Papers, Please! – Page 67 – The Identity Project

Jan 06 2011

DHS says they should get our PNR data, but we shouldn’t

Secretary of Homeland Security Napolitano is in Brussels today, lobbying the European Union to allow the DHS to access airline reservation Passenger Name Record (PNR) data on the same day that DHS lawyers will be facing us in court in San Francisco to argue that nobody — not even US citizens — should have the right to access their own PNR data held by DHS.

Napolitano is reportedly stopping in Brussels on her way back from Israel, where she “visited Ben Gurion International Airport to meet with airport officials to discuss ways both nations are enhancing global aviation security while streamlining legitimate travel and trade,” i.e. expanding the use of Israeli-style ethnic profiling and discrimination at US airports. According to one report on Napolitano’s trip, that’s one of the outcomes of the ongoing DHS policy laundering through ICAO:

Following the attempted terrorist attack on a Detroit bound airliner on Dec. 25, 2009, the Department of Homeland Security worked with the International Civil Aviation Organization (ICAO) and international partners including the Israeli government, as well as the private sector on a global initiative to strengthen the international aviation system against the evolving threats posed by terrorists.

Following five regional aviation summits across five continents, 190 countries adopted a historic Declaration on Aviation Security at the ICAO Triennial Assembly in October, forging a historic new foundation for aviation security.

In response to our lawsuit, US Customs and Border protection (the division of DHS that keeps PNR dossiers and other international travel records) has claimed that our initial request wasn’t signed or dated, that it didn’t include a declaration attesting to the requester’s identity and authorizing release of his records to our attorney, that they didn’t receive our administrative appeal, and that they didn’t learn of the existence of our 2007 appeal until February 2009, even though they signed a postal receipt for it in 2007 and we queried them repeatedly as to its status and called it to their attention in a formal filing with them (see page 5) in August 2008.

DHS is also claiming in response to our lawsuit that there are no logs showing what queries were made to search for or retrieve our PNR and other data, despite the repeated claims in their Privacy Impact Assessments that all such access is logged. See, for example, page 13 of the PIA for ATS (the system of records that includes PNRs) “ATS retains audit logs for all user access,” and page 16 of the PIA for TECS (one of the other systems of travel records), “Extensive audit logs are maintained showing who has accessed records and what changes, if any, were made to the records.”

We don’t yet know why DHS has lied about the facts and contradicted their prior claims. But they have more reasons to do so than simple incompetence or disorganization. And this is part of a pattern that isn’t limited to the particular Privacy Act and FOIA requests at issue in this case. We’ve had consistent difficulty in getting our requests and complaints acknowledged and docketed.

Why?

Dec 21 2010

CBP’s answer to our lawsuit: Deny everything, and claim that nobody has any rights

[Where has your PNR data gone? (click image for larger version or here for details)]

The U.S. government has filed its initial answer to our lawsuit against U.S. Customs and Border Protection (CBP) for illegally withholding records of its travel surveillance system, and an initial procedural hearing in the case has been scheduled for Thursday, January 6, 2011, at 10 a.m. in San Francisco.

But if the government’s claims are true, the implications of some of them are shocking. In particular, they claim that, “Plaintiff was provided all documents that he is entitled to by law,” even though — like everyone else who has requested their records from the “Automated Targeting System” (ATS) — we have never received anything that was even claimed to be in response to my request for the “accounting of disclosures” required by the Privacy Act. Nor did we receive anything which was even claimed to be the “risk assessments” made of me, or the rules for determining those risk assessments, both of which were mentioned in CBP’s years-belated official notice of the contents of the ATS.

In other words, the government is claiming in answer to our lawsuit that nobody — not even U.S. citizens — has any legal entitlement to know what other government agencies or third parties have received their travel records including PNR’s from CBP, what “risk” scores (used to decide whether to allow us to fly, or how to treat us) have been assigned to us, or how those scores have been generated.

So much for any pretense of transparency, accountability, or access rights. Nobody has any right to know who has gotten our PNRs, or how they are being used against us.

Dec 08 2010

Phil Mocek trial postponed again; no hearing Thursday

Yesterday, as we’ve reported, Phil Mocek and his attorney were ready for trial, but the prosecution asked for a delay to allow them more time to review the video evidence of the events at the TSA checkpoint — despite defense counsel’s statement to the judge that the prosecution had already been aware of this evidence. and that it only depicts facts that should have been known to the prosecution.

The trial was originally expected to take two to three days. Judge Kevin Fitzwater continued the start of the trial until Thursday, but also said that he is doing military reserve duty next week and the following week. So a trial that started this Thursday would have had to go to the jury by the end of the day Friday, or be interrupted for two weeks in mid-trial, with unpredictable effects on jurors’ memories of testimony. It’s also possible that whatever issues the prosecution has with the defense video evidence will lengthen the time the prosecution will take to present their case or question defense witnesses.

Not surprisingly in light of all this, we’ve been told by Mr. Mocek that the trial is being postponed to a date to be determined later (probably in January or February), and there will be no further court hearing or appearance by Mr. Mocek on Thursday or any other day this week.

Dec 07 2010

TSA releases list of SOPs — but says they’re all secret

Eleven months after the deadline for their response set by the Freedom Of Information Act (FOIA), the TSA has finally responded to our request for the TSA “Standard Operating Procedures” referred to in December 2009 testimony to Congress by TSA Acting Administrator Gale Rossides.

The TSA did give us the list of SOPs (the first time this has been disclosed), but withheld the SOPs themselves in their entirely. [We have appealed that withholding.]

There are no laws or published regulations defining what the TSA is permitted to do, and what travelers are required to submit to, in the name of TSA “screening”. As a result, the TSA’s “Standard Operating Procedures” — even though they aren’t binding on either the TSA or travelers — are the most detailed written documentation of what is “supposed” to happen at TSA checkpoints.

We are entitled to know what powers the TSA claims over us, and what rules they claim we have to follow.

If public-spirited leakers have access to any of these documents, we encourage you to make them public, directly or through us, through Wikileaks, or through other investigative reporters:

Screening Checkpoint SOP
Screening Management SOP
Checked Baggage SOP
Advanced Imaging Technology (WBI) [listed twice — does this mean that there are 2 such SOPs?]
Playbook SOP
Colorimetric SOP
Stand Off Detection
Visible Intermodal Protection and Response
Bomb Appraisal Officer
SPOT

Dec 07 2010

Phil Mocek’s trial continued to Thursday, December 9th

[TSA: Goon squad or Keystone rent-a-cops?]

When the case of State of New Mexico v. Phillip Mocek (misspelled in the court docket as “Moesack”) was called this morning in Bernalillo County Metropolitan Court in Albuquerque, the defense was ready for trial.

But Assistant District Attorney Dan Rislove claimed that he had only just yesterday learned of the existence of additional video evidence, and needed more time to review this video.

Defense attorney Molly Schmidt-Nowara told the court that the prosecution had already been aware of the existence of this video, but agreed to a 2-day delay of the trial until 9 a.m. Thursday morning, December 9th, to allow the prosecutor more time to review the video.

Most of the Albuquerque police and TSA “officers” (not) already identified in the videos and other records released in response to Mr. Mocek’s requests for public records were present in court.

But when (by prior arrangement and with the court’s explicit prior permission) we began photographing those in attendance, the TSA and police became visibly agitated, to the point of apparent near-panic. They got the prosecutor to point out our camera to Judge Kevin Fitzwater. Judge Fitzwater, however, said that he was already aware of our camera and audio recorder and had given us permission to use them as long we didn’t record or photograph members of the jury pool, none of whom were yet in the room.

Meanwhile, the men from the TSA held up manila folders for the remainder of the hearing to hide their faces — already familiar from their own videos and surveillance camera photos — from any photos after our first one reproduced above. It seems that the intense fear of public scrutiny they showed in going after Mr. Mocek for allegedly trying to take photos at the checkpoint at ABQ continues today, and extends even into a courtroom where the defendant has a Constitutional right to a public trial.

What is the TSA trying to hide?

Stay tuned. We’ll be there when Phil Mocek returns to court in Albuquerque on Thursday morning.

[Update: We’ll be talking about the case with Adam Kokesh on KIVA 1550 AM in ABQ and online from 9-11 p.m. MT tonight. Video archive of the show.]

Dec 06 2010

“TSA case goes to trial tomorrow in Albuquerque”

Albuquerque’s Weekly Alibi reports today in their blog on the trial of “Freedom Flyer” Phil Mocek scheduled to begin Tuesday morning:

Phil Mocek’s trial in Bernalillo County Metro Court tomorrow might be the first of its kind in the country. He was arrested after refusing to present identification to the Transportation Security Administration….

Edward Hasbrouck is a consultant to the Identity Project in California…. “We were obviously disturbed to find that Mr. Mocek had been arrested and had been essentially framed on these charges,” Hasbrouck says in an interview with the Alibi.

He adds that the four charges leveled against Mocek are not the real reasons he was arrested. “The real reason he was arrested is that the TSA didn’t like what he was doing,” Hasbrouck says. “The real charge is questioning the illegitimate authority of the TSA. Now, why the local authorities are choosing to put themselves out on a limb, trumping up bogus charges just to keep the TSA [happy] is a question that you’d have to ask the prosecutor in Albuquerque.”

Neither Dan Rislove, the attorney representing the state, nor TSA spokesperson Luis Casanova have yet returned the Alibi’s calls.

Ironically, despite the nationally precedent-setting TSA resistance case about to go to trial, an airport spokesperson told Albuquerque’s KRQE-13 TV news last month that, with respect to TSA “screening” procedures at ABQ, “We have not seen a lot of resistance locally here.”

We’ll be posting updates on the trial here. But since no cell phones, laptops, pagers, or other electronic communications devices are allowed anywhere in the courthouse, don’t expect live-blogging or for us to be able to return phone calls or e-mail messages from the courthouse or until the end of each day of the trial.

Dec 01 2010

Testimony to the Canadian Parliament on US access to travel data

Edward Hasbrouck of the Identity Project testified yesterday on behalf of the Liberty Coalition at a hearing before the Canadian House of Commons’ Standing Committee on Transport, Infrastructure and Communities on Bill C-42, which — as we’ve discussed previously — would override Canada’s “Personal Information Protection and Electronic Documents Act” (PIPEDA) to permit airlines to give personal information about passengers to the government of any country whose airspace a flight would pass through, even if it didn’t land in that country.

Bill C-42 was proposed by the government, but is being opposed by some within Parliament as well as civil liberties and human rights activists and (along with the US Secure Flight scheme) by the Office of the Privacy Commissioner of Canada.

The English-language audio archive of the hearing is here; the complete transcript is here. Mr. Hasbrouck’s introductory statement is from 24:45 to 35:15 of the audio stream; he was also questioned extensively by the members of the Committee.

Because of the Thanksgiving holiday in the US, the invitation to testify arrived too late for the requisite translation into French of any written notes or supporting documents. For more background on the information architecture and cross-border data flows of the airline industry, see the slides from Mr. Hasbrouck’s more detailed testimony on related issues earlier this year at the European Parliament in Brussels.

Here’s the transcript of our introductory statement:

Read More →

Nov 23 2010

What you need to know about your rights at the airport

TSA “screeners” are not law enforcement officers. Despite wearing police-type uniforms and calling themselves “officers”, they have no police powers and no immunity from any state or local laws. At some airports, notably San Francisco (SFO) and Kansas City (MCI), they aren’t government employees at all, but rent-a-cops employed by a private contractor. They cannot legally arrest or detain you (except as a citizen’s arrest, the same way you can arrest them if they commit assault or battery). All they can do is call the local police.
You have the right to remain silent, including when questioned by TSA “Behavior Detection Officers.” Anything you say may be used against you.
You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners. Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you. In addition, the Federal “Privacy Protection Act of 1980” (42 USC 2000aa) forbids TSA staff or police from searching or seizing photographs, audio or video recordings, documents, or electronic data, if you possess these materials in connection with an intent to distribute them publicly, including online distribution such as posting them on Facebook, Youtube, etc. There are some exceptions to this law, including a limited exception for searches and seizures by customs inspectors (not the TSA) at international ports of entry (not domestic airports). But there is no general airport or TSA exception to this law.
You have the right not to be assaulted or battered (sexually or otherwise), falsely arrested, unlawfully detained, or kidnapped. You may have the right to make a criminal complaint and/or a citizen’s arrest of someone who assaults you, and/or to sue them for damages. You should consult the applicable laws, including local laws, and/or an attorney, if you plan to do any of these things.
Under most airlines’ conditions of carriage, you have the right to a full and unconditional refund if the airline refuses to transport you because you won’t show ID or won’t “consent” to whatever they want to do to you in the name of “screening”. Read this first: Here’s what to do to protect your right to a refund. If the airline refuses to give you a full refund, you can sue them for damages and request that the US Department of Transportation investigate and fine them.
If an airline cancels your reservation or refuses to transport you, you may be entitled to collect damages, and you can request that the US Department of Transportation (and, if you were denied passage to the USA from another country, that country’s authorities) investigate and fine or impose other sanctions on the airline.
You have the right to freedom of movement, guaranteed by the First Amendment (“the right of the people… peaceably to assemble”) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty to which the US is a party: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.” Federal law (49 USC § 40101, part of the Airline Deregulation Act of 1978) requires the TSA to consider “the public right of freedom of transit” by air when it issues regulations.

Nov 23 2010

Airlines threaten illegal actions against travelers who opt out of groping

Can you get your money back if you opt out of the TSA’s assault on your freedom? Yes, but airlines don’t want to admit that. (That’s nothing new.) You may have to put up a fight.

Here’s what’s happening, and what you can do:

With National Opt-Out Day coming up, travel journalist Christopher Elliott contacted several airlines to see how they would handle requests for refunds from ticketed passengers who aren’t allowed to fly because they opt out of being x-rayed or groped.

Disturbingly, several airlines (American, Southwest, United/Continental, and US Airways) told Elliott that they would not give refunds to such passengers holding nonrefundable tickets.

Airlines can’t just make up new rules governing tickets and refunds after tickets are issued. Those rules are published in airlines’ tariffs and conditions of carriage, as filed with the Department of Transportation.

Almost all airlines’ conditions of carriage provide that, if an airline refuses to transport you, you are entitled to a full and unconditional “involuntary refund” of all fares, fees, and charges, even if the fare at which your ticket was issued is otherwise completely nonrefundable.

American Airlines, for example, told Elliott:

“Our refund rules that are in place now, apply,” says a spokeswoman. “If the customer has a refundable ticket, then we will refund. If the customer has a non-refundable ticket, then we can offer a voucher.”

But American’s actual rules are contained in their conditions of carriage, as follows:

Involuntary Refunds

In the event the refund is required because of American’s failure to operate on schedule or refusal to transport, the following refund will be made directly to you –

If the ticket is totally unused, the full amount paid (with no service charge or refund penalty), or

If the ticket is partially used, the applicable fare for the unused segment(s).

If American or another airline with similar terms in its contractual conditions of carriage refuses to give you a full and unconditional refund (not merely a voucher), they are liable to you for damages if you sue them, and liable to enforcement action and fine by the Department of Transportation.

So what’s the best strategy if you already have a ticket and want to opt out of virtual strip-search and groping?

Nov 22 2010

Self-restraint is not the solution for the TSA

This morning on the “Today” show, TSA Administrator and former FBI agent John Pistole said that the TSA is “actively rethinking its policy” to require all travelers to submit to either an x-ray virtual strip search or vigorous groping of their breasts and genitals.

We aren’t reassured or appeased. The process of “rethinking” described by Pistole, like the TSA procedures themselves, would remain entirely secret, internal, and extra-judicial.

The problem with the TSA is not with exactly how it has exercised its secret, standardless administrative “discretion,” but the fact that the TSA has been allowed to opt itself out of the rule of law.

Last Friday the New York Times editorialized that, “The government could start by making their screening guidelines clear.” The government could do so — but the TSA won’t unless it is forced by direct orders from the President, the Congress, or the Federal courts. We cannot rely on the TSA to restrain or reform itself.

There are no laws or published regulations defining what the TSA is allowed to do. The TSA has claimed in response to our requests that all of its procedures and directives for airport checkpoints are exempt from the Freedom of Information Act (FOIA). The DHS Privacy Office ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, including the White House liaison. Apparently that approval has never been given. We’re still waiting.

When John Gilmore challenged the checkpoint practices in court, the DHS refused to show him the documents that they showed the judges “in camera” to persuade them to dismiss his case. The Supreme Court refused to consider his appeal of this secret lawmaking.

Former Secretary of Homeland Security Chertoff said repeatedly and publicly that administrative DHS “no-fly” decisions should be exempt from judicial review. Neither current DHS Secretary Napolitano nor President Obama have done anything to dissociate themselves from that position.

Now the ACLU and EPIC are both collecting reports and complaints about what happens at TSA checkpoints. But we have no confidence that public exposure of what is happening will in itself prompt any change in behavior by an agency whose motto appears to be, “We don’t care – we don’t have too.” Everyone already knows that the TSA is groping grandmothers, probing under diapers and sanitary napkins, and requiring removal and examination of breast and other prostheses. All while threatening or even arresting those who try to protect themselves by documenting the process with photographs and/or recordings.

EFF has information on how to complain to the TSA and DHS. But those complaints would also be dealt with, if they aren’t ignored, solely by secret procedures within those agencies. What, if anything, is done as a result will remain unknown to the complainants and the public.

Clearly, the TSA has crossed the line of what the traveling public will tolerate. But the solution is not for the TSA to retreat slightly (and perhaps only temporarily) in response to public outrage. That will only leave us with endless scrimmages over where to draw the line, with the TSA not an iota less invasive than the most intrusive processes that they think they can get away with.

The real need is to put the TSA — for the first time in its existence — clearly within the rule of law. That’s why we think what’s most important about EPIC’s lawsuit against the TSA is not the specific issue of virtual strip searches (important though this is) but the fundamental complaint that the TSA has ignored formal petitions for rulemaking. EPIC’s central claim is that the TSA has refused to give public notice of proposed rules, accept public comments, and make a public determination that could be subjected to review by the Federal courts.

Liability, both organizational and personal, is also important. Talk to a lawyer about bringing a criminal complaint or civil lawsuit against any TSA employees or contractors who act illegally against you. We’re pleased to see discussion of citizens’ arrests of overreaching (so to speak) TSA and contractor gropers. At least some local prosecutors are open to possibly pressing such charges. That’s especially significant at San Francisco International Airport (SFO), where the screeners are out on an especially thin limb of liability as private contractors rather than employees of the TSA or any other government agency.