Jan 31 2018

DHS threatens to harass American Samoan travelers

In the latest installment of the game of chicken between the Department of Homeland Security and US states and territories over the REAL-ID Act of 2005, the DHS has announced that drivers licenses and IDS issued by American Samoa won’t be accepted at TSA checkpoints for “domestic” flights beginning next Monday, February 5, 2018 — unless the DHS, in its standardless discretion, backs down again as it has so many times before, and gives American Samoan travelers a last-minute reprieve.

Why American Samoa? And what will this actually mean?

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Jan 20 2018

All the fake news that’s fit to print about REAL-ID and ID to fly

We’ve been spending a lot of our time lately writing letters to the editor pointing out errors and requesting corrections of news stories reporting DHS propaganda as fact.

Earlier this month, the DHS postponed from January 22, 2018, to October 10, 2018, the date on which it had threatened to have the TSA begin (illegally) interfering with air travel by residents of certain states.  Since neither the January 22, 2018, date nor the choice of which states to threaten was set by law or regulation, but solely by DHS press release, the DHS could and did withdraw its threat merely by issuing another press release.

The DHS had little choice, after its bluff was called by reality (compliance with the REAL-ID Act would require more money, more time, and changes to state laws and in some states incluidng California, changes to state constitutions) and the likelihood of resistance by the flying public (any attempt to prevent residents of certain states from flying without ID would lead to protests at airports and lawsuits that the TSA and DHS would likely lose).

But we are not surprised, given the long history of DHS lies about the REAL-ID Act and ID to fly, that the DHS press release withdrawing the threat of a January 22, 2018, crackdown on air travel without ID by residents of certain states was immediately followed by a renewed DHS public relations campaign of lies about the law and the facts.

DHS press releases should no more be published as “facts” without fact-checking or acknowledgment that they contain contested (and readily refuted) factual and legal claims than should President Trump’s,  President Obama’s, or anyone else’s Tweets.

The New York Times is the latest news outlet to have been taken in, yet again, by this DHS “fake news” campaign, with an article this week on the Times’ website and in the travel section, “Is Your ID Approved for Travel? These Are the Latest Rules“. Many of the DHS falsehoods in this article were reported as facts in an earlier story in the Times in November, 2017, by the same reporter, Shivani Vora. We wrote to Ms. Vora at that time to correct the errors in that story, but received no reply.

To be clear, DHS claims are worthy of reporting as news. It is newsworthy that the DHS has engaged in a decade-long campaign, through both Democratic and Republican Administrations,  of brazen public lies about the REAL-ID Act and ID to fly.

It is equally newsworthy, however, that a “newspaper of record” appears to have made no attempt to fact-check the claims made by DHS spokespeople or to include any other points of view, and repeats demonstrably false DHS claims as undisputed facts even after their falsehood was pointed out to the reporter on the story.

Specifically, the latest article in the New York Times reports the following DHS “fake news” as fact: Read More

Jan 08 2018

DHS postpones threats of REAL-ID Act enforcement

Again postponing its threats to interfere with air travel by residents of “noncompliant” states, the Department of Homeland Security announced today that it has given the last three remaining states either certifications of “compliance” with the REAL-ID Act of 2005, or extensions of time to comply until at least October 10, 2018.

Travelers in all 50 states can continue to ignore the false signs at airports, the false claims being made by state authorities collaborating with the Feds in the national ID scheme, and the blizzard of confused  and error-filled news stories (largely based on unverified and misleading DHS and state government press releases) claiming that U.S. citizens will need to obtain, carry, or show passports or other government-issued ID in order to travel by air.

This does not mean that all or most states have actually complied with the REAL-ID Act or are planning to do so. At most 14 states are arguably compliant with the Federal law.

The plain language of the Federal law requires that, “To meet the requirements of this section, a State shall … Provide electronic access to all other States to information contained in the motor vehicle database of the State.”  Only 14 states are participating in the outsourced SPEXS national ID database set up to enable this nationwide data access:

In addition to the 14 current SPEXS particpants, the contractor managing the national ID database optimistically lists 4 other states as “actively working on implementation.” But none of these states are listed as having signed letters of intent  to join the SPEXS national ID database.

The other 32 states are not compliant with the data-sharing provision of the REAL-ID Act, and have given no indication of intent to comply.

What will happen next?

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Jan 05 2018

A REAL-ID Christmas present from the California DMV

On the Friday before Christmas Monday, when state officials hoped that everyone who might object would be sleeping, the California Department of Motor Vehicles finalized its regulations for partial compliance by the state with the Federal REAL-ID Act of 2005.

The final regulations and a statement of responses to public testimony and comments were posted on the DMV website on December 22, 2017, and went into effect the same day.

The final regulations are essentially unchanged from those the DMV proposed in September 2017, and that we objected to in written comments and in-person testimony at the DMV’s one hearing on the proposal in Sacramento in October.

The DMV’s response to public testimony and comments brushes off our objections, and the objections by other commenters and witnesses, on the basis of repeated invocation of patently false and/or irrelevant and unresponsive legal and factual claims.

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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.

Read More

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.