Apr 20 2020

COVID-19, the REAL-ID Act, and ID to fly

A month ago — in what seems like it was long ago and in a galaxy far, far, away, before the COVID-19 pandemic reduced air travel in the US by more than 95% —  the US Department of Homeland Security was stepping up its baseless threats to begin “enforcement” of the REAL-ID Act against airline passengers on October 1, 2020.

There’s been no change (yet) in the REAL-ID Act or the regulations for its implementation, despite proposals that remain pending in Congress.

Over the last month, though, President Trump, Acting Secretary of Homeland Security Chad Wolf, and the Transportation Security Administration have each issued formal or informal notices or statements about their intentions with respect to the REAL-ID Act and ID demands for air travel.

As of now, it appears that the DHS/TSA “ultimatum” to air travelers to obtain “compliant” ID cards or be denied passage through TSA and contractor checkpoints at airports will be postponed yet again, this time for another year, until October 1, 2021.

After that date, it appears that the TSA intends to continue to allow people to fly even if they don’t show ID at checkpoints, but only if it the TSA or its contractors thinks that they have been issued some compliant ID (even though they don’t have it with them).

Is this legal? No. Does this make any sense? No. But it’s what the TSA seems to saying it plans to propose. The TSA  is asking for comments on this proposal from the public through May 19, 2020.

During a coronavirus press briefing on March 24, 2020, President Trump announced a one-year postponement of the October 1, 2020, “deadline” for REAL-ID Act enforcement:

I’m also announcing that we’re postponing the deadline for compliance with REAL ID requirements. At a time when we’re asking Americans to maintain social distancing, we do [not] want to require people to go with their local DMV. We will be announcing the new deadline very soon. It’s going to be announced in a very short moment.

Two days later, on March 26, the DHS posted a statement on its website from the Acting Secretary of Homeland Security, Chad Wolf:

Due to circumstances resulting from the COVID-19 pandemic and the national emergency declaration, the Department of Homeland Security, as directed by President Donald J. Trump, is extending the REAL ID enforcement deadline beyond the current October 1, 2020 deadline. I have determined that states require a twelve-month delay and that the new deadline for REAL ID enforcement is October 1, 2021. DHS will publish a notice of the new deadline in the Federal Register in the coming days.

We have no particular reason to doubt these announcements. But three more weeks have passed, and nothing has been published yet in the Federal Register. The most plausible explanation appears to be that President Trump’s announcement was made spontaneously, or at least without consulting the head of the DHS, and that DHS staff responsible for drafting regulations were caught unprepared and have yet to catch up.

The DHS website says, correctly, that, “The [REAL-ID] Act does not require individuals to present identification where it is not currently required to access a Federal facility.”

ID is not currently required to fly, and hundreds of people fly without ID every day. Nothing in the REAL-ID Act itself would change this or impose a new ID requirement to fly.

But as part of its efforts to extort states into uploading information about residents to the SPEXS national ID database,  the TSA has repeatedly threatened to begin “enforcing the REAL-ID Act” by preventing travelers without “compliant” ID and/or who reside in insufficiently compliant states from passing through airport checkpoints. But it has remained unclear which travelers would be turned back,  or on what basis.

The TSA partially tipped its hand as to what it might mean by “enforcement of the REAL-ID Act” in a separate notice published in the Federal Register on March 20, a few days before President Trump announced postponement of REAL-ID enforcement threats. We suspect that if the decision had already been made by then to postpone the REAL-ID “deadline”, the TSA notice would have been withheld until later, possibly until next year.

The TSA’s notice took the innocuous-seeming form of an invitation to the public to “comment on a new Information Collection Request (ICR)… that we will submit to the Office of Management and Budget (OMB) for approval in compliance with the Paperwork Reduction Act (PRA).”

What does  a notice of intent to request approval from OMB for a new form have to do with the TSA’s authority to require you to show ID to fly?

Nothing at all, actually. But the TSA has tried this tactic before.  In November, 2016, the TSA published a similar notice of intent to request approval for an earlier version of the same form, TSA Form 415.

Versions of  TSA Form 415 (we obtained this one in response to a FOIA request) have been in use illegally, without the OMB approval required by the PRA, since 2008. The 2016 notice was described as a request for approval of a “new” form. That lie was the least of the problems with the notice, however. As we described in the comments we filed in response to the 2016 TSA notice:

The notice attempts to use the PRA procedures for approval of a form to effect a sweeping, highly controversial, substantive change in the scope of authority over air travelers claimed and exercised by the TSA. Even if such a change were authorized by a valid statute, it would require a different procedure: notice-and-comment rulemaking by the TSA pursuant to the APA [Administrative Procedure Act]…. [T]he proposal implicates the ability of individuals to exercise their right – pursuant to Federal statutes, the U.S. Constitution, and international human rights treaties – to travel by air by common carrier…. Approval for this change in requirements to travel (not a mere continuation of, or change in, an information collection) is being requested from the wrong agency, through the wrong procedure, and without an adequate basis.

The TSA never responded to our objections or any of the other comments submitted in response to its proposal. Instead, it waited almost four years, and then published a revised but ostensible “new” notice:

TSA previously initiated the PRA approval process by publishing a notice on November 8, 2016, 81 FR 78623, announcing our intent to conduct this collection; however due to continuing policy refinement, TSA never completed the process or finalized the TSA Form 415. TSA welcomes new comments with the publication of this new notice to re-initiate the approval process.

The new notice doesn’t include the proposed form. When we requested it, the TSA’s Paperwork Reduction Act officer responsible for the notice replied:

The Transportation Security Administration (TSA) has received your email and voice mail, requesting a copy of the proposed revised TSA Form 415.

The form is not available to the public as it is not finalized. It will be available when TSA submits the Information Collection Request to OMB for approval.

In other words, we are invited to submit comments, but we won’t see the document on which we are to comment until after the close of the comment period. The ability of the public to provide informed comment is further impaired by the fact that the TSA still hasn’t completed its responses to several of our FOIA requests, going back to 2016 and 2017, for records related to the history and past usage of Form 415 and the administrative record from the 2016 PRA notice and comment proceeding.

The latest notice contains a footnote claiming, without further explanation, that “TSA Form 415 is currently exempt from the Paperwork Reduction Act.” That claim has, so far as we can tell, no basis in law. The notice also describes the questioning to which some travelers without ID are subjected, in addition to, or instead of, completing TSA Form 415. Pursuant to the PRA, those questions also constitute an “information collection” which required OMB pre-approval. But it doesn’t appear from the TSA’s notice that it intends to request OMB approval for those  questions, only for some as-yet-undisclosed revision of Form 415.

All of these issues were addressed in our comments in response to the 2016 PRA notice, and will be addressed in our response to the current notice.

The real significance of the notice, however, is not the TSA’s intent to request approval of a written form or verbal interrogation of travelers without ID.  The substantive change in plans disclosed in the PRA notice is the TSA’s intent to begin refusing to allow any traveler without ID to fly, even if they are wiling to complete Form 415 and answer questions based  on the file about them held by the Accurint data brokerage division of Lexis-Nexis, unless the TSA determines (by as-yet-unspecified procedures) that some REAL-ID Act compliant ID has been issued to the traveler (even though they don’t have it with them to show at the checkpoint).

This isn’t a proposed new rule to require all air travelers to show ID. It’s a proposed change in procedures specified by secret TSA “Standard Operating Procedures” for which travelers without ID the TSA will “allow” to fly, and which it will illegally prevent from exercising the right  to travel by common carrier and the “public right of transit by air” guaranteed by law.

We’ll address all these issues in the comments we’ll be submitting to the TSA by the close of the 60-day window for comments on May 19, 2020.

The history of TSA disregard for legal niceties doesn’t give us much hope that the TSA will give any serious consideration to critical comments from the public. The PRA requires a second Federal Register notice, though, followed by another 30-day window for comments directly to OMB, when the final proposal is submitted to OMB for approval.

In light of the postponement by another year of the DHS “ultimatum” to travelers, that might not be for many months, by which time many other aspects of post-pandemic air travel may have changed in ways that change the TSA’s plans yet again. Stay tuned.

5 thoughts on “COVID-19, the REAL-ID Act, and ID to fly

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