REAL ID – Papers, Please!

Nov 25 2024

Do you need ID to read the REAL-ID rules?

[“The welcoming, friendly and visually pleasing appearance” of the TSA’s headquarters at 6595 Springfield Center Drive, Springfield, VA.]

We spent most of a day last week outside the headquarters of the Transportation Security Administration (TSA), trying and failing to find out what the rules are for the TSA’s new digital-ID scheme. What we did learn is that, by TSA policy and practice, you can’t read the REAL-ID rules, get to the TSA’s front door, or talk to any TSA staff unless you already have ID, bring it with you, and show it to the private guards outside the TSA’s gates.

The problems we have faced just trying to get access to the text of the TSA’s rules raise issuess about (recursive) incorporation by reference of third-party, nongovernmental text in regulations, secret law, and access to Federal services and rights by those without ID, as well as the underlying issues of REAL-ID, mobile driver’s licenses, and digital IDs.

In late October, as we’ve previously reported, the TSA issued a final rule establishing “standards” for smartphone-based digital IDs that would be deemed by the TSA to comply with the REAL-ID Act of 2005. These mobile driver’s licenses (mDLs) will be issued by state driver’s license agencies, but the standards incorporated into the TSA rule require that they be deployed through smartphone platforms (i.e. Google and/or Apple) and operate through government apps that collect photos of users and log usage of these credentials.

The standards themselves — the meat of the TSA’s rule — weren’t published in the Federal Register or made public either when the rule was proposed or when it was finalized. Instead, thousands of pages of documents from private third parties were incorporated by reference into the TSA’s rules, giving them the force of law, on the basis of false and fraudulent claims — the falsehood of which was easy for anyone who checked to verify — that they were “reasonably accessible” to affected individuals.

Secret laws are per se a violation of due process, and should be per se null and void. How can it be that “ignorance of the law is no excuse” if the government has kept you ignorant of the law, even when you try to find out what the law says?

You shouldn’t need ID to read the law, just as you shouldn’t need ID to travel by common carrier. But the TSA doesn’t seem to have read the Constitution.

Nov 05 2024

What will the future bring for ID demands?

There are elections today in the USA. But we don’t need to know their outcome to predict many of the issues that the Identity Project and our supporters and allies will continue to face in the coming years. For what it’s worth, everything that was on our agenda for the first Obama Administration, following the 2008 elections, remains on our agenda today.

At least since September, 11, 2001, throughout both Republican and Democratic administrations in the White House, demands for “Your papers, please!” have been supported by (1) a bipartisan consensus in Congress, (2) the lobbying power of an ever-growing homeland security-industrial complex, and (3) the malign convergence of interest between governments that want to identify us in order to track, profile, and control us for political purposes and corporations that want to identify us (or get the government to force us to identify ourselves) in order to track and profile us for commercial purposes.

Nov 04 2024

TSA launches smartphone-based digital ID scheme

Brushing off objections from the Identity Project and others, the US Transportation Security Administration (TSA) has issued regulations creating the framework for an all-purpose smartphone-based national digital ID and tracking system.

The TSA’s new rules are piggybacked on the REAL-ID Act of 2005, and are ostensibly standards for what states will have to do to issue digital versions of driver’s licenses or ID cards that the TSA and other Federal agencies will accept for Federal purposes, in circumstances where ID is required by other Federal laws. This doesn’t include airline travel, for which no ID is legally required, although the TSA keeps lying about this.

The TSA’s new rules provide that acceptable digital IDs can only be issued to individuals who already have physical driver’s licenses or state-issued ID cards. And individuals are still required by standard state laws to “have their Physical Credential on their person while operating a motor vehicle”, even if they also have a digital ID on their smartphone. So this regulatory scheme isn’t really about driver’s licenses at all. It’s about pressuring states to move from uploading information about all their residents to a national ID database to putting a digital tracking app with a state-issued identifier on each resident’s smartphone.

We’ll have more to say in our next article about some of the ways this might be used for surveillance and control of individuals’ activities in the physical and online realms.

The TSA dismissed out of hand our suggestion that an individual could be provided with a digitally-signed file (signed by a government agency) containing the same information as is contained on a physical license or ID card. Such a file could be carried on any sort of device and presented over any sort of connection. Instead, the TSA’s new rules require that a digital ID must be “provisioned” through an app on a smartphone. The smartphone must be “bound” to an individual (how is this possible?) and must have bluetooth-low energy (BTE) radio connectivity enabled so that the app containing the digital ID can be remotely interrogated by the government (perhaps without the user’s knowledge).

How will this work? What else will these apps do? In what situations, and for what purposes, will these apps and digital IDs be required? We don’t really know.

Oct 14 2024

Comments on TSA proposal for decentralized nonstandard ID requirements

Today the Identity Project joined almost 8,000 individuals who have filed comments with the Transportation Security Administration opposing the TSA’s latest bizarre proposal for decentralized, nonstandard, selective enforcement of the REAL-ID Act of 2005.

The introduction to our comments summarizes our objections as follows:

By this NPRM [Notice of Proposed Rulemaking], the Transportation Security Administration (TSA) proposes to grant to itself and to delegate to other agencies… authority to establish rules (“phased enforcement plans”) governing who is, and who is not, under what conditions, allowed to access Federal facilities or exercise Federally-recognized rights including the right to travel by air by common carrier. These rules could be adopted by the TSA and other agencies without notice, public comment, publication in the Federal Register, or codification in the Code of Federal Regulations (CFR). Instead of standards for the acceptance of IDs, the TSA is proposing to delegate authority to itself and other agencies for decentralized and nonstandard acceptance or rejection of noncompliant IDs. Congress has given the TSA no such authority.

This NPRM is premised on erroneous explicit and implicit legal and factual findings, including claims that some or all states and territories have complied with the requirements of the REAL-ID Act of 2005 and that airline passengers are required to have, carry, and/or show ID. These findings are arbitrary, capricious, contrary to law, and not entitled to deference.

Compliance with the REAL-ID Act requires a state to electronically share information concerning all driver’s licenses and state-issued IDs with all other states, but not all states do so.

Because no state complies with this provision of the REAL-ID Act, or could do so unless and until all states do so, no state-issued driver’s licenses or ID cards comply with the REAL-ID Act. No state is currently able to issue licenses or IDs that comply with the REAL-ID Act….

The proposed rules exceed the authority of the TSA. They would violate the Administrative Procedure Act (APA) and rights including the “public right of transit” by air.

Pursuant to the APA, neither the TSA nor any other agency has the authority to issue rules through the procedures contemplated by the proposed rules. And the REAL-ID Act does not authorize the TSA to delegate the promulgation of implementing regulations to other agencies or departments. Neither the TSA nor any other agency has the authority to issue regulations rescinding the statutory and Constitutional right to travel by air…

The proposed rules must be withdrawn in their entirety.

Sep 16 2024

TSA again backs down from its REAL-ID threats

The Transportation Security Administration (TSA) has again backed down from its decades-old threats to start requiring all airline passengers to show ID that the TSA deems to be compliant with the REAL-ID Act of 2005. But the new rules proposed by the TSA would create new problems that won’t go away until Congress repeals the REAL-ID Act.

In a notice published in the Federal Register on September 12th , the TSA has proposed another two-year postponement of the most recent of the “deadlines” the agency has imposed on itself for REAL-ID enforcement. But that postponement would be combined with interim rules for the next two years that ignore the law and invite arbitrariness in how travelers are treated.

The TSA notes that “frustrated travelers at the checkpoint may also increase security risks” if the TSA stopped allowing travelers to fly without REAL-ID. But the TSA doesn’t mention its current procedures for flying without any ID or its position in litigation that no law or regulation requires airline passengers to show any ID. Instead, The TSA claims without explanation that without this postponment, “individuals without REAL ID-compliant DL/ID or acceptable alternative would be unable to board federally regulated aircraft.”

Comments from the public on the proposed rule are due by October 15, 2024. Dozens of comments have already been submitted, almost all of them opposing requiring REAL-ID to fly.

We’ll be submitting comments opposing the proposed rules and reminding the TSA that (1) no state is yet in compliance with the REAL-ID Act, which would require sharing of driver and ID databases with all other states, and (2) neither the REAL-ID Act nor any other Federal law requires air travelers to have, to carry, or to show any ID.

Unless the law is changed to try to impose an unconstitutional ID requirement as a condition on the right to travel by common carrier, the TSA must continue to recognize the right to fly without ID. Any distinction by the TSA or other Federal agencies between state-issued ID, when no state complies with the REAL-ID Act or could do so until all states participate in the national REAL-ID database (SPEXS), would be arbitrary and unlawful.

May 22 2024

New DHS publicity about REAL-ID

[Portion of airport sign from May 2024 DHS media toolkit.]

A year before the most recently self-imposed “deadline” on which the Department of Homeland Security (DHS) has threatened to start illegally denying passage through Transportation Security Administration (TSA) checkpoints at airports to would-be travelers without ID it deems sufficiently “compliant” with the REAL-ID Act of 2005, the DHS has launched a new campaign of advertisements, press releases, and signs in airports to publicize its threat to start restricting the right to fly without ID.

“Starting May 7, 2025, you need a REAL-ID* to board domestic flights,” the TSA says, with a footnote in much smaller print, “or acceptable alternative”.

Is this threat for real? No, no, and no.

No #1: The May 7, 2025 date is entirely arbitrary, not fixed by law, has been extended time and time again for years, and can and likely will be extended again.

This is a threat, not a deadline. As our friend Jim Harper notes in his latest article in The Atlantic, “The Real ID Deadline Will Never Arrive”:

[T]hose airport signs and travel stories have been telling us about a final deadline for more than 15 years. And yet, that deadline has never arrived. If past extensions are any indication, it probably never will….

Fortunately, the threat of being denied boarding without a compliant license is hollow…. Under any likely scenario, the political costs of turning Americans away at airports in May 2025 will be too high. Here’s my prediction: Well before next May, the Real ID compliance deadline will be rolled back again.

No #2: Perhaps in response to our criticism of their previous litany of lies about the REAL-ID Act and ID to fly, the TSA has added a footnote to its latest signage, “or acceptable alternative”.

What’s not obvious is that an “acceptable alternative” to REAL-ID to fly is no ID at all.

As the TSA has admitted, thousands of people fly without ID every year. Nothing in the REAL-ID Act, and no current or proposed legislation or regulations, would change that.

No #3: Imposing a requirement to have, carry, or show ID to travel by common carrier– even if that were Constitutional, which we don’t think it would be — would require new legislation and/or regulations.

The TSA has twice (in 2016 and again in 2020) given notice that it intended to propose new procedures to require air travelers to show ID. But it never actually submitted those proposals, much less obtained the required regulatory approvals. Numerous procedural steps would be required before any such plan could go into effect.

Travelers can and should say “No” to these DHS/TSA attempts to intimidate us into surrendering our rights.

But while the DHS and TSA aren’t about to follow through on their latest ultimatum — not now, not next year, and probably never — they aren’t going to stop making these baseless threats until Congress and/or the courts say “No” as well.

States should prepare to litigate to defend their residents’ right to travel. Congress should put an end to this endless shakedown by repealing the REAL-ID Act in its entirety. It was a bad idea when it was enacted in a post-9/11 panic, and it’s still a bad idea today.

Oct 16 2023

The TSA wants to put a government tracking app on your smartphone

Today the Identity Project submitted our comments to the Transportation Security Administration (TSA) on the TSA’s proposed rules for “mobile driver’s licenses”.

The term “mobile driver’s license” is highly misleading. The model Electronic Credential Act drafted by the American Association of Motor Vehicle Administrators (AAMVA) to authorize the issuance of these digital credentials and installation (“provisioning”) of government-provided identification and tracking apps on individual’s smartphones provides that, “The Electronic Credential Holder shall be required to have their Physical Credential on their person while operating a motor vehicle.”

So the purpose of “mobile driver’s licenses” isn’t actually licensing of motor vehicle operators, as one might naively assume from the name. Rather, the purpose of the “mobile drivers license” scheme is to create a national digital ID, according to standards controlled by the TSA, AAMVA, and other private parties, to be issued by state motor vehicle agencies but intended for use as an all-purpose government identifier linked to a smartphone and used for purposes unrelated to motor vehicles.

We’ve seen the ways that government-mandated tracking apps on citizens’ smartphones are used by the government of China, and that’s not an example we want the US to follow.

AAMVA’s website is more honest about the purpose and planned scope of the scheme: “The mobile driver’s license (mDL) is the future of licensing and proof of identity.”

As we note in our comments:

The fact that the TSA seeks to require the installation of a government app on a mobile device of a certain type suggests that the government has other purposes than mere “identification”, such as the ability to track devices as well as people. But we don’t know, because we haven’t been able to inspect the source code for any of these apps.

Most of the details of the TSA proposal remain secret, despite our efforts to learn them. So our comments focus on the unanswered questions about the proposal, the deficiencies in the TSA’s “notice”, and the TSA’s failure to comply with the procedural requirements for consideration of proposed regulations and for approval of collections of information from members of the public — which the TSA is already carrying out illegally, without notice or approval, with digital ID apps that state agencies are already installing on smartphones:

By this Notice of Proposed Rulemaking (NPRM), the Transportation Security Administration (TSA) proposes to establish “standards” (which are not included in the NPRM and not available to the public) for a national digital ID to be used by Federal agencies in an unknown range of circumstances for unknown purposes (also not specified in the NPRM, and for which the notices and approvals required by law have not been provided or obtained).

The NPRM, which includes a proposal to incorporate by reference numerous documents which are not included in the NPRM and have not been made available to would-be commenters who have requested them, fails to provide adequate notice of the proposed rule or opportunity to comment on the undisclosed documents proposed to be incorporated by reference. It violates the regulatory requirements for incorporation by reference of unpublished material….

The proposed rule would also implicitly incorporate the Master Specification for State Pointer Exchange Services (SPEXS) published by the American Association of Motor Vehicle Administrators (AAMVA), which is not included or mentioned in the NPRM or publicly available and which AAMVA has actively attempted to remove from public availability….

The NPRM purports to include an analysis, pursuant to the Paperwork Reduction Act (PRA), of “the information collection burdens imposed on the public,” and claims to have requested approval for these information collection from the the Office of Management and Budget (OMB). But both the NPRM and the request for OMB approval omit any mention of the collection of information from individuals that occurs each time a “mobile ID” is “presented” and an app on a mobile device interacts with TSA or other Federal agency devices or servers….

What data fields will be collected when a TSA or other Federal agency device interacts with a mobile ID app on an individual’s device? We don’t know. What code will an individual be required to allow to run on their device, and with what privileges? We don’t know, although this could be critical to the risks and potential costs to individuals if, for example, they are required to allow closed-source code to run on their devices with root privileges.

From which people, how many of them, in what circumstances, and for what purposes, will this information be collected? We don’t know, although all of this is required to be included in an application for OMB approval of a collection of information….

What will individuals be told about whether these collections of information are required? We don’t know this either, although this is a required element of each PRA notice, because the TSA provides no PRA notices to any of those individuals from whom it collects information at its checkpoints, including information collected from mobile IDs.

As the TSA itself has argued in litigation, no Federal statute or regulation requires airline passengers to show ID. And hundreds of people pass through TSA checkpoints and board flights without showing ID every day. An accurate submission to OMB, and an accurate PRA notice (if approved by OMB), would inform all individuals passing through TSA checkpoints that ID is not required for passage. But instead of providing OMB-approved PRA notices at its checkpoints in airports, the TSA has posted or caused to be posted knowingly false signage claiming that all airline passengers are “required” to show government-issued ID credentials. Individuals incur substantial costs as a result of these false notices, particularly when individuals without ID forego valuable travel in reliance on deliberately misleading signs that ID is required.

Dec 05 2022

DHS resets the clock on its threat to stop flyers without ID

Soccer fans have been noticing unusually large amounts of stoppage time added on to extend the final whistle in many of this year’s World Cup matches. But FIFA and World Cup referees have nothing on the US Department of Homeland Security when it comes to extending the end of the game of REAL-ID chicken that the DHS has been playing with air travelers.

Just a few months after adding a countdown clock to its website to add artistic verisimilitude to its threat to start “enforcing” a nonexistent law prohibiting flying without ID, the DHS has set that clock back by two more years.

The change announced today — only the most recent in a seemingly endless series of postponed empty REAL-ID threats — again postpones, but does not withdraw, the DHS threat to start preventing people without ID from traveling by airline within the US.

The DHS says it plans to promulgate another set of amendments to its regulations implementing the REAL-ID Act of 2005, postponing “enforcement” of the REAL-ID Act at airports until May 7, 2025. Conveniently for current Federal officials, that punts the problem of how to respond to the inevitable resistance to an attempted ban on flying without ID into the next Presidential administration.

Today’s press release from the DHS says, in part:

Under the new regulations, beginning May 7, 2025, every traveler 18 years of age or older will need a REAL ID-compliant driver’s license or identification card, state-issued enhanced driver’s license, or another TSA-acceptable form of identification at airport security checkpoints for domestic air travel.

We doubt, however, that the revised regulations will contain any such provision. None of the previous versions of the REAL-ID regulations contained any provision requiring air travelers to identify themselves, and any such regulatory provision would exceed the implementing authority granted to the DHS by the REAL-ID statute.

The REAL-ID Act restricts what ID credentials a Federal agency can accept, in circumstances where ID is required by some other Federal law or regulation. But neither the REAL-ID Act nor any other current or proposed Federal law or regulation requires travelers to show any ID to pass through Transportation Security Administration checkpoints or board domestic flights within the US — as the TSA itself has argued whenever ID to fly has become an issue in court.

It should go without saying that one doesn’t have to take a “flying test” to obtain a drivers license. A drivers license is not a permit to fly, and possession (or not) of a valid drivers license is entirely unrelated to entitlement to travel by common carrier. The REAL-ID Act has done nothing to make flying safer, any more than preventing people without ID from flying would make flying safer. The only real impact of the REAL-ID Act has been the creation of an (outsourced, privately held, opaque and uncontrolled) national ID database (SPEXS) aggregated from state and territorial driver’s license records.

By the time the two more years of added “stoppage time” runs out on the DHS threat clock, twenty years will have passed since the REAL-ID Act was rushed through Congress in post-9/11 panic, without debate and with hardly time for legislators to read the bill.

Time is running out on the REAL-ID Act. It’s time for Congress to admit that the REAL-ID Act was wrong from the start, has enabled the creation of a de facto national ID database overwhelmingly opposed by the American public, and should be repealed.

Sep 22 2022

Freedom to travel to get an abortion

[Arrows indicate populations of states where abortion is, or is likely to become, illegal, and directions and distances to the nearest states where abortion is legal. Note that some of the routes shown are more likely to be followed than others, since abortion is more or less heavily restricted in some states where it is shown on this map as legal. Diagram by Bloomberg News based on data from the Guttmacher Institute.]

Increasing variations between state laws related to abortion are prompting an increase in the already large numbers of women who travel across state lines to obtain abortions.

For women in many states, bans on abortion are making the right to interstate travel an essential prerequisite to the right to obtain an abortion.

Both anti-abortion vigilantes and state laws criminalizing actions related to abortion, including facilitating abortion-related travel, are prompting women seeking abortions as well as those who support abortion rights to think about how to protect abortion travelers and their supporters against identification, surveillance, stalking, harassment, or legal sanctions.

In this context, the right to anonymous travel has acquired new importance and urgency. If you’ve wondered, “Why would anyone want to travel anonymously?” now you know one of the reasons. But what’s needed is “right to travel” legislation, not just “privacy” legislation. Current Federal “privacy” bills would do little to protect abortion travelers.

What are the patterns of abortion-related travel? How could state authorities or private vigilantes identify or track the travels of these women — whether they drive or take buses, trains, planes, or automobiles? What, if anything, can women traveling across state lines to obtain abortions do to protect themselves against being identified, tracked, and potentially prosecuted or subjected to retaliation, harassment, or other sanctions? What could the Federal government do to protect these women’s right to travel, and to do so privately and safely?

As discussed in detail below, the possibilities for technical self-defense against threats to the right to travel are limited. Congress needs to act to include protection for the right to travel — regardless of the purpose for which you travel — in any abortion rights legislation.

Sep 16 2022

Countdown to a crackdown on flying without ID

The Department of Homeland Security has added a Countdown to REAL ID Enforcement at airports to its website. But questions remain as to what this really means, despite our best efforts to find out.

What — if anything — will really change at Transportation Security Administration checkpoints when this countdown clock runs out on May 3, 2023?

Nothing in the law will change on that date. The REAL-ID Act of 2005 established criteria for which ID credentials can be “accepted” by Federal government agencies, in circumstances where individuals are required by Federal law or regulations to possess and/or show some evidence of their identity. But the consistent position of the DHS and TSA in litigation has been that no law or regulation requires air travelers to possess or show any ID. And the REAL-ID Act did not create any new requirement to have or show ID to fly.

Since the REAL-ID Act applies only to which IDs are accepted from those who choose to show ID to fly, it should have no effect, now or at at any date in the future, on those who don’t have, or choose not to show, ID to fly. They still have the right to fly without ID — as more than a hundred thousand people do every year — subject at most to a more intrusive administrative search of their person and baggage.

The “deadline” announced by the DHS and TSA might indicate plans for new regulations that would impose a requirement for air travelers to have or to show ID. But no such regulations have been proposed or included in DHS or TSA agendas of planned rulemaking.

Despite the lack of any apparent legal authority, however, it appears from the latest extrajudicial DHS and TSA rulemaking-by-press-release that these agencies plan to begin preventing anyone from flying without ID on or after May 3, 2023, on unknown grounds.

The following statement now appears on the DHS and TSA websites:

What happens if I show up without a valid driver’s license or state ID?

Starting May 3, 2023, every traveler will need to present a REAL ID-compliant license or an acceptable form of identification to fly within the U.S. Passengers who do not present an acceptable form of identification will not be permitted through the security checkpoint.

This would be a major change, with no legal basis, from current practice or any previously disclosed DHS or TSA plans.

Papers, Please!

The Identity Project