Archive for the ‘Freedom To Travel’ Category

The human rights of migrants in transit

Monday, November 16th, 2015

Last year the UN Office of the High Commissioner for Human Rights (OHCHR) developed and promulgated a set of “Recommended Principles and Guidelines on Human Rights at International Borders”, including respect for the right to freedom of movement, on which we made recommendations at the invitation of the OHCHR.

As a follow-up, and in response to ongoing refugee crises in Europe and elsewhere, the OHCHR has been tasked by the UN Human Rights Council with preparing further recommendations in relation to the rights of migrants in transit, including, “[e]xit restrictions … and the externalisation of border controls which could have an impact on the human rights of migrants in transit.”

Our latest recommendations to the OHCHR focus on the human rights implications of restrictions on travel by common carrier:

As we discussed in our previous submission to the OHCHR concerning the human rights of migrants, refugees, and asylum seekers, the right to leave any country is routinely and systematically violated – even where there is no explicit requirement for an “exit permit” – through (1) requirements for identity credentials or other travel documents as a condition of travel by common carrier, without respect for the right to leave any country and to return to the country of one’s citizenship regardless of what, if any, credentials or documents one possesses, (2) requirements for “screening” and approval of common carrier passengers that amount to de facto exit visa, transit visa, and/or entry visa requirements, (3) sanctions imposed on common carriers to induce carriers not to transport certain would-be passengers, on the basis of decisions not made, and not subject to appeal, through effective judicial procedures, and (4) failure by governments to enforce the duties of common carriers to transport all would-be passengers, regardless of their legal status or possession of documents.

Some of the most important decision-makers for asylum seekers, refugees, and other migrants are airline and other common carrier ticket sellers and check-in staff. Many eligible asylum seekers are unable to reach places of refuge, and others die trying, as a direct result of improper denial of transportation by common carrier staff.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

When airlines or other common carriers deny passage, they often claim that they are doing so in compliance with government mandates or government-authorized carrier “discretion”. But decisions about these “mandates” and how to apply them, and about the scope of common carrier “discretion”, are enforced not by judicial or police personnel but by airline or other common carrier staff, or by contractors, at the points of ticket sales, check-in, or boarding. As a result, it is almost impossible for would-be passengers to obtain judicial review of carrier decisions to refuse ticket sales, check-in, or boarding.

Asylum seekers who are trying to leave a country where they are subject to persecution, and who are denied transport, are unlikely to have access to effective judicial review and redress through the courts of the country that is persecuting them. Airlines know that they can violate the rights of asylum seekers with de facto impunity.

Respect for the right to freedom of movement requires significant changes in the practices of carrier staff. To fulfill their human rights obligations, governments need to ensure that common carriers are aware of, and respect, the right to freedom of movement.


Most Federal agencies still ignore human rights complaints

Friday, November 6th, 2015

Despite a recent decision by the European Court of Justice based in part on the inability of US courts to enforce US obligations under human rights treaties to which the US is a party, and despite a direct order from the President, most Federal agencies have still done nothing to create even administrative channels or points of contact for handling complaints of human rights violations.

Last April, we joined a broad coalition of civil liberties and human rights organizations in a public letter to some of the Federal departments engaged in the most egregious human rights violations — torture, extrajudicial killings, mass surveillance, denial of freedom movement, etc. — calling on them to carry out the President’s longstanding orders to designate points of contact responsible for responding to complaints that they have violated human rights treaties.

Six months later, there’s been no response to our letter and no publicly-disclosed indication that any of the agencies and departments to which it was sent has taken any action to fulfill its duties under Executive Order 13107, which was issued by President Clinton in 1998 and has remained in effect ever since.

This week, we joined in a follow-up letter, pointing out the failure to act and the heightened importance of showing a US government commitment to human rights, including the right to privacy, if the US wants to persuade other countries and their citizens that personal information transferred to via the US will be adequately protected against unwarranted mass surveillance.

The real lesson, of course, is that neither US citizens nor foreigners can rely on merely administrative mechanisms  for the protection of fundamental rights. If direct orders from the President aren’t enough to get Federal department heads even to receive and log human rights complaints, what could be?

As the UN Human Rights Committee recommended last year at the conclusion of its latest review of US (non)implementation of its human rights treaty obligations, what’s really needed is for Congress to enact effectuating legislation for human rights treaties to grant US courts — not the agencies that are the subjects of the complaints — the jurisdiction to hear and rule on complaints of violations of rights guaranteed by those treaties that the US has ratified and promised to honor and implement.

6th Circuit Court of Appeals rules for right to trial over no-fly order

Wednesday, October 28th, 2015

On October 26th, by a 2-1 vote, a  panel of judges of the 6th Circuit Court of Appeals has overruled a District Court’s decision that it lacked jurisdiction to hear a substantive challenge to the order by the “Terrorist Screening Center” (TSC) placing a US citizen on the “No-fly” list.

While the decision was based on arcane-seeming jurisdictional issues, and the government is already maneuvering to evade it and some other similar court decisions, it is a significant victory for the fundamental right to a trial in cases of challenges to no-fly orders.

The decision sends the lawsuit brought by Mr. Saeb Mokdad, represented by the Arab-American Civil Rights League,  back to the US District Court in Michigan where it was first filed more than two years ago.

The TSC is an inter-agency and inter-departmental entity, but the government has assigned nominal “ownership” of the TSC and its decisions — including, until recently, final authority for no-fly orders — to the FBI (a component of the Department of Justice).

At the same time, the government has argued that any challenges to the TSC’s no-fly orders must be made first through the kangaroo-court DHS TRIP administrative process, and then in a Court of Appeals that is allowed to consider only the “administrative record” of the TSA’s decision, as supplied to the court by the TSA itself.

Unlike some other people who have tried to challenge the government’s interference with their right to travel, Mr. Mokdad didn’t sue the TSA or DHS for implementing the TSC’s decision to put him on the no-fly list. Instead, he sued the TSC, FBI, and DOJ for ordering the TSA and DHS to put him on the no-fly list.

The government’s position is that no challenge to a no-fly order can be made with the agency that made the decision (the TSC/FBI/DOJ), and that any court review of the TSC decision must be based solely on TSA records (which will show, at most, that the TSA relied on a no-fly order from the TSC, and may not show anything about the factual basis, if any, or the criteria or procedures relied on by the TSC in its decision).

In its decision this week, the 6th Circuit rejected that duplicitous government position:

To the extent that Mokdad brings a direct challenge to his placement by TSC on the No Fly List, … he is challenging a TSC order, not a TSA order….  TSA does not determine who is placed on the No Fly List; TSC does. Notwithstanding the government’s attempts to characterize his claim as a challenge to TSA’s decision to deny him boarding, Mokdad makes clear that he is “challeng[ing] his actual placement on the No Fly List by the TSC.” R. 17, Appellant Br., 11. TSC is administered by the FBI. The fact that TSC is an inter-agency center that is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and also TSA, does not transform TSC’s order placing an individual on the No Fly List into an order of the TSA.

The 6th Circuit panel correctly held that the law assigning exclusive jurisdiction over challenges to TSA orders to Circuit Courts of Appeal, based on TSA administrative records, does not apply to challenges to TSC or other FBI orders — including no-fly listing orders.

The FBI’s hypocrisy in Mr. Mokdad’s case hasn’t been limited to its arguments in court.  The FBI has told Mr. Mokdad that it can’t tell him anything about why it put him on the no-fly list, and can’t even confirm or deny that he is barred from flying (although that’s obvious from the fact that he is denied boarding whenever he tries to fly). At the same time that the FBI officially declined to comment or give any information to Mr. Moktad, the FBI was happy to disclose derogatory alleagations about him to the local newspaper of record, the Detroit Free Press, in the form of leaks by “sources familiar with Mokdad” about what “the FBI suspects”.

Unfortunately, the next move in this legal chess game was already played by the government between the time that Mr. Mokdad’s case was argued a little over a year ago and when it was decided this week. While the Court of Appeals was contemplating its decision, the government shifted nominal final responsibility for no-fly decisions form the TSC/FBI/DOJ to the TSA/DHS, to try to bring them back within the scope of the jurisdiction-stripping statute, 49 USC §46110 (the Constitutionality of which is already being challenged in another no-fly case).

It’s unclear, in light of this evasive move by the government, what will happen to Mr. Mokdad’s case on remand. The next step will be discovery, and likely an assertion by the government in response that everything about no-fly decisions is a “state secret”.  Even if Mr. Mokdad eventually puts the FBI on trial, as has happened in only one no-fly case to date, he might win only a Pyrrhic victory, overturning the TSC’s no-fly order but then having to start from scratch, in a different court, with a new challenge to a new TSA no-fly order. Stay tuned.

Court orders TSA to publish “rules” for use of strip-search machines

Friday, October 23rd, 2015

Acting on a petition submitted in July 2015 by the Competitive Enterprise Institute, the Court of Appeals for the D.C. Circuit today ordered the Department of Homeland Security to, within 30 days from today, “submit to the court a schedule for the expeditious issuance of a final rule” governing the TSA’s use of virtual strip search machines or body scanners (what the TSA calls “Advanced Imaging Technology “within a reasonable time”.

The court didn’t say what it would consider “expeditious” or a “reasonable” time for the TSA to finalize rules for its use of body scanners. Nor did the court even consider what such a rule should say, or what it would take for such a rule to be Constitutional.

But as we pointed out in the comments we submitted to the TSA three years ago in this as-yet-incomplete rulemaking, any “final rule” on body scanners promulgated by the TSA would be the first and to date only publicly-disclosed definition of any aspect of what the TSA and DHS think travelers are required to do and/or prohibited from doing in order to satisfy our obligation under Federal law to “submit” to “screening” as a condition of the exercise of our right to air travel by common carrier.

Five years ago, we were one of 35 organizations that petitioned the TSA and DHS to conduct a public “rulemaking” — including notice of the proposal, and opportunity for public comment, consideration of the comments by the agency, and finally the publication of rules for what is and isn’t prohibited and/or required — before deploying or continuing to deploy  as-though-naked body imaging machines in airports.

In  2011, in response to a lawsuit brought by one of the other petitioners, EPIC, the D.C. Circuit court ordered the DHS to conduct such a rulemaking.  The DHS dragged its feet, but under pressure from the Coiurt, finally published proposed (vague and unconstitutional) rules for body scanners in 2013. Basically, the DHS proposed rules that would require travelers to submit to whatever “imaging technology” the TSA chooses to use.

The Identity Project and more than 5000 other organizations and individuals submitted comments to the DHS, the overwhelming majority of which opposed the proposed rules, the TSA’s use of virtual strip-search machines, and the TSA practices of groping travelers including those who “opt out” of the imaging machines.

In response to the latest lawsuit by CEI, the DHS says that it is still working diligently, three years later, to read, analyze, and respond to the public comments and prepare a (possibly revised) final rule.

Today, the Court declined (for now, at least) to set a deadline for the DHS to stop dragging its feet and publish final rules for the body scanners. But the Court ordered the DHS to come up with a timeline of specific dates by which it intends to do so. Once the DHS gives dates certain to the Court, it will risk sanctions for contempt if it fails to meet those deadlines without an explanation satisfactory to the Court.

It’s a small but significant step toward subjecting the TSA, for the first time, to the rule of law.

Fundraiser for “Naked American Hero”

Wednesday, October 14th, 2015

John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon, airport to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices, has finally gotten a chance to defend himself in court after more than three years of legal and administrative water torture.

But he needs your help to mount the strongest possible challenge to the TSA, and he’s launched an online crowdfunding appeal for a portion of his legal costs.

The TSA’s first line of attack on Mr. Brennan was, in accordance with TSA standard operating procedures, to call the local police. And the cops, as is equally standard, arrested Mr. Brennan on the TSA’s say-so, and only after the fact came up with a charge (”indecent exposure”) to justify the arrest.  But there was nothing “indecent” about the way Mr. Brennan had exposed himself, and a Portland judge acquitted Mr. Brennan of all criminal charges on the grounds that Mr. Brennan’s action was an act of politically expressive conduct protected by Oregon law and the First Amendment.

Unable to get Mr. Brennan convicted of any crime, the TSA put Mr. Brennan through an elaborate administrative proceeding that ended with the TSA deciding to fine him $500 for “interfering” with the TSA by taking off his clothes.

Only after the completion of the TSA’s internal administrative process was Mr. Brennan allowed to ask a court to consider whether the TSA’s proposed fine would violate his First Amendment rights. And that challenge has to be made in the first instance in a Federal Circuit Court of Appeals — an expensive and high-risk legal forum only one step below the US Supreme Court.

Mr. Brennan has petitioned the 9th Circuit Court of Appeals to review whether the TSA violated his Constitutional rights by trying to fine him for expressive conduct that was protected by the First Amendment and that didn’t actually interfere with the TSA at all. (On the contrary, his nakedness made it easier for the TSA staff to tell whether Mr. Brennan was carrying weapons or explosives.)

Mr. Brennan is now waiting to find out whether the 9th Circuit will decide his case on the basis of his written submissions and those of the TSA, or will schedule oral argument before making its decision.

Considering the importance of the case, Mr. Brennan’s appeal for $15,000 in partial payment of his legal expenses is modest.  And did we mention that he was unjustly fired for exercising his First Amendment right to protest the TSA, on his own time, in a way that had no impact on his ability to do his job?

John Brennan needs our help to defend our rights.

If you wish you had the balls to strip naked (and keep your cool completely while doing so!) when the TSA tells you you’ve tested positive (falsely) for explosive residues, and they want to put their hands in your pants, here’s your chance to support someone who stood up and stripped down for all of us.

Does CBP have access to domestic Amtrak reservations?

Wednesday, September 23rd, 2015

Documents released to us by Amtrak suggest that since 2012, US Customs and Border Protection (CBP) has had direct access to Amtrak’s reservation system, possibly including access to reservations for Amtrak passengers traveling entirely within the USA.

What do these documents show? And why would an immigration and border patrol agency want access to records of travel by US citizens and other residents within the borders of the US?


California Dreamin’

Tuesday, September 15th, 2015

Stumbling into the embrace of the homeland-security state, California’s state legislature has sent to Governor Jerry Brown a bill which, unless the Governor vetoes it by October 11th, will require that:

[T]he Department [of Motor Vehicles] shall require an applicant for an original driver’s license or identification card to submit satisfactory proof of California residency and that the applicant’s presence in the United States is authorized under federal law.

A.B. 1465 is unnecessary, would create severe problems for many Californians, and would discourage both immigrants to the US and residents of other states from moving to California.

As our friend Jim Harper of the Cato Institute has noted, the intent of  A.B. 1465 appears to be to make it easier for the DHS to claim that California is making “progress” toward compliance with the REAL-ID Act.

Why would Californians want that?

The DHS has repeatedly threatened that if states don’t comply with the REAL-ID Act, including connecting their state drivers license and ID databases to the outsourced REAL-ID “hub” operated by the AAMVA, residents of those states won’t be allowed through Federal checkpoints at airports and at entrances to Federal facilities.

But as we discussed here and here and in this presentation at Cato earlier this year, these threats are hollow.

The TSA allows people to fly without ID every day, despite false notices in airports that ID is required.

As for access to federal buildings, the DHS says that “REAL-ID does not apply to … applying for or receiving Federal benefits, … accessing hospitals and health clinics…, or constitutionally protected activities.”

We’re not sure why else ordinary people would want to access most Federal facilities.


In the wrong place at the wrong time? You might end up on the no-fly list.

Friday, August 28th, 2015

If you exercise your right to travel, will the US government use your past travel as the basis for denying you the right to travel in the future?

Reading between the lines of the redacted public versions of recent filings in one of the ongoing legal challenges to US government no-fly orders, the answer appears to be, “Yes”.

Merely having visited the “wrong” place at the “wrong” time (as subsequently and secretly determined by the precogs who devise the government’s algorithms for predicting future terrorist behavior) can be sufficient to get you put on the no-fly list.

Did you visit Yemen in 2009? Now you might be on the no-fly list — for that reason, and maybe that alone.


Laura Poitras sues DHS et al. for records of her airport detentions and searches

Monday, July 27th, 2015

Documentary filmmaker Laura Poitras, represented by the Electronic Frontier Foundation, has filed a lawsuit under the Freedom of Information Act (FOIA) against the Department of Homeland Security (DHS), the Department of Justice (DHS), and the Office of the Director of National Intelligence (ODNI, which includes the NSA). The winner of an Oscar and a Pulitzer Prize for her independent journalism, Poitras is seeking the release of records kept by the government about her travels, and about why she has been detained for hours at a time, searched, and interrogated at airports whenever she entered or left the US.

We welcome Ms. Poitras’ lawsuit, and we wish her and EFF all success. But we’ve been down this road before, and the results aren’t encouraging:

  • In 2006, Ms. Julia Shearson, Executive Director of the Cleveland Chapter of the Council on American Islamic Relations (CAIR), filed suit pro se against the DHS under the Privacy Act, seeking disclosure of records about why she was detained at gunpoint at the US-Canada border and falsely labeled as a terrorist in government blacklists. Despite years of litigation, Ms. Shearson still hasn’t received any information about why or by whom she was blacklisted as a terrorist, or any confirmation that any of the blacklist entries about her have been corrected.
  • In 2008, Ms. Sophie In ‘t Veld, a Member of the European Parliament from the Netherlands, also represented by EFF, sued the DHS under FOIA for records about her travel from the DHS “Automated Targeting System” (ATS). Although Ms. In ‘t Veld eventually received some excerpts from the DHS dossier about her travels, the pre-crime “risk assessment” scores assigned to her each time she traveled to or from the US were redacted and withheld, as was all information about the algorithms and the information used as the basis for those scores.
  • In 2010, Mr. Edward Hasbrouck, an award-winning travel journalist and a consultant to the Identity Project, represented by our parent organization the First Amendment Project, sued the DHS under both the Privacy Act and FOIA, seeking disclosure of records about himself and his travels from ATS, including risk assessments and rules used for determining them, and information about ATS search and data-mining functionality. Like Ms. In ‘t Veld, Mr. Hasbrouck eventually received some excerpts from the ATS files about his travels, but with all information about risk assessments and risk assessment algorithms redacted and withheld.  While Mr. Hasbrouck’s requests were pending, DHS exempted ATS from all of the access and disclosure accounting requirements of the Privacy Act, and a US District Court judge upheld the retroactive application of those exemptions to unanswered requests that Mr. Hasbrouck had made three years previously.  The judge also upheld the withholding of all information about DHS data-mining capabilities for ATS travel records, without even looking at any of the requested records.
  • In 2011, Mr. David House, a computer programmer associated with the Chelsea Manning (then Bradley Manning) Support Network, represented by the ACLU of Massachusetts, sued the DHS for wrongly searching and seizing Mr. House’s electronic devices and data at the airport when he returned to the US from a vacation abroad.  As part of a settlement of the lawsuit, the government eventually turned over some records from its files about Mr. House and about how the government used its travel surveillance capabilities to target him for his work to publicize Ms. Manning’s case and raise funds for her legal defense.  The records released to Mr. House give a partial picture of how the DHS uses manually-created flags (”lookouts”) to target travelers, but still doesn’t give any information about the algorithms or data inputs used for automated pre-crime profiling and “risk assessment” scores.
  • In 2013, Messrs. C.J. Chivers and Mac William Bishop, two reporters for the New York Times represented by the Times’ in-house legal department, sued the DHS under both FOIA and the Privacy Act for records about why the two journalists were targeted for unusually intrusive searches and interrogations at airports while leaving and returning to the US on reporting assignments for the Times. The Times hasn’t (yet) reported on what, if any, records they have received in response to the lawsuit. We presume that means that the government has yet to disclose any significant new information about its targeting of journalists and their travels. [In response to the lawsuit, DHS did release redacted portions of its TECS and Automated Targeting System (ATS) files about the journalists, including PNR data. But the codes indicating profiling results and reasons for DHS actions as well as some entire pages of ATS records were redacted.]

We’ve been involved as plaintiffs, attorneys, or consultants to plaintiffs and their counsel in all but one of these cases, and we support continued litigation on these issues.

Harassment of journalists and political activists and interference with their right to travel are only part of a bigger picture. Government surveillance and control of travel is a threat to everyone’s rights.  It’s important for the government to disclose what it’s been doing, but it’s equally important to expunge the government’s travel metadata surveillance archives and end the government’s pre-crime profiling and permission-based controls on who it “allows” to travel by common carrier or public right-of-way.

Expert critique of European travel surveillance and profiling plans

Monday, July 6th, 2015

Independent legal experts commissioned by the Council of Europe (COE) to assess proposals for surveillance and profiling of air travellers throughout the European Union have returned a detailed and perceptive critique of the proposed EU directive on government access to, and use of, Passenger Name Record (PNR) data from airline reservations.

Before the revelations by Edward Snowden and other whistleblowers about dragnet surveillance of telephone and Internet communications, few people appreciated the nature of the threat to freedom posed by government acquisition and use of PNR data for dragnet travel surveillance.

The expert report to the Council of Europe marks a breakthrough in the “post-Snowden” understanding of the nature and significance of government demands for PNR data. The report reframes the PNR debate from being an issue of privacy and data protection to being part of a larger debate about suspicionless surveillance and pre-crime profiling. The report also focuses the attention of European citizens, travellers, and policy-makers on the decisions made (in whole or in part) on the basis of PNR data: decisions to subject travellers to search, interrogation, or the total denial of transportation (”no-fly” orders).

The report specifically cites the Kafkaesque case of Dr. Rahinah Ibrahim as an example of the way that decisions made on such a basis tend to evade judicial review or effective redress.

The PNR directive under consideration by the European Union would require each EU member to establish a Passenger Analysis Unit (PAU), if it doesn’t already have one. These PAUs would function as new national surveillance and pre-crime policing agencies. Each PAU would be required to obtain PNR data for all air travellers on flights subject to its jurisdiction, “analyze” this data (i.e. carry out algorithmic pre-crime profiling of air travellers using PNR data as one of its inputs) and share the raw PNR data with its counterparts throughout the EU.

The United Kingdom already has such a Passenger Analysis Unit. It’s not clear which, if any, other EU members already have such units, although staff of the US Department of Homeland Security, based in Germany and elsewhere in Europe, already perform similar functions as “advisors” making “recommendations” to their European counterparts regarding the treatment of European travellers, based on US profiling of PNRs and other travel history and surveillance data.

The COE expert report on Passenger Name Records, Data Mining & Data Protection was commissioned by the COE Directorate General Human Rights and Rule of Law, and prepared by Douwe Korff (Emeritus Professor of International Law at London Metropolitan University, Associate at the Oxford Martin School of the University of Oxford, and currently Visiting Fellow at Yale University in the USA) and Marie Georges (independent expert formerly on the staff of the French national data protection authority, CNIL). The report was presented and discussed at a meeting last week of the “Consultative Committee of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (T-PD)”.

According to the introduction to the report:

Much has been said and written about Passenger Name Records (PNR) in the last decade and a half. When we were asked to write a short report for the Consultative Committee about PNR, “in the wider contexts”, we therefore thought we could confine ourselves to a relatively straightforward overview of the literature and arguments.

However, the task turned out to be more complex than anticipated. In particular, the context has changed as a result of the Snowden revelations. Much of what was said and written about PNR before his exposés had looked at the issues narrowly, as only related to the “identification” of “known or [clearly 'identified'] suspected terrorists” (and perhaps other major international criminals). However, the most recent details of what US and European authorities are doing, or plan to do, with PNR data show that they are part of the global surveillance operations we now know about.

More specifically, it became clear to us that there is a (partly deliberate?) semantic confusion about this “identification”; that the whole surveillance schemes are not only to do with finding previously-identified individuals, but also (and perhaps even mainly) with “mining” the vast amounts of disparate data to create “profiles” that are used to single out from the vast data stores people “identified” as statistically more likely to be (or even to become?) a terrorist (or other serious criminal), or to be “involved” in some way in terrorism or major crime. That is a different kind of “identification” from the previous one, as we discuss in this report.

We show this relatively recent (although predicted) development with reference to the most recent developments in the USA, which we believe provide the model for what is being planned (or perhaps already begun to be implemented) also in Europe. In the USA, PNR data are now expressly permitted to be added to and combined with other data, to create the kinds of profiles just mentioned — and our analysis of Article 4 of the proposed EU PNR Directive shows that, on a close reading, exactly the same will be allowed in the EU if the proposal is adopted….

Yet it is obvious (indeed, even from the information about PNR use that we describe) that these are used not only to “identify” known terrorists or people identified as suspects in the traditional sense, but that these data mountains are also being “mined” to label people as “suspected terrorist” on the basis of profiles and algorithms. We believe that that in fact is the more insidious aspect of the operations.

The report develops these key points about government access to and use of PNR data as a suspicionless dragnet surveillance system and as part of predictive pre-crime policing (outside of normal mechanisms for penal sanctions or for review and redress for police action) in detail.

In addition, the report endorses and highlights the point we have been making for many years that because most PNR data for flights worldwide is hosted by, and communicated through, reservation databases accessible from the USA and worldwide without purpose or geographic access limitations or access logs, the USA and other governments can already obtain and use this data, entirely bypassing putative controls on access to PNRs directly from airlines.

The report specifically directs the attention of European officials to testimony by Edward Hasbrouck of the Identity Project at a European Parliament hearing in 2010 (hearing agenda and witness list, slides, video):

“Europe” must also examine the highly credible claims by Edward Hasbrouck … that the USA has been systematically violating previous agreements, and is still systematically by-passing European data protection law, by accessing the CRSs used in global airline reservation systems hosted in the USA to obtain full PNR data on most flights, including most European flights (including even entirely intra-European ones), outside of any international agreements….

[W]e believe that the supposed safeguards against such further — dangerous — uses of the data are weak and effectively meaningless, both in their own terms and because, as Edward Hasbrouck has shown, the USA can in any case obtain access to essentially all (full) PNRs, through the Computerized Reservation Systems used by all the main airlines, as described next.