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Disputed Air ID Law May Not Exist

by Paul Boutin
Wired, Aug. 15, 2002

A recent lawsuit filed by Electronic Frontier Foundation founder John Gilmore against U.S. Attorney General John Ashcroft, United Airlines and several others challenges the requirement that airline flyers present government-issued identification in order to travel within the United States.

The suit claims unpublished federal regulations have created an "internal passport" for Americans in violation of the U.S. Constitution.

As it turns out, there may be no such law on the books. Instead, carefully worded rules and statements allow airlines to make it seem that way. Under current federal regulations, they're only required to ask for ID, not to make it a condition of travel.

"It creates the illusion of security without any real security," longtime civil libertarian Gilmore said of the ID requirement, which he deliberately flouted at San Francisco and Oakland, California, airports on July 4 in order to establish the case.

The details of Gilmore's complaint, filed in a U.S. District Court late last month, show that airline employees were unclear themselves on what the laws were, with different employees offering different answers.

Officials for United declined to comment on Gilmore's case, but claimed the airline follows rules set by the new Transportation Security Administration, which has sole responsibility for airline security regulations under legislation signed by President Bush last November.

Yet TSA spokesperson Greg Warren insisted there is no federal ban on flying without an ID. "TSA requires air carriers to request a valid form of identification from a government issuer," Warren said. "The actual presentation of ID by passengers is not required. Refusal to allow passengers to board or not board the aircraft is at the discretion of the airline."

The set of published TSA regulations colloquially known as 49 CFR (PDF) go into great detail on ID and fingerprinting requirements -- for airport screeners and other personnel, that is. For passengers, 49 CFR Section 1544.201 only requires that airlines refuse to transport "any individual who does not consent to a search or inspection of his or her person."

Gilmore's suit alleges that United employees eventually offered to let him board his flight without identifying himself if he consented to a search, claiming that unpublished security directives issued by the TSA and communicated orally required them to search any passengers who did not produce identification.

The TSA's Warren acknowledged that such confidential directives do exist, but neither confirmed nor denied that they enforce an ID-or-search requirement on air carriers.

Prior to the TSA's creation, the Federal Aviation Administration issued similar confidential security directives ordering airlines to ask for ID in the wake of terrorist threats in the mid-1990s.

Copies of several Freedom of Information Act requests and FAA responses to them show the FAA repeatedly refused to release its directives to the public, but claimed "there is currently no prohibition against allowing someone on an aircraft without such identification."

(Many websites host alleged copies of the directives, but their validity is unconfirmed.)

However, none of the officials queried then or now answered the core question underlying the issue: With ID cards so easy to forge, how does asking for one reduce the threat of on-board terror? TSA officials did not return repeated calls for explanation.

That sort of evasiveness fuels suspicions that the government and airlines are "in collusion" to coerce passengers into being tagged for other purposes, said Edward Hasbrouck, author of The Practical Nomad series of guidebooks and a long-outspoken opponent of rules against anonymous travel.

"The airlines might require ID because of a secret government rule. I honestly don't know if there is one," Hasbrouck said. "If there isn't a secret government rule, it's all about airline profits.

"The clauses on ID in the 'conditions of carriage' incorporated by reference in the ticket and contract for both United Airlines and Southwest Airlines (the airlines named in Gilmore's filing) are identical. They don't mention a government requirement. Rather, they specify that the airline reserves the right to require ID, and reserves the right to refuse to transport those who don't produce it."

Armchair explanations for the ID requirement abound: It makes passengers feel safer and more likely to fly. It prevents flyers from reselling unused round-trip return tickets or frequent-flyer miles. It coerces passengers into being profiled by the Computer Assisted Passenger Pre-screening System (CAPPS) used by airlines and cited in TSA regulations. It's to collect information for direct marketing. Or all of the above, depending on whom you ask.

Whether or not the "secret regulations" Gilmore's suit charges do exist, it's obvious that airline and airport employees are unclear on the federal laws to which they increasingly allude.

"I got stopped trying to use the first-class bathroom in mid-flight today," said one software sales executive who asked that her name not be used. "The attendant said I couldn't come up there - it was a federal law. I told her I was very familiar with federal law and it required them to let me use any available lavatory, so she really should get out of my way."

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Reprinted for Fair Use Only.

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