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The Identity Project

Category Archives: Surveillance State

Sep 03 2010

Napolitano outlines US travel control agenda for ICAO

In a speech to the Air Line Pilots Association earlier this week, Secretary of Homeland Security Janet Napolitano made explicit the US government’s intentions to, as we have repeatedly predicted, use the International Civil Aviation Organization (ICAO) as its primary international policy-laundering forum to bypass and override national laws restricting surveillance and control of travel.

ICAO isn’t mentioned in the DHS press release, and the DHS doesn’t seem to have posted the full text of Napolitano’s speech.  But according to reports in Homeland Security Today and elsewhere:

Napolitano will seek a formal resolution from the general assembly of the International Civil Aviation Organization (ICAO) Sept. 28-Oct. 8 in Montreal, Canada, to build upon five regional security declarations obtained by the United States….

Each of the five meetings resulted in a security declaration focusing on vulnerabilities in the international aviation system in four key areas: developing and deploying new security technology, strengthening aviation security measures and standards, enhancing information collection and sharing, and coordinating international technical assistance

ICAO assisted in coordinating the five agreements, which Napolitano hopes to use as a springboard to obtain a declaration covering the international organizations 190 member states in the fall.

“Enhancing information collection and sharing” is of course a euphemism for mandatory airline and national government participation in the compilation of lifetime logs of individuals’ movements, while “developing and deploying new security technology” refers mainly, as of now, to mandatory use on airline passengers of virtual strip-search machines.

With Members of the European Parliament asking new questions about DHS demands for European collaboration in US travel surveillance and control schemes,  DHS and the US government are turning increasingly to ICAO as a less transparent, less publicly accountable “plan B” for internationalization of its travel regime.

It’s unclear whether the resolutions to be proposed for adoption by ICAO at its upcoming general assembly will constitute ICAO “security standards”, or will merely be a step toward their adoption through he slow but inexorable multi-year ICAO decision-making process.  But the goal of the US government is clear: Whatever surveillnace and control measures can be incorporated into ICAO security standards can be backported into national and international laws through innocuous-seeming statutory and treaty mandates for compliance with ICAO security standards, and imposed on recalcitrant countries through denial of landing rights oin the US to flights from countries or on airlines that don’t comply with such surveillance and control standards.

Sep 03 2010

From our mailbag

Thank You, and good luck!

I have come across information on your suit against the US Gov’t and DHS, and the fantastic summary you did. I just felt I should thank You for your effort and bravery.

I just wanted to let You know there are people and organisations all over the world (Poland here, by the way) that see the diffusion of privacy and personal rights and freedoms in America as a very dangerous precedent that might “inspire” other countries (and indeed, often it already does) to follow suit (pun not intended).

I come from a nation that had to fight for independence and freedom many times throughout its history. For 21 years we are finally Free – after almost 200 years of enslavement. I have the distinct privilege to not remember the Polish People’s Republic and the times long gone by (I’m 25), but we all here either remember, or simply know (from history lessons, from relatives, from literature) what Orwellian surveillance was like. We all remember or know about the atmosphere, the Kafka-esque processes of law, the fright… And we remember or know what sacrifices had to be made to be finally Free.

Maybe that’s why ideas like secret lists, internet filtering and similar ideas meet with a decisive public resistance. For now. But if the USA, the country people 15-20 years older than me saw as a symbol of freedom and one of the only allies we had against the USSR, slides down this slippery slope any more, resistance can only become harder.

The more can we admire what You are doing.

Hence, for Your sake, and for the sake of all the people that watch and see what’s going on, I wish you strength and good luck in your fight. In times like these there’s always the need for a single fighter to fight for the principles.

It was like that in the fifties in USA with the McCarthy-ism at its height, when Ed Murrow took a stand.

It was like this in the Big Tobacco suits in early nineties when Brown & Williamson almost destroyed Jeff Wigand’s life when he took a stand.

I’ll be watching, and with me two Polish NGOs.I’ll be watching, and with me two Polish NGOs.

Best regards,

Michal “rysiek” Wozniak

Aug 25 2010

Lawsuit filed against DHS travel surveillance

In the first lawsuit to challenge one of the U.S. government’s largest post-9/11 dragnet surveillance programs, the First Amendment Project (FAP) filed suit today under the Privacy Act and the Freedom of Information Act (FOIA) against U.S. Customs and Border Protection, the DHS division that operates the illegal “Automated Targeting System” of lifetime travel histories and travel surveillance dossiers including complete airline reservations (Passenger Name Records or PNRs).  The Identity Project is part of FAP, and the lawsuit was filed on behalf of Identity Project consultant and travel expert Edward Hasbrouck.

The complaint filed today in Hasbrouck v. CBP asks the court to declare that CBP violated the Privacy Act and FOIA, and order CBP to turn over the travel records about himself that Hasbrouck has requested, as well as an accounting of who else CBP has disclosed these records to, what happened to Hasbrouck’s previous unanswered Privacy Act and FOIA requests and appeals (some of which have been pending and ignored by CBP for almost three years, and may have been among those recently revealed to have been improperly held up for “political review” by higher-ups in DHS and/or the White House), and how these records in the CBP “Automated Targeting System” are indexed, searched, and retrieved.

The case is important in part because it shows that, despite DHS claims that everyone who has asked for their travel records has received them, and that no one has complained about DHS misuse of PNR data, DHS has entirely ignored many such requests and complaints, even when they have come from U.S. citizens like Mr. Hasbrouck.

There’s more about the case and its significance in our FAQ: Edward Hasbrouck v. U.S. Customs and Border Protection.

Jul 30 2010

Washington Post: “Secure Flight may be making your privacy less secure”

We’re quoted today in the Washington Post in a story by Christopher Elliott about how airlines are able to use personal information — collected under government duress for the TSA’s Secure Flight passenger surveillance and control scheme — for the airlines’ own marketing and other purposes.

“Could it be that the information we give airlines doesn’t belong to anyone or, worse, isn’t regulated by anyone?” Elliott asks.

A good question — and “privacy” may be the least of the problems with Secure Flight, as discussed in our testimony (quoted from, in part, in the Post story) at the TSA’s only public hearing on Secure Flight, our more detailed written comments submitted to the TSA, and our FAQ about Secure Flight.

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.

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