Archive for the ‘REAL ID’ Category

Executive Orders, lawsuits, and the right to travel

Thursday, February 16th, 2017

[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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IDP comments on TSA proposal to require ID to fly

Monday, January 9th, 2017

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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The rhetoric and reality of counterterrorism

Thursday, December 8th, 2016

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.”

TSA proposes to require ID to fly

Monday, November 21st, 2016

Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice  issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

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What does Donald Trump’s election mean for our work?

Friday, November 18th, 2016

We endorsed neither Hillary Clinton, Donald Trump, nor any other candidate for elected office. So what does the presumptive election of Donald Trump as President of the U.S. — when the electors cast their ballots on December 19, 2016, and the votes are counted on January 6, 2017 — mean for the work of the Identity Project?

First and foremost, it means that our work, and the need for it, will continue — as it has under previous administrations, both Democratic and Republican.

Human and Constitutional rights are, by definition, no more dependent on the party affiliation of the President, if any, than on our own. Freedom is universal. Our defense of the right of the people to move freely in and out of the U.S. and within the country, and to go about our business, without having our movements tracked and our activities logged or having to show our papers or explain ourselves to government agents, has been and will remain entirely nonpartisan.

We will continue to criticize those who restrict our freedoms and infringe our rights, regardless of their party, just as we have criticized the actions of both the Obama and Bush administrations and of members of Congress and other officials of both parties, many of whom remain in power despite the changes at the top.

Attacks on our liberty have been, and remain, just as bipartisan as our resistance to them. This is especially true of the imperial power which the Presidency has been allowed to accrue, and which is exercised through Presidential proclamations, executive orders, and the secret law (or, to be more accurate, lawlessness) of Federal agency “discretion”. Those who acquiesced in the expansion of Presidential power and executive privilege because they thought that it would be used to their benefit by a President of their own party have only themselves to blame if that power is later used against them by a new President of a different party, or without allegiance to a traditional party hierarchy.

Many of the most imminent ID-related threats are those that arise from existing laws or extrajudicial administrative practices, the limits of which — in the absence of legislative or judicial oversight and checks and balances — are set solely by executive order. Where President Trump can make changes to ratchet up repression, to register and track both U.S. and foreign citizens, and to monitor and control our movements within the country and across borders, with the stroke of a pen, we don’t expect that he will hesitate to wield the power he has inherited to govern by issuing public decrees or by giving secret orders to his minions.

In some of these cases, Federal officials and the homeland-security industrial complex of contractors, confident that the incoming occupant of the White House will bless their efforts to anticipate has desires, may take action even before they are ordered to do so. This seems especially likely, in our area of concern, with respect to (1) the DHS implementation schedule and requirements for the REAL-ID Act,  (2) the TSA’s longstanding desire to enforce and eliminate exceptions to a de facto ID requirement for air travel that lacks any basis in statute and contravenes the U.S. Constitution and international law, and (3) expanded use of ID and surveillance-based pre-crime profiling (President-to-be Trump calls it “extreme vetting”) as the basis for control of movement, especially across borders.

We will be watching closely and reporting on signs of activity on all these fronts, some of which are already visible.

Now more than ever, we need your support — not just helping us to defend your rights, but asserting your rights and taking direct action to defend them yourselves. “The limits of tyrants are prescribed by the endurance of those whom they oppress.”

We invite you to join us in our continued resistance to all lawless attacks from any and all sides on our Constitution, our freedom, and our human rights.

DHS continues to threaten states that resist the REAL-ID Act

Thursday, October 20th, 2016

Status of REAL-ID compliance as of October 17, 2016 (Source: AAMVA.org)

Last week the Department of Homeland Security denied requests by five states for “extensions” of time to comply with the REAL-ID Act of 2005. The DHS denials of requests for extensions were accompanied by renewed threats of  restrictions on residents of those states: “Starting January 30, 2017, federal agencies and nuclear power plants may not accept for official purposes driver’s licenses and state IDs from a noncompliant state/territory without an extension,” said DHS spokesman Aaron Rodriguez in a statement.

Does this mean that a deadline is approaching? That every state except these five has “complied” with the REAL-ID Act? That these “holdouts” have no choice but to comply? That the sky will fall on these states, or their residents, if they don’t?

No, no, no, and no.

As we told the Washington Times:

Not everyone thinks states will, or should, be swayed by the federal government’s determination.

“These are not states that stand out because they are less compliant,” said Edward Hasbrouck, a spokesman for the privacy advocacy group The Identity Project.

He says Homeland Security is arbitrarily enforcing aspects of the Real ID Act by deeming states compliant even when they have not met every requirement, noting specifically few “compliant” states have met the requirement that they provide access to information contained in their motor vehicle database via electronic access to all other states.

“It’s a game of chicken, it’s a game of intimidation, and very little of it has to do with actual requirements or actual deadlines,” Mr. Hasbrouck said.

If Homeland Security, which repeatedly has pushed back compliance deadlines for Real ID, does go through with the commercial airline restrictions in 2018, Mr. Hasbrouck said he expects grounded passengers would eventually bring litigation challenging the law.

Let’s look at some of the questions skeptical citizens and state legislators ought to be asking about these DHS scare tactics:

  • How many states have complied with the REAL-ID Act? Noncompliant states are neither alone nor isolated. According to the Washington Times, “Homeland Security reports that 23 states and Washington, D.C., have met enough of the Real ID standards to be deemed in compliance with the law.” In fact, as we’ve reported previously and as we noted in the comments above, the most significant component of compliance with the REAL-ID Act is participation in the national ID database (the one the DHS keeps claiming doesn’t exist). That database, called SPEXS, is operated by a subcontractor to the American Association of Motor Vehicle Administrators (AAMVA) as a component of its S2S system. When last we checked, in February of this year, only 4 of 55 US jurisdictions (states, the District of Columbia, and US territories) had connected their state drivers license and ID databases to S2S. With the addition of the latest two states this month, the total of states participating in S2S is up to nine, as shown on the AAMVA map at the top of this article. We don’t know whether all nine of those states have implemented all the other requirements of the REAL-ID Act. But we do know that no state not participating in S2S is in compliance. So at most nine states are in compliance with the REAL-ID Act. The vast majority of jurisdictions are noncompliant. And at this rate, it will take many years, if it ever happens at all, for the DHS to whip the rest of them into line.
  • When is the deadline for states to comply with the REAL-ID Act? There is no deadline for compliance in the law itself. The DHS could set deadlines by promulgating regulations, but it could also change them in the same way, at any time, for any reason. In practice, the current DHS threats aren’t event based on DHS regulations, but on dates specified solely in DHS press releases and changeable at DHS whim.
  • What is required for DHS certification of material compliance or progress toward compliance by individual states? There are no criteria in the law. The law leaves this up to the “discretion” of the DHS, which in practice means that it can be standardless, secret, and arbitrary. DHS choices of which states to threaten are political and tactical choices about which states the DHS thinks it can intimidate, and in which order. They aren’t based, or required to be based,  on any actual measurement, checklist, or relative degree of compliance.
  • What will happen, and when will it happen, to residents of states that don’t comply sufficiently or quickly enough? Probably nothing. What the DHS will try to do, and when, is once again totally up to its discretion. There are no deadlines in the law. But as our analysis and the responses to our FOIA requests have shown, the threat to deny access to Federal facilities is a red herring.  Most workers at these facilities, for example, already have Federally-issued employee IDs, and don’t rely on state-issued IDs for entry. Members of the public generally enter these facilities to exercise various of their rights, which the DHS recognizes they have a right to do without any ID. If the DHS changes its tune, and tries to interfere with those rights, what the DHS can get away with will be determined by Federal judges in the inevitable lawsuits brought by residents of disfavored states (hopefully with the support of state governments) whose rights are interfered with on the basis of the REAL-ID Act.

National REAL-ID database replicates problems with FBI rap sheets

Thursday, June 30th, 2016

Previously unpublished information we’ve recently obtained from the contractor that developed the SPEXS database at the center of state “compliance” with the REAL-ID Act — the national database of drivers license and state ID details that the DHS and supporters of the REAL-ID Act keep claiming doesn’t exist — shed new light on how the system will work.

Unfortunately, these new documents and statements show that SPEXS will replicate many of the worst problems of poor data quality and lack of accountability of the NCIC database used by the FBI to store criminal history “rap sheets” of warrants, arrests, and dispositions of criminal cases: convictions, diversions, withdrawals, dismissals, acquittals, appellate decisions, etc.

Like SPEXS, NCIC aggregates data sourced from agencies in every state, the District of Columbia, and the US territories of Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.  The FBI operates the aggregated database, but disclaims any responsibility for the accuracy of the data it stores, indexes, and distributes.

As we noted in our previous post, the FBI has exempted NCIC records from the requirements of the Privacy Act for accuracy, relevance to a lawful purpose, access by data subjects, and correction of errors.  That should mean that NCIC records can’t be relied on, but the Supreme Court has ruled that an entry in NCIC provides sufficient legal basis for an arrest.

NCIC is the poster child for the evil consequences of reliance on “garbage in, garbage out” aggregated and unverified data as a basis for government decision-making. Inevitably, NCIC records are riddled with errors. Law enforcement agencies are quick to report arrests and newly-issued warrants to NCIC, but have nothing to gain by ever reporting when charges are dismissed or a warrant is quashed. Who knows when some other police agency might find it convenient to rely on an NCIC record of a long-since-quashed warrant as a basis for authority to arrest and search someone who they would otherwise have to let walk away?

We know from long and bad experience with NCIC just where this leads. Innocent people are arrested every day in every state on the basis of erroneous NCIC records. SPEXS replicates the “garbage in, garbage out” unverified multi-source data aggregation model of NCIC, and will replicate its data quality and accountability problems along with its architecture.

Like NCIC, SPEXS is intended to be relied on as the basis for government decisions, specifically, enforcement of the requirement of the REAL-ID Act that a person may not have more than one valid REAL-ID Act compliant drivers license or ID at a time. We fail to see any valid purpose to this provision of the law. Given that states have different and independent licensing requirements, what harm is done by a person having independently satisfied the requirements to operate motor vehicles in more than one state, and having independently been issued credentials by these several states attesting to this fact?  But regardless of the rationale for this law, the justification for the existence of SPEXS is to enable states to refuse to issue a drivers license or state ID to a person if SPEXS shows a record of an outstanding license or ID in any other state or territory for a person believed (according to a secret SPEXS matching algorithm) to be the same person as the applicant.

The inevitable outcome is that some people’s applications for new or renewal drivers licenses or state IDs will be denied by state authorities on the basis of erroneous data in SPEXS records. Perhaps they have been mis-matched with a person in another state with the same or a similar name and date of birth. Perhaps an identity thief has used their name, DOB, and Social Security number to get a license or ID in another state. Perhaps they cancelled their license or ID in another state, but that fact wasn’t reported by that state to SPEXS, or the cancellation message wasn’t received by the SPEXS operator or wasn’t properly processed into the SPEXS database. Perhaps the expiration date of their old license or ID was mis-reported or improperly recorded. Perhaps a record was mis-coded, such as by mis-attributing a record to the wrong state. Perhaps a record of a license or ID that has since been cancelled was left in SPEXS by a state or territory that has withdrawn from SPEXS participation.

What recourse will any of these people have? Not much, not easily, and in some cases none at all.

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How the DHS practices “transparency”

Thursday, June 16th, 2016

realid-nonresponsive

[A “complete” response from DHS to a FOIA request, with “no deletions”. Click image for larger version.]

A Freedom of Information Act request we made to the Department of Homeland Security hasn’t told us much about what we asked about, but has given us an object lesson in how the DHS practices “transparency”.

An August 2015 document posted on the DHS.gov website revealed that the DHS is systematically collecting data on how many people have been denied access to Federal facilities because they were unable or unwilling to show ID credentials deemed to “comply” with the REAL-ID Act:

Your agency should also have a process for recording the number of encounters of individuals presenting driver’s licenses from noncompliant states for purpose of accessing Federal facilities. This data should be sent monthly to DHS (OSIIS@hq.dhs.gov) for collection no later than the tenth day of each month. DHS will use this data to evaluate the impact of REAL ID enforcement on the public. See Appendix E for a sample report template.

In January of 2016, we submitted a FOIA request to the DHS to the DHS for these reports.  Five months later, after repeated follow-up inquiries, we finally received this mockery of a “response”. It was dated in May, but we didn’t receive it until June, because it was sent to a mis-typed email address and our repeated email and voicemail messages requesting information on the status of the request were ignored. Our request was submitted by email, so it’s not clear why the address on the response was retyped rather than being sent as a “reply” to our message.  But that’s the least of the problems with the DHS response to our request.

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The real state of compliance with the REAL-ID Act

Wednesday, February 24th, 2016

S2S-map-Clerus-22FEB2016

[As of February 2016, only the 4 states colored green on the map above are compliant with the REAL-ID Act. Map courtesy of Clerus Solutions, contractor for S2S.]

How many states have actually complied with the REAL-ID Act of 2005? Only four out of fifty-six states and US territories, we’ve recently learned.

The US Department of Homeland Security is trying hard to convince reluctant state governments that resistance to the REAL-ID Act is futile, because most of the other states and US territories have already complied or agreed to do so.

A DHS map shows only five “noncompliant” states that are the target of current DHS threats, while the DHS list of the Current Status of States/Territories alleges that 22 states and the District of Columbia “are compliant with the REAL ID Act.”

Are any of these DHS claims true? No.

The REAL-ID Act requires any state or territory that wants to issue driver’s licenses or state ID cards acceptable for “Federal purposes” to, “Provide electronic access to all other States to information contained in the motor vehicle database of the State.”  A state that does not give other states full access to its database of drivers and ID cardholders is not “compliant” with the Federal law.

As we’ve previously reported, the only system currently available (or likely to be made available, given the cost and complexity of developing an alternative) for states to make their driver’s license and ID databases accessible to other states is the S2S system operated by the AAMVA. This included the SPEXS “pointer” database — the centrally-located national ID database the DHS keeps claiming doesn’t exist — with information about all REAL-ID compliant licenses, ID cards, drivers, and cardholders.

How many states actually participate in S2S and SPEXS?  Unable to find any published information about this, we asked Chrissy Nizer (Maryland’s Motor Vehicle Administrator) and Nancy Carlson (Senior Business Analyst for Clerus Solutions, the prime contractor to AAMVA for the development of the S2S and SPEXS system), who were until recently identified publicly as points of contact for S2S and SPEXS.

In response to our last blog post about REAL-ID, which included diagrams and the list of the fields in the national REAL-ID database from the SPEXS specifications, AAMVA moved the SPEXS specifications and the entire “State-to-State” section of its website behind a login firewall. AAMVA also blocked the S2S software download directory of their website from Web crawlers.

But we did, somewhat to our surprise, eventually receive a polite response from Ms. Carlson, providing us with the S2S status map at the top of this article and some additional information about the national “pointer” database. To quote Ms. Carlson:

  • In August 2015, Wisconsin was the first state to participate in S2S.  North Dakota joined in November 2015. Maryland joined in early February 2016 and Indiana joined in February 2016. We have a total of 15 states that have signed Letters of Intent to participate in S2S. All 15 pilot states plan to implement the service by December of 2016.
  • The map [above] shows the current status of the states with respect to S2S.
  • The S2S pointer index is operated by the American Association of Motor Vehicle Administrators (AAMVA) at a datacenter located in Virginia.  AAMVA is providing these services under contract to the Mississippi Department of Public Safety (MSDPS).

States and territories that aren’t compliant with the REAL-ID Act are in good company, and should stand firm.  Fifty-two of the total of 56 states, US territories, and the District of Columbia are not yet making their state databases available to other states, as will eventually be required if they choose to comply.

How the REAL-ID Act is creating a national ID database

Thursday, February 11th, 2016

 

SPEXS-central-files

[The REAL-ID “hub” connects state and Federal agencies, private commercial third parties, and centralized, national database files.  AAMVA SPEXS Master Specification (AMIE), r6.0.8, page 5]

One of the big lies being told by supporters of the REAL-ID Act of 2005 is that, as the DHS says on its official “Rumor Control” page, “Fact: REAL ID does not build a national database nor does it grant the Federal Government or another state access to a state’s driver’s license data.” According to another DHS Web page, “REAL ID Frequently Asked Questions for the Public“:

Q: Is DHS trying to build a national database with all of our information?
No. … REAL ID does not create a federal database of driver license information.

In fact, as we’ve been pointing out and as others have noted, the REAL-ID Act is both building a national database and requiring any state that wants to issue drivers’ licenses or state ID cards that are “compliant” with the REAL-ID Act to grant all other states access to their state’s drivers’ license and ID card data.

Many state legislators and residents of states that are considering whether to start issuing “compliant” driver’s licenses are concerned about (a) whether this would affect residents of those states who “opt out” or choose not to have a gold-starred compliant license (it would, as we’ve discussed previously), (b) whether there would be a central database or list of all drivers or ID cardholders (there would be, as discussed below), and (c) what we mean when we say that the goal of the REAL-ID Act is the creation of a “distributed” national ID database in which a single query routed through the central “hub” can retrieve data from every state ID database.

Here’s what we’ve been able to find out about the centralized national ID database the DHS  claims doesn’t exist, what information it contains, how it works, and who operates it:

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