Papers, Please! – Page 3 – The Identity Project

Apr 01 2024

Tracking vehicles across state lines

As the number of women traveling across state lines to obtain abortions continues to grow (analysis of trends, statistics and map), recent reports have confirmed the reality of some of the ways we feared that motorists traveling for these or other purposes can be identified and tracked.

The ACLU of Northern California and Bob Egelko of the San Francisco Chronicle have reported that, despite a directive from the California Attorney General forbidding California state and local government agencies from sharing automated license plate recognition (ALPR) data with out-of-state entities, police in some California cities are continuing to share this location data with out-of-state police and/or interstate data brokers.

The order from the Attorney General was specifically intended to prevent other states from using ALPR data from California to identity or take action against abortion travelers.

Even if California police bring their practices into compliance with state law and the state Attorney General’s directive, that won’t stop police in other states from buying ALPR data collected by private entities in California — the owner or operator of a parking garage across from an abortion clinic, for example — and aggregated and resold by commercial data brokerages.

Meanwhile, in the New York Times, Kashmir Hill reveals that automobile manufacturers have been selling motor vehicle telemetry information, collected by onboard sensors and control systems and transmitted by cellular data transceivers embedded in euphemistically-named “infotainment” systems, to data brokers including Lexis-Nexis.

While the focus of Hill’s article is on the use of this data by auto insurance companies, law enforcement agencies including the TSA are customers of Lexis-Nexis.

Hill says the data sold in bulk by vehicle manufacturers and disclosed to vehicle owners by Lexis-Nexis in response to requests pursuant to the Fair Credit Reporting Act didn’t explicitly include vehicle location data. But that doesn’t mean that location data isn’t available to vehicle manufacturers or police.

Most vehicles with embedded cellular data transceivers also have embedded GPS receivers. Enabling those systems to send GPS location pings to the manufacturer, if that isn’t being done already, would require only a remote software “upgrade”. As long as the manufacturer has the ability to push out software turning on location reporting, the manufactuerer could be compelled to do so by a court order such as has been used to force other companies to spy on and report travelers’ movements.

The only way to prevent this is not to build this capability into vehicles. But most vehicle purchasers or drivers don’t know that their car has a built-in self-surveillance system with its own wireless data transmitter that “phones home” to the manufacturer, much less what data it transmits or could be silently and remotely enabled to transmit.

That’s not the only threat model inherent in having an embedded SIM and wireless data connectivity built into your vehicle. Because the telemetry system connects to the Internet over the wireless cellular data network, the network operator knows which cell tower the unique SIM in the vehicle is registered with whenever the telemetry system is active, which is generally whenever the vehicle is in operation — and could be switched to be always on.

Law enforcement agencies already use fishing-expedition “geofence” warrants to identify all cellphones in the vicinity of times and places of interest. As the percentage of new vehicles with embedded SIMs and always-on cellular modems continues to increase, they are likely to use similar warrants directed to wireless network operators to identify all the “connected cards” that were registered on those networks in specific locations and times.

We’d welcome reports from anyone who has obtained a complete report of the data collected by either (a) the manufacturer of their vehicle or (b) the operator of the mobile network uses by the vehicle telemetry system. (It may be easier for vehicle owners in Canada than in the USA to obtain this data through access requests under the Canadian PIPEDA law, which has no US counterpart.) We’d also welcome reports from anyone who has tried to opt your vehicle out of manufacturer telemetry or have the telemetry system removed, disabled, or placed under driver control.

Mar 25 2024

City ID and the right to travel

In recent overviews, we’ve discussed the barriers to getting a passport or state-issued driver’s license or ID card (especially in states that have chosen to participate in the national REAL-ID system and database) and the difficulties faced by travelers without ID.

Some cities, notably including New York and San Francisco, have attempted to mitigate the discrimination against their residents who are unable to get Federal or state ID by issuing municipal ID cards.

How useful are these city IDs for travelers without other ID? Do they solve the problem of demands by common carriers for ID to travel by bus, train, or plane?

The short answer is that these city ID cards succeed in mitigating the damage that results from demands for ID to travel, but they aren’t a real solution to the problem.

Here’s what happens if you want to travel with a city ID: Read More →

Mar 21 2024

US Department of Transportation to investigate airline data privacy

Today the U.S. Department of Transportation (DOT) announced plans for a “a privacy review of the nation’s ten largest airlines regarding their collection, handling, maintenance, and use of passengers’ personal information.”

The review will include airlines’ compliance (or not) with the so-called Privacy Shield framework for transfers of personal data from the European Union to the US. As DOT notes on its website, “DOT is the enforcement authority for airlines participating in Privacy Shield. DOT shares jurisdiction with the FTC regarding ticket agents participating in Privacy Shield.”

This is a positive step, but we’re reserving judgment until we see what DOT actually does.

The review is to be conducted by DOT’s Office of Aviation Consumer Protection, which has demonstrated little expertise or interest in privacy issues despite its enforcement authority with respect to airline privacy practices. DOT’s Advisory Committee on Aviation Consumer Protection raised these issues a decade ago, but there’s been little visible change or enforcement activity. And the terms of reference for the review, as described in DOT’s press release today, make it unclear whether DOT will be looking into how personal information in airline reservations is made available to US and foreign governments, or whether DOT’s review will be limited to commercial use of airline data.

Stay tuned.

Mar 20 2024

It’s not a crime not to show ID

In September of 2023, in a case that originated in Huntsville, Alabama, the 11th Circuit Court of Appeals ruled that “It was… clearly established at the time of Mr. Edgar’s arrest that [a police officer] could not demand he produce physical identification. And because Officer McCabe’s demands for an ‘ID’ or a ‘driver’s license’ went beyond what the statute and state law required of Mr. Edger, she violated clearly established law. Under this set of facts and these precedents, no reasonable officer could have believed there was probable cause to arrest Mr. Edger for obstructing governmental operations by violating [Alabama Code] § 15-5-30.”

Apparently, the police in Andalusia, Alabama didn’t understand this already clearly-established state and Federal law, and didn’t get any training about this decision.

On February 23, 2024, a police officer in Andalusia arrested Ms. Twyla Stallworth in the doorway of her own house for declining to show ID and (correctly) telling the officer that she wasn’t required to show ID, least of all in her own home. “Provide ID or go to jail,” arresting officer John G. Barton of the Andalusia Police told Ms. Stallworth.

Toward the end of this cellphone video recorded by Ms. Stallworth’s son, Officer Barton specifically cites Alabama Code § 15-5-30 — the law the 11th Circuit found was already clearly established not to require showing ID or to provide a basis for such an arrest — as his basis for arresting Ms. Stallworth.

Officer Barton took Ms. Barton away in handcuffs even after he read the text of this law to her son, who pointed out to the officer (correctly, and as the 11th Circuit had recently found was already well established) that the law does not require anyone to show ID.

The charges against Ms. Stallworth were dismissed, and after she got a lawyer the Mayor of Andalusia publicly apologized to her. The Mayor described the arrest as a “mistake”, said that Officer Barton “has been disciplined” in an unspecified manner, and promised that “the entire [Andalusia Police] department will receive additional training on Constitutional law, the laws of the State of Alabama, and the City of Andalusia’s ordinances.”

One lesson of this incident, of course, is of the importance of recording the police. We doubt Ms. Stallworth would have gotten an apology without video of what happened.

But as it relates to demands for ID, here’s the takeaway:

The law is clear: Stating your name is not the same as showing ID.

There are some states in which state law requires you to (verbally) identify yourself to a police officer (who has identified themself as a police officer), by stating your name, if and only if there is probable cause to suspect you of some other crime. There are some activities such as driving a motor vehicle that require a license.

There is no US state in which — as a pedestrian, a passenger in a car driven by someone else, or in your own home — you are required to have, carry, or show ID, even if you are stopped and questioned and there is probable cause to suspect you of some other crime.

If police ask to see your ID, and you aren’t driving or doing something else that requires a specific license, you have the right to just say “No”.

Mar 19 2024

Unanimous Supreme Court rules that no-fly case can go forward

In a unanimous 9-0 decision announced today, the US Supreme Court has ruled that a lawsuit brought by Yonas Fikre challenging the US government’s placing him on its no-fly list can go forward even though the government has, for the time being (and only after he sued), taken him off its travel blacklist.

Mr. Fikre is a US citizen who was put on the US government’s “no-fly” list while he was traveling overseas, in order to pressure him to become an informer working for the FBI to spy on members of a mosque he had attended back home in Portland, OR. As a result of being unable to return to the US, he was eventually arrested (at the behind-the-scenes instigation of the US, he plausibly claims) for overstaying his visa, tortured and further interrogated (also at the behest of the US, he claims, also plausibly), and again told he could be removed from the no-fly list — and thus allowed to be released from immigration detention and deported to the US — if he became an FBI informer.

The Supreme Court’s unanimous decision is narrow but important. The government has never, so far as we can tell, actually tried to defend any of its no-fly decisions and orders in court. Instead, the government has tried to avoid judicial review of either its decision-making procedures (as the Supreme Court notes in its opinion today, “no statute or publicly promulgated regulation describes the standards the government employs when adding individuals to, or removing them from, the list”) or the substantive outcomes (a striking pattern, publicly-revealed when the list was leaked, of anti-Muslim bigotry).

The government’s two-prong strategy for avoiding judicial review has been to argue that the evidentiary basis (if any) for no-fly decisions is a state secret that can’t be disclosed even to judges, much less the subjects of no-fly orders, and to try to render the remaining cases “moot” by taking those who lawyer up and sue off the blacklist before their cases can come to trial, as it did with Mr. Fikre once he was back in the US.

The Supreme Court’s decision today deals solely with the “mootness” issue. So little has been revealed about the government’s actions in putting Mr. Fikre on, and later off, the no-fly list that there is no basis for confidence that the government actions that he complained of in his lawsuit won’t recur if the case is dismissed.

The unanimous opinion, written by Justice Gorsuch, didn’t reach the question of classified or “privileged” information or “state secrets”. Those issues remain to be addressed as the case proceeds on remand in the U.S. District Court for the District of Oregon. Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion agreeing with the judgment that the case was not moot, but stressing that they “do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course” and that it might be possible to decide the case on the basis of unclassified evidence.

Gadeir Abbas, the lawyer for the Council on American Islamic Relations (CAIR) who argued Mr. Fikre’s case before the Supreme Court, said after today’s decision was announced, “The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”

We congratulate Mr. Fikre and his lawyers for standing up for all blacklisted Americans. Fifteen years after he was blacklisted by his government and ten years after he filed his lawsuit, Mr. Fikre is still a long way from a trial or a ruling on the merits of his case. Today’s ruling is a step toward justice, but shouldn’t be misunderstood as meaning that “the system works” or that Mr. Fikre has been “given his day in court”.

We wish Mr. Fikre and his lawyers all success on remand in the District Court in Portland.

Mar 18 2024

Buses, trains, and US domestic travel without ID

In our previous article, we looked at the state of ID requirements and the the right to international travel for U.S. citizens.

What about domestic travel within the USA without ID?

Flying? Domestic US airline passengers are subject to demands for ID by airlines and the TSA. These demands are of dubious validity, and have arbitrary secret exceptions. Many people fly without ID every day. But not everyone is able or willing to challenge these authoritative-seeming demands for ID to fly.

Driving? States that choose to participate in the national REAL-ID system are making it harder and harder to get driver’s licenses or state IDs. It’s easier for a US citizen to get a passport or passport card than to get a driver’s license in some states. But you can’t legally drive in the US without a driver’s license issued by a state, US territory, or foreign government.

Unless you walk, ride a horse or bicycle, or get a ride in a car driven by someone else, that leaves buses and trains as the primary modes of long-distance travel for people in the U.S. without ID.

Can you take a long-distance bus or train in the US without ID? And if not, what could or should be done to guarantee that right? Read More →

Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

Feb 16 2024

FOIA follies at the State Department

It’s sometimes hard to say which Federal agency does the worst job or displays the most bad faith in responding (or not responding) to Freedom Of Information Act requests.

But the latest actions by the FOIA office of the Department of State certainly place near the top of our all-time scorecard of FOIA follies.

In the past, our worst FOIA experiences have been predominantly with the Transportation Security Administration (TSA) and other components of the Department of Homeland security (DHS). There was the time the TSA’s Chief Privacy [sic] Officer circulated libelous statements about us to the FOIA offices of all DHS components, in the hope of influencing them not to take us or our requests seriously, and then the TSA FOIA office tried to hide this misconduct from us by illegally redacting the libelous lines from the versions of their internal email messages that they released to us. We found out only when another staff person accidentally sent us an unredacted copy of the incriminating TSA email.

For more than a decade, the TSA FOIA office has included knowingly false bad-faith boilerplate in every letter or email message it sends about any FOIA request, claiming that “This office can be reached at 571-227-2300”. That same number and a toll-free number that goes to the same line, 866-364-2872, are the only phone numbers listed on the FOIA section of the TSA’s website or on FOIA.gov. But as anyone can easily verify, that number is answered by an automated system of recorded messages with no option even to leave a voicemail message, much less to reach any human being. The recording played at that number begins, “This phone line is not staffed by FOIA employees.” It’s impossible to contact the FOIA office, or to contact anyone, at that number.

The recorded phone messages advise FOIA requesters to contact the TSA FOIA office by email, but our email messages to that office are rarely answered. It’s unclear if they are received and ignored, or not received at all. If your email to the TSA FOIA office is filtered out as spam, there’s no way to know, or to follow up by phone. When we wrote to the TSA’s FOIA Public Liaison about this, at the address in their letters and on their website, by certified mail, return receipt requested, our letter was returned marked “Vacant. Unable to Forward.”

So what has the State Department done to rival the TSA’s record of FOIA bad faith?

The saga begins at some unknown date more than a decade ago, when the State Department began singling out some arbitrarily selected subset of disfavored applicants for U.S. passports and illegally demanding that they fill out a bizarre supplemental “long form” passport application asking questions such in what church they were baptized, every address at which they had ever lived, and every employer for which they had worked. (Imagine trying to fill that out if you worked as a casual laborer.)

The selective imposition of a deliberately more difficult questionnaire for some applicants is disturbingly reminiscent of the “Jim Crow” practice of selectively requiring African-American applicants for voter registration to answer a more difficult version of a literacy or civics questionnaire.

The Paperwork Reduction Act requires that all forms like this be approved by the Office of Management and Budget before members of the public can be required to fill them out, but the State Department never submitted this passport form to OMB.

In 2011, however, the State Department asked OMB to approve an even longer supplemental “long form” for certain applicants for U.S. passports, adding questions such as your mother’s address one year prior to your birth, the dates of each of your mother’s pre-natal medical appointments, a complete list of everyone who was in the room when you were born, and whether (and in what circumstances) you were circumcised.

We filed a FOIA request in April 2011 with the State Department to find out how long this and similar unapproved forms had been in use, how many passport applicants had been singled out for this second-class treatment, and how they were selected.

In July of 2011, we filed another FOIA request to find out what had happened to our unanswered complaints of human rights violations by the State Department, including those related to passport issuance and requirements.

Jan 23 2024

IDs and mug shots now required from all corporate principals

This month the Financial Crimes Enforcement Network (FINCEN) division of the Department of the Treasury began collecting copies of passports, drivers licenses, and other ID documents submitted by officers and owners of all sorts of companies.

In other words, you now have to have a government-issued ID and provide an image of it, probably including your photo, to the Federal government in order to establish, serve as an executive of, or hold a major interest in almost any type of corporation, LLC, partnership, trust, etc. (with some odd and irrational exceptions).

Jan 08 2024

Supreme Court hears arguments in “No-Fly” case

Gadeir Abbas speaking in front of the steps of the US Supreme Court

[CAIR Senior Litigation Attorney Gadeir Abbas speaks to press conference in front of the U.S. Supreme Court following oral argument in FBI v. Fikre.]

Today the US Supreme Court heard more than an hour of oral argument (transcript, MP3 audio) in the case of FBI v. Fikre, the latest in a series of cases in which the government has tried to avoid having a judge or jury review the criteria, procedures, and factual basis (if any) for no-fly decisions by removing previously blacklisted people from the no-fly list after they sue the government, and then asking courts to dismiss their lawsuits as “moot”.

In order to get such a complaint dismissed as “moot”, the government has the burden of showing that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, according to the District Court.

Inquiring minds on the Supreme Court wanted to know how the government could meet that burden — or whether it could ever do so — without disclosing the basis for the initial no-fly decision and/or what changes had been made to no-fly decision-making criteria or procedures.

Several Justices expressed “sympathy” with the government, but concern for due process:

Justice Gorsuch, for example, wanted to know why the government wouldn’t even tell a judge in a “Sensitive Compartmented Information Facility” (and maybe the plaintiff’s lawyer, if the government would give them a security clearance) anything about a no-fly decision: