Archive for the ‘Secure Flight’ Category

US government’s witchhunting manual made public

Monday, July 28th, 2014

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

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

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

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

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

(more…)

UN Human Rights Committee review of US implementation of the ICCPR: Day 1

Thursday, March 13th, 2014

Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.

The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.

With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the  the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.

Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”.  Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.

The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.

The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination  about its human rights record.

For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.

But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end. (more…)

Public questioning of US government on human rights

Thursday, March 13th, 2014

Today and tomorrow in Geneva (early Thursday and  Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).

Here’s the schedule of the webcast public questioning:

  • Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
  • Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
  • tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)

This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.

We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:

Lessons from the first “no-fly” trial

Friday, February 14th, 2014

Information about what happened in Ibrahim v. DHS - the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret.  Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part.  Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings.  We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.”  Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary.  In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file.  Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight.  If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The  government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended.  At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.”  That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring.  In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of  posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

More details of Judge Alsup’s decision in “no-fly” case

Thursday, February 6th, 2014

More details of Judge William Alsup’s decision in Ibrahim v. DHS, the first case challenging the US government’s “no-fly” list to go to trial, were made public today in the form of a redacted version of Judge Alsup’s findings, conclusions, and order.

In deference to the government’s insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual Public Notice and Summary.

Judge Alsup ordered the parties to try to agree on a redacted version of his opinion that both would allow to be made public. But after government’s lawyers declined to tell Dr. Ibrahim’s lawyers what, if any, portions of Judge Alsup’s opinion they believed had to be kept secret, or why, Judge Alsup ordered the government to file a minimally redacted version of the judge’s opinion by noon today.

The version of Judge Alsup’s order that the government has now made public still contains substantial redactions.  Some are surreal, such as the government’s belief that the public cannot be allowed to know Judge Alsup’s reasons for describing the treatment imposed on Dr. Ibrahim as “surreal”. Others are more substantive, such as the redaction of all of Judge Alsup’s finding concerning Dr. Ibrahim’s US-citizen daughter, who was prevented from traveling to the US to attend and testify at her mother’s trial.

But the government has, reluctantly, allowed us to know much more about why Dr. Ibrahim was treated so badly and what remedies Judge Alsup has ordered:

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong….

FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose. To be clear, no agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain lists in 2004, for the form instructions were not properly followed. The designations in the November 2004 form should be disregarded for all purposes…. A deadline will be set for defendants to file declarations under oath attesting to compliance.

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake. For example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her daughter was not allowed to fly to the United States even to attend this trial despite the fact that her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the Court.

With respect to the government’s TRIP program, which does provide a measure of post-deprivation relief, this order holds that it is inadequate, at least on this record.

Judge Alsup castigated the government for promising explicitly not to rely on alleged “state secrets” in its defense, and then trying to do so during and after the trial.

In the end, Judge Alsup found it unnecessary to rely on any “secrets” because the government conceded that Dr. Ibrahim did not and does not pose any threat and that her name had been placed on the “no-fly” list by “mistake”.  While Judge Alsup was able to find that Dr. Ibrahim was denied due process of law, his discussion of what due process might require if the government claimed (perhaps on the basis of “secret” information) that a “no-fly” listing was justified was consigned to a footnote:

In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources.

We think that the proper basis for inclusion of a name on a no-fly list is a no-fly injunction or restraining order, issued by a judge, with its attendant due process. No other no-fly case has yet made it to trial, but sooner or later the courts will have to address the hypothetical situation described by Judge Alsup in this  footnote.

The government has not yet given notice of its intent to appeal Judge Alsup’s decision. (When, as in this case, one of the parties to the case is a federal agency, the deadline for filing a notice of appeal is 60 days after the judgement or order appealed. Judge Alsup’s decision was issued on January 14th, so the government has until March 14th to decide whether to appeal.) Unless the government appeals, the decision will become final and will be made public in its entirety, unredacted, on April 15, 2014.

TSA thinks Congress can override international treaties

Monday, January 13th, 2014

Dismissing formal objections filed by the Identity Project and other organizations, the TSA has decided to go ahead with its “Pre-Check” (Pre-Crime) scheme to collect and use even more comprehensive secret dossiers about travelers as part of the inputs to the TSA “black box” that decides whether you are allowed to fly, and if so, how intrusively you and your luggage will be searched as a condition of exercising your right to travel.

In the TSA’s initial proposal and request for comments, it stated the outcome of its “public consultation” as a fait accompli. The “notice and comment” process was a sham, and  the TSA brushed off our objections.

Most of the analysis accompanying the “final rule” exempting the new data elements in TSA files about travelers from the Privacy Act was devoted to why the TSA isn’t even pretending to consult the public about its procedures for deciding who to search and how intrusively.  “No new substantive burden or impediment for any traveler has been created,” the TSA claims, by requiring submission to more intrusive search as a condition of travel. You don’t find having your genitals groped a burden or your body viewed as though naked a “burden”, do you? If so, you must have deserved the TSA’s suspicion in the first place.  And as long as most people find it a convenience, it’s OK if others’ rights are denied:

Contrary to some commenters’ assertion that the TSA PreCheckTM Application Program infringes upon an individual’s right to travel, this program will provide an added convenience to the majority of the traveling public.

Most disturbingly, the TSA had this to say in response to our objections to the Pre-Check pre-crime scheme based on the First Amendment to the Constitution and the International Covenant on Civil and Political Rights:

Several commenters objected that the TSA PreCheckTM Application Program violates the U.S. Constitution or international treaty. DHS disagrees with the commenters as to the Constitutionality of the program, and notes that the treaty cited by an advocacy group expressly contradicts the position taken by the commenter by excluding requirements provided by law or necessary for national security from the treaty’s proscription.

So the TSA claims that the ICCPR permits exceptions either allowed by national law OR necessary for national security.  The ICCPR says no such thing.  Any exceptions to Article 12 of the ICCPR must be provided by law  necessary for national security (i.e. actually effective and the least restriction such alternative, which the TSA hasn’t shown) AND must be consistent with the other provisions of the treaty (such as Article 17 on the right to privacy).

This is not a new (false) claim by the DHS about the relationship of international treaties to US law. The DHS made the same claims in response to some of our previous complaints of violations of the ICCPR, as we pointed out in an (as yet unanswered) letter requesting review of those responses.

In claiming to believe that Congress can override international treaty obligations, the TSA demonstrates its disregard for the Constitution, which makes treaties as much “the law of the land” as is the Constitution itself, above any power of derogation by statute. In its failure to understand the ICCPR and the basic heirarchy of Constitutional and treaty law, the TSA also evinces its failure to fulfill the orders of the President for it and all other agencies to, “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

(more…)

TSA’s lying “response” to today’s story in the New York Times

Tuesday, October 22nd, 2013

TSA-Pre-Crime

We’re quoted on the front page of today’s New York Times in a story by Susan Stellin, “Security Check Now Starts Long Before You Fly”:

The Transportation Security Administration is expanding its screening of passengers before they arrive at the airport by searching a wide array of government and private databases that can include records like car registrations and employment information….

“I think the best way to look at it is as a pre-crime assessment every time you fly,” said Edward Hasbrouck, a consultant to the Identity Project, one of the groups that oppose the prescreening initiatives. “The default will be the highest, most intrusive level of search, and anything less will be conditioned on providing some additional information in some fashion.”

More:

The TSA refused to say anything to the Times on the record, but published a blog post today (with the misleading title “Expediting Screening for the Traveling Public”) responding to the Times’ story with a succession of lies and prevarications.

We call “bullshit” on the TSA:

  • “We are not using “private databases.”" This is an out-and-out lie, as “Blogger Bob” and the TSA surely know. All TSA pre-secreening systems relie primarily on information from private commercial databases of airline reservations (PNRs). Since there is no requirement for a U.S. citizen to notify the government directly before taking a trip by common carrier, “pre-screening” would be impossible without access to, and reliance on, these private commercial databases. The US government has gone to great effort, through the APIS,  PNR, and Secure Flight regulations and through lobbying for changes to Canadian privacy law and exceptions to European privacy law, to implement requirements for DHS access to this data.  If these databases are no longer “private”, that is only because the TSA and other DHS components have compelled airlines and reservation hosting companies to make this data available to government agencies.
  • “TSA does not monitor a passenger’s length of stay in any location.” The TSA doesn’t always retain the travel itinerary information it compels airlines to provide for domestic travel, but it claims the right to do so for anyone deemed (arbitrarily or according to secret criteria) to be “suspicious” or to “match” an entry on any of the government’s (arbitrary, secret) “watchlists”.  And for international travel, CBP (another DHS component agency) does retain complete PNR data, including travel itineraries, and comprehensive border crossing and entry/exit logs, for all travelers, in its Automated Targeting System (ATS) — and claims the right to “share” all this data with the TSA. (And that doesn’t even begin to consider the NSA’s apparently independent hacking of airlines and reservation systems and potential sharing of PNR and other travel data with DHS.)
  • “We are not using car registrations.” Again, it’s CBP rather than the TSA that is logging license plates and vehicle movements (using cameras near borders and optical character recognition software), linking them to individual ATS records, and using them to generate “risk” scores and watchlist messages — which are then passed on to the TSA.  TSA is using this data, just (slightly) indirectly. According to the latest System Of Records Notice for ATS, published in the Federal Register in 2012, “ATS maintains the official record for … the combination of license plate, Department of Motor Vehicle (DMV) registration data and biographical data associated with a border crossing”.
  • “[W]e rely on the same security information passengers have been required to submit at time of booking for many years…. [T]he info we rely on is the same info that passengers have provided for years when they book their flight.” Actually, we didn’t used to have to provide our ID number, date of birth, or gender in order to make an airline (or Amtrak train, or Greyhound bus) reservation. It used to be possible to hold airline reservations in “dummy” names, or with no names at all. The TSA relies on information that has only been required since the creation of the TSA. And in the past, we “provided” that information, if at all, only to airlines and travel companies. Prior to the creation of the TSA, we never had to provide any information to the government to book a flight.  (Unless we were traveling in a foreign country where a foreign government agency like the Stasi required us to show our ID cards or permission papers to book a flight.)
  • “Anyone who has never traveled outside the United States would not have a passport number on file and would therefore not be subject to the rules that the agency uses to determine risk.” Nonsense. Many people have our passport numbers on file with the TSA because we’ve used our passports as ID for domestic flights.  Many people have no government-issued ID except a passport.  Despite the State Department’s moves to make it more difficult to get a passport, the REAL-ID  law sometimes makes it even more difficult to get a drivers license or other state-issued ID than to get a passport.
  • “We are not expanding the type of information we use.” If that were true, why would the TSA have published formal notices in the Federal Register of new systems of records and new uses for existing systems of records?  They don’t publish these legal notices just for fun. Either (a) the TSA has already been illegally collecting and/or using this data without proper notice, in violation of the Privacy Act (as DHS did for years with the Automated Targeting System), (b) the TSA is doing what is says in the notices it is doing, and collecting and using new information in new ways, or (c) the TSA plans to do so in the future, and wants to be able to say, if someone later complains, “But we gave you fair notice that this was what we were going to do. If you wanted to object, you should have done so back in 2013 when we published that notice.”
  • “[W]e are not using any new data to determine low risk passengers.” Applicants for the TSA’s Pre-Check program — i.e. people who want to be relieved of suspicion-by-default and the associated more intrusive search each time they travel — are being required to provide information that the TSA has never before requested, including fingerprints, other biometric information, and authorization for checks of criminal, financial, and other government and commercial records.  If the TSA isn’t using any of this new data, why is it compiling it? More than likely, this new data is being or will soon be used — and retained for possible additional future uses for an unknown range of purposes.

[TSA Pre-Crime graphic from Leaksource]

TSA proposes arbitrarily individualized surveillance-based searches

Thursday, October 10th, 2013

TSA-Pre-Crime

In the latest version of TSA’s endless series of “trusted traveler” (or “less mistrusted traveler”) schemes, the agency is currently proposing to impose more intrusive searches on any traveler who doesn’t “voluntarily” enroll in the TSA Pre-Check program and authorize the TSA to create a new permanent file with everything from your fingerprints to any “other information provided by … government agencies or other entities”.

These files would be exempted from the normal requirements of the Privacy Act that records used as the basis for decisions about individuals’ exercise of our rights be made available to us and be limited to information that is sufficiently accurate, complete, and relevant to form a legitimate basis for such decisions.

The proposal is contained in a package of three regulatory filings (one new and one revised “System of Records Notice” and a “Notice of Proposed Rulemaking” proposing Privacy Act exemptions) published last month in the Federal Register.  All three have to be read in combination to appreciate their full implications.

The deadline for public comments on two of these proposals is today, and for the third is tomorrow. We filed consolidated comments today objecting to all three of these proposals:

Read in combination, this new and revised SORN and these proposed regulations describe a system in which an essentially unlimited range of personal information collected from an essentially unlimited range of sources, and known to include inaccurate and irrelevant information, would be (or perhaps already is being) compiled into the “TSA Pre-Check Application Program” system of records.

These records would be used – either according to criteria which are illegally being kept secret, or in an entirely arbitrary manner at the “discretion” of the TSA – to determine who is and who is not deemed “eligible” to exercise the right to travel without being subject to unreasonable searches.

The results of that decision-making would be incorporated into the “Secure Flight” system of records, and used as part of the basis (also either pursuant to secret rules or entirely arbitrarily) for deciding to issue or withhold the issuance of individualized “boarding pass printing results”, including instructions to TSA staff and contractors as to the degree of intrusiveness of the search to which each would-be traveler is to be subjected as a condition of exercising our right to travel.

Maintenance and use of these systems of records in the manner contemplated by these SORNs and the proposed exemptions would violate the 1st, 4th, and 5th Amendments to the U.S. Constitution, the presumption of innocence, due process, the Freedom Of Information Act (FOIA), the Privacy Act, and Article 12 (Freedom of Movement) of the International Covenant on Civil and Political Rights (ICCPR.

These records should be expunged, and the proposed regulations should be withdrawn….

We also point out that the TSA is only pretending to give the required consideration to public comments:

According to the “TSA Pre-Check Application Program” SORN published on September 10, 2013, “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act because it may contain records or information related to law enforcement or national security purposes.”

This claim was, and is, false. As of the date of the SORN, no such exemption had even been proposed: the NPRM proposing such an exemption, and requesting public comments (such as this one) concerning that proposed exemption for consideration by the DHS, was not published until a day later, on September 11, 2013. Even now, the Secretary has promulgated no final rule for such an exemption. Nor could he or she promulgate any such final rule, consistent with the Administrative Procedure Act, unless and until the current period for public comment on the proposed exemption rule has concluded and the comments submitted (including these comments) have been considered by the DHS.

The false claim that “The Secretary of Homeland Security has exempted certain records from this system from the notification, access, and amendment procedures of the Privacy Act”, when in fact the Secretary has not done so, appears to be intended to mislead individuals about what rights we have, and to dissuade us from attempting to exercise our rights.  In addition, by stating the outcome of the current exemption rulemaking as a fait accompli, it constitutes prima facie evidence of bad faith in the consideration of public comments. It is not enough for an agency to accept submissions of comments from the public to the circular file, after making a decision. An agency must give genuine consideration to public comments before deciding whether to finalize, modify, or withdraw a proposed rule.

You can read our complete comments here. You can submit comments at Regulations gov (here, here , and here) but your comments won’t be processed or visible online until after the DHS Privacy Office re-opens.

[TSA Pre-Crime graphic from Leaksource]

“Travel Surveillance, Traveler Intrusion” at the Cato Institute

Saturday, March 30th, 2013

Edward Hasbrouck of the Identity Project will be speaking at a free, public forum on Travel Surveillance, Traveler Intrusion from noon-1 p.m. EDT next Tuesday, 2 April 2013, at the Cato Institute in Washington DC (with a live webcast):

Travel Surveillance, Traveler Intrusion

[photo by kind permission of Jeramie D. Scott]

Video from the Cato Institute (recommended)

Video from C-SPAN

C-SPAN video on Youtube

Audio podcast (listen while viewing the slides)

Slides and notes (PDF)

Featuring Edward Hasbrouck, Journalist, Consumer Advocate, Travel Expert, and Consultant, The Identity Project (PapersPlease.org), Author of the book and blog, The Practical Nomad; and Ginger McCall, Director, Open Government Program, Electronic Privacy Information Center; moderated by Jim Harper, Director of Information Policy Studies, Cato Institute.

The United States government practices surprisingly comprehensive surveillance of air travel, amassing data about the comings and goings of all Americans who fly. Travel expert Edward Hasbrouck has been researching travel surveillance for many years. His findings reveal a stunning level of government surveillance, control of the traveler, and intrusion into commercial travel IT systems.

By April 2, the Transportation Security Administration will have begun a public comment process on its policy of putting travelers through imaging machines that can see under their clothes. Ginger McCall of the Electronic Privacy Information Center has been handling the litigation that prompted the D.C. Circuit Court of Appeals ruling requiring it to do so, and she will assess the proposed regulation and her renewed efforts to bring the TSA within the law.

If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live.

The Cato Institute asks that you pre-register if you plan to attend in person, but that’s just so they have an estimate of the expected attendance.

Hasbrouck will be presenting examples of what he found in his files when he sued the DHS for its records of his travels, what other travelers have found in theirs, and how the DHS obtains and uses this information to track us and to control who is allowed to travel.

As part of the same program, Ginger McCall of EPIC will be discussing the TSA’s proposed “rules” to require all air travelers to submit to virtual strip-searches. You have 90 days, until 24 June 2013, to tell them what you think of their proposal. (On the form to submit comments to the TSA, note that all of the fields except your comment itself are optional.) You can find some ideas for what to say in our previous article about the rulemaking.

There will be a live webcast, for those who aren’t in DC.

If you’d like to follow along, you can download the slides from Hasbrouck’s presentation as a PDF file.

[Update: C-SPAN broadcast the event live. Streaming video is available from the Cato Institute event archives (recommended), the C-SPAN archives, or on Youtube. The C-SPAN and Youtube camera angles don't show the slides which illustrate Hasbrouck's talk, so we recommend watching the Cato version and/or downloading the slides to follow along with the talk on C-SPAN. If you want to find out what's in the file about you in the DHS "Automated Targeting System", you can use the forms here. We would welcome a chance to review the government's response, if you get one, and help you interpret it.]

Travel blogger kicked off plane by pilot for taking photo of… seatback?

Saturday, March 2nd, 2013

Frequent flyer and travel blogger Matthew Klint was recently kicked off a United Airlines flight from Newark to Istanbul after a flight attendant saw him take a picture of the back of the seat in front of him, and reported him to the pilot. The pilot told Mr. Klint, “You are not flying on this flight…. We’ll call the police if we have to.”

Perhaps unfortunately, Mr. Klint didn’t insist that the police be called, or call them himself, leaving him dealing with United Airlines’ public relations department rather than with legal authorities.

As a frequent flyer and blogger, Mr. Klint at least able to get  the airline to talk to him, after the fact. But what can an ordinary traveler do in such a situation?

We talked about this last year in articles on Does an airline pilot have the right to refuse to let you fly? and  What can you do if an airline pilot won’t let you fly? But it bears repeating:

Under Federal law, as common carriers, airlines must transport all would-be passengers willing to pay the applicable fare in their published tariff and comply with their published conditions of carriage. Not to do so is a serious violation of their duties.

If an airline refuses to allow you to fly, for any reason other than a violation of published laws, regulations, or conditions of carriage, you can and should make a formal complaint against the airline to the Department of Transportation.

A pilot can order you off the plane only if the pilot genuinely believes that you pose a hazard to the safe operation of the flight, in which case the pilot is required to log and report this safety incident.

If a pilot orders you off the flight for some other reason, or without logging and reporting his or her action as a safety incident, you can and should report the pilot to the FAA.

We’ve offered our support to Mr. Klint, should he wish to pursue a legal challenge to the actions of the airline and pilot against him.