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."

Friday, June 27, 2008

ACLU Statement on TSA's new ID policy

reposted from

The Transportation Security Administration (TSA) set off a minor firestorm in the blogosphere over its new ID policy, which went into effect this past Saturday. At least one passenger has reported that he was asked which political party he is registered to vote for, as part of TSA's new authentication process.

TSA's new rules relate to passengers who attempt to fly without ID -- itself a relatively rare occurrence. According to TSA, of the 2 million people who fly every day, approximately 300 do not show ID.

Many of these have lost or forgotten their identity documents, but in some cases, these passengers have ID, and refuse to do so, citing their belief that US citizens have the right to travel without showing papers to government agents. The most famous of these activists is John Gilmore, who took his case to the 9th Circuit Court of Appeals back in 2006. While Gilmore lost his case, the court did at least confirm TSA's policies (which had been a secret up until then), which were that passengers could fly without ID if they were willing to undergo a more stringent level of security screening.

Fast forward two years, and TSA has now changed the rules -- In a way that seems to clearly target Gilmore and other activists. Passengers who refuse to show ID citing their rights not to do so will be denied boarding. Passengers who claim to have lost or forgotten their ID, will be permitted to fly, after going through an even more extensive security check than before.

Security experts have blasted TSA's decision as "security theatre" -- that is, a decision done for show, which does nothing to improve security. On the legal front, GW Law Professor Dan Solove has also chimed in, stating that he thinks that the new rules "may run afoul of the First Amendment."

While the new policy just went into effect on Saturday, details of the new security process are already leaking out. One traveler sent a detailed report to the Consumerist blog. Highlights include:

"So you know how the new TSA regulations went into effect yesterday, where you can only fly without ID if you "cooperate" with the TSA? Well, it turns out you also have to take a test about your personal life. They call up a service to administer it, and the last question they asked was which political party am I registered under (I correctly answered "democrat" and they still let me on board)."

"Finally satisfied that I didn't have ID, Laurie took my boarding pass and went away. She came back a few minutes later having photocopied it, and also had an affidavit that she requested I sign. It asked for my name and address, and stated in small print at the bottom that I did not have to fill it out, but if I didn't I couldn't fly. It also said that if I choose to fill it out and then provided false info, I would be in violation of federal law."

After filling out the affidavit, Laurie called a service to verify my address. The service needed me to then correctly answer three questions about myself, which Laurie relayed to me. The first was my date of birth, the second was a previous address (which I only got right on my second try), and the third was "You are registered to vote. Which political party have you registered with?" I got all three right, and only then did Laurie clear me to go through security."

TSA quickly responded to the allegations on its own official blog. TSA head honcho Kip Hawley issued the following statement:

"It's unequivocally not our policy to use political, religious, or other sensitive personal topics as identity validation. If it happened, it was wrong and will not be repeated."

Unlike in other past controversies, this is not one where TSA can merely blame a poorly trained screener or a badly written policy. In this case, the screener relayed the questions to the passenger that were asked by whomever was on the other end of the phone. This may be a private contractor, or it may be TSA's national counter-terrorism ops center. In either case, the problem here is more systemic, and frankly, speaks volumes about the fact that this change in policy was rushed out, with no public comment period.

We applaud TSA for taking rapid action to ensure that no more passengers are asked for their political affiliation. However, we believe that this minor controversy is merely the tip of the iceberg -- and that problems with this new policy may go far deeper. If the TSA is relying on private databases, the same types of databases which are riddled with errors and cause invalid and false information to end up on credit reports, how can this information possibly be used as a reliable security indicator? Furthermore, if the information is publicly available, a terrorist could also look up correct answers to the expected questions before arriving at the airport.

TSA needs to thoroughly re-examine this new ID policy. It needs a full privacy impact assessment (as it has done for other projects) and an opportunity for public comment so that the agency can develop a plan that ensures that due process, privacy, and free speech rights are being properly respected at all levels of the system.

TSA asks about party affiliation, records your information to fly without ID

Reposted from

So you know how the new TSA regulations went into effect yesterday, where you can only fly without ID if you "cooperate" with the TSA? Well, it turns out you also have to take a test about your personal life. They call up a service to administer it, and the last question they asked was which political party am I registered under (I correctly answered "democrat" and they still let me on board).

Anyway the full story is that I had to go Florida for a funeral, and accidentally left my driver's license in my apartment in Manhattan. I made it through LaGuardia on Thursday the 19th in about 3 minutes, but when I tried to fly back through Fort Lauderdale Airport yesterday, it took about 45.

When I first approached security, I told the initial guard screening all passengers for ID that I had none. Instead of immediately calling the supervisor over like at LaGuardia, he paused and asked if I was sure I didn't have any ID on me, like a social security card or something. I said I only had a credit card, so he then radioed for the area supervisor. She arrived in just a few seconds. Her name was Brenda, and she very politely and apologetically informed me that things had changed, and that the TSA supervisor for the whole airport needed to handle this situation because of the new regulations.

Luckily I had arrived an hour early so had plenty of time. I chatted with Brenda while we waited for the main supervisor to arrive. I started to get a little nervous that I wouldn't be allowed on board, and Brenda repeatedly assured me it wouldn't be a problem — they just had a few additional steps to go through.

After about 15 minutes, the main supervisor, Laurie, arrived. Again, Laurie was exceedingly nice and professional, but seemed a little more concerned than Brenda. She asked if I was sure I didn't have photo ID, like a credit card with my picture on it, or even a CostCo card. I wound up going through my wallet in front of her to show that I didn't, and she pointed to various cards and receipts in it to ask if they were IDs. I wound up showing her everything to prove I was telling the truth. She repeatedly said they had no way of "verifying" that I was who I said I was, and that someone could have stolen my credit card and traveled under my name. I didn't want to mention that they shouldn't need to verify who I am, because I was afraid they could then say I wasn't cooperating and deny travel on that ground. In fact, I even mentioned several times that I wanted to fully cooperate with them because I was aware that was a component of the new regulation, and they assured me that I was.

Finally satisfied that I didn't have ID, Laurie took my boarding pass and went away. She came back a few minutes later having photocopied it, and also had an affidavit that she requested I sign. It asked for my name and address, and stated in small print at the bottom that I did not have to fill it out, but if I didn't I couldn't fly. It also said that if I choose to fill it out and then provided false info, I would be in violation of federal law.

After filling out the affidavit, Laurie called a service to verify my address. The service needed me to then correctly answer three questions about myself, which Laurie relayed to me. The first was my date of birth, the second was a previous address (which I only got right on my second try), and the third was "You are registered to vote. Which political party have you registered with?" I got all three right, and only then did Laurie clear me to go through security.

Of course, I still had to submit to secondary screening, including a full-body pat-down and total luggage search. Brenda and Laurie stayed with me to make sure the process went as quickly as possible, and were again incredibly helpful and nice. They kept explaining over and over how necessary it was to "verify" who I was, and how times have changed, and how these new regulations must have been as a result of someone trying to get away with something, because there's always a reason for these thing but they don't always know what those reasons are. They were so nice and considerate that I waited until the very end before I finally said that I do not agree with the new regulations, but that I was thankful that the two of them acted so professionally and considerately to me. Laurie actually seemed a little dejected when I said this, because I had been playing along the entire time out of fear that I would not appear cooperative otherwise.

But I made it onboard my flight, and am back in Manhattan. I have flown without ID in the past, a couple years ago, and it was no problem. I almost preferred it because I got to skip the line. This time around though, it was incredibly burdensome, and involved the full attention of two high-level local TSA employees for a considerable period of time. I kept wondering if Laurie and Brenda were so busy with me for so long, what if someone really bad was doing something in another terminal or area? So even though I cannot say enough good things about how these particular TSA employees handled it, I still feel the new regulation is entirely inappropriate and unnecessary. Why do you need to provide a home address to fly? And what if I refused to answer the question about my political party allegiances? Luckily I kept my cool and even befriended the screeners just so they couldn't resort to the subjective lack-of-cooperation carve-out, but 45 minutes of standing at security not knowing if you'll make your flight seems specifically designed to test people's mettle and upset them. The TSA has turned flying without ID into an overly cumbersome and almost unmanageable chore.

Wednesday, June 25, 2008

Your papers please: TSA bans ID-less flight

This is reposted from Chris Soghoian's blog.

In a major change of policy, the Transportation Security Administration has announced that passengers refusing to show ID will no longer be able to fly. The policy change, announced on Thursday afternoon, will go into force on June 21, and will only affect passengers who refuse to produce ID. Passengers who claim to have lost or forgotten their proof of identity will still be able to fly.

As long as TSA has existed, passengers have been able to fly without showing ID to government agents. Doing so would result in a secondary search (a pat down and hand search of your carry-on bag), but passengers were still permitted to board their flights. In some cases, taking advantage of this right to refuse ID came with fringe benefits--being bumped to the front of the checkpoint queue.

For a few years after September 11, 2001, TSA's policies when it came to flying without ID were somewhat fuzzy. The agency, like many other parts of the Bush Administration, has hidden behind the shroud of classification--in TSA's case, labeling everything Sensitive Security Information.

Seeking to clarify the rules, activist John Gilmore took the U.S. government to court in 2004. Gilmore chose to take a particularly hard line, by refusing to show ID to TSA and also by refusing to undergo the more thorough "secondary screening" search. He eventually lost his case before the 9th Circuit of the U.S. Court of Appeals.

While the judges were not willing to let Gilmore avoid the secondary screening search, they did at least recognize the right to travel without showing ID--providing that passengers are willing to be subject to a pat down and a bit of probing:
"The identification policy requires that airline passengers either present identification or be subjected to a more extensive search. The more extensive search is similar to searches that we have determined were reasonable and consistent with a full recognition of appellants constitutional right to travel."

Since then, in at least two letters to citizens, TSA has re-affirmed this right. In March 2008, a TSA official wrote that:

"If a traveler is unwilling or unable to produce a valid form of ID, the traveler is required to undergo additional screening at the checkpoint to gain access to the secured area of the airport."

A change in policy

In a press release issued on Thursday with little fanfare, TSA announced a major change in its rules.

"Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity."

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures."

To clarify: Passengers who refuse to show ID, citing a constitutional right to fly without ID will be refused passage beyond the checkpoints. Passengers who say they have left their ID at home, will be searched, and then permitted to board their flights.

While TSA's announcement stated that the goal of the change was to "increase safety," this blogger disagrees. The change of rules seems to be a pretty obvious case of security theater. Real terrorists do not refuse to show ID. They claim to have lost their ID, or they use a fake.

TSA's new rules only protect us from a non-existent breed of terrorists who are unable to lie.

Fixing flaws vs. security theater

In a research paper published in 2007, I outlined a number of glaring loopholes allowing the total circumvention of the much criticized no-fly lists. The two main flaws were that passengers can modify boarding passes, and that they can refuse to show ID.

In December 2007, TSA began testing out a secure, authenticated, tamper-proof boarding pass scheme. It has since been rolled out to a number of major airports around the country.

With hundreds of millions of dollars having already been spent on the various no-fly lists, it is at least interesting to see that someone at TSA is now spending time on fixing the loopholes in the system. The most glaring of this has long been the fact that passengers can refuse to show (or claim to have forgotten) their ID. Simply put, without being able to know who is walking through a checkpoint, there is no way to know that the "bad guys" have been caught by the no-fly list.

TSA's new rule, while perhaps motivated by a desire to beef up security, is significantly flawed. Terrorists will lie, and claim to have lost their ID--while law-abiding citizens wishing to assert their rights will be hassled, and refused flight.

Of course, all of this is premised on the idea that the no-fly list is actually a useful safety tool--something that I, and a number of other prominent security experts, strongly disagree with. Simply put, terrorists do not pre-register their intent.

As Bruce Schneier has noted before, the no-fly list is a collection of hundreds of thousands of people who are too dangerous to fly, but not guilty enough to be charged with a crime.

Friday, May 30, 2008

Successfully flew with expired ID from Dallas

Airport: Dallas (DFW)
Date: April, 2008
Reason given: Expired ID
Reference: Erin
Result: Successful
Description: It seems my driver’s license expired this year on my birthday, unbeknownst to me. I am now finally in the habit of leaving the house for domestic flights without even thinking about digging out my passport, which was a necessity anytime I flew anywhere while we lived in Amsterdam. So, armed only with an apparently expired driver’s license to identify myself, the security guard informed me he was going to have to write in huge black letters across my boarding pass “No ID.” Then I had to wait five minutes for a “female assist” to come pat me down, search through my belongings, and exclaim that I certainly don’t look my age and at first she wondered why they would be so up in arms about a high-schooler not having an ID. (For those of you reading who are unaware: it’s been over a decade since I was in high school.)

TSA allows Houston traveller in with no ID, boarding pass after a smoke break

S Kaye Alston reports that a fellow traveler left the terminal for a smoke break, but without an ID or boarding pass. The TSA seems to have let her back in without much trouble:

It was time to jet to the outside elements to burn one. Well, one of the "other" traveling butt head walked right out the door with nothing but her cigarettes!!! No ID, no boarding pass - NOTHING. Try this stunt in a busy airport, and see what happens. The southern charm was whipped out and throunced on "Larry the TSA agent", and the security dance began for her to make it back into the terminal. I have NEVER in my Life been able to gain access to such a secured environment without any form of ID. Thanks Judy for the laugh and adventure to see if we could pull this one off. We did.