Papers, Please! – Page 9 – The Identity Project

Mar 29 2022

Asylum Requires Traveling to a Border

The US Department of Homeland Security (DHS) and the Department of Justice (DOJ) issued new interim rules today for the adjudication of asylum and other claims by a new class of “asylum officers” at US ports of entry, borders crossings, and airports.

These new rules won’t help most asylum seekers.

Did you ever wonder why desperate asylum seekers often travel on overcrowded and leaky boats or try to trek across waterless deserts, and regularly lose their lives?

It’s not because migrants can’t afford plane tickets. It’s because the government at their destination won’t let them buy a plane ticket or board a flight to a place of safety!

International treaties and US law only allow migrants to make asylum claims after they reach a destination country. You can’t apply for asylum in advance, the way you apply for a visa. You have to show up at the border or arrive at a destination airport before you can beg for asylum. And the US and the European Union work hard to prevent migrants from ever reaching a US or EU border or airport where they might make such a plea.

That’s why most migrants’ asylum claims are never “adjudicated”. Instead, they are denied before they get on a plane, by airline staff who have no training or competence to act as asylum judges. Most migrants never even try to travel by airline to a place where they could present their asylum claim, because they know that they will be turned away at the ticket counter or boarding gate. That’s why they end up trying to reach places of sanctuary by “irregular” means of transport, and drowning or dying of thirst in the desert.

Airlines should be helping migrants. Airlines have a legal obligation as common carriers to transport all would-be passengers. They have a financial interest in selling tickets to those passengers. But the US undermines international human rights and aviation treaties by imposing draconian “carrier sanctions” (currently $3,000 per passenger) on any airline that transports any person to the US who is denied asylum on arrival, or denied entry for any other reason. Many European countries do the same.

Airlines claim that they are denying passage to migrants because they “lack the required documents” for their desired destination in the US or elsewhere. But under international and US law, asylum seekers are not required to have or produce any specific documents in order to have valid asylum claims. There’s no such thing as an “asylum visa”. The migrant who arrives with just the clothes on their back and no documents often has a stronger claim to asylum than the one who brings passports, visas and other paperwork.

In 1939, officials in the US and Canada denied the passengers on the S.S. St. Louis “permission” to disembark, fating them to be returned to Europe where many were murdered by the Nazis. In recent years, US administrations have pursued policies designed to keep refugees from reaching US shores. These polices are designed to undermine the right to asylum. What the large print of international humanitarian law offers, the small print of “carrier sanctions” takes away.

It is, by definition, impossible for an asylum seeker to submit their claim or have it adjudicated before they reach the US. It is equally impossible for an airline, a “preclearance officer”, or anyone else to anticipate, before an asylum claim has been made, whether it will be granted. So to save the airline a possible “administrative fine” of $3,000 per passenger, airlines simply deny passage to all such people.

America didn’t use to be like this. People fleeing persecution in the Ukraine under Tsarist Russian rule could get to the US and apply, as long as they could reach a European port with enough money to pay for passage across the Atlantic. No passports or visas were required to buy a boat ticket and board a ship, nor were any required at Ellis Island.

It shouldn’t be harder today to reach asylum than it was a century ago. If the US and European governments were serious about allowing Ukranian refugees to claim asylum, they would repeal these “carrier sanctions”, rather than rearranging the deck chairs on the Titanic by adding a new class of administrative law judges to process the few asylum claimants who do somehow arrive at the border.

The rights of refugees and asylum seekers recognized in high-sounding treaties will become meaningful only when migrants have an actual right to travel to the border or arrival airport to make their claim. Passing the Freedom To Travel Act, now pending in Congress, or including its provisions in any asylum or immigration reform legislation, would be one way to restore that right. But a smaller change in the law to repeal the “carrier sanctions” against airlines that transport migrants would be a great start.

Mar 17 2022

Alaska may end its compliance with the REAL-ID Act

A bill introduced in the current session of the Alaska state legislature, HB 389, would end the issuance by the state of Alaska of driver’s licenses that comply with the Federal REAL-ID Act of 2005.

In addition, HB 389 would give Alaska residents “the option of having the applicant’s driver’s license photograph captured with a camera that produces a photograph in a format or with a resolution that renders the image quality insufficient for facial recognition.” The bill would require that the state Department of Administration and its Division of Motor Vehicles “shall destroy or render unusable for facial recognition purposes any photograph captured as a result of an application for a driver’s license ,” and prohibit “bulk sharing of facial images captured a result of an application for a driver’s license.”

HB 389 was introduced by Rep. David Eastman (R-Mat-Su) and is co-sponsored by Rep. Ronald Gilham (R-Kenai/Soldotna). We look forward to its consideration in the state legislature in Juneau, and to the opportunity to testify on this issue, as we did when the Alaska Legislature first debated whether to comply with the REAL-ID Act in 2006, 2007, and 2008, and again in 2017 when it reconsidered its initial choice not to comply.

HB 389 reflects longstanding sentiment in Alaska against compliance with Federal mandates for ID credentials and sharing of personal information with “outside” entities.

Even the highest official of the Transportation Security Administration in Alaska, the Federal Security Director for the state, has pointed out to his superiors in Washington that many Alaskans live off the road system and don’t need or have drivers licenses. They may be more likely to fly, and to need to fly, than to need to drive. They don’t want to have to show government-issued papers, which they might not have, in order to do so.

In 2008, Alaska enacted a law that prohibited spending any state funds on implementation of the REAL-ID Act.

Nine years later, though, the Alaska DMV defied the law by uploading information about every Alaskan with a driver’s license or state ID to the SPEXS national ID database that was created as a way for states to comply with the REAL-ID Act.

That action by the DMV to move Alaska toward REAL-ID compliance was taken “without permission from the legislature,” as Rep. Chris Tuck, Majority Leader in the Alaska House of Representatives, noted in an op-ed published in newspapers throughout the state after the batch upload of Alaskan driver’s license data to SPECS became public. The batch upload took place just as the legislature was scheduled to again consider REAL-ID compliance, and appears to have been an executive and administrative effort to preempt legislative debate.

Officials from the Alaska DMV and the U.S Department of Homeland Security claimed that REAL-ID “compliant” ID would soon be required in order to travel by air, but were unable to provide any basis for this false claim. At one of the legislative committee meeting in 2008, Rep. Tuck himself testified to his colleagues about how he had flown between Juneau and Anchorage with no ID at all when he accidentally left his wallet in his office.

The Identity Project provided extensive testimony and FAQ’s fact-checking the claims being made by the DHS and the Alaska DMV in support of REAL-ID Act compliance.

A week after we provided Alaska legislators with written testimony about the right to fly without ID, Rep. Jonathan Kreiss-Tomkins, Chair of the State Affairs Committee, passed on a very similar set of questions to TSA officials in Alaska and in Washington, DC. More than a decade after the fact, when the TSA finally responded to one of our FOIA requests, we received copies of TSA internal e-mail messages discussing how to respond to Rep. Kreiss-Tomkins’ questions — but no indication of what, if any, answer was ever provided.

At the end of the 2017 legislative session, however, Alaska legislators reversed their 2008 decision, and authorized the DMV to begin issuing driver’s licenses and ID cards that “comply” with the REAL-ID Act.

From discussion at the public committee meetings we attended, it seemed clear that legislators didn’t like the REAL-ID Act or want Alaska to comply. They didn’t like it that the Alaska DMV had taken matters into its own hands by sending information about all Alaskan drivers and ID card-holders to a private database that’s stored outside Alaska and outside the jurisdiction of any government transparency or oversight laws. But legislators felt powerless to stand up to threats — even illegal threats — from Federal officials.

We welcome the opportunity provided by HB 389 for the Alaska legislature to reconsider its 2017 capitulation to Federal extortion, and reassert Alaskans’ freedom to travel without ID.

Mar 15 2022

How many people fly without REAL-ID?

[Slide from internal TSA presentation, Identity Verification Staffing Support Overview, March 2017, released in response to FOIA request by the Identity Project.]

As of 2016, almost 2,000 people a day were allowed through TSA checkpoints at US airports either without showing any ID at all, or with other forms of ID that the TSA or its contractors initially considered “unacceptable”.

According to an internal TSA presentation, there were 149,068 calls (an average of 407 per day) for “ID Verification” to the TSA’s ID Verification Call Center (IVCC) in 2016.

The previous year, 2015, there were 112,016 such calls (an average of 306 per day).

Each of these calls presumably corresponds to a person seeking to fly without ID, or with ID that was initially deemed unacceptable by checkpoint staff.

These are just the people who were required to go through the TSA’s “ID verification” questioning for people with no ID. The TSA estimates — based on a smaller sample of incident reports for a 13-day period in February 2016 — that an additional 1575 people per day are allowed to fly with “other forms of” ID that are initially deemed unacceptable, for a total of just under 2,000 people per day who fly with no ID or unacceptable ID.

These numbers are from records recently released by the Transportation Security Administration in response to one of our Freedom Of Information Act requests.

This is a substantial increase from the most recent figures previously released by the TSA.

Feb 08 2022

Not another no-fly list

In a letter first reported by Reuters and first published in full by The Points Guy, CEO Edward Bastian of Delta Air Lines has called on Attorney General Merrick Garland to “support our efforts with respect to… putting any person convicted of an on-board disruption on a national, comprehensive,… ‘no-fly’ list that would bar that person from traveling on any commercial air carrier.”

The latest letter from Delta steps up a lobbying campaign the airline began last fall, and which remains as misguided as ever. The letter highlights the urgent need for Congress to enact the Freedom to Travel Act (H.R. 6030) to make clear the rights of travelers, the duties of airlines and other common carriers, and the limitations on when, by what authority, on what grounds, and according to what procedures the right to travel can be restricted.

Jan 30 2022

ID-Me-Not

The IRS is reportedly reconsidering its previously-announced plan to require taxpayers to share facial images and other personal data with an unregulated private company, ID.me, in order to file tax returns online or access information about their filings, payments, and returns through the IRS website.

The hesitation by the IRS comes after ID.me was caught lying about whether it uses “one to many” facial recognition to try to identify facial images against large databases of selfies or other mug shots. ID.me had falsely claimed that it only uses “1 to 1” matching to “verify” that a selfie matches previously stored images of a specific person. But the company has now admitted that’s incorrect. ID.me actually compares selfies submitted by taxpayers (or by hackers or identity thieves, who could easily copy a facial image from a targeted victim’s or their friend’s social media posts) to its own “internal” database of images of tens of millions of people aggregated from unknown sources.

Jan 26 2022

9th Circuit to review secrecy of CRS-based travel surveillance

May court records related to orders requiring a travel reservations company to provide real-time updates to the U.S. government whenever a “person of interest” makes reservations for flights or other travel be kept secret from the public, the press, and other travel companies including the airlines on which the target plans to travel?

That issue is now before the 9th Circuit Court of Appeals in the case of Forbes Media and Thomas Brewster vs. the United States (Court of Appeals Docket #21-35612).

The legal question before the 9th Circuit is whether courts can keep their own actions secret. That’s important, but the the underlying facts raise other issues as well.

Nov 22 2021

“Freedom to Travel Act of 2021” introduced in Congress

On the 20th anniversary of the creation of the Transportation Security Administration, the Freedom to Travel Act of 2021 (H.R. 6030, “To protect the right to travel by common carrier”), has been introduced in the U.S. House of Representatives by Rep. Paul Gosar (R-AZ) and referred to the Committee on Transportation and Infrastructure and the Committee on Homeland Security.

If enacted into law, the Freedom to Travel Act would be the most significant step toward bringing the TSA within the rule of law since the creation of the TSA 20 years ago this week with the enactment of the Aviation and Transportation Security Act (ATSA) in 2001. It would rein in the TSA’s ability to substitute secret, extrajudicial edicts for court orders restricting American’s rights, and would remove key barriers that have stood in the way of judicial review of TSA actions and legal redress for those whose rights have been violated.

The 20th anniversary of the creation of the TSA is an apt moment for Congress to step back from the post-9/11 panic that drove the enactment of the ATSA, take a deep breath, consider what it has actually wrought, and begin to restore the historic right to travel that the TSA has been steadily chipping away at for the entire 20 years of its existence.

The Freedom to Travel Act would create no new rights, but would codify in Federal law an explicit right to travel by common carrier. Courts have recognized such a right, but have often struggled to find an explicit source for it or to assess its significance.

Given that human rights are inherent in our humanity and don’t depend on any statute or text, it shouldn’t be surprising that they aren’t always grounded in explicit statutory language. But ambiguity as to the source of the right to travel and the obligations of common carriers has made it easier for courts to brush off complaints of violations of that right as not having stated a cognizable claim, a claim that involves a fundamental (rather than a less significant) right, or a claim for which the courts have the power to grant redress.

The Freedom to Travel Act would apply to interstate common carriers in all modes of passenger transportation: airlines, railroads including Amtrak, interstate buses, and ferries.

A common carrier, by definition, has a duty to transport all would-be passengers, but the US Department of Transportation has been lax in enforcing that obligation. The Freedom to Travel Act would create an explicit new Federal cause of action against any common carrier, person, or Federal agency that denies or refuses transportation by common carrier to any individual except on the basis of (1) failure to pay the fare or comply with the conditions of carriage in the carrier’s published tariff; (2) failure or refusal to submit to an administrative search limited to a search for weapons, explosives, or incendiary devices likely to pose a threat to the safety of the conveyance, passengers, or crew; or (3) an order from a court of competent jurisdiction.

Sep 22 2021

A vaccine mandate hides an ID mandate

As we have long feared, and as has already happened in other countries, COVID-19 vaccination requirements are being used to impose unrelated ID requirements.

There’s a difference between “unvaccinated” and “undocumented” — a difference that’s gotten lost in some recent regulations and orders imposing “vaccination mandates”.

Case in point: the San Francisco Department of Public Health.

An order from the SFDPH purports to require people entering indoor businesses or other indoor venues including anywhere food or beverages are served, gyms, and other “large indoor events” to show “proof” of having been fully vaccinated against COVID-19.

But proof of vaccination is not what the order actually mandates. Its only real mandate is a an ID mandate, and in practice its effects would be felt primarily by undocumented people (including vaccinated but undocumented people) who don’t have or don’t choose to show ID, not by unvaccinated people.

Regardless of whether you’ve been vaccinated or whether you think other people should be vaccinated, the ID mandate hidden in this order, like similar ID mandates lurking in other “vaccination” regulations and directives, is a step backward for civil liberties. It is vulnerable to, and deserving of, Constitutional challenge.

Here’s what the SFDPH order would actually require:

Sep 15 2021

DHS must explain failure to release e-mail files

In a victory for the Freedom Of Information Act (FOIA), an Administrative Law Judge (ALJ) has ruled that the Department of Homeland Security (DHS) must either disclose records of e-mail messages which we requested in the “native” file formats in which they are held on DHS servers or archival storage media, or must “demonstrate with sufficient justification that they cannot produce the documents in their original fully digital version.”

This ruling was made in response to an administrative appeal by the Identity Project of the DHS (non)-response to a FOIA request we made in 2016 for the reports submitted to the DHS each month on how may people attempted to enter Federal facilities without ID or with ID deemed “noncompliant” with the REAL-ID Act of 2005, and what happened to these people. How many were eventually allowed to enter, and how many were turned away?

Jul 23 2021

The right to international travel and the right to a U.S. passport

In late 2015, as we noted at the time, Congress voted — as part of an unrelated surface transportation bill — to authorize the Department of State to revoke and/or refuse to issue a U.S. passport to anyone against whom the IRS has assessed an administrative lien or levy (even in the absence of any judicial action) for $50,000 or more in tax debt.

This week, the first appellate court to review this law upheld it as Constitutional, although on limited grounds. In its “per curiam” opinion in Maehr v. Department of State, the 10th Circuit Court of Appeals upheld a decision by a U.S. District Court judge in Colorado dismissing a lawsuit by Jeffrey T. Maehr, one of almost half a million people who have been deemed subject to revocation or non-issuance of U.S. passports, and thus prohibited from legally leaving (or returning to) the U.S., for alleged tax debts.

Two judges wrote opinions in support of the “per curiam” decision, each joined in different parts by the third member of the three-judge panel.

All three judges found (wrongly, we think) that, although there is some sort of “right” to international travel by U.S. citizens, it is not such a “fundamental” right as to make restrictions on the exercise of the right to travel be subject to to what courts call “strict scrutiny”.