We’ve finally begun receiving records from the TSA of how the public responded to the TSA’s proposal in 2016 to start requiring travelers to show ID in order to fly.

Since 2008, TSA and contractor staff at airport checkpoints have been demanding that some travelers who do not have ID, do not show ID to checkpoint staff, or show ID that is initially deemed “unacceptable” fill out and sign TSA Form 415, “Certification of Identity”, and answer questions about the information in the (secret) file about them maintained and made available to the TSA by the commercial data broker Accurint.

Before any Federal agency such as the TSA starts collecting information from the public, whether verbally or through a written form, the agency is required to obtain approval for the “information collection” from the Office of Management and Budget (OMB).

The TSA has never requested or obtained approval for any version of Form 415. But in 2016, the TSA gave notice that it intended to seek OMB approval for Form  415, and accepted comments on that proposal from the public by email. After submitting our own objections to the TSA’s proposal, the Identity Project made a Freedom Of Information Act (FOIA) request for the complete administrative record related to the TSA’s contemplated request.

The TSA has not yet actually submitted a request to OMB for approval of Form 415, but has continued to use it illegally without OMB approval.

In May 2018, we received a heavily redacted version of the TSA’s procedures for “ID verification” including use of Form 415.

Now we’ve received a first partial set of excerpts from the “administrative record” related to the TSA’s proposal, consisting mainly of comments submitted by the public.

Most of the comments were from civil liberties and human rights organizations opposed to the TSA’s proposal, including the Identity Project, the Cyber Privacy Project,  the Constitution Alliance, and the Electronic Privacy Information Center.

But the TSA also received comments questioning the TSA proposal from at least one state government, and a single frighteningly revealing comment urging the TSA to use even more intrusive measures to track people who try to fly without “acceptable” ID.

The Director of the Pennsylvania state Bureau of Driver Licensing (p. 1 of this PDF file) questioned the TSA’s plan to continue to allow residents of states certified by the DHS as “compliant” with the REAL-ID Act to fly without ID or with “noncompliant” ID after completing Form 415, while preventing residents of noncompliant states with no ID or noncompliant ID from traveling by air:

From a legal point of view, there does not appear to be any rational distinction between a resident of a state who has been issued a Real ID non-compliant product and a resident of a state that does not issue Real ID-compliant products at all. As such, TSA’s proposal would appear to deny equal protection to similarly situated residents in different states. The department  [Pennsylvania Department of Transportation] asks TSA to reconsider its policies and procedures related to TSA Form 415 to ensure equitable treatment.

We hope that Pennsylvania and other noncompliant states are preparing to litigate this equal protection issue if the TSA tries to discriminate against their residents.

On the other side, the TSA received one comment generally supporting requiring air travelers to show ID to fly — but suggesting that the TSA should also subject travelers without ID to mug shots and fingerprinting like criminals.

It’s tempting to dismiss such extremist ravings as unlikely to be acted on, but “Keeping IDentities Safe”  has been the public voice of lobbying in support of the REAL-ID Act. It describes itself as “a non-partisan, not for profit, crime prevention, educational charity… Its central purpose is to raise public awareness that weak state systems for issuing driver’s licenses and IDs increase the risk from foreign terrorists and domestic criminals.” It’s not clear whether Keeping IDentities Safe represents political (anti-immigrant) or economic (ID card, database, and biometric industry) interest groups, or both.

According to the comments submitted to the TSA by Keeping IDentities Safe  (pp. 2-4 of this PDF):

If documentation [evidence of identity such as a noncompliant drivers license or other ID] is presented [by a traveler without compliant ID], TSA should capture the documentation presented by electronic scan….

[A] “superior” level of identity verification includes the use of biometrics. Given that the traveler would be submitting only biographic information via a form, TSA should phase in the collection of physical data including  front facial image and fingerprints. If the passenger has been previously enrolled in a federal program, biometric technology can seek to confirm the identity of a traveler. It may also be used to compare that facial image and fingerprints against various watch lists … as well as for outstanding warrants and wants.

We hope that this suggestion for further harassment by mug shots and fingerprinting of travelers without ID is just wishful thinking by the surveillance-industrial complex, but we will remain alert for any signs that the TSA shares this vision — as we fear it may.