In the latest step in the implementation of the REAL-ID Act and the establishment of a de facto national ID card and database, the Department of Homeland Security has requested OMB approval for the collection of additional information from states and individuals.

The public response to the DHS request, particularly these comments submitted by the Electronic Privacy Information Center (EPIC), highlight the important unanswered questions about how REAL-ID Act implementation will affect the right to travel:

EPIC’s comments focus on the widely-publicized recent case of  Lewis Brown, a former high school and college basketball star who died on a street in Southern California homeless, earlier this month:

EPIC writes today to draw the agency’s attention to the death of Lewis Brown, a former college basketball prodigy, who died on the streets of Los Angeles because he could not scrape together the money to obtain a state-issued identity document…. According to the New York Times, Brown, a basketball legend at the University of Nevada at Las Vegas, planned to fly to visit his family in New York and could not. Homeless and destitute, living on the sidewalks of Hollywood, Brown had developed cancer and planned to go to the hospital. Brown’s mother learned about his condition and stated that she wanted to see him “before he died.” Brown’s sister, Anita, told him to visit New York. Brown told confidants that he lacked funds to qualify for a California identification card, and was taking donations and borrowing money.

The Department of Homeland Security’s travel regulations require a state-issued identification document to board commercial airlines. Under REAL ID, the Department of Homeland Security: “prohibits Federal agencies from accepting state-issued drivers’ licenses or identification cards for any official purpose – defined by the Act and regulations as boarding commercial aircraft . . . – unless the license or card is issued by a state that meets the requirements set forth in the Act.”

This requirement, imposed on California despite the written objection of the state forced to implement it, prevented Lewis Brown from travelling to see his family members. Brown collapsed on the sidewalk where he lived on September 13, 2011, pleading for someone to call an ambulance. Paramedics arrived too late to the scene to revive Brown, who was lying on the concrete when they arrived….

The Office of Management and Budget has specifically requested comments that focus on the “quality, utility, and clarity of the information to be collected.” Pursuant to this goal, the Department of Homeland Security should collect information regarding the burden imposed on the public resulting from the agency’s identity requirements. Documented burdens include the inability to travel, which may adversely impact health or lead to loss of life….

A rigorous, transparent review of the actual costs of REAL ID, including the possible loss of life that results from a mandatory document requirement that prevents routine travel, would allow the public and the agency to fully evaluate the costs and benefits of the agency program.

Part of the problem is that people like Mr. Brown are told by airlines, the TSA, and signs in airports — as well as by other common carriers from Greyhound to Amtrak — that government-issued ID credentials are required to travel, even though no Federal statute or regulation actually requires this.

The DHS will no doubt respond to EPIC’s comments about  Lewis Brown’s death by saying that the TSA has an identity verification program for those who don’t have government-issued ID credentials. Mr Brown would have been allowed to fly without an ID card, the DHS will claim, if he had been able and willing to give answers matching those in the commercial database consulted by the TSA’s ID-verification contractor to questions like where the database shows he “resided” in a particular past year.

A homeless person, of course, may have had multiple residences or no residence, and may have no idea what address is shown for them in particular commercial database. An identity thief who has obtained a copy of a person’s Choicepoint or Acxiom record is much, more likely to be able to answer the TSA’s questions about that database record than is the actual person who is supposedly the subject of the record, but who hasn’t read it.

But a homeless person may never get that far, both because of the deliberately misleading TSA propaganda that ID is “required”, and because in practice people without ID who are deemed “uncooperative” are turned away and refused passage through TSA checkpoints (or detained or arrested if they don’t go away quickly enough for TSA checkpoint staff or local police).

Presumably the TSA realizes that it has no statutory or Constitutional authority to issue regulations explicitly requiring government-issued ID credentials as a prerequisite to travel. So it has issued no such regulations. Instead, it interprets its vague and overbroad authority to require “cooperation” with “screening” as a mandate to compel travelers to submit to ID demands, interrogation, virtual strip-searches, or whatever else front-line checkpoint staff, in their secret, standardless, administrative discretion, choose to demand. That’s un-American, unconstitutional, and wrong.

Mr. Brown’s case may seem isolated or extreme, but it’s not. Here at the Identity Project, we’ve been hearing from more and more people — especially in Florida and Texas — who are having trouble traveling because they don’t have, and can’t obtain, ID credentials from the government.