Air travel in the US has been reduced by more than 90%, measured by the numbers of people passing through checkpoints at airports operated by the Transportation Security Administration (TSA) and its contractors.

And the Department of Homeland Security (DHS) has postponed its threat to start unlawfully refusing passage to travelers without ID credentials compliant with the REAL-ID Act of 2005 for another year, from October 1, 2020, to October 1, 2021.

So relatively little attention is being paid right now to air travel or TSA requirements — making it the ideal time for the TSA to try to sneak a new ID requirement for air travel (to take effect in 2021) into place without arousing public protest.

Today, in collaboration with nine other organizations concerned with freedom of travel, identification, privacy, human rights, and civil liberties, we filed comments with the TSA in opposition to what is ostensibly a “Notice of intent to request approval from the Office of Mangement and Budget” for a new form, TSA Form 415.

Our comments were joined by the Identity Project, Freedom To Travel USA, Fiat Fiendum, Inc., National Center For Transgender Equality (NCTE), Restore The Fourth, Inc., Patient Privacy Rights, Defending Rights And Dissent, The Constitutional Alliance, Privacy Times, and Just Futures Law.

According to our comments, the TSA is attempting to “use the innocuous-seeming device of a request for approval of an information collection to introduce a fundamental and profoundly controversial change in substantive TSA requirements and the rights of travelers”:

When the substance of the proposal is stated accurately, it is clear that the proposed change in prerequisites for the exercise of the right to travel by air is not a mere continuation of, or change in, an information collection. This change in requirements is being requested from the wrong agency, through the wrong procedure, and without an adequate basis….

According to the notice: “All adult passengers 18 and over must show valid identification at the airport checkpoint in order to travel.”

This statement is materially false….

As discussed further below, this statement is directly contradicted by the arguments made by counsel for the TSA in litigation, the testimony given under oath by TSA staff, the evidence submitted by the TSA to Federal courts, the findings of fact made by Federal courts based on that evidence, the TSA records regarding people who fly without showing ID released in response to our Freedom Of Information Act (FOIA) requests, and the experience of the commenters and other travelers.

In fact, the TSA does not require, and the law does not authorize the TSA to require, that would-be travelers show any identity documents. According to longstanding practice, people who do not show any identity documents travel by air every day – typically after being required to complete and sign the current version of TSA Form 415 and answer questions about what information is contained in the file about them obtained by the TSA from data broker Accurint….

The notice attempts to use the PRA procedures for approval of a form to introduce a sweeping, highly controversial, substantive change in the scope of authority over air travelers claimed and exercised by the TSA….

The proposal implicates the ability of individuals to exercise their right to travel by air by common carrier, a right recognized by Federal statute, the U.S. Constitution, and international human rights treaties.

The proposed revised form is represented as somehow related to implementation of the REAL-ID Act of 2005. But travelers have not been, and are not now, required to show any ID to fly, and nothing in the REAL-ID Act has changed or would change that….

The notice describes TSA Form 415 and its use as “a new Information Collection Request (ICR) abstracted below that we will submit to the Office of Management and Budget (OMB) for approval in compliance with the Paperwork Reduction Act (PRA).”…

But neither the form nor the additional information collection associated with its use are “new”. As chronicled further below, both TSA Form 415 and its unnumbered predecessor form(s), and the associated verbal collection of information from travelers, have been in use since at least 2008.

In summary, the notice claims that the requirement for air travelers to show ID is already in effect, but that the information collection for which approval is sought is “new”.

In fact, it’s just the reverse: The information collection including Form 415 and verbal questioning is already in effect, but the proposed ID requirement for air travelers would be new.

We’ve seen this before.

In 2016, the TSA published a similar notice of intent to submit Form 415 (and a new ID requirement to fly) for OMB for approval. We objected, as did many others. The TSA never followed through with its planned submission to OMB (which would trigger a second window of opportunity for the public to submit comments, this time to OMB rather than the TSA). Instead, the TSA decided to “re-start” the process, perhaps in hope of putting the objections raised in 2016 behind it if the original commenters didn’t re-submit them.

We’ll be watching closely to see if the TSA moves forward with this proposal, or tries to put a de facto ID requirement for air travel into effect through some other back-door means.