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:

• You don’t have to show any ID to fly (28 December 2015)
  
  
• DHS posts new lies about the REAL-ID Act (4 January 2016)
  
  
• My testimony to the Minnesota Legislative Working Group on REAL-ID Act Compliance (7 January 2016)
  
  
• The REAL-ID Act is about the database, not the ID cards (8 January 2016)
  
  
• DHS doubles down on its big lie about ID to fly (8 January 2016)
  
  
• Bills to repeal the REAL-ID Act introduced in Congress (13 January 2016)
  
  
• The REAL-ID Act and entry to Federal facilities (15 January 2016)

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.