Thoughts?

In message <aa0bk0ld4f2f473obasun5vco9eq11hadc@>, at 04:18:01 on
Mon, 13 Sep 2004, Malcolm Weir <malc@gelt.org> remarked:

>>>The regulations were duly prescribed, and published in the Federal
>>>Register, and are now law as 49 CFR 1520...
>>
>>Lots of interesting things in there, but I can't see a requirement for
>>passenger ID as such, unless it's in the part about needing passenger
>>manifests.
>
>Well, duh!
>
>You appear to have forgotten that the regulation requiring ID is SSI,
>i.e. "secret".

You are beginning to lose me. Isn't the 49 CFR 1520 a *law*, not a
regulation? You said "and is now law as ..."

>Which is the point, remember?

And the law isn't secret, just any regulations it allows to be made.

>The above is the law that grants the FAA to make regulations about
>screening.

It's not screening that's the problem, but ID. Hence my question about
whether the relevant part is that bit of the law:

...allowing FAA to make regulations,

...to require a manifest.

>It doesn't dictate the form or substance of the
>regulations it makes.
>
>>The 1520 law, however, is about "protection of sensitive information"
>>(rather than the screening itself), and includes:
>>
>> (2) Security Directives. Any Security Directive or order-
>> (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other
>> authority;
>>
>>where 1542.303 is:
>>
>> § 1542.303 Security Directives and Information Circulars.
>> (a) TSA may issue an Information Circular to notify airport
>> operators of security concerns.
>>
>>...so that seems to be what's being discussed.
>
>Those are the regulations that prohibit the airlines from showing the
>directive requiring ID to passengers.

Is it time someone emailed these to Gilmore to see if it satisfies his
original question?

Gilmore: Being told that there's a secret law that requires one
to show ID before an American citizen can travel in his own
country struck John as illegal.

Or is his question badly phrased?

Perhaps he wants to know what's the (non-secret) law that spawns secret
regulations? I think we've found that now.

Gilmore: The airlines and the federal government insist that
federal law requires passengers to show identification, yet can
point to no published source of that requirement.

Whereas *we* can now point to it, do you agree?
--
Roland Perry

On Mon, 13 Sep 2004 12:36:30 +0100, Roland Perry <roland@perry.co.uk>
wrote:

>In message <aa0bk0ld4f2f473obasun5vco9eq11hadc@>, at 04:18:01 on
>Mon, 13 Sep 2004, Malcolm Weir <malc@gelt.org> remarked:
>
>>>>The regulations were duly prescribed, and published in the Federal
>>>>Register, and are now law as 49 CFR 1520...
>>>
>>>Lots of interesting things in there, but I can't see a requirement for
>>>passenger ID as such, unless it's in the part about needing passenger
>>>manifests.
>>
>>Well, duh!
>>
>>You appear to have forgotten that the regulation requiring ID is SSI,
>>i.e. "secret".
>
>You are beginning to lose me. Isn't the 49 CFR 1520 a *law*, not a
>regulation? You said "and is now law as ..."

Both. "CFR" is "Code of Federal Regulations". It is enabled by the
statute (the U.S.Code). But in general, the code authorizes
administrators to form regulations to implement some policy or other.

The regulations have the force of law.

Basically, there are three types of Federal law: the Constitution,
which is amended by the states, not by Congress; the US Code, which is
written by Congress; and the Federal Regulations, which are written by
administrators in accordance with the US Code.

>>Which is the point, remember?
>
>And the law isn't secret, just any regulations it allows to be made.

Which are also law.

>>The above is the law that grants the FAA to make regulations about
>>screening.
>
>It's not screening that's the problem, but ID. Hence my question about
>whether the relevant part is that bit of the law:

Define screening! It would be trivial to write a directive, pursuant
to the code section I cited, which required that the person being
screened provide ID to verify that they were not on a "watch" or "do
not fly" list.

Is that not (also) "screening"?

> ...allowing FAA to make regulations,
>
> ...to require a manifest.

Indeed.

>
>>It doesn't dictate the form or substance of the
>>regulations it makes.
>>
>>>The 1520 law, however, is about "protection of sensitive information"
>>>(rather than the screening itself), and includes:
>>>
>>> (2) Security Directives. Any Security Directive or order-
>>> (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other
>>> authority;
>>>
>>>where 1542.303 is:
>>>
>>> § 1542.303 Security Directives and Information Circulars.
>>> (a) TSA may issue an Information Circular to notify airport
>>> operators of security concerns.
>>>
>>>...so that seems to be what's being discussed.
>>
>>Those are the regulations that prohibit the airlines from showing the
>>directive requiring ID to passengers.
>
>Is it time someone emailed these to Gilmore to see if it satisfies his
>original question?

Well, the DoT could, but evidently a whole bunch of lawyers in two
courts think otherwise.

> Gilmore: Being told that there's a secret law that requires one
> to show ID before an American citizen can travel in his own
> country struck John as illegal.
>
>Or is his question badly phrased?

He's a founder of the EFF, and (at not much of a guess) not above
rhetoric.

And in practice, is he not wrong? If there exists a directive
required by a regulation pursuant to federal law, is it reasonable to
refer to that directive as "a law"?

It has the force of law, and is secret (although not in the
classification sense).

>Perhaps he wants to know what's the (non-secret) law that spawns secret
>regulations? I think we've found that now.
>
> Gilmore: The airlines and the federal government insist that
> federal law requires passengers to show identification, yet can
> point to no published source of that requirement.
>
>Whereas *we* can now point to it, do you agree?

Certainly not!

We can point to enabling legislation that might, or might not, justify
such a requirement, but absent the requirement *itself*, who knows?

Clearly, the authority to make such regulations exists, and from that
we can join the dots from "given we are told a regulation exists" to
that authority. But that sort of inference is, legally, unsound,
which is why it is normal to cite the authority when requiring actions
(e.g. no parking!)

This is important to many because if you provide the context for the
requirement, it can be challenged, tested, avoided, complied with etc.
without involving third parties (in this case, the airlines). As it
is, you don't know what someone may rule as acceptable ID tomorrow or
next week... the information is not available to the people it most
impacts.

Which is a Bad Thing.

Malc.

In message <lc4bk0tk6vpqm8b9e9pn39co7l816a4bdh@>, at 05:45:27 on
Mon, 13 Sep 2004, Malcolm Weir <malc@gelt.org> remarked:

>Basically, there are three types of Federal law: the Constitution,
>which is amended by the states, not by Congress; the US Code, which is
>written by Congress; and the Federal Regulations, which are written by
>administrators in accordance with the US Code.

And which of the last two are CFR's?

>Define screening! It would be trivial to write a directive, pursuant
>to the code section I cited, which required that the person being
>screened provide ID to verify that they were not on a "watch" or "do
>not fly" list.
>
>Is that not (also) "screening"?

Probably, although the stuff we've been discussing is very particular to
screening baggage. Also Gilmore wrote:

"passengers must present identification upon initial check-in."

which isn't the place bags are usually screened.

>>Is it time someone emailed these to Gilmore to see if it satisfies his
>>original question?
>
>Well, the DoT could, but evidently a whole bunch of lawyers in two
>courts think otherwise.

That's been my thought all along. If it was that simple it wouldn't have
go to this stage.

>> Gilmore: Being told that there's a secret law that requires one
>> to show ID before an American citizen can travel in his own
>> country struck John as illegal.
>>
>>Or is his question badly phrased?
>
>He's a founder of the EFF, and (at not much of a guess) not above
>rhetoric.
>
>And in practice, is he not wrong? If there exists a directive
>required by a regulation pursuant to federal law, is it reasonable to
>refer to that directive as "a law"?

I think that's the answer. So all these "enabling" laws are a red
herring. What he wants to see is the FAA regulation.

>It has the force of law, and is secret (although not in the
>classification sense).

Yes, if it was secret in that sense, not enough airline people would
have sufficient clearance to read it. Although they could just be acting
on the orders of a superior who was. You'd only need one per airline,
then.

>This is important to many because if you provide the context for the
>requirement, it can be challenged, tested, avoided, complied with etc.
>without involving third parties (in this case, the airlines). As it
>is, you don't know what someone may rule as acceptable ID tomorrow or
>next week... the information is not available to the people it most
>impacts.
>
>Which is a Bad Thing.

Yes, I have a similar bee in my bonnet about commercial organisations
who disallow activities because "they are against data protection", but
are quite unable to say what particular bit of the DPA would be
breached, or why they think the activity might qualify as a breach.

Odd how such restrictions are always only in the direction of stopping
customers from doing something or finding something out. Whereas when
the US Govt asks an airline "can we have all these confidential details
about your passengers" they roll right over and say "Of course" (even
when most Data Protection experts in Brussels agree that it's illegal).
--
Roland Perry