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.
While most TSA and airline propaganda including this fact sheet claims that all air travelers (with some exceptions such as minors under age 18 traveling with an acompanying adult) “needs” or is “required” to show “acceptable” identifying documents, the most detailed statement of current practices on TSA.gov includes this important qualification:
In the event you arrive at the airport without valid identification, because it is lost or at home, you may still be allowed to fly. The TSA officer may ask you to complete a form to include your name and current address, and may ask additional questions to confirm your identity. If your identity is confirmed, you will be allowed to enter the screening checkpoint. You may be subject to additional screening.
You will not be allowed to fly if your identity cannot be confirmed, you chose to not provide proper identification or you decline to cooperate with the identity verification process.
This is consistent with our experience and with the records of people who try to fly without ID that the TSA has released in response to our Freedom Of Information Act requests.
While this description of current TSA practices is reasonably accurate, these practices, as the TSA itself describes them, are illegal.
First, the TSA says that you “may” (or may not) be “allowed” to fly, asked to fill out TSA Form 415, asked other questions, or subjected to “additonal screening” (a euphemism for “more intrusive search”).
This implies, accurately, that these decisions are made at the discretion of TSA employees, not on the basis of any publicly-disclosed rules or criteria. That’s the definition of arbitrary decision-making, and Federal agencies are prohibited by the Administrative Procedure Act and the US Constitution from denying rights arbitrarily.
Travel is a right. And whatever the level of scrutiny applicable to Federal agency decisions as to who is, and who is not, “allowed” to exercise that or any other right, such decisions cannot legally be made arbitrarily or without a basis in valid laws or regulations.
Second, the form the TSA mentions has never been approved by the Office of Management and Budget (OMB), which must preapprove each “infrormation collection request” by a Federal agency.
Last year the TSA said it intended to submit Form 415 for approval, but it has not yet done so. Unless and until the TSA formally submits the proposed form (which has already been in use, illegally, since at least 2008) to OMB, and OMB approves it (which OMB lacks authority to do), the TSA is precluded from imposing any sanctions on travelers for declining to fill out the form.
Third, the TSA says that, “You will not be allowed to fly if [A] your identity cannot be confirmed, [B] you chose to not provide proper identification or [C] you decline to cooperate with the identity verification process.”
This too may be an accurate statement of TSA practice. But none of these three putative grounds for denial of the right to travel by common carrier are either unambiguous or sufficiently well-defined to avoid unconstitutional vagueness and overbreadth. Indeed, they aren’t defined at all.
If a witness from among your fellow travelers is willing to attest to your identity, is it deemed to have been “confirmed”? If you choose not to apply for any government-issued ID credentials, does that mean you have “chosen” not to provide acceptable ID? If you choose to exercise your right to remain silent, is that deemed to constitute “declining to cooperate with ID verification”?
And even if these grounds for denial of the right to travel were more narrowly and precisely defined, none of them correspond to any statutory basis for TSA orders. The TSA has statutory authority to conduct certain administrative searches, but has no authority to compel air travelers to identify themselves, compel answers to “administrative interrogation”, or impose sanctions on would-be air travelers for exercising their right to remain silent.
There are additional legal problems with the TSA’s description of what changes to these practices it is contemplating making:
The DHS attributes this change in TSA practice with respect to would-be air travelers without ID to the REAL-ID Act of 2005.
But as we have pointed out in comments filed with the TSA and in testimony to state legislatures in Alaska, Minnesota, and elsewhere, nothing in the REAL-ID Act authorizes or requires any changes in whether, when, or for what purposes ID is required or how people who don’t have or don’t show ID are dealt with.
The REAL-ID Act is concerned only with which ID credentials are accpted for Federal purposes for which ID credentials are required by other valid laws or regulations.
Neither the REAL-ID Act nor any other Federal law or regulations requires air travelers to have or show any ID. No legislation has been introduced in Congress, and no regulations have been proposed by the TSA or DHS, which would purport to create any such requirement. How the TSA deals with people who seek to fly without ID has nothing to do with the REAL-ID Act.
The TSA website refers to states that are not “compliant” with the REAL-ID Act. But what the TSA really means is “states that the DHS has not chosen, in the arbitrary and unlawful exercise of DHS discretion, to certify as compliant.” In reality, no state curently complies with the REAL-ID Act, although the DHS has certified many states as compliant.
To comply with the REAL-ID Act, a state must provide access to all records in its database of drivers licenses and IDs (including “noncompliant” licenses and IDs) to all other states. The DHS believes that’s only possible through partipation in the SPEXS national drivers license and ID database, according to testimony by state drivers licensing officals at legislative hearings in Alaska.
According to AAMVA (the private non-governmental organization that has contracted out the creation and operation of this national ID system), as of July 2017 only 14 states are participating in the SPEXS database and S2S query and retrieval system.
No state can comply with this requirement to provide access to all other states unless and until every state participates in S2S and uploads “pointer” data for all its licenses and IDs to SPEXS. No state is yet compliant with the REAL-ID Act.
As of July 2017, however, every state and US territory has either been certified by DHS as sufficiently compliant (for now) with the REAL-ID Act, or has been granted an extension of time to comply.
Some of these extensions expire in October 2017, but it remains to be seen whether the DHS will continue to call its own bluff by certifying states as compliant despite their manifest noncompliance, granting further extensions, or again postponing its threatened “deadline” for the imposition of arbitrary, unauthroized, and unlawful sanctions against would-be air travelers without ID on the basis of their residence in certain states.
In the meantime, TSA and DHS press releases, websites, and signs posted in airports should continue to be taken as government propaganda rather than as statements of current or proposed law.