Tag: TSA

Review of the Big REAL ID Hearing

The Senate Homeland Security and Governmental Affairs Committee held a hearing yesterday on the REAL ID Act and the REAL ID revival bill, known as PASS ID. I attended and want to share with you some highlights.

Good News!

Little good came from the hearing, as it was primarily focused on how to get the states and people to accept a national ID. But there is some good news.

First, Department of Homeland Security Secretary Janet Napolitano declared REAL ID dead (much as I did in my testimony two-plus years ago). “DOA” is how she referred to it.

She also said that no state will be in compliance with REAL ID by the current December 31, 2009 deadline. This is important because a lot of people think that states doing anything about the security of drivers’ licenses and ID cards are complying with REAL ID.

Another highlight was the commentary of Senator Roland Burris (D-IL). He is a beleaguered outsider to the Senate and evidently wasn’t coached on the talking points around REAL ID and PASS ID. So he flat out asked why we shouldn’t just have “a national ID.”

Senator Susan Collins’ (R-ME) nervous smile was particularly noticeable when Burris asked why the emperor had no clothes. No one was supposed to talk about national IDs at this hearing! But that’s what PASS ID is.

REAL ID and PASS ID are two versions of the same national ID system, and nobody is denying it. That’s good news because the effort to rebrand REAL ID through PASS ID has failed.

A Fake Crisis

Some other issue-framing is worth pointing out. Chairman Lieberman and Secretary Napolitano took pains to point out the importance of acting on PASS ID soon, claiming that the TSA would have to seriously inconvenience travelers with secondary searches at the end of the year if nothing was done.

But this is the same “crisis” that the DHS navigated a little over a year ago. States across the country were refusing to implement REAL ID. The DHS Secretary rattled his saber about inconveniencing travelers. And the DHS Secretary ended up giving all states a deadline extension. Secretary Napolitano will do the same thing if PASS ID fails - saber-rattling included. There is no crisis.

Vermont Governor Jim Douglas Supports a National ID

As I noted above, PASS ID is a national ID, just like REAL ID.

By testifying in support of PASS ID, Vermont governor Jim Douglas (R) put himself on record as supporting a U.S. national ID. He can pretend it’s not a national ID, of course, and he did his best to paper over the issue when Senator Burris asked about it. But Governor Douglas supports a national ID.

There was a time when Republicans stood for resisting federal incursions on state power. In the 104th Congress, the Senate Judiciary Committee had a subcommittee that focused on federalism and the preservation of state power (the Subcommittee on the Constitution, Federalism, and Property Rights). But the National Governors Association, with Douglas at the helm, is now in the process of negotiating the sale of state power over driver licensing and identification policy to the federal government.

Rampant Security Ignorance

The reason why he supports this national ID law, Governor Douglas said, is that he, like every governor, “is a security governor.”

With so many Senators and panelists conjuring security and the 9/11 Commission report, it would be a delight if someone actually examined the security benefits of a national ID. The information is there for them. Again, my testimony to the committee two years ago supplied at least some. Then, I said, “Implementation of REAL ID would impose more costs on our society than it would provide in security or other benefits,” and I articulated how and why a national ID fails to secure.

But Senator Lieberman said he “assumes” REAL ID provides national security benefits. Assumes? He and his staff apparently haven’t familiarized themselves with the level of national security that a national ID would create, taking into account the counterattacks and complications of such a system.

Five years after the vaunted 9/11 Commission report - and the three-quarters of a page it devoted to identity security - Senator Lieberman, the chairman of a committee dealing with domestic security, has yet to look into the merits.

In case Senator Lieberman needs some help …

I’m So Sick of the 9/11 Commission Report!

Speaking of the 9/11 Commission, it has been five years since that report came out, and people continue to parrot the line that REAL ID was a “key 9/11 Commission recommendation.”

The 9/11 Commission dedicated three-quarters of a page to the question of identity security, out of 400+ substantive pages. Its entire treatment of the subject is on page 390.

The 9/11 Commission did not articulate how a national ID system would defeat future terror attacks. It did not even articulate how a national ID would have defeated the 9/11 attacks had it been in place. A minor shift in behavior by the 9/11 attackers, such as using their passports to board planes, would have defeated REAL ID and PASS ID, were we somehow allowed “do-overs.”

We are not allowed “do-overs,” and the problem we face is not 9/11, but securing against current and future threats - including people who might shift their behavior in light of security measures we take.

These shifts in behavior might include taking a few extra steps to get the documentation they need, for access to the country or targets. These shifts in behavior might include attacking targets that do not require documentation. Identity-based security is a Maginot Line.

The 9/11 Commission report was written at a time when little research on identity-based security had been done. It was written by fallible humans who knew little about identity-based security, and who got it wrong. The report is not a religious text.

The report did say something important, though: “For terrorists, travel documents are as important as weapons”! (page 384) It’s a terrific turn of phrase because it shuts down the logic centers in the brain - eek, terrorists! - and ends the discussion.

The “travel documents” the report was talking about, though, were passports and visas, not drivers’ licenses and birth certificates - the things foreign terrorists use to get into the country. If we’re going to turn the driver’s license into an internal passport - and TSA checkpoints are the beginning of such a policy - then perhaps these are travel documents. Just, please, Secretary Napolitano, train your TSA agents to not say, “Your papers, please.”

Even as to international travel documents, though, the 9/11 Commission got it wrong. Weapons are the only things as important as weapons. And the 9/11 terrorists didn’t actually use weapons any more substantial than box cutters. They “weaponized” a non-weapon. (Security is complicated, you see.)

Denying terrorists travel documents, drivers’ licenses, and IDs simply presents them some inconveniences - such as using people with no record of terrorism. Seventeen of nineteen 9/11 attackers were unknown to U.S. officials as threats, so it’s obviously not that much of an inconvenience.

Evading identity-based security is so easy. People do it all the time. And it won’t stop under anyone’s version of a national ID. But the 9/11 Commission said … 

Something New to Worry About

Much of the national ID battle happens at the federal level with these national ID laws, of course, but it’s important to realize that federal officials, state officials, companies, and non-profit groups are working to knit together a cradle-to-grave national ID system no matter what happens with REAL ID and PASS ID.

Here’s one worth highlighting: Thirteen states apparently are already scanning, or have scanned, their birth certificates into databases for use in the national ID system. The effort is being led by the National Association for Public Health Statistics and Information Systems in Silver Spring, Maryland. This group will undoubtedly have access to your private health information should federal e-health records be implemented, so you might want to familiarize yourself with them.

Is your state one of them? How many copies of your birth certificate can be found in how many places around the country? You might want to ask your state legislators about that. The future of this effort is to collect biometrics at birth, of course. This is a privacy problem.

But maybe all the privacy concerns have been taken care of. The proponents of REAL/PASS ID found themselves a fig leaf on that score.

Token Cover on Privacy Issues

Ari Schwartz from the Center for Democracy and Technology testified in favor of PASS ID. (Senator Akaka noted in his opening statement that CDT endorses PASS ID.)

He characterized opponents of REAL/PASS ID as wanting to “do nothing.” It’s a classic ploy - but cheaper than we’re used to seeing from Ari and CDT - to mischaracterize opponents as wanting to “do nothing.” As Ari knows well, I have advocated endlessly for a diverse and competitive identification and credentialing system that would provide all the security ID systems can, without government surveillance.

But Ari testified imaginatively about how PASS ID makes a national ID okay. He has concerns with it, of course, yadda yadda yadda - the privacy fig leaf obliged to wear a fig leaf himself.

And this is the unexpected bad news from the hearing. The Center for Democracy and Technology supports having a national ID in the United States.

Many would find this inexplicable, but it’s not. Though the people who work at CDT personally want very much to do the right thing, there are no principles to the organization beside compromise and having a seat at the table (neither of which are actually principles, of course).

CDT plays a wonderful convening role on many issues, and the name of the organization implies that it reconciles technology programs with fundamental societal values. But here it has given political cover to the push for a national ID in the United States. One can’t help wondering if there is anything that would cause CDT to push back from the table and say No.

Making Airline Travel as Unpleasant as Possible

The Transportation Safety Administration long has made air travel as unpleasant as possible without obvious regard to the impact on safety.  Thankfully, the TSA recently dropped the inane procedure of asking to see your boarding pass as you passed through the checkpoint – a few feet away from where you entered the security line, at which point you had shown both your boarding pass and ID. 

However, there are proposals afoot in Congress to set new carry-on luggage restrictions, to be enforced by the TSA, even though they would do nothing to enhance security.  An inch either way on the heighth or width of a bag wouldn’t help any terrorists intent on taking over an airplane.  But the proposed restrictions would inconvenience travelers and allow the airlines to fob off on government what should be their own responsibility for setting luggage standards. 

TSA also has restarted ad hoc inspections of boarding passengers.  At least flights as well as passengers are targeted randomly.  After 9/11 the TSA conducted secondary inspections for every flight.  The process suggested that the initial inspections were unreliable, delayed passengers, and led experienced flyers to game the process.  It was critical to try to hit the front of the line while the inspectors were busy bothering someone else.  There was no full-proof system, but I learned that being first or second in line was particularly dangerous.

Finally TSA dropped the practice.  And, as far as I am aware, no planes were hijacked or terrorist acts committed as a result.  But TSA recently restarted the inspections, though on a random basis.

I had to remember my old lessons last week, when I ran into the routine on my return home from a trip during which I addressed students about liberty.  Luckily I was able to get on board, rather than get stuck as TSA personnel pawed through bags already screened at the security check point.

There’s no fool-proof way to ensure security for air travel.  Unfortunately, it’s a lot easier to inconvenience passengers while only looking like one is ensuring airline security.

TSA Search Overturned

A federal judge just threw out three fake passports discovered by a Transportation Security Agency (TSA) screener, holding that the search exceeded the TSA’s aviation security mission. (H/T Bruce Schneier)

This is long overdue; the TSA has moved beyond its original mandate and is now conducting searches for “contraband.” The search for anything that seems suspicious can quickly turn into an inquisition at the security checkpoint. Campaign for Liberty staffer Steven Bierfeldt experienced this at the St. Louis airport, and is now suing to prevent future searches beyond what is necessary for aviation security.

The invasive searches don’t add much to airline security anyway. Just as GAO investigators consistently defeat security at federal buildings, TSA screeners often fail to find fake explosives on security test teams.

As Bruce Schneier points out in his excellent book, Beyond Fear: Thinking Sensibly About Security in an Uncertain World, the two effective changes in airline security since September 11, 2001 have been (1) hardening of cockpit doors; and (2) airline passengers will resist because they know that their hijackers are playing for keeps.

Schneier spoke at Cato’s two-day conference on counterterrorism in January. Video at the link.

Schneier and Friends on Fixing Airport Security

Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.

The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.

Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.

I prefer principle over pragmatism and would get rid of TSA.

Bierfeldt v. Napolitano Roundup

Back on March 29th, Campaign for Liberty employee Steven Bierfeldt was leaving the Campaign’s regional conference in St. Louis, Missouri. He was carrying $4700 in cash donations and Campaign for Liberty and Ron Paul literature. TSA personnel at the St. Louis airport felt that carrying this amount of cash was “suspicious” and detained him for interrogation. The TSA personnel intended to take Bierfeldt to the local police station for further questioning after he refused to answer the questions associated with their fishing expedition. Luckily, a plainclothes officer arrived and spoke briefly with one of the TSA officers, who told Bierfeldt that he was free to go.

Bierfeldt is now filing suit against Secretary of the Department of Homeland Security Janet Napolitano. The ACLU Blog of Rights has more on the suit, including a digital copy of the complaint. Filing suit to prove that “[c]arrying $4700 in cash poses no conceivable threat to flight safety” is a sign that airport screening is going too far.

Bierfeldt was right to be wary of airport screening while carrying Ron Paul and Campaign for Liberty literature. The Missouri Information Analysis Center, one of 70+ “fusion centers” in the nation, had just released its report on domestic terrorism and the militia movement. Libertarians are expressly targeted as potential domestic terrorists:

Political Paraphernalia: Militia members most commonly associate with 3rd party political groups. It is not uncommon for militia members to display Constitutional Party, Campaign for Liberty, or Libertarian material. These members are usually supporters of former Presidential Candidate: Ron Paul, Chuck Baldwin, and Bob Barr.

Cato recently held a forum on this phenomenon, Fusion Centers: Domestic Spying or Sensible Surveillance? My colleague Tim Lynch hosted, and panelists included Bruce Fein, Constitutional Attorney, The Lichfield Group; Harvey Eisenberg, Chief, National Security Section, Office of United States Attorney, District of Maryland; and Michael German, Policy Counsel, American Civil Liberties Union. Audio and video are available at the link.

Mike German has written extensively on this topic. Read his November 2007 report, What’s Wrong with Fusion Centers and July 2008 update. Mike is a former FBI agent and author of the excellent book, Thinking Like a Terrorist.

You can watch Mr. Bierfeldt giving his side of the story to Judge Andrew Napolitano (no relation to Homeland Secretary Janet Napolitano) on Fox’s Freedom Watch.

Judge Napolitano recently spoke at the Cato book forum, Dred Scott’s Revenge: A Legal History of Race and Freedom in America. Co-panelists included my colleague Jason Kuznicki and Reason’s Damon Root.

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.