Papers, Please!

The Identity Project

Jun 01 2026

If I have a US passport, do I need another ID to enter the US?

We had a disconcerting experience last month when we returned from a trip abroad and entered the US at San Francisco International Airport: When we opted out of facial recognition (which is posted as being optional for US citizens) and presented our US passport, the US Customs and Border Protection (CBP) officer asked us for a second piece of identification. “Since you opted out of facial recognition, I need to see some other ID.”

“Is there some question  as to my identity or citizenship?”

“No, but because you opted out of facial recognition, you have to show me a second piece of ID.”

By law (22 U.S. Code § 2705), a valid US passport is defined not just as “evidence” but as “proof” of US citizenship. What other ID would we have that would constitute evidence of identity and US citizenship? The CBP officer didn’t say.

For years, we’ve been getting reports from US citizens who have been told that submitting to facial recognition is required to enter or to leave the US, even while CBP officials have persisted in claiming that “no US citizen is ever required to  be photographed in order to enter or leave the US.”

But we haven’t previously heard of anyone being told that, while they could opt out of facial recognition, that would lead to their US passport not being accepted as ID.

Eventually, after we repeated three or four times that the evidence of our citizenship and identity was our US passport, the CBP officer allowed us to enter the country — but only after quizzing us about our travel history, to see if our answers matched with the border crossings logged in CBP’s Automated Targeting System.

How many international trips did we make last year? What country or countries did we visit on our last trip? Were we certain about that? No, we aren’t certain where CBP thinks we’ve been, or whether CBP has an accurate or complete record of our movements, especially with respect to countries we didn’t enter or leave directly from or to the US.

We followed up with CBP to try to find out if we had encountered a rogue or ill-trained CBP officer, a new unwritten (and illegal) but systemic CBP practice, or a new official (and illegal) CBP policy.

Several weeks later, we got the following message from CBP spokesperson  Erica Austin:

U.S. Customs and Border Protection policies remain unchanged: biometric facial comparison technology is optional for U.S. citizens… CBP confirms the use of biometric facial comparison technology at ports of  entry is voluntary for U.S. citizens. A valid U.S. passport is sufficient to verify citizenship and identity. Officers may request additional documents if further verification is needed, but opting out of biometric facial comparison technology does not automatically require a second form of ID. However, officers may request additional documents during inspection if there are concerns about identity, discrepancies in information, or issues with the passport itself.

This contradicts what happened to us: The CBP officer told us explicitly that there was no question as to our identity and citizenship, and that the only reason for their demand for a second piece of ID was our opting out of facial recognition.

Unsurprisingly, CBP didn’t mention of any reprimand or retraining for the officer.

Refusal to recognize a US passport, or giving automated facial recognition more weight than a US passport as evidence of identity and citizenship, is a serious breach of the law and of the rights of citizens. We’re pleased to know that official policy hasn’t changed, but concerned as to how widespread the illegal practice we encountered may be.

If you’re a US citizen and you’ver been asked for additional ID or subjected to additional questioning by CBP when you opted out of facial recognition, please let us know.

May 26 2026

Reasons for California not to comply with the REAL-ID Act

The budget committees of the California legislature are continuing to consider a proposal from Governor Newsom and the Department of Motor Vehicles (DMV) to appropriate $55 million and, more importantly, change California law to permit the DMV to upload information about all licensed California drivers to the SPEXS national ID database.

We’re in Sacramento this week, along with a statewide coalition of immigrant, LGBTQ, and other human rights groups, talking to legislators about what’s wrong with this proposal:

(download this 1-page summary)

“State-to-State Verification System (S2S) Project” – OPPOSE

  • If California chooses to comply with the REAL-ID Act, the DMV will be required to make all data in DMV records about all California driver’s licenses available to all other states (and to the American Association of Motor Vehicle Administrators, AAMVA). The REAL-ID Act provides that, “To meet the requirements of this section, a State shall… Provide electronic access to all other States to information contained in the motor vehicle database of the State [and] maintain a State motor vehicle database that contains, at a minimum… all data fields printed on drivers’ licenses and identification cards issued by the State.”
  • DMV data will be available to other states through the S2S network. It will also be uploaded to the SPEXS national ID database at AAMVA’s central site.
  • Other states can make only limited queries through the S2S network. But AAMVA as the holder of the SPEXS database can query and retrieve data in bulk at its central site.
  • If the DMV doesn’t have a Social Security Number on file for a license, it will upload a record for that license to the SPEXS database with “99999” in the field for SSN.
  • AAMVA could search for and retrieve all records with “99999” in the field for SSN, or could be ordered to do so by a Federal or state warrant, subpoena, or other court order.
  • A demand to AAMVA for SPEXS data could and probably would include a gag order prohibiting AAMVA from telling the California DMV or the affected individuals that AAMVA had been required to retrieve and disclose their information.
  • No provision in a contract between the DMV and AAMVA could override a gag order. California might not know about or be able to challenge a court order to AAMVA.
  • Contractual “guardrails” would give only false and misleading reassurance, not real protection. The only way to prevent Federal agencies or other states from (secretly) obtaining data from AAMVA is for California not to upload that data to AAMVA.
  • AAMVA is a private Virginia corporation not subject to any of the public records, open meetings, or privacy laws that would apply to a Federal or state government agency.
  • AAMVA has no procedure for an individual to find out what information about them is in the SPEXS database or with whom AAMVA has shared any or all of that data.
  • The US Department of Homeland Security (DHS) has threatened to interfere with Californians’ right to travel if California doesn’t choose to comply with the REAL-ID Act. But the promises made to California drivers and the protection of Californians’ personal information should take precedence over the convenience of air travelers who don’t want to get a passport or passport card.
  • Instead of capitulating to unlawful or questionable DHS threats, California could and should challenge those threats, just as California has challenged other DHS threats.
  • The “deadline” cited by the DMV was set by AAMVA, not by any law or regulation. There is no need to rush a decision which, once made, would be irrevocable.
May 22 2026

Minnesota OK’s “open” meetings behind TSA checkpoint

The Minnesota Commissioner of Administration  has issued a formal advisory opinion that it doesn’t violate the state’s open meeting law for the Minneapolis-St. Paul Metropolitan Airports Commission (MAC) to hold its meetings in location behind a TSA checkpoint and accessible only by showing REAL-ID or paying a $45 fee, as long as the MAC offers to pay (or reimburse) the fee for those seeking to attend MAC meetings.

The advisory opinion addressed only the following question:

Does the Metropolitan Airports Commission Board of Commissioners policy requiring attendees to pay for TSA ConfirmID or obtain a Real ID or passport to attend meetings violate Minnesota Statutes, section 13D.01 to hold open meetings?

The advisory opinion only addresses the requirement to pay the fee or show REAL-ID. This leaves unresolved an issue on which we requested an opinion, but which the Commissioner declined to address: Whether Minnesota’s open meeting law permits the MAC or another state body to hold meetings in a location to which access is under the control and subject to the standardless discretion of the TSA or another third party. The TSA claims the right to deny passage to anyone, regardless of whether they show REAL-ID, pay the illegal $45 fee, or respond to the TSA’s unlawful questioning.

May 21 2026

Immigrant and human rights groups call for California not to upload driver’s license data to national ID database

Before a hearing last week before the California Assembly Budget Subcommittee #4 on Transportation, a coalition of 170 immigrant and human rights groups and allied organizations submitted a joint letter opposing the plan to upload data about all holders of California driver’s licenses and state-issued IDs to the SPEXS national ID database.

The joint letter and testimony by some of the witnesses at the hearing called on legislators to reject the proposal by Governor Newsom and the Department of Motor Vehicles (DMV) to appropriate $55 million and amend California’s driver’s license privacy law to allow the upload, which would be prohibited by current state law.

Alliance San Diego and other groups have also launched a petition campaign for individuals to tell Governon Newsom, “Do Not Comply” with the REAL-ID Act.

In testimony and a Powerpoint presentation for the hearing, witnesses from the DMV led by Director Steve Gordon doubled down on claims also made by Governor Newsom’s office that are partly misleading and partly false.

The DMV witnesses stressed that other states accessing the SPEXS database at AAMVA’s central site through the  S2S network will be able to send and receive answers to only a limited set of queries, and won’t be able to perform bulk searches such as for all the SPEXS records from California with “99999” in place of a Social Security number.

But the DMV avoided mentioning that AAMVA, as the owner of the SPEXS database, could perform this or any other sort of bulk search and retrieval of SPEXS data — or could be ordered to do so by  Federal or state law enforcement agencies or courts.

The DMV also said in its Powerpoint and testimony that, “AAMVA must notify CA if non-participants [such as federal agencies] request data.” This isn’t true.

The contract with AAMVA signed by the DMV on March 30, 2026 provides that AAMVA will notfy the California DMV of such a demand “if legally permitted”. A legal order to AAMVA to search for, retrieve, and hand over some or all of the information in the SPEXS database could and probably would be accompanied by a gag order prohibiting AAMVA from disclosing the order to  California authorities, the individuals whose data was retrieved and revealed, or anyone else.

As we’ve noted before, California authorities cannot truthfully promise that AAMVA will be allowed to notify them of a demand for SPEXS data, or that they will even have an opportunity to contest such a demand. Once this data is uploaded to AAMVA — a private out-of-state entity — this data will be out of the state’s control.

Some witnesses at the hearing called for “guardrails” to be included in the California law to protect sensitive data uploaded to SPEXS, such as the “9999” placeholder that flags  records of drivers who were unable to provide the DMV with a Social Security number.

But in reality, no such guardrails are possible. Nothing in California law or a contract between AAMVA and the DMV could override AAMVA’s duty, as a private Virginia corporation, to comply with orders from Federal courts or courts in Virginia or other states.

“Guardrails” in the law authorizing the upload to SPEXS would be a sham: They would offer only a misleading and falsely reassuring illusion of protection for Californians’ privacy

Senate Budget Subcommittee Chair Steve Bennett (D-Ventura) acknowledged explicitly that whether to capitulate to Federal threats to harass Californians boarding airline flights, if the state doesn’t comply with the REAL-ID Act, presents a choice between “inconvenience” to air travelers and much more severe potential negative consequences for immigrants  or others who might be targeted based on SPEXS data.

That should be any easy choice. Protection of vulnerable Californians, especially immigrants, against Federal weaponization of their personal information should take precedence over the convenience of air travelers. California should not comply with the REAL-ID Act. Instead, the state should stand up to lawless Federal threats and prepare to defend Californians against any interference with their right to travel.

The DMV witnesses at last week’s hearing weren’t asked, and didn’t explain, why they signed a contract with AAMVA to upload data to an out-of-state private entity in a manner prohibited by current California law, without waiting to see whether the legislature would amend the law to permit this upload.

The DMV also avoided mentioning that the February 2027 “deadline” for the upload of California data to SPEXS was set solely by AAMVA and isn’t based on any provision of Federal law or regulations. There’s no need for California to do anything this year, especially on a rushed schedule that buries this major policy change in the budget bill.

The Assembly Budget Subcommittee heard testimony but deferred any decision on the proposal The next hearing on this proposal come as soon as next Thursday, May 28, in Senate Budget Subcommittee 5 on Transportation.

Apr 29 2026

Uploading California driver’s license data to the SPEXS national ID database

Our research is cited in a detailed report by Khari Johnson and Wendy Fry of CalMatters (syndicated statewide) on plans by the California Department of Motor Vehicles (DMV) to upload information about all California driver’s licenses and state IDs to the SPEXS national ID database run by the American Association of Motor Vehicle Administrators (AAMVA).

If you’re looking for background, here are some of our previous reports on this issue:

The Washington Examiner reports receiving a statement from a spoksperson for California Governor Gavin Newsom, “CalMatters got it wrong – their reporting hurts vulnerable Californians by manufacturing fear and panic with lies.”

In a statement posted on Bluesky, Gov. Newsom’s office says that, “Federal immigration  agencies have NO access” to data uploaded to SPEXS, and that “the system does NOT include immigration status and cannot be searched that way.”

These claims by the Governor’s office are false. Federal immigration or other law enforcement agencies CAN access SPEXS data with a warrant or subpoena to AAMVA, the same way they could obtain data held by any other private entity. That order to AAMVA could include a gag order so California wouldn’t know or be able to challenge it. A simple search for SPEXS records with the placeholder “99999”  in the field for the last five digits of the Social Security Number CAN retrieve all records of licenses issued to individuals who were unable to provide a Social Security Number.

What part of this do the Governor or his lawyers not understand or not believe?

We stand by our statements to CalMatters and the accuracy of their reporting.

The Governor and the DMV are proposing that the state capitulate preemptively to lawless threats by Federal authorities to harass and discriminate California residents when they travel by air. That’s a choice not to challenge those lawless Federal threats, as the state has challenged many other recent lawless Federal threats. That’s also a choice to prioritize the convenience of air travelers over the protection of immigrant Californians. If they want to make those choices, they need to make them openly and be willing to defend them.

The upload to SPEXS of data about all California licenses and IDs would break the promises made by the state and the DMV that information in driver’s license records wouldn’t be made available for immigration enforcement or other unrelated purposes. Those promises  are codified in current California law, which would prohibit the planned upload to SPEXS.

AAMVA as a private entity requires (although neither Federal nor state law requires) that if a state chooses to upload information about its residents to SPEXS, it must include either the last five digits of the Social Secuirty Number for each license holder, or “99999” as a placeholder for each license holder without an SSN. This makes licenses issued pursuant to immigrants and other individuals without SSNs, pursuant to California AB-60 and similar laws in other states, immediately identifiable in the SPEXS database.

As we pointed out in our interview with CalMatters, the Governor’s office and the DMV must have known that once data about California licenses and IDs is uploaded to SPEXS, immigration or other law enforcement agencies will be able to obtain that data from AAMVA. A warrant or subpoena could contain a gag order prohibiting AAMVA from telling California or the impacted individuals that their data has been handed over by AAMVA.

California authorities cannot truthfully promise that AAMVA will be allowed to notify them of a demand for SPEXS data, or that they will even have an opportunity to contest such a  demand. Once it’s  uploaded to AAMVA — a private entity — it’s out of the state’s control.

There’s no way to know whether AAMVA has already been required to secretly hand over any or all of the data already uploaded to SPEXS by other states.

The Governor’s proposed budget contains funding for the upload and is accompanied by a  “budget trailer bill” that would amend state law to allow the upload.

Our previous report mentions a separate bill, AB-2156, which had been introduced on this subject. AB-2156  was repurposed by amending it to substitute unrelated legislation for a new and unrelated purpose. This is a procedural tactic used in the California legislature to more rapidly advance an urgent measure for a new purpose after the deadlines for introducing new bills. The result is that AB-2156 won’t serve the original purpose.

The only bills that will be considered will be the budget bill (funding the SPEXS upload) and a “budget trailer” bill containing legislative changes needed to allow the projects funded in the budget, including amending state law — which in its current form would prohibit the SPEXS upload — to allow the SPEXS upload. This policy change will be bundled into the budget trailer bill, rather than given full and separate consideration.

Apr 21 2026

D.C. Circuit Court of Appeals keeps U.S. citizen on “no-fly” list

In an interlocking pair of decisions issued the same day by the same panel (one opinion written by the same judge who dissented from the other), the U.S. Court of Appeals for the D.C. Circuit has denied U.S. citizen Saad bin Khalid any meaningful review of the U.S. government’s decision to blacklist him and prohibit him from air travel to, from, within, or overflying the U.S. or on U.S.-registered aircraft.

Having been harassed by FBI and other U.S. agents every time he entered the U.S. since he was 16 or 17 years old, Mr. bin Khalid now lives in Pakistan with his wife and children.

The dissent from one of the two opinions tries hard to tease out a hypothetical procedural pathway to judicial review of a no-fly order in some circumstances. But the practical effect of this pair of decisions is that Mr. bin Khalid will have to fly to Mexico or Canada, then enter the U.S. by land, every time he he wants to return to the country of his citizenship. He will have to repeat that process in reverse to leave the U.S. and rejoin his family in Pakistan.

The knotted logic of both decisions rest primarily rests on 49 U.S.C. § 46110(c), a facially unconstitutional law stripping U.S. District Courts of jurisdiction over TSA “orders” and allowing review by Courts of Appeal only on the basis of the one-sided and secret “record” selected by the TSA for presentation to the Court of Appeals, with no confrontation of witnesses or adversary fact-finding at any stage of the process.

As the dissent sums up the problem in the panel majorities’ logic:

The majority ultimately reads section 46110 to strip the district court of more jurisdiction than it confers on this court. That means that neither we nor the district court can review Khalid’s claims that the Center improperly placed him on the terrorist watchlist.

The Court of Appeals also upheld the Constitutionality of basing this “no-fly” decision in part on evidence provided to the court but not to Mr. bin Khalid or his lawyers, and in part on evidence supposedly relied on by the Threat Screening Center to recommend blacklisting Mr. bin Khalid, but disclosed neither to Mr. bin Khalid, his lawyers, the Court of Appeals, nor the Administrator of the Transportation Security Administration (TSA) who was nominally responsible for the “order” adding Mr. bin Khalid’s name to the more than a million mostly Muslim names  on the U.S. no-fly list.

This was based on a finding  that  the right to travel by common carrier is not a “fundamental” right, and that in today’s world, the ability to travel by land or sea — between, say, Pakistan and the U.S. — is an adequate substitute for air travel:

Khalid may continue to travel to, from, and inside of the United States by means other than airplanes. As a result, the TSA Administrator’s order maintaining Khalid on the No Fly List does not infringe a fundamental right.

Given the unlikelihood that the Supreme Court will choose to review, much less overturn, these decisions of the Court of Appeals, what can be done?

The simplest way to insure that people like Mr. bin Khalid get their day in court would be for Congress to enact the Freedom to Travel Act. This bill would address each of the reasons that the Court of Appeals denied justice to Mr. bin Khalid. It would (1) write explicit recognition of the right to travel into Federal law, (2) create an explicit cause of action for deprivation of that right, and (3) removing TSA orders from the restrictions on judicial review in 49 U.S.C. § 46110(c).

Apr 08 2026

When you fly, you fly with ICE

Further confirming and providing more details about a story first reported here and later confirmed by the New York Times, Ted Hesson and Kristina Cooke of Reuters report that more than 31,000 records of domestic airline reservations obtained by the Transportation Security Administration (TSA) through its Secure Flight passenger surveillance and control system were passed on by the TSA to Immigration and Customs Enforcement (ICE) in the first year of the Trump 2.0 Administration. More than 800 arrests by ICE during that time were based on Secure Flight data.

The TSA has exempted Secure Flight records of domestic air travel from the provisions of the Privacy Act that would normally entitle each traveler to obtain, on request, an “accounting of disclosures” showing what information about them was disclosed by the TSA to which other agencies or third parties. So there is no way for you to find out whether the TSA has provided ICE with your air travel plans, so that ICE can arrange an unwelcoming party for you at the airport on departure or arrival or while changing planes. You have to assume that ICE has the details of all of your planned air travel in the U.S.

The arrests at airports reported to date all appear to have been of non-U.S. citizens. As we noted when we first reported on the additional of immigration lookouts to the Secure Flight ruleset, the TSA has long wanted to expand its airport checkpoints into all-purpose law enforcement checkpoints by checking all airline passengers against the FBI’s aggregated NCIC database of wants and warrants. That still doesn’t appear to be happening, but we have no confidence that the TSA will confine its activities within Constitutional limits, especially in an area where it has exempted itself from accountability.

Please let us know if you hear of U.S. citizens being arrested at airports on outstanding warrants, especially if there is no obvious way police would have known of their travel plans without having been tipped off by the TSA based on airline reservation data.

Apr 06 2026

Is a meeting “public” if you have to show REAL-ID or pay a fee?

At our request, the Minnesota Commissioner of Administration has directed the state’s Data Practices Office (DPO) to issue an advisory opinion as to whether the Minneapolis-St. Paul Metropolitan Airports Commission (MAC) violates the state’s Open Meeting Law by holding its meetings in an area at the MSP airport accessible only by passing through a TSA checkpoint, which requires either REAL-ID compliant ID, a passport, or paying a $45 fee.

The Commissioner has complete discretion to decide when to issue an advisory opinion. We are pleased that they have decided to do so in this case. We thank the DPO for their (unsuccessful buy helpful) efforts at informal mediation with the MAC, which preceded our request for a formal advisory opinion.

So far as we know, this will be the first official review by any state or local government body, under any state or local open meeting law, of whether a meeting of a government body can be considered “public” or “open” if REAL-ID or a fee is required for entry.

As stated in the Commissioner’s notice of the preparation of an advisory opinion, under Minnesota law, “Although the advisory opinion will not be binding on the Board, a court must give the opinion deference.”

We look forward to the Commissioner’s opinion. According to the notice , “Section 13.072 requires the Commissioner to issue an opinion within 50 days of receipt of the request. Therefore, the Commissioner must issue the opinion by May 21, 2026.”

Apr 01 2026

OMB gives blanket approval for USCIS social media surveillance

The White House Office of Management and Budget (OMB) has approved a request by US Citizenship and Immigration Services (USCIS) to require all individuals applying for or associated with applications for US visas, visa-free entry, residency, or citizenship to identify all social media accounts they have used in the last five years.

The new “generic clearance” approved by OMB spares USCIS from having to justify the purpose, relevance, and legality of demanding social media account information separately for each USCIS form or web page on which this information is demanded.

This approval by the current White House expands on the demand for social media identifiers first approved by OMB as one of the last actions of the Obama Administration.

Along with some other agencies, USCIS has adopted a new format for its analysis and response to comments on its regulatory proposals. The summary of comments appears to have been generated by an artificial intelligence chatbot. Unlike previous responses to comments that typically ignored or distorted many of the objections to agency proposals, the summary provided by USCIS to OMB is surprisingly accurate and complete. But rather than actually responding to the objections raised by the Identity Project and others, USCIS simply regurgitates a summary of its original claims about the proposal.

For example, in response to comments pointing out that collection of social media postings violates the Privacy Act’s prohibition on collection of information about acts protected by the First Amendment without explicit statutory authorization, USCIS merely repeats the conclusionary claim that, “Consistent with the requirements of the Privacy Act (5 U.S.C. § 552a(e)(7)), DHS does not maintain records ‘describing how any [citizen of the United States or alien lawfully admitted for permanent residence] exercises rights guaranteed by the First Amendment, unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.'” There’s no meaningful engagement with the comments or explanation of the basis for claiming that postings on social media aren’t protected by the First Amendment or that collecting this information is expressly authorized by any statute — which it isn’t.

The USCIS summary acknowledges our comments that social media surveillance violates US obligations pursuant to international human rights treaties. But in response, USCIS merely summarizes the statutes it claims implicitly authorize these actions — which of course says nothing about whether those statutes comport with US treaty obligations.

The response to comments also repeats the false and conclusionary claim that that, “Social media involves publicly available information that is accessible to anyone without a warrant”, even though in fact the identification of an individual with an anonymous or pseudonymous social media account isn’t otherwise accessible without a warrant.

We urge other countries not to follow this bad example of the US government.

Mar 22 2026

Your rights when an airport checkpoint is staffed by ICE agents

Last December we reported on indications that the Transportation Security Administration (TSA) had begun passing on information from airline reservations to Immigration and Customs and Enforcement (ICE) to enable targeting of domestic airline passengers for seizure and deportation. Ten days later, our report was confirmed by the New York Times.

In January, it was reported that ICE planned to set up immigration checkpoints for passengers on jetways at Minneapolis-St. Paul International Airport (MSP). That hasn’t happened, but the possibility prompted us to review some of the legal issues it raised.

Now President Trump has announced that starting Monday, March 23rd, ICE agents will be assigned to take over some of the work of TSA checkpoint staff, further merging and conflating the unrelated functions of aviation security and immigration enforcement.

What are your rights, especially as an airline passenger traveling within the US rather than seeking to enter or leave the country, if a checkpoint at the airport is staffed by ICE agents instead of, or in addition to, the usual TSA staff or TSA contractors?

Read More →