ESTA,VWP and the Australian Info Sharing with the USA

[Blazevic]

Hi,
I have seen many topics regarding people with problems in entering the USA under the VWP with a criminal record.
Most of the advice seems to be leaning towards the official line of" if in doubt get a visa"...which is all fine and dandy..but I am wondering if anyone has done any research on exactly what information Australia is sending over the USA, without your knowledge and consent.

If you look at the ESTA "to be mandatory from Jan 2009", is the same as the I-94W, but contains no disclaimer asking the signer permission to check their Australian Information, apart what you willingly provide them in terms of your passport and the forms you fill.
Doesn't Australia have a privacy law!! or did that just go to hell..because uncle sam decided that they wanted the information regardless of individual rights...and does the USA/Canada have direct access to the Australian Law Enforcement databases for them to background check you in 72 hours!!

With the new passports coming in with the RFID chips...is criminal records information going to be recorded on that...then what is the use of a Spent conviction scheme....your record pretty much sticks with you for the rest of your life...

Would love to have hear from people who have had experience with the ESTA and machine readable passports and travel to USA with a conviction etc.

Thank You

 

[serfty]

... then what is the use of a Spent conviction scheme....

Except for certain types of crimes a government is prevented by law from supplying information to a third party relating to convictions which are 'spent' or 'passed'. More here:

• VISA WAIVER PROGRAM TO USA

OZ Government authorities appear to be proving the USA with information (I'm sure this provision of information is reciprocated) - see this post:

• Example Posted

(Note the issue mentioned was not considered spent at the time of travel - being only 3 years prior.)

 

[Blazevic]

I had come across the example posted in your reply...while reading some of the threads, this was the case where a mother was charged for shoplifting because her child picked up a candy bar without her knowledge....and she actually got turned back....
now...I can understand if the Australian government shares info on serious criminals, but i don't agree with this blanket scheme where any and all crimes are being reported to the US....

Does anyone know if there is a an Australian legal document siting that all your information will or might be shared with a foreign govt without your knowledge.
It just so perplexing that in an advanced society and country like AUS we have privacy laws that would protect you within the country, but none at all when dealing with an outside govt!

Worst of all neither the AUS police nor the government are willing to disclose what information will be shared... so much for "right to information!!"

I agree that the US has the right to ask for information from the passenger and then decide who to allow and not allow...but I don't think it is upto the AUS govt to volunteer anybody's information!! without express consent!!

 

[Dave Noble]

I agree that the US has the right to ask for information from the passenger and then decide who to allow and not allow...but I don't think it is upto the AUS govt to volunteer anybody's information!! without express consent!!

The US government has the right to decide who that they will allow into the country; it becomes a tricky issue since the US could, if they did not like the amount of info being provided, just drop Australia from the VWP and require all travellers to have a visa. As part of the visa grant they can require info on all arrests/convictions be provided

If pre-information was refused, the US could refuse to allow Australian carriers to fly to the USA

Just because one country has a view on what is a spent conviction, it doesn't mean that another has the same

Any doubts on eligability, then get a visa

Dave

 

[serfty]

... Just because one country has a view on what is a spent conviction, it doesn't mean that another has the same ...

Note the case in point was not "Spent" or "Passed" as is generally defined by the various state's legislation.

If this 'candy bar' case had been so "spent", any such provision of information by any Oz government authority to the USA would have been in breach of legislation.

 

[trooper]

I would have thought that by opting to USE the VWP that there was some form of "implied consent" involved to the measures and conditions of that program..

..or do folks just expect what anyone says on these documents to be accepted without any checks?

Dave Noble covers the other aspect of it nicely.. would ANYone here prefer to have to get a visa?

 

[Blazevic]

I agree with Dave Noble.... Yes the US in its own interests should be able to get information that it needs in order to protect its borders....and so should Australia...
What I want to know...is why there is absolutly no disclaimer of any kind by the US or AUS authorities... disclosing to the people what information is being shared!!
Why can't they be open and say "this is the information we share". As an individual I think I have the right to know what information about me is being shared with a foreign govt...and once the US has this info! what is protecting you from any misuse of that information.... nothing????

I hope I am able to make my point here! it is not whether one should apply for a visa or not or try to slip thru the cracks! but the very fact that we have absolutly no idea as to how the AUS govt can treat your personal data!!. Whether the US recognizes spent convictions is not relevant.... it is the law of the land here in AUS, and if the US wants that information then the AUS govt should say"yes we will release it but only with the consent of the person!!" what is wrong with that!!!

 

[Dave Noble]

it is the law of the land here in AUS, and if the US wants that information then the AUS govt should say"yes we will release it but only with the consent of the person!!" what is wrong with that!!!

Becuase then you would be in the situation of having to apply for a visa in order to give your consent.

I can see both sides; the privacy of informations and the requirements of the other country in order to allow that person to set foot on land

One could reasonably suggest that booking a flight to go to a country is implicit agreement to agree to the terms that that country imposes

Dave

 

[Skyring]

I'm just wondering as to whether information on criminal records belongs to the government, or is it, given that we have open courts (apart from matters involving minors), a matter of public record? I read every day in the papers that Joe Bloggs of Bloggstown has been given a sentence of this long for doing that crime. Often sordid details of the crime are provided by the papers, along with photographs of the guilty cough etc. etc.

 

[ozflyer]

Hi,
I have seen many topics regarding people with problems in entering the USA under the VWP with a criminal record.
Most of the advice seems to be leaning towards the official line of" if in doubt get a visa"...which is all fine and dandy..but I am wondering if anyone has done any research on exactly what information Australia is sending over the USA, without your knowledge and consent.

If you look at the ESTA "to be mandatory from Jan 2009", is the same as the I-94W, but contains no disclaimer asking the signer permission to check their Australian Information, apart what you willingly provide them in terms of your passport and the forms you fill.
Doesn't Australia have a privacy law!! or did that just go to hell..because uncle sam decided that they wanted the information regardless of individual rights...and does the USA/Canada have direct access to the Australian Law Enforcement databases for them to background check you in 72 hours!!

With the new passports coming in with the RFID chips...is criminal records information going to be recorded on that...then what is the use of a Spent conviction scheme....your record pretty much sticks with you for the rest of your life...

Would love to have hear from people who have had experience with the ESTA and machine readable passports and travel to USA with a conviction etc.

Thank You

I can actually speak in relation to your question as I am currently in Canada & have passed through LAX less than a week ago with NO problems! For more information, read my post on the other thread 'VISA WAIVER...'.

Basically, from my recent experience & advise from relatives of mine in law enforcement in both Canada & the US, what information about the passenger that these countries or more precisely their immigration have 'access' to, all depends on what type of criminal conviction the person has back in Australia. To give you a common example, DUI. If you look at the US Consulate website in Australia, it clearly states that if a passenger has ANY DUI conviction in Australia that they are advised to obtain a Visa. Granted, it does NOT say you can't use the VWP but merely advises that you don't. Now, as you may or may not know, a DUI conviction in Australia is technically a criminal offense BUT in my case, I have a minor DUI but it doesn't appear in my Police Certificate. I questioned the police on two separate occasions & locations about this & they both advised me a minor DUI is NOT a criminal offense but more of a traffic violation? I then checked my court documents to confirm this & it does clearly state that I breached a Traffic Act so in essence, it is indeed a Traffic Conviction. Criminal? Highly unlikely!

So my assumption in all of these is, IF it's a minor conviction, criminal or not, then neither the US or Canada will have access to it, because otherwise I wouldn't have gotten past US Customs or Canada. However, IF it's a serious criminal matter ie. armed robbery, rape, fraud etc then more than likely you will appear in Interpol which is international & they WILL have access to this. These sorts of crimes may also involve 'Moral Turpitude' which is mentioned in the I-94W but again this phrase is highly debatable.

Now, going through immigration in LAX (for me) was a breeze. No alarms were raised & I'm even using the new ePassport. The immigration officer usually does not go beyond what is written on the I-94W. They just ask the usual questions, what's your purpose in the US, how long do you intend to stay etc. Customs was even quicker!

If you need more detailed info, feel free to PM me. I'm actually on a round the world trip at the moment so I can actually give first hand experiences travelling to different countries. I'll be in London in 2 weeks time & asia the next etc. I'll be driving to New York this weekend so will be crossing the US/Canada border by land so this will be another experience!

 

[Skyring]

There's a big problem in approaching the VWP. If you've been arrested (and/or charged and/or convicted) of some minor illegality, such as kiddie shoplifting or low-range drink driving, then it's untruthful to say NO, you haven't been arrested etc on the form.

But the hassle and inconvenience of telling the exact truth places a lot of pressure on people to fib.

I'm a taxidriver. One of the legal requirements for me to do my job is that I have to have a clear police check. We are often responsible for the safety of drunks, minors, the elderly and disabled, and we don't want people who have a criminal history being placed in such a position. I paid a fee, waited a few weeks, and got it back. It says I have a clear police record in Australia.

I dare say that an intending traveller to the USA could likewise obtain a police check. It won't show childhood sins, nor spent convictions. But it will be a strong basis for demonstrating to US officials that you answered NO to the question with a clear conscience. If there is ever a need.

 

[canabear]

Just to add my experience to the mix. I have a minor DUI from a couple of years ago and after much research etc decided to enter the USA a week ago on the VWP. Mainly because there is a document available called the 9FAM (Foreign affairs manual version 9) which has a section that clearly defines what is, and is not a crime involving moral turpitude. Therefore i could honestly answer no on the I94 to the relevant question. See

http://www.state.gov/documents/organization/86942.pdf

This is the first time i have travelled to the USA since the DUI and processing at immigration at LAX was no different to the past 3 other times. Hope this helps.

 

[ozflyer]

Just to add my experience to the mix. I have a minor DUI from a couple of years ago and after much research etc decided to enter the USA a week ago on the VWP. Mainly because there is a document available called the 9FAM (Foreign affairs manual version 9) which has a section that clearly defines what is, and is not a crime involving moral turpitude. Therefore i could honestly answer no on the I94 to the relevant question. See

http://www.state.gov/documents/organization/86942.pdf

This is the first time i have travelled to the USA since the DUI and processing at immigration at LAX was no different to the past 3 other times. Hope this helps.

I absolutely agree, I've got a copy of this manual also, hence I had no problems entering LAX using the VWP &/or answering NO to the question. Besides, the I94-W does NOT specifically refer to DUI at all...only 'crimes involving moral turpitude'. As I said earlier, they (LAX immigration) did NOT go beyond what was answered/written in the I94-W, so for someone to "volunteer" that (DUI) information is simply asking for 'further questioning' to say the least. To me, it would be a very silly & pointless thing to do.

 

[JohnK]

Besides, the I94-W does NOT specifically refer to DUI at all...only 'crimes involving moral turpitude'. As I said earlier, they (LAX immigration) did NOT go beyond what was answered/written in the I94-W, so for someone to "volunteer" that (DUI) information is simply asking for 'further questioning' to say the least. To me, it would be a very silly & pointless thing to do.

And yet some of us are silly enough to volunteer this information when travelling through the USA. No big deal. Spent an extra 15-20 minutes being interviewed and told next time not to declare the DUI on the I-94W....

 

[ozflyer]

And yet some of us are silly enough to volunteer this information when travelling through the USA. No big deal. Spent an extra 15-20 minutes being interviewed and told next time not to declare the DUI on the I-94W....

He,he...you were actually one of two people here who have convinced me prior to leaving Oz nearly 2 weeks ago to just simply answer NO in the I94-W - the result? I was done in less than 1 minute at LAX immigration! So thanks for the invaluable info. Imagine the alternate outcome IF I actually answered YES! I have since re-entered the US (went to NYC) from Canada then back again by land & have had NO issues whatsoever either. Again, they simply asked the basic of questions. My impression so far is that as soon as they see an Australian passport (both Canada & the US), they are very friendly & no alarms were raised. Great to be an Australian traveller isn't it!

 

[JohnK]

My impression so far is that as soon as they see an Australian passport (both Canada & the US), they are very friendly & no alarms were raised. Great to be an Australian traveller isn't it!

Yes it is great as long as the A$ returns to some normality soon....