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The Identity Project

Category Archives: Surveillance State

May 08 2014

Court to “review” TSA’s use of virtual strip-search machines

As we’ve noted previously, the US Court of Appeals for the 11th Circuit has scheduled oral arguments June 4th in Miami as part of its “review” of the TSA’s use of virtual strip-search machines. The Court may decide on the day to close portions of the argument to the public, but has overruled the latest objections of the TSA, which claimed that any oral argument would necessarily reveal “secrets” that would jeopardize aviation security.

Jonathan Corbett will be speaking for himself, pro se, before the Court of Appeals, as he has done throughout the tortured history of his lawsuit.  Mr. Corbett has posted the latest round of appellate briefs in Corbett v. TSA, which provide a case study of how the TSA has sought to evade judicial review of its actions even when they involve extra-judicial restrictions on the fundamental rights of US citizens, residents, and visitors.

Corbett v. TSA charges that the TSA is engaging in unreasonable, suspicionless, warrantless, and unconstitutional searches of travelers. The case was originally filed in 2010 in U.S. District Court. But the TSA successfully argued that challenges to the Constitutionality of TSA orders, such as those requiring travelers to submit to either naked scanners (“advanced imaging technology”) or manual groping of their genitals (“enhanced pat-downs”), can only be heard by the Courts of Appeals. After the Supreme Court declined to review that jurisdictional finding, Mr. Corbett refiled his case in the Court of Appeals as a “petition for review” of the TSA’s (secret) orders.

The TSA’s claim is that the Court of Appeals can only review the “administrative record” submitted by the TSA itself. There is no trial, discovery, cross-examination, or adversary fact-finding process in the appellate court. The TSA can pick and choose what evidence to submit for review.  Portions of that evidence have been shown to Mr. Corbett (on condition that he not discuss them publicly), but other portions have been submitted to the Court of Appeals ex parte and under seal. Mr. Corbett doesn’t know what they allege, and has no way to know what secret arguments or allegations he should be trying to rebut.

In a separate case, the Court of Appeals for the D.C. Circuit ruled that the TSA had violated the Administrative Procedure Act by failing to conduct a formal “rulemaking” concerning its use of virtual strip-search machines. Such a rulemaking must include notice of the proposed rules, an opportunity for the public to comment on them, and consideration of those public comments by the TSA before the rules are finalized.

Twenty months after being ordered to do so by D.C. Circuit Court, the TSA published proposed vitrtual strip-search “rules” and provided an opportunity for public comments.  More than 5,000 people and organizations submitted comments, including the Identity Project. Almost all of the commenters objected to the TSA’s virtual strip-searches and groping of travelers.

More than a year after the close of the comment period, the TSA has yet to publish any analysis or response to these public comments, or any final “rules”. And although the TSA is required by the Administrative Procedure Act to consider these public comments as part of its rulemaking, the agency doesn’t appear to have submitted any of them to the 11th Circuit as part of the “administrative record” to be reviewed in Corbett v. TSA.  This appears to be either an admission that the public comments have been ignored in the TSA’s decision-making, in flagrant violation of the APA, or an equally blatant attempt to deceive the 11th Circuit about the actual content of the record before the TSA.

May 07 2014

How do FBI agents decide who to put on the “no-fly” list?

Dr. Rahinah Ibrahim still doesn’t know why she was placed on the “no-fly” list, even after the trial of her lawsuit against the US government and US District Judge William Alsup’s finding that Dr. Ibrahim was denied the due process of law which was her right.

At trial, the government admitted that back in 2004, FBI agent Kevin Kelly — fresh off a stint on the FBI’s mosque-watching detail — mistakenly left blank a negative check-off box on an internal form and thereby “nominated” Dr. Ibrahim for the no-fly list. By admitting that this was a “mistake”, the government successfully evaded having the court reach or review either (a) the criteria (if any) for “no-fly” decisions or (b) the factual basis (if any) for any of the government’s other decisions or actions with respect to Dr. Ibrahim.

Judicial review of the factual basis and legal criteria for a “no-fly” order remains for future no-fly cases, with that of Gulet Mohamed likely to be the next to go to trial.

Contrary to some reports, Judge Alsup didn’t order the government to take Dr. Ibrahim’s name off the no-fly list or tell her why it put her on multiple other “watchlists” including the “selectee” list to which Agent Kelly intended to nominate her.  Despite previous claims that government agencies and agents only put people on the “no-fly” list if they are able to articulate some reasonable basis for a suspicion of terrorism, we now know that there is a secret exception to this (non-binding) watchlisting criterion, pursuant to which Dr. Ibrahim and other non-suspects are also watchlisted.

Nor does Judge Alsup’s decision mean that Dr. Ibrahim is now free to travel. The US still won’t give her a visa to return to the US, on the basis of secret allegations that she “has engaged in terrorist activity” (contrary to the government’s admission and Judge Alsup’s finding to the contrary) and on the basis of a “guilt by family association” law and some other  secret allegations that apparently relate to her husband.

Judge Alsup ordered the government to tell Dr. Ibrahim her status on the “no-fly” list, which it did. As of April 15, 2014, Dr. Ibrahim wasn’t on the “no-fly” list. And the government was ordered to correct the consequences of the one specific mistake it had admitted, FBI Agent Kelly’s failure to check the “not nominated for the no-fly list” box on the form.

But Judge Alsup’s decision leaves the government free to leave Dr. Ibrahim on any other “watchlists” (including those which function as de facto secondary no-fly lists), and/or put Dr. Ibrahim back on the “no-fly” list itself, at any time, for any reason or no reason, as long as those actions aren’t a direct result of Agent Kelly’s mistaken failure to check the right box on the nomination form nine years ago.

Visa denials aren’t normally subject to review by US courts. Neither Dr. Ibrahim’s placement on watchlists other than the no-fly list, nor the de facto banishment from the US of her US-citizen daughter, were raised in the complaint in this case, or addressed in Judge Alsup’s decision.  Nor could they have been, since they only occurred or became known later.

Judge Alsup’s finding that the “no-fly” system lacks due process is a step forward, but far from a happy ending or one that redresses the grievances of Dr. Ibrahim or her family.

What we did learn from this case is that the real decision to prevent Dr. Ibrahim from traveling was made by a single FBI agent. No matter how obvious Agent Kelly’s “mistake” was, nobody reviewed or corrected it.

So in practice, “no-fly” decisions are made by individual FBI field agents. How do FBI agents use their power to decide who is and who isn’t given government permission to fly?

Since 9/11, one of the FBI’s highest priorities has been to recruit Islamic-American informers. Not surprisingly, FBI agents have repeatedly used or threatened to use their “no-fly” nomination authority to coerce American Muslims into becoming FBI informers.

In 2010, FBI agents tried to persuade US citizen Yonas Fikre to become an FBI informer. After Mr. Fikre refused to “cooperate” with the FBI agents, they put him on the “no-fly” list while he was visiting relatives overseas, consigning him to detention and torture in the UAE when his visa expired. In 2012, after being allowed to leave the UAE (but not to return home to the US, since he was still on the US “no-fly” list)  Mr. Fikre applied for political asylum in Sweden.  Shortly thereafter, in further retaliation (and/or to make sure he never tries to come home to the US, even if his asylum request is eventually denied), the US indicted Mr. Fikre for failing to report routine money transfers from the US to family members in the UAE and Sudan. Mr. Fikre is also pursuing a civil lawsuit in the US against those US government officials complicit in his no-fly listing, arrest, and torture.

Was this an isolated case? No. Last year, Muhammad Tanvir filed a lawsuit against the FBI and other government agencies and agents for putting him on the “no-fly” list in retaliation for declining to become an FBI informer. Mr. Tanvir is a Muslim, a permanent US resident (green-card holder), and a shopkeeper in New York City.  On April 22nd, 2014, an amended compliant was filed in the case (Tanvir et al. v. Holder et al.). Three other Muslims from the tri-state area of New York, New Jersey, and Connecticut, one a US citizen and two others lawful permanent residents,  have joined Mr. Tanvir in making similar claims.

These abuses are an inevitable result of having decisions about whether we are allowed to exercise our rights be made in secret at the discretion of law enforcement officers or administrative officials. Decisions on whether to restrict the exercise of rights, including the right to travel, should be made by judges, not cops, through existing legal procedures for the issuance of injunctions or temporary restraining orders.

Apr 05 2014

TSA fines “Naked American Hero” $500

The TSA has assessed a $500 civil penalty against “Naked American Hero” John Brennan, who removed all his clothes at a TSA checkpoint at the Portland, Oregon, airport in 2012 to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices.

Mr. Brennan was arrested at PDX airport by Portland police on April 17, 2012, but he was found not guilty of criminal charges in June 2012 by a county judge on the grounds that, under local Portland ordinances and Oregon state law, nakedness for purposes of political protest is not a crime.

After Mr. Brennan’s acquittal, a TSA investigator proposed that he be penalized $1000 for “interfering” with TSA screening.  In accordance with a memorandum of understanding between the TSA and the Coast Guard, the TSA has delegated its administrative authority to determine whether to assess such a penalty, and if so, the amount of the penalty, to an “Administrative Law Judge” (ALJ) from the U.S. Coast Guard.

(Why the Coast Guard? The TSA doesn’t have any ALJs on its own payroll, so it contracts out their functions with respect to TSA decisions to the Coast Guard as a parallel component of the DHS.)

Coast Guard ALJ George J. Jordan presided over a formal administrative hearing which we attended and reported on in Portland on May 14, 2013.

Almost a year after that hearing and almost two years after the underlying events at the airport, ALJ Jordan has finally issued an initial decision to assess a $500 penalty (reduced from the $1000 proposed by the TSA investigator) along with a set of findings of fact and conclusions of law.

Contrary to some headlines, no court has yet considered, much less upheld, the TSA’s decision, and no independent third party has yet reviewed, much less ruled on, the TSA’s complaint against Mr. Brennan.

Both the terminology and the TSA’s outsourcing of its own internal decision-making to Coast Guard employees make it easy to misunderstand what has happened.

Just as the checkpoint staff the TSA calls “Transportation Security Officers” are not law enforcement officers, so-called “Administrative Law Judges” are not judges or officers of any court. The “formal administrative hearing” was held in a courtroom (rented for the day by the TSA from the U.S. Bankruptcy Court), but it was not a trial and was not a proceeding of any actual court.

ALJ Jordan was acting not as an independent party, but as a DHS employee subcontracted by the TSA (only because the TSA doesn’t have its own ALJs, not because this was required) to make the TSA’s own initial, internal decision.  ALJ Jordan’s decision was issued on behalf of, and under the authority of, the TSA itself, as the TSA’s own initial decision on the complaint of its own investigator.

Almost two years after he was arrested, Mr. Brennan’s only day in any court has been when he was acquitted of all criminal charges in county court. ALJ Jordan’s initial decision on behalf of the TSA will be subjected to further internal review by the head of the TSA or his designee. Only after that review will the TSA’s final internal decision, as made by the head of the agency or his designee, be subject to review by any court or outside body.

ALJ Jordan explicitly recognized that he had no authority to consider whether Mr. Brennan’s conduct was protected by the First Amendment or whether the TSA’s regulations or actions were otherwise invalid. Only after the ALJ’s initial decision is reviewed internally within the TSA, and the TSA issues its final order, will Mr. Brennan be entitled to petition a Circuit Court of Appeals to review and make initial rulings on those issues.

Read More →

Apr 02 2014

Interpol renews push for worldwide ID-based travel controls

Despite admitting that it was “too soon to speculate about any connection between these stolen passports and the missing plane,” Interpol officials did not hesitate to use the fact that two passengers on the missing Malaysian Airlines flight used stolen passports as the opportunity to step up its longstanding campaign for a global travel control system in which all travelers worldwide will be required to: (a) show standardized government-issued travel credentials, and (b) have those credentials “vetted” against a global blacklist maintained by Interpol, before being given permission to buy an airline ticket or “open a bank account, rent a car or check into a hotel”.

Read More →

Mar 28 2014

UN Human Rights Committee calls on US to effectuate the ICCPR

Following two days of face-to-face public questioning (Day 1, Day 2) of a US government delegation earlier this month, the UN Human Rights Committee (UNHRC) has published its concluding observations on US implementation of the International Covenant on Civil and Political Rights (ICCPR).

The UNHRC’s concluding observations include a strong endorsement of our call for Congress to enact legislation to “effectuate” the ICCPR by making the treaty enforceable by US courts, particularly where violations of the ICCPR do not constitute violations of any other US law.  As one of its key recommendations, the UNHRC says that:

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

At the end of a press conference announcing the UNHRC’s concluding observations concerning the US, UNHRC Chairperson Nigel Rodley had this to say about the need for judicial enforcement and accountability for human rights violations:

Of course they [the US government’s representatives] stressed the improvements they’ve made, so that people wouldn’t be doing the same things in the future. But absolutely not — there was no suggestion that any of those responsible for any of the past criminal violations of our Covenant [i.e. the ICCPR] would be brought to justice or that its victims would have access to their day in court.

The UNHRC’s concluding observations recommend that, “The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.”

We won’t hold our breath for Congress to act, but we hope that this recommendation from the only independent body officially empowered to review the state of human rights treaty compliance by the US will prompt members of Congress to consider sponsoring legislation to create a cause of action for violations of the ICCPR and give US courts jurisdiction to hear such complaints.

The UNHRC also criticized US mass surveillance, but mentioned only communication surveillance and metadata and not the closely related issue of NSA and DHS mass surveillance of travel metadata.

Mar 14 2014

UN Human Rights Committee review of US implementation of the ICCPR: Day 2

[US government delegation listens to questions from the UN Human Rights Committee. (Click image for larger version.) At the head table, left to right: Scott Shuchart (Senior Adviser, Office of Civil Rights & Civil Liberties, DHS),  Megan Mack (Officer for Civil Rights & Civil Liberties, DHS), Bruce Swartz (Deputy Assistant Attorney General, DOJ), Roy Austin, Jr. (Deputy Assistant Attorney General, Civil Rights Division, DOJ), Mary McLeod (head of the US delegation and Principal Deputy Legal Adviser, Department of State). US Army Brigadier General Richard Gross (Legal Counsel to the Chairman of the Joint Chiefs of Staff, Department of Defense) in profile at left in front of Ms. Mack.]

Questioning of a US government delegation by the UN Human Rights Committee (UNHRC) concerning US implementation of the International Covenant on Civil and Political Rights (ICCPR) continued today in Geneva.

Many of the same issues as were raised in yesterday’s first round of questions from members of the Human Rights Committee continued to be pursued in today’s follow-up questioning, along with other concerns including NSA surveillance and collection of communications metadata.

But as the day went on, there was an increasing focus on the “meta-issues” of applicability, enforceability, and remedies and redress for violations of the rights guaranteed by the ICCPR:

  • Does the US accept that everyone subject to US jurisdiction is entitled to human rights, as the Human Rights Committee and almost every other party to the ICCPR (except Israel) interprets the treaty to mean?  Or does the treaty only apply to US actions within its borders, allowing the US to violate human rights abroad with impunity?
  • In light of the US interpretation of the ICCPR as not being “self-executing”, and the failure of Congress to enact effectuating legislation to enable the treaty to be invoked in US courts, what “effective” means of judicial redress (as required by the ICCPR itself) are available to those whose human rights are violated, especially if those violations of the ICCPR don’t also constitute violations of domestic US law?

This latter point, raised today by at least four members of the UNHRC, was one that we had taken the lead in asking the UNHRC to address, through both an initial and a supplemental submission to the UNHRC in advance of this week’s session.

The head of the US government delegation, Mary McLeod of the State Department, responded to these questions today by telling the UNHRC that the US “sees no need” to allow the ICCPR to be invoked in US courts.

Her implicit message, and that of the other members of the US delegation in their responses to questions about specific issues, was that internal administrative measures provide an adequate substitute for judicial oversight or enforcement of human rights obligations.

But many of those claims about administrative “remedies” rang hollow:

  • DHS Officer for Civil Rights & Civil Liberties Megan Mack, who has been officially designated as responsible for implementation of the ICCPR by the DHS, said that her office “enforces” DHS administrative standards for use of deadly force by US Customs and Border Protection officers.  But she didn’t mention that her office is purely advisory, and has no authority to order any sanctions against CBP officers or any other DHS employees or contractors.
  • Ms. Mack told the UNHRC that her office “receives complaints” of violations of the ICCPR by DHS components, which is true. But she didn’t tell the UNHRC that  some of those  complaints, including some of ours, have been pending with her office for years without any response.  Nor did she mention that her office has claimed that violations of the ICCPR were “authorized” by US law, suggesting a profoundly mistaken belief that the US can derogate from its treaty obligations by enacting domestic statutes.
  • Roy Austin, Jr., Deputy Assistant Attorney General and head of the Civil Rights Division of the Department of Justice, told the UNHRC how important it is to ensure that people who believe their human rights have been violated have a place to complain, and receive a response to their complaint.  But he didn’t disclose to the UNHRC that — as we learned in response to one of our FOIA requests — his Department has no record of ever having designated a point of contact for such complaints, or of ever having responded to any of them.
  • Deputy Assistant Attorney General Bruce Swartz talked about Attorney General Holder’s policy that his “Department will not defend an invocation of the [state secrets] privilege to conceal … administrative error”, but didn’t mention that A.G. Holder personally signed a sworn declaration to the court in the first “no-fly” trial, explicitly quoting that policy while invoking the state secrets privilege to try to prevent the plaintiff, who the government admitted posed no danger, from learning or obtaining redress for her having been placed on the “no-fly” list as a result of what the government admits was a mistake by an FBI agent who checked the boxes on a form he was supposed to un-check and un-chekked the boxes he was supposed to check.

Throughout the day, there was much talk of “guidelines” and “policies”, but little talk of laws or of whether practices conform to aspirational administrative “guidance”.

The UNHRC is expected to issue its report on US implementation of the ICCPR , in the form of “concluding observations” from its review, on March 27th.

Mar 13 2014

UN Human Rights Committee review of US implementation of the ICCPR: Day 1

Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.

The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.

With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the  the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.

Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”.  Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.

The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.

The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination  about its human rights record.

For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.

But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end. Read More →

Mar 13 2014

Public questioning of US government on human rights

Today and tomorrow in Geneva (early Thursday and  Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).

Here’s the schedule of the webcast public questioning:

  • Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
  • Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
  • tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)

This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.

We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:

Updates:

Feb 25 2014

DHS uses email intercepts to question US citizen about her sex life

At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.

That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.

What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.

And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.

No, we’re not making this up.

Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.

A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland.  After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.

Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.

Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”

Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.

On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.

According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”

Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.

Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 – 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:

You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.

“None of this was true” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “the removal action did not proceed. His passport was returned to him and he left the United States at the end of August of 2012 and has not returned.”

What are we to make of this episode?

First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime.  In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.

Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA.  We know that the NSA is copying and archiving as much email as it can get its hands on.  But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?

We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.

Feb 24 2014

What’s wrong with mass surveillance of travel metadata?

In a live online question-and-answer session last month, NSA whistleblower Edward Snowden gave this explanation of what’s wrong with pervasive, suspicionless tracking and logging of our activities:

What’s the worst and most realistic harm from bulk collection of data?…

The worst and happening-right-now harm of bulk collection — which again, is a euphemism for mass surveillance — is two-fold.

The first is the chilling effect, which is well-understood. Study after study has show that human behavior changes when we know we’re being watched. Under observation, we act less free, which means we effectively *are* less free.

The second, less understood but far more sinister effect of these classified programs, is that they effectively create “permanent records” of our daily activities, even in the absence of any wrongdoing on our part. This enables a capability called “retroactive investigation,” where once you come to the government’s attention, they’ve got a very complete record of your daily activity going back, under current law, often as far as five years. You might not remember where you went to dinner on June 12th 2009, but the government does.

The power these records represent can’t be overstated. In fact, researchers have referred to this sort of data gathering as resulting in “databases of ruin,” where harmful and embarrassing details exist about even the most innocent individuals. The fact that these records are gathered without the government having any reasonable suspicion or probable cause justifying the seizure of data is so divorced from the domain of reason as to be incapable of ever being made lawful at all, and this view was endorsed as recently as today by the federal government’s Privacy and Civil Liberties Oversight board.

Fundamentally, a society in which the pervasive monitoring of the sum of civil activity becomes routine is turning from the traditions of liberty toward what is an inherently illiberal infrastructure of preemptive investigation, a sort of quantified state where the least of actions are measured for propriety. I don’t seek to pass judgment in favor or against such a state in the short time I have here, only to declare that it is not the one we inherited, and should we as a society embrace it, it should be the result of public decision rather than closed conference.

Most of the reporting on Mr. Snowden’s revelations has focused on the NSA’s collection and use of communications “metadata”:  not the content of our phone calls and email messages, but information about the movements of those messages, such as from whom, to whom, and when they were sent.

But communications (message movement) metadata isn’t the only category of movement metadata being collected by the NSA.  Documents leaked by Mr. Snowden reveal that the NSA is also hacking into airline reservation systems to collect what we would call, “travel metadata“: information about the movements of our physical bodies, such as from where, to where, and when we traveled. And of course, the DHS is also collecting this sort of data, and compiling it into lifetime “personal travel history” files.

Do you want the government to be able to demand an explanation, years later, of every trip you have taken, when, where, why, and with whom, even if at the time it was a perfectly legal journey and you were under no suspicion?  We’ve been questioned by US border guards about innocuous years-old entries in our Automated Targeting System files, and it’s a disturbing experience. (It would have been even more creepy if we hadn’t previously requested and obtained our files, so we knew at least part of what was in the records about which we were being questioned.) That potential is inherent in any collection and retention of travel metadata.

Both message movement metadata and personal movement metadata are important, and neither should be the subject of government surveillance without a warrant supported by probable cause.

You might think that information about the movements of our physical bodies would be considered more intimate, and subject to greater protection, than information about the movements of our messages. In the US, however, none of the limited protections against communications surveillance apply to travel surveillance, except to the very limited extent that reservation messages are protected by wiretapping laws.

We’ll be in Geneva next month talking to the UN Human Rights Committee about how US government surveillance and control of travel violates the International Covenant on Civil and Political Rights. Other human rights organizations including Privacy Internatrional and Human Rights Watch will be talking to the Human Rights Committee about  NSA surveillance of communications metadata. We think the same International Principles on the Application of Human Rights to Communications Surveillance should be applied to travel surveillance and travel metadata collection.