Papers, Please!

The Identity Project

Category Archives: Papers, Please

Mar 07 2016

The cost of requiring ID for library cards

To: Julie Holcomb, Abigail Franklin, Darryl Moore, Jim Novosel, Winston Burton, City of Berkeley <bolt@ci.berkeley.ca.us>
From: Eric Neville
Subject: The cost of requiring ID for library cards
Date: Mon, 7 Mar 2016 09:05:15 -0800
Dear Board of Library Trustees:

Sometimes the cost of how we do things sneaks up on us. I grew up visiting the Berkeley Public Main Library, but I was concerned recently when I was required to provide picture identification to renew my library card.

I don’t actually recall how long this has been policy. The reference librarian, who had a few years on me, said it’s been policy for as long as he remembers. But I also know that previously I personally had occasion to return a four-inch-thick law book that had apparently been taken from Main’s reference section, and which I found on the street a few blocks away, so current policy is certainly not a perfect protection for library resources. Indeed, no policy can be perfect, but can at best be struck to balance costs. These costs become more challenging to reckon with when the they are intangible, as they are for principles.

But principles do matter, such as when librarians opposed portions of the USA PATRIOT Act:

My concern stems from the intersection between the ill-founded presumption that identity documents ensure against abuse and the surreptitious cost to society that presumptive ID expectation inflicts.

What’s Wrong With Showing ID?

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Feb 22 2016

Supreme Court hears arguments on illegal police ID demands

The U.S. Supreme Court is hearing oral argument today in the case of Utah v. Strieff, a case involving the legal and practical consequences of an illegal warrantless police stop and demand for ID from a pedestrian on the street, in circumstances in which the police concede that they had no probable cause and not even any reasonable, articulable suspicion that the person they stopped and required to show ID had committed any crime.

After illegally stopping Mr. Strieff, and while illegally detaining him, the police illegally demanded that if he had any ID, he hand it over to the police — which, under duress, he did.  From this illegally seized evidence of Mr. Strieff’s identity, the police determined that there was an outstanding warrant for his arrest in relation to an accusation of a minor traffic violation.

All of this, and the illegality of each step in this process, the police now concede.

After arresting Mr. Stieff on the basis of the outstanding traffic warrant, the police searched him “incident to the arrest” and found evidence of unrelated but more serious violations of drug laws.  Mr. Stieff was charged with drug law violations, and convicted on the basis of the evidence found during the search “incident to” his arrest on the traffic warrant. The Supreme Court record is silent on whether Mr. Stieff was ever brought to trial, much less convicted, for the petty traffic offense for which the warrant had been issued and for which he was originally arrested.

Mr. Stieff hasn’t even tried to seek damages from the police for the illegal stop, illegal detention, and illegal demand for ID. All he is challenging, under the “exclusionary rule” for evidence obtained as a result of illegal police conduct, is the “suppression” from use as evidence against him of the drugs and paraphernalia found when he was searched.  So the case has been analyzed mainly in terms of the arcana of the exclusionary rule.

That’s important, but another way to describe this case is as being about whether the police get a free pass for illegal dragnet demands for ID if it subsequently turns out that there was a warrant for a person’s arrest.   If the Supreme Court agrees, police will be able, with de facto impunity, to stop anyone on the street, on an unwarranted “fishing expedition”, on the basis of racial or other profiling, or for any reason or no reason at all, and demand, “Your papers, please!”  That’s a demand which, in the context of police detention, renders the word “please” hypocritical.

As the briefs filed with the Supreme Court by Mr. Stieff and friends of the court including the ACLU and EPIC point out, there are tens of millions of arrest warrants outstanding in the US at any given time.  Many, perhaps most, of those warrants have been issued in conjunction with petty offenses, and/or for failure to appear in court. Many of the people for whom arrest warrants have been issued have not (yet) been convicted of the alleged offense in relation to which the warrant was issued, and many of them are never convicted of any offense. Warrants aren’t typically time-limited or self-sunsetting. They can, and often do, remain outstanding and enforceable indefinitely even after the underlying charges have been disposed of.

Because arrest warrants aren’t uniformly distributed, but are issued disproportionately against people in certain communities, there are neighborhoods where there are outstanding warrants for the arrest of a substantial percentage of people on the street, especially pedestrians who are on average lower income than people in motor vehicles. If the subsequent discovery of an arrest warrant, made possible only by an admittedly illegal ID demand, can retroactively justify the consequences of an otherwise illegal search, then everyone on the street or in any other public place is at risk of such dragnet stop and ID demands.

This case will play a key role in determining whether “stop and ID” will become the new justification for “stop and frisk” when police have no excuse for either.

Feb 02 2016

Congress votes to stigmatize and surveil the travel of second-class US citizens

Can second-class US citizens be required to carry second-class US passports with a conspicuous stigmatizing “scarlet letter” label? Congress has now said yes.

Do DHS pre-cogs have the omniscience and infallibility of angels at predicting and protecting the US and the world against future crimes? Congress has now said yes.

Yesterday Congress completed its approval of a bill which, assuming it is signed into law by the President, will stigmatize and surveil the international movements of certain US citizens by (1) requiring the State Department to mark their passports with a modern equivalent of an “A for Adulterer” or “J for Jew” (a “visual designation affixed to a conspicuous location on the passport indicating” their status), (2) requiring these individuals to notify the government, in advance, of any intended travel outside the US, including their complete itinerary and any details of their planned movements demanded by the Attorney General, and (3) creating a new pre-crime travel surveillance and policing agency within the DHS to track, log, and alert foreign governments to the intended movements of these travelers.

The bill, H.R. 515, obtained final approval yesterday in the House of Representatives by voice vote, with no real debate and only a handful of members present, under procedures allowing for suspension of normal Congressional rules. [The bill had already been approved by the Senate in December.] But in previous statements about the bill and its predecessors, which Congress has been considering for years, members of Congress have made clear their hope that the combined effect of stigmatized passports, deliberately burdensome reporting requirements, and advance notice to foreign governments from the US government (carrying with it an implicit message that the US wants those foreign governments to deny entry to these US citizens) will effectively prevent these US citizens from traveling abroad at all, and confine them within the borders of the USA.

In an astonishing Orwellianism — but one that perfectly describes the fallacy of the vision embodied in the law — Congress has named the new pre-crime travel policing unit within the DHS the “Angel Watch Center”, claiming for the DHS the omniscient and infallible divine predictive ability of angels to watch over us and protect us from the people they think, or “know” by means that mortals cannot question, are going to commit future crimes.

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Jan 15 2016

The REAL-ID Act and entry to Federal facilities

Now that the DHS has postponed its self-imposed (and legally baseless) “deadline” for domestic air travelers to have ID that complies with the REAL-ID Act until at least 2020, the only threat left in the Federal arsenal to intimidate state governments into “compliance” with the REAL-ID Act any sooner than 2020 is the threat to bar residents of noncompliant states from access to some (but not most) Federal facilities, for some (but not most) purposes, in some (but not most) circumstances.

That was the subject of considerable discussion, and considerable confusion, at yesterday’s second meeting of the Minnesota Legislative Working Group on REAL-ID Compliance, which is trying to figure out how seriously to take this threat (short answer: not very) and whether it calls for immediate action (short answer: no).

What is the DHS really threatening to do? And how much effect will that have, or has it already had?

Like a typical extortionist, the DHS keeps its threats vague and changeable. In a response made public today to a disability-rights complaint that is already the subject of litigation, DHS officials declared that it is “not objectively reasonable” to take statements on TSA.gov at face value. That’s par for the course: The TSA has previosuly claimed that its own press statements are exempt from release in response to FOIA requests becuase it would “create public confusion” for the public to know the basis, if any, for those statements.

But what else can we do? In the absence of any laws or regulations requiring ID to fly or enter public buildings, and with the DHS having withheld most of its internal guidelines for building access from disclosure in response to our FOIA requests, all we have to go on are DHS rulemaking-by-press-release and reverse engineering of the secret DHS directives from anecdotal and observational evidence.  If the DHS doesn’t want us to reverse-engineeer its secret rules from what we see happening on the ground, it can get Congress to enact those rules into public law, or publish them in the Federal Register as regulations.

The DHS claims on its official website that its REAL-ID Act “rules” (i.e. secret internal directives) for entry to Federal facilities went into effect on October 15, 2015. So if the sky were going to fall, we’d know about it already.  It hasn’t. Reports of anyone being denied entry to a Federal facility have been rare.

As recently as November 22, 2015 — more than a month after the penultimate phase of REAL-ID Act enforcement had supposedly begun — the DHS public FAQ about the REAL-ID Act said that requirements for ID from compliant states would depend on the “Facility Security Level” (FSL) assigned to each facility:

REAL-ID-phases

All mention of these enforcement phases and this scheme of “Facility Security Levels” disappeared completely from this Web page sometime between November 22, 2015, and today. The DHS has since blocked the Internet Archive from its website, to avoid being questioned about unexplained changes like this.

Presumably, the DHS rescinded and tried to efface the memory of this security level sham because so few Federal facilities had actually been assigned an FSL that would have triggered REAL-ID Act compliance demands. When we filed FOIA requests for Federal facilities in the San Francisco Bay Area, we found that none of the the most conspicuous potential Federal terrorist targets and critical infrastructure facilities in our region had been assigned any FSL at all.

FSL assignments were supposed to be the “security assessments” justifying ID demands. The ability of the DHS to wipe out this whole scheme by fiat, overnight, merely by revising a website and without any rulemaking or public explanation, exemplifies the fact that all of the supposed “deadlines” for REAL-ID Act compliance are equally arbitrary, discretionary, and changeable at the whim of the DHS or its master or mistress in the White House.

(The latest postponement of the “deadline” for compliant ID to fly to October 1, 2020 is particularly incredible. Whatever administration is in power on that date is not going to start barring residents of any state from flying, a month before the 2020 Presidential and Congressional elections. To do so would be electoral suicide. If the REAL-ID Act hasn’t been repealed or overtuened by the courts by then, you can count on the DHS postponing that “deadline” again.)

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Jan 13 2016

Bills to repeal the REAL-ID Act introduced in Congress

Bills to repeal the REAL-ID Act of 2005 were introduced yesterday in both houses of Congress by the members of Montana’s Congressional and Senate delegation:

Sen. Daines: “Montanans have spoken loud and clear: we don’t want REAL ID and we don’t want the federal government infringing on our personal privacy. The Repeal ID Act ensures Montanans’ voices are heard and will help strike the right balance that protects our security while also safeguarding Montanans’ civil liberties.”

Sen. Tester: “REAL ID violates the constitutional freedoms of law-abiding Americans and has no place in Montana. I will continue my fight to protect Montanans from this costly overreach that invades privacy and forces local taxpayers to foot the bill.”

Rep. Zinke: “Rolling back these Washington mandates is important to ensure Montana’s state sovereignty. While maintaining security standards is important, we cannot allow the federal government to infringe on our right to privacy and strip Montana of our state sovereignty.”

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Jan 08 2016

DHS doubles down on its big lie about ID to fly

Just days after posting an out-and-out lie on DHS.gov about whether states that want to comply with the REAL-ID Act have to give other states unconditional access to their drivers’ license and ID database (they do, contrary to what the DHS claims), the DHS has posted an equally blatant lie about whether domestic air travelers do or will have to show ID (they don’t and they won’t, contrary to what the DHS claims).

Today’s whopper is part of a press release attributed to Secretary of Homeland Security Jeh Johnson, announcing arbitrary dates for “enforcement” of alleged REAL-ID Act requirements. One might expect those dates and requirements to be spelled out in the U.S. Code or in regulations published in the Federal Register. But rulemaking by press release, Web posting, or Tweet has become the norm for the DHS as part of its enforcement of standardless, discretionary, and secret adminstrative “law”.

Today’s announcement by the DHS comes in the midst of a new round of vigorous debate by state officials as to whether to agree to comply with requirements of the REAL-ID Act that they continue to find objectionable — especially with respect to its mandate for a distributed but integated and nationally accessible ID database. It also comes almost simultaneously with the introduction in both houses of Congress of bills to repeal the REAL-ID Act.

The REAL-ID Act does not purport to create any legal obligation on states to comply. It can’t: The Federal government has no authority to compel the enactment of state legislation. If financial carrots in the form of Federal grants to fund REAL-ID Act implementation aren’t sufficient to win over states that stand up for their residents’ rights, the only stick the Federal government has available to induce those states to comply with the REAL-ID Act is the threat to harass, delay, or prevent residents of those states from traveling by air.

Today’s DHS press release and Tweet make that threat explicit.

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Jan 08 2016

The REAL-ID Act is about the database

At yesterday’s first meeting of a new Minnesota “Legislative Working Group on REAL-ID Compliance“, state lawmakers’ concerns centered on (1) whether residents showing state-issued IDs will be prevented from boarding domestic flights, or harassed and delayed by the TSA, if the state doesn’t agree to “comply” with the REAL-Act Act to the satisfaction of the DHS, and (2) what compliance with the REAL-ID Act would mean for the state’s database of information about people with Minnesota drivers’ licenses or state ID cards.

The DHS has been trying to mislead state officials and the public about both these issues. Understanding both, and separating fact from DHS fiction and innuendo, is key to understanding the REAL-ID Act.

A report from a legislative analyst with the legislature’s research department distributed at yesterday’s meeting asserts that, “At some unspecified point in time (which could be in 2016), a REAL ID-compliant form of documentation will become required to fly in scheduled airline service.” But — oddly for a purported legislative analysis or research report — no authority is cited for this alleged legal “requirement”.

In fact, as we testified yesterday and as we have confirmed through more than a decade of litigation, research, and FOIA requests, this key claim — the threat being used by the DHS to induce reluctant states to accede to DHS requests for “compliance” — has no basis in any publicly-disclosed law or regulation.

People fly without ID every day, and the TSA has procedures for that, as we’ve heard them testify in court. People without ID may be (unlawfully) harassed and delayed at TSA checkpoints and airline check-in counters, but the TSA’s responses to our FOIA requests for its daily reports on how many people try to fly without ID show that almost all of these people are allowed to fly. And those few people who are prevented by the TSA from traveling by air, like the larger numbers who are harassed or delayed by the TSA merely because they don’t show ID or answer other questions, likely have cause for legal action against the TSA. They deserve the support of the states where they reside.

If you lose your wallet and find out the next day that your mother is dying 2,000 miles away, as happened to a friend of ours in St. Paul just before Christmas, you don’t have time to get your driver’s license replaced or take a bus across the country. You need to get on a plane right away, without ID. That’s what our friend did, and fortunately she got there in time. The TSA isn’t going to try to stop you from seeing your mother before she dies. That’s not a case the TSA wants to take to court, or would be likely to win.

But what’s this other question about the database?

To meet the requirements of the REAL-ID-Act, a state must “Provide electronic access to all other States to information contained in the motor vehicle database of the State,” including, “all data fields printed on drivers’ licenses and identification cards issued by the State.” In effect, this would allow state databases to function as part of a distributed but national ID database system.

The DHS has picked out only a subset of the statutory requirements in the REAL-ID Act to consider in deciding whether to exercise its statutorily standardless discretion to certify whether states are making progress toward compliance or to grant them discretionary waivers of “deadlines” which have been set by the DHS in its discretion, and can be and have been repeatedly postponed in the exercise of that same discretion.

The initial DHS-selected criteria don’t include the requirement in the law for nationwide access by state agencies to other states’ drivers’ license and ID databases. DHS undoubtedly knows that this is one of the most objectionable, and potentially one of the most difficult and costly to implement, of the elements of state “compliance” with the REAL-ID Act, and has tried to downplay or deny the plain language in the law requiring unrestricted interstate access to drivers’ license databases. Including full interstate database access in its “compliance” criteria also would probably compel DHS, if it was to be honest, to concede that no state has yet fully complied with the REAL-ID Act.

But state officials shouldn’t be fooled: A state that agrees to “comply” with the REAL-ID Act is agreeing to comply with all of its provisions, including the database access mandate, not just the less objectionable portions that the DHS has decided to focus on first.

Once a state agrees to comply, it no longer has any leverage to move Congress to change those requirements. The only power a state has to exert pressure for change in the REAL-ID Act requirements, or their repeal, is to withhold state agreement to comply until those requirements are amended to its satisfaction, repealed, or overturned by the courts as unconstitutional.

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Jan 07 2016

Minnesota Legislative Working Group on REAL-ID Act Compliance

We attended and testified at the first meeting of Minnesota’s “Legislative Working Group on REAL-ID Act Compliance” today in St. Paul. Like other states, Minnesota has been told (falsely) that it’s the only state that isn’t planning to “comply” with the Federal requests in the REAL-ID Act, and (also falsely) that Minnesota residents will be prevented from boarding domestic airline flights if the state doesn’t agree to “comply”.

You can watch the full meeting here (our testimony is at 1:37-1:40 of the video).

Here’s what we told Minnesota legislators (Download as PDF):

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Jan 04 2016

DHS posts new lies about the REAL-ID Act

In response to a flurry of publicity kicked off by a story last week in the New York Times in which we were quoted, the DHS has posted several new or updated pages about the REAL-ID Act on its website, including a new page headed, “REAL ID and You: Rumor Control“.

Not surprisingly, the DHS is still lying about what the REAL-ID Act requires. According to the new “Rumor Control” page on DHS.gov:

Rumor: The Department of Homeland Security is trying to build a national database with all of our information

Fact: REAL ID does not build a national database nor does it grant the Federal Government or another state access to a state’s driver’s license data. States and territories will continue to … maintain its own records, and determine who may access those records

This is a lie. The text of the REAL-ID Act, Title II, Section 202(d)(12), is clear and unambiguous:

(d) To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards:…

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State.

(13) Maintain a State motor vehicle database that contains, at a minimum —

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and
(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

The REAL-ID Act won’t require you to show ID to fly. But unless the REAL-ID Act is repealed by Congress, it will require states to grant all other states access to drivers license and state ID data or risk having the DHS try to harass residents of those states that don’t participate.

As we’ve discussed previously, the main point of the REAL-ID Act is to intimidate or otherwise induce state governments into creating a distributed national ID databases, through which a single query roted through a national “hub” (operated by a private contractor, the AAMVA) will be able to retrieve data, including standardized digital photographs, from the drivers’ license and ID databases of all 50 states, the District of Columbia, and US territories (Puerto Rico, Guam, U.S. Virgin Islands, American Samoa, Northern Mariana Islands, etc.).

The DHS is lying about what the REAL-ID Act requires because it knows that the real point of the law is the distributed national database and its contents, and because most of the opposition to the law by individuals, civil liberties advocates, and state legislators and governors is based on opposition to this distributed but functionally integrated and national database.

Since the DHS has no authority to compel state governments to “comply” with the REAL-ID Act, the DHS is relying on threats — most of them empty. The latest official statements posted on DHS.gov send a clear message to state officials trying to decide what to do about the REAL-ID Act. That message is that the DHS lies about the REAL-ID Act.

If you want to know whether the REAL-ID Act (or any provision of Federal law or regulations) even purports to require anyone to show any ID to fly, read the law: It doesn’t.

If you want to know whether the REAL-ID Act would require states that want to “comply” to connect their state drivers’ license and ID databases to the national “hub” that gives all other states root access to that database, read the law: It does.

Don’t believe the DHS lies, and don’t take DHS threats at face value.

Dec 28 2015

You don’t have to show any ID to fly

We’re quoted in an article today in the New York Times about the Federal government’s efforts to use the threat of denial of air travel to scare state legislators into connecting their state drivers license and ID databases to the distributed national “REAL-ID” database through the REAL-ID “hub” operated by the American Association of Motor Vehicle Administrators (AAMVA).

We welcome the Times’ coverage of this issue. But some readers might be misled by the Times’ headline, “T.S.A. Moves Closer to Rejecting Some State Driver’s Licenses for Travel“.

As Edward Hasbrouck of the Identity Project, who was quoted in the New York Times story, discussed in detail in this presentation earlier this year at the Cato Institute in Washington, the most important thing you need to know about this issue is that you do not — and you will not, regardless of how or when the TSA “implements” the REAL-ID Act — need to show any ID to fly. People fly, legally, every day, without showing any ID, and that will continue to be the case. You have a legal right to fly, and the REAL-ID Act does not and cannot deprive you of that right.

The TSA often lies in its public statements, including on its website and on signs at airports, and claims that airline passengers “must” or are “required” to have and to show government-issued photo ID. Currently, the page on TSA.gov headed “Identification” begins with the knowingly false and deliberately misleading statement, “Adult passengers 18 and over must show valid identification at the airport checkpoint in order to travel.” But the consistent official position of the TSA in court has been that no law, no TSA regulation, and no policy or practice of the TSA — not even the secret TSA “Standard Operating Procedures” (SOPs) and other secret TSA orders to its checkpoint staff and contractors — requires anyone to show any ID to pass through TSA checkpoints and travel by air.

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