“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.”

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.

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.

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.

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.

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.

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.

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

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.

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…

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.

versus:

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.

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?

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!”