Archive for the ‘Secret Law’ Category

US Supreme Court asked to clarify limits of TSA searches

Friday, December 5th, 2014

Are the Transportation Security Administration’s (TSA) administrative checkpoint searches limited to those “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives” as required by the Ninth Circuit, or may the TSA conduct more extensive searches as allowed in this case by the Eleventh Circuit?

This is the first and perhaps most significant of the questions presented to the US Supreme Court by a petition for certiorari in the case of Jonathan Corbett v. TSA, et al. The petition as filed last month was rejected on trivial procedural grounds, but is being resubmitted and should appear shortly on the Supreme Court’s voluminous docket of pending petitions.

This is an important case because almost the only limit on TSA searches which the courts have recognized has been the requirement that they be limited to searches for weapons and explosives, and that TSA checkpoints not be used as pretexts for general law enforcement dragnets.

In press releases and blog posts, the TSA has claimed that it has broader authority to detain, search, and interrogate travelers about matters unrelated to weapons, explosives, or transportation security. In practice, TSA checkpoint staff and contractors routinely rifle through wallets, read and copy books and papers, and search for any evidence that might create a suspicion of any criminality. But even while upholding the legality of these searches in specific cases, courts have continued to uphold, at least in theory and rhetoric, the principle that searches at TSA checkpoints are “limited”.

So far as we can tell, the decision by the 11th Circuit in Corbett v. TSA is the first appellate opinion explicitly to approve the use of TSA checkpoints for a broader general (warrentless and suspicionless) search of all travelers for evidence of any sort of potential crime.

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Dude, where’s my FOIA?

Thursday, December 4th, 2014

We’ve heard from numerous people over the years who have requested the files about their travel being kept by US Customs and Border Protection (CBP), or made other Freedom of Information Act requests to DHS component agencies, but who have never gotten any response. Letters to and from the DHS often get lost in “security screening” or wind up in the dead letter office.

In response to a lawsuit we brought, DHS and CBP claimed that they had no record at all of one of our FOIA and Privacy Act appeals, and no record of the existence of the person who had signed the receipt for our certified letter.

And we’ve seen letters sent in response to FOIA requests made years previously, asking requesters to confirm that they still wanted the information they had requested — as though government agencies could presume that theIr own delays had caused requesters to lose interest or abandon their requests.

Unfortunately, we aren’t alone: These turn out to be standard FOIA operating procedures for the DHS and other agencies.

A recent joint letter from more than a dozen organizations that work to promote government transparency points out that it is illegal to “close” a FOIA request because of the passage of time (i.e. the agency’s own delay in responding) or because a requester doesn’t “reconfirm” that they want they records they requested. The signers of the letter report that:

FOIA requesters have reported frequently encountering improper administrative closures across a variety of federal agencies. We are including evidence of several examples…. One particularly troubling instance of administrative closure arose from a request that the Electronic Privacy Information Center (“EPIC”) made to the TSA….

Other FOIA requesters, including some of the undersigned requesters, have received similar letters. We have attached letters by the DHS, DOJ, EPA, and State…. In meetings with transparency advocates, the Department of Justice’s Office of Information has publicly stated that it supports this practice.

The signers of the joint letter request an investigation of this illegal practice by the Office of Government Information Services (OGIS), which has been assigned with oversight responsibility as FOIA ombudsman.

A recent report by auditors from  the Government Accountability Office reveals more malfeasance:

According to CBP officials… First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system.

According to the GAO report, “The officials stated that CBP subsequently cleared all of these requests.” But even if that’s true, who knows how many tens of thousands of additional FOIA requests may have been lost or “improperly closed”.

If you made a FOIA request to DHS, CBP, or any other DHS component, but haven’t received a response, you should ask the agency to which you submitted your request to inform you of the status of your request. By law, each agency must have in place a telephone or online system to provide status information on all pending FOIA requests, including an estimated date for completion of agency action on each request. If they don’t, you can complain to OGIS (for free and without a lawyer), or take the agency to court.

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.

“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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GAO audit confirms TSA shift to pre-crime profiling of all air travelers

Monday, September 22nd, 2014

A Congressional hearing last week on the so-called “Secure Flight” system for “screening” domestic air travelers confirmed that the TSA has completed a shift from blacklist and whitelist matching to a comprehensive real-time pre-crime profiling system that assigns each air traveler a  “risk assessment” score on the four-step scale we’ve previously described and which is illustrated above in the latest GAO report.

Redacted versions of three audit reports on Secure Flight by the Government Accountability Office (1, 2, 3) were made public in conjunction with GAO testimony at the hearing.  According to one of those reports, “Secure Flight” started out as a blacklist and whitelist matching system:

Since implementation began in January 2009, the Secure Flight system has identified high-risk passengers by matching SFPD [against the No Fly List and the Selectee List, subsets of the Terrorist Screening Database (TSDB), the U.S. government’s consolidated watchlist of known or suspected terrorists maintained by the Terrorist Screening Center, a multiagency organization administered by the Federal Bureau of Investigation (FBI)…. To carry out this matching, the Secure Flight system conducts automated matching of passenger and watchlist data to identify a pool of passengers who are potential matches to the No Fly and Selectee Lists. Next, the system compares all potential matches against the TSA Cleared List, a list of individuals who have applied to, and been cleared through, the DHS redress process.

But that’s not how it works any more. According to the same GAO report:

Since January 2009, the Secure Flight program has changed from one that identifies high-risk passengers by matching them against the No Fly and Selectee Lists to one that assigns passengers a risk category: high risk, low risk, or unknown risk. Specifically, Secure Flight now identifies passengers as high risk if they are matched to watchlists of known or suspected terrorists or other lists developed using certain high-risk criteria, as low risk if they are deemed eligible for expedited screening through TSA Pre-Check — a 2011 initiative to preapprove passengers for expedited screening — or through the application of low-risk rules, and as unknown risk if they do not fall within the other two risk categories. To separate passengers into these risk categories, TSA utilizes lists in addition to the No Fly and Selectee Lists, and TSA has adapted the Secure Flight system to perform risk assessments, a new system functionality that is distinct from both watchlist matching and matching against lists of known travelers.

We’ve said from the start that Secure Flight would not be limited to “list matching” and would assign risk scores to all travelers. Now that’s been confirmed by GAO auditors.  When the TSA talks about “risk-based screening”, what they mean is “pre-crime profiling” of all air travelers — part of a larger pattern of “predictive” pre-crime policing through surveillance and profiling.

The diagram at the top of this article shows what the GAO says the current “Secure Flight” profiling process, and its consequences, look like. Note the references to “risk assessments” and “rules-based lists”, although in fact these are real-time scoring systems and there are no publicly-disclosed “rules”.

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EFF: “Secret Law is Not Law”

Friday, September 19th, 2014

Our friend Cindy Cohn, legal director for the Electronic Frontier Foundation, has an important article this week on a theme that’s long been central to our work: “Secret Law is Not Law“:

One of the many ways that the NSA’s mass surveillance violates the human rights of both Americans and others around the world is that it teeters on a huge pile of secret law.

Let’s be clear. Under international human rights law, secret “law” doesn’t even qualify as “law” at all….

The Human Rights Committee confirms that law is only law if people know it exists and can act based on that knowledge.  Article 19 of the ICCPR, protecting the freedoms of opinion and expression, requires that “to be characterized as a “law,” [a law] must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public….”

This is a basic and old legal requirement: it can be found in all of the founding human rights documents….  It avoids the Kafkaesque situations in which people, like Joseph K in The Trial and the thousands of people on the secret No Fly Lists, cannot figure out what they did that resulted in government scrutiny, much less clear their names….

Just how far has the US strayed from this basic principle in its mass surveillance practices? Very far.

Read the whole article here.

The Constitutionality of secret law is precisely the issue the Supreme Court declined to consider in 2006 in Gilmore v. Gonzales. EFF’s longstanding opposition to secret law is clearly visible in the brief submitted by EFF and other friends of the court in support of the petition for certiorari in that case.

EFF’s latest commentary on this issue is part of a group of articles by a coalition human rights organizations around the world on the first anniversary of the issuance of a joint statement of principles on the application of international human rights law to mass surveillance.  EFF and other members of this coalition joined us in Geneva this March at the UN Human Rights Committee’s review of US (non)compliance with the ICCPR.

The coalition’s principles of necessity and proportionality refer explicitly to communications surveillance. But as we’ve pointed out before, the same principles apply to metadata about the movement of our bodies (i.e. travel metadata) as to metadata about the movement of our messages.  And as the comments from Ms. Cohn of EFF about the No-Fly List quoted above make clear, the same principles also apply to government decisions based, in whole or in part, on the fruits of that metadata surveillance.

We agree wholeheartedly with EFF: Secret law is not “law”.

Congress investigates TSA treatment of whistleblowers

Monday, September 8th, 2014

Former TSA “Air Marshall” Robert MacLean will be one of the witnesses testifying at a hearing tomorrow before the House Oversight Committee, “Examining the Administration’s Treatment of Whistleblowers“.

As we’ve previously reported, Mr. Maclean is the respondent in a case to be argued this term before the US Supreme Court, DHS v. MacLean.  Mr. Maclean was fired for disclosing “secret” but unclassified “Sensitive Security Information” (SSI) that was only designated as SSI by the TSA three years after Mr. Maclean shared it with the DHS Office of the Inspector General,  members of Congress, and journalists.

[CORRECTION: We apologize for incorrectly referring to Mr. MacLean as the "petitioner" in the original version of this article, and thank Mr. MacLean for the comment correcting our error. The Court of Appeals ruled in Mr. MacLean's favor, and it was the government that petitioned the Supreme Court to review that decision .]

DHS regulations prohibit the designation of information as SSI to conceal official misconduct, but that appears to have been a common practice, and to be ongoing (although under challenge) in other cases.

The House Oversight Committee has sometimes been accused of partisan witch-hunting. That doesn’t appear to be the case with this issue, however. A recent bipartisan report by the committee staff — itself the result of whistleblowing by the former head of the TSA’s Office of SSI – focuses on the political use of SSI designation decisions, in Mr. Maclean’s case in particular, to block the release of information that might embarrass the TSA, regardless of whether it fits the definition SSI in the law and regulations.