Travel Screening and The PASS Act

• In the other chamber of Congress, the PASS ID Act (S. 1261) introduced in the Senate on June 15th contains a provision in Section 242 (a) (1) (B) that “no person shall be denied boarding a commercial aircraft solely on the basis of failure to present a driver’s license or identification card issued pursuant to this subtitle.”  This is part of a terrible bill, which we strongly oppose. We agree completely with Jim Harper’s take that this is merely a “lite” version of a national ID law, and that there is no good reason to “replace” the REAL ID Act rather than simply repeal it.  The PASS ID Act would still leave loopholes for the TSA to deny “permisison” to travel on other grounds, such as failure to “cooperate with screening”. But we welcome the initiative — again, the first such in the Senate since the creation of the TSA — to anticipate and preclude a TSA assertion of new authority. (The PASS ID Act would also make it a “unlawful for any person, knowingly and without lawful authority– (1) to scan the information contained in the machine readable component of a driver’s license or identification card; or (2)(A) to resell, share or trade that information with any other third parties; (B) track the use of a driver’s license or identification card; or (C) store the information collected.”  This provision is apparently intended to include a prohibition on reading of the data on RFID chips in Enhanced Drivers Licenses.)

c/o Papers, Please!

In the absence of any explicit rules or any judicial, legislative, or executive oversight, the TSA has felt no need to seek authority for its ever-expanding assertions of authority through legislation or rulemaking. Nor has the TSA recognized any duty of self-restraint or self-policing to ensure its actions conform to the law. Instead, the TSA has simply wielded its power to do whatever it wished, on the disgraceful assumption that, “If we’re doing something wrong, the courts will tell us — if and when someone can afford to sue us, and they win a court judgement against us.” In the meantime, the TSA will do, and claim the right to do, anything that hasn’t already specifically been ruled illegal. Kind of like the thief who assumes that they can steal whatever they want, and that if something turns out not be theirs, they’ll give it back if and when someone sues and wins a court judgement ordering its return.

Time and again we’ve pointed out this failure to subject the TSA to the rule of law. See, for example, our most recent prior post on this topic, our agenda on the right to travel submitted to the Obama Administration and Congress after the 2008 elections, and our comments earlier this month at the Computers, Freedom, and Privacy conference session with Obama Administration representatives and others at 1:45:53 of this video. Until recently, however, neither the Courts, the Congress, nor the Executive branch have wanted to confront the question of what rules govern the TSA.

We’re please to report that this is finally beginning to change, in small ways but on numerous fronts. ::: MORE HERE:::