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The Identity Project

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.

Jul 26 2012

How to stop Arizona’s SB1070 and similar state ID-check laws

There’s been much concern — and, we suspect, much confusion — about what to do about the portions of Arizona’s SB1070 immigration and ID-check law that weren’t struck down by the US Supreme Court in its decision last month in Arizona v. United States.

The portion of the law that remains in place (at least for now) after the Supreme Court decision is exactly the section that we focused on in our analysis of the law when it was first enacted:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

So far as we can tell, the Supreme Court majority (567 U. S. ____, slip opinion at pp. 19-24) reads this section of the law the same way we read it, in three crucial respects:

First, the Supreme Court opinion describes the Arizona law as imposing requirements on state officers to “attempt… to determine” certain facts, in certain circumstances. Nothing in the Supreme Court opinion suggests that SB10170 imposes any obligation on individuals to assist those officers in their “attempt .. to determine” that information, or to carry or provide evidence of, or to answer questions about, their identity or immigration status.

Second, the Supreme Court was unable to find in the text of the law any clear mandate for state officials to detain anyone who would not already be properly subject to detention, or to prolong anyone’s detention, merely in order to facilitate that “attempt … to determine” their immigration status.

Third, the Supreme Court explicltly left open the possibility that any prolongation of detention or delay of release from custody in order to facilitate an immigration check, or as a sanction for inability or unwillingness to supply evidence of identity or immigration status — even if the original detention or custody was lawful — might be unconstitutional. The Supreme Court did not find that this provision is Constitutional, only that it might be Constitutional — depending on how it is interpreted and applied by Arizona state officers and judges — and that it would be premature to find it unconstitutional just yet:

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status…. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law….

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law…. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. [slip opinion at pp. 22-24, emphasis added]

This close reading of the law and the Supreme Court opinion makes clear that the next step for opponents of the law is to test how, in practice, the state of Arizona will answer the questions asked by the Supreme Court: Will people in Arizona be detained, will their detentions be prolonged, or will their releases from custody be delayed (without, in each case, some other lawful basis) merely to check their immigration status?

If any of things happen to people in Arizona, the Supreme Court has explicitly left it open for them to bring new Constitutional challenges to those infringements of human rights. And if not, then people in Arizona retain the rights they have always had.

Read More →

Jul 18 2012

John Brennan, “Naked American Hero”, found not guily

John Brennan, who took off all his clothes while being detained by the TSA at the Portland [OR] International Airport (PDX) in protest of his continued detention and the TSA’s excessively intrusive “screening”, was found not guilty today of indecent exposure at the conclusion of a bench trial (during which Mr. Brennan testified, clothed, in his own defense) in Multnomah County Court. According to an Associated Press report on the trial:

A Multnomah County prosecutor said if Brennan’s actions are considered protected by the First Amendment, then anyone who is arrested while nude can also claim that their actions are a protest.

That leaves Mr. Brennan out of pocket for the legal expenses of defending his innocence. The “not guilty” verdict in the criminal case brought against Mr. Brennan leaves open the possibility, as already threatened by the TSA, of a civil action to fine Mr. Brennan for “interfering” with TSA screeners in the performance of their duties. On the other hand, the “not guilty” verdict also leaves open the possibility of a civil suit by Mr. Brennan against the checkpoint staff and police who violated his rights.