Jan 20 2018

All the fake news that’s fit to print about REAL-ID and ID to fly

We’ve been spending a lot of our time lately writing letters to the editor pointing out errors and requesting corrections of news stories reporting DHS propaganda as fact.

Earlier this month, the DHS postponed from January 22, 2018, to October 10, 2018, the date on which it had threatened to have the TSA begin (illegally) interfering with air travel by residents of certain states.  Since neither the January 22, 2018, date nor the choice of which states to threaten was set by law or regulation, but solely by DHS press release, the DHS could and did withdraw its threat merely by issuing another press release.

The DHS had little choice, after its bluff was called by reality (compliance with the REAL-ID Act would require more money, more time, and changes to state laws and in some states incluidng California, changes to state constitutions) and the likelihood of resistance by the flying public (any attempt to prevent residents of certain states from flying without ID would lead to protests at airports and lawsuits that the TSA and DHS would likely lose).

But we are not surprised, given the long history of DHS lies about the REAL-ID Act and ID to fly, that the DHS press release withdrawing the threat of a January 22, 2018, crackdown on air travel without ID by residents of certain states was immediately followed by a renewed DHS public relations campaign of lies about the law and the facts.

DHS press releases should no more be published as “facts” without fact-checking or acknowledgment that they contain contested (and readily refuted) factual and legal claims than should President Trump’s,  President Obama’s, or anyone else’s Tweets.

The New York Times is the latest news outlet to have been taken in, yet again, by this DHS “fake news” campaign, with an article this week on the Times’ website and in the travel section, “Is Your ID Approved for Travel? These Are the Latest Rules“. Many of the DHS falsehoods in this article were reported as facts in an earlier story in the Times in November, 2017, by the same reporter, Shivani Vora. We wrote to Ms. Vora at that time to correct the errors in that story, but received no reply.

To be clear, DHS claims are worthy of reporting as news. It is newsworthy that the DHS has engaged in a decade-long campaign, through both Democratic and Republican Administrations,  of brazen public lies about the REAL-ID Act and ID to fly.

It is equally newsworthy, however, that a “newspaper of record” appears to have made no attempt to fact-check the claims made by DHS spokespeople or to include any other points of view, and repeats demonstrably false DHS claims as undisputed facts even after their falsehood was pointed out to the reporter on the story.

Specifically, the latest article in the New York Times reports the following DHS “fake news” as fact:

(1) “The Real ID Act requires that driver’s licenses meet standards set by the Department of Homeland Security by October 2020.”

In fact, (a) The REAL-ID Act does not “require” anything. Compliance with the REAL-ID Act by states is entirely voluntary. The Federal government does not have the authority to compel the states to spend state funds, or to direct how states carry out functions within state authority, such as licensing of drivers, as we have discussed in our testimony to the California DMV and in similar testimony to legislatures in other states.

In addition (b) the date of “October 2020” was not set by the REAL-ID Act of 2005, but by DHS regulations promulgated in 2014. The false claim by the DHS that such a date was fixed by statute implies (and is designed to imply) that this date could only be changed by act of Congress. But in fact, this date was self-imposed on the DHS by DHS regulation, has repeatedly (most recently in 2014) been revised by the Secretary of Homeland Security
merely by promulgating new regulations, and could be (and probably will be) revised again in the same manner, without Congressional action.

(2) “There are 28 states that are now Real ID compliant.”

In fact, no more than 14 states are compliant with the REAL-ID Act.

The REAL-ID Act requires that, “To meet the requirements of this section, a State shall … Provide electronic access to all other States to information contained in the motor vehicle database of the State.” According to the contractor operating the outsourced SPEXS national ID database set up to enable this nationwide data access, only 14 states (see the “participation” tab) are participating. At most those 14 states (and certainly not 28 states) are compliant with the provisions of the REAL-ID Act.

(3) “Starting on Oct. 1, 2020, all fliers who reside in the United States, even if they’re flying domestically, will need Real ID identification to pass through Transportation Security Administration security checkpoints at airports…. As of Oct. 1, 2020, the T.S.A. will ask all travelers to have a Real ID-compliant driver’s license or alternate acceptable identification to fly domestically.”

It comes as a surprise to many travelers and many journalists, in light of the “big lie” of signs in airports and statements on the DHS and TSA websites that ID is “required” to fly, but no current or proposed law or regulation requires domestic air travelers to show any ID.

Nothing in the REAL-ID Act would change this or impose a new requirement for ID to fly. The REAL-ID Act pertains only to which ID is acceptable in circumstances in which ID is required, which do not, and will not unless the law is changed, include domestic air travel.

In November 2016, the TSA posted a notice that it was considering making a request for approval of a new form that would purport to limit air travel by residents of states that the DHS has deemed insufficiently compliant with the REAL-ID Act and who don’t show ID.

We objected that there is no legal basis for such an action. The TSA backed down, and has not taken any further action to try to get the proposed new form approved.

We’ve been in court when TSA witnesses have testified under oath that the signs in airports and on the TSA and DHS websites are incorrect, and that “People fly without ID every day. We have a procedure for that.”

The consistent position of the TSA and DHS in litigation, as opposed to in press releases, has been that no law requires ID to fly. The Identity Project was founded by John Gilmore, the plaintiff in Gilmore v. Gonzales. In that case, the 9th Circuit Court of Appeals found (after ex parte and in camera review of the TSA Security Directives and ID policies) that Mr. Gilmore could have flown without ID if he submitted to a more intrusive search:

The identification policy requires that airline passengers either present identification or be subjected to a more extensive search. [435 F.3d at 1137] … Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. [ 433 F.3d at 1139]

TSA logs released in response to our requests under the Freedom Of Information Act show that hundreds of people fly every day without showing ID, or with ID that the TSA has deemed “unacceptable”. Some of these people had lost or forgotten their ID, had it stolen, or needed or wanted to fly while their ID had expired or was in process of renewal. Others, for whatever reason, did not have ID or did not show it at TSA checkpoints.

During hearings on this issue in the Alaska state legislature at which we testified last year, the state House majority leader described to his colleagues his own experiences flying repeatedly without ID between the district he represents in Anchorage and the state capital in Juneau, which is off the road system and reachable only by air or by dogsled.

(4) “‘Every state is working on getting compliant with all Real ID requirements,’ Mr. Yonkers said.”

At least this, unlike the other claims above that were reported as fact, was reported as a quote from a DHS spokesperson. But this claim was reported as uncontested, without comment from any source outside the DHS, much less from any critic of the REAL-ID Act.

In fact, only 4 states, other than the 14 already participating, are identified by the contractor operating the national ID database as “actively working on implementation”. Most states have taken no action toward complying with the data-sharing element of REAL-ID Act compliance, and have given no indication of intent to do so.

The claim by the DHS that “every state is working on getting compliant with all Real ID requirements” is either an out-an-out lie or wishful thinking by the DHS, clearly unsupported, with respect to most states, by any state legislative authorization or funding for participation in the national ID database. Compliance by California and possibly other states would be prohibited by state Constitutions.

We’ve written to the New York Times to request that they correct their latest story, and that in the future they fact-check claims by government spokespeople before printing their propaganda as unquestioned fact. We’ll let you know if the Times makes a correction or reponds to our email.

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