In May and June of 2017, several new FAQs about “requirements” for travel on common-carrier airlines were posted on TSA.gov and DHS.gov:
- “Identification” (TSA.gov)
- “Frequently Asked Questions: REAL ID” (TSA.gov)
- “REAL ID and Air Travel” (TSA.gov)
- “REAL ID Frequently Asked Questions for the Public” (DHS.gov)
Statements about current and future ID “requirements” similar to those on these websites have also appeared on official signs in some airports.
It should go without saying that neither government websites nor informational signs in airports create legal rights or obligations or can be relied on as authoritative statements of the law.
Federal law is contained in the US Constitution, international treaties duly ratified by the US in accordance with the US Constitution, the US Code, and US Public Laws. Federal regulations are contained in the Code of Federal Regulations. The Freedom of Information Act requires that binding Federal agency rules, regulations, and orders of general applicability be published in the Federal Register.
If you want to know what the law says, you need to read the law, not press releases from government agencies or anyone else (including us!).
This is especially important with respect to the TSA, since the TSA website and TSA signs in airports have for years included statements about ID requirements to fly that have been disclaimed by TSA witnesses testifying under oath and by TSA lawyers arguing before Federal courts.
So what is the TSA saying now about ID to fly? Is it true? And is it legal?
The TSA’s latest public statements are more accurate than some of the agency’s previous press releases about ID to fly, and may (although we can’t really tell, given the absence of fomal proposals or published rules) accurately describe the changes the TSA intends to implement. But major questions remain about the legality of both current and possible future ID practices at TSA and contractor checkpoints at US airports.