Passports

A passport is a very odd document. It does not belong to the bearer. It grew from a “letter of introduction” to its present form. It is a request from the home state of the traveller to the state or states to which the traveller is going, to accord the traveller respect and not to infringe his/her rights.

As an instance of this Giovanni Belzoni, an Italian strongman (literally), in 1815 procured a letter from the British consul in Naples to allow him to travel to Egypt where he explored many of the sights of Egypt and used explosives to break into the great pyramid where he wrote a message on the roof of one if its large chambers, still to be seen today.

This instance was instructive; Belzoni was a native of Padua, part of the Venetian Republic. Napoleon had destroyed the Republic and by 1815 the British dominated the Mediterranean and Egypt in particular, filling a vacuum after Napoleon defeated the Mameluke rulers of that country. Belzoni had lived in Britain for a period. So, he seemed an appropriate recipient of a letter of introduction from the ascendant power.

In modern times, refugees can get the equivalent of such a document from the United Nations Commissioner for refugees; by definition, their own state will not give them a passport.

So, what started as a handy or valuable thing to have on your travels has become an essential thing to have. The “friendly” state to which you travel will be anything but friendly if you do not have your passport.

In 1981 Philip Agee, a US citizen ran into some passport trouble; it was revoked by Alexander Haig the Secretary of State . At the time Agee was in West Germany. Agee, a former CIA agent, had engaged in a programme to publicly disclose the identities of the agents of the CIA around the world. Agee issued proceedings in a US federal court to restrain Haig in his actions. Agee won and won again on appeal. The case came on in the US Supreme court on further appeal where Haig won. (The Chief Justice, Burger, was a Nixon appointee.) The judgment recited the history of US passports; the history had commenced with the Passport Act of 1856 (a fateful and dismal year for the US).

Haig v Agee has had a significant effect in that it expanded the power of the Executive at the expense of the US Congress. In effect, the Supreme Court assigned powers to the Executive because the Congress had not expressly denied the power to the Executive. (A case, surely, from Agee’s point of view, of great unintended effects).

As for Agee, he promoted tourism to Cuba for US citizens, finally dying in 2008, just two years before Haig.

Barack Obama is a US citizen. This can be inferred from the fact that he is a candidate for nomination to run for President and, now, information that he applied for, and presumably got, a US passport (he is not from US Samoa).

The power to grant that passport lies with the US Government. That power connotes the power to keep the applicant’s personal details on file. That file, it can be inferred, is electronic. This can be inferred because the evidence that the file was accessed, and accessed unlawfully, consists of the IT record generated by each access. A person accessing the record must use a personal login code.

Unlawful access is no big deal.

This can be inferred from the fact that, although there are criminal penalties for wrongful access of records, nobody is being prosecuted for the wrongful accessing of Barack Obama’s file. The applicable legislation is the Privacy Act 1974.

The relaxed attitude to the accessing of his file may be accounted for in several ways; firstly, the accessing was done under authority; secondly, anyway, as is known, the passport itself is not secure. (The modern US passport is biometric and contains an RFID chip. The chip can be read at a distance. The passport is supposedly shielded to prevent this but it is doubtful if it is effective.) Thirdly, so what? What is he complaining about? What can be in his passport file that he is anxious to hide?

I suggest the true reason is very deep; candidate or no, Barack Obama is, essentially, on the wrong side of an asymmetric relationship. The State has and owns the information it took from him and feels no obligation to him for that. In short, the Privacy Act 1974, like all such provisions anywhere, is a sop.

(As I have maintained HERE, the “State” is an abstraction. Its wrongful acts are the acts of its agents who should always be made answerable for those acts.)

In Ireland the equivalent provisions are found in the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003. The latter was passed supposedly to transpose the provisions of Directive 95/46/EC.

These provisions are toothless. Essentially, they provide for the establishment of a regulator, the Data Protection Commissioner. If he (it has always been a he) receives a complaint he may investigate it. He is not obliged to prosecute an offender.

He may not have the resources to prosecute; he is, generally, dependent on the Government for resources. At least once in the recent past those resources dried up to almost nothing. (Arguably, the Commissioner is of a category of regulator as the Information Commissioner, but without the independence she has. The Government has been resolute in whittling away at her authority, mainly through the provisions of the Freedom of Information (Amendment) Act 2003)).

If Barack Obama were to lodge his complaint with the Irish Data Protection Commissioner there is every reason to expect he would be met by a Michael Mukasey response;

I don’t want to speculate but if somebody walked in here with a box full of evidence, they wouldn’t be turned away.”

Tea and sympathy?

We have commented previously on the ePassport and its lack of security.

See the attached opinion of the EU Article 29 Data Protection Working Party on RFID tags in passports and its recommendations for steps to precede the introduction of the chipped passports.

We cannot see that Ireland took any notice of the Working Party’s recommendations, not to speak of, inter alia, the concerns of Civil Liberties groups in the USA and Canada.

For example, what State agencies, besides the Department of Justice Equality and Law Reform, have access to the ePassport database? The Garda Siochana?

If we are not close to Boston or Berlin, with what place are we close?

The EU Council Presidency has proposed the setting of the minimum age for recording and storing facial images and fingerprints in the chip of a passport.

It proposes that both images and fingerprint records on passports be compulsory from the age of 12 and be permissible below that age.

The decision is to be made in a Committee on which Ireland has a representative. Its original brief covered visas; it was extended to documents of non EU nationals in the EU; it then began to look at passports and is currently looking at EU ID cards

What is Ireland’s position on these questions Mr. Ahern?

Are we intent on fingerprinting our children?

Are we intent on fingerprinting everybody?

Why?

Biometrics is the statistical analysis of biological data. A passport, therefore, cannot be a biometric passport, unless the meaning of biometrics has changed. A passport could be biometric if the purpose is the accumulation of statistics, not of one person or passport, but of many passports.

Passports, historically, were provided to travelers to ease their journey in foreign countries. A State document, requesting that the authorities abroad should help the traveler accorded with the fact that only States existed in public international law; individuals were not recognized (by and large still the case).

On that view the new Irish ePassport is a traditional document. It is addressed, effectively, to the USA. The United States of America will not assist Irish travelers unless they present a State document of request acceptable to the USA. Only an ePassport is acceptable.

However, it is not the Irish State that is of interest now to the USA, it is the traveler. Specifically, it is the identity of the traveler. Even more specifically it is the entire body of knowledge about each Irish traveler, to be embodied in every ePassport, which is of interest to the USA.

The ePassport is, presumably short for “electronic passport�?. The chip buried in the passport is a communications device. It can be read at a distance with suitable technology. It can be read anywhere in the world that the traveler goes to, not just at USA border or entry points. The information in it can, and will, form part of a huge database in the possession of the USA. Any US company or agency could become a collector of the information. It would not be necessary to see or handle the ePassport to download or transfer the information. It could happen at a car hire outlet or in an hotel. It could happen on a street.

The ePassport is a person’s barcode. It is the person’s identity.

The great era of identity theft is about to begin.

Hopefully, the first victim is not Minister for Foreign Affairs Dermot Christopher Ahern whose passport number is public property, displayed by him on the front page of the Irish Times of 17th October 2006.

Presumably he can at least be confident that it will not be stolen by Colonel Oliver North or Robert McFarlane (a.k.a. “Sean Devlin�?); he bears no resemblance to them.

What do their successors look like?