Monday, July 21, 2008

Problems with new TSA id procedures


In a series of posts in their blog, the TSA has expanded on its
claimed authority for the changes to "ID verificationprocedures"
announced in a press release last month.

Lawmaking by press release exemplifies the evils of "secret law" which
the Supreme Court declined to consider in Gilmore v. Gonzalez. The TSA
now says that, "Our position is that Gilmore v. Gonzalez affirmed our
ability to require ID for transportation via air and the law that
formed TSA, the Aviation and Transportation Security Act (ATSA)
empowers the TSA to make these decisions."

In fact:

1. The 9th Circuit Court of Appeals in Gilmore v. Gonzalez reached
its decision without addressing whether it would have been permissible
for the airline or the TSA (or anyone else) to require Mr. Gilmore to
show evidence of his identity, or to prevent him from travelling if he
failed to do so. The court found that, as of that time and in that
particular case, Mr. Gilmore could have flown without showing ID.
2. The section of the statute cited by the TSA in its press release
and blog grants the TSA authority to issue certain regulations. But
such regulations must be issued in a particular way, published in the
Federal Register for comment, etc. Whatever they have done in secret,
the TSA has not, in fact, issued any actual "regulations" requiring
would-be passengers to display evidence of their identity, or to
answer questions related to their identity.
3. If the TSA were to promulgate such regulations, they would
exceed the authority granted by the statute cited by the TSA, which
defines TSA authority to limit access to "sterile" areas in airports
as limited to screening for weapons, explosives, and incendiaries —
not absent or unsatisfactory evidence of identity.
4. Finally, any statute purporting to grant the TSA such authority
— were one to be enacted, which it hasn't been — would have to pass
muster under both Constitutional and international human rights treaty

So the question isn't what authority the TSA has to issue regulations
for screening, but what authority they have to compel answers to
questions, to compel production of documentary evidence, or to prevent
or delay people from travelling, in the absence of regulations or
statutory authority for such actions.

But that's not all. The TSA's new "procedures" may violate several other laws:

1. Pursuant to the Regulatory Flexibility Act, an agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by the Office of Management and Budget
following publication of the proposal for the information collection
in the Federal Register, and an opportunity for public comment. We
haven't seen any OMB control number on any TSA signs requesting the
collection of either ticket or identity document information, and we
can find no record of any Federal Register notice of a TSA proposal to
collect either sort of information from travellers. If the TSA asks
you to complete any sort of ticket or identity verification form, look
for the OMB control number. If there is one, let us know what it is.
(We'd love to see a copy of the actual form as well.) If there's no
OMB control number, politely remind the TSA that they aren't allowed
to collect this information, and you aren't required to provide it.
2. Under the Privacy Act, it is a crime for a Federal employee to
operate a system of records without providing notice — both in a
System of Records Notice in the Federal Register, and when requesting
information from individuals — of the authority for the system and the
ways the information will be used. We haven't seen any Privacy Act
notices being provided to travellers when they are asked to show their
tickets and identity documents, and we can't find any record of a SORN
in the Federal Register for any system of records of tickets or
passenger ID for domestic flights within the US. If this information
is to be recorded, ask to see a Privacy Act notice for what system it
will be stored in and how it will be used. (if you can get one, please
send us a copy of this notice.) And remind the TSA politely that
anyone who is storing it without such a published notice is committing
a Federal crime.
3. The TSA has admitted in their blog that they are using "public
source" information about would-be travellers to determine whether to
allow them to fly. But under Section 513 of the Consolidated
Appropriations Act, 2007 (P.L. 110-161, H.R. 2764), "(d) … (a), no
information gathered from passengers, foreign or domestic air
carriers, or reservation systems may be used to screen aviation
passengers, or delay or deny boarding to such passengers, except in
instances where passenger names are matched to a Government watch
list." It's unclear if the new TSA identity verification procedures
are limited to passengers whose names match those on watch lists, but
it seems unlikely. So if you are stopped or delayed by the TSA, on the
basis of the information you have provided (including on the basis of
that infomation being nonexistent because you decline to provide it,
as any attorney would probably advise you to decline to do), remind
the TSA that they are forbidden by law from taking any such action
without an actual match of your name with a watch list.
4. Perhaps most importantly, Section 513 of the Consolidated
Appropriations Act, 2007 (P.L. 110-161, H.R. 2764), also provides
that, "(f) None of the funds provided in this or any other Act may be
used for data or a database that is obtained from or remains under the
control of a non-Federal entity". It's unclear what exactly the TSA
means by "public source" identity verification data, but if that data
comes from a commercial source — as it likely does — and if the TSA
has paid for it — as they likely have — they are breaking the law.
(For what it's worth, this is a slightly different sub-section of the
latest version of the same law the TSA violated, and continues to
violate, by operating their Automated Targeting System for
international travel.)

We look forward to the TSA's response to our FOIA request for more
information about what the TSA is up to with this illegal scheme.

Everything is fair game to the feds to verify your identity at the airport


Panic, embarrassment and shock.

When Julie Brown lost her wallet shortly before she was to fly from
Kansas City to Columbus, Ohio, she didn't know what to do.

While passing through Lawrence on her way to Kansas City from Topeka,
Brown misplaced her wallet at a gasoline station as she was filling
up. Despite a frantic search and filing a report with the Lawrence
Police Department, the Columbus resident went to Kansas City
International Airport with no proof of identification.

"At first, I thought, 'Oh my God, I'm going to have to drive my rental
car all the way to Columbus,' " she said. But then, "I thought to
myself, 'I'm not the first person in the world to have done this.'"

Acting on advice from employees at the Transportation Security
Administration, Brown arrived to the airport two hours early, ready to
state her case and to be rigorously questioned.

When a flight agent refused to issue a boarding pass, Brown pleaded
with her. She was finally issued a boarding pass.

"I was shocked that they just handed it over to me," she said.

Security measures

But they did, and the bottom line is that not having identification
doesn't mean travelers will be barred from flying, said Brandy King, a
spokeswoman for Southwest Airlines.

"We will do what we have to, to get you on the plane," King said. "If
you have your name and your flight number, then (agents) pull it up to
make sure you have a reservation for that flight."

King said it was also important to bring the record locator number
that airlines use to confirm reservations.

Brown's ordeal didn't end until more than an hour later, shortly
before her flight took off. She was required to fill out a form, which
TSA agents compared to public records to verify her identity; the Ohio
Department of Motor Vehicles provided a photo of her; and she was
questioned about everything from her trip to her family. Agents also
reviewed a tax return she was carrying.

Brown's story is reminiscent of many travelers' frantic foibles at the
airport. But it's not unique, and TSA has protocols to deal with
travelers who lack proper identification.

"I think most people are accustomed to presenting a photo ID with
their boarding pass," said Carrie Harmon, a TSA spokeswoman. "If an
individual does not have identification, we have always had a
procedure in place to give those people extra security."

Identity matters

A new rule, enacted June 21, prohibits people who willfully lack an ID
from receiving a boarding pass. But if you happen to lose your ID, or
leave it at home, there is still a chance to get a boarding pass.

"We believe that identity matters, so we've taken several steps over
the last year to streamline the process of identifying an individual
before they get on the airplane," Harmon said.

In the event of a lost ID, travelers had better plan.

Harmon said to arrive several hours in advance, and be prepared for
questioning that will prove your identity. Travelers can be subject to
further pat-downs by TSA agents, luggage examination and may even have
to speak with behavioral specialists.

But before travelers even make it to security, they have to get their
boarding pass from airline flight agents.

King said there is no set protocol for airlines to deal with
passengers who don't have identification; they are dealt with on a
case-by-case basis.

And if you're checking bags? Not to worry, King said.

"Every bag goes through an intense screening," she said. Each bag is
searched to ensure its owners are accounted for, part of security
measures enacted after 9/11.

"The key to this is communication," Harmon said. "To tell the security
screening officer that you've lost your ID, but you're willing to
cooperate to verify your ID."

For Brown, it was an experience she'll not likely forget, but it could
have been worse.

"It was traumatic," she said. "But it was also not as hard as I thought."