On Sunday, February 1, the Transportation Security Administration (TSA) began charging travelers without REAL ID $45 to fly.
This may come as a surprise, but no U.S. law requires you to show ID to get on a domestic flight—or pay the new $45 TSA fee.
It doesn’t matter if you have REAL ID or not. The law doesn’t mandate any ID.
Requests to supply ID before boarding a commercial flight began in 1996, not by act of Congress but by an order by then-President Clinton.
As described by Clinton’s counterterrorism czar Richard Clarke, this idea was conceived overnight as a way to show that the government was “doing something” in response to a plane crash that turned out to have been caused by a faulty fuel tank, not terrorism.
Airlines and the TSA started asking for ID, but they couldn’t legally require it. Even according to the TSA’s website, if you do not show your ID, “you may still be allowed to fly.”
Crucially, the REAL-ID Act pertains only to which IDs are accepted by Federal agencies in circumstances where ID is required.
The Act did nothing to legally impose a new ID requirement where there wasn’t one already, such as for airline passengers.
Obstacles to legal challenges
When passenger John Gilmore tried to challenge airline demands for ID in court, his complaint was dismissed on the basis of TSA policies that said travelers were still allowed to fly without ID as long as they submitted to a more intrusive “pat-down” and search.
The court didn’t rule on the question of whether a law or policy requiring ID at airports would be legal, since the TSA conceded there was no such law.
In 2008, the TSA began asking travelers without ID to answer questions confirming their identity, a process that is verified through records maintained by a commercial data broker, not the TSA itself.
Yet challenging the TSA in court can be expensive. When another passenger, Phil Mocek, tried to document these procedures, TSA checkpoint staff called airport police to arrest him. Phil was acquitted after a jury watched the video the police thought they had deleted, and after a TSA officer testified that there’s no law or regulation against flying without ID or filming the TSA. But Mocek was left with $34,000 in legal bills after courts found that police and TSA agents had “qualified immunity” from lawsuits for the wrongful arrest.
It’s this TSA claim of impunity that has made challenges to ID demands rare.
Coerced compliance despite no law on the books
The stated goal of the REAL-ID Act of 2005 was to pressure state governments to upload their driver license data to a national database under threat of preventing their residents from flying.
There are currently a few efforts to prevent the sharing of this personal information. Last week, 34 members of the Oklahoma legislature petitioned their state Supreme Court to block the upload to the SPEXS database, planned for mid-February, of records about all Oklahoma drivers licenses, on the grounds that it’s neither required by Federal law nor authorized or funded by state legislation.
Requiring ID to fly, demanding that flyers without ID answer questions, or forcing them pay a fee have not yet been judged to be Constitutional, and Congress has not yet enacted a law requiring these.
Nor has the TSA promulgated any regulations, published any of the notices, or obtained any of the approvals that would be required by other laws.
In 2016 and 2020, the TSA gave notice that it intended to apply for approval of its “Certification of Identity.” Form 415. Each time, it backed off from requesting approval after civil liberties, data privacy, and right-to-travel organizations pointed out the lack of any legal basis for requiring ID or additional information from people who fly without ID.
Neither the online forms to pay the $45 fee, the Form 415, nor any other collection of information from people who fly without ID has been approved by the Office of Management and Budget (OMB).
That’s crucial to know because without approval by the OMB, the demand technically cannot be legally enforced.
The Paperwork Reduction Act (PRA), which is set law, provides a “complete defense” against any penalty for failing to respond to any collection of information by a Federal agency that hasn’t been approved by the Office of Management and Budget (OMB), isn’t accompanied by a valid PRA notice, or doesn’t display a valid OMB Control Number.
Requiring ID won’t make us safer, but it enables surveillance and potential control of our movements.
If you try to defend your rights and refuse, you may be arrested and/or assessed a “civil penalty” by the TSA. Defending yourself in court or finding a lawyer with appropriate expertise may be hard.
But the law, as written, is clear: You have the right to fly without ID, without paying a $45 fee, and without answering questions. Exercising that right, however, is another matter.
Travel industry expert Edward Hasbrouck has been invited to testify as an expert witness before the U.S. Department of Transportation’s Advisory Committee for Aviation Consumer Protection, the Canadian House of Commons, and the European Parliament. He has been a reporter on legislative and regulatory debates and lawsuits related to travelers’ rights in the U.S., Canada, the European Union, and at the U.N. Human Rights Committee in Geneva. Learn more about these issues on his website about U.S. passenger rights, PapersPlease.org.
