Since June 21st, TSA has required all air travelers in the United States to present identification when entering a secure area at airports. Prior to then, a person could simply say they had lost their ID or didn’t want to show it, and they would be subjected to a secondary screening to enter the area. Now you can only get through security if you can convince TSA and their behavioral detection specialists that you lost or forgot your ID and are “cooperative” with their efforts to identify you by means of commercial data. Part of that process involves filling out their Certification of Identity form.
It appears that DHS has ignored the process of procuring an OMB (Office of Management and Budget) number for their new form. The OMB process requires publication of a notice in the Federal Register and the opportunity for public comment whenever the government gathers information from the public. The law clearly states that someone can’t be punished for failing to answer questions on a government form unless the questioning agency has an OMB number associated it. Despite this, TSA’s new Certification of Identity form states that failing to answer the questions may result in your inability to fly. Further, false statements made by travelers when using the form may be punishable by up to five years in prison. DHS is again showing that it doesn’t believe the rule of law applies to them.
Other TSA forms have recently gone through the OMB process. The Paperwork Reduction Act (PRA)(44 U.S.C. 3501 et seq.) requires that federal agencies have an OMB Control Number on all forms that are used to collect information from members of the public.
44 U.S.C. §3507(a)(1) reads:
Public information collection activities
(a) An agency shall not conduct or sponsor the collection of information unless in advance of the adoption or revision of the collection of information–
(1) the agency has–
(A) conducted the review established under section 3506(c)(1);
(B) evaluated the public comments received under section 3506(c)(2);
(C) submitted to the Director the certification required under section 3506(c)(3), the proposed collection of information, copies of pertinent statutory authority, regulations, and other related materials as the Director may specify; and
(D) published a notice in the Federal Register–
(i) stating that the agency has made such submission; and
(ii) setting forth–
(I) a title for the collection of information;
(II) a summary of the collection of information;
(III) a brief description of the need for the information and the proposed use of the information;
(IV) a description of the likely respondents and proposed frequency of response to the collection of information;
(V) an estimate of the burden that shall result from the collection of information; and
(VI) notice that comments may be submitted to the agency and Director;
(2) the Director has approved the proposed collection of information or approval has been inferred, under the provisions of this section; and
(3) the agency has obtained from the Director a control number to be displayed upon the collection of information.
Without an OMB number on the form, a person can’t be punished for failing to provide the information.
44 U.S.C. §3512 reads:
(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if–
(1) the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter; or
(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.
(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.
However, TSA’s Certification of Identity form reads: “failure to furnish the requested information may result in an inability to complete the security screening process and, consequently, an inability to grant you access to the sterile area.” That sounds like punishment (the inability to fly, to travel, to assemble, or to associate) for not providing the information. This is in violation of the PRA because the form has not gone through the necessary notice in the Federal Register and public comment process.
Does their use of the word “may” instead of “shall” on the form mean that one could conceivably not be punished for refusing to provide the information and still travel without showing ID? What is going on here?
Somewhere (other than a TSA press release on their website) there is a rule / law / security directive that supposedly now requires passengers to show ID to enter the sterile area at airports. Their website tells us that one can no longer opt for a heightened level of search as was possible when the 9th Circuit ruled on Gilmore v. Gonzales. In that case, the government argued that Gilmore could not actually see the ID requirement law he challenged because it was designated by the TSA as Sensitive Security Information (SSI).
IDP made on June 21st a FOIA request to TSA for all information relating the change in their identification policy, including a printed copy of the new law. Despite numerous calls to TSA’s FOIA office, and speaking directly with the TSA’s FOIA Officer Kevin Janet who has been assigned the request, IDP has to date received absolutely nothing from TSA. IDP has not even received an acknowledgment letter regarding its request (as required by law within 10 days) or the routine assignment of a request number.
Also troubling is the prospect of going to prison for lying on TSA’s Certification of Identity form which states: “False statements may be punishable under the provisions of 18 U.S.C. Section 1001 by fine, imprisonment or both.”
18 U.S.C. §1001(a) reads:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
It is understood that the lack of an OMB number on TSA’s Certification of Identity form may not protect one from criminal prosecution for the violation of 18 U.S.C. §1001, just as the lack of OMB numbers on tax return forms does not protect a person charges with tax evasion. However, it is becoming a bit more than scary when one could do 5 years in prison for lying on a form to used to comply with a law (the ID to fly requirement) that one is not allowed to see.
Why won’t the TSA FOIA office answer our request? Is it because the agency deems the new ID to fly requirement to be SSI? If so, they should at least tell us that we can’t see the new ID law requiring this Certification of Identity form, which we can be thrown in prison for making false statements on.
Below is a copy of TSA’s Certification of Identity form. The links to the CFR, USC, and System of Record SORNs mentioned in the forms were inserted by IDP.
Transportation Security Administration
Certification of Identity
Please provide the following information so that TSA can verify your identity and complete the passenger screening process.
Full Name: ____________________________________________________
* Current Address: ______________________________________________
* If a Current Address is unavailable, provide a Previous Address
This information is being collected in accordance with 49 U.S.C. § 114(f) and 49 C.F.R. §§ 1540.105(a)(2), 1540.107 in order to verify your identity and complete the passenger screening process. This information may be shared with the Department of Justice or other Federal agency in the review, settlement, defense, and prosecution of claims, complaints, and lawsuits over matters in which TSA exercises jurisdiction, or for routine uses identified in TSA’s systems of records, DHS/TSA 001 Transportation Security Enforcement Record System (TSERS) or DHS/TSA 002 Transportation Security Threat Assessment System (TSTAS). Disclosure of this information is voluntary; however, failure to furnish the requested information may result in an inability to complete the security screening process and, consequently, an inability to grant you access to the sterile area.
False statements may be punishable under the provisions of 18 U.S.C. Section 1001 by fine, imprisonment or both.
[For TSA Use Only] IVCC Identification Verification Reference Number: ________________________________