Residents of Several States are Having Their Right to Travel Threatened
The Real ID Act regulates, among other things, what state identification will be valid for federal purposes. Those federal purposes including identifying oneself to the Transportation Security Administration in order to board commercial aircraft. And several state drivers licenses do not comply with those rules.
A ‘real ID compliant’ license has to have a person’s full legal name, signature, date of birth, gender, a unique identifying number, home address, and a front-facing photo.
There are also specific anti-counterfeiting measures that must be used, and rules on providing the data on the card in a standard machine-readable format.
Prior to issuing a ‘real ID compliant’ license, a state has to require:
- A photo ID (they make you present a photo ID to get a photo ID..) or ID that includes full name and birth date
- Documentation of birth date (usually a birth certificate)
- Proof of legal status (you’re not an illegal alient) and social security number (something you didn’t even have to have when I was born)
- Documentation of your residential address
Basically, getting a drivers license — especially without already having one — has become a real pain.
States have to store digital copies of these documents as well. States also have to share these databases with all other states.
Very Few States Are Actually Complying
The federal government has determined that some states are trying hard enough. But it currently appears that 9 states and 3 territories will not have waivers from the law’s requirements as of January 10.
After a decade of state/fed jousting, the feds appear ready to visit some of those consequences upon the recalcitrant states: Alaska, California, Illinois, Missouri, New Jersey, New Mexico, South Carolina, and Washington (as well as Puerto Rico, Guam, and the US Virgin Islands). Previously, these states and territories had been granted exemptions to the Real ID requirements, but they expire on January 10, 2016 (less than two weeks from now), and the DHS has already refused to renew them for Missouri, Illinois, Minnesota, and Washington and said they wouldn’t renew it for other states.
Missouri passed a law in 2009 forbidding state officials from implementing the law. The same year, Minnesota lawmakers not only barred implementation of Real ID but prohibited “preliminary measures like negotiations with federal officials related to the requirement,” according to a report in last week’s Minneapolis Star-Tribune.
Some state lawmakers opposed Real ID because of privacy concerns, while others denounced the law as an “unfunded mandate” requiring states to change their licensing practices without providing any money to implement the changes.
This Game of Chicken Doesn’t Mean Passengers Won’t Be Able to Travel
Failure to comply with REAL ID doesn’t mean that January 10 the TSA will stop accepting IDs from non-compliant states, however.
- The lack of a waiver itself doesn’t mean that the TSA will act. Instead, the federal government will “soon determine whether Transportation Security Administration agents would start enforcing a 10-year-old law that required states to comply with a set of federal standards when issuing driver’s licenses.”
- Nothing will change January 10 anyway. DHS has said “that 120 days’ notice would be given before starting to enforce the law at airports.”
What’s more you can still fly even if your state-issued drivers license isn’t accepted. You can use a passport or other government ID. And you can fly without ID, answering personally identifying questions.
And it may not even happen… Refusing to accept drivers licenses from several states — since they are the primary means most people use for identification — would slow down security checkpoints markedly. That will not be popular, and 2016 is an election year. Stories of people being turned away from a trip to a family member’s funeral, or of security lines wrapped out the doors of JFK airport, would fill the airwaves.
There’s a real political reason for this game of chicken to end in something other than people being hassled at the airport.
Real ID Places Real and Substantial Limits on Freedom
The Real ID act was passed as a rider to an emergency Iraq war and Tsunami relief appropriations bill in the House and inserted into a matching bill on the Senate side during conference. The Senate never discussed Real ID via committee hearings and never voted on Real ID apart from emergency pieces of legislation.
During the 2008 elections President Obama opposed the law, and Hillary Clinton called for it ‘to be reviewed’.
Denying passengers access to flights because their drivers licenses no longer constitute valid identification would be a political problem. But the constitutional problems are just as real.
Regardless of whether a Court would protect substantive rights when faced with the security state, the substantive issues are meaningful concerns. “You can travel using other means than flying” isn’t persuasive because TSA has intermittently performed security checks at Amtrak stations; they’ve positioned themselves even at DC area metro stations; and if the government can substantially burden one form of travel, they can burden any other.
ID checks began as security theater after TWA flight 800, President Clinton asked for things he could announce right away. Airlines used to ask for ID to make sure the person traveling was the one that bought the ticket, solely to restrict the resale market for airfare in order to support revenue management systems that increased the price of travel closer to departure (to prevent people from buying tickets cheap and reselling them as travel dates approached — still undercutting the airline’s price). Now the government does the airline’s work for them, ostensibly for security but a determined terrorist (the TSA has never caught a single one) doesn’t have much problem flying with fake documents.
The ‘security purpose’ of ID checks is to try to force people to fly under their real names, so that those names can be checked against the government’s highly flawed watch and do not fly lists. Anyone on such a list, intent on committing a terrorist act, would simply choose not to fly under their own name.
Those lists of course impose substantial burdens on the right to travel.
- People get added to the ‘do not fly list’ without any due process proceeding
- It’s not necessary to commit any disqualifying acts to be on that list (they’re pre-crime profiling: mere suspicion that someone might do something in the future)
- You cannot confront your accuser
- There’s almost no meaningful and timely redress procedures
And that’s burdensome on the right to travel. The mere existence of alternative slower methods of travel – permitted today, by the graces of those in charge of ‘security’ – doesn’t alleviate that.