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The Identity Project

Dec 04 2013

Dr. Ibrahim’s legal brief’s theories about what DHS did wrong

Rahinah Ibrahim’s trial brief goes over the basic legal theories of the case, and details what Dr. Ibrahim is asking the court to do.  This is not legal advice; you can read what we think about some of its high points, or just follow the link and read it yourself.  This focuses more on the factual allegations than the details of the legal rules that Dr. Ibrahim claims DHS has violated.

The first thing you’ll notice about this 53-page document is that looks like something that went through government censorship, like a FOIA result full of blacked-out passages.  That is because it did go through government censorship.  Dr. Ibrahim’s lawyers have no security clearances, but at the insistence of the judge, they have been checked-out by the government and authorized to see documents that are DHS “Sensitive Security Information”, a sui-generis class of stuff-you-can’t-see that doesn’t even have most of the protections for the public that classified information has.  Carefully tweaked language in Congressional bills that used to exempt federal aviation research from public view have turned into a Kafkaesque power by the head of DHS to say anything is “SSI” for just about any vague reason.  Dr. Ibrahim’s lawyers can see things that they cannot reveal to Ms. Ibrahim or to the public.  They can write things in their legal brief that neither the public nor Dr.. Ibrahim are permitted to know (that’s the stuff that is blacked out).  Dr. Ibrahim is still not permitted to know if she is or ever was on the No-Fly list!!!

Pages 10 through about 19 detail the facts about what happened to Dr. Ibrahim and her family over the last decade.  Much of this will have to be proven in court with evidence, but it’s mostly uncontested.

Then come the legal arguments.  These may be tough slogging on first read, but here’s what seem to be  the meat of the allegations about what Dr. Ibrahim thinks DHS is doing wrong. Read More →

Dec 04 2013

“No-fly” trial, day 2: Dr. Ibrahim gets her (virtual) day in court

Dr. Rahinah Ibrahim’s lead counsel, Elizabeth Pipkin, opened the second day of trial of Dr. Ibrahim’s lawsuit against the government for putting her on its “no-fly” list without due process with an update on Dr. Ibrahim’s eldest daughter, U.S.-born U.S. citizen Rainan Mustafa Kamal, who was denied permission by the DHS to board a flight to the U.S. on Sunday to attend and testify at the trial in her mother’s lawsuit.

Ms. Pipkin reminded the court of what  government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:

Freeborne: Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.

“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her.  Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.

Major props to Malaysia Airlines for providing a copy of the DHS instructions to Ms. Mustafa Kamal. Other airlines receiving similar instructions have acquiesced to DHS orders to keep the instructions from the DHS, and the reasons for the airlines’ actions, secret from the would-be travelers whose rights are affected. So far as we know, this is the first time an actual no-fly order has been disclosed to a would-be traveler or potentially to the public.

International airlines are required to send a complete copy of each Passenger Name Record (PNR) to the CBP division of DHS, which processes PNRs through a black box to which one of the inputs is the set of U.S. government “watchlists”.  [The term used throughout the trial was,  “watchlist”. But these lists aren’t used solely as a “watching” or surveillance tool. They are also used as the basis for “no-board” orders to airlines, and other actions. We think “blocking lists” or “blacklists” would be more accurate labels for these lists.]

If the would-be traveler is “cleared” by this process (the default is, “No”), CBP  responds by sending an individualized permisison message in the form of an electronic “boarding press printing result”.  (Diagrams and video explaining this process.)  Presumably, the page-long DHS message to Malaysia Airlines was some sort of supplement or follow-up to a “not cleared” boarding pass printing result regarding Ms. Mustafa Kamal.

It would have been one thing for the ten government lawyers in Judge Alsup’s courtroom to claim that they “had no knowledge” of any DHS actions to interfere with Ms. Mustafa Kamal’s flight to the U.S. and appearance at the trial. But the government went much further when Mr. Freeborne claimed that the government had “confirmed” that the DHS did nothing to deny Ms. Mustafa Kamal boarding.

But Judge Alsup noted that the document with the DHS instructions to the airline was not supported by any sworn testimony or evidence of its authenticity. “You have to have a sworn record before I can do something dramatic.” Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.

Ms. Pipkin said that Ms. Mustafa Kamal was reluctant to spend the money on another airline ticket to San Francisco without some assurance that this time she would be allowed to board her flight.

“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.

Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here.  If it turns out that the DHS has sabotaged a witness, that will go against the government’s case.  I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”

Following these and a few other preliminaries, Ms. Ibrahim’s lawyers resumed playing excerpts from her deposition, recorded on video in London (because the defendants won’t allow her to come to the U.S. to testify in person) in July 2013.

Read More →

Dec 03 2013

Ibrahim case tweets: @ehasbrouck, and PACER cache link

Edward Hasbrouck of the Identity Project is attending the “no-fly” trial in Ibrahim v. DHS, which is going on this week and may continue into next week. Cellphone and Internet access in the courthouse is unreliable, but he’ll be tweeting updates when possible in addition to posting articles in this blog.

You can use the federal courts’ PACER system to view public filings in the case, for a fee.  Or, for those of us mortals who aren’t registered with the federal courts to pay through the nose for access to public domain judicial records, you can use the Internet Archive’s RECAP archive of the case docket, which includes links to some of the case documents which friendly PACER users have donated to public access.

Dec 02 2013

Witness in “no-fly” trial finds she’s on “no-fly” list too

The Federal civil rights trial in Ibrahim v. DHS — the first lawsuit seeking judicial review of a government “no-fly” order to make it to trial — began this morning in San Francisco with a surprise:

When the case was called at 7:30 a.m., Elizabeth Pipkin and Christine Peek, pro bono lawyers for the plaintiff Dr. Rahinah Ibrahim, began by informing U.S. District Judge William Alsup that Dr. Ibrahim’s oldest daughter Raihan Mustafa Kamal was denied boarding in Kuala Lumpur yesterday when she tried to board a flight to San Francisco to observe and testify at the trial in her mother’s lawsuit.

Ms. Mustafa Kamal, an attorney licensed to practice law in Malaysia, was born in the U.S. and is a U.S. citizen. Ms. Mustafa Kamal was with her mother when Dr. Ibrahim was denied boarding on a flight from K.L. to San Francisco in 2005 (after having been told that her name had been removed from the “no-fly” list) under what now seem eerily similar circumstances. The DHS had been given notice that Ms. Mustafa Kamal would testify at the trial as an eyewitness to those events she witnessed in 2005.

According to Ms. Pipkin, airline employees who refused to check Ms. Kamal in for flights to the U.S. told her that they were acting on orders from the DHS.  Airline staff in K.L. gave Ms. Mustafa Kamal a telephone number in Miami to call for further information, saying it was the number of an office of the CBP (the Customs and Border Protection division of DHS).

When Ms. Pipkin learned of this from Ms. Mustafa Kamal on Sunday night at 8 p.m. San Francisco time, she called the number Ms. Mustafa Kamal has been given. It was apparently a CBP office, but the person who answered the phone refused to give his name and refused to provide any information about what had happened to Ms. Mustafa Kamal. When Ms. Pipkin asked to speak with his supervisor, she was given another phone number that went to voicemail. She left a message, but nobody called back.

On hearing this account, Judge Alsup asked the lawyers representing the DHS and the other Federal agency and official defendants (led by Lily Farel of the Department of Justice) to respond.

After consulting with DHS agency counsel, Ms. Farel claimed that this was the first that any of the government’s lawyers in the case had heard about Ms. Mustafa Kamal’s having been prevented (by their client the DHS) from traveling to the U.S. to attend and testify at her mother’s trial.

Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”

At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.

Needless to say, that story strains credulity. If Ms. Mustafa Kamal had merely missed her flight, why would she have been given a CBP phone number in Miami to call for information about what had happened?  The governments’ lawyers insisted that, “That’s what we have been told”, but Judge Alsup wasn’t satisfied.

“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow (Tuesday).  “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

Read More →

Dec 01 2013

First “no-fly” trial to begin this week in San Francisco

For the first time ever, a lawsuit challenging a U.S. government “no-fly” order goes to trial on Monday.

The U.S. government issues “no-fly” orders (or “no-board recommendations“, of which there were almost 10,000 last year) to airlines, forbidding common carriers from transporting specified persons.  The administrative decisions to issue these orders are made in secret, on the basis of secret allegedly “derogatory” evidence (or no evidence at all), according to secret criteria (or no criteria at all), at the “discretion” of the agencies that “nominate” individuals for inclusion on the “no-fly” list).

Airlines aren’t told why they have been forbidden to transport any particular person, and are forbidden from telling anyone that they are on the “no-fly” list — although of course that eventually becomes obvious when the airline refuses to issue a boarding pass to an otherwise qualified fare-paying would-be passenger.  The U.S. government’s policy is never to confirm or deny the existence of a no-fly order. That is considered a “state secret”.

Needless to say, all this makes a mockery of due process and has, until now, frustrated judicial review of no-fly decisions and orders.  Despite numerous attempts to challenge the system of “no-fly” lists and orders, Rahinah Ibrahim v. Department of Homeland Security, et al. (docket and more recent documents) is the first such case to make it to trial.

Dr. Ibrahim, a Malaysian citizen, was a doctoral candidate at Stanford University, in the U.S. on a valid student visa, when she tried to fly home to Malaysia with her daughter in 2005.  She was refused passage on a United Airlines flight from San Francisco International Airport, detained, and interrogated by SFO airport police.  Although she was ultimately bound for Malaysia, she had planned to stop over in Hawaii to present a research paper at a conference there. She was denied boarding on a domestic flight from San Francisco to Kona. (Since this was a domestic flight, the no-fly instructions would have been transmitted through the TSA’s “Secure Flight” system.) She was allowed to fly to Kona the next day, and on to Malaysia after the conference a few days late, but her U.S. visa was then revoked (although she wasn’t notified, and didn’t learn this until she was at the airport in K.L. trying to check in for a flight back to SFO a couple of months later). She hasn’t been able to return to the U.S. since, even though she had lived legally in the U.S. for many years, had met and married her husband in the U.S., and one of her children was born in the U.S. and is a U.S. citizen.  She completed her dissertation remotely, received her Stanford Ph.D. in absentia, and is now a professor at a major Malaysian public university, with an extensive list of academic publications.

Several other “no-fly” lawsuits have been dismissed without getting far enough to have a judge, much less a jury, review the challenged “no-fly” orders on their merits. Others that haven’t yet made it to trial, but haven’t yet been dismissed, include that of Gulet Mohamed in Northern Virgina and Latif et al. v. Holder in Portland, OR.  Both of these cases involve U.S. citizens who were effectively banished from the U.S. by having their names being placed on the “no-fly” list while they were abroad, preventing them from coming home.

The city and county of San Francisco paid Dr. Ibrahim $225,000 to settle her claims against the airport police, but the Federal government agencies and employees have opposed Dr. Ibrahim’s right to even have the court review the legality of their actions.

The Federal defendants being sued by Dr. Ibrahim have twice appealed to the 9th Circuit Court of Appeals, but twice failed to get the case dismissed before trial.  Next, they tried to get Judge Alsup to follow the DHS’s own original decision-making procedure and dismiss the case on the basis of secret evidence they proposed to submit in camera and under seal (so that neither Dr. Ibrahim nor her lawyers could see or contested the allegations against her).   At that point, Judge Alsup refused even to look at the profferred secret evidence, declaring that travel is a right that cannot be denied without “an effective means of redress”.

Next the government invoked the “state secrets” privilege against disclosing certain information about whether, and if so, why and how, it had ordered airlines not to transport Dr. Ibrahim. Judge Alsup allowed the government to withhold much of this information, but again refused to dismiss the complaint entirely, ordering the parties to prepare for trial and allowing Dr. Ibrahim a chance to try to prove her case on the basis of other evidence.

Since that ruling in April of this year, ordering the parties to proceed, there have been continuing disputes over discovery and depositions. Judge Alsup has issued rulings denying Dr. Ibrahim’s requests to amend her complaint and for additional discovery related to whether she was the subject of NSA surveillance or this formed part of the basis for the no-fly order against her; prohibiting the government from using any evidence to defend itself that wasn’t disclosed to Dr. Ibrahim and her lawyers; and setting the case for trial on the remaining issues.

Judge Alsup himself has already seen the secret evidence that he has forbidden the government to introduce or rely on in the trial, as part of his in camera review of whether it had to be disclosed to DR. Ibrahim and her lawyers. But Judge Alsup refused to recuse himself or assign the case for trial by a judge who hasn’t seen the secret evidence that isn’t supposed to be considered in reaching a verdict.  Judge Alsup claims to believe that unlike a jury, he can pretend that he never saw this secret evidence, and reach an impartial verdict that disregards it. This sort of pretense is bizarre and unrealistic but routine in bench trials.

The trial in Dr. Ibrahim’s case is scheduled to start Monday, December 2nd, and continue through Monday, December 10th, before Judge William Alsup of the U.S. District Court for the Northern District of California, Courtroom 8  (19th Floor), Phillip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Ave, San Francisco. The trial will begin each weekday at 7:30 a.m. and recess at 1:30-2:30 p.m. depending on the day.

No immediate decision on the facts or the law is expected. The judge in a Federal trial like this will typically issue a written verdict some weeks or months after the end of the trial.

Despite the Constitutional right to a “public” trial, government-issued ID credentials are required for admission to the Federal Building.  Under the court’s General Order 58 (“Regulating Possession and Use of Electronic Devices in the Courthouse”), cell phones, laptop computers, and other electronic devices are allowed in the courthouse (subject to being inspected and deemed not to be dangerous by the guards at the entrance), and can be used in the lobby,  hallways, etc., but can’t be used in courtrooms without special permission. Cameras and recording devices are also allowed in the building, but can’t be used anywhere inside.  Photography and recording, long prohibited in Federal courts, are permitted in the Northern District of California only as part of a pilot project and only in cases selected by the court in its discretion.

At the end of the day, the U.S. government is likely to claim that Dr. Ibrahim was allowed her day in court. But that will be a day in court in which the allegedly derogatory allegations against her, and any evidence purportedly supporting them, will remain secret from her  but will have been provided to the deciding judge.

Nov 30 2013

DHS collects foreign visitors’ medical histories

This week Ellen Richardson, a Canadian citizen trying to fly from Toronto to New York to board a cruise ship bound for international destinations in the Caribbean, was denied permission to transit the U.S. by the DHS, on the basis of her history of clinical depression and her previous suicide attempts in Canada — none of which had involved the police or any criminal charges.

Canadian citizens normally don’t need visas for short-duration visits to the U.S. as tourists. But U.S. law, Title 8 USC Section 1182(A)(iii)(II), forbids entry to any non-U.S. citizen who is determined “to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior,” unless they obtain a waiver from one of the doctors specially appointed by the DHS to examine applicants for admission to the U.S.

DHS files about people who aren’t U.S. citizens or residents aren’t subject to the Privacy Act, and the DHS and the NSA claim the authority to collect and retain pretty much any information they can obtain about foreigners, including (at least implicitly) health information and medical records.

The questions being asked in Canada are how the DHS learned of Ms. Richardson’s medical history, whether any Canadian entities disclosed private information to U.S. government agencies, and whether any Canadian laws such as PIPEDA or the Canadian Privacy Act were violated.

There appear to have been at least four ways that the DHS could have learned of Ms. Richardson’s medical history:

  1. Some Canadian entity might have knowingly disclosed information about Ms. Richardson to the DHS. This probably wouldn’t violate any U.S. law (foreigners have essentially no statutory privacy protection under U.S. law), but would almost certainly constitute a grave violation of PIPEDA and/or the Canadian Privacy Act by the responsible Canadian entity.
  2. Some Canadian entity might have outsourced or disclosed information about Ms. Richardson to an entity in the U.S., which in turn disclosed it to the DHS. Once personal data is in the U.S., no U.S. law restricts its onward transfer to third parties including the DHS or other government agencies.  Many Canadian companies (including, as we’ve previously documented, Air Canada) outsource storage and processing of personal information to companies in the U.S., or share information with U.S. business partners, affiliates, or the like.  When the details are scrutinized, almost all such cross-border data transfers violate PIPEDA and/or the Canadian Privacy Act.
  3. The NSA might have hacked some Canadian entity or intercepted intra-Canadian data transfers, and shared its findings with the DHS. Health and medical information hasn’t been specifically mentioned as a target of the NSA’s dragnet or its hacking of foreign databases, but can’t yet be ruled out.
  4. The DHS might have searched for “publicly available” information about Ms. Richardson, and happened upon her history of suicide attempts. This seems the most likely explanation, but raises the further question of how often, how systematically, and how deeply DHS components conduct these sorts of Internet or other searches.  Unfortunately, the investigations now being undertaken by Canadian privacy officials are unlikely to shed any light on this question.

We’d love to hear from any whistleblowers or leakers who can shed light on what happened to Ms. Richardson or, more generally, what sorts of Internet or “public-source” data about Canadian and other visitors to the U.S. the DHS is trolling and entering into its permanent files about individuals.

Nov 19 2013

Does the TSA have any “precogs”?

The TSA uses appearance profiles to decide whether to search you and/or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from GAO report.)[The TSA uses appearance profiles to decide whether to search you and/or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from GAO report. Click image for larger version.)”]

We’ve likened the TSA’s attempts to predict which travelers are would-be terrorists on the basis of  their identities and profiles to the “pre-crime” police in the fictional film, Minority Report, who use “pre-cogs” with supernatural powers to predict who will commit future crimes.

We’ve also pointed out that in reality, as distinct from Hollywood fantasy, there’s no such thing as a “precog”. The Constitution presumes that we are innocent until proved guilty, and requires probable cause (as determined by a judge, not a self-proclaimed or TSA-certified psychic) to believe that we have already committed a crime before we can lawfully be arrested.

Having said that, we’re pleased to see that members of Congress and government auditors are (finally) beginning to come to their senses — as the characters in “Minority Report” eventually did — and questioning whether the TSA really has any “pre-cogs” on its payroll, or what the TSA has gotten for its $900 million outlay on “Behavior Detection Officers” and “Screening Passengers by Observation Techniques” (SPOT).

At a hearing last week before the Subcommittee on Transportation Security of the House Committee on Homeland Security, Rep. Mark Sanford asked John Pistole, the former FBI agent who is now Administrator of the TSA, whether travelers should “have to go through a screening process based on somebody’s interpretation of what might be in your brain.” Rep. Sanford pointed that a wide variety of factors — including the TSA’s own actions — might lead to stress, fear, and the “behaviors” that the TSA has defined in a (secret) point-scoring system as indicia of terrorist intentions.

In response, Pistole admitted that, “There’s no perfect science, there’s no perfect art of this.”

“Imperfect” isn’t the right word for the SPOT program. In fact, there’s no scientific basis for it at all, according to a report and testimony at the same hearing by the Government Accountability Office.

In addition to a detailed debunking of the lack of scientific evidence to support the TSA’s claims to paranormal ability,  the GAO report gives more information than has previously been made public concerning what the TSA’s “behavior detection officers” (BDOs) actually do.

The TSA’s goal is mind reading. TSA “Behavior Detection Officers” (BDOs) are supposely trained to deduce mental states from external appearances and visible behaviors:

According to TSA’s strategic plan and other program guidance for the BDA [Behavior Detection and Analysis] program released in December 2012, the goal of the agency’s behavior detection activities, including the SPOT program, is to identify high-risk passengers based on behavioral indicators that indicate “mal-intent.”

But can BDOs read our minds?  Presumably, the measure of their success in doing so would be how many (if any) of the travelers they flag as “mal-intentioned” are eventually found guilty of aviation-related terrorist offenses.  Does that ever happen?  The GAO couldn’t tell, because the TSA doesn’t keep records of that:

TSA was unable to provide documentation to support the number of referrals that were forwarded to law enforcement for further investigation for potential ties to terrorism. Further, according to FAMS [Federal Air Marshalls Service] officials, when referrals in TISS [Transportation Information Sharing System] are forwarded to other law enforcement officials for further investigation, the FAMS officials do not necessarily identify why the referral is being forwarded. That is, it would not be possible to identify referrals that were forwarded because of concerns associated with terrorism versus referrals that were forwarded because of other concerns, such as drug smuggling. [emphasis added]

Like most TSA personnel, and despite the job title of “officer”, BDOs and TSOs are not law enforcement officers.  As the diagram above makes clear, they can and do impose “administrative” sanctions including more intrusive searches of travelers and our luggage, interrogation of travelers, and denial of the right to travel. The TSA also claims the right to impose administrative fines for insufficient, or insufficiently groveling, “cooperation” with their search, interrogation, or anything else it decides is part of “screening”.  But beyond that, unless they want to take the risk of liability for making a citizens arrest, TSA employees and contractors depend on local law enforcement officers (LEOs) to provide their muscle.

What happens when the TSA refers travelers picked out by its BDO “pre-cogs” to local police?

99.4 percent of the passengers that were selected for referral screening — that is further questioning and inspection by a BDO — were not arrested. The percentage of passengers referred to LEOs that were arrested was about 4 percent; the other 96 percent of passengers referred to LEOs were not arrested. The SPOT database identifies 6 reasons for arrest, including (1) fraudulent documents, (2) illegal alien, (3) other, (4) outstanding warrants, (5) suspected drugs, and (6) undeclared currency…. According to the validation study, the majority of the arrested passengers were arrested because of possession of a controlled substance. [emphasis added]

“Terrorist” offenses aren’t even a sufficiently large proportion of TSA checkpoint arrests to warrant their own category in the database. If there were any at all, they are merely a subset of the “miscellaneous” category.

Rather than predicting terrorist intent, the TSA is using the “behavior detection” program as a pretext for warrantless searches for general law enforcement purposes, primarily for enforcement of drug laws.  That’s exactly the sort of pretextual use of a special-purpose administrative checkpoint detention and search as a general-purpose law enforcement dragnet which, as numerous courts have recognized, is prohibited by the Fourth Amendment.

Any actual interdiction of would-be terrorists is so infrequent and insignificant (or of so little relevance to the true purposes and criteria for success of the program) as not to be worth bothering to track.

Both the GAO (Congressional auditors) and the DHS’s own Office of Inspector General (OIG), in separate audits and investigations, found evidence that these warrentless searches and other sanctions were being imposed on the basis of “appearance profiles”, including profiles of ethnic and racial appearance:

With regard to information provided related to profiling, DHS stated that DHS’s OIG completed an investigation at the request of TSA into allegations that surfaced at Boston Logan Airport [“These accusations included written complaints from BDOs who claimed other BDOs were selecting passengers for referral screening based on their ethnic or racial appearance.”] and concluded that these allegations could not be substantiated. However,  while the OIG’s July 2013 report of investigation on behavior detection officers in Boston concluded that “there was no indication that BDOs racially profiled passengers in order to meet production quotas,” the OIG’s report also stated that there was evidence of “appearance profiling.”

In other words, the DHS’s own investigators found that the TSA was basing its decisions (searches, interrogations, no-fly orders, referrals to police, etc.) on the basis of racial and ethnic appearance profiles — it just wasn’t using racial and ethnic profiling to meet specific quotas. All profiling by BDOs is, of course, “appearance profiling”, since all that BDOs are able to observe is external appearance. Is the absence of explicit racial or ethnic quotas supposed to make such profiling OK?

GAO auditors also received first-hand complaints of profiling from BDOs at every airport they visited:

During our visits to four airports, we asked a random sample of 25 BDOs at the airports to what extent they had seen BDOs in their airport referring passengers based on race, national origin, or appearance rather than behaviors…. Of the 25 randomly selected BDOs we interviewed, 20 said they had not witnessed profiling, and 5 BDOs (including at least 1 from each of the four airports we visited) said that profiling was occurring at their airports, according to their personal observations. Also, 7 additional BDOs contacted us over the course of our review to express concern about the profiling of passengers that they had witnessed.

If there is any small silver lining in the GAO’s latest report, it’s that despite complete disregard for the Fourth Amendment, the TSA has at least begun to pay lip service to the Fifth Amendment rights of travelers to remain silent when questioned by TSA employees or contractors:

In August 2012, the Secretary of Homeland Security issued a memorandum directing TSA to take a number of actions… These actions include a revision of the SPOT standard operating procedures to, among other things, clarify that passengers who are unwilling or uncomfortable with participating in an interactive discussion and responding to questions will not be pressured by BDOs to do so. [emphasis added]

Oct 22 2013

TSA’s lying “response” to today’s story in the New York Times

We’re quoted on the front page of today’s New York Times in a story by Susan Stellin, “Security Check Now Starts Long Before You Fly”:

The Transportation Security Administration is expanding its screening of passengers before they arrive at the airport by searching a wide array of government and private databases that can include records like car registrations and employment information….

“I think the best way to look at it is as a pre-crime assessment every time you fly,” said Edward Hasbrouck, a consultant to the Identity Project, one of the groups that oppose the prescreening initiatives. “The default will be the highest, most intrusive level of search, and anything less will be conditioned on providing some additional information in some fashion.”

More:

The TSA refused to say anything to the Times on the record, but published a blog post today (with the misleading title “Expediting Screening for the Traveling Public”) responding to the Times’ story with a succession of lies and prevarications.

We call “bullshit” on the TSA:

  • “We are not using “private databases.”” This is an out-and-out lie, as “Blogger Bob” and the TSA surely know. All TSA pre-secreening systems relie primarily on information from private commercial databases of airline reservations (PNRs). Since there is no requirement for a U.S. citizen to notify the government directly before taking a trip by common carrier, “pre-screening” would be impossible without access to, and reliance on, these private commercial databases. The US government has gone to great effort, through the APIS,  PNR, and Secure Flight regulations and through lobbying for changes to Canadian privacy law and exceptions to European privacy law, to implement requirements for DHS access to this data.  If these databases are no longer “private”, that is only because the TSA and other DHS components have compelled airlines and reservation hosting companies to make this data available to government agencies.
  • “TSA does not monitor a passenger’s length of stay in any location.” The TSA doesn’t always retain the travel itinerary information it compels airlines to provide for domestic travel, but it claims the right to do so for anyone deemed (arbitrarily or according to secret criteria) to be “suspicious” or to “match” an entry on any of the government’s (arbitrary, secret) “watchlists”.  And for international travel, CBP (another DHS component agency) does retain complete PNR data, including travel itineraries, and comprehensive border crossing and entry/exit logs, for all travelers, in its Automated Targeting System (ATS) — and claims the right to “share” all this data with the TSA. (And that doesn’t even begin to consider the NSA’s apparently independent hacking of airlines and reservation systems and potential sharing of PNR and other travel data with DHS.)
  • “We are not using car registrations.” Again, it’s CBP rather than the TSA that is logging license plates and vehicle movements (using cameras near borders and optical character recognition software), linking them to individual ATS records, and using them to generate “risk” scores and watchlist messages — which are then passed on to the TSA.  TSA is using this data, just (slightly) indirectly. According to the latest System Of Records Notice for ATS, published in the Federal Register in 2012, “ATS maintains the official record for … the combination of license plate, Department of Motor Vehicle (DMV) registration data and biographical data associated with a border crossing”.
  • “[W]e rely on the same security information passengers have been required to submit at time of booking for many years…. [T]he info we rely on is the same info that passengers have provided for years when they book their flight.” Actually, we didn’t used to have to provide our ID number, date of birth, or gender in order to make an airline (or Amtrak train, or Greyhound bus) reservation. It used to be possible to hold airline reservations in “dummy” names, or with no names at all. The TSA relies on information that has only been required since the creation of the TSA. And in the past, we “provided” that information, if at all, only to airlines and travel companies. Prior to the creation of the TSA, we never had to provide any information to the government to book a flight.  (Unless we were traveling in a foreign country where a foreign government agency like the Stasi required us to show our ID cards or permission papers to book a flight.)
  • “Anyone who has never traveled outside the United States would not have a passport number on file and would therefore not be subject to the rules that the agency uses to determine risk.” Nonsense. Many people have our passport numbers on file with the TSA because we’ve used our passports as ID for domestic flights.  Many people have no government-issued ID except a passport.  Despite the State Department’s moves to make it more difficult to get a passport, the REAL-ID  law sometimes makes it even more difficult to get a drivers license or other state-issued ID than to get a passport.
  • “We are not expanding the type of information we use.” If that were true, why would the TSA have published formal notices in the Federal Register of new systems of records and new uses for existing systems of records?  They don’t publish these legal notices just for fun. Either (a) the TSA has already been illegally collecting and/or using this data without proper notice, in violation of the Privacy Act (as DHS did for years with the Automated Targeting System), (b) the TSA is doing what is says in the notices it is doing, and collecting and using new information in new ways, or (c) the TSA plans to do so in the future, and wants to be able to say, if someone later complains, “But we gave you fair notice that this was what we were going to do. If you wanted to object, you should have done so back in 2013 when we published that notice.”
  • “[W]e are not using any new data to determine low risk passengers.” Applicants for the TSA’s Pre-Check program — i.e. people who want to be relieved of suspicion-by-default and the associated more intrusive search each time they travel — are being required to provide information that the TSA has never before requested, including fingerprints, other biometric information, and authorization for checks of criminal, financial, and other government and commercial records.  If the TSA isn’t using any of this new data, why is it compiling it? More than likely, this new data is being or will soon be used — and retained for possible additional future uses for an unknown range of purposes.

[TSA Pre-Crime graphic from Leaksource]

Oct 10 2013

TSA proposes arbitrarily individualized surveillance-based searches

In the latest version of TSA’s endless series of “trusted traveler” (or “less mistrusted traveler”) schemes, the agency is currently proposing to impose more intrusive searches on any traveler who doesn’t “voluntarily” enroll in the TSA Pre-Check program and authorize the TSA to create a new permanent file with everything from your fingerprints to any “other information provided by … government agencies or other entities”.

These files would be exempted from the normal requirements of the Privacy Act that records used as the basis for decisions about individuals’ exercise of our rights be made available to us and be limited to information that is sufficiently accurate, complete, and relevant to form a legitimate basis for such decisions.

The proposal is contained in a package of three regulatory filings (one new and one revised “System of Records Notice” and a “Notice of Proposed Rulemaking” proposing Privacy Act exemptions) published last month in the Federal Register.  All three have to be read in combination to appreciate their full implications.

The deadline for public comments on two of these proposals is today, and for the third is tomorrow. We filed consolidated comments today objecting to all three of these proposals:

Read in combination, this new and revised SORN and these proposed regulations describe a system in which an essentially unlimited range of personal information collected from an essentially unlimited range of sources, and known to include inaccurate and irrelevant information, would be (or perhaps already is being) compiled into the “TSA Pre-Check Application Program” system of records.

These records would be used – either according to criteria which are illegally being kept secret, or in an entirely arbitrary manner at the “discretion” of the TSA – to determine who is and who is not deemed “eligible” to exercise the right to travel without being subject to unreasonable searches.

The results of that decision-making would be incorporated into the “Secure Flight” system of records, and used as part of the basis (also either pursuant to secret rules or entirely arbitrarily) for deciding to issue or withhold the issuance of individualized “boarding pass printing results”, including instructions to TSA staff and contractors as to the degree of intrusiveness of the search to which each would-be traveler is to be subjected as a condition of exercising our right to travel.

Maintenance and use of these systems of records in the manner contemplated by these SORNs and the proposed exemptions would violate the 1st, 4th, and 5th Amendments to the U.S. Constitution, the presumption of innocence, due process, the Freedom Of Information Act (FOIA), the Privacy Act, and Article 12 (Freedom of Movement) of the International Covenant on Civil and Political Rights (ICCPR.

These records should be expunged, and the proposed regulations should be withdrawn….

We also point out that the TSA is only pretending to give the required consideration to public comments:

According to the “TSA Pre-Check Application Program” SORN published on September 10, 2013, “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act because it may contain records or information related to law enforcement or national security purposes.”

This claim was, and is, false. As of the date of the SORN, no such exemption had even been proposed: the NPRM proposing such an exemption, and requesting public comments (such as this one) concerning that proposed exemption for consideration by the DHS, was not published until a day later, on September 11, 2013. Even now, the Secretary has promulgated no final rule for such an exemption. Nor could he or she promulgate any such final rule, consistent with the Administrative Procedure Act, unless and until the current period for public comment on the proposed exemption rule has concluded and the comments submitted (including these comments) have been considered by the DHS.

The false claim that “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act”, when in fact the Secretary has not done so, appears to be intended to mislead individuals about what rights we have, and to dissuade us from attempting to exercise our rights.  In addition, by stating the outcome of the current exemption rulemaking as a fait accompli, it constitutes prima facie evidence of bad faith in the consideration of public comments. It is not enough for an agency to accept submissions of comments from the public to the circular file, after making a decision. An agency must give genuine consideration to public comments before deciding whether to finalize, modify, or withdraw a proposed rule.

You can read our complete comments here. You can submit comments at Regulations gov (here, here , and here) but your comments won’t be processed or visible online until after the DHS Privacy Office re-opens.

[TSA Pre-Crime graphic from Leaksource]

Oct 10 2013

US government thinks human rights are not essential

Representatives of the US government were scheduled to appear next week for public, in-person questioning in Geneva by the UN Human Rights Committee, as part of the UNHRC’s periodic treaty-mandated review of US implementation of the International Convention on Civil and Political Rights (ICCPR).

Each party to the ICCPR, including the US,  is required by Article 40 of the treaty to report to the UNHRC, “whenever the Committee so requests”, on “the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights.”

We were looking forward to next week’s session, at which the UNHRC was scheduled to consider issues we had raised in our submissions to the UNHRC, including US violations of Article 12 (Freedom of Movement) of the ICCPR and US failure to consider, respond to, log, or report on complaints of human rights treaty violations.

Today, however, the US requested and received a postponement until March 2014 of its appearance before the UNHRC, “due to the ongoing government shutdown.”

But the US government is not, of course, shut down.

Agencies, departments, and contractors deemed “essential”, including police, prisons, surveillance agencies, and travel “screeners” (searchers and interrogators), remain on the job. These “essential” operations include, of course, many of those engaged in human rights violations.

The real meaning of the US request for postponement of the review of its human rights record by the UNHRC is that the US does not consider compliance with international human rights treaties to be “essential”.

The government continues to violate our human rights during the “shutdown”. What have been shut down are any mechanisms for accountability, oversight, or enforcement of human rights treaty obligations.

This is nothing new or surprising, but it is nonetheless appalling. Human rights are essential. Compliance with treaties is as essential as compliance with any other provision of the US Constitution.

Unfortunately, this is typical of the way that decisions have been made as to which government functions are “essential”.

For example, the TSA and DHS offices responsible for responding to Freedom Of Information Act (FOIA) requests have been closed for the duration, even though FOIA mandates, and provide statutory deadlines for, responses to these requests. Meanwhile, TSA and DHS press offices, who perform no statutorily mandated function, remain open. Propaganda has been prioritized over both the substance of transparency and compliance with the law in making decisions about which offices will be kept open.

The postponement of the UNHRC’s review of US compliance with the ICCPR will give the Department of State more time to respond to our complaint of violations of the ICCPR by the State Department, and our FOIA request for State Department records related to complaints of human rights violations.  That request and complaint have been pending for more than two years. Shortly before all FOIA offices were shut down, however, we were told by the State Department that it doesn’t expect to complete its response to our FOIA request until 2015. That’s too late, conveniently, for it to be considered by the UNHRC in its review of the US human rights recrod, even at a postponed 2014 session.