Saturday, 9 January 2016

What's the real story about the REAL-ID Act and air travel?


[Image from video by WCCO, CBS Minnesota, 7 January 2016]

Travellers are understandably confused by recent news about the REAL-ID Act and purported new ID requirements for passengers on domestic flights within the USA.

Accurate public understanding of what's going on is not helped by the fact that the US Department of Homeland Security, in official statements by its highest officials, on its official Web site, and in its official Twitter feed, has been telling out-and-out lies about what the law does and doesn't require.

Many well-meaning and reputable but overly trusting journalists have allowed themselves to be used as conveyor belts for this DHS propaganda. The result has been a flood of authoritative-seeming news reports about what this means for travellers, many of them flatly wrong.

The essential facts are as follows:

In order to try to intimidate state governments into allowing their state drivers' license and ID databases to be integrated into a distributed national ID database (the REAL-ID Act is about the database, not the ID cards), the DHS is threatening that at some future date set at the discretion of the DHS (not earlier than 2018, but that date has already been postponed by a decade since I first wrote about it, and could be postponed again) the TSA and its minions will start preventing people from flying if they show up at airports with ID from states that the DHS, in its discretion, deems insufficiently "compliant" with the federal REAL-ID Act.

The DHS and the TSA have no legal authority to carry out this threat. The right to travel by air is guaranteed by explicit Federal law ("the public right of freedom of transit through the navigable airspace", 49 US Code § 40101), by the Bill of Rights ("the right of the people... peaceably to assemble", US Constitution, Amendment 1), and by an international human rights treaty to which the USA is a party ("Everyone lawfully within the territory of a State [i.a. a country that is a party to the ICCPR] shall, within that territory, have the right to liberty of movement", ICCPR, Article 12, Paragraph 3).

The TSA itself has said repeatedly, under oath, in court, that no law or regulation requires anyone to show any ID to fly within the USA. People fly without ID every day, and the TSA has procedures for that, as I've heard TSA witnesses testify and TSA lawyers argue in court, and as TSA responses to my FOIA requests have confirmed. So far as I have been able to determine -- and I've looked hard -- no court has ever reviewed, much less upheld, any ID requirement for domestic flights within the USA.

If Congress doesn't repeal the REAL-ID Act (bills to repeal the REAL-ID Act are being introduced in both houses of Congress), and if the DHS tries to carry out its latest threats to harass, delay, or prevent people without ID it deems "acceptable" from flying, those actions are certain to be challenged in court, and likely to be overturned as unconstitutional.

US domestic travellers don't need to do anything about their ID cards, but do need to tell Congress to repeal the REAL-ID Act, and tell your state officials to prepare to defend your rights and those of other residents of your state if the DHS and/or TSA try to interfere with your right to travel.

Who am I to call the Secretary of Homeland Security a liar? I've spent weeks poring through voluminous Federal Register notices, legal briefs, court decisions, and documents released in response to FOIA requests and obtained from industry sources. I've sat through trials, administrative hearings, and appellate arguments where TSA staff and lawyers have testified and argued about their policies and procedures. I probably know more about this issue and the state of both the law and the facts on the ground than anyone else who isn't in the employ of the government, an airline, an airport, or one of their contractors.

Research, reporting, education, and advocacy about ID requirements and the right to travel have been the focus of my work for the Identity Project for more than a decade, and much of what is publicly known about what happens to people who try to fly without ID has been learned through responses to our FOIA requests and through lawsuits in which the Identity Project has been involved. No other national organization in the USA focuses primarily on ID demands and the right to travel.

I was quoted on this issue in the New York Times last week, and I was in Minnesota this week -- the state singled out by the DHS as its next target for scare tactics and arm-twisting to extort an agreement to "comply" with the REAL-ID Act -- to testify (television report, PDF of my statement) as one of the two witnesses against compliance with the REAL-ID Act (the other was from the state ACLU chapter) before a state "Legislative Task Force on REAL-ID Act Compliance".

I've posted much more detail in a series of articles in the last two weeks [updated links below] in the REAL-ID category on the Identity Project blog at PapersPlease.org:

If you have 15 minutes and would rather watch video or listen to audio than read, there's an overview of the REAL-ID Act in this presentation I gave last spring at the Cato Institute, a think tank in Washington, DC. And I explain the current situation in this interview recorded yesterday with Texas Public Radio.

Link | Posted by Edward on Saturday, 9 January 2016, 06:27 ( 6:27 AM) | TrackBack (0)
Comments

"Lawmakers Meet To Discuss Possible Special Session Items" (CBS Minnesota, 7 January 2016):

http://minnesota.cbslocal.com/2016/01/07/lawmakers-meet-to-discuss-possible-special-session-items/

"Meanwhile, civil rights advocates call it an unconstitutional restriction on Americans" right to travel.

‘Any attempt to impose a new ID requirement for air travel would be vigourously litigated, and we believe, overturned," said Edward Hasbrouck of The Identity Project."

Posted by: Edward Hasbrouck, 9 January 2016, 13:33 ( 1:33 PM)

"A troubling update to the TSA story" (by Christopher Elliott, Elliott.org, 9 January 2016):

http://elliott.org/blog/an-important-update-to-that-tsa-story/

"...My colleague Edward Hasbrouck offers an interesting perspective on the Real ID implementation on his site....

Not to be overly dramatic, but I was trying to think of other places where people are scanned, whether they like it or not. Prisons came to mind....

The ID thing? I"ve only seen that in a police state or a dictatorship that tries to control its population.

I"m trying to give the TSA and the Department of Homeland Security every benefit of the doubt here, but I just can"t understand their actions. They appear to be flouting the law and the Constitution with zero accountability to us.

I can"t see how any of this is for our own good."

Posted by: Edward Hasbrouck, 9 January 2016, 13:34 ( 1:34 PM)

Here in Minnesota the governor wants to call a special session of the legislature so that an enhanced driver's license will be required. I wrote him --twice -- on the points raised here and suggested he join other states which are also resisting the "Real" ID law. Wrote those other states' governors too, pointing out that Americans should not have to show any kind of internal passport to travel within their own country. Total responses: Zero. Still have to keep trying though.

(Meanwhile there's mass hysteria on any kind of control on gun show buying as a "taking away of our rights" while the real thievery of what the Constitution guarantees is being ignored. Of course the press isn't very good at discussing fundamental issues and assumptions -- that might lead to people asking the wrong questions.)

Posted by: Richard Weil, 10 January 2016, 15:19 ( 3:19 PM)

"What"s the real story about the REAL-ID Act and air travel?" (Travelers United, 10 January 2016):

http://blog.travelersunited.org/whats-the-real-story-about-the-real-id-act-and-air-travel

Posted by: Edward Hasbrouck, 10 January 2016, 20:35 ( 8:35 PM)

"TSA Vs. Texas Drivers License " (by David Martin Davies, Texas Public Radio, 11 January 2016):

http://tpr.org/post/texas-matters-tsa-vs-texas-drivers-license

Posted by: Edward Hasbrouck, 11 January 2016, 10:51 (10:51 AM)

"The real story about the REAL ID Act and air travel" (Consumer Traveler, 12 January 2016):

http://consumertraveler.com/columns/commentary/the-real-story-about-the-real-id-act-and-air-travel/

Posted by: Edward Hasbrouck, 12 January 2016, 06:38 ( 6:38 AM)

"DHS/TSA blink: Real ID is a bust" (by Lisa Simeone, TSA News Blog, 12 January 2016):

http://tsanewsblog.com/16421/news/dhstsa-blink-real-id-is-a-bust/

Posted by: Edward Hasbrouck, 12 January 2016, 13:43 ( 1:43 PM)

Bills to repeal the REAL-ID Act of 2005 were introduced 12 January 2016 in both houses of Congress.

H.R. 4375 ("Repeal ID Act of 2016):
https://www.congress.gov/bill/114th-congress/house-bill/4375/text

S. 2440:
https://www.congress.gov/bill/114th-congress/senate-bill/2440/text

Press statement from original sponsors:
http://www.daines.senate.gov/news/press-releases/montana-delegation-introduces-legislation-to-repeal-real-id

Posted by: Edward Hasbrouck, 13 January 2016, 06:44 ( 6:44 AM)

The REAL-ID Act DOES NOT and WILL NOT require you to get a passport. But if you do want or need a passport for other reasons, there's information and advice about how to get one in a hurry here:

https://hasbrouck.org/blog/archives/002146.html

Posted by: Edward Hasbrouck, 13 January 2016, 07:18 ( 7:18 AM)

"Do I really have to get a new license to fly?" (Elliott.org, 13 January 2016):

http://elliott.org/blog/really-get-new-license-fly/

Posted by: Edward Hasbrouck, 13 January 2016, 08:16 ( 8:16 AM)

"Travelers are less certain about the airport screening experience than they’ve been in years" (by Christopher Elliott, Washington Post, 28 January 2016):

https://www.washingtonpost.com/lifestyle/travel/travelers-are-less-certain-about-the-airport-screening-experience-than-theyve-been-in-years/2016/01/28/c08ac524-c131-11e5-9443-7074c3645405_story.html

"The actual deadline for REAL ID won’t come until at least Oct. 1, 2020... But that is by no means a hard deadline, according to author and consumer advocate Edward Hasbrouck. He says the ambiguous scanning rules and the national ID requirements amount to an overreach of the TSA’s authority. The government’s recent actions are not only baffling to air travelers, he says, but they also violate an American legal right to freedom of transit through the navigable airspace.

'If the government tries to carry out its latest threats to harass, delay or prevent people without an ID it deems acceptable from flying, those actions are certain to be challenged in court and likely to be overturned as unconstitutional,' Hasbrouck says."

Posted by: Edward Hasbrouck, 28 January 2016, 21:11 ( 9:11 PM)
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