Tag: TSA

Is the REAL ID Revival Bill, “PASS ID,” a National ID?

With the move in the Senate to revive our moribund national ID law, the REAL ID Act, under the name “PASS ID,” it’s important to look at whether we’re still dealing with a national ID law. My assessment is that we are.

First, PASS ID is modeled directly on REAL ID. The structure and major provisions of the two bills are the same. Just like REAL ID, PASS ID sets national standards for identity cards and drivers’ licenses, withholding federal recognition if they are not met.

There is no precise definition of a national identification card or system, of course, but its elements are relatively easy to identify.

First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID and PASS ID have the exact same purpose - to create a nationally uniform identity system.

Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using a card, this presses it into the national ID category.

Neither REAL ID nor PASS ID directly mandate carrying a card. Doing so would be too obviously a national ID system, and politically unpalatable. But both seek to take advantage of the state driver licensing system, and they do that for a reason: Carrying a driver’s license is a practical requirement in most parts of the country, where the automobile reigns supreme as the mode of travel.

But maybe states would decline to participate. Nothing in the PASS ID Act directly requires states to implement the system, and they are entirely free to issue non-compliant licenses and ID cards. But this was also true of REAL ID - because of the constitutional rule that the federal government cannot commandeer the organs of state government. (The case is New York v. United States.)

What both REAL ID and PASS ID do is make it difficult for state residents to function without their nationally standardized ID. They both require the nationally standardized ID to enter federal facilities (perhaps fewer of them under PASS ID), to access nuclear power plants, and to board aircraft.

But the PASS ID bill has specific language saying that a person can’t be denied boarding because they don’t have a national ID. Isn’t that an improvement? It sounds like it, but that language simply restates the rules that exist under REAL ID.

The TSA has never been able to deny people boarding because they don’t have an ID. (Many people have traveled without ID to prove the point.)

What the Department of Homeland Security does is make it really inconvenient to travel without showing ID. Not having your national ID can put you into a long secondary-search delay. And a year ago, the Transportation Security Administration created a new rule allowing them to turn travelers away if they “willingly” refuse to show ID and don’t “assist transportation security officers in ascertaining their identity.”

What this means is that people not showing ID have to answer questions about themselves for a TSA background check - a background check that has included political party affiliation. In other words, you either participate in the national ID system run by states, or you participate in the cardless national ID system that the TSA runs. (The TSA was storing information about who traveled without ID until it got caught.)

The rules are no different between REAL ID and the REAL ID revival bill, PASS ID. You don’t have to carry a national ID to get through the airport, but woe to the person who tries to exercise that freedom.

In addition, the plan under PASS ID is for the federal government to pay states a lot more money for implementation. Cost concerns were a real impediment to REAL ID, and the (false) promise of federal funds is designed to draw states into issuing nationally standard IDs for all their residents.

On balance, REAL ID and PASS ID are peas in a pod. They are both aimed at being practically required. The plan under both is for everyone who has a driver’s license to have a nationally standardized, REAL-ID-type license.

The final “element” of a national ID is that it is used for identification. A national ID card or system shows that a physical person identified previously to a government is the one presenting him- or herself on later occasions. (A Social Security Number is a national identifier, but it is not a national identifiction system because there is no biometric tie between the number and a person.)

REAL ID and PASS ID both subject every applicant for a license to “mandatory facial image capture.” They both put a “digital photograph of the person” on the card. They are most definitely about identification.

Are we still talking about a national ID? REAL ID and the REAL ID revival bill, “PASS ID,” are structured the same. They have no differences in terms of their aim - to create a national ID.

It’s certainly unusual that members of the Senate who formerly appeared to oppose a national ID would reverse course. I’ll spend more time on the politics, of course, and delve into many other issues in future posts.

House Votes against “Strip-Search” Machines

Yesterday the House adopted an amendment to the Transportation Security Administration Authorization Act that would prohibit the TSA from using Whole Body-Imaging machines for primary screening at airports and require the TSA to give passengers the option of a pat-down search in place of going through a WBI machine, among other things.

You can read the amendment here, and the roll call vote will soon be up here. Use it to decide whether to cheer or jeer your member of Congress.

More on strip-search machines here, here, and here.

It Is a Checkpoint, After All

The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.

The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.

Tightening the Noose Around the Right to Travel

Ask anyone who has experienced life in a country where freedom of movement is not recognized, and you’ll come away impressed with the importance of having the right to travel. That right takes another step back in the United States today.

Today the federal government takes over from airlines the process of running passengers against its terrorist watch lists. This means that when you fly, the Transportation Security Administration now requires airlines to give the government your full name, your itinerary, your date of birth, your gender, and an optional “redress number.”

Running names against watch lists does not secure against even modestly sophisticated attackers — 17 of 19 9/11 hijackers were “clean skin” terrorists, without histories of activity that would get them on watch lists. And in 2002, an MIT study (the “Carnival Booth”) showed how passenger profiling failed as a security measure. Attackers could “step right up” and test the system on dry runs to see if it singles them out. The same applies to watch listing.

Transferring responsibility for checking watch lists is a small step, but it brings into sharp focus that the government is now pre-screening Americans’ travel and travel plans.

There is no telling which direction this mission will creep over time. In the event of an attack on some other mode of travel — even a small or failed attack — expect the government to extend pre-approval for travel in that direction. The government will soon discover that it can run names of travelers past other lists — first dangerous wanted criminals, then wanted criminals, then “deadbeat dads,” and on down the line to people with unpaid parking tickets.

With government officials pushing fear of disease to the level of mania, watch for medical records to be used in government pre-screening of travelers.

The current policy is to retain information about travelers for no more than seven days after each leg of a trip has been completed. If a person is a suspected match, TSA will retain the information concerning that potential match for seven years. If the potential match is confirmed, TSA will retain the confirmed match for 99 years.

Seven years is already a lot for people who just happen to have a name similar to a name on the burgeoning terror watch list. But the policy is likely to change too, and deep dossiers of Americans’ travel will grow.

Remember, again, that watch listing is security theater. It looks like it protects air travel, but it doesn’t. When you are prescreened for travel by the government — as this program saps your freedom to travel — you are giving up something for nothing.

Limiting the TSA’s Use of “Strip Search Machines”

I wrote here in February about the push and pull over “strip search machines,” also known as “whole-body imaging” and “millimeter wave scanning.”

The question is joined: How do you maintain privacy with a technology that’s fundamentally intrusive? Maybe by using it less. This week, Rep. Jason Chaffetz (R-UT) introduced a bill to limit the use of whole-body imaging.

H.R. 2027, the Aircraft Passenger Whole-Body Imaging Limitations Act of 2009, would place several limits:

  • Whole-body imaging could not be the sole or primary method of screening a passenger, and it could only be used as a follow-up to other methods like metal detection.
  • Passengers would have the right to opt for a pat-down search instead of whole-body imaging.
  • Passengers subject to whole-body imaging would have to be provided information about the technology and the images it generates, on privacy policies, and the right to have the pat-down search instead.
  • Images of passengers generated by whole-body imaging technology could not be stored, transferred, shared, or copied in any form after the passenger has passed through the security system.

Most of these protections are already TSA policy, but agency policies are relatively easy to change compared to federal law. Without limitations like this, these machines are on the natural, mission-creepy path to becoming mandatory.

Rules, of course, were made to be broken, and it’s only a matter of time — federal law or not — before TSA agents without proper supervision find a way to capture images contrary to policy. (Agent in secure area guides Hollywood starlet to strip search machine, sends SMS message to image reviewer, who takes camera-phone snap. TMZ devotes a week to the story, and the ensuing investigation reveals that this has been happening at airports throughout the country to hundreds of women travelers.)

So this bill is a step forward, but from a very backwards position. Ultimately, as I wrote before, the solution is to return responsibility for security to the airlines and airports, who are most interested in and capable of balancing all the factors that go into safe travel, including passengers’ privacy, comfort, and peace of mind.