Oct 24 2017

DHS blinks (again) on REAL-ID

The Department of Homeland Security and the Transportation Security Administration have threatened to prevent citizens of many US states from being able to travel by air within the US, starting in January 2018, because their state governments won’t dump all their driver’s license and ID card information into a nationwide database. But these threats didn’t actually cause states to follow the TSA’s illegal orders. So rather than follow through on the threat, which would risk a legal challenge that would make it clear the threat is hollow, the DHS has again blinked. It just quietly deferred its deadline about when it claims it will enforce the REAL-ID Act against airline passengers.

Just over a week ago, when we testified before the California Department of Motor Vehicles about why the largest state in the union should not comply with the REAL-ID Act, and could not do so without violating its state constitution and its residents’ rights, the DHS website included California among 21 states “under review” by the DHS for possible Federal interference with their residents’ right to travel by air beginning as early as January 18, 2018.

Just days later, the DHS in its standardless discretion granted 15 of these 21 states, including California, another round of “extensions of time” to comply with the REAL-ID Act until October 20, 2018.

The states granted another round of arbitrary extensions until October 2018 included eight of the nine states singled out by signs in airports across the country as targeted for TSA harassment of their residents who travel by air beginning in January 2018:

The dates picked by the DHS are as arbitrary as the DHS choices of which states to threaten. The DHS has repeatedly amended its REAL-ID Act regulations to postpone its threatened “deadlines”, but neither January 18, 2018, nor October 20, 2018, are dates that appear anywhere in the law or the most recently revised regulations.

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Oct 11 2017

Comments to the California DMV on the REAL-ID Act

As we noted a month ago, the California Department of Motor Vehicles (DMV) is currently considering whether to amend state regulations on driver’s license and state ID cards to meet some, but not all, of the statutory criteria for “compliance” with the Federal REAL-ID Act of 2005.

States are not required to comply with this Federal law, but apparently the DMV hopes that if the state of California makes a show of partial compliance, the TSA and DHS won’t carry out some of their threats to unlawfully interfere with air travel by residents of California and other noncompliant states.

Comments on these proposals can be submitted to the DMV in writing until 5 p.m. Monday, October 16th, or in person at a public hearing on Monday at 10 a.m. in Sacramento. We encourage everyone concerned about ID demands and freedom to travel to submit written comments and/or come to the hearing.

We’ll be at the hearing on Monday to testify in person, and today we submitted more detailed written comments, which we introduce with the following summary: Read More

Sep 11 2017

California DMV proposes to “comply” with the REAL-ID Act

On September 1, 2017, the California Department of Motor Vehicles quietly published a notice of proposed regulations that would purportedly allow the California DMV to issue drivers licenses and state ID cards that would be “compliant” with the Federal REAL-ID Act of 2005:

For many years, the California DMV has appeared intent on eventual “compliance” with the REAL-ID Act, regardless of whether that compliance was authorized by the legislature. The current DMV rulemaking proposal to bring California into “compliance” with the REAL-ID Act by administrative fiat is the latest and most significant step along that path, and a disturbing effort to bypass legislative debate.

We encourage all Californians who are concerned about freedom of movement, Federal commandeering of state agencies to function as agents for enforcing Federal restrictions on individual rights, and lack of transparency, oversight and accountability for biometric and ID databases to submit comments opposing the proposed regulations and, if you can make it to Sacramento, to testify at the hearing on October 16th.

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Jul 20 2017

Fact-checking the FAQs on ID to fly

In May and June of 2017, several new FAQs about “requirements” for travel on common-carrier airlines were posted on TSA.gov and DHS.gov:

Statements about current and future ID “requirements” similar to those on these websites have also appeared on official signs in some airports.

It should go without saying that neither government websites nor informational signs in airports create legal rights or obligations or can be relied on as authoritative statements of the law.

Federal law is contained in the US Constitution, international treaties duly ratified by the US in accordance with the US Constitution, the US Code, and US Public Laws. Federal regulations are contained in the Code of Federal Regulations. The Freedom of Information Act requires that binding Federal agency rules, regulations, and orders of general applicability be published in the Federal Register.

If you want to know what the law says, you need to read the law, not press releases from government agencies or anyone else (including us!).

This is especially important with respect to the TSA, since the TSA website and TSA signs in airports have for years included statements about ID requirements to fly that have been disclaimed by TSA witnesses testifying under oath and by TSA lawyers arguing before Federal courts.

So what is the TSA saying now about ID to fly? Is it true? And is it legal?

The TSA’s latest public statements are more accurate than some of the agency’s previous press releases about ID to fly, and may (although we can’t really tell, given the absence of fomal proposals or published rules) accurately describe the changes the TSA intends to implement. But major questions remain about the legality of both current and possible future ID practices at TSA and contractor checkpoints at US airports.

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Apr 21 2017

“Stand up to the corrupt Real ID Act”

[Guest commentary by Rep. Chris Tuck, Majority Leader in the Alaska House of Representatives, published in the Alaska Dispatch News, Fairbanks News-Miner, Juneau Empire, Mat-Su Valley Frontiersman, and Alaska Journal of Commerce]

I am disappointed that the Administration of [Alaska Governor] Walker has given in to the fear tactics and misinformation of the Department of Homeland Security and the Transportation Security Administration by putting forth legislation to make Alaska implement the Federal REAL ID Act and pay for it ourselves. It is my duty to set the record straight and make sure people have the facts they need to defend their rights.

The Department of Administration has been reporting that if we do not agree to comply with REAL ID we will not be allowed to use our state IDs to get through TSA checkpoints or to get on base. In reality there is no existing or proposed federal law or regulation requiring ID to travel at all.

A recent reply to a four-year-old Freedom of Information Act request to the DHS has shown that 77,000 people per year fly without ID, and only 2 percent who try are ever turned away. Not only that, it is the Pentagon and individual base commanders who decide what ID is required to get on base.

The Department of Homeland Security does not have authority over the Pentagon. That is why the DHS instead uses fear tactics and misinformation to try and force REAL ID on the states.

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Apr 13 2017

Yes, you can fly without ID

On average, 77,000 people each year — more than 200 a day — pass through TSA checkpoints to board airline flights in the USA without showing ID.

Ninety-eight percent of the would-be travelers who show up at TSA checkpoints without ID are allowed to board their flights. Only two percent are turned back.

The average time spent by the TSA “Identify Verification Call Center” in questioning each traveler without ID has been between seven and nine minutes.

Show up at the airport with no ID (or with ID that isn’t considered “acceptable” by the TSA), and there’s a 98% chance that you will be allowed to fly without ID, after 7-9 minutes of additional questioning and a pat-down (which you would have gotten anyway if you didn’t consent to “virtual strip search” imaging) and search of your carry-on bags.

All this is according to internal TSA logs and summary reports on each person who tried to fly from 2008 (when the TSA started using its current procedures and form for people who fly without ID) through 2011. These reports were finally released to us, after four years of TSA foot-dragging, in response to a Freedom Of Information Act request we made in 2013.

So much for the false claims the TSA, the DHS, and their collaborators at state licensing agencies are making that people who live in states that don’t comply with the REAL-ID Act won’t be allowed to fly without “acceptable” ID.

It doesn’t matter whether your ID is “compliant” or “acceptable”. You can fly with no ID at all, and hundreds of people do so every day after what is typically only a brief delay.

Over the years, we have received a trickle of incident narratives, which have been helpful in understanding how the TSA deals with people who show up without ID and what data the TSA uses to make judgments about travelers. But these narratives are for exceptional incidents in which travelers were not quickly “verified” and allowed to proceed. The annual summaries (2008, 2009, 2010, 2011) were only released as the 14th and last batch of responses to our request. (The TSA illegally substituted PDF files of page images for the original spreadsheet or table files, making them much larger files and harder to tabulate. We will be appealing the TSA’s substitution of less-useful newly-created files for the originals, and failure to produce the files in their original format as we requested.)

We remain concerned, of course, about the 2% of would-be fliers without ID who are wrongly prevented from exercising their right to travel by air. The percentage is small (again, just 2% of the people who show up at TSA checkpoints with no ID or without “acceptable” ID), but it still comes to more than 1500 people a year, throughout the USA, whose rights are violated. States should not only say “no” to compliance with the REAL-ID Act, but start preparing now to defend their residents’ freedom of travel and to ask Federal courts to enjoin the DHS and TSA from any interference with that right.

Mar 21 2017

Alaska and the REAL-ID Act

We’ll be testifying (by teleconference) at hearings today in the Senate State Affairs Committee (3:30 p.m. ADT) and House State Affairs Committee (5:30 p.m. ADT) of the Alaska State Legislature on three state bills related to Alaska’s response to the Federal REAL-ID Act of 2005:

  1. SB34: Implementation of the federal REAL ID Act of 2005
  2. HB74: Implementation of the federal REAL ID Act of 2005
  3. HJR15: Encouraging repeal of the REAL ID Act of 2005

In 2008, shortly before the REAL-ID Act was scheduled to take effect (the DHS has repeatedly postponed that discretionary “deadline” as politically and practically unfeasible, most recently until 2020) the Alaska State Legislature enacted a state law prohibiting any state spending to implement the REAL-ID Act.

Now, in respond to Federal threats to interfere with Alaskan residents’ freedom of movement if the state government doesn’t upload information about all state license and ID-card holders to a national ID database, the state legislature is considering bills to authorize that spending and implementation.

It makes no sense for Alaska to call for repeal of a disliked Federal law of dubious Constitutionality, and simultaneously to authorize state spending to comply with that law, without first getting the courts to rule on whether the (unfunded) mandate for state action or the threatened sanctions against state residents are Constitutional.

As we say today in our written testimony to members of the House and Senate State Affairs Committees:

Alaska HJR15 is an important statement of support by the Alaska State Legislature for efforts in Congress to repeal the REAL-ID Act. But Alaskans and the State of Alaska cannot, and should not, merely sit back and wait for Congress to act.

No Federal law or regulations requires air travelers to show any ID. People fly without ID every day. But the TSA has indicated that it intends to propose regulations, revise TSA Standard Operating Procedures, and/or issue Security Directives to air carriers to require air travelers to show ID acceptable to the DHS in order to fly.

This threat poses a special danger to Alaskan residents, especially those in communities and locations not connected to the North American road network, and/or who rely on air transportation for access to essential and emergency services.

Unless and until this threat is withdrawn, Alaskan state authorities including the office of the Attorney General of Alaska should be preparing to defend any Alaska residents whose rights are interfered with by Federal agents.

And rather than waiting to intervene until after Federal agents start denying Alaska residents access to essential air transportation, the state should, as soon as it is ripe for adjudication, initiate litigation to prevent interference with residents’ rights.

It makes no sense for your state to capitulate, as these bills would have it do, in response to threats of Federal action action whose Constitutionality has yet to be tested.

It would be premature for Alaska to abandon its long-standing and well-founded opposition to the REAL-ID Act in response to DHS threats to interfere with the rights of state residents as a sanction for state noncompliance with the REAL-ID Act, while:

  1. A Federal ID credential, a passport card, is available to any U.S. citizen who qualifies for a REAL-ID compliant state ID, and can be used for any purpose for which a compliant state ID can be used as well as for surface travel to Canada;
  2. Legislation to repeal the REAL-ID Act or significantly mitigate the dangers of creating an uncontrolled national ID database is pending in Congress;
  3. No Federal statute or regulation requires air travelers to show any ID to fly, and residents of Alaska and other states continue to fly every day without ID;
  4. No regulations have been proposed that would require anyone to show ID to fly;
  5. No court has considered whether it would be Constitutional to require air travelers or passengers of other common carriers to show ID;
  6. Compliance with the REAL-ID Act would create special problems for Alaskan residents, especially residents of communities not accessible by road;
  7. The lack of alternatives to air transport gives Alaska a uniquely strong legal basis to challenge any Federal attempt to impose an ID requirement for air travel;
  8. More populous states that are manifestly not in compliance with the statutory criteria for REAL-ID Act database access have not been similarly threatened; and
  9. No court has ruled on the legality of the DHS arbitrarily exercising “discretion” to restrict the rights of residents of some noncompliant states but not others.

We urge the Alaska State Legislature to reject SB34 and HB74, stand firm in your opposition to the REAL-ID Act, and prepare to defend the Constitutional rights of Alaskans and all Americans to freedom of travel and movement, including by air.

Feb 16 2017

Executive Orders, lawsuits, and the right to travel

[D]ue process requires… notice and a hearing prior to restricting an individual’s ability to travel.

(9th Circuit Court of Appeals, Order on Motion for Stay, February 9, 2017, State of Washington and State of Minnesota v. Trump)

President Trump’s Executive Orders prohibiting entry to the US by citizens of specified blacklisted countries and cutting off all Federal grants to designated “sanctuary jurisdictions” that decline to spend their local funds and direct their employees to enforce certain Federal immigration laws have prompted a wave of litigation by individuals and, significantly, by states and cities across the US.

We welcome the increased public interest in Federal government attempts to control the free movement of free people, the new activism on the issues of freedom to travel, and the new willingness of states and municipalities to challenge restrictions on their residents’ right to travel.

There’s been much discussion and analysis of the implications of these lawsuits for these specific Executive Orders. Relatively little attention has been paid, however, to the implications for litigation over other ongoing and emerging issues of freedom to travel of what is being said, and by whom, in the litigation over the recent Executive Orders.

Here are some of our thoughts, from the trenches of more than 15 years of legal and political struggle for the right to travel, on what these cases may portend:

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Jan 09 2017

IDP comments on TSA proposal to require ID to fly

Today the Identity Project and the Cyber Privacy Project filed comments with the Transportation Security Administration opposing a stealthy TSA proposal to start requiring ID to fly.

The TSA has long harassed people who try to fly without being required to show their “Papers, Please!” at TSA checkpoints.

But the TSA’s official position in court has always been that ID is not required to fly: “You don’t have to show ID to fly. You can fly without ID. We have a procedure for that.”

You can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about you obtained by the TSA from the commercial data broker Accurint, and (3) submit to more intrusive than standard search (“secondary screening”) as a “selectee”.

That’s the way it is, and that’s the way it’s been for years.

Now, as we reported in November of last year, the TSA is contemplating a new pattern and practice of preventing anyone from passing through a TSA checkpoint or getting on an airline flight unless either  they have ID the TSA deems acceptable, or they reside in a state that the TSA deems sufficiently compliant with the REAL-ID Act.

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Dec 08 2016

The rhetoric and reality of counterterrorism

Remarks by President Barack Obama on the Administration’s Approach to Counterterrorism, MacDill Air Force Base, Tampa, Florida, December 6, 2016:

Let my final words to you as your Commander-in-Chief be a reminder of what it is that you’re fighting for, what it is that we are fighting for…

The United States of America is not a place where some citizens have to withstand greater scrutiny, or carry a special ID card, or prove that they’re not an enemy from within. We’re a country that has bled and struggled and sacrificed against that kind of discrimination and arbitrary rule, here in our own country and around the world.

We’re a nation that believes freedom can never be taken for granted and that each of us has a responsibility to sustain it…. We are a nation that stands for the rule of law.

That sounds great in theory. But in practice?

  • Some citizens do have to withstand greater scrutiny.  That’s the whole point of the pre-crime profiling that the Obama Administration has called “risk-based security” and that President-Elect Trump has called “extreme vetting”.
  • Under the REAL-ID Act and the TSA’s latest proposal, some citizens — those who want to exercise our right to freedom of movement and to air travel by common carrier — will have to carry a special “REAL-ID Act compliant” ID card and have our personal information added to a national ID database maintained by a private contractor that isn’t subject to government rules for transparency or accountability.
  • The DHS has held itself above the law, arguing that its actions should not be subject to judicial review and that it needs to be allowed to act secretly and unpredictably (i.e arbitrarily) in order not to reveal “rules” that would help terrorists “game” the system — as if asserting one’s legal rights was tantamount to terrorism.

We’ll be watching closely to see whether the gap between the rhetoric and reality of profiling, discrimination, rights, and rule of law widens or narrows under President-Elect Trump and his nominee for Secretary of Homeland Security, retired Marine Gen. John F. Kelly.

In the meantime, we’ll keep doing our part, as we encourage our readers to do theirs, to act on the President’s statement that “freedom can never be taken for granted and that each of us has a responsibility to sustain it.”