Jan 09 2017

IDP comments on TSA proposal to require ID to fly

Today the Identity Project and the Cyber Privacy Project filed comments with the Transportation Security Administration opposing a stealthy TSA proposal to start requiring ID to fly.

The TSA has long harassed people who try to fly without being required to show their “Papers, Please!” at TSA checkpoints.

But the TSA’s official position in court has always been that ID is not required to fly: “You don’t have to show ID to fly. You can fly without ID. We have a procedure for that.”

You can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about you obtained by the TSA from the commercial data broker Accurint, and (3) submit to more intrusive than standard search (“secondary screening”) as a “selectee”.

That’s the way it is, and that’s the way it’s been for years.

Now, as we reported in November of last year, the TSA is contemplating a new pattern and practice of preventing anyone from passing through a TSA checkpoint or getting on an airline flight unless either  they have ID the TSA deems acceptable, or they reside in a state that the TSA deems sufficiently compliant with the REAL-ID Act.

Bizarrely, residents of states that issue compliant driver’s licenses or ID cards will still be allowed to fly with no ID at all and without ever having even applied for an ID, while residents of noncompliant states, or U.S. citizens residing abroad, will be barred from flying without ID unless they have been issued a compliant ID.

The differences in how compliant and noncompliant states deal with people who apply for driver’s licenses and state ID cards will be used as the basis for different treatment by the TSA of people from those states who haven’t applied for or been issued any ID.

That makes sense only if the real purpose of the change in the procedures for flying without ID is to punish residents of noncompliant states, as a way for the DHS to pressure those states to enact the national ID laws that the DHS wants.

This isn’t about aviation security. This is about the DHS twisting the arms of travelers in the hope that this will induce reluctant state governments to say “Uncle” and connect their state drivers license and ID databases to the national REAL-ID hub.

We can’t call this proposed practice a “rule”, since the TSA has never promulgated any rules for what travelers are required to submit to at checkpoints in the name of “screening”.

Even now, the TSA isn’t calling its proposal a rulemaking, but is trying to use the innocuous-seeming procedural device of a “Notice of Intent to Request Approval From the Office of Management and Budget For One New Collection of Information” as a way to effect this fundamental change in TSA operating procedures and the rights of travelers.

If the TSA disregards our objections and requests approval of this scheme from OMB, as they have said they intend to do, there will be another public notice in the Federal Register and another 30-day window of opportunity for the public to submit comments to OMB. We’ll be sure to let you know if this happens.

In the meantime, whether or not the TSA withdraws this proposal, Congress needs to repeal the REAL-ID Act. And states need to start thinking about how to defend any of their residents who are discriminated against by the TSA on the basis of their state of residence and what laws their state has enacted.

Better for state officials to take the TSA and DHS to court now to challenge these plans for REAL-ID Act coercion than to wait until their state residents’ right to travel starts being denied by the TSA.

13 thoughts on “IDP comments on TSA proposal to require ID to fly

  1. Lufthansa has announced that, “Due to a decision (Temporary Restraint Order) by the District Court in Massachusetts, the above mentioned Order is suspended on flights to BOS for the time being until February 5th, 2017 [the duration of the initial TRO]. All passengers with valid travel documents are eligible to board on LH-flights to BOS.”


    But this still pertains only to passengers with “valid travel documents”. No such documents exist for asylum seekers, some of whom don’t even have passports. There is no such thing as an “asylum seeker visa”. An asylum claim cannot be made until the asylum seeker has arrived in the country.

    Like all other airlines, Lufthansa is still refusing passage to asylum seekers and others without passports and visas, as it was doing before President Trump’s executive order or the orders by Federal Courts in Massachusetts and elsewhere.

    The #MuslimBan enforced by airlines existed before President Trump’s executive order, and will continue even if that order is voided by the courts.

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