July 21, 2014 marked “Phase 2” of implementation of the REAL-ID Act.

What does this mean, and does it matter?

As of July 21, drivers’ licenses and other state ID credentials issued by US states or territories that haven’t been certified by the DHS to comply with the REAL-ID Act cannot be accepted by Federal agencies for access to ID-controlled “restricted” areas of Federal facilities (“i.e., areas accessible by agency personnel, contractors, and their guests”).

Because Federal agencies typically issue their own ID credentials to their own employees and regular contractors, this will mostly affect occasional visitors to Federal facilities. NASA, for example, which has facilities in states that have not been certified by DHS as sufficiently compliant, has issued this advice to would-be visitors:

Effective July 21, 2014, the implementation of Phase II of the Real-ID Act (2005) restricts the use of state ID from non-compliant states (including New York) as an acceptable form of identification for federal facilities (including NASA GISS). If you are intending to visit GISS and only have a standard drivers license from a non-compliant state, please ensure that you have a second form of ID (passport, military ID, etc.) to avoid unnecessary complications.

It isn’t clear from this notice, or others we’ve seen, what these “unnecessary complications” will amount to. Visitors with ID credentials from non-compliant states will, presumably, be treated as visitors without “valid” state ID credentials, but that begs the questions of whether or on what basis they will be allowed entry after additional scrutiny or some form of alternate ID verification, allowed entry but only if escorted by staff and not allowed unescorted, or denied entry entirely.

In its eseence, the REAL-ID Act was intended to mandate the creation of a distributed national identity card system. The key “compliance” requirement for states and territories is participation in a linked, distributed database of ID-card and biometric information about all ID cardholders nationwide.

The intent of the Federal law is to force states to particpate in (and absorb the cost of) this scheme, sparing the Feds the costs and hassle of issuing national ID cards and providing (implausible) deniability as to whether it’s a “national ID” at all: “See, it’s not a ‘national’ ID card. It’s still issued by your state.”

But since the Feds probably don’t have jurisdiction over state issuance of drivers’ licenses or state ID cards, the REAL-ID Act relies on threats, rather than direct orders, to extort compliance by states resistant to registering their citizens and residents in a national ID database.

The big stick driving states and territories to comply is that, in the final “Phase 4” of implementation of the REAL-ID Act, ID credentials issued by states or territories not certified by the DHS to be REAL-ID compliant will not be “accepted” by the TSA for purposes of “boarding federally regulated commercial aircraft”. The date for Phase 4 will be specified by DHS in regulations that have not yet been promulgated, but will be, “No sooner than 2016”.

The REAL-ID Act depends on states for its implementation, and is premised on being able to induce compliance by reluctant states through the threat not to “accept” ID cards issued by those states as air-travel credentials.  Most individuals rarely, if ever, are asked to show their drivers’ licenses or state ID cards to Federal agents — except at TSA checkpoints.  Without a requirement to show ID credentials to fly, or a substantial penalty for failing to do so, that threat would have little sting.

In other words, the Feds’ ability to implement the REAL-ID Act over state objections is almost entirely dependent on the Feds’ ability to “require” ID from flyers, or to punish flyers without ID.

Whenever it has become an issue in court, the DHS has claimed that ID isn’t required to fly.  So the real issue is how flyers without compliant ID cards will be treated. What (if any) additional “proecedures” will they be subjected to, and how much will they be delayed?

The TSA still hasn’t responded to the FOIA request we made, more than a year ago, for their “ID Verification Reports” on how many people try to fly without ID, and what happens to them, the existence of which we discovered from the TSA’s response to another of our FOIA requests.

We do know that the TSA’s standard procedure for “verifying” the identity of air travelers without accpetable ID cards includes asking those travelers to complete a “Certification of Identity” form (TSA Form 415). That form still has never been submitted for, or received, the OMB approval required as a prerequisite to any Federal “information collection”. As a result, travelers cannot be required to complete this form, or sanctioned for failing or refusing to do so.

In Phase 4 of REAL-ID Act implementation, the TSA would probably treat anyone who presents only “non-compliant” ID, like those with no ID, as “selectees” for more intrusive search.  But that would raise questions as to whether the more intrusive search was genuinely for the purpose of detecting threats to aviation, or was a de facto administrative sanction for state REAL-ID Act resistance.

One way or another, enforcement of administrative sanctions against citizens and residents of states that don’t comply with the REAL-ID Act is likely to lead to renewed challenges to TSA demands for ID cards or other identifying information, and challenges to TSA (mis)treatment of travelers without “acceptable” ID.

The DHS probably knows that it’s on shaky legal ground in its treatment of travelers without ID, especailly in light of its claim that air travelers aren’t “required” to show ID. To avoid precipitating more legal confrontations that it might lose, the DHS has (1) postponed promulgation of regulations setting the effective date for Phase 4 of REAL-ID implementation, and (2) “certified” that many states are “complying” with the REAL-ID Act, even when their legislatures have voted specifically not to comply.

In 2012, for example, Montana’s governor told a Congressional committee:

Montana will not agree to share its citizens’ personal and private information through a national database, nor bear the exorbitant cost building such a database. Furthermore, the Act tramples on our state’s right to determine our own licensing procedures and protocols, and would interfere with our state’s work to improve drivers’ license security.

Montana is in no mood at all for another heavy-handed play by the federal government, such as what transpired in 2008 when the homeland security director threatened to prevent Montanans from boarding an airplane unless we complied with the REAL ID act. We refused, and will refuse again.

Although Montana law has not changed since then, on July 21 of this year — the day the Phase 2 REAL-ID Act restrictions on Federal accptance of ID cards issued by noncompliant states went into effect — the DHS sent the governor a letter certifying that Montana is complying with the REAL-ID Act, so that Montana drivers’ licenses and state ID cards will continue to be accepted for “Federal purposes” until at least October 10, 2015.

Congress and the DHS can’t evade this issue forever.  Congress needs to face the reality of state resistance (and the legitimate reasons for that resistance), and repeal the REAL-ID Act. If it doens’t, renewed confrontation over the treatment of travelers without ID is inevitable.