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The Identity Project

Category Archives: Surveillance State

Nov 20 2012

TSA spreads FUD on “Opt Out and Film” week

This week is national Opt Out and Film Week. Across the country, travelers will be documenting the TSA’s practices of groping the genitals of anyone who wants to exercise their right to travel without “voluntarily” submitting to an x-ray or RF virtual strip search.

The TSA even acknowledges Opt Out and Film Week in its official blog, where Blogger Bob sez:

We’re also aware of the Opt Out and Film week, where some are planning on opting out of the body scanner and then filming their experience. TSA respects passengers rights to exercise freedom of speech as well as the rights of fellow travelers trying to get to their destination safely and without unnecessary delay. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances may.

That looks to us like an attempt to sow Fear, Uncertainty, and Doubt (FUD) on clear-cut Constitutional rights.

While the TSA has a history of improperly calling local cops on photographers (for which we are currently suing both the TSA staff and the police who acted on their bogus complaints), it’s not true that  “local laws, state statutes, or local ordinances may” restrict the exercise of First Amendment rights.

As we say in our cheat sheet, What you need to know about your rights at the airport:

You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you.

Nov 17 2012

Air Canada lies about government access to reservations

Airlines should have been defending their customers against government demands for information. Instead, they have chosen to collaborate with governments not just in surveillance and violation of the rights of their customers, but in the cover-up of those practices and the attempt to keep travelers from realizing their extent.

We got a letter from Air Canada yesterday informing us that, “Your personal information was not disclosed to a government agency with respect to the flights mentioned in your Request…”

If we didn’t know better, this would be reassuring. But it’s not true.

As it happens, we had gotten another letter earlier this week from the Canadian Border Services Administration (CBSA), containing portions of its records of Passenger Name Record (PNR) and Advance Passenger Information (API) data about our flights on Air Canada, which CBSA had obtained from computerized reservation systems and Air Canada’s Departure Control System (DCS):

[Excerpt from Air Canada API and PNR data from the CBSA “Air Targeting” system]

The information in the CBSA Air Targeting files includes both PNR and API data for Air Canada flights, despite the claim that, “Air Canada is not in a position to provide you with APIs records and logs for the flights listed in your Request since no such APIs records were created.”

And earlier this year, in the last batch of information disclosed by US Customs and Border Protection in response to our Privacy Act and FOIA lawsuit for records from the CBP Automated Targeting System, we received copies of two PNRs that CBP had obtained from different reservation systems for those same Air Canada flights:

[Excerpt from Air Canada PNR from the USCBP Automated Targeting System]

[Excerpt from Air Canada & Swiss International PNR from the USCBP Automated Targeting System]

Read More →

Nov 16 2012

The facts on the ground in Arizona

“Don’t trust, and don’t verify“, would seem to be the motto of authorities in Arizona when it comes to demands for documents and “proof” of citizenship and status — if your skin is brown.

Arizona’s SB1070 requires police, in certain circumstances, to “attempt” to determine your immigration status. But that obligation on the police does not create any obligation on individuals. In its initial decision on SB1070, the Supreme Court made clear that this provision of the law cannot Constitutionally be used as the basis to detain people without some other lawful basis.

Actions on the ground in Arizona, however, suggest that in practice the burden of proof is being placed on (brown-skinned) Arizonans to prove that they are “not illegal”, on pain of prolonged detention on the basis of mere suspicion (and regardless of the weight of the actual evidence).

The Phoenix New Times has been following the case of Briseira Torres.  She was born (at her mother’s home, which the Department of State seems to find inherently suspicious) in Arizona, and her birth was registered (albeit late, as is common for home births) with the Arizona Office of Vital Records.

One doesn’t have to be registered with the government to be born, or to be a US citizen. But that didn’t stand in the way of Arizona and US authorities.  When Torres went to the Federal Building to apply for a passport for her daughter, after submitting a copy of her own birth certificate as evidence of her daughter’s US citizenship by birth, the State Department employees at the passport office called in Arizona state law enforcement officers to help interrogate Ms. Torres.

Eventually, on the theory that the original registration of Ms. Torres’ home birth had been falsified, the Feds turned her over to state authorities, who had her indicted (withholding from the grand jury the state’s official record of her valid birth certificate, and falsely claiming to the grand jury that her birth registration had been “cancelled”)  for fraud.  She was jailed for 4 1/2 months, during which time she was separated from her child and lost her home and car because she couldn’t make the payments on them, before she got a lawyer and the state withdrew the charges.

Now, to try to retroactively justify their deprivation of Ms. Torres’ rights, state officials have initiated a newly-created administrative process to revoke the registration of her birth.

In other words, the state of Arizona wants to “un-birth” Ms. Torres — at age 31.

We’re glad Ms. Torres has a lawyer, and we hope she collects substantial damages from both Arizona state and county officials and the State Department “special agent” who initially detained her, called in the state cops, and eventually turned her over to their custody.

This incident began with Ms. Torres being called in to answer questions about her passport application for her daughter. The role of the Passport Office and other State Department employees shows exactly why we are so concerned about the State Department’s proposed new questionnaire for passport applicants.

Government “un-birthing” of citizens isn’t the only strange thing going on in Arizona, unfortunately.

At the Deconcini border crossing between the central business districts of Nogales, Arizona, and Nogales, Sonora, US Customs and Border protection is requiring some “trusted travelers” to submit to interrogation by allegedly lie-detecting robots developed (with DHS grant money, we presume) by the National Center for Border Security and Immigration at the University of Arizona.

If the robot thinks you are lying, “a more through interview would follow”, according to news reports.

But Ms. Torres’ example shows that if a human Fed in Arizona thinks you are lying about your papers, they will detain you and turn you over to the state of Arizona to be locked up without bail for months, without bothering even to look at your actual papers (not that you have to have any “papers” in the first place to be born or have rights).

In that light, we hope courts will look skeptically at the legality of prolonging the detention of a border crosser based on the statement of a semi-anthropomorphic animated robot that, “I think you are lying.”

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an  unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian  government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data.  Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing  whatever its oracle decrees.  In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it.  Just remember, as you study his presentation, that:

  1. “Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
  2. Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government.  Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.
Nov 01 2012

TSA wants airlines to “share” frequent flyer records

The DHS already has root access to airlines’ computerized reservation systems to “pull” passenger name records (PNRs), even for flights that don’t touch the US.

Airlines serving or even merely overflying the US are required to “push” Advance Passenger Information to CBP before each international flight, and Secure Flight Passenger Data to the TSA before each domestic flight, and receive individualized permission from DHS before issuing each boarding pass.

But that’s not enough for the TSA.  In a Bloomberg news story that appears to have been planted by the TSA as a trial balloon, the TSA suggests aggregating frequent flyer and identity data, across airlines, for storage by a private contractor and use by the TSA:

PreCheck’s structure makes it difficult to clear passengers on more than one airline, said Douglas Hofsass, the TSA’s assistant administrator for the office of risk-based security….

Some airlines are reluctant to share customer information with competitors, Hofsass said. They’ve indicated they’re willing to work with TSA, he said….

“Technically, we don’t have the ability right now, based on the way the eligibility requirements are transmitted to the individual carrier, the way those individuals opt in and the way those records come into us, to validate those individuals,” Hofsass said.

“We don’t have the ability to cascade that to other carriers when those individuals make reservations,” he said. “It doesn’t mean we don’t have an idea as to how we might solve that.”

The agency needs to turn to a private-industry partner who can … create a database of PreCheck fliers, said U.S. Representative Mike Rogers, who oversees the agency through his Transportation Security subcommittee.

“PreCheck” is the latest incarnation of the TSA’s “registered traveler” (“more surveilled and maybe less-mistrusted traveler”) program, currently open only to those members of airline frequent flyer programs invited to apply based on some secret scoring, according to TSA algorithms, of their frequent flyer profiles.

Frequent flyer data is already included in PNR data pushed to CBP for all international flights, but isn’t included in Secure Flight Passenger Data provided by airlines to TSA for domestic flights.  So if you aren’t known to have traveled abroad, or if you use a passport for international travel and some other ID (or no ID) for domestic flights so your domestic and international travel histories are harder to match, the TSA might not yet have a comprehensive dossier of everything you’ve done that’s linked to your frequent flyer account(s).

To the TSA, any incompleteness in the coverage of its travel panopticon is obviously a security (read: surveillance) loophole that needs to be closed.

Under US law, frequent flyer records are the property of airlines, not travelers, and the airlines are free to “share” them with each other, governments, or other third parties without customer notice or consent.

So there’s no legal barrier to the creation of such a master database of frequent traveler records.

However, if the government maintained a copy of the database, it would be subject to the requirements of the Privacy Act.  So outsourcing hosting of the database to a private aggregator (most likely one of the existing computerized reservation systems or other travel data aggregators and intermediaries) would be the architecture that maximizes the government’s easy access to the data while minimizing legal accountability.

Oct 03 2012

Government Surveillance of Travelers

For those attending today’s discussion of Government Survelliance of Travellers and the DHS “Automated Targeting System” (ATS) at the Brennan Center for Justice at NYU School of Law, or those who can’t make it but are interested in the topic, here are the slides from the presentation by Edward Hasbrouck of the Identity Project (PapersPlease.org), and links to additional references:

Today’s event is open to the public, so please join us if you are in New York and free at mid-day.

Sep 22 2012

“Automated Targeting System” briefing 10/3 at the Brennan Center

Identity Project consultant and policy analyst Edward Hasbrouck will give a brown-bag lunch presentation on the DHS “Automated Targeting System” and government surveillance and control of travelers on Wednesday, October 3, 2012, 12:30 – 2 p.m., at the Brennan Center for Justice, New York University School of Law, 161 Avenue of the Americas (6th Ave.), 12th Floor, New York (in SoHo, 1/2 block from the Spring St. station on the C and E subway lines).

Hasbrouck will give an introduction to the DHS “Automated Targeting System” (including examples of data from ATS records obtained through Privacy Act and FOIA litigation), its role in US government surveillance and control of travelers, and the civil liberties and human rights issues it raises.

The “Automated Targeting System” (ATS) is one of the largest of post-9/11 warrantless dragnet surveillance programs.  Built at a cost of more than $2 billion in government-mandated changes to commercial travel IT systems, to which DHS now has root access, ATS “ingests,”  archives, and mines complete mirror copies of all international airline reservations (“passenger name record“) data for travel to, from, or via the US. ATS records include where, when, and with whom you traveled; your IP address; what credit card was used; whether you asked for a kosher or halal meal; and whether you and your traveling companion asked for one bed or two in your shared hotel room.

While little known or debated in the US, ATS has been at the center of intense disputes with the European Union and Canada over US demands for access to travel reservation data from other countries.

Edward Hasbrouck works with the Identity Project on travel-related civil liberties and human rights issues. An award-winning travel journalist, blogger, and author, he also has 15 years of travel industry experience in airline reservations technology and travel agency  operations. Hasbrouck has testified before the TSA as well as the European and Canadian Parliaments on issues related to government access to airline reservations, and was the plaintiff in a recently-concluded Privacy Act and FOIA lawsuit seeking ATS records about himself as well as information about ATS data-mining capabilities.

The event is free and open to the press and the public.

Aug 21 2012

San Antonio public schools plan to make students wear radio tracking beacons

Unless the school board changes its mind, public school students at Jay High School and Jones Middle School in San Antonio, Texas, will be required to wear ID badges containing RFID chips (radio tracking beacons broadcasting unique ID numbers) when they come back to school next week.

Each of these schools has installed an array of “100 or more” RFID readers so that students’ movements can be tracked whenever and wherever they are on school premises. [Update: Interviewed on the Katherine Albrecht radio show, the president of the company supplying the equipment says that the chips have a read range of 70 feet, and that there are readers at least every 100 feet in the schools as well as in school buses.] To make sure students actually carry their RFID badges, they’ll have to use them for all purchases of school lunches as well as for mandatory attendance checks.

This will be one of the first times that anyone in the U.S. who isn’t a prisoner or a government employee or contractor has been compelled by any government agency to carry an RFID chip.

Tonight the elected Board of Trustees of San Antonio’s Northside Independent School District is hearing from students, parents, and other community members opposed to the RFID tracking scheme.

At the same time, a coalition of privacy and civil liberties organizations and experts including the Identity Project has issued a Position Paper on the Use of RFID in Schools calling for a moratorium on the use of the RFID chips for tracking of people. The position paper thus reiterates a point made by many of the same signatories in a 2003 Position Statement on the Use of RFID on Consumer Products. “RFID must not be used to track individuals absent informed and written consent of the data subject,” according to the 2003 statement.

Compulsory tracking by a government agency (a public school district) of the movements of individuals who cannot opt out or withdraw consent, and who are required to be in the school building where RFID readers have been deployed, is a worst-case scenario of how RFID technology shouldn’t be used.

Read More →

Aug 04 2012

Will the TSA ever follow any rules?

The TSA is a lawless agency, and its checkpoints are a domestic counterpart of Guantanamo:

A formal rulemaking wouldn’t prevent the TSA from adopting unconstitutional rules. But it would provide an opportunity for public review of proposed checkpoint rules or procedures, public submission of comments on them (such as, “These are unconstitutional and violate our human rights”), public knowledge of what rules have been adopted, and a (relatively) straightforward procedural pathway for judicial review of those rules. This last, presumably, is why the TSA has avoided the formal rulemaking process, instead either issuing secret administrative “directives” to airlines and checkpoint staff, or standardless ad hoc administrative orders for which no basis at all is disclosed.

Three years ago, we were among the signers of a petition to the TSA requesting that it conduct a formal rulemaking concerning its deployment of “virtual strip-search” machines as a primary “screening” mechanism, and its requirement that travelers submit either to these “whole-body” scanners or to even more intrusive whole-body groping by checkpoint staff.

Two years ago, after that petition was ignored, EPIC filed suit to compel the TSA to conduct such a formal rulemaking concerning the “naked scanners”. (That’s separate, of course, from the logical protest response of getting naked ourselves to show the checkpoint  staff that we pose no threat.)

A year ago, the Court of Appeals for the D.C. Circuit upheld EPIC’s complaint, ruling that the TSA must “act promptly” to conduct such a formal rulemaking:

[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, … we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

For more than a year since then, the TSA has done nothing to even begin the rulemaking process.

Our friend Jim Harper at the Cato Institute has started a petition asking President Obama to order his executive-branch underlings at the TSA to obey the court’s order and start the rulemaking. If it gets 25,000 signatures by August 8th (it currently has 18,000 and counting), White House policy is to provide a public “reply” to the petitioners.

We’re not too optimistic as to what that reply will be, judging from the response from the TSA on behalf of the White House to last year’s petition by more than 30,000 people calling for the TSA to be entirely abolished, not just subjected, at least in part, to the rule of law.

EPIC has supported the petition campaign, but has also continued to litigate: Last month EPIC asked the Court of Appeals to set a date certain by which the TSA’s “whole-body imaging” program would be “vacated” by the Court if the TSA hasn’t begun a formal rulemaking for it. On Wednesday of this week, the Court ordered the TSA to respond to EPIC’s latest motion by the end of August.

Slowly, slowly, with the government resisting at every step, we crawl toward subjecting the homeland-security state and its attacks on our rights to the rule of law.

Aug 02 2012

Police pay $200K to settle lawsuit for illegal roadblock

On December 20, 2002, Terry Bressi was arrested at a roadblock in Arizona being operated by a joint task force including tribal police and agents of the US Department of Homeland Security.

After all of the trumped-up charges brought against Mr. Bressi were dismissed , he sued the tribal police department, the DHS, and the individuals who were responsible for establishing and operating the illegal roadblock for violating his civil rights.

Almost ten years of litigation later, the tribal police defendants have now paid Mr. Bressi $210,000 to reimburse his legal expenses (including some of those related to the work of attorneys associated with the Identity Project and our parent organization, the First Amendment Project) and settle his claims against the police.

The police tried to justify the roadblock as having been solely a sobriety checkpoint, but the police on the scene admitted to Mr. Bressi that they had no reason to doubt his sobriety or suspect him of any other violation of law. He wasn’t an Indian subject to tribal law, and the roadblock was on a state highway and public right-of-way through the reservation.

In reality, as evidence revealed in the course of Mr. Bressi’s lawsuit made clear, the “sobriety check” by tribal police was merely the pretext being used to try to justify the suspicionless search and seizure of innocent travelers, for general Federal law enforcement purposes.

This settlement is far from sufficient to fully compensate Mr. Bressi for the damages he suffered and the years of work he invested in the pursuit of justice for himself and others similarly denied their right to move freely within the U.S., including on public rights-of-way.

The settlement is, however, an important reminder that even police and others acting with and at the behest of the DHS can be held personally liable for their role in violations of travelers’ rights.

We hope that other police officers and civilian DHS collaborators (such as airport checkpoint staff and contractors) will get the message, and start to question illegal orders from the DHS and other Federal agents.

We congratulate Mr. Bressi on obtaining this settlement, and commend him for his diligence in pursuing his case for the last decade.