Government Threatens Not to Accept Licenses from 9 States for Travel Next Year. And That’s Pathetic.

Residents of Several States are Having Their Right to Travel Threatened

The Real ID Act regulates, among other things, what state identification will be valid for federal purposes. Those federal purposes including identifying oneself to the Transportation Security Administration in order to board commercial aircraft. And several state drivers licenses do not comply with those rules.

A ‘real ID compliant’ license has to have a person’s full legal name, signature, date of birth, gender, a unique identifying number, home address, and a front-facing photo.

There are also specific anti-counterfeiting measures that must be used, and rules on providing the data on the card in a standard machine-readable format.

Prior to issuing a ‘real ID compliant’ license, a state has to require:

  • A photo ID (they make you present a photo ID to get a photo ID..) or ID that includes full name and birth date
  • Documentation of birth date (usually a birth certificate)
  • Proof of legal status (you’re not an illegal alient) and social security number (something you didn’t even have to have when I was born)
  • Documentation of your residential address

Basically, getting a drivers license — especially without already having one — has become a real pain.

States have to store digital copies of these documents as well. States also have to share these databases with all other states.

Very Few States Are Actually Complying

The federal government has determined that some states are trying hard enough. But it currently appears that 9 states and 3 territories will not have waivers from the law’s requirements as of January 10.

After a decade of state/fed jousting, the feds appear ready to visit some of those consequences upon the recalcitrant states: Alaska, California, Illinois, Missouri, New Jersey, New Mexico, South Carolina, and Washington (as well as Puerto Rico, Guam, and the US Virgin Islands). Previously, these states and territories had been granted exemptions to the Real ID requirements, but they expire on January 10, 2016 (less than two weeks from now), and the DHS has already refused to renew them for Missouri, Illinois, Minnesota, and Washington and said they wouldn’t renew it for other states.

Some states have laws in place forbidding compliance with federal REAL ID rules.

Missouri passed a law in 2009 forbidding state officials from implementing the law. The same year, Minnesota lawmakers not only barred implementation of Real ID but prohibited “preliminary measures like negotiations with federal officials related to the requirement,” according to a report in last week’s Minneapolis Star-Tribune.

Some state lawmakers opposed Real ID because of privacy concerns, while others denounced the law as an “unfunded mandate” requiring states to change their licensing practices without providing any money to implement the changes.

This Game of Chicken Doesn’t Mean Passengers Won’t Be Able to Travel

Failure to comply with REAL ID doesn’t mean that January 10 the TSA will stop accepting IDs from non-compliant states, however.

  1. The lack of a waiver itself doesn’t mean that the TSA will act. Instead, the federal government will “soon determine whether Transportation Security Administration agents would start enforcing a 10-year-old law that required states to comply with a set of federal standards when issuing driver’s licenses.”

  2. Nothing will change January 10 anyway. DHS has said “that 120 days’ notice would be given before starting to enforce the law at airports.”

What’s more you can still fly even if your state-issued drivers license isn’t accepted. You can use a passport or other government ID. And you can fly without ID, answering personally identifying questions.

And it may not even happen… Refusing to accept drivers licenses from several states — since they are the primary means most people use for identification — would slow down security checkpoints markedly. That will not be popular, and 2016 is an election year. Stories of people being turned away from a trip to a family member’s funeral, or of security lines wrapped out the doors of JFK airport, would fill the airwaves.

There’s a real political reason for this game of chicken to end in something other than people being hassled at the airport.

Real ID Places Real and Substantial Limits on Freedom

The Real ID act was passed as a rider to an emergency Iraq war and Tsunami relief appropriations bill in the House and inserted into a matching bill on the Senate side during conference. The Senate never discussed Real ID via committee hearings and never voted on Real ID apart from emergency pieces of legislation.

During the 2008 elections President Obama opposed the law, and Hillary Clinton called for it ‘to be reviewed’.

Denying passengers access to flights because their drivers licenses no longer constitute valid identification would be a political problem. But the constitutional problems are just as real.

Regardless of whether a Court would protect substantive rights when faced with the security state, the substantive issues are meaningful concerns. “You can travel using other means than flying” isn’t persuasive because TSA has intermittently performed security checks at Amtrak stations; they’ve positioned themselves even at DC area metro stations; and if the government can substantially burden one form of travel, they can burden any other.

ID checks began as security theater after TWA flight 800, President Clinton asked for things he could announce right away. Airlines used to ask for ID to make sure the person traveling was the one that bought the ticket, solely to restrict the resale market for airfare in order to support revenue management systems that increased the price of travel closer to departure (to prevent people from buying tickets cheap and reselling them as travel dates approached — still undercutting the airline’s price). Now the government does the airline’s work for them, ostensibly for security but a determined terrorist (the TSA has never caught a single one) doesn’t have much problem flying with fake documents.

The ‘security purpose’ of ID checks is to try to force people to fly under their real names, so that those names can be checked against the government’s highly flawed watch and do not fly lists. Anyone on such a list, intent on committing a terrorist act, would simply choose not to fly under their own name.

Those lists of course impose substantial burdens on the right to travel.

  • People get added to the ‘do not fly list’ without any due process proceeding
  • It’s not necessary to commit any disqualifying acts to be on that list (they’re pre-crime profiling: mere suspicion that someone might do something in the future)
  • You cannot confront your accuser
  • There’s almost no meaningful and timely redress procedures

And that’s burdensome on the right to travel. The mere existence of alternative slower methods of travel – permitted today, by the graces of those in charge of ‘security’ – doesn’t alleviate that.

Do You Think the Federal Government Will Back Down as Elections Near?

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. Gary-

    Why not print a real TSA horror story, to wit the mess they and the airport have made of the security lines at DEN the last few days.

    And guess what-it’s nobody’s fault!

  2. While you raise some valid concerns, there is no “right” to travel. One does not have the “right” to drive a car or the “right” to fly in a commercial airplane or train.

  3. The relevant section:

    Current US Code addresses air travel specifically. In 49 U.S.C. § 40103, “Sovereignty and use of airspace”, the Code specifies that “A citizen of the United States has a public right of transit through the navigable airspace.”

  4. Looks illegal and unconstitutional to me, but that doesn’t mean it won’t happen. I imagine when they decide to push it, affected states will go to court. We’ll see how it turns out.

  5. I used to live in Missouri and had to renew a drivers license there a few years ago. It was a real pain as they wouldn’t take my certified birth certificate copy and I had to get a new up to date one. It must be a counterfeit issue with them I assume. It’s not that easy to get a DL there.

  6. I live in one of these back ass states that have laws on the books that will not permit me to use my DL as an ID, and yes, it’s a Republican ran state, they passed these laws to make the Federal Government look like idiots, but the egg is really on our law makers for moving forward with these stupid laws… My current DL which I had to get this year, will be replaced when the new DL comes out, and the state has to suck up the cost for this new DL…

  7. I have no problem with normalizing identification from state to state and making sure that that information is sharable between state governments. In fact, the clearinghouse for Real ID is controlled at the state level, not implemented or controlled by the federal government.

    Absent a state-driven normalization and sharing mechanism, we end up with the (technically illegal) de facto Social Security number-based privatized quasi-identity we’ve been using as an insecure substitute for as long as I can remember, managed poorly and insecurely by a mesh of federal, state, banking, and credit bureau organizations. I appreciate peoples’ implied right to privacy (which is not an explicit right in the Constitution), but I also believe that being able to prove one’s identity is a baseline responsibility in civil society, one that should be normalized and managed aggressively in its use by government, not private industry.

    You can argue as to whether TSA can ask for it or not, but the current system of identity in the US is archaic, dangerous, and allows for al kinds of venue-shopping shenanigans that permit dangerous drivers to relicense in other states or, in a similar case, allow quackish doctors to flee between state licensing boards. Plus, if you don’t mind traveling with a heightened sense of scrutiny, you can still make it past the checkpoint with lesser documentation, something I had to do when I lost my ID on a trip. There are still alternatives.

    If you are the type that thinks that a state-based identity card normalization is at the beginning of a slippery slope toward a national security state, you clearly have been asleep the last fourteen years. Given that the federal and state government have access to all of the major credit bureaus, your tax records, and the Internet exchange points, a piece of plastic issued by a chain-smoking DMV employee isn’t even on the water slide.

  8. In 49 U.S.C. § 40103, “Sovereignty and use of airspace”, the Code specifies that “A citizen of the United States has a public right of transit through the navigable airspace.”

    The emphasis being on the word “citizen”. I imagine those who are citizens from the State of Washington who are unable to prove their citizenship another way will have trouble and will be rightfully upset.
    On the other hand, illegals and terrorists would use the ID loophole of the states not requiring citizenship info to move freely about the country.
    This is no different than the Federal Government withholding highway funds for those that don’t comply with other Federal mandates though. And they retain jurisdiction to “regulate interstate commerce”.

  9. The emphasis being on the word “citizen”. I imagine those who are citizens from the State of Washington who are unable to prove their citizenship another way will have trouble and will be rightfully upset.

    There is no requirement that a US citizen have identification to travel, except internationally.

  10. +1 what GodOSpoons said.

    While I respect that people have varying levels of desire for privacy, it is silly that there is no system to effectively ID one American citizen from another, aside from the SSN which is not even intended for any purpose other than Social Security.

    Do people who complain about the real ID law (not necessarily the travel part) think it’s better to continue having to supply 2-3 different forms of ID at each job and passport application? Why wouldn’t we want a single trusted and verifiable identification?

  11. Under article 12 of the International Covenant on Civil and Political Rights(of which the US is a ratified signatory) freedom of movement with in your country is a protected right. However, as usual “National Security” is a allowed as an excuse to restrict(and thus violate) this right.

  12. On the citizen issue, as an Australian citizen I always have to show my passport to fly domestically in the US. If I didn’t have a passport I don’t know how I could legally be in the country to catch a domestic flight.

  13. On a (sorta) related note, in Australia if you check in online, print your boarding pass at home and don’t check a bag no one checks your ID for a domestic flight. And yet I’ve never heard of a secondary market for airline tickets.

  14. Tk: I’m not sure how this works with flying, but a few years ago I had to check in with a colleague into a secure facility near the Pentagon. Neither of us had (or has) security clearance, but our names were on the guest list and one of the acceptable IDs was a state-issued driver’s license. They accepted my colleague’s New South Wales license without batting an eye. Of course, the facility’s concerns (presumably) are security rather than theatre.

  15. @Gary – Minor error, but you also missed that the DHS has occasionally intervened to stop those on The Lists from traveling by sea as well. It’s extremely clear that they want, at all costs, to stop those on The Lists from traveling, at least internationally, even if their travel poses no direct threat to national security.

    The specific case I read about had the DHS contacting the captain of the cargo ship that a US citizen had arranged passage on. Ultimately, the decision was the captain’s, but there’s no line the DHS would not cross to stop this poor soul (a US citizen trying to *leave* the US) from traveling. I believe the DHS eventually settled when he took them to court. (Latif v Holder, for those curious: https://www.aclu.org/legal-document/latif-et-al-v-holder-et-al-cross-motion-partial-summary-judgment?redirect=national-security/latif-et-al-v-holder-et-al-cross-motion-partial-summary-judgment )

  16. @Ron there is just no consistency. I can drive in the US with my Australian drivers license, sure I need my passport as well for ID but they’re accepting the drivers license as proof I know how to drive a car safely. And yet technically that same license is not valid proof that I’m over 21 and old enough to buy a beer or that I am who I say I am?

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