Dec 28 2015

You don’t have to show any ID to fly

We’re quoted in an article today in the New York Times about the Federal government’s efforts to use the threat of denial of air travel to scare state legislators into connecting their state drivers license and ID databases to the distributed national “REAL-ID” database through the REAL-ID “hub” operated by the American Association of Motor Vehicle Administrators (AAMVA).

We welcome the Times’ coverage of this issue. But some readers might be misled by the Times’ headline, “T.S.A. Moves Closer to Rejecting Some State Driver’s Licenses for Travel“.

As Edward Hasbrouck of the Identity Project, who was quoted in the New York Times story, discussed in detail in this presentation earlier this year at the Cato Institute in Washington, the most important thing you need to know about this issue is that you do not — and you will not, regardless of how or when the TSA “implements” the REAL-ID Act — need to show any ID to fly. People fly, legally, every day, without showing any ID, and that will continue to be the case. You have a legal right to fly, and the REAL-ID Act does not and cannot deprive you of that right.

The TSA often lies in its public statements, including on its website and on signs at airports, and claims that airline passengers “must” or are “required” to have and to show government-issued photo ID. Currently, the page on headed “Identification” begins with the knowingly false and deliberately misleading statement, “Adult passengers 18 and over must show valid identification at the airport checkpoint in order to travel.” But the consistent official position of the TSA in court has been that no law, no TSA regulation, and no policy or practice of the TSA — not even the secret TSA “Standard Operating Procedures” (SOPs) and other secret TSA orders to its checkpoint staff and contractors — requires anyone to show any ID to pass through TSA checkpoints and travel by air.

That’s what the TSA told the 9th Circuit Court of Appeals in Gilmore v. Gonzales. After reviewing the secret SOPs in camera, the court found that John Gilmore could have boarded flights, as he tried to do, without showing any ID. That’s incorrect. The case was improperly and prematurely decided on the basis of ex parte submissions that Mr. Gilmore had no chance to rebut, and in fact Mr. Gilmore was prevented from flying without showing ID. But if what the TSA submitted to the court is to be believed, that was a consequence of illegal actions by TSA staff, contractors, and/or airline personnel, not a result of any law, regulation, or TSA policy or order.

People fly without ID every day. We have a procedure for that.” That’s what a TSA checkpoint supervisor testified, under oath, at the trial of Phil Mocek. Mr. Mocek was falsely arrested by Albuquerque police, at the behest of the TSA, in retaliation against him for trying to film and record the process of flying without ID. But because flying without ID is not illegal, they had to trump up other bogus charges to try to justify the arrest, and Mr. Mocek was acquitted by a jury of all of these charges, including that of “concealing” his identity.

To date, the TSA has disclosed only fragments of the reports it compiles every day on how many people try to fly without ID, and what happens to them. These reports show that some would-be travelers are wrongly prevented from traveling because they exercise their right to remain silent when they are interrogated by checkpoint staff, because they don’t know who the commercial data brokerage Accurint thinks are their neighbors or their answers don’t match other factoids in Accurint’s garbage in, garbage out database, or because Accurint doesn’t have enough data to profile them to the TSA’s satisfaction. These TSA reports also confirm, however, that people are, in fact, allowed to fly every day without showing ID.

Our friend Jim Harper, who moderated the discussion at the Cato Institute on this topic we took part in this May, has documented how each state has responded to the REAL-ID Act. No state has fully implemented the original terms of the law, or met the “deadlines” originally set by Congress in the REAL-ID Act or later by the DHS. DHS claims about what the REAL-ID Act would require, and when, are as full of lies as the TSA notices in airports — which the TSA has admitted are false — claiming that airline passengers are required to have and to show government-issued photo ID.

We can’t promise that the TSA won’t issue new secret orders to its employees and contractors, ordering them or purporting to give them “discretion” to block would-be travelers who don’t have or don’t chose to show ID. The TSA is a lawless agency that has never recognized that it has to follow publicly-disclosed rules, or respect that travel (including travel by common carrier) is a Constitutional, statutory, and international treaty right, not a privilege that the TSA or its minions can grant or deny at whim. The TSA has made other similarly illegal changes to its practices recently.

Nothing in the REAL-ID Act, however, requires or authorizes the TSA to issue any such orders, or requires the TSA or the states to follow any particular timeline. The TSA has extended all of its previous REAL-ID Act “deadlines” for year after year, and has given states (even states whose legislatures have forbidden REAL-ID Act compliance) waivers or extensions.

If the TSA closes its checkpoints to residents of certain states, that will be a flagrantly illegal and unconstitutional action which neither is nor could be authorized, much less required, by the REAL-ID Act. It would likely be immediately challenged and, we would hope, overturned by the courts.

The TSA might try to blame such an attack on the right to travel on state authorities who aren’t willing to plug their state drivers license and ID databases into the REAL-ID hub. But the public won’t be fooled so easily by more TSA lies.

If travelers trying to board flights on Federally-licensed airlines are turned back by Federal agents or Federal contractors staffing Federal TSA checkpoints in airports, purportedly on the basis of Federal law and Federal regulations issued by the DHS, travelers whose rights are violated, or who see their fellow travelers’ rights being violated, aren’t going to blame state legislators or state governors.

People whose right to travel is denied by the Feds will put the blame on those who deserve it: the Congress which enacted and has refused to consider repealing the REAL-ID Act, the DHS and TSA officials who issued the REAL-ID Act regulations and the secret orders for checkpoint procedures, and the TSA employees and contractors staffing the checkpoints and turning back would-be travelers despite their holding valid tickets.

17 thoughts on “You don’t have to show any ID to fly

  1. I have often traveled without ID. Before I do so, I print all of the applicable statutes and regulations from 49 USC and 49 CFR that show that the only instance of the word “identification” refers to aircraft, not to people. Living in Nevada, which has implemented RealID, I have been unable to get RealID-certified ID. I had considered pursuing this thru the state, but I think the state is not the entity that has to be corralled. It is the feds, who are completely and utterly lawless.

    The underlying issue is whether “secret law” can be imposed upon the public. If a statute is not published that limits my rights, and there are no published regulations that limit my rights, the TSA cannot hold me to some secret operating procedure. See the Administrative Procedures Act and the Federal Register Act. Without published notice of the conduct to which I am expected to adhere, there is none that can be imposed.

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  4. “States Need to Stand Their Ground Against the REAL ID Act” (Tenth Amendment Center):

    “Under the law, all states were supposed to be in compliance by 2009. But the federal government found coercing unwilling states wasn’t as easy as anticipated….

    ‘There is an impasse,’ Edward Hasbrouck, a privacy advocate with the Identity Project, told the New York Times. ‘There has been a standoff for more than a decade now. The feds have limited powers to coerce the states in this case.’…

    The federal strategy here is pretty clear: crack down on five states and intimidate the others into falling in line. By limiting its initial action to just a few states, the feds can keep the public outcry to down to a dull roar and shift the blame onto five state governments. The DHS can limit the backlash by cracking the whip on residents of only five states rather than taking on all 28 non-compliant states at the same time.

    Here we have a classic bullying tactic: rough up a few kids and awe the others into falling into line

    Here’s what the governments in these five states should do: tell the feds to go pound sand.

    And the other 23 non-compliant states should do the same. Let the feds try to keep more than half of the American population off airplanes and see how that works out for them….”

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  14. “How to Fly Without an ID” (by Meaghan Agnew, Thrillist, January 28, 2016):

    “It’s actually possible to fly without any ID at all.

    “Say what?

    “‘Tis true — as I found out first-hand when I inadvertently left my license at home just before a work trip. After I’d skulked up to the reservations desk to rebook my flight, the airline rep explained that, no, I didn’t need to rebook because, yes, of course you can fly without an ID. And, how did I not know that? Turns out that as long as you’re willing to submit to an extra layer of security, you’re A-OK to hop a plane sans identification. And because the weather gods had a frat-boy sense of humor that weekend, I ended up enduring several canceled flights and went through security no fewer than four times over the course of three days….”

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