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.

AFI is one several new user interfaces and front-ends to TECS data being developed for use by multiple DHS components including US Customs and Border Protection (CBP) and Immigration and Customs Enforcement  (ICE) as part of a long-term “TECS modernization” project.

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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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.

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.]

A Federal Court of Appeals has found that the latest version  of Michigan’s “Sex Offender Registration Act” (SORA), including restrictions on where registrants can live, work, or “loiter”, constitutes a form of punishment intended to inflict pain or unpleasant consequences. “More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment,” according to the 6th Circuit Court of Appeals.

Both Federal and state governments have enacted a variety of misleadingly misnamed “sex offender registration” laws.

Despite being labeled as applying to “offenders”, these laws typically apply also to ex-offenders who have completed their entire sentence of incarceration, parole, and /or probation. These ex-offenders are subject to few legal restrictions except those of the “sex offender registration” laws and the no-gun list.

And while they are described as “registration” laws, these laws almost invariably require more than mere registration.  This parallels the government’s typical euphemistic use of the term “watchlists” for what are, in fact, blacklists or blocklists.

“Registration” laws typically restrict and regulate the exercise of First Amendment rights and rights recognized by international human rights law, including the rights to freedom of speech and freedom of movement, of people who are required to register.  In several states, these laws restrict free speech by prohibiting use of unregistered Internet access accounts or “identifiers” (whatever that means) by ex-offenders who are subject to these laws.  In a growing number of states, these laws restrict freedom of movement and residence by prohibiting registrants from living or working within a specified distance of any school — a distance which, in a populated area with neighborhood schools, can prohibit registrants from legally living anywhere in a municipality or community, or force them to live in wilderness or wasteland encampments without water, sewer, or electric service in order to stay far enough away from any school.

As we have reported, a Federal District Court judge has issued a preliminary injunction prohibiting California from enforcing its requirement for registration of Internet service accounts and identifiers, and that injunction has been upheld by the 9th Circuit Court of Appeals. The lawsuit challenging the California law drags on, however, while the court keeps giving the state more time for its legislature to try to “fix” the law to make it Constitutional.

But in contrast to this judicial rejection of some “registration” laws that restrict ex-offenders’ free speech on the Internet, courts have upheld restrictions on registrants’ residency, employment, and movement against a variety of challenges. So we were especially pleased that last week’s opinion by the 6th Circuit  in Does v. Snyder recognizes that both the restrictions on movement and those on Internet speech in the Michigan SORA amount to “punishment”:

SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not prohibit the registrant from setting foot in the school zones…  But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:

Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point.

The John and Mary Doe plaintiffs in the Michigan lawsuit were convicted before the SORA law was enacted. The court found that, because the law imposed imposed retroactive “punishment” on the plaintiff, it was an unconstitutional ex post facto law as applied to the plaintiffs:

We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased…. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton)…. The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

The court didn’t reach the question of whether the law would be Constitutional as applied to people convicted after its enactment, but did express strong doubts about how it would rule in such a case:

As we have explained, this case involves far more than an Ex Post Facto challenge. And as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta. We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment consistent with this opinion.

Today we submitted formal comments to U.S. Customs and Border Protection objecting to its proposal to start asking visitors to the USA to list all their “social media identifiers”. USCBP (a division of the Department of Homeland Security) proposes to add this question to the I-94W form for international visitors arriving in the U.S., and to the online ESTA (Electronic System for Travel Authorization) application form for vistors form countries in the U.S. Visa Waiver Program:

Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

We’ve previously argued that the entire ESTA scheme is an illegal de facto visa requirement that violates the rights of foreign visitors to the U.S. But this proposal would make it even worse.  Hundreds of individuals and more than two dozen organizations have already denounced this proposal. You can submit your own comments here until midnight tonight, Eastern time. If you agree with us that this is a terrible idea, feel free to endorse our comments or use them as a template:

We oppose this absurd and un-American questioning of foreign visitors to the U.S., and urge USCBP to withdraw this proposal.

Both freedom of speech and freedom of movement (“the right of the people… peaceably to assemble”) are recognized by the First Amendment to the U.S. Constitution. These rights are also recognized in Article 12 (freedom of movement) and Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by, and binding on, the U.S. In addition, Article 17 of the ICCPR recognizes a right to protection against “arbitrary or unlawful interference with … privacy … or correspondence.”…

The essence of human rights law is that these rights are recognized as universal rights to which all people are entitled regardless of their citizenship or nationality (if any). This proposal … treats foreign visitors to the U.S. as lacking these human rights, and thus implicitly as less than human… This would reinforce the impression around the world that the U.S. does not believe in or respect human rights, but regards these universal human rights as “privileges” granted by the government and enjoyed only by U.S. citizens. We do not want to live under such a government or in such a world…

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