Papers, Please!

The Identity Project

Aug 19 2013

White House approves new “long forms” for some passport applicants

After a year-long “review”, the White House on August 12, 2013, approved the State Department’s proposed new “long form” questionnaires for some (unspecified) subset of applicants for US passports:

Form DS-5513, “Supplemental Questionnaire to Determine Entitlement for a U.S. Passport”:

Form DS-5520, “Supplemental Questionnaire to Determine Identity for a U.S. Passport”:

In approving these forms, the Office of Management and Budget (OMB) ignored overwhelmingly public outrage at these questionnaires, which ask such questions as:

  • List all your parent(s) residences one year before your birth.
  • Parent(s) place of employment at the time of your birth (Dates of employment, Name of employer, Address of employer).
  • Did your mother receive medical care while pregnant with you and/or up to one year after your birth? (Name of hospital or other facility, Address, Name of Doctor, Approximate dates of appointments).
  • Please provide the names (as well as address and phone number, if available) of persons present at your birth such as medical personnel, family members, etc.
  • Please list any schools, day care centers, or developmental programs you attended from birth to age 18 in or outside of the United States.
  • Please list all of your permanent residences inside and outside of the United States starting with your birth until age 18.

The proposed forms were slightly (but not significantly) revised by the State Department during the review by OMB. But there are still no publicly-disclosed guidelines for which passport applicants would be sent one or both of these “long forms”.  We requested this information from the State Department more than two years ago under the Freedom of Information Act (FOIA), but the State Department has not yet responded to our request. (This is, we’ve been told, typical of the State Department’s failure to comply with FOIA deadlines.)  The most reasonable inference is that the new forms are designed to be impossible to complete, so as to provide a pretext to deny you a passport if the State Department doesn’t like your looks (or your opinions, or whatever).

The State Department has also ignored our formal complaint that these conditions for passport issuance violate U.S. obligations as a party to the International Covenant on Civil and Political Rights, and our FOIA request for any records of what (if anything) was done with that complaint.

OMB declined our written request to meet with them to discuss our objections to the proposed forms. OMB policy is to meet with groups interested in its reviews of proposed regulations, but it doesn’t apply that policy to its reviews of proposed “information collections”.

In the course of the review by OMB, the State Department admitted that, as we had already reported, it has already been using these forms illegally. According to the latest State Department submission to OMB:

The DS-5520 has been created to correct a procedure that may have been inconsistent with the Paperwork Reduction Act (PRA)….   Field offices have, in the past, sent the applicant a letter containing a questionnaire asking for the supplemental information.  The Department has become aware of this procedure and is now seeking OMB approval to rectify the oversight….

The DS-5520 is a new collection based on the previously internal Information Request Letter (IRL) titled, “Supplemental Identification List”.  To estimate the number of respondents per year, therefore, the Department ran a report using our Management Information System (MIS) to determine the number of these IRLs filed in 2011 by every passport agency and acceptance facility.  The results revealed that in 2011, 54,723 letters were filed along with the DS-11.

Until the forms were approved (as they now have been) by OMB, the Paperwork Reduction Act (PRA) prohibited the State Department from denying anyone a passport or imposing any other penalties for failure or refusal to fill out these forms.

Now that these forms have been approved, objections to the denial of a passport on the basis of failure to complete these forms (or to do so to the satisfaction of the State Department) will have to be based on other grounds than the PRA.  These objections may be more fundamental, but may also be more difficult to establish in administrative or judicial proceedings.

If you are a US citizen but are denied a US passport because you are unable or unwilling to answer these questions, or you are prevented from entering or leaving the USA because you don’t have a passport, we’d like to hear from you.

Jun 18 2013

Our comments on the TSA’s virtual strip-search machines

Today the Identity Project filed our comments on the TSA’s proposed rules to require travelers to submit to “screening” using virtual strip-search machines (“Advanced Imaging Technology” in TSA-speak.

You have until next Monday, June 24, 2013 to submit your own comments.

Here’s the introductory summary of our comments:

Regulations of the Transportation Security Administration (TSA) at 49 CFR § 1540.107 currently require would-be air travelers to “submit to screening”, but neither define nor limit the meaning of “submit” or “screening”. Under this NPRM, the TSA proposes to add a new paragraph (d) to § 1540.107, which would authorize the TSA to include “screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened” as part of the “screening” to which would-be passengers must “submit” (those terms remaining otherwise undefined and unlimited).

The proposed rule would require travelers to submit to virtual strip-searches and/or manual groping of their genitals, as a condition of the exercise of their right to travel by air by common carrier.

The Identity Project objects to the proposed rule on the following grounds:

1. The TSA fails to recognize that travel by air by common carrier is a right, not a privilege to be granted or denied by the government or subjected to arbitrary or unjustified conditions. As a condition on the exercise of a right, a requirement to submit to searches or other aspects of “screening” is subject to strict scrutiny. The burden is on the TSA to show that the current and proposed requirements will actually be effective for a permissible purpose within the jurisdiction of the TSA, and that they are the least restrictive alternative that will serve that purpose. The TSA has not attempted to asses the proposed rule according to this standard, and has not met this burden.

2. The TSA errs in claiming that, “Individuals … are not included in the definition of a small entity” in the Regulatory Flexibility Act (RFA). Nothing in the statutory definition of “small entities” excludes individuals, and in fact many individual travelers affected by the proposed rule are “small entities” as that term is used in the RFA. The TSA must publish and allow comment on a new RFA analysis that takes into consideration the impact of the proposed rule on individuals in their capacity as “small entities”. If the TSA fails to do so, OMB must disapprove the proposed rule, pursuant to the RFA.

3. In the absence of any definitions of “submit” or “screening”, the current and proposed rules are unconstitutionally vague and overbroad. Travelers subject to the rules can’t tell what is prohibited or what is required as a condition of travel by air by common carrier, or which actions at TSA checkpoints are and aren’t subject to TSA civil penalties. The rules reach a significant amount of protected conduct by denying the right to travel to a significant number of individuals who pose no threat to aviation.

The proposed rule should be withdrawn, and the practices it would purport to authorize should be suspended. If the proposed rule is not withdrawn by the TSA, it should be rejected by the Office of Management and Budget (OMB) for failure to include the analysis required by the RFA. The TSA should open a notice-and-comment rulemaking to define “submit” and “screening”, as those terms are used in 49 USC § 44901, 49 CFR § 1540.107, and 49 CFR § 1540.109, with sufficient specificity to enable prospective travelers to know what actions are required and what actions are proscribed.

You can see all 5,000+ comments submitted to the TSA here.

Jun 15 2013

4th Circuit Court of Appeals upholds right to judicial review of no-fly order

In an important victory for judicial review of no-fly orders, the 4th Circuit Court of Appeals has rejected the government’s motion to dismiss the case brought by Gulet Mohamed, overturned the transfer of the case from the District (trial) Court to the Court of Appeals, and sent the case back to the District Court for consideration of the merits of Mr. Mohamed’s complaint.

Gulet Mohamed is truly the poster child for what’s wrong with secret administrative no-fly decision-making. A native-born U.S. citizen of Somali-American ancestry, Mr. Mohamed was placed on  the U.S. “no-fly” list as a teenager, while visiting relatives in Kuwait, as a way to pressure him to become an FBI informer as the only way to get “permission” from the U.S. government to return home to the USA.

When his visa expired, Mr. Mohamed was imprisoned for violation of Kuwaiti immigration law, then tortured by his Kuwaiti captors — at the behest, he plausibly alleges, of the U.S. government.

Kuwait eventually tried to deport Mr. Mohamed back to the U.S., but the U.S. government refused to let him on a flight home, and he was taken back to his cell.

Finally Mr. Mohamed smuggled out a message to his family, and they obtained a lawyer for him in the U.S. He was allowed to return home the day before the U.S. government had been ordered to show cause justifying the denial of Mr. Mohamed’s right of return — after which the government tried to get his case dismissed as moot.

But Mr. Mohamed remains on the no-fly list, so far as he knows (although for unknown reasons). He has continued to pursue his lawsuit against those responsible for his detention and torture and the denial of his right to travel.

As in other cases, the U.S. government has sought to avoid judicial review of the basis for no-fly orders.

The U.S. government has argued that trial courts cannot hear these cases, and that courts of appeals are limited to a review of the TSA’s “administrative record”.  But the TSA doesn’t decide what names to place on the no-fly list. The FBI-controlled Terrorist Screening Center (TSC) makes those decisions, based on “nominations” from itself and various other agencies. A review of the TSA’s “administrative record” would be limited to confirming that the TSA received a no-fly listing from the FBI (as part of the secret Terrorist Screening Database, TSDB), and prevented the person named in that listing from boarding a flight. Nothing in the TSA’s records identified the basis for the TSC’s no-fly designation.

In an unpublished order issued May 28, 2013,  the 4th Circuit Court of Appeals became the second Court of Appeals (following the 9th Circuit’s rulings in the case of Rahinah Ibrahim) to reject the government’s theory. The 4th Circuit ruled that there  was neither sufficient provision for administrative review by the TSA of the no-fly order against Mr. Mohamed, nor a clear indication that Congress intended to preclude District Court trials in cases like this.

The next step, we expect, will be for the government to invoke the “state secrets” doctrine to try to get the case dismissed. But as in Dr. Ibrahim’s case, the fact of Mr. Mohamed having been denied the right to travel and to return to the U.S. can be established without the need to introduce any evidence obtained from the U.S. government.

We look forward to someday seeing a trial on the merits of a U.S. government no-fly order.

Jun 14 2013

How many people fly without ID? How many are denied the right to fly?

Buried in the TSA’s response last month to our FOIA request for information about its ID verification forms a and procedures was a fragmentary report on how many people try to fly without ID, and what happens to them.

An e-mail message discussing the changes made in 2008 to the TSA’s (secret) procedures for flying without ID — the last time TSA Form 415 for air travelers without ID was revised — included a TSA Operation Center (TSOC) “ID Verification Report” for the 15-hour period from 5 p.m. on June 21, 2008, to 8 a.m. on June 22.

On what was described as a “quiet” night, 74 people (nationwide, apparently) tried to fly without ID and were subjected to the TSA “ID verification” procedures between 5 p.m. and 5 a.m., and an additional 45 between 5 and 8 a.m. the next morning, for a total of 119. This didn’t include what is presumably the busiest shift, from 8 a.m. to 5 p.m., but what still suggest that tens of thousands of people try to fly without ID each year.

It appears that most of these people were allowed to fly without ID. Of the total of 119, only 8 were reported as “denials” (presumably meaning that they were identified, but deemed on the basis of that identification to be subject to no-fly orders), while 23 were reported a “not verified”. It’s unclear if those “not verified” were denied travel,  or were allowed to travel despite not being “verified”.

Now that we know that records are being kept of how many people try to fly without ID, and of what happens to them, we’ve filed a follow-up FOIA request for all “TSOC ID Verification Reports” as well as any records of how incidents and outcomes are categorized for reporting purposes.

May 29 2013

TSA never got OMB approval for “Certification of ID” (Form 415)

In June 2008, the TSA began requiring would-be travelers who didn’t show government-issued ID credentials to fill out and sign — under penalty of perjury — a new “Certification of Identity” form, and answer questions based on the records about them retrieved by a TSA contractor from some commercial data-aggregation company.

Since then, we’ve made a series of FOIA requests to try to obtain the current form, the rules (if any) for its use, and whether the TSA had gotten this collection of information approved by the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act (PRA).

We’ve recently received a response to one of our FOIA requests, filed more than two years ago, which includes the latest version of TSA Form 415 and makes clear that the TSA has never obtained the requisite OMB approval.

In the absence of OMB approval and a valid OMB control number on TSA Form 415, travelers who decline to respond to these questions or fill  out or sign this form cannot be subjected to any government sanctions, including TSA “civil penalties”.

There are several noteworthy features of the latest documents released by the TSA in response to our FOIA request, particularly TSA Form 415 itself and this email thread regarding how the form is used and whether it requires OMB approval.

First, the e-mail correspondence with the FOIA Office to identify records responsive to our request appears to have been completed within a few weeks. Then the TSA sat on the response for more than two years, presumably while waiting for approval from the DHS FOIA “front office”. From responses to our previous requests, we know that the FOIA “front office” has ordered the TSA not to respond to our requests without this approval, even if responses are complete and otherwise ready to go out.

Second, if the TSA’s latest FOIA response to our request for the “most recent version” is to be believed, the version of the “Certification of Identity” currently in use is this TSA Form 415 dated August 2008.

Third, the TSA never even applied for OMB approval for TSA Form 415 or its unnumbered predecessor “Certification of Identity” form, because the office responsible for obtaining OMB approval was led to believe that the form was to be completed by TSA staff, not by travelers (a manifestly implausible claim, since all versions of the form have included a space labeled for the signature of the would-be traveler).

Fourth, the TSA completely misunderstood the statutory criteria for determining when OMB approval is required. Who fills out the form, or whether there even is a paper form (or information is collected by verbal questioning), is completely irrelevant to the definition in the Paperwork Reduction Act of a “collection of information” for which OMB approval is required:

[T]he term “collection of information” … means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for … answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States….

The consequence is that you aren’t required to complete TSA Form 415 (since it doesn’t have an OMB control number),  you aren’t required to answer any TSA questions (if the same questions are asked of ten or more people), and you can’t be penalized for declining to fill out the form or answer such questions.

May 28 2013

TSA “Glomar” response to request for Terrorist Screening Database records

An individual who used our forms to ask the DHS for its records about their travel  has received response of a sort that we haven’t previously seen to a request of this sort: a “Glomar” response that the DHS will neither confirm nor deny that there are any records about the requester in the DHS mirror copy of the FBI’s “Terrorist Screening Database” (TSDB).

It has long been the policy of the FBI, which is nominally “responsible” for the TSDB, neither to confirm nor deny the existence of TSDB records about any individual.

In 2011, DHS published a notice that it planned to make its own mirror copy, for which it would be responsible, of the FBI’s database. At the same time, the DHS exempted the DHS copy of the TSDB from the Privacy Act.

This is the first DHS response we have seen to a request for records from the DHS copy of the TSDB. It’s no real surprise, but it’s different from the typical DHS responses to requests for records about individuals, which include ignoring requests, producing obviously incomplete responses with no explanation of the missing records, and producing pages and pages of completely blacked-out records.

So the TSA won’t say if you are listed in its copy of the Terrorist Screening Database, but will use it against you if you are.

May 27 2013

Audio: “In the matter of John Brennan”

After extensive negotiations, we were given permission to record audio (but not video or still photographs) of the formal hearing conducted in Portland. OR, on May 14, 2013, in the matter of “Naked American Hero” John Brennan.

Linked below are audio recordings of the entirety of the hearing:

Dramatis Personae other than witnesses (in order of appearance):

Audio (MP3 recordings can be streamed from here or downloaded directly from the links below):

Video: Excerpt from TSA/airport security camera video (from news report, but also entered into evidence at the formal hearing)

Mr. Brennan exercised his First Amendment right to express his political opinion by taking off all his clothes while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport (PDX) on April 17, 2012.

The TSA called the Portland police, who arrested Mr. Brennan for “indecent” exposure, but he was eventually acquitted of all criminal charges by an Oregon judge.

Undeterred — or, more precisely, fearing that Mr. Brennan and others would no longer be deterred from similar politically expressive conduct after his acquittal — the TSA has proposed to assess a $1,000 “civil penalty” against Mr. Brennan for “interfering with screening”.

It certainly appears to us that Mr. Brennan’s actions should have facilitated his screening, and he testified that he was trying to assist the screeners in determining that he was not carrying explosives or weapons.

There are many Alice-In-Wonderland aspects to this administrative proceeding, among them that the TSA has declared the “Notice of Proposed Civil Penalty” which explains the basis for the proposed fine to be “Sensitive Security Information” (SSI) exempt from public disclosure.  The notice was, we presume, served on Mr. Brennan and/or his attorney, but they were not allowed to quote from it publicly.

Portions of the evidence and allegations against Mr. Brennan were also designated as SSI and exempt from disclosure.  We were allowed to attend and listen to the whole formal hearing, but not to see any of the documents that were being discussed and entered into the (secret) record.

The  decision of the Administrative Law Judge (ALJ) on whether to assess a fine against Mr. Brennan, and if so in what amount, will probably also deemed SSI.

According to the rules for TSA civil penalty proceedings, journalists or members of the public can inspect  the docket — including the evidence, transcripts of the depositions and the formal hearing, and pre- and post-hearing briefs — only by filing a formal request under the Freedom Of Information Act (FOIA).

We’ve filed a FOIA request for the complete docket record, and have asked (in accordance with FOIA) that it be processed on an expedited basis, but the TSA’s first response was that they estimated that they won’t complete their response until August 23, 2013.  The Coast Guard ALJ’s office told us that they couldn’t remember anyone ever before asking for an active civil penalty docket, and hasn’t yet given us any estimated date for their response.

In the meantime, our audio recordings linked above are the best available public indication of what the TSA thinks Mr. Brennan did, how they think he “interfered with screening“, and why they think he deserves a $1,000 fine. These are also the best available guidance, for others who may be subjected to TSA enforcement action, about how the process works.

The TSA has threatened other protesters with civil penalties, but in most cases either people pay the proposed fines (for example, if they were trying to carry otherwise-legal firearms through a TSA checkpoint, which happens every day), they are convicted of some criminal offense (usually for drugs), or the TSA backs down and withdraws its proposal for a fine. So far as we know, this is the first time the TSA has continued to pursue a proposed civil penalty for nonviolent, non-criminal  political protest at a TSA checkpoint by someone who contested the proposed fine and exercised their right to a formal hearing.

(TSA Publc Affairs Manager Lorie Dankers, who came down from the TSA regional office in Seattle along with the TSA’s lawyer to attend the hearing in Portland, told reporters that since the TSA’s creation the agency has assessed “a few hundred” civil penalties for “interfering with screening.” But most of those cases involved neither political protest nor a formal hearing.)

This was an administrative proceeding, not a trial. It was held in a courtroom rented from the U.S. Bankruptcy Court, but it was not a trial, not a “court” proceeding, and not governed by court rules.

Read More →

May 01 2013

Hearing May 14 in Portland for “Naked American Hero” John Brennan

Does nudity “interfere” with TSA “screening”?

That will be the issue at a hearing before TSA “Administrative Law Judge” George J. Jordan on Tuesday, May 14, 2013 in Portland, OR, in the matter of “Naked American Hero” John Brennan, who exercised his First Amendment right to express his political opinion by taking off all his clothes [video from TSA/airport security camera] while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport on April 17, 2012.

The TSA calls its checkpoint staff and contractors “Transportation Screening Officers”, but they aren’t law enforcement officers and have no police powers.  So when people do things they don’t like, their normal response — if bullying doesn’t work —  is to call the local police. That’s what they did with Mr. Brennan in Portland.  The local police arrested him and charged him with “indecent” exposure. (There is no law against public nudity per se in Portland.)

But an Oregon judge acquitted Mr. Brennan of these criminal charges, finding that Mr. Brennan’s conduct wasn’t “indecent” and was political speech protected by the Oregon constitution.

That should have been the end of the matter. But the TSA was, apparently, afraid that if Mr. Brennan wasn’t somehow punished, too many other Oregonians might start following his example.

So even though a judge had already found that Mr. Brennan’s nakedness at the TSA checkpoint was not a crime, the TSA is seeking to assess a $1,000 fine against Mr. Brennan for “interfering with screening” in violation of TSA regulations (49 CFR 1540.109).

Read More →

Apr 26 2013

Residents near music festival “required” to wear RFID armbands

The L.A. Times has reported that people who live anywhere within a mile of the site of the Coachella Valley Music Festival in Indio, California (and perhaps residents’ visitors, if any visitors were allowed?) were “required” to wear individually numbered RFID-chipped tracking bracelets throughout the two weekends of the festival:

In 2011, the organization began using microchip-embedded wristbands….

No one can so much as get within a mile of the Empire Polo Field, where Coachella is held, without wearing one. Local residents, whose homes surround the polo field, also have to wear one just to get to their houses, and Guitron said homeowners must also register their cars….

Guitron said it created a safe perimeter for the event, where every concertgoer and resident can be identified via a microchip.

It’s not clear by whom, or by what authority, nearby residents or their guests and visitors could be “required” to wear devices each of which transmit a unique tracking ID number any time it is requested by private parties.

The festival Website explains the “requirements”, but says nothing about their legal basis:

  • “Police check points will vary from one quarter mile to one mile outside of the festival perimeter. Please have your wristbands properly applied on your wrist prior to your departure to the festival.”
  • “You cannot pass through the police vehicle checkpoints without your wristband properly applied on your wrist….”
  • “You cannot walk or bike to the festival site without a wristband properly applied on your wrist.”

According to a trade-journal review of the system being used at Coachella and some other festivals and events:

For organisers, a major benefit is receiving real-time statistics detailing how many people are in each designated area of the site at any time…. “RFID technology is ideal for an exhibition environment, or at any event where customer relationships, outreach and sales leads are sought.”… [T]he RFID micro-chips are linked to an individual ticket-holder’s information.

Will we see controls and RFID person and vehicle tracking requirements like this next year on Patriots Day for everyone who lives, works, shops, visits, attends political meetings or religious services, or passes through the area within one mile of the Boston Marathon route?

We’d be interested to hear from anyone who lives in the area in Indio in where RFID bracelets were “required”.

Apr 25 2013

Bad DHS idea of the day: Fees for crossing the USA-Canada land border

As part of its latest budget request, the US Department of Homeland Security has asked Congress to fund a study of the “feasibility” of charging “user fees” for the cost of “security screening” for people crossing the land border between the USA and Canada.

As is often the case with issues related to USA-Canada relations, the DHS proposal was barely deemed newsworthy in most of the USA, but generated front-page stories and instant outrage from Vancouver to Toronto and throughout Canada.

Since this is a budgetary proposal, it needs approval from the US Congress. Tell your Representative and Senators that people who travel to and from Canada aren’t “using a service”. We are exercising our right to travel, to leave our country, and to return. We shouldn’t have to pay fees for required travel documents or for being searched and interrogated by agents of either country’s government.