Papers, Please!

The Identity Project

Sep 22 2012

“Automated Targeting System” briefing 10/3 at the Brennan Center

Identity Project consultant and policy analyst Edward Hasbrouck will give a brown-bag lunch presentation on the DHS “Automated Targeting System” and government surveillance and control of travelers on Wednesday, October 3, 2012, 12:30 – 2 p.m., at the Brennan Center for Justice, New York University School of Law, 161 Avenue of the Americas (6th Ave.), 12th Floor, New York (in SoHo, 1/2 block from the Spring St. station on the C and E subway lines).

Hasbrouck will give an introduction to the DHS “Automated Targeting System” (including examples of data from ATS records obtained through Privacy Act and FOIA litigation), its role in US government surveillance and control of travelers, and the civil liberties and human rights issues it raises.

The “Automated Targeting System” (ATS) is one of the largest of post-9/11 warrantless dragnet surveillance programs.  Built at a cost of more than $2 billion in government-mandated changes to commercial travel IT systems, to which DHS now has root access, ATS “ingests,”  archives, and mines complete mirror copies of all international airline reservations (“passenger name record“) data for travel to, from, or via the US. ATS records include where, when, and with whom you traveled; your IP address; what credit card was used; whether you asked for a kosher or halal meal; and whether you and your traveling companion asked for one bed or two in your shared hotel room.

While little known or debated in the US, ATS has been at the center of intense disputes with the European Union and Canada over US demands for access to travel reservation data from other countries.

Edward Hasbrouck works with the Identity Project on travel-related civil liberties and human rights issues. An award-winning travel journalist, blogger, and author, he also has 15 years of travel industry experience in airline reservations technology and travel agency  operations. Hasbrouck has testified before the TSA as well as the European and Canadian Parliaments on issues related to government access to airline reservations, and was the plaintiff in a recently-concluded Privacy Act and FOIA lawsuit seeking ATS records about himself as well as information about ATS data-mining capabilities.

The event is free and open to the press and the public.

Sep 21 2012

Department of State Form DS-71: “Affidavit of Identifying Witness”

We don’t normally require our friends and family to show us their papers to establish their identities. We have better ways of recognizing who they are.

Many US government agencies, however, seems to want to make government-issued ID credentials the only way to establish who we are — even when Federal regulations require them to accept other forms of evidence of identity.

Case in point: Department of State Form DS-71: “Affidavit of Identifying Witness” for passport applicants.

As we’ve noted previously, the State Department’s own regulations at 22 C.F.R. § 51.28 entitle applicants for US passports to establish their identity by the affidavit of an identifying witness, in lieu of documentary evidence of identity.  But it seems like the State Department doesn’t really respect this right, and prefers to get all applicants to provide papers, rather than people, to “prove” who we are.

As of today, the version of Form DS-71 posted on the State Department’s website is an obsolete one whose use was approved by the Office of Management and Budget only until Dec. 31, 2005. Elsewhere on the State Department site, the link for Form DS-71 in the index of passport forms links to a PDF of an otherwise-blank page that says, “Please visit your local [passport] Acceptance Facility to obtain this form.”

Disturbingly, we’ve received reports from people who went to the State Department’s own passport offices, accompanied by witnesses prepared to identify them, and were told that no current version of Form DS-71 was actually available.

We can’t see any reason not to make this form available online with all the rest of the passport forms, much less not to have it available at passport offices, other than to hide its existence and discourage its use.

Having let its approval for any version of this form lapse for several years, and having now obtained only temporary approval that expires at the end of this month, the State Department is now in the process of seeking renewed OMB approval for a revised form, to be used for the next three years.

According to to the State Department’s application to OMB (which includes both the current and proposed versions of Form DS-71), the number of passport applicants using this form has declined dramatically, from 163,400 in 2009 to 44,000 this year.

The State Department claims that this decline is due to greater use of other “public records” by passport examiners. But a better explanation for the abrupt decline in use of this form is its removal from the State Department website and from availability at passport offices. Applicants for passports are providing other identifying records because they aren’t being told they have the alternative of establishing their identity with an affidavit from an identifying witness.

Have you tried to establish your identity to the Passport Office by having a witness identify you? Have you had trouble obtaining the proper form, or been discouraged from using it in favor of obtaining and providing other types of evidence of identity?  Please let us know.

[Update: Here’s the version of Department of State Form DS-71, “Affidavit of Identifying Witness”, most recently submitted to and approved by OMB.]

Sep 12 2012

Secret “watchlist” used as basis for preventive detention

Secret, standardless, extra-judicial administrative “watchlists” of supposed terrorists aren’t just being used to decide who to “watch” — they are now being used as the basis for preventive detention.

A Charlotte, North Carolina man arrested for allegedly driving with a suspended license during the Democratic National Convention had his bail increased to $10,000, cash-only, and spent 36 hours during the convention in jail before getting his bail reduced, on the basis of a police report that gave the basis for detention as, “Known activist + protester who is currently on a terrorist watchlist. Request he be held due to DNC being a National Special Security Event.”

James Ian Tyson told the Charlotte Observer he was shocked to learn that he was on a terrorist watch list. “I haven’t done anything remotely criminal involving politics. No one knows how you get on this list … or the accountability process or, most importantly, how they get off this list….  I am a local Charlottean and an activist and I believe this is an attempt to stifle my First Amendment rights and keep my voice from being heard.”

According to this CNN report and video interview with Tyson and his lawyer, “Tyson … says he has no idea how he wound up on the government’s terrorist watch list. He just wants to save the rain forest. The only dings on his record, at least as far as he knows, consist of fishing for trout out of season and driving while impaired.”

As U. of Miami law professor Michael Froomkin notes,  “[T]his is the first documented example of a non-air-travel-related domestic consequence of being on a ‘terrorist watch list”… I think this small incident is actually a big deal.”

Aug 28 2012

What can you do if an airline pilot won’t let you fly?

The obvious follow-up question to, Does an airline pilot have the right to refuse to let you fly?, is “What can you do if an airline pilot won’t let you fly?”

Arijit Guha, one of the victims (his wife was also barred from the flight, merely for her association with her husband) in the incident that prompted our previous article, has said that he’s filing complaints with the airline (probably a waste of time, unless his case generates enough bad press and costs Delta enough customers that the airline decides it’s worth paying off the Guhas to get them to shut up), the local police (who detained and harassed the Guhas but don’t seem to have been directly responsible for preventing them from traveling), and the U.S. Department of Transportation (more likely than the police to at least conduct a pro forma investigation and provide a pro forma response to the complaint).

We suspect, however, that these complaints will be unavailing as long as Delta Air Lines, the cops, and the TSA checkpoint staff stick to their story that sole responsibility for denying the Guhas boarding on Delta Flight 1176 from Buffalo to Atlanta on August 18, 2012, rests with the pilot of that flight in the exercise of his or her “discretion”.

The only way to hold that pilot responsible for his or her actions, short of a civil lawsuit against the pilot (something the Guhas should consider), is a complaint to the Federal Aviation Administration against the pilot for violating Federal aviation regulations or rules for “airmen” [sic].

How would this work? We consulted several pilots, but none of them wanted to talk about how a passenger (or would-be passenger) could get a pilot in trouble with the FAA. Some pilots simply demurred. Others suggested that the real responsibility for denial of transportation rests with airline and/or government policies for which the pilot shouldn’t be blamed.

In practice, though, the “pilot’s discretion” for denial of transportation is likely to be a fallback rationalization on the part of the airline (unfairly putting the blame on a pilot who may not be at fault and almost certainly would prefer not to get involved) offered only when there is no other available legal excuse for the airline’s denial of transport.

If you are told that you are being kept off a flight on the pilot’s orders, that probably means that (1) there is no legal basis for the airline, the local police, or the TSA (all of whom are likely to have a go at you before the “pilot’s discretion” is invoked) to keep you off the flight, and (2) you can, and should, hold the pilot personally responsible for either rescinding his or her order against you or justifying that order to the authorities responsible for licensing and oversight of pilots’ actions. Read More →

Aug 24 2012

Does an airline pilot have the right to refuse to let you fly?

Last Saturday, Arijit Guha, a Ph.D. student at Arizona State University trying to fly back from Buffalo to Phoenix with his wife after a family funeral, was kept off a Delta Air Lines flight because …  well, as usual in such cases, we don’t know exactly why.

You can read Arijit’s story in his own words here. At first, a Delta supervisor objected to the parody t-shirt (with a design by Cory Doctorow originally published on BoingBoing) that Arijit was wearing.

After Arijit changed his t-shirt (and after he was interrogated, searched, and subjected to racist and xenophobic comments by multiple TSA staff and local police), “the Delta supervisor informed us the pilot had decided, regardless of the outcome of the multiple TSA screenings and my willingness to change shirts, that due to the discomfort my shirt has caused, my wife and I would not be allowed to board the aircraft. Passengers on the plane supposedly felt uncomfortable with my very presence on the flight. And the Delta manager went out of his way to point out that he wholeheartedly agreed with the pilot’s decision.”

If you ever find yourself in a similar situation, what are your rights?

As long as you’ve paid for a ticket and complied with all valid rules in the airline’s published tariff, you have a right to travel. That’s what it means for an airline to be licensed as a “common carrier”.

Your right to travel is guaranteed by, in ascending order of precedence, Federal law, the First Amendment to the U.S. Constitution, and international human rights treaties: Read More →

Aug 21 2012

San Antonio public schools plan to make students wear radio tracking beacons

Unless the school board changes its mind, public school students at Jay High School and Jones Middle School in San Antonio, Texas, will be required to wear ID badges containing RFID chips (radio tracking beacons broadcasting unique ID numbers) when they come back to school next week.

Each of these schools has installed an array of “100 or more” RFID readers so that students’ movements can be tracked whenever and wherever they are on school premises. [Update: Interviewed on the Katherine Albrecht radio show, the president of the company supplying the equipment says that the chips have a read range of 70 feet, and that there are readers at least every 100 feet in the schools as well as in school buses.] To make sure students actually carry their RFID badges, they’ll have to use them for all purchases of school lunches as well as for mandatory attendance checks.

This will be one of the first times that anyone in the U.S. who isn’t a prisoner or a government employee or contractor has been compelled by any government agency to carry an RFID chip.

Tonight the elected Board of Trustees of San Antonio’s Northside Independent School District is hearing from students, parents, and other community members opposed to the RFID tracking scheme.

At the same time, a coalition of privacy and civil liberties organizations and experts including the Identity Project has issued a Position Paper on the Use of RFID in Schools calling for a moratorium on the use of the RFID chips for tracking of people. The position paper thus reiterates a point made by many of the same signatories in a 2003 Position Statement on the Use of RFID on Consumer Products. “RFID must not be used to track individuals absent informed and written consent of the data subject,” according to the 2003 statement.

Compulsory tracking by a government agency (a public school district) of the movements of individuals who cannot opt out or withdraw consent, and who are required to be in the school building where RFID readers have been deployed, is a worst-case scenario of how RFID technology shouldn’t be used.

Read More →

Aug 20 2012

“Back To School” for the TSA

Just in time for the “back to school” crush of 300,000 students returning to classes at Boston-area colleges and Universities, and a week after the New York Times reported complaints by whistleblowers within the TSA and the Massachusetts State Police that the TSA “behavior detection” program at Logan Airport in Boston is functioning as a racial profiling program, the Times reports that the TSA says it’s going to send all its Logan staff to special classes about racial profiling.

The four-hour class for all TSA staff at Logan will cover “why racial profiling is not acceptable and why  it is not an effective way to spot terrorists.” Does that mean that racial profiling would be acceptable to the TSA if it were deemed “effective”?

“Officers [i.e. TSA checkpoint staff, who aren’t actually law enforcement officers despite the title] stationed at more than 100 airports will have to take an online refresher course to reinforce that racial/ethnic profiling will not be tolerated,” the Times also reports.

(Those commenters who suggest the best multiple-choice questions and answers for this online class will get extra credit on their “risk assessment” score.)

First we had online “driving school” to reeducate alcoholics. Now we have an online “groping and grabbing” school to re-educate racist bigots. Is this really going to solve the problems with the TSA?

Frankly, we think the best way to “reinforce that racial/ethnic profiling will not be tolerated” would be not to tolerate it, rather than to pay to send the perpetrators back to school at the TSA’s and the taxpayers’ time and expense. Fire them, fine them, and hold them personally liable for damages to those they detain and assault.

At least one victim of racial profiling by Mass. State Police, African-American civil rights lawyer King Downing, has already received damages from the officers involved after a Federal jury found that his rights were violated when he was detained at Logan in 2003, according to the Boston Globe. That’s good, but it’s obvious that neither Mass. State Police Troop F nor the TSA have learned their lesson yet.

There are two main reasons why we think that “retraining” isn’t sufficient and, in fact, misses the point:

Read More →

Aug 04 2012

Will the TSA ever follow any rules?

The TSA is a lawless agency, and its checkpoints are a domestic counterpart of Guantanamo:

A formal rulemaking wouldn’t prevent the TSA from adopting unconstitutional rules. But it would provide an opportunity for public review of proposed checkpoint rules or procedures, public submission of comments on them (such as, “These are unconstitutional and violate our human rights”), public knowledge of what rules have been adopted, and a (relatively) straightforward procedural pathway for judicial review of those rules. This last, presumably, is why the TSA has avoided the formal rulemaking process, instead either issuing secret administrative “directives” to airlines and checkpoint staff, or standardless ad hoc administrative orders for which no basis at all is disclosed.

Three years ago, we were among the signers of a petition to the TSA requesting that it conduct a formal rulemaking concerning its deployment of “virtual strip-search” machines as a primary “screening” mechanism, and its requirement that travelers submit either to these “whole-body” scanners or to even more intrusive whole-body groping by checkpoint staff.

Two years ago, after that petition was ignored, EPIC filed suit to compel the TSA to conduct such a formal rulemaking concerning the “naked scanners”. (That’s separate, of course, from the logical protest response of getting naked ourselves to show the checkpoint  staff that we pose no threat.)

A year ago, the Court of Appeals for the D.C. Circuit upheld EPIC’s complaint, ruling that the TSA must “act promptly” to conduct such a formal rulemaking:

[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, … we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

For more than a year since then, the TSA has done nothing to even begin the rulemaking process.

Our friend Jim Harper at the Cato Institute has started a petition asking President Obama to order his executive-branch underlings at the TSA to obey the court’s order and start the rulemaking. If it gets 25,000 signatures by August 8th (it currently has 18,000 and counting), White House policy is to provide a public “reply” to the petitioners.

We’re not too optimistic as to what that reply will be, judging from the response from the TSA on behalf of the White House to last year’s petition by more than 30,000 people calling for the TSA to be entirely abolished, not just subjected, at least in part, to the rule of law.

EPIC has supported the petition campaign, but has also continued to litigate: Last month EPIC asked the Court of Appeals to set a date certain by which the TSA’s “whole-body imaging” program would be “vacated” by the Court if the TSA hasn’t begun a formal rulemaking for it. On Wednesday of this week, the Court ordered the TSA to respond to EPIC’s latest motion by the end of August.

Slowly, slowly, with the government resisting at every step, we crawl toward subjecting the homeland-security state and its attacks on our rights to the rule of law.

Aug 03 2012

9th Circuit Court of Appeals keeps another “no-fly” case alive

For the second time this year, the 9th Circuit Court of Appeals has rejected jurisdictional and procedural challenges and claims of immunity, and remanded a case challenging “no-fly” orders for further proceedings on the merits of the plaintiff’s claims that their rights were violated by being prevented from flying.

The decision last week in Latif v. Holder is complex and technical. There’s still no certainty that the case will make it to trial, or that any court will ever review the legality of the government’s secret “no-fly” orders to airlines preventing them transporting the 15 plaintiffs (all US citizens or green card holders) to or from the US or through US airspace.

But as in the decision of another panel of the same court in Ibrahim v. DHS this February, the 9th Circuit was unwilling to dismiss the claims of travelers grounded by the government without any substantive hearing on the basis for their inclusion on the “no-fly” list. And this time the court went further to reject the government’s attempt to force grounded travelers to exhaust their “remedies” through the TSA’s “Traveler Redress Inquiry Program”, a charade in which an “inquiry” is “resolved” (after an indefinite amount of time) without the complainant ever finding out anything about why they have been prevented from flying, having any chance to rebut the evidence (if any) against them, or knowing what, if any, decision has been made.

According to the latest, unanimous decision by a panel of three 9th-Circuit judges:

At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List? … Today, we take another step toward providing an answer.

The Court of Appeals also noted the issue of banishment from the US by no-fly order, but relegated it to a footnote:

A few of the plaintiffs were allegedly stranded abroad at the time this lawsuit was originally filed, but all have now been granted “one-time waivers” to return home.

To date, despite these and other lawsuits, neither the general legality of secret, standardless, administrative no-fly orders, nor the validity or substantive basis for any individual no-fly order, has been reviewed on its merits by any US court.  We’ll see if that changes in the wake of these decisions.

Aug 02 2012

Police pay $200K to settle lawsuit for illegal roadblock

On December 20, 2002, Terry Bressi was arrested at a roadblock in Arizona being operated by a joint task force including tribal police and agents of the US Department of Homeland Security.

After all of the trumped-up charges brought against Mr. Bressi were dismissed , he sued the tribal police department, the DHS, and the individuals who were responsible for establishing and operating the illegal roadblock for violating his civil rights.

Almost ten years of litigation later, the tribal police defendants have now paid Mr. Bressi $210,000 to reimburse his legal expenses (including some of those related to the work of attorneys associated with the Identity Project and our parent organization, the First Amendment Project) and settle his claims against the police.

The police tried to justify the roadblock as having been solely a sobriety checkpoint, but the police on the scene admitted to Mr. Bressi that they had no reason to doubt his sobriety or suspect him of any other violation of law. He wasn’t an Indian subject to tribal law, and the roadblock was on a state highway and public right-of-way through the reservation.

In reality, as evidence revealed in the course of Mr. Bressi’s lawsuit made clear, the “sobriety check” by tribal police was merely the pretext being used to try to justify the suspicionless search and seizure of innocent travelers, for general Federal law enforcement purposes.

This settlement is far from sufficient to fully compensate Mr. Bressi for the damages he suffered and the years of work he invested in the pursuit of justice for himself and others similarly denied their right to move freely within the U.S., including on public rights-of-way.

The settlement is, however, an important reminder that even police and others acting with and at the behest of the DHS can be held personally liable for their role in violations of travelers’ rights.

We hope that other police officers and civilian DHS collaborators (such as airport checkpoint staff and contractors) will get the message, and start to question illegal orders from the DHS and other Federal agents.

We congratulate Mr. Bressi on obtaining this settlement, and commend him for his diligence in pursuing his case for the last decade.