Another round of illegal USA travel controls

Recently, while I've been travelling, the Transportation Security Administration (TSA) of the USA Department of Homeland Security (DHS) has issued a press release announcing new, illegal, identity verification procedures for travellers at airports in the USA, while the DHS Customs and Border Protection (CBP) division has published a formal proposal for a new, illegal, Electronic System for Travel Authorization for visitors to the USA. See my comments on both proposals in the linked articles in the Identity Project blog.

6 continents; 27 countries; 70,000 miles

We've been back home (sort of) in the San Francisco Bay Area this week for the first time in a year, visiting friends and family and getting organized for the next leg of our trip. We even went to our house to get some things out of storage, although someone else is still living there until next month.

After visiting 27 countries on six continents (all but Antarctica) and travelling 70,000 miles around the world in the past year, we leave this morning for a month-long road trip across North America and back. It will be a separate trip, but also part of the same one as our trip around the world: We look forward to what we'll learn from seeing our home country and continent with eyes sensitized to the comparisons with other places we've been this past year. We'll be back home (until next time) at the end of July.

Nonstop flights between Asia and Latin America

Paul Lukacs has an interesting recent post updating some of my earlier comments on the (lack of) nonstop flights between Latin America and Asia.

For the sake of completeness, there are a few flights and details he missed, although they in no way alter his, or my, conclusions about the difficulties of Asia-Latin American travel, especially for people who don't want to, or can't get permission to, transit the USA or its airspace:

• Japan Airlines has "direct" (same-plane) flights between Tokyo and Sao Paulo. In the past, various other Japanese, Korean, and Brazilian airlines have operated direct flights between Rio or Sao Paulo and Tokyo, Osaka, and Seoul. But none of these flights have been nonstop: all of them have stopped in the USA. And the USA has no provision for transit without visa. Japan is in the USA "Visa Waiver Program", so Japanese citizens "only" need to be fingerprinted and photographed while their plane is refueled at LAX or JFK. But Brazilian and Korean citizens need expensive (US$130) transit visas for the USA, requiring an in-person application and interview at a US Embassy or Consulate, even if they aren't leaving the airport. The cost and hassle of transit visas led to the discontinuation of all of these flights by Brazilian and Korean airlines after the USA abolished its (very limited) transit without visa facilities after 11 September 2001, leaving only the current JL flights NRT-JFK-GRU and v.v.

• The Aeromexico flights between Tijuana and Tokyo would have to go some distance out of their way to avoid overflying USA airspace. So it's likely that, under the latest international APIS rules, Aeromexico is required to get permission from the USA before it boards each passenger.

• Since late 2007, there has been exactly one regularly scheduled nonstop airline route between Asia and South America: between Dubai and Sao Paulo on Emirates. Dubai isn't quite as far out of the way as Europe for passengers from Asia, the Middle East, and the Middle East. And it's easier for citizens of most countries to get permission to transit Dubai -- as long as they don't leave the airport -- than to transit most countries in Europe, much less the USA. It's now the obvious route to and from South America for Chinese business travellers, among others. The simplicitly of the transit outweighs the greater distance, time, and airfare. But it's still a costly, roundabout route, especially for people travelling to or from East or Southest Asia.

AP and Chicago Tribune review new edition of "The Practical Nomad"

It's always fun to get good news from back home while travelling. In my case, the news that's reached me here in Sana'a, Yemen (a delightful place to visit, if you ever get the chance, with the first high-speed Internet connection we've had in weeks) is of a couple of reviews of the latest edition of my best selling book:

New books to take you around the world

(by Beth Harpaz, Associated Press; published in multiple newspapers including the Dallas Morning News, 8 January 2008)

NEW YORK: It's time to start thinking about the year's opportunities for travel, and several new books are out to guide you....

The Practical Nomad: How to Travel Around the World by Edward Hasbrouck (Avalon Travel, $22) is an updated fourth edition described by the author in his preface as a "how-to handbook of advice and tips for independent, on-your-own travel." It's especially suitable for anyone planning, or dreaming about, the trip of a lifetime.

The book offers information on everything from budgeting to luggage to health issues to air travel.

It can even help you make the decision to get up and go, arguing that world travel will enhance your career, be good for your children and cost less than you may think.

Resourceful traveler: Specialty travel

(by J.D. Brown And Margaret Backenheimer, Chicago Tribune, 9 March 2008)

The Practical Nomad: How to Travel Around the World, Avalon, $21.95; ISBN: 978-1-56691-828-2

In its fourth edition, this extensive handbook is something of a bible for independent, on-their-own travelers seeking to circumnavigate the world. Its tips and advice apply to anyone considering a long journey abroad.

After eliminating the stereotypes applied to "backpackers" -- most are not students, many are professionals and overall the majority spend more than average visitors -- author Edward Hasbrouck surveys the actual costs, potential itineraries and most useful resources for an independent international sojourn. He then addresses modes of transport, with a full chapter on understanding airfares and booking the smartest routes.

Further chapters give world travelers the scoop on travel insurance, baggage handling, local guides and guidebooks, money changing and choosing travel companions. Detailed listings of print and online resources covering all these topics are packed into a 100-page appendix, and each chapter is flagged with anecdotes from the author's own round-the-world adventures.

.travel registry sold -- again

The owners of the registry for Internet domain names ending in ".travel" have announced plans for another sale of the .travel registry business, raising renewed questions about Tralliance's compliance with its contractual commitments to ICANN as well as about the lack of transparency of ICANN's decision making and ICANN's compliance with its own bylaws.

According to a report in Travel Weekly (free registration required) by Dan Luzadder, who has been doing the most in-depth reporting on .travel lately, even members of the body that is supposed to be responsible for .travel policies weren't aware of the impending sale:

Bill Maloney, executive vice president of ASTA and a former member of the Travel Partnership Corp., dot-travel's advisory board, said he was unaware of the sale but added that taking Tralliance private raised some questions in his mind.

"What the industry loses, of course, is transparency," Maloney said.

Luzadder's description of the TPPC as "advisory" may be true in practice, but ICANN delegated .travel to Tralliance only on condition that the TTPC would have actual authority over .travel policies. If it's been reduced to a purely advisory role, that's a violation of the agreement between Tralliance and ICANN.

The sale of the .travel registry business may also be a violation of the contract by which ICANN delegated .travel to Tralliance. Section VIII.5 of the ICANN-Tralliance agreement provides that:

[N]either party may assign this Agreement without the prior written approval of the other party... (i) Registry may assign this Agreement as part of the transfer of its registry business if such transfer and assignment are approved in advance by ICANN in accordance with its procedures

I can find no record on the ICANN Web site of any decision by ICANN to approve a sale of the .travel business, much less a record of compliance by ICANN with the procedural rules in ICANN's Bylaws that would apply to such a decision.

I asked similar questions of ICANN about whether it approved the earlier sale of Tralliance and its .travel business to TheGlobe.com. Those questions remain unanswered almost 3 years later.

Meanwhile, ICANN has adopted a set of policies and procedures for informatiuon (non)disclosure that would effectively repudiate ICANN's commitments -- in its own Bylaws and its contracts with the USA Department of Commerce -- to openness and transparency.

I've advised the Department of Comnmerce, which is currently reviewing ICANN's performance under its so-called "Joint Project Agreement", of this and ICANN's other contract violations.

I've also requested that ICANN's decision to approve this new "Documentary Information Disclosure Policy" be referred to an independent panel charged with reviewing whether it complies with ICANN's Bylaws on openness and transparency.

But since ICANN (1) has yet to take any publicly-disclosed action on the request I made almost 3 years ago for an independent review of the process by which it decided to approve .travel and delegate it to Tralliance, or any of the other pending requests for independent review, (2) has never complied with the requirements of its Bylaws to designate an independent revierw provider and approve policies for independent review, and (3) hasn't even bothered to respond to my specific written questions concerning the lack of a duly-approved independent review provider or procedures, I'm not holding my breath for action on this second of my independent review requests.

[Addendum: More on the sale from John Levine]

Money for travellers from class action lawsuit

If you are from the USA, and reading this blog, you are probably eligible to get some money from a class action lawsuit you might not have heard about.

You can get at least $25 for the asking (and maybe many times more) if at any time between 1996 and 2006 you used a card with a Visa or MasterCard logo to make a purchase or withdraw money from an ATM in any country other than the USA (yes, including Canada and Mexico) and/or in any currency other than US dollars.

To get your money, you need to file a claim by 30 May 2008. If you do nothing, you'll get nothing. (The Web site for filing claims looks like a "phishing" scam. But I'm pretty certain it's legitimate.)

Start working on your claim now. It might be simple, but it might take some time to get the necessary information, particularly if you are on the road or abroad now.

You can file a claim online for your choice of either:

1. A minimum of $25, regardless of how much you spent (as long as you spent anything at all on any Visa or MasterCard outside the USA or in foreign currency)
   
   
2. An estimated amount based on the number of days you have spent outside the USA from 1 February 1996 through 8 November 2006
   
   
3. An amount based on your total documented charges outside the USA and/or in foreign currency with Visa and MasterCard credit, debit, and ATM cards during that period, if you can show your recrods of those charges

If, like most people, you don't have complete records of your credit card bills for the last 12 years, and if the money is fairly allocated (it might not be -- more on that below), most people who've spent a cumulative total of a month or more abroad should get the largest refund with the least effort to prepare their claim under Option 2.

Under Option 2, you'll get an "estimate" of 1% of your total spending abroad. I'm guessing that might be as much as dollar for each day you spent abroad. If you took a year-long trip around the world in the last decade, or lived abroad for a year, you might have several hundred dollars coming!

You might have gotten a fine-print notice in the mail about this. (I didn't, because I'm travelling and receive my bills online.) But if you didn't get it or threw it away, don't worry; You don't need the notice to file a claim.

To file a claim under Option 2, you need:

1. The card number and name of the issuing bank for any one Visa or MasterCard that you used abroad and/or for a purchase in foreign currency between 1 February 1996 through 8 November 2006
   
   
2. The cumulative total number of days you spent outside the USA during that time

It doesn't matter how many cards you had, whether they are still active, how much you actually spent, or whether you took 10 trips of 10 days each, or 1 trip of 100 days. You just need the card number and name of the issuer for one card you are sure you used at least once while abroad or with a foreign merchant, and the total number of days you were abroad.

So go file your claim. Now.

Back already? Good.

Now that you've filed your claim, here's more about what's happened, what's still wrong, what I'm doing to try to get it fixed, and what you can do to help:

Banks and credit card companies charge currency conversion fees when you make purchases or withdraw money from an ATM in a currency other than the one in which you are billed (almost always US dollars, if your cards are issued in the USA). Those fees are typically no more than half what retail money-changers charge to change money between currencies (with a lot of variation between banks), so it is usually a pretty good deal.

But for years, banks in the USA have been accused of conspiring to fix those fees, and of hiding them from consumers rather than itemizing them clearly.

(Similar things happen with ATM fees when you use your cards abroad. My bank promises to reimburse other banks' fees for using their ATM's. They do, automatically, when I use other bank's ATM's in the USA: But when I'm abroad, the fees are rarely itemized on my statement, or reimbursed automatically. Every few months while I'm abroad I have to call my bank to get them to research and credit the latest batch of ATM fees from foreign banks.)

Eventually, a bunch of people sued the card-issuing banks, Visa, and MasterCard. (And Diners Club, which is also included in the settlement, although I don't know many people who use it.)

The banks don't admit they did anything wrong, but they've agreed to fork over a third of a billion dollars to cardholders (and the lawyers who brought the suit) to settle these claims.

So far, so good.

The problem is is figuring out how to divvy up the pot. Most people don't keep complete credit card billing records and bank statements that old, especially for closed accounts. And people living and travelling abroad are among those least likely to have kept, or to have immediate access to, those sorts of records.

So the proposed settlement includes Option 2, which is intended to estimate how much you spent by credit, debit, or ATM card abroad, based on answers to a few simple questions.

Still so far, so good.

The problem is in choosing which small number of simple, easily answered questions will provide the best basis for an estimate, and determining what algorithm will best translate the answers to those questions into fair estimates and a fair allocation of the settlment among the millions of claimants.

That's a difficult task, calling for considerable research into travel and traveller demographics, segmentation, and spending and payment method patterns. Not easy, but the lawyers are asking for more than $75 million of the settlement money. For that, they should have been able to afford plenty of help from travel experts.

Unfortunately, the lawyers have little reason to care how the remains of the settlement are divided up, once they have taken their $75 million off the top. (The 20 named plaintiffs don't have much reason to care, either: they each get an average of $17,500.) And they appear neither to have, nor to have hired, anyone competent to devise a fair algorithm or allocation plan.

The settlement Web site mentions (deeply buried) the existence of the Option 2 algorithm, but says nothing about what it is. So in order to figure out how much I would get under Option 2, and whether it would be worth the effort and expense to make an Option 3 claim (which requires complete records of all claimed bills and charges), I wrote to the lawyers representing me and all the other members of the class of cardholders, to get them to tell me the algorithm and post it online for everyone who needed it to prepare their claim.

To my surprise, the lawyers' eventual answer (after repeated written and telephone follow-ups over several weeks) was that not only has the algorithm not yet been determined, but they had no information at all on which I could base even an informed guess as to what it might eventually be determined to be! If that's true, it means that it's impossible to predict whether the settlement allocation will be fair. (And if it's false, it means the lawyers are lying to, and withholding essential information from, their clients. For this they deserve $75 million?)

Worse, the "advice" they tried to give me was patently wrong, and betrayed naive (and wrong) assumptions and a complete lack of understanding, much less expertise, about the different types of travellers, travel behavior, and travel spending and modes of payment.

Looking more closely at the Option 2 claim form, and the lawyers' advice, it became apparent that the settlement allocation would likely be systematically unfair. My detailed analysis is in the formal objections I'm submitting to the Court that has to decide whether to approve the proposed settlement, allocation plan, and lawyers' fees. But my conclusions about the nature of the unfairness, as stated to the Court, are as follows:

Those with the largest claims are, of course, those who have lived abroad or travelled abroad for extended periods. Those likely to benefit unfairly from any algorithm based on the questions on the Option 2 claim form (which asks only about cumulative time abroad and trip purpose) are those who paid for few of their costs with merchants abroad with their personal US-issued cards. These would include particularly large numbers of those sent abroad by governmental or large corporate sponsors: military personnel on bases overseas and oil and gas workers on closed worksites, with few opportunities for local spending abroad; those living abroad in other government- or employer-paid housing; and those able to open bank accounts abroad from which to pay living expense while abroad (which is usually difficult without assistance, most often that of a corporate employer)

Those likely to be unfairly disadvantaged by the same algorithm are those who travelled or lived abroad on their own, who typically find it impossible to open a local bank account, cannot carry cash or travellers' checks sufficient for an extended stay, and of necessity pay almost all of their expenses either with US-issued cards or with local currency withdrawn from ATM's abroad with US-issued cards, often Visa- or MasterCard-branded.

Whether people were abroad under government or corporate sponsorship and employment, or on their own, thus may be a better indicator of foreign currency card usage than whether they were abroad for business or pleasure.

If you want to join me in objecting to the proposed settlement, you can do so without a lawyer (or with a lawyer, but it isn't required) by mailing a letter to the Court and the two lead lawyers for the class , with your letter postmarked by this Thursday, 14 February 2008. [Note that this date has been corrected -- there was a typo in the original version of this article. The correct deadline for objections is 14 February 2008.] If you don't want a third of a billion dollars, in which you share an interest, to be divided up in a completely secret, unpredictable, and probably unfair way, ask the Court to postpone its approval of the settlement, allocation plan, and award of attorneys' fees until the algorithm for Option 2 is disclosed to the members of the class, and can be evaluated for fairness.

A Federal District Court judge in New York City is scheduled to hold a hearing on Monday, 31 March 2008 on whether to approve the proposed settlement. Anyone can attend, but if you want to speak, you have to include a notice of your intent to appear with the letter stating your objections. I don't expect to be able to attend the hearing myself (I expect to be in the air, on a flight between Cairo and Dubai), but if any of my readers can attend, I'd love to hear what happens.

[Correction: Thanks to everyone -- including someone at one of the law firms for the class -- who pointed out the typo in the deadline date for objections in the original version of this article as posted online and to my e-mail newsletter last night. The version above has been corrected.]

[Update: As I noted in my original article, and as several readers correctly pointed out, the Web site for filing claims looks exactly like a scam site "phishing" for personal data for identity theft, and to file a claim online you have to enter your Social Security number and credit card number. Pretty scary. I should have noted that there is an option to file your claim by mail, which is much more secure. More importantly, the fact that the claim site is indistinguishable from a "phishing" site is indicative of gross negligence and/or gross incompetence on the part of its designers, and reinforces my grave doubts as to the competence and diligence of the lawyers in looking out for the interests of class members. I should also have made more clear that you can both make a claim (by mail or online) and object to the proposed settlement. If the proposed settlement is approved, those who don't make claims will get nothing. If you are going to object, though, you need to do so right away: objections must be filed with the court in New York by this Thursday, 14 February 2008. You have until 30 May 2008 to file a claim.]

[Further update, 18 March 2008: The lawyers for the class have filed their reply (see pages 19 and 22 of the 61-page PDF file) to my and the other objections to the proposed settlement. At least three other objector went to the not-inconsiderable effort and expense of filing a formal objection to approval of the settlement while the Option 2 refund algorithm remains unknown. According to the reply brief:

Four class members object that the algorithm which will be used to calculate Option 2 claims is not described sufficiently in the notice. As discussed above, the refund options provide a basis for the average class member to estimate the recovery based on the option they choos. [This is entirely untrue: This is exactly what the options don't do, and what the lawyers' refused to provide, even when it was specifically requested. - EH] Importantly, the algorithm is being developed by the Court-appointed Special Master based in part on actual claims data, and is not yet finalized....

Objectors Hasbrouck and Jou focus on the alleged vagueness of Option 2. Their objections, however, attempt to micro analyze the process and create needless complexities that will confuse class members and demand a level of exactness and precision that is not feasible in this context. Simply stated, option 2 claim refunds will be calculated based on information obtained from government travel statistics, claims data in this case, and sample data provided by Bank Defendants. While this process will necessarily deal with averages, median amounts and spending habits of many people, it is fair and resonable. Under the law that is all that is required.

Actually, I didn't object to the "vagueness" of the Option 2 algorithm: I objected to (1) its likely systematic unfairness (in favor of certain identifiable and distinguishable sub-groups within the class, and against the interests of other sub-groups), (2) the lawyers' withholding from class members who specifically requested it -- i.e. their clients -- of whatever information they have about the likely algorithm, and (3) the award of fees to the lawyers, while they are engaging in professional misconduct and breach of their fiduciary duty to their clients by withholding information known to them, which their clients need to know in order to determine whihc option is in their best interest. The lawyers' reply entirely ignores all of my actual objections, while nonetheless asserting conclusorily -- on the basis of information kept secret from their clients, if there is any basis for the assertion at all -- that the as-yet-undetermined algorithm will necessarily be fair. And it continues to claim that government (airline) travel statistics provide a fair basis -- when in fact they provide no basis at all -- for estimating spending by those who cross the Canadian and Mexican borders by land, and those who live or travelling for more extended periods outside the USA.]

[Further update: Jacob Jou, who also objected to the Option 2 "algorithm" and who attended the court hearing on 31 March 2008, reported that, "The judge did not definitively rule on any
issues (reserved most for future judgment), but he did say that he will not approve the Option 2 algorithm until all of the claims have been recevied AND de-duped by the settlement administrator, because he currently has inadequate information to determine whether the Option 2 algorithm is fair and adequate.... He said there will be a second hearing specifically on the Option 2 algorithm, but he didn't say when it would be."]

Will you really need a "Real-ID" to fly?

There's been a lot of confusion in the last few weeks as to (1) whether the USA Federal "Real-ID Act" will change the requirements for personal identification documents for airline passengers in the USA, and (2) if and when the Real-ID Act is fully implemented, will it be impossible to fly without showing a government-issued "Real-ID" document?

Now that the final rules for implementation of the Real-ID Act have been published, those questions can be answered simply and definitively: No, and no.

No publicly-disclosed USA Federal law or regulation currently requires domestic USA airline passengers to present any sort of evidence of their identity. If you have a valid ticket and comply with their general rules, airlines are required by Federal law to transport you, regardless of whether you have any identification papers (government-issued, "Real-ID" compliant, or otherwise). The Real-ID Act and its rules will not change any of this. You will still have a right to fly without ID, even under the Real-ID rules newly announced by the USA Department of Homeland Security (DHS).

There are other pending rules which, if they are allowed to go into effect, will require both government-issued papers and permission for international travel to and from the USA, beginning this month. And the proposed Secure Flight scheme would extend those papers-and-permission requirements to domestic air travel within the USA. Those are significant, and call for immediate litigation and ongoing refusal to comply with illegal orders. But those are all separate from the Real-ID Act.

Much of the confusion about the Real-ID Act and air travel has come from misunderstandings of the current rules, and from imprecise reporting about the proposed Real-ID Act regulations.

According to many news reports, residents of states that don't "choose" to comply with the Real-ID Act (essentially a set of Federal specifications for a distributed system of state-issued but integrated and nationally linked ID cards and personal information databases) would not be "allowed" to travel by air in the USA.

To his credit, Secretary of Homeland Security Chertoff has been narrowly precise and accurate in describing the implications of the proposed Real-ID rules. In his statements during the press conference announcing the rules, Chertoff himself was very careful not to say that anyone would be prevented from travelling by air if they didn't have Real-ID compliant papers, or didn't have any identification papers at all.

Chertoff spoke of inability or unwillingness to present Real-ID compliant identity documents at a USA Transpoortation Security Administration (TSA) checkpoint only as a factor in selection for more intrusive "secondary screening", not as a factor in whether the TSA would assert, or attempt to act on, a claim of authority to prevent you from flying:

Question: And can you tell me exactly what’s going to happen on May 2008 at airports across the country?

Secretary Chertoff: ... If a state were to opt out of this, then their license would no longer, as a matter of law, be accepted as identification for getting on an airplane. That means people from that state would have to come up with a different form of identification, or they might find themselves in secondary, because when people come without proper identification and they want to fly, they do wind up going into secondary and getting questioned.

The final rules for implementation of the Real-ID Act, as published in the Federal Register 29 January 2008, are consistent with Chertoff's statements at the press conference: The Real-ID rules say nothing about any requirement to show TSA or DHS agents or anyone else any ID documents, or obtain government permission, in order to fly,

The only mention of air travel in the rules is the inclusion of "boarding aircraft" among the "Federal purposes" for which only Real-ID compliant documents will be accepted. The key to understanding what this really means is that -- under current rules for domestic flights within the USA -- the only "Federal purpose" related to boarding aircraft, in which ID documents play a role, is the purpose of determining whether a would-be passenger is "selected" for secondary screening. So it's only the likelihood of being selected for more intrusive search and/or interrogation, not the ability to fly, that would be affected by whether states comply with the Real-ID Act rules.

The actual rules for who the TSA and DHS "permit" to travel are secret, as are the rules for who is selected for secondary screening. But in the case of Gilmore vs. Gonzales the 9th Circuit Court of Appeals reviewed (portions of?) those rules in secret, and based its legal opinion on its factual conclusion that even the secret rules did not actually require any ID in order to board domestic airline flights within the USA.

Because the court found in Gilmore vs. Gonzales that the then-current rules didn't require ID documents for domestic flights, it didn't address the question of whether it would be legal to change the rules to impose such a requirement, or whether rules requiring government-issued papers or permission -- such as those being implemented this month for international travel, and proposed for domestic flights as part of the TSA and DHS Secure Flight scheme) are consistent with Federal laws, the Constitution, or international human rights treaties protecting the right to travel. Those issues remain for future lawsuits.

Neither in his press conference announcing the "final" Real-ID rules nor anywhere else (so far as I can tell) has Chertoff himself said specifically that the Real-ID Act, or the regulations his agency has issued to implement it, would actually require ID to fly. But as of today (3 February 2008) the TSA Web site, for which Chertoff is ultimately responsible, still says unambiguously:

You must present a Boarding Pass and a Photo ID to get to the checkpoint and to your gate.

And Chertoff has has done as much as he can to contribute to this misimpression without himself telling a direct lie.

For example, in an op-ed column about the Real-ID Act in the San Jose Mercury News on 16 January 2008, Chertoff asked rhetorically, "Should airlines let passengers on board without validating their identity?" The implication, or course, was that the Real-ID Act would require them to do so. In fact, it would not, as I've just discussed. And another Federal law, the Airline Deregulation Act of 1978, under which all airlines operating in the USA are licensed, requires them to operate as "common carriers". As such, they are required to transport all passengers paying the fare and complying with the general conditions of carriage specified in their published tariff. It would be a serious Federal offense for them to "reserve the right to refuse service", pick and choose which would-be customers to accept, or refuse passage to would-be travellers for any other reasons.

So why are Chertoff and his minions sowing confusion about their own rules? Possible explanations include incompetence, negligence, or laziness. But I don't think Chertoff himself is that stupid.

The most obvious explanation is that they want to use the implied (but legally and factually empty) threat of denial of air travel to intimidate states into "voluntarily" complying with the Real-ID Act and its rules, and participating in its distributed national-ID system. An even more ominous possibility, though, is that Chertoff, the DHS, and the TSA (1) want to control who they allow to travel through a two-part papers and permission system, (2) know they have no legal authority to do so, and therefore (3) are trying to implement a de facto system to achieve the same functional effect, illegally, through the back door of a propaganda campaign to deceive the travelling public into thinking that the TSA and DHS already have the legal power to demand papers, block passage by those who don't have or won't show them, and control to whom they "choose" to grant or dent permission to travel.

Ominous developments for a police force already operating according to secret rules, and for the former prosecutor who heads those secret police.

[Update from the Identity Project, 31 March 2008: ID Still Not Required To Fly ]

New travel document requirements for USA citizens

Under new regulations and procedures announced to take effect over the next month, citizens of the USA will, for the first time, be required to obtain USA government permission in order to return home to their own country from abroad -- from anywhere else in the world, by air or sea or land.

On no other aspect of the right to travel is international law more clear than on the right of return to the country of one's own citizenship: "No one shall be arbitrarily deprived of the right to enter his own country." The new regulations are a flagrant violation of the obligations of the USA as a party to the International Covenant on Civil and Political Rights and other international human rights treaties, as well as a violation of the Constitutional duty of the USA government to treat such treaties as the highest law of the land.

It's to be hoped that some civil liberties or human rights organization or individual will go to court before the end of this month to enjoin the government from putting these rules and procedures into effect, and that citizens will assert their rights by attempting to cross borders without papers, and suing those goons from the USA Department of Homeland Security who try to stop them. But if that doesn't happen, here's what the DHS has promulgated as "final rules" and "procedures":

As I've noted previously, the so-called International APIS final rules effective 19 February 2008 will require all travellers to, from, or via the USA by air to obtain two forms of government permission to travel: (1) a passport, and (2) a "cleared" message from the DHS authorizing the airline to allow the specific person to board the specific flight or ship.

One might argue that a passport is merely a travel document, not a form of permission. But that would be wrong. Because nothing in the law or the regulations for passport ıssuance (which were revised in November 2007), guarantees anyone a right to a passport, it is in effect a travel permit, issued at the government's discretion. The individualized, per-flight, advance "clearance" message is quite unambiguously a permission-to-travel requirement.

This International APIS rule as originally promulgated in August 2007 applied only to air and sea travel. So it might have allowed, for those with enough time and money, at least a theoretical possibility that, if the USA wouldn't give them permission to come home, they could fly to Canada or Mexico, and return to the USA from there by land.

In practice that might be very difficult, because Canada has been barring passage to people on the USA "no-fly" list, and most flights betwen Europe and Mexico overfly the USA and thus are subject to USA jurisdiction and the APIS rules. But there are some very roundabout and expensive routes from Europe or Africa to Mexico by way of South America.

The DHS has proposed that the "Western Hemisphere Travel Initiative" (WHTI) rules that already (purport to) reqire passports for USA citizens for air travel between Mexico, Canada, and the USA be extended to those crossing USA borders by land and sea. But that portion of the WHTI rulemaking proposals remains pending, with no final rules yet published..

Even this narrow loophole for return to the USA without government permission will apparently be closed, however, by new procedures announced by the DHS in a notice published in the Fegeral Register on 21 December 2007:

CBP [the DHS Customs and Border Protection division] is now amending its field instructions to direct CBP Officers to no longer generally accept oral declarations as sufficient proof of citizenship and, instead, require documents that evidence identity and citizenship from U.S., Canadian, and Bermudian citizens entering the United States at land and sea ports-of-entry.... Beginning on January 31, 2008, a person claiming U.S., Canadian, or Bermudian citizenship must establish that fact to the examining CBP Officer’s satisfaction by presenting a citizenship document such as a birth certificate as well as a government-issued photo identification document.

The Federal Register "Notice" acknowledges that the WHTI proposed rules to require passports for land border crossings have not been finalized. But the "Notice" claims that the new document requirement is "separate from WHTI", is not a "rule", and is not subject to any of the same procedural requirements:

The instruction for CBP Officers to no longer generally accept oral declarations alone as satisfactory evidence of citizenship is a change in DHS and CBP internal operating procedures, and therefore is exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b).

On the basis of this claim. the DHS "Notice" neither acknowledges nor responds to any of the numerous objections that were raised to the proposed WHTI rules from both sides of the border, including formal comments on their illegality by the Identity Project. Clearly, the DHS doesn't want to address those legal defects in its travel document amd permission schemes.

The problem for the DHS is that -- regardless of the procedural requirements for changes to DHS instructions to CBP officers -- CBP officers who act on the new instructions by preventing citizens from entering or leaving the USA will be acting in violation of those citizens' rights and the obligations of the government of the USA under the Constitution and international human rights treaties.

With both this document requirement for USA-Canada/Mexico land travel and the document and permission requirement for international air travel between the USA and the rest of the world coming into effect within the next month, there is an urgent need for someone to challenge these regulations. The procedural issues are quite different, but the substantive issues of the right to travel without government papers or permission are identical.

For what little it's worth, the DHS followed its notice of the new procedures and document requirements for land border crossings with the announcement of the details of a new "passport card". Their idea was, apparently, to assuage the intense and widespread criticism of the new document requirements for land border crossings by promising to offer a cheaper alternative to a passport, "real soon now". But passport cards won't begin to be available until after the new procedures for USA-Canada/Mexico land border crossings take effect.

As I had expected , the passport card will contain a "vicinity" RFID chip, i.e. a chip that can be read at longer range than the "proximity" chip in "RFID passports. The DHS admits that each passport card will respond to any query by sending back a unique chip ID number -- apparently in the clear. So if you want a cheaper alternative to an (RFID) passport, it will have a much longer-range identity broadcasting mechanism. And as with RFID passports, there's nothing in the new rules to restrict private and commercial tracking of passport cards by their unique chip numbers, or secret commercial aggregation, use, and sale of those tracking logs.

Blacklisted by AOL

I've recently received a message indicating that the IP address of my mail server has been blacklisted by AOL. That means any e-mail that I send to anyone at "aol.com" isn't being delivered. Although I can't tell for sure, it probbaly means that if you send e-mail from aol.com to hasbrouck.org, AOl won't actually send it, but will delete it without telling you.

AOL won't say why it has blacklisted my address, or how I can get my address off their blacklist.

This affects my newsletter other mailing lists as well as my personal e-mail.

If you sent me a message recently from an AOL account, and haven't gotten an answer, please resend your message from an acount in another domain.

If you are subscribed from an AOL address to my newsletter or one of the other mailing lists hosted at hasbrouck.org, you may want to re-subscribe from an address in another domain.

Back in Brussels

Six months into my current year-long trip around the world, I'm spending this week in Brussels (Belgium). Some of the high points of our trip so far include English House in Buenos Aires (Argentina), Potosi (Bolivia), driving across the Atacama Desert and down the desert coast of northern Chile, Brazilian hospitality, Porto (Portugal), Ourense (Spain), the train trip through and along the Pyrenees, and Marseille (France).

A lot has happened in the nine months since my last visit here: