A few months ago, a friend of mine posted a note on an internet BB: “Just in case you were wondering, it IS possible to fly [in the U.S.] without ID. Lots of extra time, searches and questions involved, but it IS possible.”
If you’re a frequent flier, it’s probably not something you think about: showing your ID and boarding pass before you enter the checkpoint has become just another part of the absurd drill, like repackaging your personal care items and removing your jacket, belt and shoes for x-ray inspection.
But as this Supreme Court term has reminded us, there are thousands of U.S. citizens who do not have any form of government-issued photo ID getting through life just fine — until, that is, they try to exercise their rights to vote or to travel freely domestically. And in both of these cases, activists have forced to courts to clarify the limits of government power, pitting against each other the classic concerns of liberty and security.
In its January 2006 ruling, the Ninth Circuit Court of Appeals made clear for the first time the government’s (unpublished) regulation on passenger IDs:
The identification policy requires that airline passengers either present identification or be subjected to a more extensive search. (1155, emphasis added)
Just two weeks ago, the TSA pushed the federal court’s ruling even further by denying security screening to passengers refusing to show ID, even those who are willing to submit to additional screening measures.
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. (emphasis added)
In their 1973 ruling on airport searches (United States v. Davis, 482 F.2d 893, 912-13), the Ninth Circuit Court already made clear that it is NOT your right to fly: rather, you have the choice between submitting to search (thereby relinquishing your freedom from search and seizure, but boarding your flight) or leaving the airport (thereby maintaining your freedom from search, but relinquishing your flight). As they elaborate in the Gilmore ruling on the “additional screening protocols” required for non-ID-carrying passengers,
we considered several airport screening procedures, including behavioral profiling, magnetometer screening, identification check, and physical search of the passenger’s person and carry-on baggage. Id. at 900. We see little difference between the search measures discussed in Davis and those that comprise the “selectee” search option of the passenger identification policy at hand. (1156)
What makes the new TSA press statement significant is that it discriminates between non-ID carrying passengers based upon the circumstances of their ID-lessness or their attitude: if you are not in possession of recognized ID or if your ID has been lost or stolen (or if you lie and say so), you are welcome to undergo additional screening and head on to your flight; if, however, you do not show ID and make clear that it is on political grounds (i.e. that you know, in fact, that it’s not required to show ID and you don’t want to), you can be denied screening period.
The difference in sentiment lies in the tiny word OR in the red sentence above. The Ninth Circuit Court has made clear that a passenger refusing to show ID *AND* to undergo additional screening is in fact exercising their right NOT TO FLY. But the TSA doesn’t say AND, it says OR — meaning it can deny passengers screening based on either of those conditions, not the sum of their parts.
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