Papers, Please! – Page 35 – The Identity Project

Dec 09 2015

No passports for US citizens who haven’t paid taxes or don’t have a Social Security number

Buried in the Fixing America’s Surface Transportation Act (“FAST Act”) signed into law last week is an unrelated rider to provide for revocation of the passport and/or refusal to issue a passport to anyone against whom the IRS has assessed a lien or levy for $50,000 or more in tax debt, or who doesn’t provide a valid Social Security number.

Since a change in Federal regulations in 2009 eliminated the last exception for crossing land borders to or from Canada and Mexico, it is a violation of Federal law “for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.”

This requirement for a passport can be “waived” at the “discretion” of the Department of State. But there is no right to a waiver, no formal procedures or standards for requesting such a waiver, and no apparent mechanism for judicial review of denial of a waiver.

So denying or revoking a US passport amounts to closing the US borders to that US citizen.

A US citizen who is denied a passport, or whose passport is revoked, is still a US citizen even if they are unable to exercise the rights of a citizen. As a citizen, they are still liable for US taxes on their worldwide income and assets, even if they are living outside the US. So any tax debt will continue and is likely to increase with interest, penalties, and new taxes.

It’s not clear at whom, or at what conduct, this new provision in US law is directed.

Are Congress and the President concerned that suspected criminal violators of the tax laws might flee the country before they can be charged or arrested? So much for the presumption of innocence, the distinction between tax debts and crimes, and the Constitutional prohibition on imprisonment for debt.

Is the intent to prevent tax debtors from spiriting their untaxed assets out of the country before they can be seized? If so, restrictions on personal movement are both overbroad and likely to be ineffectual. Most international transfers of wealth occur electronically, and most cross-border shipments of tangible goods are in the form of unaccompanied freight, not accompanied luggage.

Is the goal to exile tax debtors from US territory? Many of the US citizens who might be assessed large tax debts are already living outside the US. Under international human rights treaty law, the right to enter the country of one’s citizenship is the most absolute of the rights of freedom of movement: “There are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”

Denial or revocation of a US passport under this new law is an elaborate five-step process, although most of the steps are purely clerical:

The IRS “assesses” a tax liability of at least $50,000 in 2016, or the equivalent amount adjusted according to the cost of living index in future years.
The IRS issues a lien or levy for the tax assessment (again, for at least $50,000 or the latest adjusted equivalent).
The Commissioner of Internal Revenue certifies the existence of this assessment and lien or levy to the Secretary of the Treasury (the head of the parent department of the IRS), and notifies the citizen of this certification and of their right to challenge it in court.
The Secretary of the Treasury transmits the IRS certification to the Secretary of State
Once the State Department receives this certification, it must not issue a new passport to the citizen, and may (apparently at the standardless discretion of the Secretary of State) revoke any current passport.

There are some options, but they are entirely at the discretion of the Secretary of State:

If the Secretary of State decides to revoke a passport…, the Secretary of State, before revocation, may — (i) limit a previously issued passport only for return travel to the United States; or (ii) issue a limited passport that only permits return travel to the United States.

The law also permits (although it does not require — more standardless discretion for the Secretary of State) the denial of any application for a US passport that doesn’t include a valid Social Security number.

There’s an impunity clause in the law, although it’s unclear to what if any extent it is Constitutional, that attempts to protect government agents from liability for violating US citizens’ right to travel:

The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue.

There is a procedure for judicial review, but only of the certification of a tax assessment and lien or levy:

After the Commissioner notifies an individual … , the taxpayer may bring a civil action against the United States in a district court of the United States or the Tax Court to determine whether the certification was erroneous or whether the Commissioner [of Internal Revenue] has failed to reverse the certification. If the court determines that such certification was erroneous, then the court may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.

The new law is silent on what, if any, redress is available, or through what procedures, for a US citizen whose right to travel is violated when they are denied a passport, their passport is revoked or restricted, or they are subsequently prevented from entering or leaving the US. Responsibility for the deprivation of rights is divided among three Departments: Treasury certifying a tax debt, State denying or revoking a US passport, and DHS enforcing the passport requirement at airports and borders.

A citizen could bring an action for a writ of mandamus ordering the State Department to issue a passport, which in some other cases has prompted the State Department to issue a passport before the case could be decided.

Or a citizen could bring an action for an injunction prohibiting the DHS from interfering with their entry or exit to or from the US.

In either case, we look forward to a declaratory judgment that this law is unconstitutional, and violates US obligations as a party to the International Covenant on Civil and Political Rights.

Nov 16 2015

The human rights of migrants in transit

Last year the UN Office of the High Commissioner for Human Rights (OHCHR) developed and promulgated a set of “Recommended Principles and Guidelines on Human Rights at International Borders”, including respect for the right to freedom of movement, on which we made recommendations at the invitation of the OHCHR.

As a follow-up, and in response to ongoing refugee crises in Europe and elsewhere, the OHCHR has been tasked by the UN Human Rights Council with preparing further recommendations in relation to the rights of migrants in transit, including, “[e]xit restrictions … and the externalisation of border controls which could have an impact on the human rights of migrants in transit.”

Our latest recommendations to the OHCHR focus on the human rights implications of restrictions on travel by common carrier:

As we discussed in our previous submission to the OHCHR concerning the human rights of migrants, refugees, and asylum seekers, the right to leave any country is routinely and systematically violated – even where there is no explicit requirement for an “exit permit” – through (1) requirements for identity credentials or other travel documents as a condition of travel by common carrier, without respect for the right to leave any country and to return to the country of one’s citizenship regardless of what, if any, credentials or documents one possesses, (2) requirements for “screening” and approval of common carrier passengers that amount to de facto exit visa, transit visa, and/or entry visa requirements, (3) sanctions imposed on common carriers to induce carriers not to transport certain would-be passengers, on the basis of decisions not made, and not subject to appeal, through effective judicial procedures, and (4) failure by governments to enforce the duties of common carriers to transport all would-be passengers, regardless of their legal status or possession of documents.

Some of the most important decision-makers for asylum seekers, refugees, and other migrants are airline and other common carrier ticket sellers and check-in staff. Many eligible asylum seekers are unable to reach places of refuge, and others die trying, as a direct result of improper denial of transportation by common carrier staff.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

When airlines or other common carriers deny passage, they often claim that they are doing so in compliance with government mandates or government-authorized carrier “discretion”. But decisions about these “mandates” and how to apply them, and about the scope of common carrier “discretion”, are enforced not by judicial or police personnel but by airline or other common carrier staff, or by contractors, at the points of ticket sales, check-in, or boarding. As a result, it is almost impossible for would-be passengers to obtain judicial review of carrier decisions to refuse ticket sales, check-in, or boarding.

Asylum seekers who are trying to leave a country where they are subject to persecution, and who are denied transport, are unlikely to have access to effective judicial review and redress through the courts of the country that is persecuting them. Airlines know that they can violate the rights of asylum seekers with de facto impunity.

Respect for the right to freedom of movement requires significant changes in the practices of carrier staff. To fulfill their human rights obligations, governments need to ensure that common carriers are aware of, and respect, the right to freedom of movement.

[More.]

Nov 09 2015

Accurint exposed as data broker behind TSA “ID verification”

The most recent documents released in response to one of our Freedom of Information Act (FOIA) requests may have identified the data broker powering the TSA’s “ID verification” system as Accurint — the current incarnation of a component of the discredited and supposedly disbanded Total Information Awareness program — rather than Acxiom as we had speculated (and as had powered other TSA passenger-profiling schemes).

We found this clue to the company behind the curtain in the daily reports on the operation of the TSA Identity Verification Call Center (IVCC) that gets the call whenever someone tries to fly without having, or without being willing to show, government-issued ID satisfactory to the TSA or contractor staff at an airport checkpoint:

Over the past 48 hours the IVCC experienced on-going internet connectivity issues that caused IVCC operations to be disconnected from Accurint and WebEOC databases…. The interrupted service resulted in extended call times when either database conductivity was abruptly discontinued or unavailable. At approximately 1430, TSOC IT contacted the Accurint Customer Support who indicated the issue was internal to Accurint. At approximately 1615, service appeared to be restored. At 1900, the connectivity issue resurfaced but with limited impact to operations. The TSOC Network Engineer is monitoring the Accurint situation and EMOC Security is working to identify and resolve those issues separate to Accurint.

This report strongly suggests that it’s Accurint that provides the database and “verification” algorithms used by the IVCC, the TSA, and TSA contractors to decide who to allow to fly, and who not to allow to fly. There’s no other apparent reason why the IVCC would need connectivity to Accurint, or why an outage in IVCC connectivity would would be significant.

Who are these guys? It’s a shell game of acronyms, acquisitions, and corporate restructuring.

Accurint is a service of the LexisNexis brand of the UK-incorporated RELX Group plc, which until June 2015 was named Reed Elsevier. The aggregated “garbage in, garbage out” database and pre-crime profiling algorithms used by Accurint for “ID verification” were developed by a company called Seisint, under contracts (brokered in part by Rudy Giuliani’s influence-peddling consultancy) to the DHS and Department of Justice, for the MATRIX (Multistate Anti-Terrorism Information Exchange) component of Total Information Awareness (TIA).

In the midst of public controversy over MATRIX, TIA, and other aspects of Seisint and its operations, Seisint was acquired by Reed Elsevier for $775 million in 2004. Seisint’s Accurint service was folded into LexisNexis, part of what is now RELX Group plc.

“Matrix reloaded”?

Here’s what Megan Kaushik of the Brennan Center for Justice found when she tried to find out what’s in Accurint’s files about herself:

After an exhaustive search, I ultimately received records from … LexisNexis’s Accurint…. The report[] listed every phone number and address I had ever been associated with, from my college mailbox to the relative’s home where I’d forwarded mail while abroad. Accurint listed the apartment I rented while interning in DC, along with the names and phone numbers of its current occupants. It even provided the sale price and mortgage on each home I’d lived in.

Surprisingly, much of the information was also inaccurate….

Accurint listed someone named Florinda as “Associated with Subject’s SSN” though it assured me this “doesn’t usually indicate fraud.”

Obtaining my data … was difficult. Amending incorrect information was impossible. Unlike Canada or the UK where data brokers must allow individuals to access and amend their data, American law lacks such requirements. Accurint’s report stated it “may not contain all personally identifiable information in our databases” and they “do not verify data, nor is it possible to change incorrect data.”

In addition, “LexisNexis does not suppress personal information from databases used by law enforcement customers,” regardless of whether LexisNexis knows it to be inaccurate or misleading. As we said earlier, “garbage in, garbage out”. All the garbage, no matter how much it stinks.

Since its latest latest corporate restructuring in June 2015, Accurint has been operated by a UK corporation, RLEX Group plc. Stock in RLEX Group plc is owned partly by a UK-based and partly by a Netherlands-based parent corporation. But there’s no US-incorporated subsidiary to shield RLEX Group plc, as a UK corporation, from its obligation to comply with UK law in its worldwide operations, whether in the US or anywhere else.

Many of Accurint’s policies and practices with respect to its services for the TSA and other law enforcement agencies appear to violate both the LexisNexis privacy policy and, more importantly, the obligations of RLEX Group plc pursuant to UK and European Union data protection law. The governing factor under UK and EU law appears to be that the data controller for Accurint, RLEX Group plc, is legally domiciled in the UK.

It doesn’t help rescue RELX Group plc from liability under UK and EU law that it has relied on self-certification that it complies with the “safe harbor” framework, which has now been ruled legally inadequate, as the basis for transferring personal data to entities in the US such as the TSA.

Accurint also integrates social media data from “Twitter, Tumblr, Disqus, Foursquare, WordPress, Instagram, Facebook, Google+, YouTube and more,” monitored and mined by Digital Stakeout, Inc. This confirms what we have long feared: that (privatized but government-funded) surveillance of social media and other Internet activity is being used as one of the inputs to the black box that decides whether to allow us to exercise our rights. As we said five years ago in conjunction with the first “Social Network Users’ Bill of Rights”:

In such a world, your “identity” is what these companies say it is. Where do these private companies think you lived, and with whom, in a certain year, for example? An identity thief who has gotten your files may be more likely than you are to to know the “correct” answer. And each time such a commercial service is used to verify your ID for government purposes, the service provider has a record of the transaction to add to its dossier about you, and use for whatever purposes it chooses.

We’ll be posting more details and statistics as the TSA releases more of its records about what happens to people who try to fly without ID. But the records we’ve received to date show that people are already being prevented from traveling by air, despite having valid tickets on common carrier airlines, because the private data broker(s) consulted by the TSA don’t have enough data to profile them, or their answers don’t correspond to the garbage in the aggregators’ data warehouses about things such as who Accurint thinks they live with or thinks who their neighbors are.

Nov 06 2015

Most Federal agencies still ignore human rights complaints

Despite a recent decision by the European Court of Justice based in part on the inability of US courts to enforce US obligations under human rights treaties to which the US is a party, and despite a direct order from the President, most Federal agencies have still done nothing to create even administrative channels or points of contact for handling complaints of human rights violations.

Last April, we joined a broad coalition of civil liberties and human rights organizations in a public letter to some of the Federal departments engaged in the most egregious human rights violations — torture, extrajudicial killings, mass surveillance, denial of freedom movement, etc. — calling on them to carry out the President’s longstanding orders to designate points of contact responsible for responding to complaints that they have violated human rights treaties.

Six months later, there’s been no response to our letter and no publicly-disclosed indication that any of the agencies and departments to which it was sent has taken any action to fulfill its duties under Executive Order 13107, which was issued by President Clinton in 1998 and has remained in effect ever since.

This week, we joined in a follow-up letter, pointing out the failure to act and the heightened importance of showing a US government commitment to human rights, including the right to privacy, if the US wants to persuade other countries and their citizens that personal information transferred to via the US will be adequately protected against unwarranted mass surveillance.

The real lesson, of course, is that neither US citizens nor foreigners can rely on merely administrative mechanisms for the protection of fundamental rights. If direct orders from the President aren’t enough to get Federal department heads even to receive and log human rights complaints, what could be?

As the UN Human Rights Committee recommended last year at the conclusion of its latest review of US (non)implementation of its human rights treaty obligations, what’s really needed is for Congress to enact effectuating legislation for human rights treaties to grant US courts — not the agencies that are the subjects of the complaints — the jurisdiction to hear and rule on complaints of violations of rights guaranteed by those treaties that the US has ratified and promised to honor and implement.

Oct 29 2015

Can the US be a “safe harbor” for travel surveillance?

At its plenary session today in Strasbourg, the European Parliament adopted a “Resolution on the electronic mass surveillance of European Union citizens”.

As part of that resolution, the European Parliament, “Calls on the EU Member States to drop any criminal charges against Edward Snowden, grant him protection and consequently prevent extradition or rendition by third parties, in recognition of his status as whistleblower and international human rights defender.”

We’re pleased, of course, to see such a democratically and popularly elected body as the European Parliament coming to Mr. Snowden’s defense and joining the calls for recognition of his claim for asylum. But while the Snowden clause is getting most of the attention, it’s not all that’s included in today’s Europarl resolution.

The resolution adopted today by the European Parliament discusses what needs to be done, and by whom, to address the “electronic surveillance” Mr. Snowden has helped to expose. Notably, the resolution explicitly includes the electronic surveillance of travel and finance along with surveillance of telephone and Internet communications.

We have long argued, and we suspect Mr. Snowden would agree, that warrantless, suspicionless dragnet collection of metadata about the movements of people through root access by governments to PNRs stored in airlines’ Computerized Reservation Systems, warrantless, suspicionless dragnet collection of metadata about the movements of money through government access to electronic funds transfer intemediaries like SWIFT, and warrantless, suspicionless dragnet collection of metadata about the movements of messages through government root access to telecom and Internet backbone networks are all part of the same overarching surveillance program that raises issues common to all of these types of movement metadata. That point of view is implicitly endorsed by today’s Europarl resolution.

Today’s action by the European Parliament was prompted in part by the decision earlier this month by the European Court of Justice (sometimes abbreviated “ECJ”, sometimes “CJEU”) in Schrems v. Facebook. In that case, an Austrian user of Facebook, Max Schrems, asked the data protection authority in Ireland, where Facebook’s European subsidiary is based, to prohibit the transfer of personal data about him to Facebook servers in the USA where it would be subject to uncontrolled and secret access by the NSA and possibly by other US government agencies. The Irish authorities refused to investigate Facebook’s practices and dismissed Mr. Schrems’ complaint on the grounds that the European Commission had already determined that the so-called “Safe Harbor framework” for self-regulation assured adequate protection for personal data transferred from the EU to the US by participating companies.

The ECJ found that, “without there being any need to examine the content of the safe harbour principles,” the Commission’s finding that US law “ensures” adequate protection for personal data transferred to the US was invalid, because “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter” of Fundamental Rights and Freedoms of the European Union.

Too bad that US courts haven’t yet recognized, as of course they should, that these US laws and government practices also violate fundamental rights guaranteed by the US Constitution.

The European Commission has previously brushed off questions — including questions from Members of the European Parliament and in a more recent expert report commissioned by the Council of Europe — about the legality of outsourcing and transfers of PNR data to CRSs to which the US government has unlogged root access. And EU data protection authorities have dismissed or declined to investigate complaints against airlines, travel agencies, and CRSs.

Now, however, the European Commission and European DPA’s have an explicit mandate to investigate complaints like that of Mr. Schrems against companies that are transferring personal data from the EU to the US, and the explicit authority and obligation to order the termination of such transfers.

It’s in this context that the European Parliament resolved today that it:

Urges the Commission to assess the legal impact and implications of the Court of Justice ruling of 6 October 2015 in the Schrems case (C-362/14) vis-à-vis any agreements with third countries allowing for the transfer of personal data, such as the EU-US Terrorist Finance Tracking Programme (TFTP) Agreement, passenger name record (PNR) agreements, the EU-US umbrella agreement and other instruments under EU law which involve the collection and processing of personal data.

What does this mean for the future of travel surveillance in the EU, the example it might set for other countries, and the prospects for US efforts to globalize a panopticon of travel dataveillance as a new norm?

Oct 28 2015

6th Circuit Court of Appeals rules for right to trial over no-fly order

On October 26th, by a 2-1 vote, a panel of judges of the 6th Circuit Court of Appeals has overruled a District Court’s decision that it lacked jurisdiction to hear a substantive challenge to the order by the “Terrorist Screening Center” (TSC) placing a US citizen on the “No-fly” list.

While the decision was based on arcane-seeming jurisdictional issues, and the government is already maneuvering to evade it and some other similar court decisions, it is a significant victory for the fundamental right to a trial in cases of challenges to no-fly orders.

The decision sends the lawsuit brought by Mr. Saeb Mokdad, represented by the Arab-American Civil Rights League, back to the US District Court in Michigan where it was first filed more than two years ago.

The TSC is an inter-agency and inter-departmental entity, but the government has assigned nominal “ownership” of the TSC and its decisions — including, until recently, final authority for no-fly orders — to the FBI (a component of the Department of Justice).

At the same time, the government has argued that any challenges to the TSC’s no-fly orders must be made first through the kangaroo-court DHS TRIP administrative process, and then in a Court of Appeals that is allowed to consider only the “administrative record” of the TSA’s decision, as supplied to the court by the TSA itself.

Unlike some other people who have tried to challenge the government’s interference with their right to travel, Mr. Mokdad didn’t sue the TSA or DHS for implementing the TSC’s decision to put him on the no-fly list. Instead, he sued the TSC, FBI, and DOJ for ordering the TSA and DHS to put him on the no-fly list.

The government’s position is that no challenge to a no-fly order can be made with the agency that made the decision (the TSC/FBI/DOJ), and that any court review of the TSC decision must be based solely on TSA records (which will show, at most, that the TSA relied on a no-fly order from the TSC, and may not show anything about the factual basis, if any, or the criteria or procedures relied on by the TSC in its decision).

In its decision this week, the 6th Circuit rejected that duplicitous government position:

To the extent that Mokdad brings a direct challenge to his placement by TSC on the No Fly List, … he is challenging a TSC order, not a TSA order…. TSA does not determine who is placed on the No Fly List; TSC does. Notwithstanding the government’s attempts to characterize his claim as a challenge to TSA’s decision to deny him boarding, Mokdad makes clear that he is “challeng[ing] his actual placement on the No Fly List by the TSC.” R. 17, Appellant Br., 11. TSC is administered by the FBI. The fact that TSC is an inter-agency center that is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and also TSA, does not transform TSC’s order placing an individual on the No Fly List into an order of the TSA.

The 6th Circuit panel correctly held that the law assigning exclusive jurisdiction over challenges to TSA orders to Circuit Courts of Appeal, based on TSA administrative records, does not apply to challenges to TSC or other FBI orders — including no-fly listing orders.

The FBI’s hypocrisy in Mr. Mokdad’s case hasn’t been limited to its arguments in court. The FBI has told Mr. Mokdad that it can’t tell him anything about why it put him on the no-fly list, and can’t even confirm or deny that he is barred from flying (although that’s obvious from the fact that he is denied boarding whenever he tries to fly). At the same time that the FBI officially declined to comment or give any information to Mr. Moktad, the FBI was happy to disclose derogatory alleagations about him to the local newspaper of record, the Detroit Free Press, in the form of leaks by “sources familiar with Mokdad” about what “the FBI suspects”.

Unfortunately, the next move in this legal chess game was already played by the government between the time that Mr. Mokdad’s case was argued a little over a year ago and when it was decided this week. While the Court of Appeals was contemplating its decision, the government shifted nominal final responsibility for no-fly decisions from the TSC/FBI/DOJ to the TSA/DHS, to try to bring them back within the scope of the jurisdiction-stripping statute, 49 USC §46110 (the Constitutionality of which is already being challenged in another no-fly case).

It’s unclear, in light of this evasive move by the government, what will happen to Mr. Mokdad’s case on remand. The next step will be discovery, and likely an assertion by the government in response that everything about no-fly decisions is a “state secret”. Even if Mr. Mokdad eventually puts the FBI on trial, as has happened in only one no-fly case to date, he might win only a Pyrrhic victory, overturning the TSC’s no-fly order but then having to start from scratch, in a different court, with a new challenge to a new TSA no-fly order. Stay tuned.

Oct 23 2015

Court orders TSA to publish “rules” for use of strip-search machines

Acting on a petition submitted in July 2015 by the Competitive Enterprise Institute, the National Center for Transgender Equality, and the Rutherford Institute, the Court of Appeals for the D.C. Circuit today ordered the Department of Homeland Security to, within 30 days from today, “submit to the court a schedule for the expeditious issuance of a final rule” governing the TSA’s use of virtual strip search machines or body scanners (what the TSA calls “Advanced Imaging Technology “within a reasonable time”.

The court didn’t say what it would consider “expeditious” or a “reasonable” time for the TSA to finalize rules for its use of body scanners. Nor did the court even consider what such a rule should say, or what it would take for such a rule to be Constitutional.

But as we pointed out in the comments we submitted to the TSA three years ago in this as-yet-incomplete rulemaking, any “final rule” on body scanners promulgated by the TSA would be the first and to date only publicly-disclosed definition of any aspect of what the TSA and DHS think travelers are required to do and/or prohibited from doing in order to satisfy our obligation under Federal law to “submit” to “screening” as a condition of the exercise of our right to air travel by common carrier.

Five years ago, we were one of 35 organizations that petitioned the TSA and DHS to conduct a public “rulemaking” — including notice of the proposal, and opportunity for public comment, consideration of the comments by the agency, and finally the publication of rules for what is and isn’t prohibited and/or required — before deploying or continuing to deploy as-though-naked body imaging machines in airports.

In 2011, in response to a lawsuit brought by one of the other petitioners, EPIC, the D.C. Circuit court ordered the DHS to conduct such a rulemaking. The DHS dragged its feet, but under pressure from the Coiurt, finally published proposed (vague and unconstitutional) rules for body scanners in 2013. Basically, the DHS proposed rules that would require travelers to submit to whatever “imaging technology” the TSA chooses to use.

The Identity Project and more than 5000 other organizations and individuals submitted comments to the DHS, the overwhelming majority of which opposed the proposed rules, the TSA’s use of virtual strip-search machines, and the TSA practices of groping travelers including those who “opt out” of the imaging machines.

In response to the latest lawsuit by CEI, the DHS says that it is still working diligently, three years later, to read, analyze, and respond to the public comments and prepare a (possibly revised) final rule.

Today, the Court declined (for now, at least) to set a deadline for the DHS to stop dragging its feet and publish final rules for the body scanners. But the Court ordered the DHS to come up with a timeline of specific dates by which it intends to do so. Once the DHS gives dates certain to the Court, it will risk sanctions for contempt if it fails to meet those deadlines without an explanation satisfactory to the Court.

It’s a small but significant step toward subjecting the TSA, for the first time, to the rule of law.

Oct 14 2015

Fundraiser for “Naked American Hero”

John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon, airport to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices, has finally gotten a chance to defend himself in court after more than three years of legal and administrative water torture.

But he needs your help to mount the strongest possible challenge to the TSA, and he’s launched an online crowdfunding appeal for a portion of his legal costs.

The TSA’s first line of attack on Mr. Brennan was, in accordance with TSA standard operating procedures, to call the local police. And the cops, as is equally standard, arrested Mr. Brennan on the TSA’s say-so, and only after the fact came up with a charge (“indecent exposure”) to justify the arrest. But there was nothing “indecent” about the way Mr. Brennan had exposed himself, and a Portland judge acquitted Mr. Brennan of all criminal charges on the grounds that Mr. Brennan’s action was an act of politically expressive conduct protected by Oregon law and the First Amendment.

Unable to get Mr. Brennan convicted of any crime, the TSA put Mr. Brennan through an elaborate administrative proceeding that ended with the TSA deciding to fine him $500 for “interfering” with the TSA by taking off his clothes.

Only after the completion of the TSA’s internal administrative process was Mr. Brennan allowed to ask a court to consider whether the TSA’s proposed fine would violate his First Amendment rights. And that challenge has to be made in the first instance in a Federal Circuit Court of Appeals — an expensive and high-risk legal forum only one step below the US Supreme Court.

Mr. Brennan has petitioned the 9th Circuit Court of Appeals to review whether the TSA violated his Constitutional rights by trying to fine him for expressive conduct that was protected by the First Amendment and that didn’t actually interfere with the TSA at all. (On the contrary, his nakedness made it easier for the TSA staff to tell whether Mr. Brennan was carrying weapons or explosives.)

Mr. Brennan is now waiting to find out whether the 9th Circuit will decide his case on the basis of his written submissions and those of the TSA, or will schedule oral argument before making its decision.

Considering the importance of the case, Mr. Brennan’s appeal for $15,000 in partial payment of his legal expenses is modest. And did we mention that he was unjustly fired for exercising his First Amendment right to protest the TSA, on his own time, in a way that had no impact on his ability to do his job?

John Brennan needs our help to defend our rights.

If you wish you had the balls to strip naked (and keep your cool completely while doing so!) when the TSA tells you you’ve tested positive (falsely) for explosive residues, and they want to put their hands in your pants, here’s your chance to support someone who stood up and stripped down for all of us.

Oct 09 2015

Airline and TSA insecurity

Recent news stories have called new attention to longstanding vulnerabilities in the security of travelers’ luggage and personal information created by TSA and airline practices.

Exhibit A: TSA-mandated “key escrow” for luggage locks:

Before the creation of the TSA, airline passengers were encouraged by airlines to secure their suitcases with locks against pilferage in transit. Some airlines’ rules provided that unless passengers locked their luggage, they would not be reimbursed for items that went missing from their luggage.

The TSA, in its infinite wisdom, initially decided that everyone would be more secure if travelers were forbidden to lock our luggage, so as to make it as easy as possible for anyone (especially, of course, TSA staff and baggage handlers) to introduce dangerous items into luggage, or remove valuables from luggage.

The predictable result was a wave of organized theft from checked luggage by groups of TSA staff and baggage handlers at airports throughout the country who used “security” x-rays of luggage to identify which bags contained things worth stealing. 400 TSA employees have been fired for stealing from luggage since 2003. As for airline and airport staff, 37 have been arrested in multiple cases of organized luggage theft at the Miami airport alone just since 2012.

In response, the TSA proposed a fig leaf of pseudo-security: Starting in 2003, air travelers were once again allowed to lock our bags — but only with TSA-approved “Travel Sentry” locks which could all be opened with one of a small set of master keys provided to all TSA baggage screeners.

That makes no sense, of course, in terms of any rational threat model: Almost the only people who have access to checked luggage in transit are airline, airport, and TSA staff. Unsurprisingly, allowing the use of locks to which all of the likely thieves were given master keys did little or nothing to deter or decrease theft.

But that’s not all. Any “key escrow” system is only as secure as the controls on access to the master keys or the information needed to replicate them. The other shoe has now dropped: Specifications for the TSA master keys (obtained from photos accurate enough to make working keys) have been made public. Anyone with a 3D printer can use these files to make their own complete set of keys to open any Travel Sentry lock.

For what it’s worth, while you aren’t allowed to use physical measures to secure your luggage, you still have some legal protection, at least in theory. Up to a liability limit fixed by law, the airline is strictly liable for loss, theft, or damage to luggage or contents between the time the passenger is given a claim check and the time the passenger reclaims their luggage. The TSA and the airlines both want to divert passengers into an arduous claims process against the TSA, but it’s actually the airline that is liable to the passenger for any damage to luggage while it is checked, even if the damage is caused by the TSA or any other third party. You can sue the airline in small claims court for any damage between check-in and baggage claim. The airline can pursue a claim against the TSA, but that’s not your problem and has no affect on the liability of the airline to the passenger. If airlines have to absorb some of these losses, maybe they’ll get motivated to rein in TSA thievery.

Exhibit B: Airlines’ use of non-secrets printed on boarding pass stubs and checked-baggage tags as “passwords” for access to the details of airline reservations and personal profiles:

Airlines store “passenger name records” (PNRs) in “computerized reservation systems” (CRSs) that were developed for purely internal use by airline and travel agency staff. Access to reservations and passenger profiles was controlled by physical controls on access to networked terminals, and by user IDs and passwords for system access. Once a CRS user was logged in, they could retrieve any PNR by “record locator”. There’s never been an individual password in the CRS for each PNR or each passenger profile.

Record locators and passenger names were and are printed on boarding passes, baggage tags and claim checks, and itineraries. At first they were machine-printed in text. More recently they have also been incorporated into barcodes with standard and publicly-disclosed encoding.

Nothing changed when CRSs were connected to Web gateways for self-service booking, ticketing, itinerary review, check-in, and so forth. Once a user is “signed in” to a CRS, all they need is a record locator and name to retrieve all or part of the data in a PNR of interest. But now every Web user in the world is, in effect, already signed in to the CRSs through these Web gateways provided by airlines and directly by each major CRS. Not all of these sites display the same subset of data, but even the most basic information available at any itinerary-viewing or check-in site (Where is this passenger going? When are they coming back?) can pose a major threat in the hands of house-burglars, stalkers, domestic abusers, or kidnappers.

Airlines and CRSs have been alerted and aware for years of the vulnerability created by the lack of passwords for access to PNR data, but have chosen to do nothing. Do they think it wouldn’t be worth the cost? Or do they think that if travelers had to remember and use a password to check in online, they would check in at the airport instead, taking up more airline staff time? Your guess is as good as ours.

The latest report this week from IT security expert Brian Krebs is that some airlines have expanded the information accessible with only the data on a discarded boarding pass (or, we suspect, a baggage tag) from the PNR for a single journey to the passenger’s entire travel history and profile from their frequent flyer record. Krebs found that he could even hijack the password on a frequent flyer account using the information encoded using a public algorithm on a boarding pass barcode. That, in turn, would allow ID thieves to have “free” tickets issued for themselves or other criminals, using the target’s mileage points.

What’s the takeaway? Neither the TSA nor the airlines have paid the least attention to rational risk assessment, risk-based security, or even the most elementary norms of physical and data security. Yet these are the entities to which the government wants to compel us to turn over even more personal information.

Sep 23 2015

Does CBP have access to domestic Amtrak reservations?

Documents released to us by Amtrak suggest that since 2012, US Customs and Border Protection (CBP) has had direct access to Amtrak’s reservation system, possibly including access to reservations for Amtrak passengers traveling entirely within the USA.

What do these documents show? And why would an immigration and border patrol agency want access to records of travel by US citizens and other residents within the borders of the US?