In response to fears by the travel industry (fueled by government lies) that businesses dependent on air travel will lose money if their would-be customers are prevented by the Transportation Security Administration (TSA) from flying because they don’t have ID credentials that the Department of Homeland Security (DHS) deems sufficiently “compliant”, a proposal was introduced in Congress this week by Rep. Debbie Lesko of Arizona to amend the REAL-ID Act of 2005.

What’s really called for, though, is repeal, not revision, of the REAL-ID Act, and explicit Congressional recognition that travel by common carrier is a right that cannot be conditioned on government-issued credentials or other permission. The amendments proposed in H.R. 5827 would only exacerbate the Constitutional flaws in the REAL-ID Act, and would do nothing to rein in the TSA and other DHS components in their violations of travelers’ rights.

H.R. 5827 appears to have been drafted by travel industry lobbyists. Its provisions exactly match the recommendations of the U.S. Travel Association, the umbrella trade association for the travel industry in the USA. Rep. Lesko’s press release announcing the filing of H.R. 5827 quotes endorsements for the bill from spokespeople for U.S. Travel and its constituent trade associations of airlines, airports (which in the US are almost all publicly operated, but tend to act like self-interested businesses rather than operating in the public interest), and travel agents. No advocates for travelers , civil liberties, or freedom to travel are quoted — nor are they likely to endorse H.R. 5827 or the REAL-ID Act it would amend.

H.R. 5827 is styled as the “Trusted Traveler REAL ID Relief Act of 2020”, and is described as a bill “To exempt certain travelers from certain requirements of the REAL ID Act of 2005 for purposes of boarding a federally regulated commercial aircraft, and for other purposes.”

But what would H.R. 5827 actually do, and would that make things better or worse?

H.R. 5827 would exempt individuals certified as “trusted” by the TSA or CBP from some of the “credential requirements” of the REAL-ID Act:

For purposes of boarding a federally regulated commercial aircraft, the credential requirements of section 202 of the REAL ID Act of 2005 (Public Law 109–13; 49 U.S.C. 30301) shall not apply to an individual who provides to the Transportation Security Administration the Known Traveler Number assigned to such individual through such individual’s flight reservation.

DEFINITION.—In this section, the term ‘‘Known Traveler Number’’ means a number assigned to an individual and accepted by the Transportation Security Administration as validating that the individual holding such identifier is a member of a known low-risk population, such as TSA’s PreCheck trusted traveler program or U.S. Customs and Border Protection’s Global Entry program.

The intent of the travel industry in proposing this provision is, presumably, to make sure that their highest-spending frequent-traveler customers will be exempted from the TSA’s threatened harassment and/or interference with travelers’ rights, and that all the burdens of REAL-ID Act “enforcement” are inflicted on would-be airline passengers who are less frequent travelers, less able or willing to pay “trusted traveler” program fees, and/or less willing to waive their Constitutional rights in the hope of being deemed “trusted”.

But the real problem with this provision is that it would enshrine in Federal law:

1. The factually false idea that  there exists such a thing as a “known low-risk population” identifiable by the TSA and/or CBP through pre-crime profiling; and
2. The unconstitutional idea that the TSA and/or CBP can legally discriminate in how they treat travelers by categorizing them into “high-risk populations” and “trusted travelers”, on the basis of secret algorithms applied to secret datasets.

There is no scientific basis for any faith in the ability of the TSA, CBP, or anyone else to predict “risk” on the basis of pre-crime algorithms. Nor is there any legal basis for discrimination in treatment by Federal agencies on the basis of such extrajudicial administrative  “risk assessments”, especially when it comes to activities such as travel by common carrier which are explicitly recognized as rights by both Federal law and international treaties to which the US is a party.

The idea that a Federal administrative agency can secretly and arbitrarily divide the population of the US into “trusted” and “high-risk”, and harass, delay, or deny the rights of those deemed “untrusted”, is abhorrent.

This provision of H.R. 5827 is, on its face, a direct violation of the right of all individuals to the equal protection of the laws, especially with respect to the exercise of rights.

H.R. 5827 would also mandate that the TSA “develop, socialize [sic], and implement” procedures allowing individuals to fly without ID acceptable to the TSA:

The Administrator of the Transportation Security Administration, in consultation with relevant transportation security stakeholders, shall develop, socialize, and implement alternative checkpoint screening procedures for individuals arriving at a checkpoint without a form of identification acceptable to the Transportation Security Administration or satisfying the exemption described in subsection (a). Such procedures may include… Allowing passengers to undergo secondary screening procedures at the checkpoint for purposes of boarding a federally regulated commercial aircraft.

There’s something Orwellian in referring to “allowing” rather than “requiring” passengers to undergo groping and physical and/or virtual strip searches as a condition of air travel.

But the more fundamental problem with this provision of H.R. 5827 is that the TSA already has procedures that do exactly this, in exactly this way. These are described in the policies that the TSA submitted to the 9th Circuit Court of Appeals, in camera and under seal, in Gilmore v. Gonzales. The 9th Circuit dismissed Mr. Gilmore’s compliant on the basis of its finding , after review of the applicable policies, that Mr. Gilmore could have flown without ID if he had submitted to a more intrusive search:

We have reviewed in camera the materials submitted by the Government under seal, and we have determined that the TSA Security Directive … requir[es] airline passengers to present identification or be a “selectee”…. The identification policy requires that airline passengers either present identification or be subjected to a more extensive search.

Both sworn testimony of TSA witnesses in court, and the TSA’s own records released in response to our Freedom Of Information Act requests, confirm that hundreds of people fly without ID every day.

Rather than passing a new law amending the REAL-ID Act to require the TSA to do what it is already doing to travelers without ID, Congress should repeal the REAL-ID Act and explicitly forbid the TSA or any Federally-licensed common carrier from discriminating between travelers on the basis of whether they have, carry, or show ID.

Travel by common carrier is a right that should not depend on government permission.