Jul 28 2020

Senate bill would exempt REAL-ID from due process and oversight

Rather than responding to our comments on the latest proposal by the Department of Homeland Security to require ID for airline travel, the DHS has quietly gone to Congress to try to get the law changed so that it doesn’t have to answer us, and to preclude potential litigation to challenge an ID requirement or defend people who try to fly without ID.

A bill introduced earlier this month in the Senate, and already approved in commitee, would exempt the implementation and administration of the REAL-ID Act from normal administrative requirements for due process in rulemaking and oversight and transparency in demands by Federal agencies for information.

Included in S. 4133, both as introduced and as amended and reported by the commiteee, are provisions that would allow the Secretary of Homeland Security, at his or her “discretion”, to issue regulations and administer the REAL-ID Act without regard for the Paperwork Reduction Act (PRA) or the notice-and-comment requirements of the Administrative Procedure Act (APA).

As of now, no comparable bill has been introduced in the House. (Several bills to amend the REAL ID Act are pending in the House, but none of them contain PRA or APA exemptions.) It’s unclear what effect these provisions would have if enacted. All Federal agencies are, of course, still subject to Constitutional requirements for due process. But these provisions of S. 4133  appear to be a direct response to the objections we raised in May 2020 to the latest DHS proposal to impose an ID requirement for airline travel without complying with the PRA or the APA.

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May 19 2020

TSA tries again to impose an ID requirement to fly

Air travel in the US has been reduced by more than 90%, measured by the numbers of people passing through checkpoints at airports operated by the Transportation Security Administration (TSA) and its contractors.

And the Department of Homeland Security (DHS) has postponed its threat to start unlawfully refusing passage to travelers without ID credentials compliant with the REAL-ID Act of 2005 for another year, from October 1, 2020, to October 1, 2021.

So relatively little attention is being paid right now to air travel or TSA requirements — making it the ideal time for the TSA to try to sneak a new ID requirement for air travel (to take effect in 2021) into place without arousing public protest.

Today, in collaboration with nine other organizations concerned with freedom of travel, identification, privacy, human rights, and civil liberties, we filed comments with the TSA in opposition to what is ostensibly a “Notice of intent to request approval from the Office of Mangement and Budget” for a new form, TSA Form 415.

Our comments were joined by the Identity Project, Freedom To Travel USA, Fiat Fiendum, Inc., National Center For Transgender Equality (NCTE), Restore The Fourth, Inc., Patient Privacy Rights, Defending Rights And Dissent, The Constitutional Alliance, Privacy Times, and Just Futures Law.

According to our comments, the TSA is attempting to “use the innocuous-seeming device of a request for approval of an information collection to introduce a fundamental and profoundly controversial change in substantive TSA requirements and the rights of travelers”: Read More

Apr 20 2020

COVID-19, the REAL-ID Act, and ID to fly

A month ago — in what seems like it was long ago and in a galaxy far, far, away, before the COVID-19 pandemic reduced air travel in the US by more than 95% —  the US Department of Homeland Security was stepping up its baseless threats to begin “enforcement” of the REAL-ID Act against airline passengers on October 1, 2020.

There’s been no change (yet) in the REAL-ID Act or the regulations for its implementation, despite proposals that remain pending in Congress.

Over the last month, though, President Trump, Acting Secretary of Homeland Security Chad Wolf, and the Transportation Security Administration have each issued formal or informal notices or statements about their intentions with respect to the REAL-ID Act and ID demands for air travel.

As of now, it appears that the DHS/TSA “ultimatum” to air travelers to obtain “compliant” ID cards or be denied passage through TSA and contractor checkpoints at airports will be postponed yet again, this time for another year, until October 1, 2021.

After that date, it appears that the TSA intends to continue to allow people to fly even if they don’t show ID at checkpoints, but only if it the TSA or its contractors thinks that they have been issued some compliant ID (even though they don’t have it with them).

Is this legal? No. Does this make any sense? No. But it’s what the TSA seems to saying it plans to propose. The TSA  is asking for comments on this proposal from the public through May 19, 2020.

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Mar 24 2020

How drivers license photos are aggregated and shared

During a press conference yesterday, President Trump announced a postponement of the “deadline” previously announced by the Department of Homeland Security for “enforcement” of the REAL-ID Act of 2005 at TSA checkpoints:

I’m also announcing that we’re postponing the deadline for compliance with REAL ID requirements…. We will be announcing the new deadline very soon. It’s going to be announced in a very short moment.

The REAL-ID Act “deadline” was set by DHS press release, not by law or regulation. It’s unclear if a new date will be announced by decree of the Secretary of Homeland Security, or by promulgation of regulations. There has been no further announcement by the DHS, and there is no notice of rulemaking in the Federal Register today.

As we noted yesterday, neither a postponement nor any of the other proposed amendments to the REAL-ID Act would address the central problems in this law: the requirement for states that want to be deemed “compliant” to share their drivers’ license and state-ID databases with all other states.

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Mar 23 2020

In a pandemic, freedom is the first casualty

We’ve seen before — notably after September 11, 2001 — how a crisis can result in damage to rights and freedoms that persists long after the initial cause of public panic.

Some advocates for restrictions on individuals and our movements and activities will exploit any crisis to ratchet the mechanisms of surveillance and control tighter.

Other officials, including many who mean well but are too traumatized to recognize the long-term consequences of their short-term actions, will advocate “temporary” restrictions on individual rights and freedoms that almost inevitably become permanent.

We don’t yet know what the cost in lost lives of the coronavirus pandemic will be. But we can already see the outlines of some of its potential cost in lost civil liberties.

Earlier in the pandemic, we reminded our readers of the risks of abuse of overbroad quarantine powers. But that’s only one aspect of the problem.

The basic methodology of control of travel and movement is that compulsory identification of travelers enables surveillance (tracking and logging) of travel and movement histories, and control of future movements based on individuals’ identities and the histories and other databases of personal information linked to those identities.

Already, changes to policies and practices related to (1) identification, (2) surveillance, and (3) control of travelers have all been proposed in response to the coronavirus pandemic: Read More

Feb 13 2020

REAL-ID Act amendments don’t address the real ID problem

In response to fears by the travel industry (fueled by government lies) that businesses dependent on air travel will lose money if their would-be customers are prevented by the Transportation Security Administration (TSA) from flying because they don’t have ID credentials that the Department of Homeland Security (DHS) deems sufficiently “compliant”, a proposal was introduced in Congress this week by Rep. Debbie Lesko of Arizona to amend the REAL-ID Act of 2005.

What’s really called for, though, is repeal, not revision, of the REAL-ID Act, and explicit Congressional recognition that travel by common carrier is a right that cannot be conditioned on government-issued credentials or other permission. The amendments proposed in H.R. 5827 would only exacerbate the Constitutional flaws in the REAL-ID Act, and would do nothing to rein in the TSA and other DHS components in their violations of travelers’ rights.

H.R. 5827 appears to have been drafted by travel industry lobbyists. Its provisions exactly match the recommendations of the U.S. Travel Association, the umbrella trade association for the travel industry in the USA. Rep. Lesko’s press release announcing the filing of H.R. 5827 quotes endorsements for the bill from spokespeople for U.S. Travel and its constituent trade associations of airlines, airports (which in the US are almost all publicly operated, but tend to act like self-interested businesses rather than operating in the public interest), and travel agents. No advocates for travelers , civil liberties, or freedom to travel are quoted — nor are they likely to endorse H.R. 5827 or the REAL-ID Act it would amend.

H.R. 5827 is styled as the “Trusted Traveler REAL ID Relief Act of 2020”, and is described as a bill “To exempt certain travelers from certain requirements of the REAL ID Act of 2005 for purposes of boarding a federally regulated commercial aircraft, and for other purposes.”

But what would H.R. 5827 actually do, and would that make things better or worse?

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Feb 11 2020

DHS considered using REAL-ID data sharing for immigration enforcement

The acting head of the Policy Office at the Department of Homeland Security (DHS) recommended that the DHS use the REAL-ID Act mandate for national sharing of drivers’ license and state-issued ID data to get access for DHS immigration enforcement to records of licenses and IDs issued to otherwise undocumented residents by states that won’t provide that data directly to the DHS, according to a DHS memo obtained by Buzzfeed News.

As discussed below, there’s a clear lesson in this report:

State refusal to participate in or upload state drivers license or ID data to the SPEXS national REAL-ID database — which necessarily implies state noncompliance with the REAL-ID Act — must be recognized as an essential element of any genuine state “sanctuary” policy against allowing state resources to be used for enforcement of Federal immigration policies and practices.

States including New York that don’t want state motor vehicle and driver licensing agencies to collaborate in Federal immigration crackdowns and other Federal witchhunts should promptly enact explicit prohibitions on SPEXS participation by their state agencies.

Here’s what that means and why it’s necessary:

According to a report by Hamed Aleaziz, the DHS considered several methods for obtaining data from “uncooperative” states or punishing those states or their residents, as the DHS is already doing to New Yorkers. But the first recommended option was to leverage the data-sharing element of state compliance with the REAL-ID Act:

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Feb 10 2020

DHS doesn’t trust New Yorkers

In a new twist on the familiar US Department of Homeland Security (DHS) tactic of trying to intimidate state governments into sharing drivers license data with the DHS by threatening to harass, delay, or interfere with the rights of residents of those states when they travel,  the Acting Secretary of Homeland Security has declared that New York residents won’t be allowed to apply for or renew participation in any of the DHS Customs and Border Protection (CBP) “trusted traveler” programs.

The DHS says that this is because New York’s new “Driver’s License Access and Privacy Act… effective December 14, 2019… forbids New York Department of Motor Vehicles (DMV) officials from providing… driver’s license and vehicle registration information to the United States Department of Homeland Security (DHS).”

That provision of New York state law appears to be intended to prevent New York DMV records pertaining to driver’s licenses issued to otherwise undocumented New York residents from being used by the DHS to round these New Yorkers up and deport them. The DHS doesn’t like it that New York, like at least fifteen other states, issues driver’s licenses on the basis of whether residents demonstrate competence to drive, not their immigration status.

The DHS knows that it has no authority to tell states to whom they can or can’t issue drivers’ licenses. Instead, it has used the data sharing prohibition in New York law as the pretext for retaliating against the state government by discriminating against New Yorkers.

As New York Governor Mario Cuomo pointed out in his response to the DHS decision, the DHS has never previously required applicants for any of its “trusted traveler” programs to have a driver’s license at all. No law supports the DHS demand for access to DMV data about drivers as part of its pre-crime assessments of would-be air travelers.

It’s clear from a comparison with DHS actions related to the REAL-ID Act that the DHS claim that it “needs” state DMV data to “vet” (i.e., make pre-crime assessments of) air travelers is pretextual, hypocritical, and fully warrants a judicial finding that it constitutes an arbitrary denial of equal protection of the law to New York residents.

The REAL-ID Act — unlike any law or regulation related to “trusted traveler” programs — does require states to share drivers license and state-issued ID data if they want to deemed “compliant” (although state compliance is optional).  An outsourced national ID database has been set up by a nominally private contractor to allow states that want to comply to do so. However, New York, like more than half of the other states and territories subject to the REAL-ID Act, hasn’t chosen to participate in the SPEXS database or share its data.

But the DHS, despite this manifest noncompliance with the explicit statutory criteria for driver’s license data sharing, has chosen to certify New York (and almost all of the other noncompliant states and territories) as “compliant” with the REAL-ID Act.

Members of the House of Representatives have already asked the DHS for an explanation of the legal basis for its new discrimination against New York residents. And both the state of New York and the New York Civil Liberties Union have announced that they plan to sue the DHS on behalf of New Yorkers who are being discriminated against.

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Feb 09 2020

Fact-checking the REAL-ID Act

Two weeks ago today, the Oregonian published an editorial containing multiple false factual claims exemplifying the “big lies” about the REAL-ID Act being propagated by the US Department of Homeland Security (DHS) and, in many instances, its collaborators at state driver licensing agencies.

We submitted the op-ed below, thinking that it would be the best way for the Oregonian to correct the factual errors in its editorial.

We’ve heard nothing in response, and no correction has been published.

Corrections to editorials are sometimes necessary. We certainly wouldn’t suggest that a newspaper is obligated to publish opinions contrary to its own. But when an editorial contains demonstrably false factual claims, we think the editors have the same ethical obligation to publish a correction as they would if those claims were made in a news story.

Since our commentary hasn’t been published, we’ve asked the Oregonian to publish a correction.

We’re publishing our commentary here, not just as a correction to the Oregonian editorial but as a correction to numerous other uncorrected news stories (we’ve called out the New York Times, among others, for amplifying these same DHS lies in the past) repeating the same DHS lies:

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Jan 02 2020

Drivers’ license data sold to businesses, given to Feds

As we start the year of the once-a-decade US Census, it’s an appropriate time to start looking at some of the ways and the purposes for which data — including drivers license data — is used and shared by the Bureau of the Census.

State agencies that issue drivers’ licenses want us not to object to their demands for more and more personal information about matters unrelated to driving — digital photos, scans of birth certificates and social security cards, etc. — in order to obtain drivers’ licenses that comply with the Federal REAL-ID Act.

State driver licensing agencies say we shouldn’t worry — notwithstanding the requirement of the REAL-ID Act that drivers’ license and state ID data be made available electronically to all other states — because this data will only be shared “as permitted by law”.

But what does that mean? What sharing of this data does the law permit?

Recent reports show that drivers’ license data can be, and is, widely shared with both commercial entities and Federal agencies — including the Bureau of the Census, which will be conducting the decennial census in 2020 — for purposes unrelated to motor vehicle operation or drivers’ licenses. Both Federal and state agencies say that all of this is permitted by the Drivers Privacy Protection Act (DPPA).

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