Archive for the ‘Freedom To Travel’ Category

DHS proposes ID and search rules for passengers on ocean-going ships

Thursday, December 11th, 2014

In a Notice of Proposed Rulemaking (NPRM) published yesterday in the Federal Register, the Coast Guard has proposed that all so-called “cruise ship” ports be required to carry out airport-style searches (”screening) and check identity credentials of all embarking and disembarking passengers and any other visitors entering the port.

Entities responsible for the operations of large passenger vessels and ports are already required to submit “security” plans to the Coast Guard. Because those current plans are filed in secret, it’s not entirely clear how the  proposed requirements differ from current practices.

According to the NPRM, the Coast Guard’s guidelines for complying with the current regulations, in addition to various other supporting documents, were included in the rulemaking docket. We’ve confirmed with the docket office, however, that the Coast Guard never provided any of the supporting documents for posting on Regulations.gov or over-the-counter availability at the docket office. Presumably, a corrected notice with a new due date for comments will be published in the Federal Register once these documents are made publicly available.

From the summary in the NPRM, it appears that the main proposed changes are new requirements for port operators to:

(a) Screen all persons, baggage, and personal effects for dangerous substances and devices in accordance with the requirements in subpart E of this part;

(b) Check the identification of all persons seeking to enter the facility in accordance with §§ 101.514, 101.515, and 105.255 of this subchapter….

The difference in “screening” practices contemplated by the proposed rules seems to be that they would be more standardized than at present, more like those at airports, and would be required to enforce a Coast Guard “prohibited items” list.  Although the list of items prohibited from aircraft is designated as “Sensitive Security Information”, the Coast Guard has included a tentative list of items proposed to be prohibited from cruise ship cabin baggage in the proposed rules. At the same time, the proposed rules would provide that:

The Prohibited Items List does not contain all possible items that may be prohibited from being brought on a cruise ship by passengers. The Coast Guard and the cruise ship terminal reserve the right to confiscate (and destroy) any articles that in our discretion are considered dangerous or pose a risk to the safety and security of the ship, or our guests, and no compensation will be provided.

Cruise ship passengers are already required to “present personal identification in order to gian entry to a vessel [or port] facility,”  but it isn’t clear how or by whom this is supposed to be enforced. The propsoed rules would create a new obligation for port operators to check passengers’ ID credentials.

As with the definition of “prohibited items”, the definition of acceptable ID credentials is defined for air travel only in secret (SSI) TSA Security Directives and/or Standard Operating Procedures, but is defined publicly in Federal regulations for cruise ships.

The NPRM would leave the definition of acceptable ID unchanged. In addition to government-issued ID credentials, the regulations specifically provide for the acceptance of ID issued under thre authority of, “The individual’s employer, union, or trade association”, as long as it is laminated, includes a current photo, and baears the name of the issuing authority.

By its plain language, this regulation allows any self-employed person to issue their own self-signed personal ID credentials for access to port facilities.

That’s not inappropriate, since many self-employed contractors need to enter ports for business reasons.

In practice, most cruise lines enforce (with or without legal authority) ID requirements more stringent than those in Federal regulations. But we’d be interested in hearing from anyone who has presented self-signed ID credentials, in accordance with these regulations, for purposes of entry to a port or to board a cruise ship.  Some cruise lines alloow guests onboard while ships are in port, such as friends seeing off passengers. So you might be able to experiment without being a passenger yourself.

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Dept. of Justice guidance against profiling exempts borders and “screening”

Wednesday, December 10th, 2014

The US Department of Justice has issued new Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity.

“This Guidance … reaffirms the Federal government’s deep commitment to ensuring that its law enforcement agencies conduct their activities in an unbiased manner” — except at and near borders and coastlines and during any activity labelled “screening”.

According to a footnote, “This Guidance… does not, create any right … enforceable … against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.”

And in a huge exception hidden in the same footnote:

[T]his Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.

Most of the US population lives “near” (within 100 miles of) a border or seacoast, and the ACLU’s “Blog of Rights” has a good analysis of the what’s wrong allowing racial and other profiling at and near US borders.

On a daily basis, however, more people are stopped and subjected to “administrative” searches as part of TSA and other Federal “screening activities” than are stopped at border and near-border checkpoints. These are the searches that are labelled as “screening”, rather than searches, by the TSA and other agencies that don’t want to admit that these searches are subject to the 4th Amendment.

The DOJ guidance is applicable to all Federal law enforcement officers, not just DOJ personnel.  It includes TSA and other DHS officers everywhere except when they are in the vicinity of the border or carrying out “screening activities.” (Most TSA checkpoint staff aren’t law enforcement officers, despite their badges and their job title of “officer”, but some other TSA employees are.)  So this exception isn’t about the DOJ not having jurisdiction over employees or contractors of the DHS or other agencies. The job of the DOJ includes interpreting Federal law for all executive agencies.

The only reason these activities were exempted from the DOJ guidelines is because the DHS argued successfully, to the DOJ and in whatever White House or other inter-agency process led to the issuance of the guidelines, that racial and other profiling was a proper element of its border, near-border, and “screening” activities — not an accident, oversight, or something DHS is trying to reduce or eliminate.

That should be no surprise, since the DHS has made explicit that it now profiles all air travelers as a part of so-called “screening”, and has added questions about profiling critieria such as national origin to its forms for would-be border crossers.  But it’s yet another indication of the belief by the DHS that it is above the law and exempt from the norms of justice that apply to the rest of the government.

European court to rule on legality of air travel surveillance

Tuesday, December 2nd, 2014

The European Parliament has voted to refer a proposed agreement between the European Union and Canada concerning transfers from the EU to Canada of Passenger Name Record (PNR) data about air travelers to the European Court of Justice (ECJ) for the court’s opinion on whether the agreement is consistent with EU treaties and the EU Charter of Fundamental Rights.

This action might easily — and correctly — be dismissed as narrow, technical, evasive of legislators’ responsibility to consider the propriety and legality of their own actions (and to reject proposals outright if they think they would violate treaties or fundamental rights), and of no direct relevance to the US.

But this could, nevertheless, prove to be a significant setback to the efforts of the US “homeland-security” and surveillance establishment, and its allies in Europe and Canada, to globalize the PNR-based system of surveillance and control of travelers that has been put in place in the USA since 9/11.

Canada requires all international airlines to hand over passenger data to the Canadian government, and passengers on flights to, from, within, or overflying Canada are “vetted” against both Canada’s own no-fly list and the US government’s no-fly list.  Canadian data privacy law has been amended twice since 9/11 to allow cross-border transfers of data about airline passengers.  But while those requirements have some domestic support in Canada, they have been enacted somewhat reluctantly by the Canadian Parliament, mainly in order to avoid interference by the US with the large fraction of flights to, from, and within Canada that routinely pass through US airspace.  There has been opposition by some Members of the Canadian Parliament, by the Privacy Commissioner of Canada, and by Canadian NGOs such as the International Civil Liberties Monitoring Group / Coalition pour la surveillance internationale des libertés civiles.

There’s been extensive discussion of the issue of government access to airline PNR data in Europe as well, including by the European Parliament and by NGOs such as EDRi and NoPNR.

In April of 2012, the European Parliament approved — over objections from a  substantial minority of MEPs — an “agreement” to permit transfers of PNR data to the US.  But European opinion on this issue has shifted significantly since between then and this month’s debate on the EU-Canada PNR agreement, as a result of (1) Edward Snowden’s revelations about NSA spying, (2) growing recognition of the parallels between surveillance of communications metadata and surveillance of travel metadata, and (3) the ruling in April of 2014 by the ECJ that an EU directive mandating retention and government access to  communications, internet, and transaction metadata violates European law and fundamental rights.

The ruling by the ECJ has voided the EU data retention directive. The hope is that the EU-Canada PNR agreement will be the second domino to fall, with the EU-USA PNR agreement next in line.

Judge insists on right to review “no-fly” order

Monday, December 1st, 2014

Four years after the US government put Gulet Mohamed on its “no-fly” list, Mr. Mohamed is still waiting for his day in court. But he hasn’t given up, and he’s getting slowly closer to the first judicial review of the merits of a no-fly order.

Here’s some quick background and then an update on his recent legal travails:

Mr. Mohamed, a US citizen of Somali ancestry, was 18 years old and visiting family members in Kuwait when the US put him on the no-fly list.  When his visa expired, he ended up in a Kuwaiti immigration prison, where between sessions of torture he was interrogated by FBI agents who told him (as they have told other US citizens on the US no-fly list) that he would be allowed to go home to the US only if he became an FBI informer.

Eventually Mr. Mohamed was able to contact his family in Virginia, and they found him a lawyer from the Council on American-Islamic Relations. Faced with an order from U.S. District Court Judge  Anthony Trenga to show cause why the court shouldn’t issue an injunction prohibiting the government from interfering with Mr. Mohamed’s right to return to the US, the government let him fly back to the US, and then tried to get the court to dismiss his complaint as “moot”. But that initial attempt to get Mr. Mohamed’s case thrown out of court was unsuccessful, as were a series of motions and appeals by the government during the last four years on the grounds of standing, jurisdiction, and “state secrets”.

(The portion of the court docket freely available through PACER is here, and our previous reports on the case are here.  The most thorough coverage of recent legal developments has been by Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy.)

The last time we reported on Mohamed v. Holder, in September of this year, the government was still trying to persuade Judge Trenga to reverse his prior rulings and dismiss Mr. Mohamed’s case on the ground’s that, “There is no fundamental right to international travel.” The government was also asking Judge Trenga to reconsider his order that the government must allow him to review the allegedly secret evidence in camera before he decides whether it is, in fact, properly designated as “state secrets” and if so, whether he can decide the case without relying on any legitimately “secret” evidence.

In October, the government handed over the allegedly “secret” evidence to Judge Trenga (but not to Mr. Mohamed or his lawyers), while continuing to argue that it shouldn’t be required to do so.  After in camera review of the allegedly secret documents, Judge Trenga ruled that the case could go forward without the need to decide whether they were actually state secrets: “None of the documents are so related to plaintiff’s procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents…. The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability.”

Faced with the imminent prospect of a decision on the merits of Mr. Mohamed’s claim that he was denied due process of law when the government secretly ordered airlines not to transport him, the government asked for a “do-over”: a three-month postponement of the court case and a “remand” to the FBI to give the government time to develop a revised set of extrajudicial administrative “no-fly” decision-making procedures, and to subject Mr. Mohamed to this “kangaroo court version 2.0.”  This is essentially the same request that the government has made in another no-fly case, Latif v. Holder, in which U.S. District Judge Anna Brown has already found that the plaintiffs’ rights were violated.

According to Mr. Mohamed’s response, the government’s request for a do-over is, in effect, yet another attack on the authority of the court to order redress for violations of the Constitution by Federal agencies:

Defendants’ assertion that “the only appropriate result” of a ruling in Plaintiffs’ favor on their substantive claims would be a remand order to “apply new procedures in reaching a new substantive decision,” … misconstrues the nature of Plaintiffs’ claims and implies that the only remedy for a substantive due process violation is further agency proceedings. That is not the case. If, as Plaintiffs’ request, the Court finds that Defendants violated Plaintiffs’ substantive due process rights by placing them on the No Fly List, the Court plainly has the authority to order Plaintiffs to be removed from the List.

On November 20th, Judge Trenga denied the government’s motion for postponement and “remand”. That leaves Mr. Mohamed’s claims that his rights were violated on schedule for briefing, argument, and decision on their merits by Judge Trenga.

We look forward to seeing Mr. Mohamed finally, after four years of government obstruction and foot-dragging, receive his day in court, perhaps some time in early 2015.

DHS adds discrimination by national origin to pre-crime profiling of US visitors

Monday, November 3rd, 2014

Secretary of Homeland Security Jeh Johnson announced this morning that, with immediate effect and with no advance notice or warning, foreign citizens “seeking to travel to the United States from countries in our Visa Waiver Program (VWP) will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA).”

The additional questions which have already been added to the newly “Enhanced” ESTA application include:

  • Other Names/Aliases
  • Other Citizenships
  • Parents name(s)
  • National Identification Number (if applicable)
  • U.S. Contact information (email, phone, points of contact)
  • Employment information (if applicable)
  • City of Birth

As discussed in our comments to DHS when it was first proposed, the ESTA is a a travel permission and exit-permit system of dubious legality. Prior application, payment of the ESTA fee (by credit card only, so that CBP has a credit card number on file to link the travel history of each ESTA applicant to a financial history), and receipt of ESTA approval is required by the US before boarding any flight departing from any other country in the world, with the intention of eventually traveling to the USA.

ESTA approval is not a guarantee of admission to the US, and the US has consistently and explicitly claimed that ESTA is solely a travel-permission scheme, not a visa requirement.  (If it were deemed a visa requirement, US citizens would likely be subjected to reciprocal visa requirements to visit VWP countries.)  So the sole purpose of adding questions to the ESTA application form is to add them to the inputs to the pre-crime profiling process that determines whether to allow an applicant to travel to the US for the purpose of applying, on arrival at a US port of entry, for visa-free admission to the US as a visitor.

In other words, the only reason to ask citizens of VWP countries about their other or prior citizenship(s), if any, is for DHS to discriminate between citizens of the same WVP country, in making ESTA permission-to-travel decisions, on the basis of those VWP-country citizens’ prior national origins.

This is a disgraceful act of overt US government bigotry, and all citizens of both the USA and VWP countries should be outraged.  Why should the US think it can treat citizens of, say, the UK or Germany differently on the basis of their national origin, as evidenced by what other countries’ passports they also hold or previously held? Such blatant discrimination against  US citizens on the basis of their national origin would be illegal on its face, although it has been standard illegal operating procedure for the DHS.

DHS claims in its FAQ about today’s ESTA “enhancements” that it can mandate provision of this additional information through a Paperwork Reduction Act (PRA) notice of information collection, without needing to promulgate any new or revised regulations:

Why is DHS doing this under a Paperwork Reduction Act and not a regulation?

The relevant regulatory provision does not list the specific data elements that VWP travelers must provide in order to obtain an ESTA. Instead, the regulation states that “ESTA will collect such information as the Secretary [of Homeland Security] deems necessary to issue a travel authorization, as reflected by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W).” Since there are no data elements listed in the regulation, there is no need to update the regulation. The revisions to the ESTA data elements fall under the Paperwork Reduction Act since DHS is amending an information collection (Form I-94W) and not amending a regulation.

The problem with this is that DHS has already added the new questions to the ESTA form, but doesn’t appear to have gotten the necessary approval from the Office of Management and Budget (OMB) for their inclusion.

DHS has a long history of ignoring the PRA and failing to get its forms approved by OMB. The PRA notice in the online ESTA application form refers to OMB approval control number 1651-0111, which was issued September 17, 2014. But the Federal Register notices and other documents submitted to OMB to support that approval don’t appear to have included the new questions added to the form today.

Amtrak admits passenger profiling but not DHS collaboration

Thursday, October 30th, 2014

(Excerpt from DHS "TECS" travel history log showing API data extracted from the reservation for a passenger on Amtrak (carrier code 2V) train 69 from Penn Station, New York (NYP) to Montreal (MTR). "QYRSLT" redacted by DHS (at left on second line from bottom ) is result of pre-crime risk score query to DHS profiling system. Click on image for larger version.)

Amtrak has admitted to profiling its passengers, while improperly withholding any mention of its transmission of railroad passenger reservation data to DHS for use in profiling and other activities.

In response to a Freedom Of Information Act (FOIA) request from the ACLU, Amtrak has disclosed profiling criteria that Amtrak staff are instructed to use as the basis for reporting “suspicious” passengers to law enforcement agencies.  As the ACLU points out in an excellent analysis in its “Blog of Rights”, pretty much everyone fits, or can be deemed to fit, this profile of conduct defined as “indicative of criminal activity”.

It’s suspicious if you are unusually nervous — or if you are unusually calm. It’s suspicious if you are positioned ahead of other passengers disembarking from a train — or if you are positioned behind them.

Normal, legal activities are defined as suspicious: paying for tickets in cash (Amtrak and Greyhound are the common carriers of last resort for the lawfully undocumented and unbanked), carrying little or no luggage (how many business day-trippers on the Acela Express are carrying lots of luggage?), purchasing tickets at the last minute (also the norm for short-haul business travelers), looking around while making telephone calls (wisely keeping an eye out for pickpockets and snatch thieves, as Amtrak police and notices in stations advise passengers to do), and so forth.

“Suspicion” based on this everyone-encompassing profile is used to justify interrogations and searches of Amtrak passengers, primarily for drugs but also for general law-enforcement fishing expeditions.  Suspicion-generation is a profit center for Amtrak and its police partners: The documents obtained by the ACLU from Amtrak include agreements with state and local police for “equitable sharing of forfeited assets” seized from passengers or other individuals as a result of such searches.

The ACLU requested, “procedures, practices, agreements, and memoranda governing the sharing of passenger data with entities other than Amtrak, including but not limited to… other… federal… law enforcement agencies;” and, “Policies, procedures, practices, agreements, and memoranda regarding whether and how passenger data is shared with any law enforcement agency.”

But Amtrak’s response included no records whatsoever concerning the provision of passenger data obtained from Amtrak reservations to DHS or any other government agency.

We know that DHS obtains information from Amtrak about all passengers on all international Amtrak trains.  DHS has disclosed this in public reports, and we have confirmed it from DHS responses to FOIA and Privacy Act requests.  The example at the top of this article is of a DHS “TECS” travel history log showing Advance Passenger Information (API) data extracted from a record in Amtrak’s ARROW computerized reservation system for a passenger traveling on Amtrak (carrier code 2V) train number 69 in the outbound direction from the US (”O”) from Penn Station, New York (station code NYP) to Montreal (MTR). The entry in the “QYRSLT” column redacted by DHS is the result for this passenger and trip of the pre-crime risk score query to the DHS profiling system.

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“Travelers, say bon voyage to privacy”

Friday, October 17th, 2014

We talked at length with Watchdog investigative reporter Dave Lieber for his column in today’s Dallas Morning News: Travelers, say bon voyage to privacy.

Lieber hits the nail on the head by calling out how few travelers realize that the U.S. government is keeping a permanent file of complete mirror copies of their reservations:

Did you know that when you buy an airline ticket and make other travel reservations, the government keeps a record of the details?

If airlines don’t comply, they can’t fly in the U.S., explains Ed Hasbrouck, a privacy expert with the Identity Project who has studied the records for years and is considered the nation’s top expert.

Before each trip, the system creates a travel score for you…. Before an airline can issue you a boarding pass, the system must approve your passage, Hasbrouck explains….

The idea behind extensive use of PNRs [Passenger Name Records], he says, is not necessarily to watch known suspects but to find new ones.

Want to appeal? “It’s a secret administrative process based on the score you don’t know, based on files you haven’t seen,” Hasbrouck says….

Hasbrouck says: “You can’t keep files on everybody in case you want some dirt on them. That’s what J. Edgar Hoover did. We’ve been through this before in this country. Think of all the ways those files targeted innocent people and were misused. People’s lives were destroyed on the basis of unfounded allegations.

“Do we want to go back to that?”

For those whose curiosity has been piqued, here are links to more about this issue:

The FAQ, What’s in a Passenger Name Record (PNR)?, includes links to examples of PNR data, templates to request your travel history and PNR files from DHS, and information about our lawsuit against DHS to try to find out what files it has about us and how it has used and “shared” them.

Requirements for airlines to send passenger data to the government, and receive individualized (per-passenger, per-flight) permission from the government before issuing a boarding pass, are contained in two separate sets of DHS regulations: Secure Flight for domestic flights and the Advance Passenger Information System (APIS) for international flights. (More about the APIS regulations.)

The system of “pre-crime” profiling and assigning scores to all air travelers was discussed in recent government audit reports and at a Congressional hearing last month, and in a front-page story in the New York Times, in which we were quoted, last year.

There’s a good overview of the government’s travel surveillance and control process in a talk by Edward Hasbrouck of the Identity Project that was broadcast on C-SPAN</a> last year. The slides from that talk include diagrams of the system and examples of PNR data and other government files about travelers.

“Jetsetting Terrorist” confirms DHS use of NSA intercepts

Thursday, October 16th, 2014

We’ve been reading the Jetsetting Terrorist blog (highlighted last week by Boing Boing) to see what we can learn from the anonymous author’s chronicles of his experiences traveling on commercial airlines, within the U.S. and internationally, after being convicted of a nonviolent misdemeanor criminal offense the U.S. has since defined as “terrorism”:

Since 2009, I’ve been on the TSA’s “terrorist watch list” [because] years ago I was convicted of an activist-related property crime.  The government deemed it “terrorism.” My “weapon of mass destruction” was a small tool purchased at a hardware store for under $30. My crime resulted in a loss of profits to several businesses. No one was injured. And it wasn’t even a felony.

Some of what the Jetsetting Terrorist describes is unsurprising, such as the inconsistency and unpredictable of the TSA’s “There are no rules” operational practices (a/k/a, “We make up the rules as we go along”, or “The rules are whatever we say they are today”). Or the confusion of TSA and airport checkpoint contractor staff, accustomed to carrying out crude profiling on the basis of race, religion, and national origin, when they receive instructions to treat a white-skinned hipster techie U.S. native like the Jetsetting Terrorist as a second-class citizen.  We’ve heard many accounts like these from other travelers about the TSA’s real-world Standard Operating Procedures, as distinct from those contained in the secret written manuals for TSA staff and contractors.

Beyond that, several things stand out from our reading of the Jetsetting Terrorist blog:

  1. Anyone could be subjected to the same treatment as the “Jetsetting Terrorist”. Millions of people in the U.S. have been convicted, at some point in their lives, of some nonviolent property crime or other nonviolent misdemeanor.  There are no limits to what crimes the government can retroactively define as “terrorism”, and courts have enforced few constraints on what additional burdens, restrictions, and prohibitions can retroactively be imposed — by law or by extrajudicial administrative fiat — on anyone who has ever in their life been convicted of any crime.  Once someone has a criminal record, they are considered to “deserve” whatever they later get when additional administrative infirmities are later piled on to their long-ago-completed judicially-imposed sentence.  And it’s not just people convicted of crimes later defined as “terrorism”. Where will it end? “First they came for the terrorists.  Then they came for the drug dealers…. Then they came for you and me.”
  2. So-called “watchlists” are really blacklists. The word “watchlist” is an Orwellian euphemism which the government uses to minimize its infringement of the rights of people on these lists. Properly speaking, a “watchlist” implies a list used to target surveillance, and the consequences of being on a “watchlist” are limited to being watched, i.e. surveilled. A bad thing, but very difference from the consequences of being on a blacklist, on the basis of which the government actively interferes with one’s movements, lays hands on one’s body (calling genital groping by another minimizing euphemism, “patdown”), and rips open one’s luggage to paw through one’s possessions.
  3. DHS pre-crime profiling is not binary, and can lead to many levels of consequences. Most travelers  naively assume that unless you are “on the no-fly list”, there are only three levels of pre-crime “risk scores” and consequent levels of intrusiveness of DHS action against you at airports: the TSA Pre-Check line, the “normal” (in the post-9/11 sense of “normal”) screening line, and the “secondary screening” line for those “selectees” who get “SSSS” printed on their boarding passes. But as the experiences reported by the Jetsetting Terrorist remind us, not all “selecteees” are selected for like treatment.  As was made public in a government filing in the first no-fly trial last year, each entry on the “selectee” list is assigned a numeric “handling code”. The range of handling codes and their meanings remains secret, but while some “selectees” merely get the full monty (”enhanced patdown”), others like the Jetsetting Terrorist are prevented from proceeding through TSA checkpoints until the checkpoint staff phone the FBI to report their itinerary and get permission for them to travel. In the case of the Jetsetting Terrorist, everyone on the same plane is subjected to an additional guilt-by-proximity ID document check and luggage inspection at the gate, at the entrance to the jetway.
  4. DHS components are among the “customers” for NSA electronic surveillance. On a recent international trip, the Jetsetting Terrorist spent time, while he was abroad, with a friend from the US: “My friend went back one day before me. We didn’t arrive together. We didn’t leave together. We don’t live anywhere near each other. Separate itineraries, everything. But a few hours before I was to leave for the airport, I get an email. Customs got her. Details were sparse, but she said they’d detained her for over an hour, asked her a thousand questions, took her computer in the back room, and asked her about me. A lot about me.  What’s most interesting: Somehow, they knew we were traveling together. This could not be gleaned from airline records. In fact, it could only have been learned of from electronic surveillance.”  Assuming these facts are accurately reported, we agree. (The Jetsetting Terrorist blog is anonymous and unverifiable. But we have no reason to doubt its legitimacy.)  This isn’t the first report of DHS employees questioning a US citizen about information that could only have been obtained from surveillance of electronic communications: that’s part of the basis for an ongoing  lawsuit in federal court in Indiana.  We continue to believe, as we said when  we reported on that case earlier this year, that it’s more likely that the DHS is one of, and possibly the most frequent, “customer” and user of information obtained from the illegal NSA electronic communications dragnet than that the DHS is running its own parallel illegal surveillance scheme on the same scale.

The Jetsetting Terrorist is looking for help finding a way to film and/or record his interactions with the TSA, in spite of being separate from his belongings while he is being searched and interrogated.  Since he plans to distribute these recordings publicly, they would be protected from search (as would his other work product documents and data) by the federal Privacy Protection Act, 42 USC 2000aa.  Most journalists aren’t aware of this law.  But it has important implications at airports, and protects anyone with an intent to distribute information publicly — not just full-time professional journalists.

U.S. citizen sues the State Department for a passport

Tuesday, October 14th, 2014

A Yemeni-American U.S. citizen sued the U.S. State Department today, asking a federal court in Michigan, where he lives, to order the State Department to issue him a U.S. passport.

Ahmed Nagi was naturalized as a U.S. citizen twenty years ago.  In May of 2013, after his previous U.S. passport expired, Mr. Nagi applied to renew his passport. He went in person to the State Department’s Passport Office in Detroit, and paid the $60 extra fee for “expedited” passport renewal service.

Normally, a U.S. citizen who applies in person at a Passport Office on an expedited basis — especially if they have been issued a U.S. passport previously, and are applying for a renewal rather than a first-time passport — can pick up their new passport within a couple of days, even the same day if they have evidence of imminent planned international travel.

Mr. Nagi, however, is still waiting for a new passport, sixteen months after he submitted his application. In response to repeated inquiries, Mr. Nasgi and his lawyers have been told only that his passport application is still “pending”. The State Department has used the impossible-to-complete “long form” as a pretext to hold up processing of some disfavored passport applications, but hasn’t asked Mr. Nagi for any additional information or told him anything about why his application hasn’t been approved.

In the meantime, Mr. Nagi is legally prohibited from leaving the USA without a passport.

The U.S. government appears to have decided that there is no legitimate reason for any U.S. citizen to visit Yemen, whether as a tourist or to visit friends or relatives. In a blatant case of discrimination on the basis of national origin, all U.S. citizens of Yemeni birth or ancestry are being treated as presumptively terrorists and subject to de facto travel restrictions, even if they haven’t individually been placed on any U.S. government blacklists.  Hundreds of U.S. citizens are currently stranded in Yemen, unable to leave Yemen or return to the U.S., because the U.S. Embassy in Sana’a has been systematically seizing the passports of any Yemeni-Americans who go to the embassy to request consular services as U.S. citizens.

According to one of Mr. Nagi’s attorneys, Lena Masri of the Council on American-Islamic Relations, “The federal government has routinely delayed the processing of passport applications for Muslims of Yemeni origin for an indefinite period of time.”  By keeping passport applicants in indefinite limbo, the State Department hopes to exercise a “pocket veto” of passport issuance and international travel, without issuing formal decisions denying passport applications that would be subject to judicial review.  “This lawsuit will challenge the federal government’s unchecked practice of denying these individuals their constitutionally-protected right to travel without affording them their right to due process of law.”

11th Circuit Court of Appeals panel kowtows to TSA

Thursday, September 25th, 2014

By a vote of two judges to one, a panel of the 11th Circuit Court of Appeals has declined to consider a petition by Jonathan Corbett for review of the TSA’s use of virtual strip search machines and “enhanced patdowns” (genital groping), and has opined that if the court were to consider Mr. Corbett’s petition, it would deny it.

If that sounds irregular, it should. Normally, once a court has found a reason it doesn’t need to decide a case on its “merits”, but can resolve it on procedural or jurisdictional grounds, judicial economy dictates that the court won’t issue any opinion on issues it doesn’t have to reach.

In this case, the two judges in the panel majority went out of their way to erect as many barriers as possible to future court challenges to TSA actions, in contravention of normal principles of appellate adjudication and over a cogent dissent, on exactly these grounds, by the third member of the panel.

The ruling on the “merits” of the petition, while bad, is not unprecedented: Every other petition for Court of Appeals review of the TSA’s virtual strip-search practices has already been dismissed.  That’s largely because Congress has directed the Courts of Appeals to limit their “review” of TSA orders to the “administrative record” supporting the TSA’s actions, as provided to the court by the TSA itself, and to treat any “findings of fact” by the TSA, “if supported by substantial evidence” (and even if controverted by more persuasive evidence) as “conclusive”.

Conclusory declarations by TSA employees, not subject to cross-examination and allegedly based on secrets not in the record (”if you knew the secrets we know but can’t reveal, you’d agree with us”) are almost always deemed sufficient to constitute “substantial” evidence for this purpose.

In other words, the TSA gets to tell the Court of Appeals which evidence to consider, and what factual conclusion to draw from it.  Given that the TSA is allowed to make up the facts to suit its own interests, and submit them to the court in secret, it’s scarcely surprising that the decisions made by the Courts of Appeal on the basis of those “conclusive” factual claims by the TSA are almost invariably in the TSA’s favor.

If you think that’s unjust, ask Congress to change this law and support those who argue to the courts, especially the Supreme Court, that this law is unconstitutional.

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