I sent the following letter to the Department of Homeland Security, and each member of the Senate Committee on Homeland Security & Governmental Affairs, Senate Appropriations Subcommittee on Homeland Security, and the House Committee on Homeland Security on May 3, 2007.
A podcast version of this experience is available at The Privacy Podcast.
3 May 2007
Dear Daniel K Akaka, Lamar Alexander, Robert C Byrd, Benjamin L Cardin, Thomas R Carper, Tom Coburn, Thad Cochran, Norm Coleman, Susan M Collins, Larry Craig, Pete V Domenici, Judd Gregg, Daniel Inouye, Herb Kohl, Mary L Landrieu, Frank Lautenberg, Patrick Leahy, Carl Levin, Joseph I Lieberman, Claire McCaskill, Barbara A Mikulski, Patty Murray, Ben Nelson, Barack Obama, Mark L Pryor, Richard Shelby, Arlen Specter, Ted Stevens, John E Sununu, Jon Tester, George V Voinovich, John Warner, Christopher P Carney, Donna Christensen, Yvette D Clarke, Henry Cuellar, Peter DeFazio, Norman D Dicks, Bob Etheridge, Al Green, Jane Harman, Sheila Jackson-Lee, James R Langevin, Zoe Lofgren, Nita Lowey, Ed Markey , Eleanor Holmes Norton, Ed Perlmutter, Loretta Sanchez, Bennie G Thompson, Albert R Wynn, and Department of Homeland Security Office of General Counsel,
I am writing to alert you to certain DHS practices that seem to violate basic principles of citizenship and civil liberties, while providing no measurable security benefits. DHS is operating in a gray area of the law, and I am asking you to investigate these practices to determine their legality and constitutionality. I also hope you can answer a few basic questions about the short- and long-term consequences of the intimidating experience I had.
I have written the Department of Homeland Security twice in the last two months, and received no response or explanation. I raise three objections:
- First, the Department of Homeland Security should not have the authority to track the movement of United States citizens once they arrive in the country, absent probable cause, merely because they once fell into the broad class of “international travelers.”
- Second, some Homeland Security policies and tactics are more about intimidation and looking good at some future congressional hearing than security, while simultaneously hurting freedom and failing to protect national security interests.
- And third, there is a growing culture of governmental lawlessness and intimidation, emerging as a result of expanding executive power, in the name of National Security.
I want to be clear that this letter is not about Homeland Security officers overstepping their statutory authority, acting irrationally or abusively, or with undue force.
At the beginning of March 2007, I took a 5-day business trip to the Netherlands, to a small town called Ede. Because of my work schedule, I made no purchases except meals. I returned to the United States with no purchased goods, and I carried less than $40 in cash (including Euros).
Every citizen and alien entering the United States must complete a blue Customs Form 6059B, declaring the value of the items he is bringing into the United States. The form is mandatory, and includes your full name, birth date, family members who are traveling with you, passport number, and other information. I filled out the form completely and accurately, except Lines 4(a) and 4(b). These lines are entitled “Street Address (hotel name/destination),” and require travelers to write their complete destination address. And that’s where I objected.
Specifically, the Department of Homeland Security should have the authority to track the movements of law-abiding United States citizens, once they have left the airport and entered the United States, simply because they were international travelers at one time. On a custom’s declaration form, a citizen’s address is logically unrelated to the value of goods, and is no good for identification or security because it may be easily falsified. Because the address may be easily falsified, form 6059B has the effect of tracking the movements of only law-abiding citizens who pose no threat, without probable cause.
So, I left lines 4(a) and (b) blank. The first officer expressed annoyance that I didn’t fill out the form properly. She ordered me to fill in the lines. I politely refused. She informed me that it was mandatory, and that “…Even the President of the United States” must do it. Of course, whether the President had to fill out these lines is not the point- the question is whether the President, or any other citizen should have to do allow their movements to be tracked once they enter the United States.
Of course, I didn’t bother getting into that discussion with the officer, though. Instead, I politely refused again. I felt very uncomfortable, since this was the first time in my life I had ever disobeyed a direct request from an officer.
She called for a supervisor. Immediately, four additional officers were at my side. A supervisor questioned me further. I again politely refused to write my destination on the form. He forwarded me to “Line C” for secondary processing. When I arrived, I looked around at lines A, B, and C. I don’t know if I was the only United States Citizen in those three lanes, but of the more than a dozen people in those lines, I was certainly the only Caucasian.
The secondary officer was a little more pushy, and insisted on calling me “Bossman,” until I told him that “I am not the boss, you are,” after which he dropped the epithet.
He asked where I was traveling from, then said, “If you refused to tell them where you were going in Amsterdam, they’d put you on the next plane home. If you went to London, and you pulled this crap, they’d send you home. If you traveled anywhere in the world and you pulled this crap, Bossman, they’d send you home.”
“So,” I replied, “send me home.”
He dropped the subject, and moved on to another line of questioning.
Of course, I was home. The difference between me in the United States versus Amsterdam or London, is that I’m a citizen in the U.S. I recognize that when I travel to other countries, I am a guest in those countries, and I have only the rights they choose to give me. But it’s a different story in my home country. I am a citizen.
Another officer corrected me, “You are an international traveler.” With that one phrase, she instantly conveyed the fact that as an “International Traveler,” I am less than a Citizen. This concept of law is new to me, and my question for you is: How much less of a citizen am I, when I travel internationally?
The interrogating officer directed me to place my bags on a conveyor belt, where he did a search of the entire contents. He called his supervisor, and I was immediately surrounded by six officers for the duration of my stay at Dulles International Airport Customs. I did not ask, and he did not tell me his name.
While he was doing the search, he continued to interrogate me. He temporarily confiscated my driver’s license, and peppered me with questions about my name, hotel in the Netherlands, hotel receipt, my place of employment, work phone number, boss’ name, other employees’ names, the precise amount of time I had been working at my current place of employment, and so on. Occasionally he would pause to remind me that “this doesn’t need to be this hard—” all I had to do was fill out the form.
And each time he told me how easy it would be if I just complied, I realized how absurd the entire ordeal was. First, they knew exactly who I was—they had my passport, my driver’s license, my home address, and a complete profile on me, which was required before they let me step on the plane to begin with. They had done a thorough search of my belongings and confirmed that I was truthful on my customs declaration form—which was the purpose of the customs declaration form, in the first place.
I respectfully refused, again, and again, and again, to write my destination on the form, but I answered all other questions completely, correctly, and respectfully (even ones that seemed logically irrelevant, or to which I objected). I even explained that I was going home, and that my home was in the Washington D.C. area.
After interrogation from two separate officers (with four others blocking possible exits at all times), three officers escorted me into the back room, for a complete body pat-down. I spread my arms and feet, while an officer did a clothed pat-down of every inch of my body, including my groin.
They did not find my destination address in my pants.
After the officer was done I asked, “So, writing my destination address on the form would make me that much less dangerous?” That particular officer gave me a look that said, “Hey, I’m just doing my job.”
At that point, I realized that these were not security measures, but intimidation tactics to induce compliance. The officers’ job was simple- do what they could to make me comply. In fact, the very last thing an officer told me was, “Let this be a lesson to you to comply in the future. This was unnecessary, and could have been avoided if you had simply complied.” Well, of course it was. I already knew that.
I was expressly complicit with every order each officer gave me. I was polite and respectful at all times (mainly because I didn’t want to give the six officers a reason to jump on me). I told the officers where I was going, and where I had been. The only thing I refused to do was give the exact street address of my destination, which I could have made up, anyway.
All said, they read me the riot act for 45 minutes. An officer finally wrote down my home address printed on my driver’s license, and confiscated my customs declaration form for additional “special” processing. Apparently this procedure is highly unusual, since the officer at the exit refused to let me leave unless I gave him the form. I had to get special permission to leave the area.
I have no idea why what the special processing entails, why I should be subjected to it, or why it was necessary. After all, the officers won—in the end, they got every piece of information they demanded.
DHS is Indiscriminately Tracking Movements of Law-Abiding Citizens
My first objection is simple: Absent reasonable cause, Customs, or the Department of Homeland Security, or the Federal Government, cannot have jurisdiction to track the movements of a large class of United States Citizens.
But the DHS is tracking the movements of a large class of citizens once they have entered the country, namely “international travelers.” Though the Executive Branch has deemed this class universally suspicious, the designation is neither warranted nor logical.
When the government tracks the movements of citizens, they are no longer treated as welcome visitors, but as hostile strangers, which citizens are protected against by the Privileges and Immunities Clause of the Constitution. In addition, tracking the movements of large classes of citizens chills freedom of movement, which the Supreme Court has explained “as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” (Kent v. Dulles, 357 U.S. 116 (1958)).
Requiring Citizens to Divulge their Precise Destination Address has no Effect Except to Penalize Law-Abiding Citizens
Because lines 4(a) and 4(b) can be easily falsified, only law-abiding citizens would fill them out correctly. No bad guy would knowingly write his destination address. The lines are therefore effectively worthless for identification, duty enforcement, or security profiling for would-be criminals. Their only effect is to track movements of law-abiding citizens.
In addition, additional security tactics (such as a full body search, intense interrogation, and full baggage search) were logically unrelated to determining my destination. They were nothing more than intimidation tactics, not security tactics. If I had merely falsified an address, I could have avoided the additional security tactics, but ironically my actions would have been more suspect. The point of security questions and measures should be security, not intimidation.
Finally, a reasonable person might question whether the Department of Homeland Security prudently applied such an intense amount of resources (namely six officers for 45 minutes) to a matter of a destination address. The prudence of applying such resources is beyond my area of knowledge.
DHS is Fostering a Culture of Intimidation and Lawlessness
My final objection is a rising culture of lawlessness and intimidation, in the name of National Security. I assume that the officers did not exceed their statutory authority. I assume that they probably could have detained me for 24 hours if they had wanted. I don’t believe that the officers acted with undue force. They did not abuse or beat me. However, the entire thrust of the exercise was to intimidate me into compliance with a form, even though they had all relevant information. And I’m frankly grateful that I was a white, articulate, natural born citizen; otherwise I’m fairly confident that I would have been subjected to additional “security measures.”
But most importantly, I don’t know what the consequences of my actions will be. If I speed or break a criminal law, the punishments are well documented in the law and courts. My questions are: Did I break the law? If so, what law? What are the short and long-term consequences of my actions? The legal ambiguity surrounding this incident is indicative of a culture of lawlessness, and needs to be clarified.
Even though the officers got every piece of information they demanded, they still found it necessary to record something about me in their files. What did they record? Do I now have a profile, and what does it say? Does it say: “Aaron Titus is a know-it-all pain-in-the-butt?” Or more frightening, perhaps it says, “Aaron Titus willfully disobeys direct orders of TSA officers.” Or even worse, perhaps there is just a non-descript red “flag” that will put me in the same category as suspected terrorists and have an effect on my freedom of movement, or future government employment, in perpetuity.
I am unable to answer these questions, and hope that you will be able to elucidate some of them:
- What is the difference between “International Traveler” and “Citizen?”
- Did I break the law?
- Do I have a security profile, and if so, what does it say?
- Who has access to my profile, and how may it be used?
- Will this letter be added to a file or profile in my name?
- What will the consequences be, and how long will they last?
I walked out of Dulles International Customs shaken and intimidated, and a little scared at what unknown consequences await me because I refused to fill out lines 4(a) and 4(b) on a Customs form. Since that time I’ve told some of my friends about the run-in with Homeland Security over the phone. Then, half-jokingly I’ve said something like, “You’d better be careful, because you’re talking to an enemy of the state. Our conversation is probably being recorded.” Then we both pause, and then laugh nervously, because the idea is simultaneously absurd and frighteningly plausible.
I would appreciate any clarification you can give.