to do so:

CBP allowed U.S. citizens to decline participation in the pilot. In such cases, CBP officers would permit the travelers to bypass the camera and would instead check the individuals’ passports to verify U.S. citizenship. When a U.S. citizen opted to participate in the pilot but did not successfully match with a gallery photo, the CBP officer would examine the individual’s passport but did not collect fingerprints. We observed biometric screening at four airports — a total of 12 flights — during our audit and witnessed only 16 passengers who declined to participate.

[Note the absence of any apparent notice that US citizens can “opt-out”.]

In preparing their report, OIG staff “met with a number of external stakeholders, including the Airlines for America trade association, Delta Airlines, JetBlue Airlines, and British Airways.” Notably, however, OIG made no attempt to consult consumer, civil liberties, or human rights organizations or to consider their objections to mandatory mug shots.

The only objections noted in the OIG report came from airlines and airport operators. But it would be a mistake to interpret this as “resistance” from the airline industry to biometric surveillance of airline passengers through automated facial recognition.

The OIG report makes clear that the only thing being disputed by airlines and airports is who will pay for equipment and staff, not whether these systems will be deployed: Read More