Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice  issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

People who don’t have ID that the TSA deems acceptable, or don’t choose to show it at TSA checkpoints, are allowed to fly only after completing and signing TSA Form 415, “Certification of Identity.” The TSA has never published Form 415 (we obtained it through the Freedom Of Information Act), submitted this form to the Office of Management and Budget (OMB), or obtained OMB approval for the form as required by the Paperwork Reduction Act. But the TSA has been using Form 415 illegally, without OMB approval, since 2008.

On the order of a hundred people a day are required to fill out Form 415 and go through a  game of 20 questions based on the contents of a “garbage in, garbage out” database maintained by a commercial data brokerage and aggregator, Accurint (a service of the LexisNexis division of Reed Elsevier). Most of these people are eventually allowed to fly, on the basis of standardless and “discretionary” decisions by TSA airport staff, according to the TSA’s continuing and still-incomplete responses to the request we made more than three years ago for its daily internal logs and spreadsheets of what happens to people who try to fly without ID or with ID that checkpoint staff initially deem unacceptable.

The TSA’s Federal Register notice refers to, “The current TSA Form 415,” and says that the agency is “updating” the form. But the notice and the planned submission to OMB are improperly described as “Intent To Request Approval From OMB of One New Public Collection of Information,” rather than as a request for approval of revisions. It looks like a crude — and, we hope, futile — attempt to apparently to evade accountability to OMB and the public for having used current and previous versions of the form illegally for more than eight years. This is not a “new” but an ongoing (illegal) collection of information. This alone is sufficient basis for OMB to reject the TSA request for approval of the not-new form.

But this procedural defect and lack of honesty by TSA are, of course, the least of the problems with the notice and the practices it discloses.

The notice says that, “TSA requires individuals to provide an acceptable verifying identity document in order to proceed through security screening, enter the sterile area of the airport, or board a commercial aircraft.” But the TSA has, until now, consistently denied having any such requirement. Their public notices lie, but their response in court to questions about whether travelers can fly without ID has always been, “We have a procedure for that.”

Now the TSA says that:

To ensure that the identity verification process described above does not become a means for travelers to circumvent implementation of the REAL ID Act, TSA is updating the process so that it is generally only available to travelers who certify that they —

• Reside in or have been issued a driver’s license or state identification card by a state that is compliant with the REAL ID Act or a state that has been granted an extension by DHS; or
• Have been issued another verifying identity document that TSA accepts.

To enable travelers to make this certification, TSA is revising Form 415. The revised TSA Form 415 requests a traveler’s name and address and asks for the following additional information:

1.  Whether the traveler has been issued a driver’s license or state identification card.
2.  If yes, the state that issued the document.
3.  Whether the traveler has been issued an acceptable verifying identity document other than a state-issued driver’s license or identification card.

There is no hint in the notice of any claimed legal basis for these changes.

According to the notice, “TSA estimates that approximately 191,214 passengers will complete the TSA Form 415 annually.” That’s several times more than the numbers of people being required to complete the current Form 415, according to the responses to our FOIA request. Presumably, that means that the TSA expects that some states will continue to resist the Feds’ carrot-and-stick pressure to connect their state ID databases to the national REAL-ID hub. It will be interesting to see which states the TSA expects those to be, which presumably is included in the calculations supporting this estimate.

Neither the text of the revised form nor any of the documents to be submitted to OMB by the TSA in support of its approval have been made public. When we spoke with the TSA’s designated contact for the notice, she told us that these documents have not yet been submitted to OMB and will not be made available to the public until after the window of opportunity for the public to submit comments on the proposal closes on January 9, 2017. [Regulations.gov gives an erroneous message that the comment deadline has passed. The TSA’s point of contact has told other would-be commenters that is a glitch in Regulations.gov beyond the control of the TSA, but that comments are being accepted by email at “TSAPRA@tsa.dhs.gov” through the close of business in Washington on January 9, 2017.] The TSA’s contact was unable to explain how the public would have a meaningful opportunity to comment on the proposal if neither the text of the proposal nor the purported rationale for it and analysis of its impact were made public. “Have a nice day,” she said, and then hung up on us.

As a preliminary matter, we’re joining other would-be commenters in asking OMB to require the TSA to make the proposal and the supporting documents public, to allow meaningful public comment.

Whether or not OMB or TSA does that, we’ll be asking OMB to reject the TSA’s request, and asking the TSA to withdraw the proposal and rescind the policy change it describes. The new ID requirement would violate the TSA’s statutory duty to respect “the public right of transit..” by air, the First Amendment “right of the people… peaceably to assemble,” and the right to freedom of movement recognized by international treaty.

The right to travel by common carrier is not, and cannot lawfully be, made contingent on possession of government-issued credentials or permission that can be granted or denied arbitrarily on the basis of standardless, secret administrative “discretion”. A “right” contingent on permission or discretion is not a right.

We have, and we will continue to assert and defend, the right to travel without obtaining, carrying, or showing government-issued ID credentials.