Surveillance State – Page 37

Dec 18 2008

DHS extends travel permission requirements for international visitors and general aviation

Continuing its “lame-duck” promulgation of rulings that will tie the hands of the new Presidential administration — or at least delay any efforts to reform DHS rules by requiring a new rulemaking process, or legislation, before they can be withdrawn — the DHS has published two new rules that will extend requirements for individualized pre-departure DHS permisison to international visitors seeking to enter the USA under the Visa Waiver Program (VWP) and to passengers and crew on international general aviation, private, non-scheduled, and non-airline flights to and from the USA:

US-EU agreement to disagree

Over the weekend Stewart Baker of the DHS posted an entry in the DHS “Leadership Journal” blog entitled U.S. and EU Agree on Data Protection Principles. Readers unfamiliar with the “back story” might conclude from this — as Baker and the DHS no doubt hope they will — that some sort of formal negotiations have been concluded, and that the USA and the European Union have actually worked out their differences on privacy and data protection.

Not so at all. Many details remain unclear, as has been typical of DHS international diplomacy. All the meetings of the previous so-called “EU US High Level Contact Group on information sharing and privacy and personal data protection” occurred in secret. But the joint statement by a new group of selected officials from US and EU executive agencies, released as an attachment to Baker’s blog post, indicates essentially the same impasse remains as existed when the “High Level Contact Group” made its final report in May 2008:

As DHS Secretary, Napolitano Should Halt REAL ID System

The New York Times has a story today about Arizona Gov. Janet Napolitano’s nomination as Obama’s Secretary of Homeland Security. The story states that in this new position, Napolitano would have to lead the REAL ID program, a national identification scheme that DHS is attempting to foist on the states. As governor of Arizona, Napolitano signed legislation to join 10 other states in rejecting this national ID program.

The substantial civil liberty problems inherent in this scheme to create a national database of the country’s driver’s license and state ID cardholders won’t disappear if Napolitano replaces Michael Chertoff as the head of DHS. Napolitano should stick to her beliefs and reject this system. As governor, Napolitano focused on the high cost of implementing this national ID system to the states, and these costs will remain substantial if the new administration implements the system created under Chertoff.

In The Identity Project’s recommendations to the Obama transition team, we urged the repeal of REAL ID. Besides the civil liberty problems, REAL ID also has security problems. Those of us who have been following the REAL ID issue, as well as other identification-based security programs, know that there is no sure way for an individual to prove his or her identity based merely on documents that can be easily forged. Therefore, REAL ID would create a system that people would trust even though they shouldn’t — because criminals and terrorists can spend the time and money necessary to forge these “trusted” ID cards.

REAL ID is a fundamentally flawed national ID system for which there is no fix. It must be repealed, and Napolitano should halt the implementation when she takes office.

Nov 26 2008

Border Agents Begin Using “Long-Range” RFID Scanners on ID Cards

USA Today has a story on the new long-range RFID scanners reading ID cards as individuals drive toward the border.

“By the time a car stops at the Customs booth, the agent will have the photos and information of everyone in the car. If a name is on a watch list or database, the person will be taken in for questioning. The system will be “more efficient,” says Thomas Winkowski of Customs and Border Protection.”

DHS claims that the unsecured wireless transmissions will make border crossing more efficient, but why is Homeland Security choosing speed over security.

As we’ve explained before, there are numerous privacy and civil liberty problems connected with using RFID tags in identification documents. Off-the-shelf readers can easily skim the data.

Currently, the RFID-enabled ID cards only transmit a unique number to allow border agents to pull up an individual’s file. However, the Department of Homeland Security could easily add more data to the ID card, especially if the agency can convince people to use the RFID-enabled card as an “all-in-one” identification document – where you could use it when you go to the bank, grocery store, gym, school, and more. Read More →

Nov 24 2008

Records Schedule for Secure Flight Program Before NARA For Comment and Review Process

NARA (National Archives) published notice in the Federal Register on October 27, 2008, of TSA’s submission to them (see Schedule Pending #3) of a proposed Records Schedule for Secure Flight Program. The actual Proposed Schedule was not published in the Register, only notice that you can request it and file comments on whether NARA should approve it. The 30 day window to request from NARA a copy of this proposed Records Schedule, along with NARA’s associated appraisal reports, closes November 26. This can be done easily via email – see my request below. After providing a requester with these documents, NARA must wait 30 days for the requester to file comments – and to take all comments into account prior to deciding whether to approve the schedule. Destruction of records requires the approval by NARA of a Records Schedule – see 44 U.S.C. Chapter 33 Disposal of Records. Presumably TSA wouldn’t start collecting domestic airline passenger records under Secure Flight, for program testing purposes or otherwise, without the ability to legally destroy them.

Making a request to NARA for TSA’s Secure Flight Records Schedule, and participating in the comment process, sends a message to NARA that the public is interested and concerned about TSA building files on the travel history of ordinary Americans. To make this request, cut and paste this into an email to:

To: request.schedule@nara.gov
Subject: records schedule request

Greetings NARA,

I request a copy of the proposed / pending records schedule and all associated appraisal reports for the following:

Control Number:N1-560-08-3

Notice of the requested pending records schedule was published in the Federal Register: October 27, 2008 (Volume 73, Number 208) and reads in pertinent part as follows:

Department of Homeland Security, Transportation Security
Administration (N1-560-08-3, 8 items, 7 temporary items). Master files
for Secure Flight, an electronic information system used to conduct
pre-flight checks of passengers and non-traveling individuals involved
in passenger aviation for the purpose of detecting individuals who may
pose a terrorist threat. Proposed for permanent retention are planning
and implementation files documenting the creation of the Secure Flight
program and its major policy decisions.

Please confirm via return email that you have received this request. You may either respond to this request by scanning and emailing the requested documents to me at (insert your email address) or by mailing the documents to:

(insert your mailing address)

Should you have any questions, please call me at (insert your phone number).

Thank you,

(insert your name)

Nov 10 2008

The Obama Administration and the Right to Travel

The Obama Administration promises change, and invites suggestions for their agenda.

Since they’ve asked, here are the first things we think the new administration should do to restore our right to travel, and to address the issues of ID requirements and identity-based government surveillance and control of travel and movement.

Some of these can be accomplished with the stroke of a pen on Inauguration Day in January, through Presidential proclamations and directives to Executive staff and agencies. Others can be ordered by the President, but will require a slightly longer process to comply with administrative notice and comment requirements for changes to (and, in many cases, withdrawal of) Federal regulations. Others will require legislation, which we urge the Presidential transition team and members of Congress to begin drafting so they can take action early in the new Congressional session. If asked, we would be available to advise and participate in this process. Finally, Senators should question nominees for Executive appointments —especially those nominated to be the new Secretary of Homeland Security and the Administrator of the TSA – about how they will address specific, important issues from the day they take office. These questions are detailed below (and also available here in PDF format).

Executive Orders:

Reaffirm Executive Order 13107 on Implementation of Human Rights Treaties, and instruct heads of agencies to ensure that it is carried out. As part of his agenda, President-Elect Obama has promised to “strengthen civil rights enforcement,” and this should include enforcement of rights guaranteed by international human rights treaties to which the U.S. is a party. In particular, President-Elect Obama should extend Executive Order 13107 to explicitly mandate consideration of international human rights treaties in Federal agency rulemakings that could implicate rights protected under those treaties — such as the freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights (ICCPR). Read More →

Oct 27 2008

Where is “Secure Flight” headed next?

Now that the TSA has released their final rule for the Secure Flight program, which would extend DHS control and surveillance of airline passengers to domestic flights, what happens next (after the final rule is published in the Federal Register, which normally happens within a week or so)?

Under the laws appropriating the funds for TSA and DHS operations, the next step should be review by the Government Accountability Office (GAO). Section 522 of the Homeland Security Appropriations Act 2005 provides:

None of the funds provided by this or previous appropriations Acts may be obligated for deployment or implementation, on other than a test basis, of the Computer Assisted Passenger Prescreening System (CAPPS II) or Secure Flight or other follow on/successor programs, that the Transportation Security Administration (TSA), or any other Department of Homeland Security component, plans to utilize to screen aviation passengers, until the Government Accountability Office has reported to the Committees on Appropriations of the Senate and the House of Representatives that: [10 specified criteria have been met]. Read More →

Oct 23 2008

Radio hour today on “Secure Flight”

Edward Hasbrouck of the Identity Project will be on the Katherine Albrecht Show today from 5-6 p.m. Eastern Time (2-3 p.m. Pacific time), talking about Secure Flight. The Katherine Albrecht Show is syndicated nationally on the Genesis Communications Network. You can also listen to the show live online, and we’ll be taking listener questions on the air. If you missed the live broadcast, the archive of this hour of the show is available here as a downloadable mp3 podcast.

Oct 22 2008

Large Aircraft Security Program and “Watch-List Service Providers”

Even before the Secure Flight proposal goes into effect (and before there is any experience of whether it can be implemented or how it will work), the TSA is proposing to extend its air travel control and surveillance principles from passenger airlines to general aviation and all-cargo flights.

On October 9, 2008, the TSA issued a press release and a Notice of Proposed Rulemaking (NPRM) for a so-called “Large Aircraft Security Program” (LASP) for unscheduled and noncommerical flights. LASP is explicitly modeled on Secure Flight, but with an additional twist: Instead of being required to submit personal information about each passenger to, and receive permisison from, the TSA, operators of “large” general aviation and cargo aircraft will be required to submit this data to, and get permisison from, a new class of private commercial data aggregation companies: “Watch-List Service Providers”.

TSA won’t give up on “Secure Flight” travel permission and surveillance scheme

The DHS and TSA announced their final rule for the Secure Flight program for the control and surveillance of airline passengers during a photo op today at Reagan National Airport.

We aren’t among the journalists to whom the TSA’s anonymous spin doctors chose to leak their plans. We’ll have more comments after we have reviewed the complete 195-page regulatory notice in more detail.

But our first reading of the “final rule” released today, as well as recent TSA and DHS comments about Secure Flight, including their press release today and testimony at a Congressional hearing we attended last month, suggest that their plans remain essentially unchanged from the Secure Flight proposal announced last year, and which we urged the TSA to withdraw as illegal in our testimony at the TSA’s public hearing and our more detailed written comments.

The DHS’s current spin on why we should love Big Brother and welcome Secure Flight is that it would reduce the number of people who are improperly prevented from flying or improperly subjected to more intrusive “secondary” search and/or interrogation, by “transferring watchlist matching from the airlines to the government”.

But the solution to the problems with “watchlists” is not to tighten their enforcement, but to replace secret administrative “no-fly” and “selectee” determinations with judicial determinations of dangerousness, made by judges in response to government motions for injunctions or restraining orders, and presentation of evidence sufficient to show that they pose a danger to aviation so great as to warrant restriction of their Constitutional and human rights to freedom of travel, assembly, and movement. We don’t need to establish a new system of (secret) administrative pseudo-justice. That’s what the courts are for, and they already have an established system of due process and review, including procedures for dealing safely with classified evidence related to national security. Read More →

Papers, Please!

The Identity Project