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The New TSA Identification Requirement

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33 Responses

  1. KipEsquire says:

    “This new TSA rule strikes me as problematic from a First Amendment standpoint, since it seems to be designed to target those who don’t present ID for expressive reasons.”

    While I am totally sympathetic, you are unfortunately misreading the TSA release:

    “This change will apply exclusively to individuals that simply refuse to provide any identification OR assist transportation security officers in ascertaining their identity.”

    That “or assist” part makes quite a bit of difference. “Passengers who refuse to show ID, citing the rights” still will be accommodated IF they “assist transportation security officers in ascertaining their identity.”

    This is similar to the Fourth Amendment case law on ID, which is also widely misunderstood by the lay public. You have every right not to carry ID, but you do not have the right to withhold your identity from law enforcement if they have a legitimate reason for knowing it. See, e.g., Hiibel v. Nevada.

    The TSA is merely clarifying that, “you have no right to fly anonymously,” not that “you no longer have the right to invoke your right to fly without ID.” They’re two different things.

    If you have a problem with the former (what TSA is saying) as well as the latter (what you think TSA is saying), then more power to you.

    But your opening premise, and therefore your analysis, is incorrect.

  2. KipEsquire,

    First of all, I have no idea what “assist” in ascertaining identity means. If a person shows up to the airport without an ID, how exactly can they assist in ascertaining identity? This phrase seems almost meaningless — it basically is a way of stating that people who are cooperative and nice or people who have lost their IDs are fine, but people whom TSA officials dislike (those pesky obnoxious folk who don’t want to present ID as a matter of principle or expression) are in trouble.

    I agree that people may not have a Fourth Amendment right to withhold providing identification (or a name — as Hiibel doesn’t involve an ID document requirement). But my analysis is a First Amendment analysis, not a Fourth Amendment one. Just because something is okay under the Fourth Amendment doesn’t make it okay under the First Amendment (i.e., I wonder how Hiibel may have come out if he had been engaging in a protest or an expressive activity, as the Court has held that there is a right to anonymous speech and assembly). I have a lot more about the First Amendment arguments in my article, The First Amendment as Criminal Procedure, 82 NYU L. Rev. 112 (2007).

    My First Amendment analysis goes to the purpose and effect of this rule. A law — even if a legitimate regulation in all other respects — may not single out particular viewpoints if expressive conduct is involved.

    Even if the TSA may be able to require that people can’t fly anonymously (it’s not totally clear under the cases thus far), the TSA can’t selectively impose requirements on people based on their viewpoints or expression. It appears that people who lose their ID can fly anonymously, unless there are ways of assisting the TSA officials in identifying that I’m not aware of.

    But suppose a protester goes to the airport and says: “I didn’t bring my ID because I think ID requirements are stupid, but my name is [gives real name].” Is that okay under the TSA rule? I don’t think it would be. Maybe I’m reading too much into the rule, but I just don’t understand what “assist transportation security officers in ascertaining their identity” means in any practical sense when a person doesn’t have an ID document. The TSA rule strikes me as a clever way of saying: “We have no problem with people who lost their ID, but those obnoxious types who come here trying to make a statement about ID will not be tolerated.”

  3. Paul Gowder says:

    Daniel’s obviously right here. Who tries to fly anonymously? Seriously, Kip, the ticket has your name on it. It’s obvious (and infuriating) that this is targeted straight at political dissent.

  4. Last year I arrived at Logan Airport having left my driver’s license at home– ironically, because the last time I had flown, I had taken out my ID for the security check, and shoved it in the wrong pocket. Lucky for me I was flying with coworkers, and am as white as the New England snowfall (ok, my roots are really Eastern European), and that was enough for the TSA to waive me through.

    Remember, that great free speech absolutist Justice Black would have had no trouble with this limit on symbolic speech (following Tinker); he would have seen it as merely disruptive.

    Ironically, this guideline should partially satisfy John Gilmore. From his website: “John Gilmore’s case before the Supreme Court is about one thing: Secret Law.”

    John worked his way up the bureaucratic chain and was eventually told by United Airlines that there were security directives that mandated the showing of ID, but that he couldn’t see them. These secret directives, issued by the Transportation Security Administration, are revised as often as weekly, and are transmitted orally rather than in writing. To make things even more confusing, these orally transmitted secret rules change depending on the airport.

    Now the rules are open and standardized.

  5. What’s the First Amendment law about the IRS rule about penalties for filing a “frivolous” tax return? That has an expressive element to it, and indeed can be construed as very political. While I’m not in favor of silly ID rules, as you know, there’s also a point where one can’t logically make everything expressive a First Amendment protected act. After all, just to show a _reductio ad absurdum_, assassination is the ultimate political statement.

  6. Orin Kerr says:

    Do you think that there is a First Amendment problem with the new TSA rule?

    No, I don’t. The fact that a person decides not to comply with a rule because they think the rule violates their values does not create a First Amendment right not to comply with the rule.

  7. Humblelawstudent says:

    Throughout this posts’s argument is the assumption that a method a person chooses to not cooperate is “expressive conduct” and therefore protected under the first amendment. I didn’t take a first amendment class, but this strikes me as ridiculously broad.

    As another poster says, Solove’s argument essentially permits assassination as a method of expressive conduct.

  8. Dimitris Andrakakis says:

    @Humblelawstudent :

    I do not think that’s the case here; it’s more like a double standards one.

    IANAL, but as I understand it, this rule effectively gives the TSA officer the power to allow or deny someone to board a plane arbitrarily, merely based on what they state:

    - I do not produce any ID, and say I’ve lost it. This rule says I’m allowed to board, if I behave (“This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers“).

    - You do not produce any ID too, and say you don’t want to. This rule says you won’t be allowed to board (“passengers that willfully refuse to provide identification at security checkpoint will be denied access“).

    Correct me if I’m wrong somewhere, but I can’t see the connection with the assassination argument.

  9. Thomas Downing says:

    I think Dimitris is on point here. Further to what he says:

    This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

    So there are two (at least) distinguishing factors; why you are not showing ID, and whether you cooperate in establishing your identity. The additional kicker is the _or_ in the quoted sentence. As I read this, if I refuse to produce my ID, but then cooperate in establishing my identity, I can still be denied boarding – even if the the means by which I cooperatively establish my identity would be acceptable in the case where I simply lost my ID.

    To me, this further bolsters the position that this regulation is discriminatory as to expressive activity.

  10. Nick Lancaster says:

    The analogy about assassination is invalid; while assassination may be the ultimate in political statements, it is an act of murder. This supports Orin Kerr’s observation that mere disagreement with the law does not imply an automatic First Amendment right to dispute it through non-compliance.

    However, the security issue that Bruce Schneier points out should be of concern – why do we assume someone refusing to show identification is more of a security risk than someone who offers a plausible excuse for having forgotten/lost their ID? A terrorist can’t have identification sufficient to pass screening?

    This crops up repeatedly as society in general has to rethink/reexamine how it views identification and its functions. Matching an ID to a ticket only tells you the holder of the ID has the same name as the listed passenger (an odd lynchpin when we have names like ‘Robert Smith’ on the no-fly list), and nothing about the relative security risk a passenger may pose.

    Not to mention which, wouldn’t a terrorist be expected to have proper ID and comply with all screening procedures so as to assure getting on the plane? If the screening procedures are sufficient to net weapons and smuggled explosives, why the need for ID? How does the requirement provide better security? How does it fit into the overall system upon failure (i.e. bad guy with proper ID but nothing to flag him)?

  11. Fraud Guy says:

    You also have to recall that the main driver for requiring an ID to match the ticketed customer is for airlines to prevent resales of tickets. By requiring only the matching customer to use the ticket, consumers cannot resell tickets they cannot cancel, and/or avoid onerous rebooking fees imposed by the airlines.

  12. Fraud Guy says:

    You also have to recall that the main driver for requiring an ID to match the ticketed customer is for airlines to prevent resales of tickets. By requiring only the matching customer to use the ticket, consumers cannot resell tickets they cannot cancel, and/or avoid onerous rebooking fees imposed by the airlines.

  13. Fraud Guy says:

    You also have to recall that the main driver for requiring an ID to match the ticketed customer is for airlines to prevent resales of tickets. By requiring only the matching customer to use the ticket, consumers cannot resell tickets they cannot cancel, and/or avoid onerous rebooking fees imposed by the airlines.

  14. vontrapp says:

    To the assassination and frivolous tax filings:

    Daniels point is that this new rule is discretionary. Laws about taxes and assassinations are not discretionary. It doesn’t matter if you are making a political statement or expressing yourself with either of these. You do it, you’re in trouble. Cut and dry. The airport rule is like saying “oh, you just killed that president because you didn’t like his face? your fine. You killed that president as an act of expression and a political statement?! You foul dissenter! Hands behind your back!”

  15. The mere fact that I’m not allowed to walk up to the ticket counter, purchase a ticket with cash, and then fly within the country without presenting identity papers is frightening. Yes, in such a scenario a person should be subject to secondary screening. But it is amazing to me that we think the ID requirements are either especially useful or ok. Mostly they are a way of eliminating the secondary market for plane tickets.

  16. Maybe I missed something, but how can the TSA tell the difference?

    Say I conscientiously object to presenting my walking papers. I’ve got my state-issued driver’s license right in my back pocket, but I don’t want to show it to the nice man with the Taser. Instead I tell him I was robbed while in New Orleans (almost certainly true, anyhow). How can he tell the difference? Is it just up to his own discretion whether I’m lying or not? Can he, on his own, keep me from flying based only on his hunch?

  17. @vontrapp – The law about FRIVOLOUS tax returns is also discretionary.

    I think some of the above comments are not considering the “assist” part. As in it’s not:

    TSA: ID?

    Passenger: I lost it.

    TSA: Oh, you are cooperative. You are not wilful, I can’t think of anything more to do. You can go on.


    TSA: ID?

    Passenger: I don’t have to show you no ID, you Nazi!

    TSA: It’s off to Gitmo for you, this is Amerikkka!

    I assume rather the “lost” case proceeds to some other way of establishing bona-fides.

  18. Seth– good summary above. Your earlier example of political assassination was a bit extreme; one could simply cite having a rooftop rock concert which stops the traffic. Or, as a recent New Yorker cover suggests, you might decide that stripping off *all* your clothes before the security gate is within your First Amendment rights, and it also eases the screeners’ job, but public lewdness laws say otherwise.

    Some of the commenters above wonder why we have ID checks at all, since any determined terrorist can get a clean one.

    In reality, it’s another barrier. Whereas a computer systems protected with weak security can often be cracked by homebrewed code, the average criminal doesn’t have the tools at home to make a fake government-issued ID. It’s easier to get it from someone else, but that starts to leave a trail…

  19. “why do we assume someone refusing to show identification is more of a security risk”

    If you substitute authority with security, you might have the answer.

    Some authorities believe that anyone who fails to cooperate, let alone agree with them, constitutes a higher risk individual. This is because they operate in the most traditional sense of the word and believe cooperation is the key to security — seat-belts on the plane can keep you “secure” while you fly, but only if you let the belts do their job. Nevermind the fallacy of seat-belt security in a frail object traveling at insane speeds laden with explosive fuel. The belt has a job to do.

    Unfortunately, the collision of physical security and logical security values continues to go poorly, especially when the physical security authorities fail to devise a means (or motive) to enable more esoteric forms of freedom like philosophical or political expression.

  20. re: “Nevermind the fallacy of seat-belt security in a frail object traveling at insane speeds laden with explosive fuel.”

    Nevermind turbulence, which can throw you from your seat. (Ali: “Superman don’t need no seatbelt!” Stewardess: “Superman don’t need no airplane, either.”)

  21. Paul Gowder says:

    Seth, Orin, you guys are missing Daniel’s point. His claim isn’t “all political acts should be legal,” it’s “penalties shouldn’t be imposed just because of the political nature of the act.” If the TSA wants to say that *nobody* who fails to show ID can get on a plane, that wouldn’t be a First Amendment violation. But to say that only those who fail to show ID for a political reason are to be punished, that’s patent viewpoint discrimination. So nobody’s claiming a first amendment right not to comply with the rule. THe claim is that there’s a first amendment right not to have a rule enforced on oneself just because of one’s political position.

  22. What’s being penalized is intent — not intent to express, but intent to disrupt. Somebody who argues the merits of checking government-issued ID’s is not somebody who really wants to fly.

    I offer parallel: Suppose you wish to give testimony at a legislative session, and are granted time. But if you want more time, and you raise a hue and cry about that, the sergeant-at-arms will still eject you.

  23. Paul – “the TSA wants to say that *nobody* who fails to show ID can get on a plane, that wouldn’t be a First Amendment violation” – but that’s not workable. I’m beginning to think that language translation of regulations e.g. Spanish or Mandarin Chinese, should also include Geek. Something like “The ID regulation allows for multiple ways of passing it. The most common case is presenting an ID card. The card is not an if-and-only-if. It is merely a simple situation. No matter what you think of the TSA and government in general, we’re not utter morons. We deal with zillions of travellers. We know people lose their ID’s or get them stolen. You don’t need to explain that to us. If you can’t go through the ID-card case, we use a different case, which involves talking to you. If you don’t want to talk to us, because it’s against your religion or your political beliefs, you can’t use that objection to override the ID regulation.”

    I think the claim of “fail to show ID for a political reason are to be punished” is playing the game of deeming not complying with the ID regulation as “political” and then trying to say the First Amendment means the ID regulation can’t be valid. While there’s certainly a big potential for abusive enforcement (e.g. Flying While Black) I don’t think that sort of reasoning works, either logically or according the law. As I wrote above, the false reasoning chain seems to be:

    1) Present-ID-card would be a theoretically OK regulation

    2) But lots of people lose their ID cards for valid reasons

    3) So present-ID-card by itself doesn’t work in the real world

    4) But talking is “political”, if you object to talking to the TSA at all

    5) WIN! Does-not-compute. ID-regulation is circumvented by real-world + 1st Am

    [6) We geeks are so smart - nobody else could ever think of this clever hack]

    Step #4 is the fallacy.

  24. Paul Gowder says:

    Seth, I’m not sure your reading of the regulation is quite right though — it’s not written clearly enough to be sure that talking really gets you out of punishment. Consider two cases:

    1. I have a political objection to carrying my ID, so I willfully leave it at home. And then when I get to the airport, I am perfectly cooperative. Suppose, for example, I talk to the TSA folks — give them my name, explain that I deliberately left my ID at home because I oppose the law, but do whatever else within reason they ask me to do to verify my identity.

    2. I’ve lost my ID. And then when I get to the airport, I am perfectly cooperative. Suppose, for example, I talk to the TSA folks — give them my name, explain that lost my ID, but do whatever else within reason they ask me to do to verify my identity.

    I think on your reading, those two cases are treated the same way. If that’s so, I’d agree that the case for a first amendment problem is weaker (although not completely gone — but that’s a whole ‘nother discussion).

    But the text is amenable to multiple readings, because the internal logic is inconsistent. By paragraph and sentence:

    p1s1: *Willful* failure to show ID is what’s punished.

    p1s2: No, actually, it’s willful failure to show ID or talk.

    p2s1: No, actually, it all depends on whether or not you’ve both a) misplaced, lost, or “otherwise do not have” ID, and b) you’re “cooperative.”

    p2s1 is where the trouble comes in. Does “otherwise do not have” include having “willfully” left it at home? If not, then p2s1 contradicts p1s2, and my two cases above are treated differently. Similarly, does being “cooperative” include bringing your ID if you have it, and not mouthing off at the cop about your political views (even if you help them ascertain your identity by other means)? If so, then, again, the two cases are treated differently. In either case, it looks a lot more political.

  25. Mr. Gowder’s last comment seems to lay the logical structure out nicely. However, I still don’t see how this protocol deals with the possibility of liars. Does the protocol assume that everyone is telling the truth about having lost their ID? Does it leave that up to the discretion of the individual TSA agent? Something in between?

  26. Paul: I read the passage above as logical in terms of summary-elaboration-faq

    As in:

    p1s1: *Willful* failure to show ID is what’s punished.

    [Yes, summary]

    p1s2: No, actually, it’s willful failure to show ID or talk.

    [Disagree here - this sentence is *defining* what is "willful", clarifying it mean not showing ID and refusing to assist ]

    p2s1: No, actually, it all depends on whether or not you’ve both …

    [I think they're answering an obvious question here - what if I lost my ID?]

    That is, p1s1 is a summary, p1s2 is a definition, p2s1 is a faq-answer.

    As I read this strictly, I’d say your case of deliberately leaving ID home but cooperating would still be OK. HOWEVER, I’d also say it requires enough detail knowledge that finding a low-level TSA agent who reacted wrongly wouldn’t strike me as a proof this is all about political repression. For example, there’s police officers who would arrest a protestor for writing down their badge numbers, under the charge of “interfering with an officer” – but I don’t think that charge was designed to make it impossible for a protestor to write down police badge numbers.

  27. claire says:

    I don’t think it’s necessarily unconstitutional for the reasons you’ve described, but I DO think it’s unconstitutionally vague. What do they mean by alternative ways of ascertaining your identity? Whose call is it as to what cooperative is? Is it not be rude, or do we have to apologize?

  28. question says:

    Has anybody noticed that the “new regulations” are a press release? We don’t actually know what the REAL new regs are, because they are secret laws!

    The Hiibel case said that if a state passes a law (through its legislature) that demands a name of suspects, and if a cop has probable cause to suspect you of a crime, and if the cop asks your name, then he can arrest you if you don’t answer. It doesn’t say that cops can demand a document of any sort. It doesn’t say that cops can demand a name of people who are NOT suspected of crimes. And it doesn’t say anything about secret regulations that legislatures never passed.

    The Fourth and Fifth amendments mean that you don’t have to help the government search yourself. You are free to stand mute when they ask you “behavioral profile” questions. What’s the rule for people who stand mute? Do they get to fly or not? If they don’t, then the rule violates our right to avoid self-incrimination.

    The only way our jailers can actually lock us down is with our own cooperation. Here TSA is saying, we won’t let you fly unless you cooperate. Only lemmings need apply.

  29. In response “question” above:

    Alright, let’s go back to Terry:

    “Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person within the meaning of the Fourth Amendment.”

    This makes our airport case simple. If you are asked for an ID at the security gate, you are not restrained. You are free to walk away.

    In his comment above, Dan didn’t think this was a fourth amendment issue, either.

    Regarding the first amendment, I’ve done a little reading, and was surprised no one here mentioned the court-sanctioned free speech limits on time, place, and manner. Under the above logic, should we as a society grant first amendment protection to you express your opinion against *any* law or regulation by refusing to follow it? We grant you due process to argue that all you want– just not at the security gate while others are waiting to get through.

  30. jay says:

    How has TSA not kept you safe, would you rather fly on a airplane that has not been screened. Should the whole process be done away with. You can always drive, walk, ride your bike, go by horseback, take the bus, or find any other means of transportation you find more accommodating. Traveling by air is not a right it is a privilege and what TSA is trying to do is to put another layer of security in their process to make those who want to follow a simple and pains free process able to feel safe about their flying experience. Why is it so difficult to produce your ID, It is a very simple procedure. I do not have any problem with following the rules. What is so difficult about following the rules. I would bet that you would rather live in a lawless country where you can do what ever YOU WANT TO DO, Make YOUR Own rules that apply ONLY to YOU and not care about society as a whole.

  31. Alan says:

    The TSA’s blog actually seems to clarify several of these questions —

    “Does that mean that if you lose your wallet in the cab on the way to the airport you’re going to have to walk home?

    Absolutely not…this rule is solely focused on the passenger who simply will not provide ID or help us establish their identity….”

    “And for all the legal eagles out there, it is my constitutional right to fly without ID.

    Under the law that created TSA, the Aviation and Transportation Security Act, the TSA administrator is responsible for overseeing aviation security (P.L. 107-71) and has the authority to establish security procedures at airports (49 C.F.R. § 1540.107). Passengers who fail to comply with security procedures may be prohibited from entering the secure area of airports to catch their flight (49 C.F.R. § 1540.105(a)(2). Additionally, in Gilmore v. Gonzalez, 435 F.3d 1125 (9th Cir. 2006) the Ninth Circuit Court of Appeals rejected the plaintiff’s constitutional challenges to a passenger identification policy.”

  32. ParatrooperJJ says:

    My question is, when was the new rule published in the federal register for public comment?

  33. Jake says:

    It is just a matter of time when your Grand children’s children will ask you,WHAT WAS THE BILL OF RIGHTS? Just read what happened in Germany after world war 1 the high courts and supposedly educated men sitting on these courts abdicated the just laws of their country.All so a one side party would have control of a selective enforcement of law.

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