Where can you complain if your human rights are violated?

April 8th, 2015

As we’ve been pointing out for years, the right to travel is not just a right under the First Amendment to the US Constitution (”the right of the people… peaceably to assemble”) but a human right guaranteed by an international treaty ratified by the US (”the right to freedom of movement”).

But what good is a “human right” guaranteed by international treaty if there is no independent entity to which you can complain, and which has the authority to enforce your rights?

At a minimum, what’s needed is the ability of people whose human rights have been violated by the US government to seek redress through US courts, and the ability of those courts to order the government to comply with its treaty obligations.

Given the US government’s current interpretation of many human rights treaties as not being “self-effectuating”, that would require legislation by Congress to effectuate those treaties by creating a cause of action for treaty violations and give US courts jurisdiction to hear such complaints.

That’s exactly what the UN Human Rights Committee concluded a year ago, following its periodic review of US implementation of the International Covenant on Civil and Political Rights (ICCPR):

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

In the year since this recommendation from the UNHRC, neither the Administration nor any member of Congress has proposed such effectuating legislation for the ICCPR or any other human rights treaty.

So in the meantime, where can you turn if your human rights are violated by the US government?

Read the rest of this entry »

DHS continues and expands use of commercial vehicle tracking databases

April 7th, 2015

Barely more than a year after publicly cancelling a request for bids on the construction of a national database of vehicle location data compiled from commercial and government-operated license-plate reader (LPR) cameras, the DHS has quietly revealed that it is once again seeking to buy access to commercially-aggregated LPR data, and that some DHS component field offices are already doing so.

Cameras combined with optical character recognition software allow for automated logging of the license-plate number (and of course the associated time, date, plate, and direction of travel) of every passing vehicle. “Some LPR systems also capture within the image the environment surrounding a vehicle, which may include drivers and passengers,” the DHS acknowledges in its latest Privacy Impact Assessment for DHS use of commercial LPR data.

The only apparent difference between the proposal supposedly nixed in February 2014 and the plans revealed in the March 2015 PIA is that the DHS’s own LPR vehicle, driver, and passenger tracking data won’t be completely merged with LPR data from commercial sources and aggregators — at least not by the DHS itself.  The PIA describes a scheme in which the DHS will pay for query-based access to commercially-aggregated LPR data and the ability to set flags that will generate real-time alerts to the DHS whenever license-plate numbers of interest are observed.

Read the rest of this entry »

You can’t tell the travelers without a scorecard

March 31st, 2015
The TSA uses appearance profiles to decide whether to search you and/or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from GAO report.)

Point scores assigned by TSA "Behavior Detection Officers" are used to decide whether to search you or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from 2013 GAO report. Click image for larger version.)

The Intercept has published the scorecard used by TSA “Behavior Detection” precogs to assign points to travelers, as part of the TSA’s “SPOT” pre-crime scheme for deciding which travelers to subject more intrusive search and/or interrogation or “refer” to local police:

Whether you call SPOT and the TSA’s other pre-crime profiling programs “junk science”, “culturally biased”, or simply “unconstitutional”, it’s clear that the TSA can’t tell the terrorist travelers with or without a scorecard.

The SPOT scorecard includes pairs of, “Damned if you do, damned if you don’t,” point categories. “Avoids eye contact with security personnel or LEO [Law Enforcement Officer]“? +1 point. On the other hand, “Cold penetrating stare” or “Widely open staring eyes”? +2 points.

Disturbingly, some of the largest point values are assigned for the exercise of First Amendment rights to express opinions, ask questions, and observe what is in plain sight: “Asks the BDO [Behavior Detection Officer] security-related questions”? +3 points. “Shows arrogance and verbally expresses contempt for the screening process”? +2 points. “Scans area, appearing to look for security personnel or LEO”? +2 points.

In what appears to be flagrant discrimination against people with disabilities, anyone attempting to communicate in sign language is severely penalized: “Exhibiting hand gestures to others”? +3 points.

Part of the scorecard is broken down into “Stress”, “Fear”, and “Deception” categories. Stress and fear would seem to be natural responses to being profiled, judged, interrogated, and groped by government agents in cop-like uniforms who claim discretionary and deliberately unpredictable power to stop us from exercising our rights.  What traveler anywhere in the world doesn’t tense up when they are stopped at a checkpoint, and breathe a sigh of relief when they have made it through?

Points are also assigned for attributes having nothing to do with these factors, and which cannot lawfully be construed as constituting a reasonable basis for suspicion sufficient to justify search or detention.

Are you one of a party of, “Males traveling together who are NOT part of a family”? +1 point. Take that, pairs of traveling salesmen, and pairs of Mormon Elders on a mission! Do you appear to be a “Member of a family”?  -2 points. What’s a “family”? And how can the TSA tell?

Possession of duct tape “which the passenger has no apparent reason to possess”? +1 point. Isn’t the reason to carry duct tape that you never know for what purpose you will need it?

Cash is considered presumptively and for outbound international travelers conclusively suspicious. Possession of, “Large sum of monies leaving U.S.”, or “Large sum of monies with no apparent reason to possess”? Automatically notify a law enforcement officer.

Some of the scoring categories appear to be purely cultural or fashion bigotry: “Face pale from recent shaving of beard”? +1 point.  Others show age and/or gender bias: “Facial flushing while undergoing screening”? +1 point. So much for any woman who happens to have a hot flash at a checkpoint. “Apparent married couple with both spouses over 55 years old”? -2 points.

The Intercept quotes two unnamed former TSA “Behavior Detection Officer” managers. One says the scorecard is, “designed in such a way that virtually every passenger will exhibit multiple ‘behaviors’ that can … justify BDO interaction with a passenger. A license to harass.” Another describes the SPOT porgram as, “Bullshit. Complete bullshit.”  We couldn’t have said it better.

Smile for the camera, citizen!

March 23rd, 2015

The Department of Homeland Security is extending its photography of travelers at US border crossings, ports, and international airports from foreign nationals to US citizens entering and leaving our own country.

On January 5, 2004, under an “interim final rule” for the “US-VISIT” program effective the same day it was published in the Federal Register, agents of US Customs and Border Protection (CBP) began fingerprinting and photographing foreign visitors on their arrival and again on their departure from the US.

At first, only those foreign citizens who required visas to enter the US were given this treatment.  A few countries. starting with Brazil, took this as a sign of their “least favored nation” status with the US government, and reciprocated by photographing and fingerprinting US citizens arriving in and departing from their countries. Many other countries didn’t take things quite so far, but partially reciprocated to the extent of increasing their visa or entry fees for US visitors, or imposing new fees where entry for US tourists had been free, to match the US$135 minimum fee for a tourist or transit visa to the US for citizens of most other countries.

On August 31, 2004, under yet another “interim” rule effective the same day it was published, fingerprinting and photography at US airports and borders was extended to citizens of countries in the US “visa waiver program”.

For the third phase of expansion of US-VISIT fingerprinting and photography of border crossers, the DHS published a notice of proposed rulemaking in 2006, giving organizations and individuals a chance to object before the rules were finalized. But the numerous objections, including ours, were ignored. In December 2008, the DHS promulgated a final rule extending the fingerprinting and photography of visitors to all non-US citizens, including permanent US residents (green-card holders).

Now, without bothering to propose or finalize any new regulations, DHS has announced through a non-binding “Privacy Impact Assessment” (PIA) posted on its website that CBP is already conducting a “Facial Recognition Air Entry Pilot” program under which some unspecified fraction of US citizens entering the US by air are being required to submit to facial photography by CBP agents:

U.S. citizens with U.S. e-passports arriving at air ports of entry testing the technology may be selected to participate in the pilot at port discretion. Individuals that are selected do not have the option to opt out of this process.

Facial recognition software is being used to compare the photos to the digital photos stored on the RFID chips in US citizens’ passports, and to assign a score indicating the robot’s “confidence” that the photo in the passport and the photo taken at the airport depict the same person. “The facial recognition system is a tool to assist CBPOs [CBP officers] in the inspection process.”

The selection is supposedly random, but there is no specified limit on how large the percentage of US citizens subjected to this requirement might be:

Supervisory CBPOs (SCBPO) will set the standard for the random selection criteria and have discretion to change the criteria as needed. For example, the SCBPO may choose to select every fifth traveler but may change to every third or every seventh traveler at his or her discretion.

DHS has a history of prolonging and expanding “tests” as cover for de facto full implementation of controversial requirements. There’s nothing in this PIA to rule out the extension of the “pilot” program to nine out of ten arriving US citizens, or 99 out of 100.

Disturbingly but characteristically, DHS suggests that US citizens returning to our own country can be required to do whatever is necessary to “satisfy” CBP officers:

A person claiming U.S. citizenship must establish that fact to the examining [CBP] officer’s satisfaction [emphasis added] and must present a U.S. passport or alternative documentation as required by 22 CFR part 53. If such applicant for admission fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien.

Read the rest of this entry »

Amtrak lies about police use of passenger data

March 20th, 2015

Passenger Name Record (PNR) view from Amtrak "Police GUI". (Click image for larger version.)

The first “interim” release of documents responsive to our FOIA request for records of police and other government access to Amtrak reservation data show that Amtrak is not only giving police root access and a dedicated user interface to mine passenger data for general state and local law enforcement purposes, but also lying to passengers about this, misleading Amtrak’s own IT and planning staff about the legal basis for these actions, and violating Canadian if not necessarily US law.

Our FOIA request was prompted by Amtrak’s obviously incomplete response to an earlier FOIA request from the ACLU.  That response omitted any mention  of government access to Amtrak reservation data, even though we’ve seen records of Amtrak travel in DHS files about individual  citizens obtained in response to previous Privacy Act and FOIA requests. The documents we have just received were clearly responsive to the ACLU’s request, and should have been, but weren’t, included in Amtrak’s response to that request.

Amtrak is still working on our request, but has begun providing us with responsive records as it completes “processing” of them: search, retrieval, and redaction. (Amtrak is even further behind in responding to some other FOIA requests, such as this one for certain disciplinary records related to misconduct by Amtrak Police.)

The first “interim” release to us by Amtrak includes just a few documents: a 2004 letter from US Customs and Border Potection (CBP) to the Amtrak Police legal department, requesting “voluntary” provision by Amtrak to CBP of Advanced Passenger Information System (APIS) identification data about all passengers on international Amtrak trains, and a 2004-2005 project summary and scoping document for the work that would be required by Amtrak’s IT department to automate the collection, maintenance in Amtrak’s “ARROW” passenger reservation database, and delivery to CBP of this data.

Read the rest of this entry »

Appeals court hears argument on appeal by “Freedom Flyer” Phil Mocek

March 18th, 2015

A three-judge panel of the 10th Circuit US Court of Appeals heard oral arguments in Denver yesterday on the lawsuit brought by “Freedom Flyer” Phil Mocek against the TSA checkpoint staff and Albuquerque police responsible for falsely arresting him and trying to delete his audio and video recordings in retaliation for his trying to exercise his Constitutional rights to travel by air without carrying government-issued ID documents, and to film and record the TSA’s “ID verification” process for flyers without ID.

Mr. Mocek was able to recover his audio and video recording after the police returned his camera when they let him out of jail. On the basis of that recording, Mr. Mocek was acquitted by an Albuquerque jury of all of the trumped-up criminal charges.

After his acquittal, Mr. Mocek filed a Federal civil rights lawsuit against the TSA, the Albuquerque police department, and the individual TSA employees and ABQ airport police responsible for violating his rights.

Mr. Mocek’s lawsuit was dismissed, before it could go to trial, by US District Court Judge James Browning in Albuquerque, who ruled that Mr. Mocek had “failed to state a claim on which relief could be granted.”

The issue in rulings like this is not whether the plaintiff (Mr. Mocek) has proven his case, or what the judge believes actually happened. Those are issues for a jury to decide, after hearing the evidence presented in a trial. A motion to dismiss can be granted only if — even assuming that everything the plaintiff says in the complaint can be proven to be true — those facts would not be sufficient to constitute a basis for a finding that the plaintiff’s legal rights have been violated.

That’s what is now being considered by three judges of the 10th Circuit Court of Appeals (Presiding Judge Timothy Tymkovich and Judges  Neil Gorsuch and Jerome Holmes), and that was argued before them on Tuesday morning in Denver by lawyers representing Mr. Mocek, the TSA and its employees, and the city of Albuquerque (on behalf of the Albuquerque police department, its airport division, and its employees).

[Official audio recording by the court in downlaodable podcast and streaming formats.]

Clearly there are problems with the Albuquerque Police Department which might call for oversight or corrective action by the Federal courts. Five cases, all of them appeals from decisions of the US District Court for New Mexico, were argued on Tuesday before the 10th Circuit panel that heard argument in Mocek v. Albuquerque et al. Of those five cases, three were lawsuits against the Albuquerque police, under the same Federal civil rights statute as in Mr. Mocek’s case, for a variety of violations of individuals’ Constitutional rights by the police department and its officers.

In many respects, all of these appeals concerned the limits of legal liability, and the corresponding limits of impunity, for actions by government agencies and agents that violate individuals’ rights.

Read the rest of this entry »

“Naked American Hero” goes to court

March 16th, 2015

John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon airport, will finally have his day in a Federal court more than three years later.

Mr. Brennan was (falsely) arrested by Portland city police, acting at the behest of the TSA checkpoint staff, on April 17, 2012.  He was acquitted of criminal charges by a local judge, since nudity as a form of political expression has been held to be protected by Oregon’s state constitution.

But the TSA assessed a $500 administrative fine against Mr. Brennan for “interfering with screening”, notwithstanding both the Oregon court’s finding that his action was form of protected political expression and the fact that he never interfered with anyone at the TSA checkpoint. It was the TSA staff who chose not to search Mr. Brennan’s clothes after he took them off, not to complete his “screening” once they could see that he wasn’t carrying any weapons or explosives, and to shut down the entire checkpoint.

The TSA’s administrative decision to fine Mr. Brennane followed a kangaroo-court administrative hearing (held in a courtroom rented for the day from the US Bankruptcy Court), a decision by a so-called Administrative Law Judge (not actually a judge, but a DHS staff person rented from the US Coast Guard), and an administrative appeal to a TSA decision-maker designated by the head of the agency.

Throughout these administrative proceedings, the TSA and other DHS staff were forbidden to consider the Constitutionality or validity of the TSA’s regulations or actions.  Only after jumping through three years of these hoops is Mr. Brennan entitled to have a real judge of a real court assess whether the TSA acted lawfully or had any authority to impose a fine for actions such as Mr. Brennan’s.

In an effort to frustrate even this belated judicial review, Congress requires that it be conducted by a Federal Circuit Court of Appeals, based on “deference” to the TSA and the TSA-supplied “administrative record” rather than an actual trial or any fact-finding by the Court of Appeals. (Our Freedom of Information Act request for the administrative record of the TSA’s proceedings with respect to Mr. Brennan is still pending and unanswered after almost two years.) But the Court of Appeals can now finally, at this stage, consider Constitutional and other objections to the legality of the TSA’s actions.

On November 14, 2014, Mr. Brennan filed a petition with the 9th Circuit Court of Appeals for that court to review the TSA’s order assessing a $500 fine against Mr. Brennan. The case in the 9th Circuit is John Brennan v. US DHS and TSA, docket number 14-73502.  Mr. Brennan is represented in the 9th Circuit by Michael Rose of Portland, the same attorney who successfully defended Mr. Brennan against the state and local criminal charges.

On March 2, 2015, Mr. Brennan’s attorney filed his brief asking the Court of Appeals to void the TSA fine, making the arguments he wasn’t allowed to make in the TSA administrative proceedings regarding the unconstitutional vagueness and other defects in the TSA’s regulations and actions.  Mr. Brennan’s brief was accompanied by excerpts from the TSA administrative record, although most of that record continues to be improperly withheld from disclosure by the TSA despite our FOIA request.

Following a written response from the DHS and TSA (the government has already asked for, and been granted, an extension of time), and a written reply from Mr. Brennan, the 9th Circuit will decide whether to schedule oral argument or make a decision solely on the basis of the written arguments.

Mr. Brennan is continuing to pay for his own legal representation. There’s more information here about how you can contribute to his legal defense and help spread the word about his case.

US government veterans call for curbs on surveillance

March 9th, 2015

Citing our research and analysis on NSA surveillance of travelers as part of the basis for their recommendations, an organization of veterans of US intelligence agencies has called for curbs on mass surveillance of innocent individuals, in order to “preserve privacy and increase security”.

These recommendations to the Privacy and Civil Liberties Oversight Board (PCLOB) are the latest in a series of statements issued by the Veteran Intelligence Professionals for Sanity (VIPS), a group which includes prominent NSA, CIA, State Department, FBI, and other whistleblowers. (More from former FBI agent Coleen Rowley, one of the members of VIPS and a signatory of the statement.)

Thel letter from VIPS  to the PCLOB is worth reading in full, but we found these portions among the most trenchant:

The Fear Factor

If Americans want to actively protest U.S. Government policies, but are aware that their communications are being monitored, some individuals will be fearful, inclined toward self-censorship and less likely to speak out – with the chilling effect of being denied their First Amendment rights to free speech and association.

With the Government’s surveillance resources devoted to electronic communications, facial image capture, retina scans, GPS and E-ZPass tracking, license plate readers, banking transactions, and air travel reservations, those with access to the data will be free to develop their own “threat” profiles to target people with tragic consequences for citizens’ freedom of speech, press, religion, and association.

Is this the state of freedom Americans choose to live under? It was achieved through a cooperative Congress and an anxious news media that reacted on the basis of a fear-mongering Intelligence and Law Enforcement Community backed by profiteers from the private sector eager to come to the rescue with all manners of big data analytics solutions. Over the ensuing years, public malaise seems to have set in yielding a general sense of resignation over the loss of privacy wherein it’s viewed to be a small price to pay for the convenience of having perpetual electronic access within reach 24/7.

Read the rest of this entry »

2nd person told they’ve been taken off the US “No Fly” list

February 25th, 2015

For only the second time, a would-be traveler has been given offical notice by the US government that they are not on the US “No Fly” list.

Just weeks before a scheduled March hearing in a Federal lawsuit brought by US citizen Jamal Tarhuni challenging his repeatedly having been prevented from boarding commercial airline flights, including flights back to his home in Oregon from overseas, the director of the DHS “Traveler Redress Inquiry Program” (DHS-TRIP) has sent Mr. Tarhuni the letter above, telling him that, “We have been advised that you have been removed from the No Fly List.”

The only previous time the US government has told anyone they weren’t on the no-fly list was last year, in response to a direct order from a Federal court in the case of Dr. Rahinah Ibrahim. Unlike Mr. Tarhuni, Dr. Ibrahim is not a US citizen, although one of her children was born in the US and is a US citizen. Dr. Irahim’s US visa has been revoked, so she can’t return to the US regardless of whether she is on the US no-fly list. The Supreme Court heard arguments earlier this week on whether State Department decisions to deny visas to family members of US citizens are subject to judicial review.

The DHS-TRIP letter to Mr. Tarhuni makes no promises about future actions, and doesn’t guarantee that he will be allowed to travel by air. He still doesn’t know why he was on the no-fly list in the first place. He could be put back on the no-fly list at any time (including, as happened to him before, while he is abroad), without notice or explanation. And even if he isn’t put back on the no-fly list, he could be refused permission to board any flight (again potentially including flights home to the US from abroad) based on real-time pre-crime profiling and risk scoring.

Presumably, the government will now seek to have Mt. Tarhuni’s complaint dismissed as “moot”.

The government is also likely to use its latest letter to Mr. Tarhuni as evidence in other pending no-fly cases, including those of Yonas Fikre (who is represented in his ongoing lawsuit by the same attorney as Mr. Tarhuni) and Gulet Mohamed.  So far as we know, Mr. Fikre is the only person who has been given official notice that he is on the US no-fly list, and not just constructive notice in the form of a denial of transportation by an airline. Mr. Fikre was denied asylum in Sweden, and, since he is still on the US no-fly list, was able to return to the US only because the Swedish government chartered a private jet to deport him.

The system of secret, extrajudicial no-fly orders is working, the government will claim, so the courts don’t need to  exercise oversight over the process. The government will argue that if DHS-TRIP and the government’s recently-revised “No Fly 2.0″ procedures provide sufficient administrative due process, the courts don’t need to review the allegedly derogatory evidence (if any) supporting DHS and FBI no-fly decisions.

Must we choose between the right to travel and the right to remain silent?

February 24th, 2015

When US citizen Jonathan Corbett checked in at Heathrow Airport in London for an American Airlines flight to New York last December, he was questioned by an airline employee or contractor (it’s often impossible to tell which are which) about his travel outside the US:

When questions changed from, “Where are you flying?” to “Was your trip for personal or business purposes,” and “Where were you since you left America,” I asked if the questions were necessary, and was told yes.

Mr. Corbett was eventually allowed to board his flight without answering these questions. But he followed up first with the airline, which referred him to the TSA, and then with the TSA itself.

Both AA and the TSA said that the questioning is part of a TSA-mandated “security program”. While AA and the TSA both claimed that most details of this program are secret, the TSA “Office of Global Strategies Communications Desk” (OGSCommunications@tsa.dhs.gov) told Mr. Corbett that answering the questions is a condition of boarding a flight to the US:

As part of its Transportation Security Administration (TSA)-approved security program, American Airlines is required to conduct a security interview of passengers prior to departure to the United States… If a passenger declines the security inteview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI) … and its contents are not for public disclosure. Any security procedure performed by the airline would be because of a requirement in their program.

Yesterday, Mr. Corbett filed suit against the TSA in both the U.S. District Court for the Eastern District of New York (which has jurisdiction over Kennedy Airport in Queens, where his flight arrived in the US) and in the 11th Circuit Court of Appeals (which has jurisdiction over Florida, where Mr. Corbett resides).  Perverse judicial precedents including those in Mr. Corbett’s own previous lawsuits require most lawsuits against TSA practices to be filed simultaneously in both District and Circuit Courts, to avoid a risk of being dismissed on jurisdictional grounds.

Mr. Corbett’s lawsuit directly challenges the requirement for a traveler to answer questions (i.e. to waive his or her Firth Amendment right to remain silent) as a condition of the exercise of the rifght to travel, specifically the right of a US citizen to return to the US.

Read the rest of this entry »