Do I really have to get a new license to fly?

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Air travelers are understandably confused by recent news about the REAL-ID Act and purported new ID requirements for passengers on domestic flights within the United States.

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 travelers, many of them flatly wrong.

The essential facts are as follows:

In order to try to intimidate state governments into allowing their state driver’s licenses 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 were introduced yesterday in both the US Senate and the House of Representatives), 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 travelers 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 US focuses primarily on ID demands and the right to travel.

I was quoted on this issue in the New York Times the week before last, and I was in Minnesota last 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 (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 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 last Friday with Texas Public Radio.

Edward Hasbrouck

Hasbrouck is an author, journalist, blogger, consumer advocate, speaker, and travel expert.

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  • Bill

    Why wouldn’t we want a “distributed national ID database”? Having a national ID is not ta slippery slope to anything …

  • MF

    Bill, I believe that the point of the article is about citizen’s right to privacy & freedom of movement. That you are not concerned is OK, but others see it differently. National ID cards are not an acceptable idea to many ppl who believe in the Bill or Rights & civil liberty.

  • Susan Richart

    “is not a slippery slope to anything…” other than ID theft on a massive basis. But don’t let that bother you.

  • Jadeveon Clowney

    Count me as one of those people.

  • sirwired

    Not to mention that the database is unnecessary in ensuring authentic ID’s. There are plenty of ways to ensure an ID is not a forgery that do not require a national database.

  • kathymcn

    I could be mistaken, but I think that Bill intended it as sarcasm- you know, that literary tool commenters use when they do not “mean” what they say.

  • Jadeveon Clowney

    To be fair, you could say that DHS and TSA have proven reputations, too — proven to be lying!

  • Bill___A

    Explain the “no fly list” with relation to this part of the article please:

    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).

  • Regina Litman

    Having been born in an even-numbered year with a last name in the L-Z range and living in Maryland when 4-year licenses were phased in there in 1977-1980, I ended up with a leap year lucense renewal date. My move to Pennsylvania perpetuated this schedule because I wasn’t sure at first if I was going to stay and didn’t switch over until my MD one was about to expire. With 4-year licenses here, too, my renewals are still in leap years, which means 2016. When I read the article here recently about the 2018 deadline, and knowing that Pennsylvania was not in an earlier in-compliance list but also seeing that it was not in the definitely won’t be in compliance by 2018 list, I figured it would be my rotten luck to get a before-compliance license from PA in 2016 and have to wait until 2020 to get one. But this article calms me down a bit.

    Incidentally, with things the way they are today, I would have changed my license immediately upon moving if it happened today.

  • Sai

    Two words: it’s illegal. (At least for US citizens.)

    It’s taking a long time to get that in court due to all the secrecy about it. And non-citizens don’t have a right to enter or transit the US. (One of the major no-fly list trials involved non-citizens.)

  • jmtabb

    I’m certain that there will be some way to “update” your current license when the need arises. WA State has procedures and pricing in place, and my husband and I had planned to go to the DMV to update our licenses to the “enhanced Driver’s License” that would be accepted as ID – it was going to cost us $1 per year for the remainder of our current license duration. We’ve been given a reprieve for another couple of years, and I expect that both of us will get enhanced licenses when they come up for renewal.

  • Annie M

    To the author – in NYS, the papers here announced that we need to be in compliance by sometimes in 2017. Canyou comment on NY State?

  • Annie M

    In NY you can also opt for an enhanced license. Most states automatically issues enhanced licenses, except for these few states mentioned. If every other state can issue these for replacements, why can’t the states that are not in compliance do it?

  • jmtabb

    It isn’t whether they _can_ do it, it’s a question of whether they are willing to do it, at least where I live.

    WA state disagrees with the requirements that a person provide proof of legal residency before issuing a driver’s license. The REAL ID act requires it. So this is a face off between the state and federal authorities. And the Federal Authorities just “blinked” and gave us an additional 2 years.

    Anyone who wants to get an enhanced DL can already – they can be used for land border crossings to Canada, and since that’s just a 2 hour drive from Seattle there are plenty that choose that option already (we have not because we have passports – which we can also use as ID when flying domestically if we choose not to get an enhanced DL)

  • Jadeveon Clowney

    Consumer Traveler (where Edward Hasbrouck’s column first appeared) reports:

    The Department of Homeland Security said passengers
    could continue using their current IDs until Jan. 22, 2018. Some would
    have until Oct. 1, 2020.

    The final word (for now) from DHS:

    Important: Right now, no individual
    needs to adjust travel plans, or rush out to get a new driver’s license
    or a passport for domestic air travel. Until January 22, 2018, residents
    of all states will still be able to use a state-issued driver’s license
    or identification card for domestic air travel. Passengers can also
    continue to use any of the various other forms of identification
    accepted by TSA (such as a Passport or Passport Card, Global Entry card,
    U.S. military ID, airline or airport-issued ID, federally recognized
    tribal-issued photo ID).

  • Algebralovr

    Missouri requires proof of “Lawful presence” to get a state issued ID, but because they refuse to share data with the feds, they don’t qualify. The local Army and USAF bases recently announced that state issued IDs will no longer be sufficient to gain access to the base without an escort. You must also have a background check, as well. So it isn’t just the state ID.

  • MarkKelling

    A passport works. Use that instead of your state issued ID.

  • MarkKelling

    The “long-range RFID” only works up to a maximum of 30 feet and that distance is significantly reduced by the metal of the vehicle you may be in, similarly to a toll road transponder functionality. Doubtful that a “drive-by” tracking would be very accurate unless everyone in the vehicle taped their license to a window.

    If you really are concerned, they make RFID blocking wallets and card sleeves you can use. I have one of the sleeves, given to me by the US government, for my NEXUS / Global Entry card which is a fully compliant enhanced ID card.

  • just me

    So what about the airline’s demand that we give them real name and show ID if they ask? What law is that? Doesn’t TSA require ID to check against the name on the ticket based on that law (if it exists) and they do not really care if it is us that fly???

  • Sai

    That’s per TSA’s SecureFlight / CAPPS regulations. What exactly they can or do actually *require* is another matter.

  • just me

    Thank you – so does the internal regulation of a Department have a power of law over citizens or only over the airline?

  • Sai

    It’s not “internal”. It’s a regulation, which has force of law. Read for yourself.

    https://www.law.cornell.edu/cfr/text/49/1540.107
    https://www.law.cornell.edu/cfr/text/49/1560.101

  • just me

    Thank you Sai – this is perfect read.

  • Bill___A

    I’ve got protectors…for passport, nexus card, and “tap” credit cards.

  • Jadeveon Clowney

    But people who never fly internationally — and as you know, in the U.S. that’s most people — don’t have a passport and shouldn’t have to get one just to fly within their own country.

  • Sai

    Quite. Especially since there are several intranational destinations that practically require flying — Alaska, Guam, Hawaii, Puerto Rico, Virgin Islands, etc.

  • Whether those regulations are valid — under the law, the Constitution, and international treaties — and whether they can or do impose obligations on individuals, or only on airlines, were raised in the comments submitted by the Identity Project when the rules were proposed:

    http://hasbrouck.org/IDP/IDP-SecureFlight-comments.pdf

    And in my testinony at the TSA’s public hearing on the proposal:

    http://hasbrouck.org/articles/SecureFlight-20SEP2007.pdf

    There has not yet been any legal challenge to this portion of the rules, so no court has considered this issue yet.

  • Sai

    > There has not yet been any legal challenge to this portion of the rules

    Sounds like a challenge to me. :-)

  • I meant “court challenge”. Comments in a rulemaking docket are only a predicate to a lawsuit which hasn’t happened yet. in general, if there was a chance for the public to comment on proposed rules, you can’t challenge those rules in court unless you (or at least someone) raised the issue in comments.

    As you’ve found out in your own fight with the TSA, one generally has to go through whatever administrative procedures the TSA has set up, which range from giving the public a chance to submit comments for the circular file (as above) to kangaroo-court adminsitrative hearings (without the due process one would have in a real trial). In general, one can take the TSA to court only after jumping through all these hoops. The court will review only the administrative record created and handed up by the TSA, and take as true the “facts” as found by the TSA.

    This whole scheme under 49 USC 46110 offends the Constitution in many ways, and I’m very glad you are challenging the Constitutionality of that law.

  • Sai

    I meant both senses. ;-)

    Totally agreed re 46110. Especially as applied, where TSA is using it to promulgate an entire body of de facto regulations.

    In a sense, it’s fortunate that TSA so blatantly flouts the law. Or as I like to call it, “constructive exhaustion of administrative remedies”. ;-)

  • Pegtoo

    I’m in Minnesota. I appreciate the info in this article, and will encourage my reps to keep pushing back on this one. Gosh, a month ago I couldn’t understand why we were one of the slow states…. and now I know (and appreciate) why.

  • Sai

    Sometimes the libertarians / anti-federalists are actually right. ;-)

  • Joe Farrell

    or you can just get pre-check . . .

  • MarkKelling

    Just going by what I read on the ‘net and by test conducted in the lab where I work on various RFID implementations. Have not seen the specific article you reference.

    But even the long range RFID chips present in many toll road transponders are not readable in many cases if you have the device in your glove box. I would think the one present in the enhanced IDs is no more or less long range than the ones in the toll transponders.

  • Jadeveon Clowney

    Pre-Check is no guarantee. They wrote about this here last week. Lots of people in Pre-Check are still being forced into the scanners, so why should we assume they’ll be spared this Real ID nonsense?

  • MarkKelling

    Still need an ID TSA considers valid when you go through the Pre lane.

    Forgot my billfold last time flying out. Airline gave me something that would get me through security, but I could not go through Pre even though my boarding pass had that indicator on it because I had no ID.

  • Joe Farrell

    Seriously? the Papers Please website? It hasn’t be substantively updated in years. They keep saying the same thing – over and over again – and have never found a court to support their claims. . . .

  • Jadeveon Clowney

    Hopefully Edward Hasbrouck will set you straight.

  • Sai

    Source? I’m looking for reliable stories of opt-out denial. Only seen two other than me, both kinda low on details.

  • Jadeveon Clowney

    “Apparently those of us with TSA Pre-Check are now going to be subject to random compulsory body scans. Yesterday I was flagged while going through the metal detector for Pre-Check in Akron, Ohio. The agent handed me a laminated green sheet and told me I was randomly selected for additional screening and needed to go through the full body screening machine. When I tried to opt-out I was told that was ‘no longer an option for those with TSA Pre-Check.’”

    “I pushed back until a manager was called over (and several other passengers were taking note of my distress), finally having to reveal my (very early) pregnancy to them as justification for my opt-out.
    To their credit, the agents immediately respected my opt-out and we moved forward with the pat down. That being said, there seems to be a lot of confusion about this new opt-out policy among agents on the ground. I was not given any assurance that my pregnancy will be sufficient opt-out justification in the future, just told that the rules had changed and those with TSA Pre-Check are not eligible for opting-out.”

    http://professional-troublemaker.com/2015/12/29/tsa-forces-precheck-passenger-to-scanner-denies-opt-out/

  • Sai

    That’s one of the two I referred to.

  • I’m not sure what you are talking about. The frequency of updates to that site varies, but there have been several updated blog posts on the subject of the REAL-ID Act on PapersPlease.org since the start of this year.

    In Phil Mocek’s criminal case, which we reported on extensively, he was acquitted of all charges, in part on the basis of testimony by a TSA supervisor, under oath, that no law or TSA regulation requires ID, and that Phil was not violating any law or regulation by trying to fly without ID. “People fly without ID every day. We have procedures for that,” he testified.

    Phil’s civil rights lawsuit against the police who falsely arrested him, and the TSA agents who put them up to it, was dismissed only because the Federal Court of Appeals found that, although he was wrongly arrested and had violated no law or regulation, the police might have made a “reasonable mistake” in assuming that there must be some requirement to show ID, since most people mistakenly think that. The Court of Appeals did *not* find that any law or regulation requires ID for domestic flights, and didn’t even consider whether such a law or regulation would be Constitutional. The testimony of the TSA witness at Phil’s criminal trial was uncontested.

    In Gilmore v. Gonzales — a case brought by the founder of PapersPlease.org — a different Federal Court of Appeals found, after reviewing the secret orders given by the TSA to the airlines, that John Gilmore could (or at least should, if the airlines followed the TSA’s orders) have been allowed to fly without ID. That finding was a key part of the basis for the court’s ruling.

    If you are aware of any court that has considered the question and found that any law or regulation requires ID for domestic flights, much less that such a law or regulation is Constitutional, I invite you to supply a citation.

  • Sai

    Look more carefully, then. Flying is an unambiguously codified right: 9 U.S. Code § 40103(a)(2). See also Kent v. Dulles, 357 US 116, 125 (1958) (citing the Magna Carta), DeNieva v. Reyes, 966 F. 2d 480, 485 (9th Cir. 1992), U.N. Universal Declaration of Human Rights, art. 13; International Covenant on Civil and Political Rights, art. 12.

    Or to put it as I did in my reply to TSA in court:
    “Respondent purports … that Petitioner “can choose to travel by other means such as automobile, bus, or train.” Even if that somehow undermined Petitioner’s statutory right as a US citizen to travel by air in particular … and to be free of hindrance in travel in general … Petitioner is unaware of any automobile, bus, or train that would permit travel across the Atlantic Ocean, as Petitioner is about to do.

    Moreover, Respondent’s current policy states that “an individual and his or her property may be selected for more than one search activity prior to boarding an aircraft, bus, train, or other public conveyance.””

    If you can’t be bothered to look at those references, don’t claim to have an informed opinion about the law.

  • John

    None of your authorities support the proposition that there is a First Amendment right to air travel.

    There may be a statutory right to air travel; there may be a right under international law; there may even be a right to travel by air in the Magna Carta (although Kent decision refers to the Magna Carta in the context of a Fifth Amendment liberty interest in travel and “freedom of movement” more generally).

    The best you can say about your response is that you’ve decided to interpret my reference to a “right to travel” as referring to something other than a right under the federal constitution. But, of course, that was the unmistakable context of my question: on what basis does the author assert a First Amendment right to travel by air?

    Since you’ve filed replies to the TSA in court, and obviously claim to have an informed opinion about the law, I’d be curious to know your theory.

  • Sai

    I didn’t make a First Amendment claim (that is, one that’s distinct from other sources). The right to travel is a combination of right to assemble (as Edward mentioned), liberty interest, and rights that have existed since the Magna Carta.

    Sure, there isn’t a First Amendment right to travel by air per se, any more than there’s a First Amendment right to tweet per se. It’s a more general right; it doesn’t matter what medium you use.

    The statute — enacted after aircraft were invented — specifically protects air travel, for US citizens.

    More fundamental is that you can travel however you damn well please unless there’s a compelling reason to hold otherwise. I don’t think it matters much whether it’s 1st, 4th, liberty, or more fundamental than the Constitution itself. I have no interest in that kind of legal navelgazing.

  • Carrie

    It’s a tricky issue for me. For professional and safety reasons (which I won’t go into) I use a p.o. box and have practically nothing sent to my home address which is going to make this verification process a nightmare.

    Right now the state is letting me use my p.o. box as the address on my dl. I hope it stays that way. It’s never been an issue in flying inside the country.

    I also wonder what the homeless or those with no permanent address will do. Maybe get some other form of i.d. other than a dl?

  • Sai

    Re. homeless: in some states, e.g. MA, they have t list the address of their shelter… and go back to get a new one whenever it changes. Source: I asked MA RMV this exact question in person.

  • Carrie

    This ID database has been in the works for years. Many of the security ideas that have come as a result of 9/11 have taken so long to pass through legislative channels and approved for implementation that they have become obsolete or outdated. This might be one.