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CFPHR Joins Letter on Passport Questions

Center joined on to comments with the Identity Project and others concerning the State Department’s Biographical Questionnaire for passport applications.

More information here: http://papersplease.org/wp/2011/03/18/state-dept-proposes-biographical-questionnaire-for-passport-applicants/

Biographical Passport Question Comments“>Passport letter

Before the
BUREAU OF CONSULAR AFFAIRS DEPARTMENT OF STATE
Washington, DC 20037

COMMENTS OF THE IDENTITY PROJECT (IDP), CENTER FOR FINANCIAL PRIVACY AND HUMAN RIGHTS (CFPHR), KNOWLEDGE ECOLOGY INTERNATIONAL (KEI), CENTER FOR MEDIA AND DEMOCRACY, PRIVACY ACTIVISM, CONSUMER TRAVEL ALLIANCE (CTA), ROBERT ELLIS SMITH, AND JOHN GILMORE

Comments on proposed form DS-5513, OMB control number 1405-XXXX April 24, 2011
The Identity Project (IDP), Center for Financial Privacy and Human Rights (CFPHR), Knowledge Ecology International (KEI), Center for Media and Democracy (CMD), Privacy Activism, Consumer Travel Alliance (CTA), Robert Ellis Smith, and John Gilmore submit these comments in response to Department of State Public Notice 7345, “60–Day Notice of Proposed Information Collection: DS–5513, Biographical Questionnaire for U.S. Passport, 1405–XXXX ,” published at 76 Federal Register 10421 (February 24, 2011), and the proposed form, supporting statement, statement of legal authorities, and regulatory assessment which were provided to us by the Department of State in response to our requests, and which we have published for the benefit of other commenters at . We have posted the proposed Form DS-5513 at .
The Department of State (DOS) is seeking Office of Management and Budget (OMB) approval for a new collection of personal information from some subset of applicants for U.S. passports, as described in the “Notice of Proposed Information Collection” and the proposed Form DS-5513.
For the reasons discussed below, we oppose this information collection and proposed form as exceeding the statutory authority of the DOS, unconstitutional, and in violation of U.S. obligations pursuant to international human rights treaties to which the U.S. is a party. The DOS should withdraw its proposal; if it does not do so, OMB should disapprove the proposed information collection and form.
I. ABOUT THE COMMENTERS.
The Identity Project (IDP), , provides advice, assistance, publicity, and legal defense to those who find their rights infringed, or their legitimate activities curtailed, by demands for identification, and builds public awareness about the effects of ID requirements on fundamental rights. IDP is a program of the First Amendment Project, a nonprofit organization providing legal and educational resources dedicated to protecting and promoting First Amendment rights.
The Center for Financial Privacy and Human Rights (CFPHR), , was founded in 2005 to defend privacy, civil liberties and market economics. The Center is a non-profit human rights and civil liberties organization whose core mission recognizes traditional economic rights as a necessary foundation for a broad understanding of human rights. CFPHR is part of the Liberty and Privacy Network, a non-governmental advocacy and research 501(c)(3) organization.
Knowledge Ecology International (KEI), , is a not for profit nongovernmental organization that searches for better outcomes, including new solutions, to the management of knowledge resources. KEI is focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups. KEI undertakes and publishes research and new ideas, engages in global public interest advocacy, provides technical advice to governments, NGOs and firms, enhances transparency of policy making, monitors actions of key actors, and provides forums for interested persons to discuss and debate Knowledge Ecology topics.
The Center for Media and Democracy (CMD), , is a national independent publisher located in Madison, Wisconsin. Our team of writers focuses on reporting that promotes informed decision-making about policies affecting our lives – our economy, our environment, our health, our liberty, our security, and the health of our democracy – and aids citizen involvement and grassroots action. Our opinion pieces and advocacy work help advance consumer rights and civil liberties, including the right to privacy, as well as the constitutional freedom to travel and freedoms of speech, press, and assembly.
Privacy Activism, , is a 501(c)(3) organization, based in California. We strive to help people make well-informed decisions about personal privacy and to show how privacy decisions affect society as a whole. A key element of Privacy Activism’s approach is to communicate information visually, in order to make the complexities of privacy law and policy more
accessible to people with no specialized expertise in the issues. We focus primary on areas of consumer privacy, including data mining of consumer information, identity theft, medical records privacy and online behavioral advertising and tracking.
The Consumer Travel Alliance (CTA), , is a nonprofit, nonpartisan organization that works to provide consumers an articulate and reasoned voice in decisions that affect travel consumers. CTA seeks to help improve consumer understanding of the travel environment, including aviation, rail, cruising, telecommunications, banking, Internet travel services, and insurance. CTA supports an individual consumer’s freedom to travel whether for business or leisure, and protection of consumers during their travel activities. Through its efforts, the focus is put on how travel rules and regulations, national laws, and corporate policies affect the consumer. CTA is one of the member organizations of the Consumer Federation of America.
Robert Ellis Smith, a lawyer and journalist, is a leading expert on the right to privacy in the U.S., and the founder and publisher since 1974 of Privacy Journal, a monthly newsletter on the individual’s right to privacy. Privacy Journal covers new technology and its impact on privacy, useful tips for protecting your privacy, and the latest on court decisions, legislation, professional conferences, and corporate practices.
II. THE DOS HAS GROSSLY UNDERESTIMATED THE DIFFICULTY OF COMPLETING THE PROPOSED FORM AND THE TIME REQUIRED TO DO SO.
Most people do not know the answers to all of the questions on the proposed form. Very few, if any, respondents would be able to complete the proposed form. A good-faith effort to complete as much of the form as possible would require an average of 100 hours or more per respondent, not 45 minutes as claimed by DOS in its proposal. No matter how hard or long they worked at it, even if they hired a private investigator and/or traveled the country searching out details of past residences, past employers and
supervisors, medical records, or people who might have information about them, almost nobody old enough to apply for a passport on their own would be able to locate all the requested information.
Most people don’t have records of many of the items required to complete the proposed form, such as their mother’s address a year before and after their birth, the dates of all of their mother’s pre-natal medical appointments, all the places they have ever lived since birth, the names and addresses of all the places they have ever been employed, and all their past supervisors’ names and telephone numbers. Why should they have such records, when there was never before any requirement to keep such records?
Years later, who can remember with certainty every job they have ever had, the address, the name(s) of their supervisor(s), and those supervisors’ phone number(s) – even for the job you quit after a day, or the summer job you had at McDonald’s back when you were in high school? Attempting to answer these questions would involve trying to track down former co-workers or other associates who might remember these details. Especially for those who have lived in widely separated places, that might require expensive and time-consuming travel, hiring a private investigator, and/or fees to commercial data brokers. And in many cases, it would still be a futile search for nonexistent records of long-vanished businesses and long-dead people.
Ask your parents – if they are still alive (and what if they aren’t?) – for your mother’s address a year before or after your birth, or all the addresses where you lived before you were old enough to remember, and the answer in may cases will be at most a street name, or merely a town or city, not a complete address. “I might recognize the house if I went back there and drove past, if it’s still there and the neighborhood hasn’t changed too much,” would be a common answer. So attempting to complete as much of the form as possible would, in many cases, involve difficult trips with older and perhaps frail relatives, and door-to-door search for former family homes to identity their addresses.
The expectation that any adult would have, or be able to obtain, complete records of their mother’s pre-natal medical appointments, or of who attended their birth, with sufficient certainty to be able to to attest to these facts under penalty of perjury, is patently absurd. A best effort to provide as much of an answer as possible would entail commissioning a private investigator to track down medical records (retained, if at all, by whomever has inherited a medical practice perhaps two or three generations of practitioners later) and conduct a snowballing series of interviews of doctors, nurses, midwives, etc. (in many cases aged and/or failing of memory) about who inherited their records and where they might be found, who was present at the birth, or who else might know these things.
If it is recorded at all, some of the required information, such as the dates of all of one’s mother’s pre-natal medical appointments, is likely to be contained in health care records subject to HIPAA. In most cases, HIPAA regulations forbid the release of such records of treatment of a deceased individual except to their personal representative or for purposes of medical treatment, neither of which exception would necessarily apply in the case of a passport application by a surviving child. At best, they would be able to obtain this information for this non-treatment purpose only if they are able to identify, track down, and obtain permission from their mother’s “personal representative” for HIPAA purposes. A health care provider is allowed up to 30 days to respond to a request for a copy of health records, or up to 60 days in the case of older records stored off-site. And that’s if they comply with the HIPAA deadlines. Obtaining old maternal health care records could easily take months, or could be entirely precluded by HIPAA. Foreign health care providers might not be under any deadline or any obligation to provide records at all. Dealing with foreign providers, of course, could take even longer.
The older people are, and the more scattered their family is around the country or around the world, the less chance they would have of finding older living relatives able and willing to help provide or track down missing data, and the longer the search for them would be likely to take. There’s no indication that passport applicants would have subpoena power to compel answers to interrogatories by relatives or former employers or co-workers (who might have the only records of supervisors’ names or phone
numbers, if any such records exist) , or the production of such records as might exist. Should one, or can one lawfully, be denied a passport or the right to travel because one’s estranged relatives or former employers or co-workers decline to help conduct this research? Or if they are willing to provide information only for a fee which the applicant can’t afford? Of course not.
Certain groups would be even less likely than the norm to have any chance of completing the proposed form. Adoptees who aren’t in touch with their birth parents would have no chance of being able to provide the required information about their mother’s residence, pre-natal medical appointments, or the circumstances of their birth. People who have worked as casual laborers, who may have had a different employer and supervisor every day for months, years, or a working lifetime, would almost never be able to provide a complete list of employers’ or supervisors’ names, addresses, or phone numbers. Other people whose places of employment change frequently would have only slightly less extreme difficulty: agricultural and other migrant laborers, constructions workers, and so forth. People who have been institutionalized may not have known, even at the time, at exactly what address they were being held.
Refugees, especially those who were in hiding, moving from place to place often, and/or in flight from persecution for extended periods of time, may have little or no access to records of the addresses of the places where they “resided” while en route to eventual asylum in the U.S. Someone giving sanctuary to victims of persecution has good reasons, for their own security, to keep those they are sheltering from knowing the exact location of their place of refuge or the name of the person giving them refuge. Of course, refugees are among those least likely to have retained or have access to birth records, and thus most likely to be required to fill out the proposed new form.
Because the proposed form must be attested to under penalty of perjury, even a slight error or omission – a forgotten short-term job or assignment or a different supervisor, or an unrecorded pre-natal consultation between one’s mother and a midwife, for example – could subject the respondent to severe criminal penalties. The grave risk of perjury prosecution would compel respondents to err on the side of
not submitting the proposed form, and withdrawing their application for a passport, in case of any uncertainty as to the responses to any of the questions, especially those which by their plain language require complete, exhaustive lists of particular categories of historical data (all addresses, all employers, etc.). The risk inherent in the requirement for submission under penalty of perjury would, in this way, further reduce the number of people who would be able to complete the form. Anyone for whom the answer to any of the questions on this form is, “I don’t know,” or even, “I’m not sure,” would be unable to attest to the answers under penalty of perjury, and thus would be unable to obtain a passport.
III. IN THE ABSENCE OF SUBSTANTIVE AND PROCEDURAL STANDARDS FOR DECIDING WHO IS REQUIRED TO COMPLETE THE PROPOSED FORM, ITS USE WOULD BE ARBITARY, IN VIOLATION OF STATUTORY, CONSTITUTIONAL, AND TREATY LAW.
According to the Paperwork Reduction Act submission and supporting statement, as provided to us by the DOS, 74,000 people per year would be required to complete the proposed Form DS-5513. That is only a small fraction of the number of annual passport applicants. But the DOS is silent as to how – according to what substantive standards and what procedural due process – the decision will be made as to which passport applicant will be required to complete the proposed Form DS-5513. The complete lack of substantive standards and procedural safeguards violates the due process requirements of the Administrative Procedure Act, the U.S. Constitution, and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), and must therefore be withdrawn by the DOS or rejected by OMB.
The proposed form reminds us unpleasantly of the invidious historic “Jim Crow” use of a literacy or civics test of arbitrary difficulty, required as a condition of registering to vote and administered in a standardless manner. By making the test impossible to pass, voter registrars could use it as an arbitrary and discriminatory – but facially neutral – excuse to prevent any applicant to whom they chose to give a sufficiently difficult test from registering to vote, on the ostensible basis of their having “failed” the test.
In a similar way, choosing to require an applicant for a passport to complete the proposed Form DS-5513, which few if any applicants could complete, would amount to a de facto decision to deny that applicant a passport. And that decision would be standardless, arbitrary, and illegal.
Standardless or “discretionary” imposition of the requirement to complete the proposed form invites and creates the potential for, and likelihood of, numerous forms of abuse.
Who will be required to complete the proposed Form DS-5513, under penalty of denial of a U.S. passport and confinement for life to the territory of the U.S. – or, if they are applying for a passport abroad (such as to replace a lost or stolen passport), de facto banishment for life from the U.S.?
Will standardless DOS discretion be exercised to require individuals to complete the proposed Form DS-5513 on the basis of race, religion, or national origin? On the basis of their having visited (as evident from their passport submitted with an application for renewal), or intending to visit (as stated on their passport application), particular other countries? Or on the basis of their exercise of other rights protected by the First Amendment, such as associating with certain other people, expressing certain ideas, or criticizing the U.S. government in general and/or the DOS in particular?
Will those of us who submit comments opposing this proposed new form be singled out to be required to complete this form the next time we apply for or renew our U.S. passports, if it is approved?
And how, if at all, would it be possible to detect such invidious abuses of discretion?
Because the purportedly permissible “routine uses” of this information would include disclosure to any other agency of any government, it’s likely that it would be used as a means to compel answers of interest to other agencies, to questions and for purposes for which those agencies lack their own authority to compel responses. Someone exercises their right not to answer questions from police or other government agents about their family history, religious practices, or other intimate matters? Just alert the DOS that you are interested, and the next time this person applies to renew their passport, DOS will require them to complete Form DS-5513, under penalty of perjury, and “share” the responses with you. The proposed form, and its potential for abuse, should be evaluated as an all-purpose
interrogation tool, by which any government agency on whose behalf the DOS chooses to exercise its discretion could compel answers to all the questions on the proposed form, for any purpose.
IV. THE “ROUTINE USES” OF THE INFORMATION ON THE PROPOSED FORM WOULD INCLUDE IMPROPER, EXCESSIVE, AND PRIVACY-INVASIVE DISCLOSURES.
The information collected on the proposed Form DS-5513 would be part of the “Passport Records (STATE–26)” system of records, subject to a System Of Records Notice (SORN) published at 73 Federal Register 1660-1664 (January 9, 2008). According to the proposed form, “routine uses” of any or all of this information would include disclosure, without limitation, to “other government agencies and private contractors, … foreign government agencies, international organizations[,] … private persons and organizations [,]… and private employers.”
No meaningful limits are placed on these “routine uses” or the disclosures they purport to authorize. For example, the SORN purports to authorize as a “routine use” disclosures to, “Federal, state, local or other agencies for use in legal proceedings as government counsel deems appropriate. ” Under this provision, any lawyer employed by any government agency could authorize, at their sole discretion, disclosure of the entire DOS file on any passport applicant – including the proposed Form DS-5513 – to any agency of any government anywhere in the world, for any purpose that lawyer “deems appropriate.”
Pursuant to the Privacy Act of 1974, 5 U.S.C. 552a(a)(7), “the term ‘routine use’ means, with respect to the disclosure of a record, the disclosure of such record for a purpose which is compatible with the purpose for which it was collected.” The routine use of information collected on the proposed form “in legal proceedings as government counsel deems appropriate,” does not limit the allowable disclosure to any clear purpose. Regardless of how the imprecise term “legal proceedings” is defined, not all legal proceedings would be related to the purpose – passport issuance – for which DOS collects this information. “Deems appropriate” is standardless, and fails to address (let alone meet) the requirement of the Privacy Act for compatibility of routine uses with the purposes for which personal information is collected. Accordingly, this proposed “routine” use would violate the Privacy Act.
Crucially, no distinction is made in the applicable SORN between claimed authority to verify or divulge a person’s U.S. citizenship status as a “routine use” of this data, and disclosure of the entirety of the information collected on the new “Biographical Questionnaire” for (some) passport applicants.
No explanation or justification whatsoever has been offered as to why such a range of other U.S. and foreign government agencies and private third parties would need to know all of the information submitted in support of a passport application, and not just whether a U.S. passport has been issued.
The information required on the proposed form far exceeds, in both quantity and sensitivity including religious and medical details, what is described in the SORN or required on any prior passport application form. Indeed, it appears to be comparable to the information required on an application for a security clearance for access to classified information, and to exceed that required on an application for Federal government employment. The proposed information collection exceeds the scope of the SORN, and requires the DOS to conduct and publish for comment a new SORN and a new Privacy Impact Assessment (PIA) before submitting the proposed form to OMB for approval. If that is not done, OMB should reject the proposed form as exceeding the scope of the information collection and retention disclosed in the SORN for this system of records, and therefore in violation of the Privacy Act.

V. THE DEPARTMENT HAS FAILED TO EVALUATE THE IMPACT OF THIS INFORMATION COLLECTION ON THE ABILITY OF U.S. CITIZENS TO EXERCISE RIGHTS PROTECTED BY THE FIRST AMENDMENT AND INTERNATIONAL TREATIES.
The proposal describes the proposed form as required for receipt of a Federal benefit. But international travel, for which a passport is now required, is a right, not a mere “benefit”.
The fundamental defect in this rulemaking is that the Department has failed to evaluate the impact of the proposed new requirement to complete a new form on the ability of U.S. citizens to exercise rights of assembly and freedom of movement protected by the First Amendment and international treaties.
When the current passport issuance regulations were established, it was still possible (although significantly encumbered) for U.S. citizens to enter or leave the U.S. without a passport or any other government issued identity credentials. Passport issuance laws and regulations were therefore evaluated, both by the DOS and by the courts, as pertaining to the issuance of credentials which were not essential for the exercise by U.S. citizens of their rights to cross U.S. borders.
That has changed, however, with the implementation of the “Western Hemisphere Travel Initiative” (WHTI), which requires a passport, passport card, other specified government issued identity credential, or a (standardless) “discretionary” waiver of this requirement, as a prerequisite to crossing any U.S. border by any means by any U.S. citizen. See our previous objections to those requirements, “Comments of the Identity Project, Documents Required for Travelers Arriving in the United States at Air and Sea Ports-of-Entry From Within the Western Hemisphere,” USCBP-2006-0097, September 25, 2006, available at , and “Comments of the Identity Project, Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry From Within the Western Hemisphere,” USCBP-2007-0061, August 27, 2007, available at .
The right to assemble and the right to petition for redress of grievances are directly protected by the First Amendment. In the case of U.S. citizens born and/or residing abroad, or U.S. citizens wishing to assemble with U.S. citizens abroad, the exercise of those rights requires crossing U.S. borders. The right to freedom of movement, specifically including both the right to leave any country and the right to return to one’s own country, is protected by Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by, and binding on, the U.S. The ICCPR has been effectuated, with respect to rulemaking and other activities of agencies including DOS, by Executive Order 13107, “Implementation of Human Rights Treaties,” which directs all executive departments to “maintain a current awareness of United States international human rights obligations that are relevant to their functions and… perform such functions so as to respect and implement those obligations fully.”
Now that the U.S. government requires U.S. citizens to have passports for international travel, conditions on passport issuance must be considered according to the higher standard of justification applicable to regulations which burden the exercise of rights protected by both the First Amendment and Article 12 of the ICCPR, including a showing that the proposed rules are the least restrictive available means of accomplishing a permissible government purpose, and would in fact achieve that purpose.
As discussed in our previous comments to U.S. Customs and Border Protection on the WHTI document requirements in dockets USCBP-2006-0097 and USCBP-2007-0061, cited above, the Department of State has reiterated in its most recent report to the United Nations Human Rights Committee that, “As reported in the Initial Report, in the United States, the right to travel – both domestically and internationally – is constitutionally protected.” (Second and Third Periodic Reports of the U.S. Concerning the International Covenant on Civil and Political Rights, Paragraph 203, 28 November 2005, CCPR/C/USA/3, available at , referring to Initial Report by the U.S. Concerning Its Compliance with the International Covenant on Civil and Political Rights, July 1994, CCPR/C/81/Add.4 and HRI/CORE/1/Add.49, available at).Even before the promulgation of the WHTI regulations requiring U.S. citizens to obtain passportsfor travel with the Western Hemisphere, the Supreme Court had long recognized that passport issuanceimplicates the fundamental Constitutional freedom of travel. “The denial of a passport, given existingdomestic and foreign laws, is a severe restriction upon, and, in effect, a prohibition against, world-wideforeign travel.” Aptheker v. Secretary of State, 378 U.S. 500 (1964).Strict scrutiny is required for regulations which, like the proposed requirement to complete FormDS-5513, would burden passport issuance and thus the exercise of First Amendment rights. Strictscrutiny requires both a showing of actual effectiveness for a permissible government purpose, and thatno less restrictive effective alternative is available: “[T]he court should ask whether the challengedregulation is the least restrictive means among available, effective alternatives.” Ashcroft v. ACLU, 542U.S. 656 (2004).With respect to international treaties, Article 12, Section 4, of the International Covenant on Civiland Political Rights (ICCPR), ratified by the U.S. Senate on April 2, 1992 (138 Congressional Record S4782), provides that, “No one shall be arbitrarily deprived of the right to enter his own country.”The meaning of this section of the ICCPR is interpreted in Paragraph 21 of U.N. Human RightsCommittee,
General Comment No. 27 on Freedom of Movement in Article 12, issued under Article 40(4)of the ICCPR, CCPR/C/21/Rev.1/Add.9 General Comment No.27, 02/11/1999, available at:In no case may a person be arbitrarily deprived of the right to enter his or her owncountry. The reference to the concept of arbitrariness in this context is intended to emphasizethat it applies to all State action, legislative, administrative and judicial; it guarantees thateven interference provided for by law should be in accordance with the provisions, aims andobjectives of the Covenant and should be, in any event, reasonable in the particularcircumstances. The Committee considers that there are few, if any, circumstances in whichdeprivation of the right to enter one’s own country could be reasonable.
Sections 2 and 3 of Article 12 of the ICCPR provide:2. Everyone shall be free to leave any country, including his own.3. The above-mentioned rights shall not be subject to any restrictions except thosewhich are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent withthe other rights recognized in the present Covenant.To be “necessary”, as is required by Section 3 of Article 12, requires more than that a restrictionon human rights be related to, or actually further, one of the enumerated purposes. “Necessity” requiresa showing that no less restrictive alternative could adequately serve the particular enumerated purpose.This interpretation of “necessity” is supported by the U.N. Human Rights Committee, GeneralComment No. 27 on Freedom of Movement in Article 12, which provides in Paragraph 14:Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictionsserve the permissible purposes; they must also be necessary to protect them. Restrictivemeasures must conform to the principle of proportionality; they must be appropriate toachieve their protective function; they must be the least intrusive instrument amongst thosewhich might achieve the desired result; and they must be proportionate to the interest to beprotected.Since there is no such showing of “necessity” in the proposal for this form or any of thesupporting documents, or even any evidence that less restrictive alternatives were considered, theproposal to require this form is flatly inconsistent with the U.S. obligations embodied in this article of theICCPR, and must be withdrawn or rejected by OMB.In addition, the proposed requirement to complete this form is inconsistent with Article 21 of theICCPR, which imposes a similar standard of “necessity” on rules which burden the right of assembly:The right of peaceful assembly shall be recognized. No restrictions may be placed onthe exercise of this right other than those imposed in conformity with the law and which arenecessary in a democratic society in the interests of national security or public safety, publicorder (ordre public), the protection of public health or morals or the protection of the rightsand freedoms of others.The same analysis of the DOS’s failure to make or support a showing of necessity applies withrespect to this Article 21 as with respect to Sections 2 and 3 of Article 12, as discussed above.
proposed information collection is thus inconsistent with Article 21 of the ICCPR as well, and must bewithdrawn.There are clearly less restrictive alternatives to the proposed requirement to complete this or anysimilar form, such as a form on which applicants may submit such information as they believe constitutes prima facie evidence of citizenship, and/or elimination of the requirement for U.S. citizens to have apassport to enter or leave the U.S. But the DOS has failed even to consider the heightened standard of justification required as a consequence of the imposition of the WHTI requirements for governmentissued identity credentials for U.S. citizens, which has made denial of a passport tantamount to acategorical bar on international travel (except with the discretionary and standardless case-by-case”waiver” of the passport requirement by the government, which fails to satisfy any due process standard).Before proposing any rule to require such a form, the DOS must evaluate the proposal against thestandard of justification applicable to rules that burden the exercise of rights protected by the FirstAmendment and the ICCPR, including consideration of these less restrictive alternatives.We raised these issues with the DOS in our previous comments regarding passport fees:“Comments of the Identity Project, Consumer Travel Alliance, Center for Financial Privacy and HumanRights, and John Gilmore, Schedule of Fees for Consular Services, Department of Stateand Overseas Embassies and Consulates ,” DOS-2010-0035 , March 11, 2010, available at. Although our comments were specificallymentioned in the analysis of comments published by the DOS along with the interim final rule, ourobjections on the basis of the First Amendment to the U.S. Constitution and Article 12 of the ICCPR werenot mentioned. (“Interim Final Rule, Schedule of Fees for Consular Services, Department of State andOverseas Embassies and Consulates ,” 75
Federal Register
36522-36535, June 28, 2010.) We still havereceived no response to our complaint that the rule violates U.S. obligations pursuant to the ICCPR.
We note that Executive Order 13107 requires that “The head of each agency shall designate asingle contact officer who will be responsible for overall coordination of the implementation of thisorder…. Each agency shall take lead responsibility, in coordination with other appropriateagencies, for responding to … complaints about violations of human rights obligations that fall withinits areas of responsibility or, if the matter does not fall within its areas of responsibility, referring it to theappropriate agency for response.”Despite diligent inquiries, including unanswered inquiries to the designated DOS point of contactfor this proposed information collection, we have been unable to determine who, if anyone, has beendesignated as the DOS “single contact officer” for implementation of Executive Order 13107, includingresponding to complaints of violations by DOS of human rights treaties.We therefore specifically request that our prior complaint, as made in our comments cited aboveon DOS-2010-0035, and this complaint, be referred to the officer designated by the Secretary of State asthe single contact officer for implementation of Executive Order 13107, and that we be provided with aresponse to each of these complaints of violations by DOS of human rights treaty obligations.
VI. THE DOS LACKS STATUTORY AUTHORITY TO REQUIRE PASSPORTAPPLICANTS TO COMPLETE THE PROPOSED FORM, OR TO DENY PASSPORTS TOTHOSE APPLICANTS WHO ARE UNABLE OR UNWILLING TO COMPLETE THE FORM.
Completion of the proposed form, in its entirety, is proposed to be mandatory for all thosepassport applicants who are selected (in some unspecified and apparently standardless and nonreviewablemanner) to receive this additional form. The form states that, “failure to provide the informationrequested may result in … the denial of your U.S. passport application. “However, none of the statutes listed as legal authorities for the proposed form provides any actualbasis for such a denial. A passport application may be denied only where there is a sufficient factual basis for a duly-made determination that the applicant is not a U.S. citizen. In the absence of such facts,the issuance of a passport is a matter of right.Even if there were Constitutionally valid statutory and regulatory authority for the imposition ofadministrative fines or other sanctions for refusal to complete the proposed “Biographical Questionnaire” – which has not been shown, and which we would question, especially since most people would be unableto complete the proposed form – any such sanctions would be independent of the entitlement of theapplicant to a U.S. passport, unless there is evidence establishing that the applicant is not a U.S. citizen.The only portions of the citied regulations that might even arguably provide authority for theproposed information collection are 22 CFR Sec. 51.28(c) (“Any official receiving an application for apassport or any Passport Issuing Office may require such additional evidence of identity as may bedeemed necessary”) and 22 CFR Sec. 51.54 (“Nothing contained in Secs. 51.43 through 51.53 shallprohibit the Department from requiring an applicant to submit other evidence deemed necessary toestablish his or her U.S. citizenship or nationality”). But those provisions are limited to evidence actuallydetermined, in a particular case, to be “necessary” to determining U.S. citizenship.Similarly, the abstract in the Paperwork Reduction Act statement accompanying the proposedform is based on a claim of necessity: “This form collects information necessary to verify a respondent’scitizenship and identity.” But this claim is false, and the proposed information collection is not limited toinformation that is, in any case much less in all cases, “necessary” for such a determination. While insome cases some of the information on the proposed form might be relevant to determining citizenship, inmost cases all or most of it would not even be relevant, much less essential. The suggestion that, forexample, it would never be possible to determine whether someone is a U.S. citizen without knowingwhether, when, and with what if any religious rituals they were circumcised, is obviously absurd.Since it is not based on any determination of “necessity”, the proposed information collectionexceeds the regulatory authority of the DOS, and must be withdrawn or rejected by OMB.

VII. THE DOS HAS FAILED TO EVALUATE THE IMPACT OF BEING REQUIRED TOCOMPLETE THE PROPOSED FORM ON INDIVIDUALS AS “SMALL ENTITIES”PURSUANT TO THE REGULATORY FLEXIBILITY ACT.
According to the supporting statement, “The collection of information does not involve smallbusinesses or other small entities. ” This is clearly incorrect. The applicable statutory definition of a”small [economic] entity” does not distinguish between corporations or sole proprietors, and does notexclude natural persons. The individual persons subject to the requirement to complete the proposedform, as a condition of issuance of a passport, will include numerous “small entities”: sole proprietors,freelancers, and self-employed individuals. Given the extensive and growing prevalence of these self-employment arrangements, any rulemaking that affects a significant number of individuals is likely toinvolve a significant number of small entities, as this proposal would. Accordingly, the regulatoryanalysis is defective in failing to evaluate the impact of the proposal on these small entities.A proper analysis of the impact of the proposed form on individuals as small entities must beprepared and published for comment before the proposal can even be considered for approval.For those affected, the economic impact would be substantial. In a minority of the best cases, in which it is eventually possible for the affected individual to complete the form (after inquiries to olderrelatives and past co-workers, archival research, research travel to previous places of residence, andperhaps with the assistance of a private investigator) it would still cause potentially critical delay in beingable to accept or fulfill any contract requiring international travel during the weeks or months required toresearch answers to complete the form. In the vast majority of cases, in which it is impossible ever tocomplete the form, being required to complete the proposed Form DS-5513 would constitute a categoricallifelong bar to any pursuit of business opportunities that might require international travel. In anincreasingly global economy in which self-employed individuals, freelancers, and sole proprietors find a growing proportion of their customers and suppliers abroad, confining them to work solely within thedomestic U.S. economy will typically have a substantial lifelong negative impact on career and earnings.
VIII. CONCLUSIONS AND RECOMMENDATIONS
The proposal for Form DS-5513 should be withdrawn by the DOS. If it is not withdrawn, itshould be modified to eliminate any claim that declining to complete the proposed form – whetherbecause of inability to do so or for any other reason – constitutes a lawful basis for denial of a passport.If the DOS does not withdraw this proposal entirely, it must correct the estimated time required tocomplete it (in the rare cases when that is possible at all) to a more realistic estimate of at least 100 hoursper respondent; evaluate the impact of inability to complete proposed form on the ability of U.S. citizensto exercise rights protected by the First Amendment and international treaties; promulgate validsubstantive and procedural standards for determining which applicants will be required to complete theproposed form; conduct and publish for comment a new System of Records Notice and Privacy ImpactAssessement; and conduct and publish for comment an evaluation of the impact of the proposed rules onindividuals as “small economic entities”, pursuant to the Regulatory Flexibility Act.If the current proposal for Form DS-5513 is not withdrawn, it must be rejected by OMB.Pursuant to Executive Order 13107, this complaint and our previous (unanswered and stillpending) duly-filed complaint of violation of U.S. human rights treaty obligations by the DOS should bereferred to the officer designated by Secretary of State as the single contact officer for implementation ofExecutive Order 13107, and responded to in accordance with that Executive Order.

Respectfully submitted,
The Identity Project (IDP)A project of the First Amendment Project1736 Franklin St., 9th FloorOakland, CA 94612/s/Edward Hasbrouck,Consultant to IDP on travel-related issues
Center for Financial Privacy and Human Rights Post Office Box 2658 Washington, DC 20013-2658
Knowledge Ecology International 1621 Connecticut Ave. NW, Suite 500 Washington, DC 20009
Center for Media and Democracy 520 University Ave., Suite 260 Madison, WI 53703
Privacy Activism 4026 – 18th St.San Francisco, CA 94114
Consumer Travel Alliance 7062 Solomon Seal CourtSpringfield, VA 33152
Robert Ellis Smith, Publisher, Privacy Journal Post Office Box 28577 Providence RI 02908
John Gilmore Post Office Box 170608 San Francisco, CA 94117