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The Identity Project

Oct 03 2018

3rd Circuit to reconsider impunity of TSA checkpoint staff

Good news: The 3rd Circuit Court of Appeals has decided to reconsider whether, as a panel of that court decided earlier this year, TSA checkpoint staff should have legal impunity to assault or otherwise violate the rights of travelers without consequences.

When it was issued in July 2018, we said that “The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.” There was a well-argued dissent by one of the three members of the panel.

The majority of the panel recognized that the job of TSA checkpoint staff is to search travelers, but then somehow managed to conclude that they aren’t “officer[s] of the United States who [are] empowered by law to execute searches.” The majority of the panel also went outside the factual record to base their decision on false speculation that TSA checkpoint staff don’t conduct searches for general law enforcement purposes.

Based on these arguments and “facts”, the panel majority found that TSA staff are immune from lawsuits for travelers, even if they admit to assaulting travelers.

The decision by a majority of the judges of the 3rd Circuit to grant rehearing en banc in the case of Pellegrino v. TSA voids the original opinion by a three-judge panel. The appeal will now be re-argued de novo, after new briefing, before all of the judges of the 3rd Circuit.

Let’s hope that the full court gets it right this time, and recognizes that TSA checkpoint staff are not above the law.

Oct 01 2018

Yes, the DHS wants mug shots of all air travelers

A new report by the DHS Office of Inspector General (OIG) gives perhaps the most detailed official picture to date of the US government’s plans for ed biometric identification, tracking, and control of international air travelers through automated facial recognition.

Contrary to specious claims in DHS propaganda that the current rollout of mug-shot machines at departure gates at airports across the country is “only a test,” the DHS OIG reports that US Customs and Border Protection (CBP) plans to expand the mug shot and automated facial image recognition program from 6 million air travelers in 2018 to 60 million in 2019, 120 million in 2020, and 129 million — 100% of international airline departures from the US — by 2021.

But that’s not all. “Over time, the program plans to … incrementally deploy biometric capabilities across all modes of travel — air, sea, and land — by fiscal year 2025,” according to the OIG report.

The scope of these plans should make clear that the only thing being “tested” is whether travelers will submit to this program, not whether it is justified or what interests it serves.

The OIG report mentions that US citizens have been “allowed” to opt out of the airport mug shot “pilot program “, but doesn’t say whether they were told they had a right to do so:

CBP allowed U.S. citizens to decline participation in the pilot. In such cases, CBP officers would permit the travelers to bypass the camera and would instead check the individuals’ passports to verify U.S. citizenship. When a U.S. citizen opted to participate in the pilot but did not successfully match with a gallery photo, the CBP officer would examine the individual’s passport but did not collect fingerprints. We observed biometric screening at four airports — a total of 12 flights — during our audit and witnessed only 16 passengers who declined to participate.

[Note the absence of any apparent notice that US citizens can “opt-out”.]

In preparing their report, OIG staff “met with a number of external stakeholders, including the Airlines for America trade association, Delta Airlines, JetBlue Airlines, and British Airways.” Notably, however, OIG made no attempt to consult consumer, civil liberties, or human rights organizations or to consider their objections to mandatory mug shots.

The only objections noted in the OIG report came from airlines and airport operators. But it would be a mistake to interpret this as “resistance” from the airline industry to biometric surveillance of airline passengers through automated facial recognition.

The OIG report makes clear that the only thing being disputed by airlines and airports is who will pay for equipment and staff, not whether these systems will be deployed: Read More →

Sep 25 2018

9th Circuit says government can’t moot challenge to “no-fly” order

In a blow to the US government’s evasion of judicial review of no-fly and blacklisting decisions, the 9th Circuit US Court of Appeals has reinstated a lawsuit against the government by Mr. Yonas Fikre, a US citizen who was effectively exiled from the US and consigned to imprisonment and torture abroad by being placed on a “No-Fly” list, in an attempt to pressure him to become an FBI informer, while he was overseas.

Unwiling to become an FBI informer — even when he was tortured to do so — and unable to return to the country of his citizenship, Mr. Fikre fled to Sweden, where he applied for political asylum. In a successful effort to smear Mr. Fikre and thwart his asylum claim in Sweden, the US then had him indicted on trumped-up charges related to his business (and having nothing to do with terrorism, violence, aviation, or dangerousness).

Mr. Fikre’s application for asylum in Sweden was denied, and Sweden paid to deport Mr. Fikre to the US (by private jet, because the US wouldn’t allow him on any airline flights). The bogus charges against Mr. Fikre were promptly dropped once he got back to the US. But he has been unable to resume his international business career without being able to count on being able to travel from and to the US without US government interference.

The decision by the 9th Circuit panel in Fikre v. FBI overturns the dismissal of Mr. Fikre’s complaint as “moot” by a US District Court judge in Oregon after the government defendants told the court that Mr. Fikre’s name had been removed from the no-fly list.

The 9th Circuit allowed the case to proceed, finding that there was no guarantee that the actions Fikre complained of, and the violations of his rights, wouldn’t recur:

Because there are neither procedural hurdles to reinstating Fikre on the No Fly List based solely on facts already known, nor any renouncement by the government of its prerogative and authority to do so…  Fikre’s due process claims are not moot.

Read More →

Sep 24 2018

Will the government get mug shots of all air travelers?

The dispute over government-mandated biometric identification of travelers through automated facial recognition continues to sharpen.

ID document requirements for air travel have been imposed on a de facto basis by DHS administrative fiat without ever having been approved by Congress or authorized by law.

In a similar way, requirements for US citizens to submit to mug shots — either by components of the Department of Homeland Security or by airlines, airport operators, or contractors who share photos with DHS — are being imposed on a growing scale without any Congressional debate or statutory  basis.

Last week the World Privacy Forum submitted a petition for rulemaking asking the DHS to “provide formal notice and solicit public comments pursuant to the Administrative Procedure Act” before proceeding with further “trials” of biometric identification of travelers: Read More →

Sep 18 2018

Globalization and policy laundering of travel control

An interview with the head of US Customs and Border Protection (CBP) published this month by the U.S. Military Academy as part of a “View From The Foxhole” series provides an unusually revealing, and disturbing, picture of the expansion and globalization of surveillance and control of travelers. It also highlights the ways that policy is being “laundered” through the rationale of “compliance with international standards” to avoid any domestic political debate in the US or other collaborating countries.

CBP Commissioner Kevin K. McAleenan begins his overview of the role of the CBP by referring to “people who are… seeking that permission to travel to the United States”.

But US citizens don’t need “permission” from CBP or any other government agency to travel to the US. McAleenan’s comment makes clear the extent to which the US government has arrogated to itself, and now takes for granted, the illegitimate authority to condition the exercise of the right to freedom of movement on government permission.

CBP Commissioner McAleenan doubles down by asserting that “we have the responsibility to interview and inspect all travelers and make decisions on whether they present a risk.”

But that’s not true either. CBP’s authority to inspect travelers is limited to determining whether there is probable cause to charge them with violations of the law. We have a system of criminal law, not a pre-crime system of “risk-based” predictive denial of rights.

Read More →

Sep 04 2018

The US State Department is still denying passports to US citizens

A report in the Washington Post last week has brought renewed attention to the US State Department’s ongoing denial of passports to many US citizens.

The Washington Post story focuses on Mexican-Americans whose passports have been revoked or whose applications for new or renewal passports have been officially or effectively denied, and suggests that, “under President Trump, the passport denials and revocations appear to be surging.”

We’ve been pointing out the varied methods and manifestations of these State Department practices for years. As a result, we’ve become a common point of contact for US citizens seeking to exercise their right to travel and to obtain redress for passport denials and revocations.  We welcome additional spotlighting of these issues.

But it’s important to recognize that these practices are not new; are not limited to Mexican-Americans, Hispanic-Americans, Muslims, and/or immigrants; did not originate with the Trump Administration; and rely on administrative mechanisms first given official approval by, and on the initiative of, the Obama Administration.

Nor are these practices limited to passports and international travel. Similar restrictions on issuance and renewal of drivers’ licenses and state ID cards being imposed as a result of the REAL-ID Act of 2005 are already causing similar problems for travel within the US.

These practices and problems reflect a bipartisan and constant trend, throughout the Bush, Obama, and Trump Administrations, toward growing use of ID requirements and controls on the issuance of ID credentials to control the movement of both US citizens and foreigners, within the US as well as across international borders.

Here’s the back story to the latest reports on passport denials and revocations, with links to some of the more detailed articles about it that we’ve published over the years: Read More →

Aug 31 2018

A broader legal challenge to Federal blacklists

1. The federal government has imposed a kind of second-class citizenship on the Plaintiffs. Without charges, without arrests, without even an investigation sometimes — the agency defendants act in concert to deprive thousands of innocent Americans, mostly Muslim, of their right to be free from a government that extrajudicially designates them as worthy of permanent suspicion.

2. That permanent suspicion has sweeping consequences for the Plaintiffs as well as the more than one million others who bear it. They are separated from their children, denied employment opportunities, prevented from traveling by air to attend weddings and funerals, and denied or delayed immigration benefits. The rights of Plaintiffs to purchase firearms, to wire money and keep a bank account, to receive their passports and be granted visas to foreign countries are all constrained. For one plaintiff, the Defendants’ actions have diminished his standing and ability to provide religious leadership to his community.

3. Through an interagency watchlisting system, led by Defendants’ Watchlisting Advisory Council, the Defendants have identified the Plaintiffs as worthy of permanent suspicion, imposing burdens and disabilities on them in all aspects of their lives.

4. In deciding to target the Plaintiffs, the watchlisting system behaves lawlessly, acting in the absence of and — in some ways — in opposition to what Congress requires of its agencies.

5. To identify its targets, some parts of the watchlisting system, such as the Terrorism Screening Database (“TSDB”), utilize a nonsense-on-stilts standard that is always satisfied. Other parts, such as TSA’s Quiet Skies initiative, do not use any standard and instead rely upon the inarticulate hunches of federal officials, rank profiling, and vulgar guilt-by-association practices.

6. Through their watchlisting system, the federal government makes it known — to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

So begins the complaint filed earlier this month in Federal court in Maryland in the broadest legal challenge to date to the US government’s sweeping program of extrajudicial blacklisting and restriction of the rights of US (and foreign) citizens.

Read More →

Aug 28 2018

CBP expands partnership with airlines on facial recognition

This month US Customs and Border Protection (CBP) posted the latest in a series of Privacy Impact Assessments (PIAs) for its Traveler Verification Service (TVS) program.

The  latest PIA gives notice (although not in the form required by Federal law) that CBP and its airline and airport  partners are carrying out a second expanded phase of “demonstrations” of TVS, an identity-as-a-service scheme designed to use automated recognition of images from a shared CBP/airline/airport database of facial photos for purposes including surveillance and control (for CBP) and business process automation and price personalization (for airlines and airports).

CBP (1) describes TVS as a “biometric exit” program, (2) describes the current use of TVS as merely a “demonstration”, (3) continues to claim that airlines and airports “have no interest in keeping or retaining” facial images any longer , or using them for any other purposes, than is required by CBP for “security”, and (4) says that U.S citizens aren’t required to submit to mug shots.

These claims are intended to lull the public into not protesting: “This is only a test, using photos for limited purposes. The photos will be deleted once you get on the plane, and not used for nay commercial or other purpose.” And so forth.

All that might be somewhat reassuring, if any of it were true. But  none of it is:

Read More →

Aug 05 2018

New lies from a Federal official about ID requirements

In a speech this week in Florida, President Trump falsely claimed that, “You know, if you go out and you want to buy groceries, you need a picture on a card, you need ID. You go out and you want to buy anything, you need ID and you need your picture.”

Some commentators have expressed surprise that a high Federal official would make a claim about an ID requirement for an everyday activity, when (1) that claim is false, and known to be false by all of the people who engage in that activity without having ID, (2) that claim is not based on any law or regulations, and (3) any such law or regulation would exceed the government’s authority and likely be subject to legal challenge.

Whether Pres. Trump is so out of touch with the reality of ID requirements that he made this claim in sincere ignorance, or whether he knew it was false, it comes as no surprise to us.

Rather, Pres. Trump’s false claim that you need ID to buy groceries is perfectly consistent with the pattern of lies about ID requirements by high Federal and state officials, especially the big lie that you need ID to fly.

Hundreds of people fly without ID every day, just as tens of millions of people every day buy groceries without showing ID.  No current or proposed law or regulation requires air travelers to show ID, and any such law would be invalid as a violation of human rights recognized by the US Constitution and international treaties.

Claims by the Secretary of Homeland Security and state driver licensing agencies that you need (or will need) ID to fly are as baseless as Pres. Trump’s claim that  you need ID to buy groceries. Anyone who has ever flown without ID — perhaps after their ID was lost or stolen, perhaps because they forgot their ID, or perhaps because they don’t have ID — knows that these claims are false.

But rather than questioning or fact-checking these baseless claims by the DHS and state agencies, or mocking the officials who make these false claims about ID to fly the way they have mocked Pres. Trump for his false claims about ID  to buy groceries, major news media have reprinted this fake news about ID to fly as fact.

The real lesson to be learned from the obvious falsehood of Pres. Trump’s claims is that you can’t trust the government to tell you the truth about ID requirements or your rights. You need to know your rights, assert them, and be prepared to defend them in court — or the false government claim that you have no rights will become a self-fulfilling myth.

We hope that this incident leads more journalists and members of the public alike to question the truth and the legitimacy of government claims about ID “requirements”.

Jul 29 2018

Federal Air Marshals blow the whistle on TSA “Quiet Skies” traveler surveillance program

Jana Winter has a detailed investigative report on the front page of today’s Boston Globe about a previously secret TSA program of illegal surveillance of innocent air travelers, “Quiet Skies”.

According to the story in the Globe, based in part on descriptions and documents  apparently leaked by dissident Federal Air Marshals, the “Quiet Skies” program selects certain airline passengers, who aren’t on any blacklist (“watchlist”) or under investigation for any crime, on the basis of algorithmic profiling, countries previously visited (merely traveling to Turkey has been enough to get some people selected), phone numbers or email addresses, and/or other factors in DHS files about them.

A FAM or team of FAMs is assigned to follow each targeted traveler from the time they arrive at their airport of origin (which the TSA knows from its access to airline reservations through the Secure Flight program), onto and on the plane, through any connecting airports, and until the unwitting target of their surveillance leaves the airport at their final destination.

The FAM gumshoes are required to file detailed reports on each traveler they are assigned to stalk, including a checklist of details such as whether the person being tailed used the toilet in the airport or on the plane, whether they slept for most of the flight or only briefly, and whether they had “strong body odor” or engaged in “excessive fidgeting.”

Is this the reincarnation of J. Edgar Hoover’s FBI, the (re)emergence of an American Stasi, or standard operating procedure for a government that regards travel as inherently suspicious, rather than as the exercise of human and Constitutional rights?

All of the above, unfortunately.

The story in the Globe speaks for itself, and is worth reading in full.

But lest it be misunderstood, here are some key points about what today’s news reveals, what’s new and what isn’t, and why it’s significant:

Read More →