Papers, Please!

The Identity Project

Monthly Archives: March 2024

Mar 25 2024

City ID and the right to travel

In recent overviews, we’ve discussed the barriers to getting a passport or state-issued driver’s license or ID card (especially in states that have chosen to participate in the national REAL-ID system and database) and the difficulties faced by travelers without ID.

Some cities, notably including New York and San Francisco, have attempted to mitigate the discrimination against their residents who are unable to get Federal or state ID by issuing municipal ID cards.

How useful are these city IDs for travelers without other ID? Do they solve the problem of demands by common carriers for ID to travel by bus, train, or plane?

The short answer is that these city ID cards succeed in mitigating the damage that results from demands for ID to travel, but they aren’t a real solution to the problem.

Here’s what happens if you want to travel with a city ID: Read More →

Mar 21 2024

US Department of Transportation to investigate airline data privacy

Today the U.S. Department of Transportation (DOT) announced plans for a “a privacy review of the nation’s ten largest airlines regarding their collection, handling, maintenance, and use of passengers’ personal information.”

The review will include airlines’ compliance (or not) with the so-called Privacy Shield framework for transfers of personal data from the European Union to the US. As DOT notes on its website, “DOT is the enforcement authority for airlines participating in Privacy Shield. DOT shares jurisdiction with the FTC regarding ticket agents participating in Privacy Shield.”

This is a positive step, but we’re reserving judgment until we see what DOT actually does.

The review is to be conducted by DOT’s Office of Aviation Consumer Protection, which has demonstrated little expertise or interest in privacy issues despite its enforcement authority with respect to airline privacy practices. DOT’s Advisory Committee on Aviation Consumer Protection raised these issues a decade ago, but there’s been little visible change or enforcement activity. And the terms of reference for the review, as described in DOT’s press release today, make it unclear whether DOT will be looking into how personal information in airline reservations is made available to US and foreign governments, or whether DOT’s review will be limited to commercial use of airline data.

Stay tuned.

Mar 20 2024

It’s not a crime not to show ID

In September of 2023, in a case that originated in Huntsville, Alabama, the 11th Circuit Court of Appeals ruled that “It was… clearly established at the time of Mr. Edgar’s arrest that [a police officer] could not demand he produce physical identification. And because Officer McCabe’s demands for an ‘ID’ or a ‘driver’s license’ went beyond what the statute and state law required of Mr. Edger, she violated clearly established law. Under this set of facts and these precedents, no reasonable officer could have believed there was probable cause to arrest Mr. Edger for obstructing governmental operations by violating [Alabama Code]  § 15-5-30.”

Apparently, the police in Andalusia, Alabama didn’t understand this already clearly-established state and Federal law, and didn’t get any training about this decision.

On February 23, 2024, a police officer in Andalusia arrested Ms. Twyla Stallworth in the doorway of her own house for declining to show ID and (correctly) telling the officer that she wasn’t required to show ID, least of all in her own home. “Provide ID or go to jail,” arresting officer John G. Barton of the Andalusia Police told Ms. Stallworth.

Toward the end of this cellphone video recorded by Ms. Stallworth’s son, Officer Barton specifically cites Alabama Code § 15-5-30 — the law the 11th Circuit found was already clearly established not to require showing ID or to provide a basis for such an arrest — as his basis for arresting Ms. Stallworth.

Officer Barton took Ms. Barton away in handcuffs even after he read the text of this law to her son, who pointed out to the officer (correctly, and as the 11th Circuit had recently found was already well established) that the law does not require anyone to show ID.

The charges against Ms. Stallworth were dismissed, and after she got a lawyer the Mayor of Andalusia publicly apologized to her. The Mayor described the arrest as a “mistake”, said that Officer Barton “has been disciplined” in an unspecified manner, and promised that “the entire [Andalusia Police] department will receive additional training on Constitutional law, the laws of the State of Alabama, and the City of Andalusia’s ordinances.”

One lesson of this incident, of course, is of the importance of recording the police. We doubt Ms. Stallworth would have gotten an apology without video of what happened.

But as it relates to demands for ID, here’s the takeaway:

The law is clear: Stating your name is not the same as showing ID.

There are some states in which state law requires you to (verbally) identify yourself to a police officer (who has identified themself as a police officer), by stating your name, if and only if there is probable cause to suspect you of some other crime. There are some activities such as driving a motor vehicle that require a license.

There is no US state in which — as a pedestrian, a passenger in a car driven by someone else, or in your own home — you are required to have, carry, or show ID, even if you are stopped and questioned and there is probable cause to suspect you of some other crime.

If police ask to see your ID, and you aren’t driving or doing something else that requires a specific license, you have the right to just say “No”. 

Mar 19 2024

Unanimous Supreme Court rules that no-fly case can go forward

In a unanimous 9-0 decision announced today,  the US Supreme Court has ruled that a lawsuit brought by Yonas Fikre challenging the US government’s placing him on its no-fly list can go forward even though the government has, for the time being (and only after he sued), taken him off its travel blacklist.

Mr. Fikre is a US citizen who was put on the US government’s “no-fly” list while he was traveling overseas, in order to pressure him to become an informer working for the FBI to spy on members of a mosque he had attended back home in Portland, OR. As a result of being unable to return to the US, he was eventually arrested (at the behind-the-scenes instigation of the US, he plausibly claims) for overstaying his visa, tortured and further interrogated (also at the behest of the US, he claims, also plausibly), and again told he could be removed from the no-fly list — and thus allowed to be released from immigration detention and deported to the US — if he became an FBI informer.

The Supreme Court’s unanimous decision is narrow but important. The government has never, so far as we can tell, actually tried to defend any of its no-fly decisions and orders in court. Instead, the government has tried to avoid judicial review of either its decision-making procedures (as the Supreme Court notes in its opinion today, “no statute or publicly promulgated regulation describes the standards the government employs when adding individuals to, or removing them from, the list”) or the substantive outcomes (a striking pattern, publicly-revealed when the list was leaked, of anti-Muslim bigotry).

The government’s two-prong strategy for avoiding judicial review has been to argue that the evidentiary basis (if any) for no-fly decisions is a state secret that can’t be disclosed even to judges, much less the subjects of no-fly orders, and to try to render the remaining cases “moot” by taking those who lawyer up and sue off the blacklist before their cases can come to trial, as it did with Mr. Fikre once he was back in the US.

The Supreme Court’s decision today deals solely with the “mootness” issue. So little has been revealed about the government’s  actions in putting Mr. Fikre on, and later off, the no-fly list that there is no basis for confidence that the government actions that he complained of in his lawsuit won’t recur if the case is dismissed.

The unanimous opinion, written by Justice Gorsuch, didn’t reach the question of classified or “privileged” information or “state secrets”. Those issues remain to be addressed as the case proceeds on remand in the U.S. District Court for the District of Oregon. Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion agreeing with the judgment that the case was not moot, but stressing that they “do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course” and that it might be possible to decide the case on the basis of unclassified evidence.

Gadeir Abbas, the lawyer for the Council on American Islamic Relations (CAIR) who argued Mr. Fikre’s case before the Supreme Court, said after today’s decision was announced, “The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”

We congratulate Mr. Fikre and his lawyers for standing up for all blacklisted Americans. Fifteen years after he was blacklisted by his government and ten years after he filed his lawsuit, Mr. Fikre is still a long way from a trial or a ruling on the merits of his case. Today’s ruling is a step toward justice, but shouldn’t be misunderstood as meaning that “the system works” or that Mr. Fikre has been “given his day in court”.

We wish Mr. Fikre and his lawyers all success on remand in the District Court in Portland.

Mar 18 2024

Buses, trains, and US domestic travel without ID

In our previous article, we looked at the state of ID requirements and the the right to international travel for U.S. citizens.

What about domestic travel within the USA without ID?

Flying? Domestic US airline passengers are subject to demands for ID by airlines and the TSA. These demands are of dubious validity, and have arbitrary secret exceptions. Many people fly without ID every day. But not everyone is able or willing to challenge these authoritative-seeming demands for ID to fly.

Driving? States that choose to participate in the national REAL-ID system are making it harder and harder to get driver’s licenses or state IDs. It’s easier for a US citizen to get a passport or passport card than to get a driver’s license in some states. But you can’t legally drive in the US without a driver’s license issued by a state, US territory, or foreign government.

Unless you walk, ride a horse or bicycle, or get a ride in a car driven by someone else, that leaves buses and trains as the primary modes of long-distance travel for people in the U.S. without ID.

Can you take a long-distance bus or train in the US without ID? And if not, what could or should be done to guarantee that right? Read More →

Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent  if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

Read More →