TRAVEL ID AND THE TRAVEL PANOPTICON (Keeping an Eye on the Panopticon: Vanishing Anonymity workshop -- The Anonymity Project) Computers, Freedom, and Privacy (CFP2005.org) Seattle, WA, USA, 12 April 2005 Edward Hasbrouck 1130 Treat Ave., San Francisco, CA 94110, USA http://hasbrouck.org edward@hasbrouck.org +1-415-824-0214 These notes: http://hasbrouck.org/articles/CFP2005-travelid.txt Handout: Chapter on "Travel Privacy" from "Privacy and Human Rights" yearbook (EPIC and Privacy International, 2004), principally authored by Edward Hasbrouck with important contributions from Marcia Hofmann and others: http://hasbrouck.org/articles /PHR2004-travelprivacy.pdf ================================== Response to 11 September 2001: Phase 1: Panic * Response: identify and find the bad guys (eliminate the source of panic) * Investigation, access to data, profiling * Response: data protection (what data can be collected, how it can be used) * USA-Canada and USA-EU disputes over PNR data Phase 2: Trauma * Response: Surveillance (wall off the source of trauma) * Building surveillance infrastructure (panopticon), prohibiting anonymity Since "Privacy and Human Rights 2004" handout, major trends of expanded scope: 1. Expansion from air travel to other modes of travel (rail; intercity bus; local commuter rail, subway, bus, ferry, and other transit systems) 2. Expansion from the USA to international domains ================================== Structures of discourse, structures of industry, and structures of technology: 1. Legal conceptualization of travel ID, travel rights, and anonymity. 2. Current USA legal cases related to travel ID and anonymous travel. 3. Conceptual basis for travel surveillance. 4. What is to be done? 5. Structural obstacles to progress. 6. Where are we headed if we do nothing? Panopticon scenarios. ================================== 1. Legal conceptualization of travel ID, travel rights, and anonymity: A. International Declaration of Human Rights (1948): 1. Article 13, section 1: "Everyone has the right to freedom of movement ... within the borders of each state." 2. Article 13, section 2: "Everyone has the right to leave any country, including his own, and to return to his country." 3. Article 20: "Everyone has the right to freedom of peaceful assembly." B. International Covenant on Civil and Political Rights (entered into force 1976; ratified by the USA 1992) Article 35: "The right of peaceful assembly shall be recognized. No restrictions shall be placed on the exercise of this right other than those ... which are necessary ... in the interests of national security or public safety, public order ... the protection of public health or morals or the protection of the rights and freedoms of others." (could be invoked in USA courts, but hasn't been in any travel ID case) C. USA Constitution, Amendment 1: "The right of the people... peaceably to assemble" "To assemble" = to come or come gather (i.e. to move) = to travel D. Public Accommodation and Common-Carrier statutes 1. "Places of public accommodation" -- required under common law, innkeeper's statutes, etc. to accept and provide services to all comers, subject only to rules that are (a) reasonable and (b) included in a posted tariff. 2. "Common Carriers" -- under common law and many statutes, airlines, railroads, bus lines, etc. are required to accept for transportation all passengers complying with published tariff USA Airline Deregulation Act of 1978 2. Current USA legal cases related to travel ID and anonymous travel: A. Hiibel vs. Nevada -- Hiibel.com (see Marsha Hofmann's presentation following this one in today's workshop) search and seizure, self-incrimination; *not* first amendment or international law B. Gilmore vs. Ashcroft -- FreeToTravel.org, PapersPlease.org/gilmore search and seizure, due process, *not* first amendment or international law C. Frontier Travel vs. TSA -- AlaskaFreedom.com largely procedural: secret laws are a denial of due process D. Green vs. TSA (ACLU class action, Seattle, WA) -- ACLU.org/nofly/ challenge to no-fly and watch lists and procedures for them (how they are created and maintained,etc.), *not* to authority to issue orders to airlines for searches, seizures, or denial of transport Not criticism but optimism: the most fundamental legal and ethical bases for challenge to travel surveillance and interference remain untested. But why? What's the argument *for* these measures? 3. Conceptual basis for travel surveillance: A. "Privacy vs. Security"? "Safety vs. Civil Liberties"? -- hasbrouck.org/articles/safety.html 1. false choice (ACLU "safe and free", Schneier "Beyond Fear", Hasbrouck) Not actually making us safer or more secure. Make more sense as surveillance rather than security. 2. cf. Air India 182 (1985, Canada; trial verdict in 2005; largest number of people killed in any incident of airline terrorist before 11 Sept. 2001): a. Suspects were already under RCMP surveillance (phones monitored, etc.). b. Passenger-bag matching on connecting flights *still* is not required in the USA. B. "Security" and "balancing" aren't the real issue. 1. Advocates of travel surveillance rarely actually debate balancing of security or safety vs. privacy or civil liberties. 2. Travel ID and restrictions are seen as: a. *imperatives*, not conclusions ("We must....) b. Beyond debate ("Obviously, we must...") C. Implicit claim is that travel (esp. air travel) is "sui generis": "Travel is different" ("But this is about air travel") and therefore: 1. Not subject to evaluation for effectiveness, etc. of "security" measures.. 2. Not subject to normal legal standards. (TSA claims that Passenger Name Records (PNR's) do not contain records of protected First Amendment activities, and that PNR's are not commercial data) D. Why? 1. Untreated societal post-traumatic stress disorder (PTSD): (This is a panic response: When panic takes over, normal rational processes shut down.) 2. Fear of the unknown and the other translates into fear of anonymity. E. Consequences: a. Billions of US$ are being spent to try to assuage our fears and make us feel better because our society (esp. opinion leaders and decision makers in NYC and DC) is panicked and traumatized. b. Systematic efforts to eliminate the possibility of anonymous travel. 4. What is to be done? A. *Name* the fears and trauma that are the real basis for travel ID and control of travel (who is allowed to travel, searched, etc.) 1. The trauma and PTSD are not merely untreated but also undiagnosed and unrecognized. (The first step toward healing is recognizing of the illness and seeking treatment.) 2. To fail to challenge discourse rooted in panic and trauma is to facilitate and enable the continuation of the social illness. 3. Continued security theater continues to reinforce the trauma and panic. B. Assert the *right* to travel and the *right* to anonymity of travellers. C. Apply existing legal standards, norms, and methodologies. 1. Restrictive/protective orders ("injunctions") 2. Adversarial judicial process 3. Burden of justification. 4. Least restrictive alternative. 5. Structural obstacles to progress: A. Post-Traumatic Stress Disorder (PTSD) B. Airline (and rail transport) industry not driven by market forces. (Main concern of airlines is whether govt. will reimburse their costs.) C. Convergence of commercial and govt. surveillance interests. D. Least costly path for airlines and travel industry is the most intrusive. E. Technical obstacles to identification and surveillance of travellers are disappearing as a result of other industry and technology trends: 1. Reduced separation between the network of travel reservations and transactions (traditionally centered on CRS's) and the Internet. 2. New databases kernels will make it easier to add fields and store more info in PNR's and other databases. 3. Personal identification and Advanced Passenger Information (API) data standards have been added to the Airline Reservations Interline Message Protocol (AIRIMP). 4. Development and deployment of new tools for aggregating and intregrating responses to queries of multiple travel databases. (Farechase acquired by Yahoo, Kayak Software deal with AOL, and Mobissimo seeking to become Google Travel.) 6. Where are we headed if we do nothing? Panopticon scenarios: A. RFID passports for international travel (cf. concerns for RFID in goods) B. RFID credentials for domestic travel within countries. C. Non-anonymous RFID payment devices (credit/debit/stored value cards) D. Aggregation of queries to databases: 1. Travel reservations 2. Travel and transport payments 3. Mobile phone location data