Papers, Please!

The Identity Project

Category Archives: Surveillance State

Jul 09 2010

Australian government expanding air travel surveillance

Closely following the bad example (controversial both in the US and Australia) of the USA, the government of Australia is moving toward increasing detailed and integrated ID-based surveillance and control of air travelers.

As of the first of this month, under the so-called Enhanced Passenger Assessment and Clearance (EPAC) systems, Australian authorities have real-time access to all passenger name record (PNR) data for all passengers on all international flights to Australia.  And an additional A$24.9 million is being spent by the government over the next two years, in addition to uncounted amounts that airlines and other travel companies will have to spend, to expand the amounts of data collected by airlines and passed on to government agencies as well as the automated profiling (“risk assessment”) conducted on the basis of this data.

The changes and the heightened surveillance and control of travelers to Australia come at the same time that the European Union is simultaneously renegotiating agreements with Australia and the USA for government access to PNR data related to flights to and from the EU.

The Sydney Morning Herald quotes  the president of the Australian Council for Civil Liberties, Terry O’Gorman, as saying that the scheme “increases the risk of a person wrongly being put on a no-fly list.”

Jul 06 2010

Lawsuit seeks suspension of TSA virtual strip-searches

Last year the Identity Project was one of more than 30 organizations that filed a joint petition with the DHS requesting a formal rulemaking on use of virtual strip-search machines or “body scanners”, then being referred to by DHS and TSA as “whole body imaging” machines and since re-euphemized as “advanced imaging technology”, as though the name itself could make them inherently more “advanced”.

In May of this year, after the DHS ignored our petition and moved forward with deployment of virtual strip-search machines without a formal rulemaking, we joined most of the same groups in filing a renewed petition for a formal rulemaking (including an opportunity for public comment) and for rescinsion of the rules requring submission to a virtual strip-search as a condition of passage through TSA checkpoints and travel by air common carrier.  We also filed a series of FOIA requests and appeals, which the TSA has to date ignored, for the TSA Standard Operating Procedures, screening-related directives to airlines, and other documents embodying the secret rules that include the virtual strip-search requirements.  We’ve also speculated about what legal recourse travelers denied passage on the basis of refusal to submit to a virtual strip-search might have, particularly in jurisdictions abroad where it would be easier than it is in the USA to raise issues of international human rights law.

This past Friday, July 2nd, the Electronic Privacy Information Center (EPIC) filed a federal lawsuit seeking to have the Court of Appeals for the District of Columbia review the TSA and DHS failure to conduct a formal rulemaking before deploying virtual strip-search machines and issue an emergency stay of the TSA/DHS decision to deploy and require them as a condition of passage through checkpoints and air travel.

The Identity Project was a party to the original petitions for rulemaking, and while we aren’t a party to the EPIC lawsuit, we fully support it.

As EPIC notes in its latest filings, even after September 11th Federal courts have upheld “administrative (warrantless, suspicionless) searches in airports only to the extent that they are limited to what is “necessary” — meaning that they are actually effective and are the least restrictive available means — to detect weapons and explosives. Even beyond the specific issue of virtual strip-searches, this lawsuit is likely to be significant in helping define the bounds of TSA authority to conduct ever more intrusive searches as a condition of common-carrier travel.

The petition filed in May by EPIC, the Identity project, and others stated that, “The undersigned file this petition pursuant to 5 U.S.C. § 553(e), which requires that ‘[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.'”  Notwithstanding this explicit statement, the DHS and TSA responded with the bizarre claim that, for unspecified reasons, it did not constitute such a petition.  Unfortunately, that’s characteristic of the behavior of the DHS and TSA, which have repeatedly refused to acknowledge or docket our formal complaints and then falsely claimed, including to the US public and to foreign governments  that they have received no such complaints.

Jun 30 2010

New lawsuit challenges no-fly orders

In a lawsuit filed today by the ACLU in Federal court in Oregon, Latif, et al. v. Holder, et al., ten U.S. citizens who have been refused permission to board flights to, from, or within the US, or have boarded flights to the U.S. only to have them turn back en route, are suing the Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center for denying their rights by ordering airlines not to transport them.

At least one of the plaintiffs even flew to Mexico, to avoid overflying the US, with the hope of returning to the US by land.  Instead, he was arrested by Mexican police (presumably at the behest of the U.S. government, and deported not to the country of his citizenship, the USA, but to Colombia, where he has only a temporary visa and can’t remain.  That should have prompted diplomatic protest by the US to Mexico for the improper deportation of a US citizen to a third country.  But presumably Mexico acted at the behest of the US, and there has been no sign of US objection.

So far as we know, this is only the second lawsuit to directly challenge the legality of no-fly orders, and the first on behalf of US citizens.  The previous case was brought by Rahinah Ibrahim, a Malaysian graduate student at Stanford University, after she was detained by San Francisco Airport police and prevented from flying home to her country in 2005. While her complaint remains pending against the individual police in U.S. District court for the Northern District of California, the cases against all of the Federal agencies and officials have been dismissed.

The latest case will test whether the Obama Administration still agrees with former Secretary of Homeland Security Chertoff that no-fly decisions should not be subject to judicial review.  [Update: From the latest statement by the Director of the National Counterterrorism Center, it appears that they may.] And it will be closely watched in Europe as well, where the Obama Administration has assured the European Union that adequate means of redress do exist in U.S. courts for individuals — including some of the plaintiffs in the latest case — denied permission to travel from the EU to the U.S. on the basis of passenger data transmitted to the DHS.

Jun 30 2010

Will Canadian travelers be subject to more US tracking and control?

After a series of investigative reports in the Canwest newspapers in March of this year called attention to the lack of any legal basis under Canadian law for US government access to information about flights to and from Canada that overfly the US (notably including Canada-Cuba flights), the Canadian Conservative minority government has responded by introducing a bill earlier this month that would, if approved by the Canadian Parliament, override Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) to allow the US or any foreign government to find out who is on flights to and from Canada overflying those countries, even if they don’t land in the US.

Canadian law was amended after September 11, 2001, to override PIPEDA and allow US government access to airline reservation data, but only for flights that actually carry passengers to or from the USA. BIll C-42 would extend that to overflights of any country that wants to vet (or simply log) who’s on flights through its airspace.

The sponsors of the latest proposal, Bill C-42, expect it to be controversial, and it has already been criticized by opposition MPs.  Opposition parties have united to pass other legislation supported by the minority government related to collaboration with US wars (such as a measure supporting political asylum in Canada for people resisting service in the US military in wars in Iraq and Afghanistan that violate Canadian and international law), and some observers predict that could happen with Bill C-42 as well.

We certainly hope that Canadians learn from the mistakes of the USA, stand up for their sovereignty, and say “no” to US surveillance of overflights, just as people in the USA would say “no” if the Cuban government demanded to know who is on the dozens of flights every day that fly over Cuba en route between Miami and South America.

Jun 07 2010

Another Paris-Mexico flight barred from US airspace

Despite being a party to international aviation and human rights treaties guaranteeing free passage through international airspace, the US government claims the right to require prior government permission (granted or withheld in secret, without due process, judicial review, or publicly disclosed standards) not just for travel to or from the USA but for transit through US airspace — even on nonstop flights that aren’t scheduled to land in US territory.

Most such overflights of the US between other countries are to and from Canada, where US control and surveillance of overflights have provoked continuing controversy and opposition.

Of the handful of other airline flight paths between other countries that cross over  US territory, the Paris-Mexico route continues to generate most of the — increasingly bizarre — incidents of US refusal of permission to overfly the US.

Read More →

May 28 2010

Wanna buy a prepaid SIM card? “Papers, please!”

S. 3427, a bill introduced in the Senate this week by Senators Charles E. Schumer (D-NY) and John Cornyn (R-TX),  would require would require ID “verification” as a prerequite to buying a prepaid cell phone or SIM card.

The seller or reseller of the phone or SIM card would be required to collect your personal information (including name, address, date of birth, and for online sales your Social Security number) and all unique identifiers of the phone or SIM card including the including the EMEI or other serial number and the assigned phone number.

For in-person sales, you would have to show government-issued ID credentials in a form to be determined later by the Attorney General.  For online or other non-face-to-face sales, you would also have to provide “Any other personal identifying information that the Attorney General finds, by regulation, to be necessary for purposes of this section.”

The bill would place no limits on the amount or intrusiveness of the information the Attorney General could demand, as long as it is spelled out in regulations.  And there’s nothing in the bill to stop the AG from making the verification requirements so onerous as to amount to a de facto ban on online or mail order sales of prepaid SIM card or cell phones, as Ken Grunski —  president of Telestial.com, a leading US-based online source of prepaid SIM cards and cell phones for international travelers — immediately picked up on when we sent him a copy of the bill:

The level of verification that the bill requires is critical to e-commerce providers … because they can only verify an identity to a certain extent online. For example, if the bill just required that the billing address match the shipping address, we can do that easily. But if the bill requires a state or country issued identity card, we can’t do that online. You are essentially saying that the product can’t be sold online anymore, because you can’t verify the identity of the person making the purchase.

It really opens up all types of questions, like what types of impositions would that take on the e-commerce companies and why only SIM cards and prepaid cell phones? This could lead to regulation of all types of telecom products – or anything that puts out a transmission signal.

Read More →

May 23 2010

“Freedom Flyer” Phil Mocek to go on trial June 14th in Albuquerque

[UPDATE: The trial which was scheduled to begin June 14, 2010 has been postponed. Check our FAQ about the case or the court calendar for further updates as soon as they are available.]

We’ve written previously about the arrest of Phil Mocek at a TSA checkpoint at the airport in Albuquerque last November. Mr. Mocek had a valid ticket on Southwest Airlines (“You are now free to move about the country”), and was attempting to get to his flight. Like the “Freedom Riders” of the 1960s on interstate buses, Mr. Mocek sought to exercise his Federally and Constitutionally-guaranteed right to travel, but was arrested by local police for alleged violations of state and local laws and ordinances.

So far as we can tell, this is the first time someone in the USA has been arrested or charged with a crime for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.

Mr. Mocek is now scheduled to go on trial starting June 14th on charges of violating four state and local ordinances carrying a total maximum sentence of 15 months in jail.  (The charges could still be dropped, and the trial could be rescheduled.  We’ll post an update in this blog and in our FAQ about the case if we learn of any change in the schedule.)

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May 20 2010

Is “SPOT” a reasonable basis for suspicion or surveillance?

Today the Government Accountability Office released a detailed report on the TSA’s “Screening Passengers by Observation Techniques” (SPOT) program, providing considerably more detail than the TSA itself has ever provided, confirming the lack of any evidence that the program has spotted any terrorists, and suggesting implicitly that the DHS has been keeping yet another set of illegal records about innocent travelers.

We’ve followed the SPOT program since its existence was first revealed in 2004, and we’ve been detained, interrogated, and subjected to more intrusive search ourselves after being picked out by SPOT “Behavior Detection Officers”.  (Fancy language for, “They didn’t like our looks, so they harassed us and gave us a thorough shakedown.”)

The SPOT program is the TSA’s attempt to adopt Israeli-style passenger profiling based on appearance and behavior (isn’t that supposed to be un-American, or at least illegal?), and now has a budget of more than $200 million a year.  As shown in the diagram above from the GAO report, more than 150,000 people have been subjected to more intrusive search or interrogation as a result of being fingered by BDOs as “suspicious” or allegedly fitting the (secret, of course, this being the TSA) SPOT appearance and behavior profile.  In 14,000 cases, police were called and passengers detained for “investigation”, typically including a police demand for, and logging of, their ID.

The GAO report serves mainly to confirm the obvious: There is no scientific evidence that the SPOT program has identified any actual would-be terrorists, or provides any legitimate basis for suspicion of those it singles out: Read More →

May 20 2010

Statistics on UK travel surveillance and control

It’s tempting to think that ID and PNR-based travel control systems don’t “work” as anti-terrorist measures (they obviously work as surveillance measures and as general law enforcement dragnets, as do house-to-house searches) solely because of the incompetence of the TSA and DHS. Could they be more effective elsewhere, if better implemented?  That seems to be the view of some sectors of center-right opinion in Europe, where the EU continues to consider a mandate for members states to set up their own “Passenger Analysis Units” to decide who to allow to fly, even while the the European Parliament has defined strict standards that they would have to meet.

Newly-reported data from the UK, however, suggests the UK PNR scheme — the most developed and extensive in the EU to date — has all the same problems as the US one. This suggests that the defcst are in the concept, not the details of its execution, and calls in question whether any PNR scheme is likely to likely to be able to meet the Europarl’s criteria for acceptability.

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