Will you really need a "Real-ID" to fly?

There’s been a lot of confusion in the last few weeks as to (1) whether the USA Federal “Real-ID Act” will change the requirements for personal identification documents for airline passengers in the USA, and (2) if and when the Real-ID Act is fully implemented, will it be impossible to fly without showing a government-issued “Real-ID” document?

Now that the final rules for implementation of the Real-ID Act have been published, those questions can be answered simply and definitively: No, and no.

No publicly-disclosed USA Federal law or regulation currently requires domestic USA airline passengers to present any sort of evidence of their identity. If you have a valid ticket and comply with their general rules, airlines are required by Federal law to transport you, regardless of whether you have any identification papers (government-issued, “Real-ID” compliant, or otherwise). The Real-ID Act and its rules will not change any of this. You will still have a right to fly without ID, even under the Real-ID rules newly announced by the USA Department of Homeland Security (DHS).

There are other pending rules which, if they are allowed to go into effect, will require both government-issued papers and permission for international travel to and from the USA, beginning this month. And the proposed Secure Flight scheme would extend those papers-and-permission requirements to domestic air travel within the USA. Those are significant, and call for immediate litigation and ongoing refusal to comply with illegal orders. But those are all separate from the Real-ID Act.

Much of the confusion about the Real-ID Act and air travel has come from misunderstandings of the current rules, and from imprecise reporting about the proposed Real-ID Act regulations.

According to many news reports, residents of states that don’t “choose” to comply with the Real-ID Act (essentially a set of Federal specifications for a distributed system of state-issued but integrated and nationally linked ID cards and personal information databases) would not be “allowed” to travel by air in the USA.

To his credit, Secretary of Homeland Security Chertoff has been narrowly precise and accurate in describing the implications of the proposed Real-ID rules. In his statements during the press conference announcing the rules, Chertoff himself was very careful not to say that anyone would be prevented from travelling by air if they didn’t have Real-ID compliant papers, or didn’t have any identification papers at all.

Chertoff spoke of inability or unwillingness to present Real-ID compliant identity documents at a USA Transpoortation Security Administration (TSA) checkpoint only as a factor in selection for more intrusive “secondary screening”, not as a factor in whether the TSA would assert, or attempt to act on, a claim of authority to prevent you from flying:

Question: And can you tell me exactly what’s going to happen on May 2008 at airports across the country?

Secretary Chertoff: … If a state were to opt out of this, then their license would no longer, as a matter of law, be accepted as identification for getting on an airplane. That means people from that state would have to come up with a different form of identification, or they might find themselves in secondary, because when people come without proper identification and they want to fly, they do wind up going into secondary and getting questioned.

The final rules for implementation of the Real-ID Act, as published in the Federal Register 29 January 2008, are consistent with Chertoff’s statements at the press conference: The Real-ID rules say nothing about any requirement to show TSA or DHS agents or anyone else any ID documents, or obtain government permission, in order to fly,

The only mention of air travel in the rules is the inclusion of “boarding aircraft” among the “Federal purposes” for which only Real-ID compliant documents will be accepted. The key to understanding what this really means is that — under current rules for domestic flights within the USA — the only “Federal purpose” related to boarding aircraft, in which ID documents play a role, is the purpose of determining whether a would-be passenger is “selected” for secondary screening. So it’s only the likelihood of being selected for more intrusive search and/or interrogation, not the ability to fly, that would be affected by whether states comply with the Real-ID Act rules.

The actual rules for who the TSA and DHS “permit” to travel are secret, as are the rules for who is selected for secondary screening. But in the case of Gilmore vs. Gonzales the 9th Circuit Court of Appeals reviewed (portions of?) those rules in secret, and based its legal opinion on its factual conclusion that even the secret rules did not actually require any ID in order to board domestic airline flights within the USA.

Because the court found in Gilmore vs. Gonzales that the then-current rules didn’t require ID documents for domestic flights, it didn’t address the question of whether it would be legal to change the rules to impose such a requirement, or whether rules requiring government-issued papers or permission — such as those being implemented this month for international travel, and proposed for domestic flights as part of the TSA and DHS Secure Flight scheme) are consistent with Federal laws, the Constitution, or international human rights treaties protecting the right to travel. Those issues remain for future lawsuits.

Neither in his press conference announcing the “final” Real-ID rules nor anywhere else (so far as I can tell) has Chertoff himself said specifically that the Real-ID Act, or the regulations his agency has issued to implement it, would actually require ID to fly. But as of today (3 February 2008) the TSA Web site, for which Chertoff is ultimately responsible, still says unambiguously:

You must present a Boarding Pass and a Photo ID to get to the checkpoint and to your gate.

And Chertoff has has done as much as he can to contribute to this misimpression without himself telling a direct lie.

For example, in an op-ed column about the Real-ID Act in the San Jose Mercury News on 16 January 2008, Chertoff asked rhetorically, “Should airlines let passengers on board without validating their identity?” The implication, or course, was that the Real-ID Act would require them to do so. In fact, it would not, as I’ve just discussed. And another Federal law, the Airline Deregulation Act of 1978, under which all airlines operating in the USA are licensed, requires them to operate as “common carriers”. As such, they are required to transport all passengers paying the fare and complying with the general conditions of carriage specified in their published tariff. It would be a serious Federal offense for them to “reserve the right to refuse service”, pick and choose which would-be customers to accept, or refuse passage to would-be travellers for any other reasons.

So why are Chertoff and his minions sowing confusion about their own rules? Possible explanations include incompetence, negligence, or laziness. But I don’t think Chertoff himself is that stupid.

The most obvious explanation is that they want to use the implied (but legally and factually empty) threat of denial of air travel to intimidate states into “voluntarily” complying with the Real-ID Act and its rules, and participating in its distributed national-ID system. An even more ominous possibility, though, is that Chertoff, the DHS, and the TSA (1) want to control who they allow to travel through a two-part papers and permission system, (2) know they have no legal authority to do so, and therefore (3) are trying to implement a de facto system to achieve the same functional effect, illegally, through the back door of a propaganda campaign to deceive the travelling public into thinking that the TSA and DHS already have the legal power to demand papers, block passage by those who don’t have or won’t show them, and control to whom they “choose” to grant or dent permission to travel.

Ominous developments for a police force already operating according to secret rules, and for the former prosecutor who heads those secret police.

[Update from the Identity Project, 31 March 2008: ID Still Not Required To Fly ]