REAL ID – Papers, Please!

Apr 15 2025

Withdrawal from REAL-ID gets a hearing in Maine

A bipartisan proposal to withdraw the state of Maine from compliance with the Federal REAL-ID Act of 2005 had its first hearing today (archived video) before the Joint Standing Committee on Transportation of the Maine State Legislature.

The REAL-ID withdrawal bill, LD 160, was presented to the Transportation Committee by state Rep. Laurel Libby (R-Auburn) and state Sen. Nicole Grohowski (D-Ellsworth), two of the six co-sponsors.

Public testimony in support of LD 160 was given by:

There was no public testimony against LD 160. The only opposition to the bill was voiced by Maine’s Secretary of State, Shenna Bellows.

Secretary of State Bellows struggled to explain her current support for REAL-ID compliance, in light of her history of opposition to the REAL-ID Act and Maine state compliance in her former positions as Executive Director of the ACLU of Maine and Maine State Senator.

Today, Secretary of State Bellows claimed, falsely — even after Mr. Kebede of the ACLU quoted the provisions of the REAL-ID Act requiring sharing with all other states of the contents of the state’s driver’s license database — that all of this information remains in the state of Maine. Secretary of State Bellows also claimed, also falsely, that the Federal government could not access the national REAL-ID database, SPEXS.

In fact, the SPEXS database is held by AAMVA, not by any Federal or state government agency. The Federal government could obtain access to SPEXS with a search warrant, subpoena, or national security letter directed to AAMVA, the same way it could obtain similar records from any private custodian. That order to AAMVA could include a “gag order” prohibiting AAMVA from disclosing the existence of the order or the release of SPEXS records to Maine, other states, or affected individuals. For all we, Secretary of State Bellows, or anyone in Maine knows, this may already have happened.

Members of the Transportation Committee seemed surprised — understandably — to learn from our testimony and that of other sponsors and supporters of LD 160 that the Maine Bureau of Motor Vehicles already uploaded personally identifying information extracted from all Maine driver’s license records to the SPEXS national ID database in December 2024.

Later in the same hearing, the Transportation Committee heard testimony from some of the same witnesses with respect to LD 1360, a well-meaning but inevitably flawed alternate legislative proposal to require the BMV to maintain the option of a “noncompliant” driver’s license or state ID. The problem with this is that those who get a noncompliant license or ID will think they have opted out of the national ID system, but their information will end up in the same SPEXS national ID database.

Secretary of State Bellows first tried to say that there was no such database, then that it only contained information concerning REAL-ID compliant licenses and IDs, but finally conceded that Maine actually has only one driver’s license and ID database that includes both compliant and noncompliant credentials. Pointers extracted from all records in this state database, including both compliant and noncompliant licenses and IDs, have been and are continuing to be uploaded to SPEXS. And those pointer records, as we pointed out, contain sensitive personal information vulnerable to abuse.

Here’s our 3-minute statement in support of LD 160 (full written submission):

Feb 25 2025

“TSA must go away”

Thanks to a mutual fan, we were invited to speak about the work of the Identity Project with Alex Newman on the latest edition of The Liberty Report on Patriot.tv and Rumble.

We talked about current and long-term concerns including digital ID, the REAL-ID Act, how demands for ID enable surveillance and control and are being increasingly integrated into a global system of surveillance and control of our movements, and the importance of anonymous cash payment for protection against financial surveillance.

What can be done? We talked about the need for popular vigilance and popular resistance, but also about what the government could do:

If the Department Of Government Efficiency (DOGE) is really concerned about identifying unnecessary and ineffective government programs to cut, they could start with the TSA.

Members of Congress could do their part by reintroducing the Freedom To Travel Act and working to abolish the TSA.

Most importantly, though, we the people can continue to resist these attacks on our freedom.

Thnaks to Alex Newman and his crew for giving us a chance to bring these issues to his listeners and viewers.

Jan 15 2025

Maine may stop complying with the REAL-ID Act

A bipartisan group of six Maine state legislators has introduced a bill, L.D. 160, which would repeal all of the provisions of Maine law enabling the state to issue driver’s licenses and state ID cards potentially compliant with the REAL-ID Act of 2005.

L.D. 160 was introduced yesterday and immediately referred to the Joint Committee on Transportation. No hearing on the bill has been scheduled yet.

According to a report by Randy Billings in the Portland Press-Herald, State Rep. Laurel Libby (R-Auburn), the lead sponsor of L.D. 160, says of the REAL-ID Act that, “It’s expensive. It puts Mainers’ privacy at risk. It doesn’t protect us from terrorism.” Rep. Libby is joined by five Democratic co-sponosrs of L.D. 160. (News reports are separate from editorials, but the Press-Herald has previously editorialized that Congress should repeal the REAL-ID Act.)

Jan 14 2025

TSA issues new non-rules for REAL-ID

Today the Transportation Security Administration (TSA) published new regulations for the REAL-ID Act in the Federal Register, finalizing a bizarre and clearly illegal proposal the agency made in September 2024.

The new TSA regulations leave it even more unclear than before who the TSA will allow to fly without ID, and who it will prevent from flying without ID, after May 7, 2025.

Rather than establishing standards applicable to demands for ID by all Federal agencies, the new TSA regulations purport to authorize the TSA itself as well as other Federal agencies to establish agency-specific plans for selective enforcement of REAL-ID Act requirements.

These “graduated enforcement plans” will be regulations in all but name, and the TSA seems to think that they will have the force of law. But these graduated enforcement plans won’t be standardized, and may vary from agency to agency, contrary to the plain mandate of the REAL-ID Act for the Department of Homeland Security to promulgate standards for ID applicable to all Federal agencies.

“Graduated enforcement plans” will be promulgated summarily, solely by posting on different Federal agency websites, without notice, opportunity for public comment, or publication in the Federal Register. In effect, the TSA is trying to opt itself and all other Federal agencies out of the most basic transparency, procedural, and due process requirements of the Administrative Procedure Act (APA).

In its analysis of the 11,000 comments submitted in response to its Notice of Proposed Rulemaking (NPRM), the TSA acknowledges our objection to its attempt to re-delegate rulemaking authority to other agencies and opt out of APA requirements. But the TSA claims that “graduated enforcement plans” posted on agency websites won’t be “regulations”, even if they are claimed to authorize decisions about who can and can’t exercise rights.

The TSA also brushes off a wide range of Constitutional and statutory objections to the proposed regulations as “outside the scope of this rulemaking”.

It remains to be seen whether the new REAL-ID regulations will be challenged on APA and/or other grounds.

In response to our objection to statements in (NPRM) implying that after the effective date of the new regulations ID would be required to fly, the TSA says as follows:

Upon full card-based enforcement, TSA may not accept noncompliant State-issued DL/IDs at security screening checkpoints for the purpose of boarding federally regulated commercial aircraft. This rule does not otherwise effect TSA’s policies related to acceptable forms of identification and identity verification.

If this is true, it means that the procedures for travel without ID (as distinct from any procedures for travel with noncompliant state-issued ID) won’t change. But we won’t know for sure until after May 7, 2025, how the TSA will deal with air travelers without any ID.

Dec 09 2024

Public/private partnerships for financial surveillance

[Email from the Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury to some of its banking industry partners forwarding list prepared by Mitsubishi United Financial Group (MUFG) of vendors at DMV (DC, Maryland, and Virginia) airports, train stations, and bus stops, to target reporting of purchases at these locations as “suspicious” .]

The House Committee on the Judiciary and its Select Subcommittee on the Weaponization of the Federal Government have released a ground-breaking report on their investigation of what they describe — accurately, we think — as “the coordination between Big Banks and Big Government” in financial surveillance.

The Judiciary Committee and Subcommittee’s latest report on financial surveillance as well as their earlier interim report on the same issue are part of their broader inquiry into the investigative tactics used in the aftermath of the storming of the US Capitol on January 6, 2021.

Partisan criticism of the Weaponization Subcommittee may lead to some skepticism or dismissal of its report and recommendations. But that would be a mistake, regardless of what anyone thinks about the Weaponization Subcommittee in general. The report is thoroughly researched and its sources are well documented. It’s based on interviews with witnesses from goverment agencies and the banking industry and tens of thousands of documents provided in response to Congressional subpoenas.

The report on financial surveillance uses the post-January 6th investigation only as a case study. The practices it reports on could have been, and still could be, used against any of us, regardless of party or affiliation (if any). They shouldn’t be used against anyone, even the most stigmatized individuals and groups. What we allow to be done to our enemies, or anyone’s enemies, could be done to any of us. The report deserves bipartisan public attention and calls for bipartisan action by Congress.

As we’ve noted in surveying what’s likely to lie ahead in demands for ID and ID-based surveillance and control of our real-world and virtual movements and activities, it’s all too easy and all too common for otherwise-principled civil libertarians to allow their distaste for particularly reviled individuals to blind them to the bad precedents being set by the investigative and prosecutorial tactics used against those stigmatized defendants.

We can’t afford to be sanguine about violations of anyone’s rights. The government’s response to the events of January 6, 2021, was a textbook example of the way that unsympathetic defendants are exploited to expand the norms of permissible and publicly-tolerated investigative and prosecutorial practices that can later used more widely.

After January 6th there were misguided calls to add everyone involved in the storming of the Capitol (and perhaps also anyone suspected of possibly having been involved) to the million-and-a-half names already on the US government’s no-fly list — by summary, secret, extrajudical administrative action. It’s unclear whether, or to what extent, that was done. That remains an open question, as does the larger question of how no-fly decisions are made. We hope that the Weaponization Subcommittee and the Subcommittee on the Administrative State will look into these questions during the next session of Congress.

Suspects were targeted for prosecution after January 6th based on what may have been the most extensive use to date in any single investigation of geofence warrants for cellphone location data. Those general warrants were used not to obtain evidence pertaining to individuals who there was already probable cause to suppect of crimes, but to trawl through records of hundreds of millions of innocent cellphone users to find individuals to place under suspicion based on where their cellphones were logged by Google as having been on that day. Challenges to the Constitutionality of these general warrants for dragnet searchess were all — so far as we can tell — dismissed by the judges hearing these cases.

But that’s not all. The latest Judiciary Committee report shows how logs of routine, entirely legal, financial transactions were subjected to warrantless scrutiny and data mining by banks and financial services providers collaborating with government investigators, and used as the basis for placing individuals under suspicion.

The FBI encouraged banking companies to “voluntarily” submit Suspicious Activity Reports (SARSs) to the Financial Crimes Enforcement Network (FinCEN), the police division of the Department of the Treasury. These SARs were used to finger to FinCEN as “suspicious” anyone who had engaged in such mundane activities as taking money out of an ATM, buying a meal at an airport, or paying for a hotel or AirBNB anywhere in the DMV (DC, Maryland, and Virginia) area on January 6th or the days before or after:

To be clear: these transactions were, in and of themselves, entirely legal, and weren’t in and of themselves in any way suspicious. They didn’t create probable cause to believe that each such individual was likely to have committed any crime, and they wouldn’t have provided sufficient basis for the issuance of a search warrant. These SARs were used not to investigate people who were already suspected of crimes, but to identify new individuals to be extrajudically placed under suspicion and investigated without probable cause.

Once submitted to FinCEN, these SARs are available for individual search and retrieval by tens of thousands of government agents, without the need to apply for a warrant. SAR data is also exported in bulk by FinCen for import into other agencies’ data mining systems.

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.

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Papers, Please!

The Identity Project