Apr 08 2021

TSA posts video showing how you can fly without ID

For years Transportation Security Administration (TSA) and Department of Homeland Security (DHS) officials and their state government collaborators have been repeating the big lie that all airline passengers must have government-issued ID credentials. That lie has been included in TSA and DHS press releases, airport signage, and Tweets from the official DHS and TSA accounts.

This public relations lie has been disclaimed, over and over, in TSA and DHS court filings and sworn testimony. But now it has been contradicted on the TSA’s official Twitter feed.

Tonight the TSA Tweeted a video showing some of the ways you can fly without “acceptable” ID or without any ID at all.

If the TSA deems your ID “unacceptable”, you can still fly if you can show two or more pieces of suitable (according to the TSA’s secret non-rules) although “unacceptable” ID.

The TSA video also shows that even if you have no ID at all, you can fly if your answers to questions relayed by phone by the TSA’s ID Verification Call Center match the information in the (secret) file of information that has been linked to you by the commercial data aggregator Accurint (originally part of the discredited “Total Information Awareness” program but now a division of Lexis-Nexis).

No ID at all, much less “acceptable” ID,  is actually required to fly. So changes in REAL-ID Act regulations or TSA/DHS orders to airlines as to what ID is “acceptable” are irrelevant to whether you have right to fly without ID. Nothing in the REAL-ID Act negates this right.

In the screengrab above (one minute in), the video shows a traveler filling out a copy of TSA Form 415, “Certification of Identity”. The TSA has been using versions of this form illegally since at least 2008, without ever having obtained the approval from the Office of Management and Budget (OMB) required before any collection of information such as this by a Federal agency. The TSA has twice said it intends to seek approval from OMB for Form 415. But in the face of our objections, the TSA has yet to request, much less obtain, that approval. It’s unclear whether when the TSA will actually do so.

To avoid having to give public notice of its planned information collection or respond to our objections, the TSA tried to get Congress to enact a special airport exception from  the Paperwork Reduction Act (PRA). But Congress declined to do so.  It’s unclear whether and if so when the TSA will actually apply to OMB for the required approval, or what additional illegal actions it may try to take in the meantime.

All use of both Form 415 and the associated questioning of travelers continues to be in violation of the PRA. As we noted in 2008 when the TSA first started asking travelers to fill out the form later labeled Form 415, the PRA provides an absolute defense against any sanctions the TSA might try to impose for refusing to fill out this unapproved form or cooperate with the TSA’s “20 questions” game of ID verification security theater.

Travelers can and should say no. Fly without ID, and exercise your right to remain silent.

Mar 18 2021

Laundering Federal funding for the national ID database

The latest response to one of our Freedom Of Information Act (FOIA) requests shows the lengths to which the Federal government has gone to obscure its underwriting of the construction of a national ID database.

Supporters of  a national ID database know that there is resistance to exactly that idea. So they try to pretend that there is no such thing.

They can’t credibly claim that the SPEXS database doesn’t exist, so they try to pretend (1) that this isn’t a national database but merely a distributed national network of state drivers license and ID databases (which it could be, but isn’t, since it includes a national “pointer” database with a record of personal information for each drivers’ license or state-issued ID card), (2) that this State-to-State  network isn’t mandated by Federal law (a clearly false claim, since the Federal REAL-ID Act of 2005 requires that to be “compliant”, each state  must “Provide electronic access to all other States to information contained in the motor vehicle database of the State”), and (3) that this network and database are being built by states, not by the Feds.

The problem with this third and last line of rhetorical defense against opposition to the creation of a national ID database is that much of the funding actually is coming from the Federal government. But the Feds have gone to great lengths to obscure their role in funding the creation of the infrastructure for a national ID scheme.

Here’s how it works:

Read More

Jan 03 2021

REAL-ID Act amended, but DHS doesn’t get the exemptions it wanted

Amendments to the REAL-ID Act of 2005 were included in the Consolidated Appropriations Act of 2021, which was signed into law by President Trump on December 27, 2020.

But somewhere in the sausage-making that saw the REAL-ID Modernization Act and numerous other unrelated measures inserted into the 2,124-page omnibus pandemic relief and appropriations bill, the key provisions sought by the Department of Homeland Security (DHS) were removed from the final bill.

That leaves the DHS still required by existing Federal laws to respond to our objections, to request and obtain approval from the White House Office of Management and Budget (OMB), and to post OMB-approved notices at TSA checkpoints explaining what is required, and on what legal basis, before it can try to deny anyone passage through a checkpoint or travel by common carrier on the basis of their failure or refusal to show ID. Read More

Nov 10 2020

What does REAL-ID Act “enforcement” really mean?

For the last fifteen years, as both Republican and Democratic administrations have come and gone, the US Department of Homeland Security (DHS) has been using the threat of “enforcement” of the REAL-ID Act of 2005 to extort state legislators, governors, and driver licensing agencies into complying with the REAL-ID Act of 2005 and uploading their residents’ drivers license and state-issued ID card data to the national REAL-ID database, “SPEXS”.

The threat has been that the DHS and/or its components (such as the Transportation Security Agency) will harass or turn away residents of noncompliant states when they try to pass through TSA or other Federal checkpoints or enter Federal facilities.

Not wanting to provoke riots or protests at airports, the DHS has repeatedly postponed its arbitrarily self-imposed “deadlines” for REAL-ID enforcement at TSA checkpoints, most recently until October 1, 2021.  And the TSA, despite repeated trial balloons suggesting what new rules it might try to adopt to require ID to fly, has not yet tried to finalize such a  rule. So we don’t really know what, if anything, REAL-ID Act enforcement at airports might mean.

However, the REAL-ID Act has supposedly been being enforced for access to some other Federal facilities for more than five years, starting on October 15, 2015.

We’ve been trying for almost that long to find out what that “enforcement” has really meant, so that we and the public can assess the meaning and impact of the DHS threats.

How many people have been turned away for lack of acceptable or compliant ID, or ID issued by a “compliant” state, when they tried to enter Federal facilities? At what types of facilities has this happened? And for what purposes were these people seeking entry?

Read More

Sep 15 2020

DHS lies again about REAL-ID

As it’s been doing for years, the US Department of Homeland Security (DHS) is still lying about the state of compliance by states with the Federal REAL-ID Act of 2005.

The latest DHS whopper is this DHS press release issued September 10, 2010:

The DHS claims that “All U.S. States [Are] Now Compliant” with the REAL-ID Act. But as we’ve noted many times before, the REAL-ID Act explicitly and unambiguously requires that to be “compliant”, a state must “Provide electronic access to all other States to information contained in the motor vehicle database of the State.”

How many states do that today? At most, 28, not all 50, as shown in the map below:The only mechanism available for states that want to share their drivers’ license databases is the outsourced “State to State” (S2S) system operated by the American Association of Motior Vehicle Administators (AAMVA), a private contractor not subject to the Federal or any state Freedom Of Information Act (FOIA) or other laws proviidng transparency and accountability for government agencies. Despite the misleading name, S2S is not a mechanism for messaging directly from state to state. It’s a centralized system which depends on a central national ID database, SPEXS, aggregated from state drivers’ license and ID data.

Here’s the latest list released by AAMVA of states that are particpating in S2S. Each particpating state has uploaded information about all drivers’  licenses and state ID to SPEXS. Together these 28 states include substantially less than half the U.S. population:

We wish we didn’t have to keep saying, again and again, that the DHS is lying about REAL-ID. But as long as Federal and state agencies keep putting these lies in their headlines, we’re going to keep on pointing out that the emperor (still) has no clothes.

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 committee, 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 committee, 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.

Read More

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.

Read More

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