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The Identity Project

Mar 25 2013

TSA takes a (small) step in the right direction

Earlier this month, the TSA announced that — although of course there are still no rules for what is and isn’t permitted at TSA checkpoints, travelers can expect that beginning April 25th we will be “permitted” (not entitled, “permitted”, since of course the exercise of our right to travel is at the TSA’s discretion) to bring tiny pocket knives and certain previously-prohibited sporting equipment onto commercial airplanes.

We could criticize the TSA’s press release for not going far enough, and for its arbitrariness. (We’d like to say that it’s a “policy” change, but we can’t, since there are no publicly-disclosed TSA checkpoint polices.)  It’s pretty obvious that it doesn’t reflect any rational risk assessment. Why allow golf clubs, hockey sticks, and pool cues, but prohibit cricket bats?

But lest it be said that we never give credit to the TSA when credit is due: We congratulate the TSA for taking a small step toward saner “screening” practices.

Unfortunately, the TSA’s announcement has prompted a hysterical reaction from the opposite direction, with bills being introduced in both houses of Congress to direct the TSA to seize even the tiniest blades, and to protect us against the hockey-stick-armed terrorist hordes.

Ironically, the TSA defends itself with an argument that could equally be used against virtually all of the TSA’s continuing restrictions on carry-on items:

We have yet to see a single incident where a passenger was injured using a knitting needle or scissors. Small knives have been permitted in Europe for some time now, with no incidents that we are aware of. In fact, the GAO published a report that said there had been zero security incidents where these items had been used aboard an aircraft.

Passengers are allowed to bring bottles of water and many other items prohibited by the TSA onto flights in Europe and the rest of the world. We are aware of no incident in which anyone has tried to blow up or highjack an airliner using a bottle of water as a weapon. So if this is the TSA’s criteria, what is the rationale for the list of items that are still prohibited in carry-on luggage?

The fact is that searches at TSA checkpoints, like most other “administrative” searches, are designed as security theater — to make us feel safer rather than to make us be safer — and for a variety of other law enforcement purposes (mainly seizure of prohibited substances). Not on the basis of aviation security.

Would-be terrorists would have a hard time breaking through reinforced  cockpit doors. Those with adequate cutting tools would probably be subdued (and possibly lynched) by passengers and flight attendants before they could do so. These, and not TSA checkpoints, are the real defenses against the bogeyman of “another 9/11”.

Even the prohibition on firearms on airline flights has more to do with gun control in general than with anything specific to aviation security.  The TSA boasts that it finds loaded guns in carry-on bags every day. Does that suggest that every gun-toting traveler is a terrorist? Or that travelers have been flying with firearms every day for decades, almost entirely without incident?  It’s hard to see how a gun poses more of  a threat on an airliner than, say, in a crowd (or in a car) on a city street, where it’s perfectly legal.

We salute the saner voices among the secret decision-makers who determine the TSA’s secret non-rules. We urge them to stand firm in defense of our right to keep our sewing scissors and pencil-sharpening knives in our carry-on bags, and to resist the pressure to pander further to Congressional fears.

Mar 24 2013

U.N. Human Rights Committee considers U.S. violations of freedom of movement

As part of a delegation from the U.S. Human Rights Network, we spent this past week in Geneva meeting with members of the U.N. Human Rights Committee in preparation for the Committee’s review of U.S. implementation of the International Covenant on Civil and Political Rights (ICCPR).

The U.S. ratified the ICCPR in 1992. In accordance with the terms of the ICCPR, the Human Rights Committee reviews each party to the treaty every five years. At its current session, the Human Rights Committee is adopting a short list of issues to be addressed in its review of the U.S.

The Human Rights Committee received dozens of submissions from nongovernmental human rights organizations, including several five from the Identity Project, recommending issues for inclusion in the Committee’s review of the U.S.

The list of issues and questions for the U.S. adopted this by the Human Rights Committee in closed session, will be made public sometime in April after it is translated into the six official working languages of the U.N.

Far more issues were put before the Committee than it will be able to include on its short list. But from the private meetings we had this week with members of the Committee, we strongly suspect that list of issues about which the U.S. will be questioned when it appears before the Human Rights Committee for public questioning this October will include issues related to freedom of movement and travel.

Despite U.S. law that explicitly requires the TSA to respect “the pubic right of freedom of transit” by air, and Constitutional principles of freedom of movement, the DHS and other U.S. government agencies have been unwilling to include the right to travel in the terms of reference according to which travel “security” measures are evaluated.   We look forward to seeing how official representatives of the U.S. government will respond to the questions about this issue that we expect will be asked by the Human Rights Committee.

Mar 17 2013

Contest: Educate people about their rights at checkpoints & win an HD video camera

Our friends at CheckpointUSA.org, in conjunction with CopBlock.org and others, are holding a contest for the best video or other educational content that “demystifies” roadblocks and your rights when stopped.

Details are here. The contest is open through midnight EST, April 8, 2013, and the entry that “does the best job educating others about checkpoints in general and your rights in particular while seized at one” gets a high-definition digital video camera, complete with dashboard mounting kit and other mounting options.

Thanks to CheckpointUSA.org, we’ve been trying out one of these cameras, and they are perfect for recording what happens at checkpoints and other encounters with illegitimate authority.

For inspiration, check out this compilation of videos of what happens when people assert their rights at checkpoints, as discussed recently in this interview on KPBS in San Diego, where almost everyone has to pass through “border control” checkpoints regularly, even if they aren’t crossing the border.

It’s sad that always-on dashboard video recorders, which have become de rigueur for Russian drivers for protection against corrupt police, have now become necessary in the USA as well. But as Terri Bressi of CheckpointUSA.org — one of the judges in the current contest, and the hero of his own saga of encounters with police checkpoints — says:

One of the biggest lessons I learned during my ten year legal battle with …  police and the federal government regarding an illegal general law enforcement checkpoint encounter … was that government agents and police officers will readily lie under oath to obfuscate facts detrimental to their position and make up other facts to support it. What also became clear as I worked my way through the maze of the ‘justice system’ was that too many judges are more than willing to take the word of a police officer or other government agent over that of a non-affiliated member of the public, even when eyewitness testimony & other evidence directly contradicts the testimony of a government agent.

Since I had no video of the actual encounter that took place at that checkpoint in December of 2002, it was quite easy for the court system to bury the evidence that was most damning to the police & undermine my attempts at bringing accountability to the individuals & agencies directly involved. Realizing the importance that video would have had during legal proceedings, I quickly rectified my mistake & purchased my first digital camera in 2003. Since then, I’ve gradually upgraded and expanded my recording capability while traveling along public highways to better protect myself against the arbitrary aggression of government agents of all stripes.
Now that my ten year legal journey is finally over regarding that initial checkpoint experience, I’ve been looking for a way to assist others to legally protect themselves against the arbitrary & aggressive encroachment of the state into the daily lives of peaceful individuals. To that end, I’ve really appreciated the exposure Carlos Miller has given to the issue of recording public servants in the public sphere on his website, Photography Is Not A Crime, along with Judge Napolitano’s declaration from a few years ago that The Camera Is The New Gun….

We’ll post a link to the winning entry as soon as the contest results are announced.

Mar 09 2013

Citizen Long takes the long way home

When last we wrote about Saadiq Long — an Oklahoma native, U.S. citizen, and Air Force veteran — he had been sentenced by the U.S. government, without judge or jury, to life without air travel.

First he was prevented from returning to the U.S. to visit his ailing mother.

Then he was prevented from returning to his wife, child, and job in Qatar.

Why? He doesn’t know, and the U.S. government won’t say.  Airlines refused to allow him to check in for any flights to, from, within, or overflying the U.S., so he infers that the DHS has put him on a “no-fly” lost. But as usual, the U.S. government refuses to confirm or deny any such listing or no-fly order, much less to explain the basis (if any) for it.

Now Mr. Long has made it back to Qatar from Oklahoma, the long way. According to The Oklahomn:

During a telephone interview Friday, Saadiq Long … said he took a bus from Oklahoma City to Mexico, then boarded flights in three different countries to return to Qatar….

“I didn’t have any other choice after the FBI refused to take me off the ‘no-fly’ list,” Long said.

“I have my family here. I have a job here. I had to get back.”

Mr. Long wouldn’t have been able to take a direct flight from Mexico to Europe. Those flights pass through U.S. airspace over Florida. Flights between Mexico and Barcelona and (repeatedly) Paris, for example, have been turned back or diverted when the U.S. found out that they were unwittingly carrying passengers on the U.S. no-fly list.

Most likely Mr. Long had to fly from Mexico to someplace much further southeast such as Buenos Aires, Sao Paulo, or Rio de Janiero; from there to Europe or Dubai; and from there to Qatar.  Or maybe he got really lucky, and got on a Qatar Airways direct flight from Sao Paulo.  But it’s still likely to have taken him days of extra travel time and thousands of dollars extra in airfare, compared to, say, a nonstop flight from Houston to Doha.

Mr. Long’s case is among the violations of the right to freedom of movement which we will be raising with the U.N. Human Rights Committee later this month in Geneva, in preparation for the Committee’s periodic review later this year of U.S. implementation of the International Covenant on Civil and Political Rights.

Mar 02 2013

Travel blogger kicked off plane by pilot for taking photo of… seatback?

Frequent flyer and travel blogger Matthew Klint was recently kicked off a United Airlines flight from Newark to Istanbul after a flight attendant saw him take a picture of the back of the seat in front of him, and reported him to the pilot. The pilot told Mr. Klint, “You are not flying on this flight…. We’ll call the police if we have to.”

Perhaps unfortunately, Mr. Klint didn’t insist that the police be called, or call them himself, leaving him dealing with United Airlines’ public relations department rather than with legal authorities.

As a frequent flyer and blogger, Mr. Klint at least able to get  the airline to talk to him, after the fact. But what can an ordinary traveler do in such a situation?

We talked about this last year in articles on Does an airline pilot have the right to refuse to let you fly? and  What can you do if an airline pilot won’t let you fly? But it bears repeating:

Under Federal law, as common carriers, airlines must transport all would-be passengers willing to pay the applicable fare in their published tariff and comply with their published conditions of carriage. Not to do so is a serious violation of their duties.

If an airline refuses to allow you to fly, for any reason other than a violation of published laws, regulations, or conditions of carriage, you can and should make a formal complaint against the airline to the Department of Transportation.

A pilot can order you off the plane only if the pilot genuinely believes that you pose a hazard to the safe operation of the flight, in which case the pilot is required to log and report this safety incident.

If a pilot orders you off the flight for some other reason, or without logging and reporting his or her action as a safety incident, you can and should report the pilot to the FAA.

We’ve offered our support to Mr. Klint, should he wish to pursue a legal challenge to the actions of the airline and pilot against him.

Mar 01 2013

Will “E-Verify” become the new national ID?

The House Homeland Security Subcommittee on Immigration and Border Security held a hearing this week on How E-Verify Works and How it Benefits American Employers and Workers.

Despite the boosterish title, the Subcommittee still heard testimony and received written statements that “E-Verify” doesn’t work, doesn’t benefit American employers or workers, and costs billions of dollars a year. But what’s even worse about “E-Verify”  is the likelihood that what is now an identity “verification” system will be expanded to include a mandatory national biometric identity card and permission-for-employment system, with a default of “No”.

According to the Wall Street Journal:

Key senators are exploring an immigration bill that would force every U.S. worker—citizen or not—to carry a high-tech identity card that could use fingerprints or other personal markers to prove a person’s legal eligibility to work.

The idea, signaled only in vaguely worded language from senators crafting a bipartisan immigration bill, has privacy advocates and others concerned that the law would create a national identity card that, in time, could track Americans at airports, hospitals and through other facets of their lives….

The Senate group, in a statement guiding their work on a new law, called for workers to prove their legal status and identities through “non-forgeable electronic means.” Senate aides said the language was intentionally broad because of the sensitivity of the issue. Mr. Graham [Sen. Lindsey Graham, R-SC], in an interview, said that in his mind the language refers to a requirement for biometric ID cards.

How did the U.S. come to this?

The slippery slope began in 1986, with a law effectively repealing the right to work and shifting the burden of proof of legal eligibility for employment onto would-be workers. Since then, all employees have been required to provide their employers with evidence either of citizenship or immigration status entitling them to paid employment in the U.S. In effect, this law created a (rebuttable) legal presumption of non-entitlement to employment, giving new literal meaning to the slogan, “We are all illegal”.

The next step was E-Verify, “an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.”

E-Verify continued the presumption of illegality, and raised the burden of proof even higher: No evidence of identity, citizenship, immigration status, or eligibility for employment is deemed acceptable or sufficient unless it corresponds to records in the same error-riddled government databases that routinely categorize live people as dead.

Extending E-Verify to all employees would make employment a privilege contingent on Since not being listed correctly in those databases typically leads to denial of other government entitlements, “safety-net” benefits, and even access to bank accounts, failing an “E-Verify” check can be a sentence to starvation, not just unemployment, or to existence on the sufferance of family, friends, or private charity.

Adding a biometric “worker ID card” would add much to the cost, but little to the benefits (if any) of the system, since undocumented workers would simply obtain (valid) ID cards in stolen identities.  A study last year by Professors Jonathan Weinberg and Michael Froomkin for the Earl Warren Institute on Law & Social Policy at UC Berkeley School of Law found conservatively estimated the costs of such a scheme at more than $40 billion.

This isn’t the first time, and won’t be the last, that proponents of a national ID card have tried to sneak it through Congress in the guise of a measure related to immigration, terrorism, or something else. But as with the Social Security account number, which has become an all-purpose personal ID number, it’s unlikely that government credentials and identifiers will be limited to the purposes for which they are originally created.

Tell Congress you oppose any national ID card — no matter what the excuse.

/p

Feb 15 2013

“Sentenced to life without air travel”

Last year, we reported on the case of Saadiq Long, an Oklahoma native and U.S. Air Force veteran who was stranded in Qatar for six monthes, unable to return home because for unknown reasons he had been placed on a “no-fly” list, and all airlines serving the U.S. had been forbidden to transport him, on the basis of some secret allegedly-derogatory information provided by some unknown government agency that had “nominated” him for this latest version of the U.S. government’s  “enemies list”.

Eventually, in the face of public hue and cry, the FBI relented (temporarily, it turns out) and allowed Mr. Long to return to Oklahoma to spend Thanksgiving with his critically ill mother.

Happy ending to a sad story? No.

Mr. Long’s attorney, Gadeir Abbas of CAIR, who has led the legal fight against U.S. government “no-fly” orders, has an update this week in an op-ed article in the Oklahoman, the state’s newspaper of record:

Mr. Long has been living and working (for U.S. military contractors among other clients) in Qatar, where his wife and daughter remained while he went back to the U.S. for the holidays. But after letting him come home, the U.S. government has now put him back on the “no-fly” list, and won’t let him leave the country:

What’s most alarming about Saadiq’s ordeal is that the FBI will never have to explain its actions. When it comes to separating Saadiq — and many others — from family via its ever-growing and always secret watch lists, the FBI is judge, jury and executioner. Saadiq hasn’t been indicted, charged or convicted of any crime. And yet the FBI has claimed for itself the power to impose permanent punishment upon Saadiq: life without air travel. If FBI agents can impose this sentence on Saadiq, they can do the same to any of us.

Feb 05 2013

“TSA out of the MBTA!”

An ad hoc TSA out of the MBTA! group help a march and rally Saturday on Boston Common to protest the ongoing warrantless, suspicionless searches of passengers’ property on the Boston-area MBTA subway and streetcar system.  The protest was endorsed by groups including Occupy Boston and the Mass Pirate Party.

We’re encouraged to see growing resistance to the TSA’s mission creep in expanding its warrantless, suspicionless searches, interrogations, and seizures from air to surface transportation.  These searches on the “T” and other transit systems were illegitimate and unconstitutional when they started in 2004, and they remain so today.

If there’s a particular lesson here, it’s in the importance of resistance from the start of new encroachments on our rights.  No matter how “special” the circumstances in which new police programs are instituted, or how “temporary” they are claimed to be, the natural tendency is for them to become permanent.  “Enough is enough. We’ve been sleeping on this,” one participant in Saturday’s march and rally told the Boston Herald.

Checkpoints and dragnet searches on the MBTA were initiated in 2004, ostensibly as part of “special” and “temporary” security measures for the 2004 Democratic Party national convention in Boston.  They drew immediate protests which continued through the convention.

A Federal judge denied a request by the National Lawyers Guild for a preliminary injunction against the searches. Because the lawsuit had been framed in terms of the issues specific to the area around the convention, the lawsuit foundered after the convention delegates went home. But the searches continue.

Feb 04 2013

Update on Mocek v. Albuerque

On January 14, 2013, U.S. District Judge James O. Browning issued his first major ruling in Mocek v. Albuquerque, the Federal civil rights lawsuit brought for false arrest at a TSA checkpoint brought by Philip Mocek following his acquittal by a jury on trumped-up criminal charges.

Judge Browning dismissed Mr. Mocek’s complaints against the Federal (TSA) defendants.  The reasoning of that ruling is in marked conflict with several findings on the same issues by the 4th Circuit Court of Appeals in Tobey v. Jones, although that decision isn’t binding on the District Court hearing Mr. Mocek’s case since it’s in a different Federal judicial circuit.

According to the Albuquerque Journal, “Mary Lou Boelcke, Mocek’s attorney, said she expects to appeal the ruling, either before trial or after Browning decides other issues regarding the city.”

On February 1, 2013, the remaining Albuquerque defendants (the city, airport, and individual police officers) filed their own motion to dismiss the complaints against them.  That motion is now pending.

Feb 01 2013

4th Circuit say 1st Amendment still applies inside TSA checkpoint

Ruling last week in a case brought by a man who was falsely arrested for displaying the text of the 4th Amendment to the Constitution written on his chest during a “secondary inspection” by the TSA at the  Richmond, VA, airport (RIC), the 4th Circuit Court of Appeals rejected an appeal seeking the dismissal of a Federal civil complaint against TSA, DHS, and airport officials, police, and checkpoint staff.

The ruling means that the claims for damages by U. of Cincinnati architecture student Aaron Tobey (Tobey v. Jones et al., originally filed as Tobey v. Napolitano et al.) will go back to the District Court to proceed toward a trial. (Mr. Tobey is represented by attorneys from the Rutherford Institute.)

Even the dissent from the 2-1 decision (containing such gems as, “[I]t is sometimes necessary to make small sacrifices to achieve greater gains or, as in this case, to avoid catastrophic loss”, a bizarre statement given the lack of any allegation that Mr. Tobey, any of his actions, or the words written on his chest posed any but a political “threat”) admitted that, “TSA screening agents are not natural objects of affection…. TSA agents… can and do make mistakes, and there is always the chance that imbuing subordinate officials with a bit of authority can make them tyrants in their spheres.”

In rejecting the TSA and police appeal, and allowing Mr. Tobey’s case to go forward, the majority of the Circuit Court panel made several key rulings upholding travelers’ 1st Amendment rights and continuing and extending a line of decisions upholding personal liability on the part of individuals responsible for illegal actions at checkpoints: Read More →