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The Identity Project

Feb 04 2021

“Hypothetical” briefing ordered in TSA lawsuit

The most significant legal challenge since the creation of the Transportation Security Administration to the TSA’s attempt to operate outside the law, and to avoid judicial review of its actions, is coming to a head in the next month in the First Circuit Court of Appeals in Boston. It’s a David v. Goliath legal battle, and the plaintiff wants and needs help.

We’ve talked about Sai’s various challenges to TSA practices before. A little over five years ago, Sai (they go by only one name) filed a pro se challenge to the Constitutionality of 49 USC § 46110, the Federal law which establishes special (and especially limited) procedures and criteria for judicial review of “orders” issued by the TSA.

49 USC § 46110 exempts TSA orders from the usual jurisdiction of Federal District Courts. TSA orders can be reviewed only by the Circuit Courts of Appeal, where there are no trials. Circuit Courts must base their decisions on the “administrative record” as supplied by the  TSA, and must grant the truth of any TSA claims supported by “substantial” evidence, regardless of the existence of any (perhaps more persuasive) evidence to the contrary or impeaching the credibility of the TSA and its claims, and regardless of any evidence that the TSA doesn’t chose to include in its “administrative record”. Needless to say, no objections at all will be in the TSA-created “record” with respect to secretly-issued orders.

In a case of first impression, Sai challenged the Constitutionality of this law both on its face and as applied to them. This is the case that will determine, for all practical purposes, whether the TSA is subject to the rule of law, or can continue to make up and enforce its own secret “rules” as it goes along, changing or disregarding them at whim.

We won’t try to recount the history of the case. Suffice it to say that, although motion practice has been extensive, none of the fundamental issues have yet been addressed. The RECAP docket mirror of the docket doesn’t capture most of the filings in the Court of Appeals. There’s a link to a folder of court filings and other related  documents here on Sai’s website, but they haven’t been able to keep that index up to date.

A few days ago, after months of silence, the 1st Circuit went from “wait” to “hurry up” and  gave Sai just 30 days to brief all their remaining issues and claims, or have them deemed denied. Sai is indigent, proceeding pro se (on their own without a lawyer), and has substantial vision and other physical disabilities that limit the pace of their work.

But that’s not all, and maybe not the worst, of the unfairness in the Court’s latest order.

“Order” isn’t defined in 49 USC § 46110. But in other cases, the TSA has interpreted this definition as broadly as possible, to shield as many of its activities as possible from normal procedures for judicial review. And this is the exclusive procedure for review of such orders.

Sai still doesn’t know what orders the TSA has issued that might apply to them (and that the TSA might try to impose sanctions for unwittingly violating), or what if any basis the TSA claims for these orders. The TSA claims the right to keep all this secret from Sai, while submitting secret lists of secret orders, and secret arguments to justify them, to the Court of Appeals “ex parte and in camera”.

Here’s how the Court of Appeals has now told Sai to respond “hypothetically” to these secret arguments about secret laws:

The matter will proceed to briefing based on the administrative record as just designated. A portion of that administrative record has been accepted for filing ex parte and in camera, and petitioner’s request for clearance to access those materials is denied. Nonetheless, briefing shall proceed. The purpose of a proceeding of this sort is to allow for the challenge of specific agency orders, see 49 U.S.C. § 46110(a), not to facilitate broad discovery of agency policies and practices. With this purpose in mind, the court discerns no reason why petitioner cannot prepare a brief that fully conveys challenges to specific orders despite the unavailability of a portion of the administrative record. Petitioner need only clearly articulate the nature of any orders petitioner reasonably believes may have been disclosed in the sealed portion of the administrative record and then explain why such an order, if it exists, would be amenable to review under § 46110 and why the existence or enforcement of such an order would be illegal or unconstitutional. In other words, to the extent petitioner cannot discern from the publicly filed portion of the administrative record whether a particular order exists, petitioner may present arguments hypothetically assuming the existence of the order and explaining why such an order, if it existed, would be illegal or unconstitutional. Once briefing is complete, the ultimate merits panel will be in a position to review the full administrative record, including the portions of the administrative record filed ex parte and in camera. The ultimate merits panel can assess petitioner’s claims in light of that review.

All this to be completed, on Sai’s part, in the next 30 days.

If you thought arguing hypotheticals was for law school exercises and the bar exam, thnk again. Alice In Wonderland, here we come!

We think that any orders that have been issued in secret, can’t be disclosed to those who are supposed to obey them and against whom they are to be enforced, which are justified (if at all) only by secret arguments and/or secret evidence not subject to independent examination, and that can be challenged only “hypothetically” on the basis of guesses about what the orders are or what secret excuses have been made for them, are unconstitutional on their face, as is this “review” procedure itself.

Sai needs and wants legal help to make this argument to the Court of Appeals. One way or another, this case will set an important precedent. Sai is indigent and significantly disabled, and asked the court to appoint counsel for them. But that’s discretionary in civil cases, and the court declined. If you might be able to provide immediate pro bono legal assistance, please contact Sai ASAP.

 

Feb 01 2021

CDC orders air travelers to unmask for government surveillance

Putting government surveillance and control of travelers ahead of what is supposed to be their mission of protecting of the public against infectious diseases, the U.S Centers for Disease Control and Prevention (CDC) has ordered that, effective today, all air travelers must risk their lives by removing their face masks on demand of Transportation Security Administration (TSA) checkpoint staff or airline ticketing or gate agents.

Until today, as we have noted previously, many state and local health orders issued in response to the COVID-19 pandemic required everyone in public indoor spaces such as airports to wear face masks, without any exception that would have applied at TSA checkpoints. Although we are not aware of any litigation that ensued, air travelers could have asserted their right — and even their  duty — not to remove their face masks, under pain of criminal penalties for violating public health orders.

The CDC order effective today appears to be designed to preempt those state and local health orders, and open the door for the TSA, TSA contractors, and airline staff to endanger the lives of air travelers in the interest of surveillance and control (by the TSA) and “revenue protection” against transfers of nontransferable tickets  (by airlines):

The requirement to wear a mask shall not apply under the following circumstances: … When necessary to temporarily remove the mask to verify one’s identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.

The CDC order aloows — and, in fact, requires — TSA and airline staff and contractors to leave their masks on. Only travelers’ lives are to be endangered.

It remains unclear, of course, whether it is “necessary .. to verify one’s identity” either to the TSA, its contractors, or airline staff, much less whether looking at faces is the way to do so. We think not. But whatever the legality of “ID verification”, the CDC officials responsible for this unmasking order should be ashamed of their betrayal of their medical mission and for promulgating an “insecure flight” requirement.

Jan 26 2021

First appellate-court ruling on COVID-19 travel restrictions

Last week, the First Circuit Court of Appeals in Boston issued the first ruling by a Federal  Federal appellate court concerning restrictions on the right to travel imposed on the basis of the COVID-19 pandemic.

There have been other Federal District Court rulings on COVID-19 travel restrictions, as we have reported previously. But so far as we can tell, no other Federal appeals court has yet ruled on any of these cases. And while there have been other Federal appellate decisions concerning restrictions on gatherings and activities, they haven’t involved the right to travel.

The decision by a panel of the First Circuit came in the case of Bayley’s Campground v. Mills, which we mentioned before in a round-up of COVID-19 right-to-travel cases.

Bayley’s Camground v. Mills is a challenge by the owners and several frequent out-of-state guests of a campground in Maine to an Executive Order by Governor Janet Mills requiring 14 days self-quarantine by anyone entering the state of Maine, and prohibiting the operation of lodging services, including campgrounds, with limited exceptions.

Ruling on an interlocutory appeal of the denial of a motion for a preliminary injunction, the First Circuit panel upheld the District Court decision denying an injunction against enforcement of the Maine state order while the case is pending,  Most of the First Circuit opinion, however, is favorable to future challenges to state actions that encroach on the right to interstate travel.

First, the Court of Appeals found that it could consider the merits of the case, even though the challenged order was modified and partially rescinded while the case was pending:

A contrary ruling… would run the risk of insulating from judicial review an allegedly overly broad executive emergency response, so long as it is iteratively imposed for only relatively brief periods of time. Accordingly, we conclude that the plaintiffs’ request for injunctive relief from [the Executive Order’s] self-quarantine requirement is not moot,… and so we turn to the merits.

Second, the Court of Appeals accepted the District Court’s premise that there is a Constitutional right to interstate travel and that any state action which restricts the exercise of that right is subject to “strict scrutiny” including a requirement for the government to show that no less restrictive measure could adequately achieve the “compelling governmental interest” that is the goal of the restrictive measure.

The Court of Appeals  found that the state of Maine had produced sufficient evidence of the compelling need for the self-quarantine and other travel restrictions that the campground owners and would-be campers were unlikely to succeed on the merits. But the ruling concerns only the request for a temporary order while the case is pending.

Proceedings in the District Court were stayed pending the interlocutory appeal, but will now resume. No trial or final decision appears imminent.

Jan 19 2021

“Put them on the no-fly list!”

Flowchart of no-fly lists and the U.S. government's no-fly decision-making process.
[“How do you get on the no-fly list?” Larger image; PDF with legend.]

In the aftermath of the storming of the U.S. Capitol last week, there’s been a confused cacophony of calls to “put the rioters on the no-fly list.”

At the same time, there have been equally confusing claims and denials that some people found out that they had already been “put on the no-fly list” when they were denied boarding on flights home from Washington.

Are these people “on the no-fly list”? Could they be? Should they be? Is this legal?

More generally:

How do you get on the no-fly list? How do you know if you are on the list? How do you get off? What substantive and procedural legal standards apply?

The answers to all of these questions are much more complicated, and different, than many people seem to think — including the chairs of relevant Congressional committees, who ought to know better. The reality is that:

  1. There isn’t just one U.S. Federal government no-fly list — there are several, created by different agencies for different purposes.
  2. There are also non-list-based ways that real-time no-fly decisions can be made.
  3. No-fly decisions can be, and are, made independently, on the basis of different lists and other criteria, by multiple Federal agencies and by individual airlines.

So a better starting point for understanding what’s happening — before we can begin to assess whether it is legal or what should be happening — is to ask, “How can a would-be passenger be prevented from boarding a scheduled airline flight?”

The diagram above (larger version; PDF with legend of acronyms and color-coding) gives only a summary of the U.S. government’s no-fly decision-making process, not including individual airines’ no-fly decision-making practices. (We’ve published versions of the diagram before. The latest version above has been updated to include the Angel Watch Center, the CDC Do Not Board List and Lookout List, and the Watchlisting Advisory Council.)

As discussed in more detail below, no-fly decisions can be based on any of the following:

  • U.S. government no-fly orders:
  • Airline no-fly decisions, based on:
    • Airline conditions of carriage.
    • Airline no-fly lists (created and maintained separately by each airline).
    • Other non-list-based “rules” interpreted and enforced by airlines (most significantly the entry requirements described in the Timatic “travel information manual”).

How does all this work? Here are some FAQs about the no-fly list and no-fly orders:

Read More →

Jan 03 2021

REAL-ID Act amended, but DHS doesn’t get the exemptions it wanted

Amendments to the REAL-ID Act of 2005 were included in the Consolidated Appropriations Act of 2021, which was signed into law by President Trump on December 27, 2020.

But somewhere in the sausage-making that saw the REAL-ID Modernization Act and numerous other unrelated measures inserted into the 2,124-page omnibus pandemic relief and appropriations bill, the key provisions sought by the Department of Homeland Security (DHS) were removed from the final bill.

That leaves the DHS still required by existing Federal laws to respond to our objections, to request and obtain approval from the White House Office of Management and Budget (OMB), and to post OMB-approved notices at TSA checkpoints explaining what is required, and on what legal basis, before it can try to deny anyone passage through a checkpoint or travel by common carrier on the basis of their failure or refusal to show ID. Read More →

Dec 21 2020

We say “No” to mug shots at airports and borders

[Illustration from CBP website. The claim that facial recogntion “helps to prevent the spread of germs” is especially bogus, since facial recognition requires travelers to remove their face masks wherever it is used.]

Today the Identity Project (IDP), Restore the Fourth, Privacy Times, and the National Workrights Institute  filed joint comments with U.S. Customs and Border Protection (CBP) in opposition ot the CBP proposal to require mug shots (and possibly collection of other biometrics) from all non-U.S. citizens at all border crossings and international airports and seaports:

The purported NPRM [Notice of Proposed Rulermaking] was promulgated under purported authority delegated by an official purporting to exercise the duties of the Secretary of Homeland Security. That official was not appointed in accordance with the Vacancies Reform Act and therefore lacks authority to promulgate notices of proposed rules or final rules, or to delegate authority to do so which they do not themselves hold….

The proposed rules and procedures would violate the Privacy Act, and must therefore be revised or withdrawn.

The proposed rules and procedures would violate the Paperwork Reduction Act (PRA), and must therefore be revised or withdrawn.

The impact assessment in the NPRM is incomplete, inaccurate, and grossly underestimates the costs which would be imposed on individual travelers by the proposed rule. The NPRM fails to consider how many (more) individuals would opt out of collection of biometrics, if they were provided with the notices required by the PRA, or the cost to those travelers who are so delayed that they miss their flights. The impact assessment must be revised.

Read More →

Dec 17 2020

Lawyers who challenged “no-fly” order finally get paid

Dr. Rahinah Ibrahim’s lawsuit against the US Department of Homeland Security came to a close this week with an order by Judge William Alsup of the U.S. District Court for the Northern District of California dismissing Dr. Ibrahim’s complaint after the Federal government finally paid  out a settlement to Dr. Ibrahim’s lawyers for successfully representing her in more than a decade of litigation.

The dismissal come more than fifteen years after Dr. Ibrahim was denied boarding and wrongly arrested at San Francisco International Airport when she tried to board a flight to a conference in Hawaii where she was scheduled to present a paper related to her doctoral research in architecture at Stanford University. Dr. Ibrahim was recovering from an emergency hysterectomy and in a wheelchair, and needed assistance from paramedics while in the lockup at the airport before she was eventually released without charges.

Seven years ago, after two interlocutory appeals to the 9th Circuit Court of Appeals and then the first and to date only trial in a case challenging a “no-fly” order by the US government, Judge Alsup ruled that Dr. Ibrahim’s rights had been violated by the government’s secret and wrongful blacklisting of her and denial of her right to travel, and ordered the government to remove Dr. Ibrahim from  its “no-fly” blacklist.

Before the trial, Attorney General Eric Holder signed an apparently perjured declaration certifying that it would cause grave harm to national security to disclose whether or why the government put Dr. Ibrahim on the no-fly list. But in his decision, Judge Alsup revealed what the government had known all along: The only reason Dr. Ibrahim was put on the no-fly list in the first place was that an FBI agent on the mosque-watching detail mistakenly filled out the blacklist and watchlist “nomination”  form incorrectly.

The government chose not to appeal Judge Alsup’s trial judgment, which became final.

But where does that leave Dr. Ibrahim, or her lawyers?

Read More →

Dec 10 2020

Old business for a new administration

What should the new Presidential administration do about the Department of Homeland Security and the associated laws, regulations, and homeland-security industrial complex?

Neither freedom of movement, other human rights, nor the DHS are among the self-described priorities of the incoming Biden Administration.

But for better or worse, it isn’t hard to come up with our short list of recommendations to the Biden transition team and to members of Congress who will be questioning nominees for Secretary of Homeland Security and other DHS leadership positions including the Administrator of the Transportation Security Administration.

The same agenda of unfinished business (PDF) that we called out in our submissions to Congress and the Obama transition team after the election twelve years ago still face the incoming administration today, three Presidential terms later.

These include actions that could have been taken by previous Presidents, and should be taken by the new President, by executive order or by promulgating regulations.

They also include legislation that could and should be taken up by Congress, as well as questions that Congress and the public should ask of nominees for the DHS.

We wish that some of this unfinished business had been attended to by previous administrations and members of Congress.  But it hasn’t. The problems with the DHS and the attacks on freedom of movement are bipartisan. Nothing has been done by either Republican or Democratic administrations or members of Congress to address them.

But we’re here, and we’re not going away. Ignoring these problems won’t make them disappear, or silence the critics of the DHS and the defenders of the right to travel.

It’s time for the President and Congress to act — and for the public to resist if they don’t.

Dec 02 2020

Speaking Spanish is a not a lawful basis for being made to show ID

US Customs and Border Protection (CBP) has agreed to pay a “monetary sum” to two native-born US citizens and Montana residents  who were made to show ID and detained for about 40 minutes (including continuing detention even after they showed their Montana drivers licenses) solely because a CBP agent overhead them speaking Spanish to each other.

The amount of the settlement has not been made public.

The ACLU of Montana represented the two Latinx residents of Havre, MT, in their lawsuit, which initially sought a declaratory judgment “that race, accent, and language cannot create suspicion to justify seizure and/or detention” (which ought to go without saying) in addition to money damages.

The facts alleged in the complaint are supported by cellphone video of a CBP agent’s admission that the detention and ID demand were based solely on the language spoken by the agents’ Latinx victims. On discovery, CBP turned over additional self-incriminating video of statements made by CBP agents in interviews with internal CBP investigators, as well as grossly racist text messages exchanged by the CBP agents. Havre is a border town with two crossing points to Canada, where French is a national language, but the Havre-based CBP agents freely admitted that they wouldn’t treat speaking French as suspicious.

After the lawsuit got local and national publicity, the two plaintiffs and their families were harassed and driven out of town. “At his high school, a teacher asked Mimi’s son whether he had brought his ID to class,” one of the victims says. “Our clients bore the brunt of local backlash as a result of coming forward. They both ultimately left Havre for fear of their families’ safety,” according to the executive director of the ACLU of Montana.

Nov 30 2020

CBP proposes to require mug shots of all non-US citizen travelers

Last December we called attention to plans  by US Customs and Border Protection (CBP) to require mug shots of all travelers entering or leaving the US by air or sea, including US citizens.

Within days, CBP issued a press release falsely accusing us of incorrectly reporting  the official CBP notice of its plans, and saying that it would withdraw its notice the next time the regulatory agenda was published.

So what happened?

Earlier this month, CBP withdrew the notice of proposed rulemaking (NPRM)… and issued a new notice of proposed rulemaking the same day that wouldn’t apply to US citizens, but would require all non-US citizens, including permanent US residents (green-card holders) to be photographed whenever they enter or leave the US by any means: air, land, or sea.

(This proposed rule is for collection of biometrics from international travelers at airports, cruise ports, and land borders. There’s a separate pending proposal which we and others have criticized  for collection of biometrics including fingerprints and DNA samples, in advance of travel, from visa applicants, other would-be US visitors, and their US sponsors.)

At airports, the scheme contemplated by CBP would follow the public/private partnership model that CBP and the Transportation Security Administration (TSA) have been collaborating on with airlines and airport operating authorities in the USA and abroad:

Generally, when travelers present themselves for entry or exit, they will encounter a camera connected to CBP’s cloud-based TVS facial matching service via a secure, encrypted connection…. The camera may be owned by CBP, the air or vessel carrier, another government agency such as TSA, or an international partner governmental agency….

At the departure gate, each traveler stands for a photo in front of a partner-provided camera. Aided by the authorized airline or airport personnel, the partner-owned camera attempts to capture a usable image and submits the image, sometimes through an authorized integration platform or vendor, to CBP’s cloud-based TVS facial matching service.

The key element in this partnership, CBP makes clear, is that airlines and airports will pay to operate cameras and send photos of passengers to CBP, in exchange for getting uncontrolled use of the CBP facial recognition system for their own business purposes:

The hardware cost in the regulatory period will be borne by the carriers and airports who partner with CBP.  CBP will give carriers and airports access to its facial recognition system and the carriers and airports will choose (and pay for) the hardware that best fits their needs. While this partnership is voluntary, CBP expects that all commercial carriers and major airports will elect to participate within five years.

Unless airlines and airports were given free use of the CBP facial recognition service for their own purposes, they would have no business reason to bear the cost of installing and operating cameras at all departure gates, or to send the photos to CBP. CBP has limited authority to force airlines to surveil their customers, so CBP’s scheme depends on successfully bribing them — all of them — to collaborate by giving them free access to the facial recognition service. This quid pro quo is the key to CBP’s confidence in its plans.

Read More →