Papers, Please!

The Identity Project

Mar 18 2011

State Dept. proposes “Biographical Questionnaire” for passport applicants

The U.S. Department of State is proposing a new Biographical Questionnaire for passport applicants. The proposed new Form DS-5513 asks for all addresses since birth; lifetime employment history including employers’ and supervisors names, addresses, and telephone numbers; personal details of all siblings; mother’s address one year prior to your birth; any “religious ceremony” around the time of birth; and a variety of other information.  According to the proposed form, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

The State Department estimated that the average respondent would be able to compile all this information in just 45 minutes, which is obviously absurd given the amount of research that is likely to be required to even attempt to complete the form.

The proposed “Biographical Questionnaire” follows the introduction in December 2010 of a new Form DS-11 for all passport applicants. It seems likely that only some, not all, applicants will be required to fill out the new questionnaire, but no criteria have been made public for determining who will be subjected to these additional new written interrogatories.

It’s not clear from the supporting statement, statement of legal authorities, or regulatory assessment submitted by the State Department to the Office of Management and Budget (OMB) why declining to discuss one’s siblings or to provide the phone number of your first supervisor when you were a teenager working at McDonalds would be a legitimate basis for denial of a passport to a U.S. citizen.

The State Department is accepting comments for OMB on this proposal on this proposal for 60 days, which began February 24, 2011, and thus should run through April 25, 2011. (Under the Paperwork Reduction Act,  OMB must approve and assign an OMB control number before any new form can be used.) Details and instructions for submitting comments are in the Federal Register notice (also available here as a PDF):

You may submit comments by any of the following methods:

E-mail: GarciaAA@state.gov
Mail (paper, disk, or CD-ROM submissions): Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037
Fax: 202-736-9202
Hand Delivery or Courier: Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037

You must include the DS form number [DS-5513], information collection title [Biographical Questionnaire for U.S. Passport], and OMB control number [none yet assigned; 1405-XXXX requested by Dept. of State] in any correspondence.

Alternatively, you can submit comments online at Regulations.gov until midnight EDT on Monday, April 25, 2011.  Go here, then click the “Submit a Comment” button at the upper right of the page.

(Note that the proposed form itself was not published in the Federal Register. We were eventually provided with a copy after requesting it from the Department of State, and have posted it here.)

We’ve submitted comments, and we encourage others to do so as well.

Our comments (PDF) were co-signed by the Center for Financial Privacy and Human Rights (CFPHR), Knowledge Ecology International (KEI), Center for Media and Democracy (CMD), Privacy Activism, Consumer Travel Alliance (CTA), Robert Ellis Smith, and John Gilmore. If you would like to use these for ideas for comments of your own, here’s a version in OpenOffice format for easier editing.

You can view the comments docketed to date here. (There’s sometimes a delay of up to several days before comments are docketed, so don’t panic if you don’t see yours immediately.)

Extra points to the person who gives the best answer in the comments to the question, “”Please describe the circumstances of your birth including the names (as well as address and phone number, if available) of persons present or in attendance at your birth.”

[P.S. – To those who have been wondering if this is a hoax: We understand that it may seem fishy that the State Department chose to publish a notice in the Federal Register that it was proposing a new form, but didn’t publish the proposed form itself in the Federal Register. But that was their choice of how to proceed, not ours. We were sent the proposed Form DS-5513 in March, in response to our request, by the person identified in the Federal Register notice as the point of contact from whom it could be obtained: Alexys Garcia, GarciaAA@state.gov, 212-736-9216. We immediately published the form we received from the State Department here on our website. There’s more at the links in the sidebar on who we are and how to contact us, as well as links to press reports on our previous work and current projects. You can also check out the other co-signers of the comments we submitted to the State Department. We’re for real, and so is this proposal from the State Department. We wish this were a hoax, but it’s not.]

[Follow-up: Public outrage at proposed questionnaire for passport applicants]

[Follow-up: State Dept. already using illegal passport questionnaire]

[Follow-up: State Dept. responds to passport form furor — with lies]

Feb 25 2011

Feds got NY Times reporter’s PNR data in search for his sources

Politico.com reported yesterday that Federal investigators obtained “certain travel records” of New York Times reporter and author James Risen, as part of their attempt to identify Risen’s confidential sources. According to Politico.com:

The scope and intrusiveness of the government’s efforts to uncover reporter James Risen’s sources surfaced Thursday in the criminal case of Jeffrey Sterling, a former CIA officer facing federal criminal charges for allegedly disclosing classified information [to] Risen… In a motion filed in federal court in Alexandria [VA], Sterling’s defense lawyers .. reveal that the prosecution … “has produced … Mr. Risen’s credit card and bank records and certain records of his airline travel.” [emphasis added]

What were these “certain records” of Mr. Risen’s air travel? How did the Feds obtain them? And how were they used? Read More →

Feb 16 2011

“British man marooned in Canada because of U.S. no-fly list”

Highlighting what will happen — and already is happening — when other countries follow the bad example of the USA in restricting freedom of movement, the Canadian Press news service reported last night on the situation of, “A British man … stranded in Canada after being denied permission to fly home because he’s on the U.S. no-fly list”:

Dawood Hepplewhite of Sheffield, England, turned up at Pearson Airport in Toronto on Sunday only to be told by an Air Transat official he couldn’t board the plane…

Hepplewhite, 30, divides his time between Sheffield and Toronto, where his Canadian wife Farhia and their three children reside. All five were planning to head back to England for an extended stay.

Hepplewhite says Air Canada and British Airways also refused to let him fly to England on Monday…

Hepplewhite says he’s no security threat, but suspects he is on the no-fly list because he’s a white Muslim and attended a job interview in Yemen — considered a hotbed of terrorism — for a position teaching English a few years ago.

“And when I came back to England I got pulled aside by the police.”

But Hepplewhite abandoned any idea of working in the Middle-Eastern country and has been to Canada several times since that incident.

It’s not clear what will happen next, but, “Hepplewhite’s visa allowing him to stay in Canada expires on April 29.”  If he overstays his visa, Canadian law would provide for him eventually to be deported from Canada to the country of his citizenship, the U.K.  By air. At the expense of the airline that brought him to Canada — the same airline that is now refusing to allow him to use his paid ticket  for just such a flight home before his visa expires.

Who gave the no-fly order? And how did they know Mr. Hepplewhite planned to be on that plane? According to the Canadian Press story:

A bill currently before Parliament would allow airlines to share passenger information required by the U.S. Secure Flight program….

But both Canada and the U.S. say there is no statutory requirement — at least not yet — to provide passenger information for such flights, and Air Canada says it is not doing so….

When asked recently about use of the U.S. list, Air Canada spokesman Peter Fitzpatrick said “we comply with all applicable laws and regulations wherever we operate, and that includes those in the U.S.”

Whatever is happening, it certainly isn’t complying with Canadian law (which requires airlines to operate as common carriers, and protects against arbitrary denial of fundamental rights) or international treaty law by which Canada is bound (which guarantees the right to return to the country of one’s citizenship). And there’s no claim that the U.S. would have had any jurisdiction over Mr. Hepplewhite’s YYZ-LHR flight, since unlike unlike some flights to and from Canada, such as Montreal-Paris flights that sometimes pass over part of Maine, it wouldn’t have passed through U.S. airspace.

So there’s really no question that there was no basis for any valid U.S. no-fly order.

But it’s unclear whether:

  1. The Canadian government (illegally and extrajudicially, in violation of its treaty obligations under Article 12 of the ICCPR) ordered all airlines serving Canada not to transport people with names matching those on the U.S. no-fly list in general, or Mr. Hepplewhite in particular, perhaps without even seeing the evidence, if any, forming the basis for this U.S. request for a Canadian government order; or
  2. The airlines (illegally, in violation of Canada’s basic privacy law, PIPEDA) allowed passenger passenger information to be accessed by the U.S. government, or by CRSs or other intermediaries who did so, and (illegally, in violation of their licenses to operate as common carriers) denied transportation to those the U.S. requested not be transported or (more likely, given the change in the U.S. default to, “No”) those with respect to whom the U.S. didn’t send back an affirmative “Cleared” message.

Which of these happened, and how, is an appropriate question for inquiry both by the Canadian Parliament and by the Privacy Commissioners of Canada and of Ontario.

It might be true, in the narrowest sense, that Air Canada does not directly “provide passenger information” to the U.S. government for flights that don’t touch U.S. airspace. But as the treatment of Mr. Hepplewhite shows, the U.S. government has access to such data, either or both because (a) airlines serving Canada have given the U.S. government “root” access to their reservation systems, not restricted to flights to, from, or overflying the U.S., and/or (b) the U.S. government has similar root access to the Computerized Reservation Systems/Global Distribution Systems (CRSs/GDSs) based in the U.S., to  which most travel agencies and tour operators in Canada outsource (illegally, in flagrant violation of PIPEDA, without notice to or consent of travelers and in the absence of any U.S. privacy law governing CRSs) the storage of their reservations and agency customer/traveler profiles.

We’ve talked about both these problems before, in testimony to both the Canadian and European Parliaments, and they picked up on in a recent letter to the European Commission (see the top of p. 2) from the “Article 29 Working Party” of EU national data protection authorities.  It remains to be seen how they will be dealt with in Canada, and how this will affect other countries’ willingness to join the U.S. war on freedom of travel through PNR and identity-based surveillance and control.

[Update from the Toronto Star: “James Mortimer, a spokesman for the British Foreign and Commonwealth Office in London, England, told the Star he is looking into the matter.”]

[Update from the Canadian Press: “British man on U.S. no-fly list gets ‘one-time offer’ to fly to Glasgow…. An Englishman left stranded in Canada because he’s on the U.S. no-fly list is headed home — sort of. Dawood Hepplewhite says a British consular official called with a ‘one-time offer’ from Air Transat to fly with his wife and children to Glasgow, Scotland, on Wednesday night as a ‘goodwill gesture.'”]

Jan 24 2011

Audio: State of New Mexico v. Phillip Mocek

We’ve uploaded our complete audio recording and some of our photos of Phil Mocek’s trial to the Internet Archive (Archive.org). Trials at this level in New Mexico are neither recorded nor transcribed by the court, so this is the most nearly complete record of the trial available.

The MP3 recordings can be streamed from here or downloaded directly from the links below:

Thursday, January 20, 2011 (Day 1):

Friday, January 21, 2011 (Day 2):

Dramatis Personae:

  • Phillip Mocek, Defendant

    Phillip Mocek

  • Judge Kevin L. Fitzwater, Bernalillo County Metropolitan Court

  • Bernalillo County Chief Deputy District Attorney Mark Drebing (closing argument)

  • Bernalillo County Deputy District Attorney Daniel Rislove (opening argument)

  • Molly Schmidt-Nowara, Defense Counsel (closing argument)

  • Nancy Hollander, Defense Counsel (opening argument)

  • TSA Lead Transportation Security “Officer” Jonathon Breedon

  • Albuquerque Aviation Police Department Officer Robert F. Dilley

  • The ladies of the jury (not publicly named and not heard on the recording)

White noise heard on the recording was played in the courtroom during “sidebar” discussions when the jury was present, to keep these discussions from being heard by the jury.

Except during opening and closing arguments, when the recordings were made from the podium, these recordings were made from a single spot in the audience, behind the bar. We were permitted to record, with the court’s permission, but we were not permitted to fix microphones or wires or tap into the public address system.  We apologize for any inadvertent gaps.

More:

(Click images for high-resolution versions. Please credit photos to PapersPlease.org.)

 

Jan 22 2011

Phil Mocek found “NOT GUILTY” by Albuquerque jury

A six-woman Bernalillo [NM] County Metropolitan Court jury has found Phil Mocek “NOT GUILTY” (video) of all of the charges brought against him following his arrest in November 2009 at the TSA checkpoint at the Albuquerque airport.

We’ll be posting audio recordings and photos of the trial.  The jury returned its verdict Friday evening after about an hour of deliberation, following a two-day trial we attended. (Video of the verdict and excerpts from Mr. Mocek’s reaction; longer audio of Mr. Mocek’s responses to questions in the hallway outside the courtroom immediately after the verdict; complete audio and pohotos of the trial.)

Mr. Mocek did not testify, and the defense rested on Friday without calling any witnesses or presenting any evidence. The jury found that even without rebuttal, the TSA and Albuquerque police had failed to satisfy their burden of proving any of the four charges: concealing his identity, refusing to obey a lawful order (it was never entirely clear whether this was supposed to have been an order to turn off his camera, an order to leave the airport despite having a valid ticket, or an order to show ID, none of which would have been lawful orders), trespassing, and disorderly conduct.

The best evidence in the case was the video from Mr. Mocek’s digital camera that both the TSA and the police had tried to stop Mr. Mocek from filming, and which ended when they seized his camera out of his hands and shut it off.

In her closing argument, defense counsel Molly Schmidt-Nowara argued that the police and TSA witnesses were not credible, that their testimony was contradicted by the video and by common sense, that what they really objected to was having Mr. Mocek legally take pictures, and that any disorderly conduct was on the part of the police and TSA.

The verdict of “NOT GUILY” on all counts shows that the jurors saw through the police and TSA lies.

Mr. Mocek, of course, is still out thousands or tens of thousands of dollars in legal fees and expenses for repeated trips to Albuquerque to defeat this frame-up attempt.

But we hope that Mr. Mocek’s acquittal will encourage and empower others to question the unlawful demands of the TSA — including their demands that we waive our right to remain silent, provide them with evidence as to our identity, and submit to virtual strip-search machines or groping — and to photograph and record our interactions with the TSA’s cop-wannabes and rent-a-cops and the local law enforcement officers who provide their muscle.

(See also our FAQ: What you need to know about your rights at the airport.)

We also hope that this verdict will teach police not to blindly back up the TSA when the TSA calls upon law enforcement officers to “deal with” travelers to whose actions the TSA has, for whatever reason, taken a dislike. This verdict shows that jurors can see through their lies when they make up stories and false accusations against travelers.

Uncontested TSA and police testimony at the trial established, among other things, three important points:

  1. Despite calling themselves “officers”, TSA checkpoint staff are not law enforcement officers and have no police powers — and both TSA and police are fully aware of this. When the TSA calls for the police, they are just like any other civilians who call the police, and the police have no obligation to do what they ask.  Police should not act, and have no right to act, in such a case, unless the police have a reasonable basis for believing that a crime has actually been committed or is being committed.
  2. You have the right, recognized by the TSA, to fly without showing ID. “It happens all the time. We have a procedure for that,” according to the lead TSA “Travel Document Checker” at the Albuquerque airport. Signs and announcements in airports saying that all passengers must present ID are false.
  3. You have the right, recognized by the TSA, to photograph or film anywhere in publicly accessible areas of airports including TSA checkpoints, as long as you don’t violate any local laws, photograph the images on the screening monitors, interfere with the screening process, or slow down the line. (Whether those limitations to your First Amendment rights claimed by the TSA are legal or Constitutional was not decided in this case, since Mr. Mocek wasn’t violating any local law, filming the images on the screening monitors, interfering with the screening process, or slowing down the line.) Signs or statements that photography is prohibited at Federal checkpoints are, in general, false.

Annoying the TSA is not a crime. Photography is not a crime. You have the right to fly without ID, and to photograph, film, and record what happens.  Your best defense is your own camera and microphone.  Ordinary jurors know, and are prepared to recognize with their verdict, that the TSA and police lie about what they are doing and why.

We salute Phil Mocek for standing up for all of us and our rights, and encourage supporters to contribute to help pay off his legal bills.

Jan 21 2011

Why are we here in Albuquerque at Phil Mocek’s trial?

Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right) [Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right); Albuquerque police (center, turning towards camera)]

Why are we here? We’re here in Albuquerque to observe the the trial of Phil Mocek, which began yesterday and continues today. We’re here with other folks who’ve flown, driven, and ridden trains and buses from across the country to show our support for those who question the illegitimate claims to authority of the TSA and try to document what happens when you try to travel without showing ID.

Once we are able to process them, we’ll be posting audio recordings and photos as well as more details from the trial.

Before we get to what’s happened in court, however, we need to answer a preliminary question: Why is this case in Bernalillo County Metropolitan Court (above, left) and not across the street in Federal court (above, right)?

That question seems especially natural to those who read the hit-piece on the front page of the Albuquerque Journal the day before the trial began.  Apparently intended to prejudice potential jurors against Mr. Mocek, and posted approvingly by the District Attorney on Twitter and her Facebook wall, that story focused on (false) claims that passengers are “required” to show government-issued ID to fly.

But the reason this case isn’t in Federal court is that TSA procedures (and, more importantly, neither any Federal law or regulation, the U.S. Constitution, or international  human rights treaties) don’t require travelers to show ID and don’t prohibit photography or recroding at TSA checkpoints.

If there were any such Federal rule against what Mr. Mocek was doing, the TSA would have called the FBI, not the local police, and Mr. Mocek would have been charged with Federal offenses.

That didn’t happen.  Mr. Mocek has never been accused of any violation of any TSA or other Federal regulations or laws.  He was arrested and is on trial on (false) state and local charges precisely because the TA and Albuquerque police objected to his exercising his rights under Federal law.

On the contrary, the first day of this trial confirmed that, as we’ve said all along:

  • You have the right to travel without showing ID. TSA “officers” know this, are trained to deal with it, and do so every day, despite signs to the contrary at every airport and on the TSA’s website.
  • You have the right under Federal law and TSA rules to record and photograph throughout TSA checkpo0ints, as long as (they say) you aren’t “interfering” with screening or photographing the displays on the X-ray machines and other monitors.

In their opening statements, both Assistant District Attorney Daniel Rislove and defense attorney Nancy Hollander agreed that ID is not required to fly. That was confirmed by the sole witness to testify (for the prosecution) before the trial recessed yesterday.

Lead Transportation Security “Officer” Jonathan Breedon (he admitted that TSA checkpoint personnel are not law enforcement officers), who was in charge of the “travel document checking station”, testified that the TSA doesn’t require anyone to have or show ID to travel. You can travel without ID, and, “It happens all the time. We have a procedure for that,” he testified, although he claimed that the procedure for flying without ID is secret “Sensitive Security Information,” as is the form that is given to each person who flies without ID for them to sign, and which we posted online years ago.

Cross-examined about the version of the form from 2008 on our website, he said the current form has different typography and a few additional check-boxes at the bottom, but contains essentially the same information. If anyone has a copy of the current version of the form, please let us know ASAP.

What the TSA doesn’t have procedure for, apparently, is what to do when a traveler exercises their right to photograph or record what is being done to them.  Under cross-examination, Lead TSO Breedon admitted that the statement to Mr. Mocek on the video played in court, “It’s a Federal checkpoint. You can’t take pictures here,” was false. But despite knowing that was false, the TSA staff called in the local police and then stood aside while they arrested Mr. Mocek on false charges.

The trial will resume at 9:30 Friday morning with testimony from the Albuquerque police, followed by the case for the defense. The case could go to the jury Friday afternoon.

To be continued…

Jan 21 2011

DHS, FBI still try to evade judicial review of no-fly orders

A few minutes ago, a United Airlines flight carrying US citizen Gulet Mohamed reportedly landed at Dulles Airport outside Washington, DC. (video 1, video 2)

That shouldn’t be noteworthy, but it is.

Faced with an imminent judicial slapdown, the DHS and FBI have ended their extra-judicial banishment (“proxy rendition”) of a US citizen who has been detained and tortured in Kuwait but was refused boarding by this same airline earlier this week, despite holding a valid full-fare ticket purchased by his family, when Kuwaiti authorities tried to deport him to the US.

Although Gulet Mohamed has been charged with no crime in either the USA or Kuwait, and although he has been given direct notice of no injunction or other order restraining his right to return to the US, US government spokespeople have confirmed that the US ordered airlines subject to US jurisdiction not to transport him. Presumably, the no-fly order to United Airlines took the form of a “not cleared” message (or a non-response, the default “fly/no-fly” state being “no” in the absence of explicit individualized “clearance”) after Mohamed’s PNR and API date were sent by the airline the DHS as part of the APIS and/or Secure Flight schemes for surveillance and control of air travel.

Kuwaiti law reportedly requires deportation by direct flight directly to the deportee’s destination, at least where such a flight exists. Even if Kuwait allowed deportation by ship, API data and “clearance” permission is required from cruise and ocean shipping lines carrying  passengers to the US, as well as airlines.) So Gulet Mohamed remained in detention in Kuwait, under imminent threat of renewed torture (and under continued interrogation by the FBI, without his lawyer present.

On Monday, Mr. Mohamed was denied passage back to the US by United Airlines. On Tuesday, his lawyers from the Council on American-Islamic Relations filed suit, (copy of complaint) seeking an emergency order prohibiting the DHS or FBI from interfering with Mr. Mohamed’s right of return to the US.  Within hours of the filing of the case on Tuesday, a hearing on their motion was held before a Federal judge, who said the government’s actions appeared, on their face, to be a violation of Mr. Mohamed’s fundamental rights.

The judge ordered the parties to return to his court on Thursday, the plaintiff (Mr. Mohamed) to provide declarations substantiating the allegations in the complaint and the defendants (DHS and FBI) to show cause why an injunction should not be issued.

But rather than make any attempt to justify their actions in extra-judicially exiling Mr. Mohamed form his country, the government’s lawyers responded both aat Tueaday’s hearing and at the follow-up hearting on Thursday by telling the judge that they compliant would soon be moot because they were making “arrangements” to change their orders to the airline and allow Mr. Mohamed to return home.

On Thursday night (early Friday morning Kuwait time), Kuwaiti authorities once again tried, and this time were allowed, to put Mr. Mohamed on a flight home to the U.S. as a deportee from Kuwait. That flight landed at Dulles early Friday morning, Washington time.

Mr.Mohamed, it should go without saying, has never been charged with any crime, either in the U.S. or Kuwait, although we don’t yet know how he’ll be treated by the US on arrival. A US citizen has the right to remain silent at the border or airport when re-entering the country. But given their prior actions and repeated attempts to question Mr. Mohamed without his lawyer, we wouldn’t count on the DHS or the FBI to respect his rights now. [Update: FBI Interrogating Gulet Mohamed Without Counsel at DC Airport]

We’re pleased that Mr. Mohamed is back home in his country.  But we are disturbed that the U.S. government, through a case-by-case exercise of standardless administrative “discretion” exercised only after a lawsuit was filed, has once again fulfilled its repeatedly and explicitly stated goal of avoiding having no-fly decisions and orders subjected to judicial review.

In short, Mr. Mohamed was allowed to come home in order to insure him justice, but in order to insure that the DHS and FBI remain free to inflict similar injustice on others in the future.  As Mr. Mohamed’s lawyer, Gadeir Abbas of CAIR, put it earlier in the week, “The reason I fully expect the government to have Gulet on a plane back by Thursday is that they want to continue this objectionable, immoral, and patently unconstitutional practice.

Mr. Mohamed’s lawsuit is not moot, and will continue. His treatment appears quintessentially “capable of repetition, yet evading review.”

We’re left with this:

In the face of a judicial demand to proffer a justification for its no-fly orders, the government made no attempt to do so.  Instead, they indicated by words and deed that they were more afraid of allowing a Federal judge to review the legality of their actions than they were of allowing Mr. Mohamed — who they had claimed it would be too dangerous to allow on any plane, even seated between armed air marshals — to come home to his country.

When an agency of the U.S. government is more afraid of judicial review than of terrorism, one can only wonder what else — worse even than the torture to which Mr. Mohamed was subjected by U.S. proxies in Kuwait — it has to hide.

Jan 10 2011

Interviews with Antiwar.com and KPFK radio

We were interviewed Friday on Scott Horton’s “Antiwar Radio” podcast on Antiwar.com and on KPFK Pacifica Radio in Los Angeles (play stream) (download).

The two half-hour interviews cover much of the same ground. We recommend the one on Antiwar.com.

Here are some links for more information about things we mentioned on the show:

Jan 08 2011

Tidbits from the TSA show “screening” being used as illegal general criminal dragnet, not for aviation security

The TSA has reviewed 929 pages of policies we requested, and released one page of them and parts of 12 other pages. All the rest are still being kept secret.  But even those tidbits show that the TSA is exceeding its legal authority.

The TSA continues to drag its feet in responding to our outstanding Freedom Of Information Act (FOIA) requests for the policies and procedures that they expect travelers to comply with.  When the TSA answers our requests at all, the answer is mostly, “No.”

Case in point: The letter we just received from the TSA, dated December 15, 2010, in response to the FOIA request we sent on December 9, 2009.  The TSA took more than a year to answer, even though it is required to release records requested under FOIA within at most 30 business days.

We asked for various TSA policy documents whose existence was revealed when the TSA posted a copy of its “Screening Management Standard Operating Procedures” (SOP) on a public government website. (We are currently appealing their refusal to release the current SOPs.)

One of the few excerpts the TSA chose to release was the “TDC Referral Form” (see page 16) used by “travel document checkers” for reporting travelers they have “referred” for further action such as a ordering them to submit to a more intrusive search or interrogation, summoning local law enforcement officers, etc.  Although courts have upheld administrative searches at airports only when they are limited to the detection of weapons, explosives, or other threats to aviation, neither “suspected terrorism” nor any other “threat to aviation security” appears in the TSA’s menu of reasons for arrest:

  1. Suspect documents
  2. Outstanding warrant
  3. Suspect drugs
  4. Undeclared currency
  5. Illegal Alien
  6. Other

On its face, this document makes clear that TSA “screening” is being used primarily for purposes that are outside the TSA’s legal authority, as a general screening dragnet for illegal drugs and other crimes and not for the limited purpose of aviation safety or security.

And this is true specifically of the travel document checks, not just of TSA screening in general.

The form also says that, “No personally identifiable information is permitted in this database,” even though the form includes drivers license, passport, government ID, military ID, and visa numbers. Presumably, this is an attempt to evade having the Privacy Act applied to these referral reports.

Bizarrely, the TSA withheld the policies that relate directly to the obligations of travelers as pertaining primarily to internal TSA procedures, while posting those policies that actually are primarily internal, and directed at TSA staff and contractors rather than the public, on a new page on the TSA website.

Perhaps the most interesting of these, in light of the TSA’s past actions, is the policy on issuance and use of administrative subpoenas such as those the TSA served on bloggers and journalists to try to find the sources of their stories about other leaked TSA policies. The version now posted was reviewed in October, 2010, after the TSA had withdrawn those subpoenas to bloggers and journalists. but it’s unclear whether any changes were made to the policy. The TSA policy still contains no mention of the Federal law which restricts searches of journalists’ work products and other material, or any specific policies for subpoenas against journalists.  That’s especially odd in light of the fact that the relevant law, 42 U.S.C. 2000aa, also applies to searches at TSA checkpoints (and, except to the extent such searches are conducted solely to enforce customs laws and not immigration or other laws, to CBP searches at border crossings and international air and seaports).

Jan 07 2011

US wants access to PNRs of all travelers to and from Pakistan

The US government has sought access to all Passenger Name Record (PNR) of air travelers between Pakistan and the rest of the world, according to a report in the local Express Tribune newspaper based on interviews with anonymous officials in Pakistan’s Foreign Office:

The proposed plan also includes the deployment of US homeland security officials at Pakistan’s airports for enhanced scrutiny of passengers travelling to America.

“Initially, they had asked for the record of all passengers travelling outside Pakistan,” the official was quoted as saying. “We resisted that idea and now they are asking for the record of passengers who travel to the US from Pakistan.”

…[A]nother official, who is privy to the discussions between the two countries on the issue…. said the US believes that the step would ensure Pakistani passengers have a “trouble-free” journey.

“But we believe this idea is highly intrusive,” the official said.

Pakistani citizens have been systematically harassed by the DHS since its creations, at borders and airports and through the “special registration” program for citizens of selected countries, which affected more Pakistanis than citizens of any other country.  So the idea that any Pakistani is likely to have a “trouble-free” trip to the US any time soon is a sick joke.

What’s more significant about this US request is that it shows the lack of any limits on US claims to extra-territorial (and extra-judicial) authority to monitor, record, and control all worldwide air travel, regardless of whether it involves US citizens, US-flag aircraft, US airports, or US airspace — and the centrality of PNR access rules to the US quest for global hegemony over travel permissions.