Sai v. TSA: A case study in TSA secrecy

August 19th, 2014

Time and time again, the TSA has acted as though its middle name was “secrecy” rather than “security”.

Case in point: Sai v. TSA.

There’s a lot at issue in this case, but here are some of the problems with the TSA that it has exposed:

Sai poses no threat to aviation security. He has an unusual but recognized medical condition, attested to by documentation from his doctor that he carries when he travels, for which he needs ready access to liquids.  The TSA is required by law to accommodate such medical disabilities, as it easily could.  TSA press releases claim that travelers are allowed to bring medically necessary liquids through TSA checkponts in any quantity.

But TSA employees at airport checkpoints at Logan Airport in Boston and the TSA contractors who staff the checkpoints at San Francisco International Airport have, among other improper actions, seized Sai’s medical liquids, denied him access to his medical liquids while detaining him, and refused to allow him to pass through checkpoints or travel by air unless he abandoned his medical liquids.

While detaining Sai, TSA employees and contractors have conducted searches unrelated to weapons or explosives (but directly related to activities protected by the First Amendment), including reading through and copying documents Sai was carrying.

The TSA has never tried to claim that any of these actions were justified by “security” concerns. Instead, the TSA has responded to Sai’s requests for information, administrative complaints, and eventual federal lawsuit solely on the basis of secrecy, when it has responded at all, arguing that it isn’t required to divulge anything about what it has done, why, or whether it is justified.

The TSA claims to practice “layered security,” but Sai’s saga shows how the TSA actually practices “layered secrecy” to shield its activities from public and judicial accountability.

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Lawsuit challenges “watchlisting” of Michigan Muslims

August 14th, 2014

A lawsuit filed today in Federal District Court in Michigan challenges “the widespread government practice of placing names on watch lists without providing individuals with any notice of the factual basis for their placement and without offering a meaningful opportunity to contest the designation.”

According to the complaint:

This lawsuit is an expression of anger grounded in law.  Our federal government is imposing an injustice of historic proportions upon the Americans who have filed this action, as well as thousands of others.  Through extra-judicial and secret means, the federal government is ensnaring individuals into an invisible web of consequences that are imposed indefinitely and without recourse as a result of the shockingly large federal watch lists that now include hundreds of thousands of individuals.

So far as we can tell, this is the first lawsuit informed by the publication last month of the US government’s “Watchlisting Guidance“, and last week of a breakdown of who has been “watchlisted”.

These leaked documents, published by The Intercept, make clear that names can be added to “terrorism” watchlists without any individualized basis for suspicion. They also confirmed the overwhelming focus of “terrorist” watchlisting on Arab and Muslim Americans. The leaked documents don’t explicitly categorize watchlist entries by religion or ethnicity, but the correlation is strongly suggested by the fact that more people in Dearborn, Michigan, have been watchlisted than people in any other U.S. city except New York.  Dearborn has only 96,000 people, but 40% of them — the highest percentage of any U.S. city — are of Arab descent.  Not surprisingly in light of this pattern of watchlisting, the Council on American Islamic Relations (CAIR) has played a leading role in challenges to watchlisting practices and consequences.

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Another brick in the (falling) REAL-ID wall

August 13th, 2014

July 21, 2014 marked “Phase 2″ of implementation of the REAL-ID Act.

What does this mean, and does it matter?

As of July 21, drivers’ licenses and other state ID credentials issued by US states or territories that haven’t been certified by the DHS to comply with the REAL-ID Act cannot be accepted by Federal agencies for access to ID-controlled “restricted” areas of Federal facitlties (”i.e., areas accessible by agency personnel, contractors, and their guests”).

Because Federal agencies typically issue their own ID credentials to their own employees and regular contractors, this will mostly affect occasional visitors to Federal facilities. NASA, for example, which has facilities in states that have not been certified by DHS as sufficiently compliant, has issued this advice to would-be visitors:

Effective July 21, 2014, the implementation of Phase II of the Real-ID Act (2005) restricts the use of state ID from non-compliant states (including New York) as an acceptable form of identification for federal facilities (including NASA GISS). If you are intending to visit GISS and only have a standard drivers license from a non-compliant state, please ensure that you have a second form of ID (passport, military ID, etc.) to avoid unnecessary complications.

It isn’t clear from this notice, or others we’ve seen, what these “unnecessary complications” will amount to. Visitors with ID credentials from non-compliant states will, presumably, be treated as visitors without “valid” state ID credentials, but that begs the questions of whether or on what basis they will be allowed entry after additional scrutiny or some form of alternate ID verification, allowed entry but only if escorted by staff and not allowed unescorted, or denied entry entirely.

In its eseence, the REAL-ID Act was intended to mandate the creation of a distributed national identity card system. The key “compliance” requirement for states and territories is participation in a linked, distributed database of ID-card and biometric information about all ID cardholders nationwide.

The intent of the Federal law is to force states to particpate in (and absorb the cost of) this scheme, sparing the Feds the costs and hassle of issuing national ID cards and providing (implausible) deniability as to whether it’s a “national ID” at all: “See, it’s not a ‘national’ ID card. It’s still issued by your state.”

But since the Feds probably don’t have jurisdiction over state issuance of drivers’ licenses or state ID cards, the REAL-ID Act relies on threats, rather than direct orders, to extort compliance by states resistant to registering their citizens and residents in a national ID database.

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One million people are on watchlists, but all travelers are being watched

August 5th, 2014

A million people around the world were listed in the US government’s “Terrorist Identities Datamart Environment” (TIDE) as of August 2013, of whom 680,000 were included in the “Terrorist Screening Database” (TSDB), according to a classified breakdown of watchlist entries and uses published today by The Intercept.

Two weeks ago, The Intercept made public the US government’s watchlisting/witchhunting manual. Now the same publication from the aptly named First Look Media has provided a first look at how many people are affected by “watchlisting” practices, and who these people are.

(Ironically, these revelations come at the same time that the National Counter-Terrorism Center (NCTC) is advertising “Watchlisting” jobs.)

The internal government documents published by The Intercept categorize TSDB entries by “group affiliation”, rather than by what (if any) threat these people are believed to pose. But 280,000 of the 680,000 people listed in the TSDB were described as having “no recognized terrorist group affiliation”.

Of the entries on the watchlists in the TSDB, 47,000 were on the no-fly list, and 16,000 were on the “selectee” list of people subjected to more intrusive “screening” whenever they fly.  Five thousand “US persons” (US citizens and permanent residents or green-card holders) were on watchlists, including 800 on the no-fly list and 1,200 on the “selectee” list.

As of August 2013, according to these documents, 240 new names were “nominated” to these lists each day, while only 60 entries were removed. That means the million-entry TIDE list was growing at the rate of 180 entries per day, or 65,000 entries per year.

But don’t be misled by the government’s Orwellian use of the term “watchlist” into thinking that “only” a million people are being “watched” by the government or treated as supected terrorists when they travel. US government surveillance of travelers is a dragnet that affects all travelers, not just those on watchlists.

All air travelers are “watched” and our movements and associations are recorded in secret, permanent government dossiers.  All travelers are profiled and assigned secret “risk assessment” scores each time we fly.  All travelers must obtain individualized, per-passenger per-flight government permission before any airline is allowed to issue a boarding pass.

The million people on US government watchlists (as of August 2013) are those who are subjected, on the basis of this blacklisting and dragnet surveillance, to even more intrusive surveillance and/or other restrictions on the exercise of fundamental rights, such as the rights to freedom of association and freedom of movement.

US government’s witchhunting manual made public

July 28th, 2014

The Intercept has published the March 2013 edition of the US government’s Watchlisting Guidance. This 166-page document, previously kept secret as Sensitive Security Information (SSI), provides standardized but not legally binding “guidance” to Federal executive agencies as to how, on what basis, and by whom entries are to be added to or removed from terrorism-related government “watchlists”, and what those agencies are supposed to do when they “encounter” (virtually or in the flesh) people who appear to match entries on those lists.

The Intercept didn’t say how it obtained the document.

The “Watchlisting Guidance” is the playbook for the American Stasi, the internal operations manual for a secret political police force.  As such, it warrants careful and critical scrutiny.

Most of the initial reporting and commentary about the “Watchlisting Guidance” has focused on the substantive criteria for adding individuals and groups to terrorism watchlists.  Entire categories of people can be added to watchlists without any basis for individualized suspicion, as discussed in Section 1.59 on page 26 of the PDF.

These criticisms of the watchlisting criteria are well-founded. But we think that there are at least as fundamental problems with what this document shows about the watchlisting procedures and the watchlist system as a whole.

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Is it a “state secret” that the no-fly list is unfair?

July 14th, 2014

Faced with a series of decisions by federal District Court judges that the procedures for putting names on the “no-fly” list lack the due process of law required by the Constitution, and with more no-fly and “watchlist” (blacklist) cases on track toward trial, the government is trying to claim that the basis (if any) for putting a US citizen on the no-fly list is a “state secret” exempt from judicial review.

The case of Gulet Mohamed, a Virginia teenager who was placed on the US no-fly list while he was visiting family members overseas, is one of the most egregious examples of the FBI’s systematic abuse of the no-fly list. It appears that Mr. Mohamed was placed on the no-fly list in order to pressure him to become an FBI informer, as was done with many other US citizens. When Mr. Mohamed’s visa expired and he couldn’t fly home to the USA, he was taken into immigration detention in Kuwait, where he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”

After a series of government attempts to get Mr. Mohamed’s complaint dismissed for on jurisdictional and other grounds were rejected, the case was set for the first trial ever on the merits of a no-fly order. (The government had avoided such a trial in the case of Dr. Rahinah Ibrahim by conceding, on the eve of trial, that her initial placement on the no-fly list had been an FBI mistake.)

At this point, however, the government has invoked the “nuclear option” by moving to dismiss Mr. Mohamed’s complaint on the basis of a declaration by Attorney General Eric Holder that the reason (if any) why Mr. Mohamed is on the no-fly list is a “state secret” and that it would endanger national security to allow the court to review the no-fly decision or the evidence (if any) supporting it.

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Court rules “no-fly” review procedures lack due process

June 26th, 2014

In a significant reaffirmation of the decision earlier this year in Ibrahim v. DHS, another federal District Court has now found that the US government’s administrative procedures for reviewing and appealing “no-fly” decisions violate both Constitutional standards of due process and the requirements of the Administrative Procedure Act.

The ruling this week by Judge Anna J. Brown of the US District Court for the District of Oregon, in Portland, comes in the case of Latif, et al. v. Holder, et al. This lawsuit was brought in 2010 by the ACLU on behalf of ten US citizens and permanent residents (green card holders). Their stories, as summarized in Judge Brown’s latest ruling, vary, but all of them have been prevented from boarding international flights to or from the US, and/or overflying US airspace.

Some of the plaintiffs in Latif v. Holder have been trapped in the US, separated from family and/or employment opportunities abroad, while others are trapped overseas, unable to return home. At least one of the plaintiffs who booked passage on a passenger-carrying ocean freighter to return to Europe from the USA was denied boarding by the ship’s captain as a result of a “recommendation” from the US Customs and Border Protection division of DHS.

In 2012, the 9th Circuit Court of Appeals overturned the government’s effort to prevent the District Court from hearing this case. Last year, finally beginning to consider the merits of the complaint, Judge Brown ruled that international travel by air is a right that can only be restricted in accordance with due process of law.

Judge Brown’s latest ruling addresses whether the government’s current procedures, particularly the DHS “Traveler Redress Inquiry Program” (TRIP), provide such due process. Judge Brown has now decided that they do not, and must be changed to provide the subjects of no-fly orders with:

  1. Notice (at least after they have been denied boarding on an international flight and sought redress) of whether they are on the US government’s no-fly list.
  2. At least a summary of the nature of the “suspicion” and the evidentiary basis for the administrative decision to place them on the no-fly list.
  3. An opportunity for some sort of in-person hearing to present evidence to rebut the allegations and evidence against them.

Echoing Judge Alsup’s finding in Ibrahim v. DHS, Judge Brown found that the opportunity to submit exculpatory or rebuttal evidence through the TRIP program is meaningless without notice of what allegations have been made, on what evidentiary basis, and thus of what needs to be rebutted.

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Can the TSA retroactively declare public information “secret”?

June 1st, 2014

At the request of the government, the Supreme Court has agreed to review the decision of the Court of Appeals for the Federal Circuit in favor of Robert MacLean, a TSA “air marshal” who was fired for telling a journalist, members of Congress, and the DHS Office of the Inspector General about an unclassified text message that the TSA,  three years later, would designate as “Sensitive Security Information” (SSI).

Mr. MacLean challenged his firing as being in violation of the Whistleblower Protection Act, which prohibits retaliation against Federal government employees for certain types of disclosures of information.  But the law has an exception for disclosures “specifically prohibited by law.”

A 3-judge panel of the Court of Appeals found that the ex post facto administrative designation of the text message by the TSA as SSI did not make its disclosure “specifically prohibited by law.”  The Court of Appeals unanimously denied the government’s petition for rehearing en banc.  Now the Supreme Court has decided to hear the case, DHS v. MacLean, during its 2014-2015 term.

The issue presented to the Supreme Court is the meaning of the phrase, “specifically prohibited by law,” in the Whistleblower Protection Act.  But the case is also necessarily about the extent of the TSA’s authority to create “secrets” retroactively and by administrative fiat.

Federal laws and regulations shouldn’t be interpreted by the courts as though they were written in Orwell’s Newspeak.  Information known to the public is not “secret”. The TSA cannot make it “secret” by retroactive administrative action, and should not be allowed to punish those who talk about or disseminate it.

The rights of migrants, refugees, and asylum seekers

June 1st, 2014

At the invitation of the U.N. Office of the High Commissioner for Human Rights (OHCHR), we’ve submitted the following recommendations concerning the right to freedom of movement as it relates to migrants, refugees, and asylum seekers at ports, airports, borders, and checkpoints:

As an NGO primarily concerned with the right to freedom of movement, the Identity Project (PapersPlease.org) welcomes the invitation and opportunity to provide this information to the Office of the High Commissioner for Human Rights, for your use in preparing your report to the General Assembly concerning the human rights of migrants while in transit, including in ports and airports and at borders and checkpoints.

We are pleased that Resolution A/RES/68/179, as adopted by the General Assembly on 18 December 2013,  “Reaffirm[s] that everyone has the right to freedom of movement and residence within the borders of each State and the right to leave any country, including his or her own, and to return to his or her country,” in accordance with Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

Unfortunately, that right, and in particular the right to leave any country, is routinely and systematically violated. These violations have especially grave consequences for asylum seekers who are prevented from fleeing countries where they are experiencing, are at risk of, and/or have a well-founded fear of persecution.

Airlines routinely prevent refugees and asylum seekers from boarding flights on which they seek to depart from countries where they are being persecuted.  In many of these cases, these refugees and asylum seekers would be eligible for admission and asylum on arrival in other countries, if they were allowed to travel to places of refuge.

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Ars Technica asks DHS for PNR data, but gets none of it

May 27th, 2014

Cyrus Farivar, Senior Business Editor at Ars Technica, reports today on the initial response to his Freedom Of Information Act (FOIA) request to US Customs and Border Protection (CBP) for CBP’s records about his travel history, including CBP’s copies of airline Passenger Name Records (PNRs).

Nine months after making his request (seven months longer than the maximum allowed by law), Mr. Farivar received 72 pages from the CBP TECS database including a log of his exits and entries from the US for the last 20 years, beginning in 1994 when he was 12 years old.  He also received one report of a “secondary inspection”. He didn’t even remember the incident, but one of the CBP agents who questioned him recorded in his permanent CBP file that he was a journalist, in apparent violation of the prohibition in the Privacy Act on keeping records of how US citizens like Mr. Farivar exercise rights protected by the First Amendment.

Most significantly, despite explicitly requesting “any and all Passenger Name Records,” Mr. Farivar received none of them, even though CBP requires all airlines operating flights to, from, or through the airspace of the US to provide them to CBP, in their entirety including any information collected by airlines or their agents for their own business purposes, or entered into PNRs by other travel companies for their business purposes.

CBP’s response to Mr. Farivar was typical. As we’ve noted previously, two New York Times reporters are suing the DHS (the parent department of CBP) for failing to provide records about their travel which they requested, including PNR data.  CBP Every response we have seen to a request to CBP for its travel history records about an individual has been obviously incomplete, in one or another way.  We’ve seen other CBP secondary inspection records recording a traveler’s profession, what book a traveler was reading, and other information about activities protected by the First Amendment.  See the examples in our reports here and here and this presentation.

Mr. Farivar has filed an administrative appeal, as should anyone who receives such a response. CBP claimed to have lost all record of one of our appeals, and of the person who signed the certified mail receipt for it. We had to sue before we received much of our PNR data. While our request was pending CBP retroactively exempted most of the data in its “Automated Targeting System” from the access requirements of the Privacy Act, but some PNR data should still be available, albeit partially redacted, in response to a FOIA request.

If you’d like to find out some of what records CBP has about you, we’ve provided forms here.  Please let us know if you’d like help interpreting responses.