Jan 15 2016

The REAL-ID Act and entry to Federal facilities

Now that the DHS has postponed its self-imposed (and legally baseless) “deadline” for domestic air travelers to have ID that complies with the REAL-ID Act until at least 2020, the only threat left in the Federal arsenal to intimidate state governments into “compliance” with the REAL-ID Act any sooner than 2020 is the threat to bar residents of noncompliant states from access to some (but not most) Federal facilities, for some (but not most) purposes, in some (but not most) circumstances.

That was the subject of considerable discussion, and considerable confusion, at yesterday’s second meeting of the Minnesota Legislative Working Group on REAL-ID Compliance, which is trying to figure out how seriously to take this threat (short answer: not very) and whether it calls for immediate action (short answer: no).

What is the DHS really threatening to do? And how much effect will that have, or has it already had?

Like a typical extortionist, the DHS keeps its threats vague and changeable. In a response made public today to a disability-rights complaint that is already the subject of litigation, DHS officials declared that it is “not objectively reasonable” to take statements on TSA.gov at face value. That’s par for the course: The TSA has previosuly claimed that its own press statements are exempt from release in response to FOIA requests becuase it would “create public confusion” for the public to know the basis, if any, for those statements.

But what else can we do? In the absence of any laws or regulations requiring ID to fly or enter public buildings, and with the DHS having withheld most of its internal guidelines for building access from disclosure in response to our FOIA requests, all we have to go on are DHS rulemaking-by-press-release and reverse engineering of the secret DHS directives from anecdotal and observational evidence.  If the DHS doesn’t want us to reverse-engineeer its secret rules from what we see happening on the ground, it can get Congress to enact those rules into public law, or publish them in the Federal Register as regulations.

The DHS claims on its official website that its REAL-ID Act “rules” (i.e. secret internal directives) for entry to Federal facilities went into effect on October 15, 2015. So if the sky were going to fall, we’d know about it already.  It hasn’t. Reports of anyone being denied entry to a Federal facility have been rare.

As recently as November 22, 2015 — more than a month after the penultimate phase of REAL-ID Act enforcement had supposedly begun — the DHS public FAQ about the REAL-ID Act said that requirements for ID from compliant states would depend on the “Facility Security Level” (FSL) assigned to each facility:

REAL-ID-phases

All mention of these enforcement phases and this scheme of “Facility Security Levels” disappeared completely from this Web page sometime between November 22, 2015, and today. The DHS has since blocked the Internet Archive from its website, to avoid being questioned about unexplained changes like this.

Presumably, the DHS rescinded and tried to efface the memory of this security level sham because so few Federal facilities had actually been assigned an FSL that would have triggered REAL-ID Act compliance demands. When we filed FOIA requests for Federal facilities in the San Francisco Bay Area, we found that none of the the most conspicuous potential Federal terrorist targets and critical infrastructure facilities in our region had been assigned any FSL at all.

FSL assigmments were supposed to be the “security assessments” justifying ID demands. The ability of the DHS to wipe out this whole scheme by fiat, overnight, merely by revising a website and without any rulemaking or public explanation, exemplifies the fact that all of the supposed “deadlines” for REAL-ID Act compliance are equally arbitrary, discretionary, and changeable at the whim of the DHS or its master or mistress in the White House.

(The latest postponement of the “deadline” for compliant ID to fly to October 1, 2020 is particularly incredible. Whatever administration is in power on that date is not going to start barring residents of any state from flying, a month before the 2020 Presidential and Congressional elections. To do so would be electoral suicide. If the REAL-ID Act hasn’t been repealed or overtuened by the courts by then, you can count on the DHS postponing that “deadline” again.)

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Jan 13 2016

Bills to repeal the REAL-ID Act introduced in Congress

Bills to repeal the REAL-ID Act of 2005 were introduced yesterday in both houses of Congress by the members of Montana’s Congressional and Senate delegation:

Sen. Daines: “Montanans have spoken loud and clear: we don’t want REAL ID and we don’t want the federal government infringing on our personal privacy. The Repeal ID Act ensures Montanans’ voices are heard and will help strike the right balance that protects our security while also safeguarding Montanans’ civil liberties.”

Sen. Tester: “REAL ID violates the constitutional freedoms of law-abiding Americans and has no place in Montana. I will continue my fight to protect Montanans from this costly overreach that invades privacy and forces local taxpayers to foot the bill.”

Rep. Zinke: “Rolling back these Washington mandates is important to ensure Montana’s state sovereignty. While maintaining security standards is important, we cannot allow the federal government to infringe on our right to privacy and strip Montana of our state sovereignty.”

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Jan 08 2016

DHS doubles down on its big lie about ID to fly

Just days after posting an out-and-out lie on DHS.gov about whether states that want to comply with the REAL-ID Act have to give other states unconditional access to their drivers’ license and ID database (they do, contrary to what the DHS claims), the DHS has posted an equally blatant lie about whether domestic air travelers do or will have to show ID (they don’t and they won’t, contrary to what the DHS claims).

Today’s whopper is part of a press release attributed to Secretary of Homeland Security Jeh Johnson, announcing arbitrary dates for “enforcement” of alleged REAL-ID Act requirements. One might expect those dates and requirements to be spelled out in the U.S. Code or in regulations published in the Federal Register. But rulemaking by press release, Web posting, or Tweet has become the norm for the DHS as part of its enforcement of standardless, discretionary, and secret adminstrative “law”.

Today’s announcement by the DHS comes in the midst of a new round of vigorous debate by state officials as to whether to agree to comply with requirements of the REAL-ID Act that they continue to find objectionable — especially with respect to its mandate for a distributed but integated and nationally accessible ID database. It also comes almost simultaneously with the introduction in both houses of Congress of bills to repeal the REAL-ID Act.

The REAL-ID Act does not purport to create any legal obligation on states to comply. It can’t: The Federal government has no authority to compel the enactment of state legislation. If financial carrots in the form of Federal grants to fund REAL-ID Act implementation aren’t sufficient to win over states that stand up for their residents’ rights, the only stick the Federal government has available to induce those states to comply with the REAL-ID Act is the threat to harass, delay, or prevent residents of those states from traveling by air.

Today’s DHS press release and Tweet make that threat explicit.

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Jan 08 2016

The REAL-ID Act is about the database

At yesterday’s first meeting of a new Minnesota “Legislative Working Group on REAL-ID Compliance“, state lawmakers’ concerns centered on (1) whether residents showing state-issued IDs will be prevented from boarding domestic flights, or harassed and delayed by the TSA, if the state doesn’t agree to “comply” with the REAL-Act Act to the satisfaction of the DHS, and (2) what compliance with the REAL-ID Act would mean for the state’s database of information about people with Minnesota drivers’ licenses or state ID cards.

The DHS has been trying to mislead state officials and the public about both these issues. Understanding both, and separating fact from DHS fiction and innuendo, is key to understanding the REAL-ID Act.

A report from a legislative analyst with the legislature’s research department distributed at yesterday’s meeting asserts that, “At some unspecified point in time (which could be in 2016), a REAL ID-compliant form of documentation will become required to fly in scheduled airline service.” But — oddly for a purported legislative analysis or research report — no authority is cited for this alleged legal “requirement”.

In fact, as we testified yesterday and as we have confirmed through more than a decade of litigation, research, and FOIA requests, this key claim — the threat being used by the DHS to induce reluctant states to accede to DHS requests for “compliance” — has no basis in any publicly-disclosed law or regulation.

People fly without ID every day, and the TSA has procedures for that, as we’ve heard them testify in court. People without ID may be (unlawfully) harassed and delayed at TSA checkpoints and airline check-in counters, but the TSA’s responses to our FOIA requests for its daily reports on how many people try to fly without ID show that almost all of these people are allowed to fly. And those few people who are prevented by the TSA from traveling by air, like the larger numbers who are harassed or delayed by the TSA merely because they don’t show ID or answer other questions, likely have cause for legal action against the TSA. They deserve the support of the states where they reside.

If you lose your wallet and find out the next day that your mother is dying 2,000 miles away, as happened to a friend of ours in St. Paul just before Christmas, you don’t have time to get your driver’s license replaced or take a bus across the country. You need to get on a plane right away, without ID. That’s what our friend did, and fortunately she got there in time. The TSA isn’t going to try to stop you from seeing your mother before she dies. That’s not a case the TSA wants to take to court, or would be likely to win.

But what’s this other question about the database?

To meet the requirements of the REAL-ID-Act, a state must “Provide electronic access to all other States to information contained in the motor vehicle database of the State,” including, “all data fields printed on drivers’ licenses and identification cards issued by the State.” In effect, this would allow state databases to function as part of a distributed but national ID database system.

The DHS has picked out only a subset of the statutory requirements in the REAL-ID Act to consider in deciding whether to exercise its statutorily standardless discretion to certify whether states are making progress toward compliance or to grant them discretionary waivers of “deadlines” which have been set by the DHS in its discretion, and can be and have been repeatedly postponed in the exercise of that same discretion.

The initial DHS-selected criteria don’t include the requirement in the law for nationwide access by state agencies to other states’ drivers’ license and ID databases. DHS undoubtedly knows that this is one of the most objectionable, and potentially one of the most difficult and costly to implement, of the elements of state “compliance” with the REAL-ID Act, and has tried to downplay or deny the plain language in the law requiring unrestricted interstate access to drivers’ license databases. Including full interstate database access in its “compliance” criteria also would probably compel DHS, if it was to be honest, to concede that no state has yet fully complied with the REAL-ID Act.

But state officials shouldn’t be fooled: A state that agrees to “comply” with the REAL-ID Act is agreeing to comply with all of its provisions, including the database access mandate, not just the less objectionable portions that the DHS has decided to focus on first.

Once a state agrees to comply, it no longer has any leverage to move Congress to change those requirements. The only power a state has to exert pressure for change in the REAL-ID Act requirements, or their repeal, is to withhold state agreement to comply until those requirements are amended to its satisfaction, repealed, or overturned by the courts as unconstitutional.

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Jan 07 2016

Minnesota Legislative Working Group on REAL-ID Act Compliance

We attended and testified at the first meeting of Minnesota’s “Legislative Working Group on REAL-ID Act Compliance” today in St. Paul. Like other states, Minnesota has been told (falsely) that it’s the only state that isn’t planning to “comply” with the Federal requests in the REAL-ID Act, and (also falsely) that Minnesota residents will be prevented from boarding domestic airline flights if the state doesn’t agree to “comply”.

You can watch the full meeting here (our testimony is at 1:37-1:40 of the video).

Here’s what we told Minnesota legislators (Download as PDF):

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Jan 04 2016

DHS posts new lies about the REAL-ID Act

In response to a flurry of publicity kicked off by a story last week in the New York Times in which we were quoted, the DHS has posted several new or updated pages about the REAL-ID Act on its website, including a new page headed, “REAL ID and You: Rumor Control“.

Not surprisingly, the DHS is still lying about what the REAL-ID Act requires. According to the new “Rumor Control” page on DHS.gov:

Rumor: The Department of Homeland Security is trying to build a national database with all of our information

Fact: REAL ID does not build a national database nor does it grant the Federal Government or another state access to a state’s driver’s license data. States and territories will continue to … maintain its own records, and determine who may access those records

This is a lie. The text of the REAL-ID Act, Title II, Section 202(d)(12), is clear and unambiguous:

(d) To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards:…

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State.

(13) Maintain a State motor vehicle database that contains, at a minimum —

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and
(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

The REAL-ID Act won’t require you to show ID to fly. But unless the REAL-ID Act is repealed by Congress, it will require states to grant all other states access to drivers license and state ID data or risk having the DHS try to harass residents of those states that don’t participate.

As we’ve discussed previously, the main point of the REAL-ID Act is to intimidate or otherwise induce state governments into creating a distributed national ID databases, through which a single query roted through a national “hub” (operated by a private contractor, the AAMVA) will be able to retrieve data, including standardized digital photographs, from the drivers’ license and ID databases of all 50 states, the District of Columbia, and US territories (Puerto Rico, Guam, U.S. Virgin Islands, American Samoa, Northern Mariana Islands, etc.).

The DHS is lying about what the REAL-ID Act requires because it knows that the real point of the law is the distributed national database and its contents, and because most of the opposition to the law by individuals, civil liberties advocates, and state legislators and governors is based on opposition to this distributed but functionally integrated and national database.

Since the DHS has no authority to compel state governments to “comply” with the REAL-ID Act, the DHS is relying on threats — most of them empty. The latest official statements posted on DHS.gov send a clear message to state officials trying to decide what to do about the REAL-ID Act. That message is that the DHS lies about the REAL-ID Act.

If you want to know whether the REAL-ID Act (or any provision of Federal law or regulations) even purports to require anyone to show any ID to fly, read the law: It doesn’t.

If you want to know whether the REAL-ID Act would require states that want to “comply” to connect their state drivers’ license and ID databases to the national “hub” that gives all other states root access to that database, read the law: It does.

Don’t believe the DHS lies, and don’t take DHS threats at face value.