Why You Shouldn't Leave Home Without A Passport Card

This week, BJ speaks with Ian Head from the Center for Constitutional Rights about FOIA, who broke it, and whether or not there's still value in using it (Answer: YES!)

This week's book excerpt also covers how to bulletproof your voter registration, and how to protect yourself when crossing the border into, and out of, America. 

Most important of all: This week, we tell you why every single American citizen should go and get themselves a passport card. Like, right now.

Full Transcript From This Week's Episode

(Note: I'm still experimenting with using an AI to help clean up the transcripts for typos, spelling, and grammatical mistakes produced by Riverside in its transcription process, and then manually listening to the interview to correct things. Since I was short on time this week — because of this article, among others — there may be some errors below. If so let me know and I'll fix them.)

BJ Mendelson: Hello everyone and welcome to another edition of Privacy Tips, the sister podcast for Stupid Sexy Privacy. I'm your host, BJ Mendelson.

Today's show is made possible by our friends at DuckDuckGo. So if you enjoy what we do, check out our DuckDuckGo subscription. It comes with a simple and easy-to-use VPN, identity theft protection, data removal service, and more. Additional information can be found at DuckDuckGo.com/subscribe.

(Some features and offerings will vary based on your location.)

Now, my friends, Stupid Sexy Privacy has wrapped, and you can find all of the episodes online at stupidsexyprivacy.com. All you have to do is click on the episodes page.

Like I mentioned, we're still tweaking and adding things to those episodes. So if you've already heard them, I'm going to suggest that you go back and check them out soon. If you have not heard any of those episodes, we hope you enjoy them, and just keep in mind that we're going to add some cool bonus features in the not-too-distant future.

The purpose of Privacy Tips, for now anyway, is to give me an opportunity to read from my book, How to Protect Yourself from Fascists and Weirdos. We're also going to present interviews with some of our guests that you would usually find on Stupid Sexy Privacy, which includes this week's episode.

This week, we interview Mr. Ian Head. He is the Open Records Project Manager at the Center for Constitutional Rights. Since we have an interview this week, we're going to go right into the book excerpt. For those of you just joining us, I've been reading from How to Protect Yourself from Fascists and Weirdos. Usually in this section, I'll tell you something about what's coming up, but this one kind of speaks for itself.

It covers what's known as "Kavanaugh stops" and also what you should do if you're going to be traveling internationally to protect yourself when you're crossing the American border.

So we're going to get right to that, and then we're going to move to the interview. But before we do, let's hear from our sponsors at DuckDuckGo.

All right, so we're going to get right into our book excerpt for the week. (You can read the entire book here, for free.)

Book Excerpt

"If you're not registered to vote, you can use vote.org to help you do so. Don't wait to do this, and bookmark that site to check your registration status every six months. Fascists and weirdos don't want you to vote. They'll use every trick in the book to kick you off the voter rolls. By keeping an eye on your voter registration, you'll know if they try to pull a fast one on you.

Next, we want you to get a passport book and a passport card.

Due to the Louisiana v. Callais Supreme Court decision, that passport card may be the only way you can vote in the future. Similarly, when you cross the border, go to a protest, or film ICE, the only ID you should ever have on you is your passport card. So if you can, get both. Acquire a passport book and give it to a trusted friend or family member while keeping the passport card on you at all times. This is especially important because of what's called a Kavanaugh stop.

This is where law enforcement can stop and question someone based solely on the color of their skin and their chosen language. If that makes you furious—and we hope it does—that's good. Anger can be useful to recruit and organize people. Good organizers know how to turn that anger into action. You do this by offering positive solutions that benefit everybody, with concrete steps each person can then take. We'll discuss those steps throughout the rest of this book.

For now, we'll remind you that Congress can expand the Supreme Court, launch impeachment proceedings against at least two of the current justices—Associate Justices Clarence Thomas and Samuel Alito—create an ethics code with severe penalties for impropriety, and implement term limits. The Supreme Court will, of course, have to rule on the constitutionality of Congress's changes. That's fine. We'd rather force the issue than sit around and debate ourselves to death. When in doubt, pass the law and let the courts fight it out. When fighting fascists and weirdos, always try something over nothing. You may get lucky.

If you're planning to cross the border with your passport card anytime soon, we want to wish you good luck.

We are old enough to remember our friends traveling abroad during the early Iraq years, back when they identified themselves as Canadian and placed Canadian flag pins on their backpacks. You can try that, but be warned: if you do, you may be quizzed on your Quebecois.

So, for what it's worth, we recommend wearing a Montreal Canadiens hat and knowing a thing or two about the team. Another thing we recommend is that if you're crossing any border, upload anything you need from your phone and laptop to Proton Drive.

Then, once you're done, wipe both your devices. You can download the stuff you need and restore everything else after you've crossed the border. Of course, this assumes you back up your hard drive using Apple's Time Machine or similar software—something we encourage you to do if you're not doing so already.

Before re-entering the United States, repeat these steps. Both your phone and your laptop should be powered down when crossing the border. If you are wealthy enough to afford it, you can skip this entire process. You can just use a clean computer and a clean phone whenever you travel. That's exactly what it sounds like—something you use only when you travel.

If you forget to do any of these steps and you're at a border crossing, at the very least, make sure you delete your Signal app, your social media apps, your email app, and your browser app from your phone ASAP. Get into the habit of regularly deleting the Signal app on your phone and laptop. If you're detained, your legal rights may vary based on your citizenship. For example, if you're an American citizen, you do not have to answer questions about your culture or your religion.

Regardless of your citizenship status, if those acting as government officials or law enforcement seize your device, ask for all the documentation involving that seizure. You will need this information later to get your stuff back. If you feel like you're being harassed, ask to speak to a supervisor. This is a great opportunity to embrace your inner Karen.

Now, not a lot of Americans can afford a passport. Less than half of us have one, partly because of that expense. This is where mutual aid networks will be needed. It's up to all of us to ensure that every American who wants a passport can get one. You can start this process by providing mutual aid locally within your neighborhood. We'll discuss how to set up those neighborhood groups later in this book."

Our Interview With Ian Head About FOIA

Ian Head: My name's Ian Head. He, him pronouns. I work at the Center for Constitutional Rights as the Open Records Project Manager. So I spend most of my time working on freedom of information, or FOIA, requests and litigation, as well as a lot of state-level public records requests. I also train activists, journalists, lawyers, law students, and all kinds of people around the country on how to use—and hopefully use effectively—these requests in their organizing and advocacy work.

BJ: That's something I definitely want to talk to you about. Part of my series on FOIA is exploring all the issues with it, but we still want people to be armed with the knowledge of how to use it. You know, of course, we both find it to be useful. So are there any tips that you find yourself generally recommending to everyday people—not journalists—who are interested in putting in a FOIA request?

Ian: Yeah, I mean, I think the general outlook is: don't be afraid of FOIA, don't be afraid of public records requests. These are, at least to make a request, free tools that you can use, whether it's in your state or federally, to file a request and ask for documents. There's no one going to ding you or there's no harmful thing in asking for records. So I think, even though there are lots of issues with actually getting useful records—which I'm sure we could talk about—this isn't something only journalists can use, or only lawyers can use, or something you have to understand the law to put together. Anyone can do it.

BJ: Do you find there's a common mistake people make when they submit a FOIA request?

Ian Head: I mean, it's hard to say generally. I think there's a degree of FOIA where people are kind of fumbling around in the dark. Sometimes people might write a request that is a little overly broad, and they have to narrow that request. Unfortunately, that can be a way for some of these agencies to delay or even close your request by saying it's overly broad. But I mean, a general mistake? It's hard to pinpoint. Getting back to my original point, I think there's just a lot of intimidation when it comes to writing requests to your government or your federal government if you're not comfortable doing that kind of thing. But I don't necessarily think there's a mistake that most people make.

BJ: To that point, you mentioned something in your New Republic piece, and something we've run into, particularly with ICE: them telling people your request is too broad. Tell us a little bit about what happens when you get that kind of response, particularly from an agency like ICE that may not want to cooperate.

Ian: Yeah, there are a couple of points I could make there. First, that response is unfortunately more and more common, but it's been a response that I've been getting for the last ten-plus years. And it's a really frustrating response because a lot of the time—I'd say the majority of the time—the requests that we're making are not overly broad or vague. So it seems more like an automatic response from a robot rather than from someone who's actually read our records request.

For them, it's likely a useful way to slow things down and weed out people who they feel are not making so-called serious or useful requests, whatever that might mean. And what we have to do then is respond. But what's supposed to happen is: you make a request, and they actually give you a real answer—like, "Hey, we looked for these records, we didn't find anything," or "We're still looking," or "Here are some records, but they're redacted." Those are supposed to be your typical FOIA responses from an agency.

Instead, they're telling you, "We're not even going to look for anything. We read your request, it's overly broad. We can't do anything with this, and so if you don't get back to us in fifteen or thirty days, we're going to just close it and not do anything else." That's not a fun thing to get, and it means you have to respond and say, "No, my request was pretty specific. Here it is again. Here's how it was specific. Here's how, if I really want to get technical, here's how it complies with ICE's law and regulations. Please process this request." But most people either aren't going to know how, or know where to look, or know that they have to line up their request with what might need to be said legally. And that's really frustrating. I think it really creates a big roadblock to actually pursuing your FOIA request.

I've looked through the Center for Constitutional Rights' archives and talked to folks who were doing FOIA work back in the eighties, nineties, and even seventies. I've run into people who were able to file a FOIA request in the late '70s about federal surveillance of themselves by the FBI and CIA and get back forty, fifty pages of heavily redacted documents, right? I'm not saying they got those two weeks after filing their request, but they didn't have to litigate to get at least a starting point on what was going on.

And the idea now? I hundred percent agree: the idea of getting surveillance documents from a major law enforcement agency without going to court seems pretty much ludicrous at this point—unless you want to wait three or four years. But that's also ridiculous, right? Why should we be waiting three or four years to get twenty pages of documents?

BJ: Well, that's my concern with the FCC right now. I have a FOIA request for records from Brendan Carr and his executive team concerning ABC and ABC's license, and I'm convinced that that's going to just sit in a black hole until long after he's gone. Am I wrong to think that?

Ian Head: No, no, you're not wrong to think that at all. I think that it's really frustrating. And so, because myself and others I work with can't obviously always go into court—you can't always hire a lawyer to go into court—we've tried to come up with creative ways to put more pressure or use the process of requesting the documents themselves as advocacy moments or different advocacy avenues. Because yeah, waiting for these documents forever, or until they're no longer relevant, is just ridiculous.

BJ: So, part of the ongoing series we've done on FOIA is we've talked with people about whether or not AI was useful in a scenario where you need to do a FOIA request. Have you found that to be helpful for people, maybe to save them time, or would you recommend they just steer away from it entirely?

Ian: I am not a huge fan of AI, so I haven't really personally messed with anything AI-related. I know people have started using AI for requests, but I don't know if that's really going to help things. I'm open to hearing different people's experiences with AI. I just feel like, to me, it seems to add an extra level of editing because I'd have to go back and double-check anything I did through AI to make sure it was properly written or properly communicated.

BJ: Yeah, one thing we found is it makes up court cases. So if you're citing something, you better know if those cases are accurate or not. And we talked to a couple of people who've also said, you know, by the time you do the research work of finding the appropriate person using an organizational chart and then being as specific as you can, you really don't need the AI to do it. Like, you've already done the work.

Ian: Yeah.

BJ: So one of the things I wanted to bring up to you was that this year, you were on Democracy Now! and I really enjoyed that interview. Amy Goodman had pointed out that it's the sixtieth anniversary of FOIA. But it sounds like FOIA's been broken, and I was hoping you might be able to point to some of the culprits behind that as we celebrate its sixtieth anniversary.

Ian Head: Yeah, I mean, I think on one hand it's hard to point to the culprits specifically, except on the other hand, I think the culprits really are just the executive branch of government—primarily the law enforcement agencies who, from the beginning, from my understanding of the signing and implementation of FOIA, were not fans of transparency or accountability, right?

So I think a large part of the records that a lot of us are interested in—whether it's social justice work, journalism work, legal work, or whatever it might be—is the goings-on of the agencies that are the most secretive: the CIA, the FBI, the DOJ, the DHS now in this century. And I don't think that they are interested in being transparent for the most part. So if we're looking at culprits, I think that's the major one.

And I don't think there's—I think the narratives of national security, the narratives of law enforcement safety—these are narratives that, when we get to fighting about these FOIA requests in court, are really hard narratives to break.

BJ: We're doing this research series on FOIA, and one of the things that's come up is the importance of FOIA officers. One of the ways we've heard it's broken goes back to the FCC example I mentioned.

Ian Head: Right, right.

BJ: I put in my FCC FOIA request. I had a phone conference with a FOIA officer. They discussed with me what had already been released—Wired magazine, for example, had asked for something similar, and they had put out some of Carr's emails. But there was a very nice FOIA team there that spoke with me. And I found that's not the case anymore with other federal agencies. The thing we keep hearing is that these helpful FOIA officers are disappearing.

So I was hoping you could speak to the importance of what these people do and the loss that's occurring with them not being available.

Ian Head: Yeah, so I think my answer to that might be a little more nuanced than others, and I might disagree a bit with my experience with others. I think that what we're seeing with this recent administration is that FOIA is losing a lot of staffing, and the whole FOIA processing setup is breaking down across the federal government—much like many things are breaking down across the federal government right now.

BJ: Right. Sure. Sure.

Ian: However, in my experience, I have never felt that I was necessarily getting a helpful response from FOIA officers ever at the larger law enforcement agencies. And so I tend to think—and I wouldn't necessarily have lumped the FCC in with this—I'm talking primarily about ICE, DHS, FBI, DOD. And so I think there is a real difference, over the last few decades of FOIA and the breakdown of it, between how responses to law enforcement agencies are dealt with and how hard it is to get substantive, actual responses versus—definitely not perfect, but—a somewhat more open and helpful set of FOIA officers when it comes to non-law enforcement agencies.

Whether it's the FCC, the US Postal Service, the Bureau of Labor, the Department of Agriculture—I mean, obviously there are a lot of other executive agencies not primarily involved with law enforcement. And with those ones, yeah, I think up until this administration, you could potentially get on the phone with them or have useful and constructive conversations about requests.

BJ: I'm going to ask you the typical reporter's question, which I understand may be impossible to answer given that we have no idea if our dictator will allow us to have elections this fall.

Ian: Mm-hmm.

BJ: But let's put that aside and assume a normal functioning system, or as close to normal as we can make it. What could someone listening to this do? Is it as simple as calling their congressman and saying, you know, FOIA needs teeth the way FOIL in New York needs teeth? Or is it demanding that there's funding at these agencies for FOIA officers, or a little bit of both?

Ian Head: Yeah, I'm less concerned. I mean, right now obviously people need funding, but I would be less interested in asking for more funding. I think your first suggestion is the better one: these FOIA laws need teeth. There needs to be some kind of mechanism to make sure that FOIA actually works for everyday people, as well as journalists and others doing this work.

My understanding is that—and I don't have any hard evidence for this, but from what I've heard talking to folks—FOIA works pretty well for corporations, who like to confront the bill to get all kinds of data and records to help with their competitive uses. They file public records requests all the time. But for the rest of us? Yeah, calling Congress and asking for more teeth.

And then I think also, even though I'm sitting here talking very cynically about FOIA and I'm writing this op-ed that says FOIA is broken, I'm really just trying to give voice to how frustrating it is. But I'm going to keep filing FOIA requests. And I think people should keep filing FOIA requests, even if they don't necessarily go that far, because I think it is an important, unique, and amazing law. And I think that we need to keep showing the powers that be that there is a demand for this transparency, this accountability, for these records. I think it's really, really important to keep using this tool.

BJ: I totally agree. And my last question for you is: is there anything I haven't asked you about the op-ed or about FOIA in general that you think might be important for people to hear?

Ian Head: I guess I would throw out maybe two strategies that we use that I think are really helpful. In general, I think it's always good to be creative when thinking about open records work and FOIA.

One is that we do a lot more state-level requests. I know it sounds like you've had a lot of frustration with New York.

BJ: Yes, quite a bit.

Ian Head: As have I, especially when it comes to the larger law enforcement agencies again, but I've also had some pretty good results in different states depending on the agency. And you never know where you might find something. I have a colleague who works a lot in Louisiana. She sent a public records request to the Department of Archaeology. I didn't even know states had state departments of archaeology, and she got some really amazing maps that were incredibly helpful for a lot of the advocacy work down there.

BJ: Wow.

Ian Head: So there's that piece of it. And then the other piece is that what we do a lot with our FOIA requests—and it's not something you need to do with every FOIA request, but especially when we're talking to, say, grassroots organizations trying to use FOIA to uncover things locally or beyond—is doing press releases and using FOIA as a very public demand on the government rather than just a kind of private or quiet demand to ask for records, if it's useful.

Making noise can put extra pressure sometimes and has been useful in moving things forward. Whether or not we actually got records or got records quickly, it's been helpful to the broader advocacy push on the issues connected to the FOIA requests. So that's been a creative and really amazing strategy I've seen work.

Show Outro

BJ: Today's episode of Privacy Tips was recorded in Hollywood, California, and is sponsored by DuckDuckGo. It was written, produced, and hosted by me, BJ Mendelson. Special thanks to Ian Head for joining us this week.

Before we go, I want to give a shout-out to the production team at Stupid Sexy Privacy, which includes Andrew Van Voorhees, Rosie Tran, and Amanda King, and of course our friends at DuckDuckGo. If you enjoyed today's show, we hope you'll take a moment to leave a review on Spotify, Apple Podcasts, or wherever you may be listening. This won't take more than two minutes of your time.

You see, we have this crazy goal, and we need your help to achieve it. We want 5% of Americans—just 5%—to be 1% better at protecting themselves from fascists and weirdos.

Leaving us a review can help make that happen. That's because your reviews will help other people find the show. So please take a moment to leave us a review, and we'll see you next time, Thursday, for another edition of Privacy Tips.