A Federal District Court in Texas has issued a nationwide injunction against enforcement of the Corporate Transparency Act (CTA) of 2021.

This injunction is only temorary, pending a decision by the court on the merits of a lawsuit challenging the Consittutionality of the law, which could take months or years. But until that ruling, the preliminary nationwide injunction stays the January 1, 2025, deadline for officers and owners of all types of corporations to obtain ID documents from government agencies and submit copies of those documents, including photos, to the Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury.

Another US District Court in Alabama has already ruled that the Corporate Transparency Act is unconstitutional. But that ruling only applied to the plaintiffs in that case.

The Texas District Court’s detailed ruling on the motion for a preliminary nationwide injuction focuses primarily on issues of federalism. It doesn’t mention the issue of corporate officers or owners who don’t have any of the required ID documents, or the implications of requiring  mug shots as well as document numbers and other written information.

The government argued that the plaintiffs in the case against the CTA had not suffered sufficient damage to give them a cause of action, because the reporting burden would be “de minimus” (minmal). The Court rejected that argument, noting that, according to the regulations implmenting the CTA reporting requirement, ” FinCEN estimates that the total cost of filing BOI [Beneficial Owner Information] reports is approximately $22.7 billion in the first year and $5.6 billion in the years after.”

The Court noted with a footnote that, “FinCEN also estimates that it will take approximately twenty minutes to read a beneficial ownership report form and understand it, thirty minutes to collect information about a company’s beneficial owners, and twenty minutes to fill out and file the report, resulting in a seventy-minute endeavor. But the Court notes that as a practical matter, it takes far longer than seventy minutes simply to read the CTA and Reporting Rule alone.”

What we find espcially significant and encouraging in this ruling is that it recognizes explicly that requiring ID is a law enforcement and investigatory device — as FinCEN’s very name, the Financial “Crimes Enforcement” Network, makes clear:

In other words, the CTA is a law enforcement tool—not an instrument calibrated to protect commerce; an exercise of police power, rather than a regulation of an activity…. The CTA regulates reporting companies, simply because they are registered entities, and compels the disclosure of information for a law enforcement purpose.

The Court rightly rejected the government’s argument that mandatory reporting of identifying information (and photos, although that wasn’t mentioned) about all corporate principals is “useful” for law enforcement. Unconstitutional general warrants, dragnet surveillance, or suspiconless, warrantless, house-to-house searches would undoubtedly enable the government to find evidence of crimes, some of which would otherwise have gone undetected, in many homes. But the effectiveness of these police tactics, from the point of view of the police, does not make them Constitutional.

FinCEN hasn’t updated its website yet to mention the nationawide injunction. The Texas case and other legal challenges to the CTA remain pending, and the injunction is likely to be appealed. For now, however, you can ignore the CTA reporting requirements and the January 1, 2025, compliance deadline.

A new effort is being made by some Senators to restrict the use of facial recognition by the Transportation Security Administration (TSA), airlines, and airports in the US.

But the proposed cure may be worse than the disease. The latest version of the proposed legislation, while undoubtedly well intentioned, includes a provision that would, for the first time, provide a basis in Federal law for “identity verification” of airline passengers.

The problem with facial recognition is that it’s a tool for identifying people. Legalizing (unjustified and previously unlawful) demands for travelers to identify ourselves in other ways is not a solution to the problems of either facial recognition or ID demands.

S. 3361, the “Travel Privacy Protection Act of 2023”, was introduced in the Senate in November 2023, and remains pending. But standalone bills like this have very little chance of being considered, especially in the current Congress.

With Congress acting on only a few bills that are considered essential to keep the  government operating, other legislation is likely to be acted on only if it can be attached to one of these “must-pass” bills. So some of the sponsors of S. 3361 have incorporated provisions to restrict the use of facial recognition, plus new provisions for alternative means of “identity verification” of travelers, into an amendment to the pending  bill to authorize continued operations of the Federal Aviation Administration (FAA).

We assume that the new “identity verification” provisions in the proposed amendment to the FAA reauthorization bill were added to the previous version of the legislation to address objections from the TSA, the airline industry, and airport operators, all of whom have invested heavily in shared infrastructure for facial recognition at airports on the assumption that it has already been agreed to as a government and industry standard.

The proposed amendment to the FAA reauthorization bill would explicitly authorize the use of facial recognition at US airports, provided that the TSA “provides each protected individual, at the request of the protected individual, with the option to choose between identity verification with or without facial recognition or facial matching software.”

This would be a major change, since no provision of current law authorizes the TSA to operate, or to require travelers to submit to, any sort of ID verification.

Congress should not be intimidated by the threat of facial recognition into authorizing the TSA, airlines, or airport operators to  require travelers to identify ourselves.

A choice between submitting to facial recognition so that we can be identified, and showing documents so that we can be identified, is not a choice we should have to make.

Regardless of how we are identified, we know how our identity will be used by the TSA and its commercial and governmental partners in the US and around the world.

The TSA will check our identity against the million and a half mostly Muslim names on the TSA’s no-fly blacklist, use our identity as one of the inputs to the algorithmic black box they use to decide whether to send the airline a Boarding Press Printing Result (BPPR) that “permits” the airline to issue a boarding pass for each of our flights, and use it to link its record of our flight to the permanent file it keeps about each of us. None of this is lawful or serves any legitimate purpose. Congress should put a stop to all of this.

The TSA offers the misleading reassurance that unless we are determined to pose a threat, it won’t retain facial images and other information about our travel. But since the threat-assessment algorithms and outcomes are secret, there’s no way to know whether information about us and any particular flight we take has been retained.

Compelled warrantless, suspicionless ID requirements violate the Fourth and Fifth Amendments to the US Constitution and international treaties protecting the right to freedom of movement both internationally and within the US.

If Congress wants to rein in the TSA and its use of facial recognition, Congress can and should explicitly prohibit the TSA from requiring travelers to identify ourselves, regardless of whether that identity verification is conducted by inspection of ID documents, facial recognition, or other means. Unless our right to travel has been restricted by court order, who we are is irrelevant to our right to travel by common carrier.