ND Sol

A discussion was underway in the Practical Travel Safety Issues about the C.F.R. authority for TSA to require an ID by passengers to proceed through the screening checkpoint. TSORon is now of the opinion that we should no longer have that discussion there:


So here we are per his request. To provide some background, here are the salient parts of those posts:

TSORon, "I look forward to" your reply.

Boggie Dog

The purpose of presenting ID as defined by the document that TSORon trotted out is for Watch List Matching. The TSA TDC does no Watch List Matching so it is clear that there is no regulation to show the TSA screener any identity documents.

Don't expect TSORon to rush a response, when shown to be wrong he fades into the shadows.

halls120

TSORon is wrong? I'm shocked.

WillCAD

I understand the theory of TDC ID matching, and the theory itself is sound, even though in actual practice it's got more holes than a golf course carpeted in swiss cheese after an artillery barrage, but here goes anyway:

In theory, any person who makes an air reservation has his or her name run against the various watch and no-fly lists.

When said person appears at the airport, the ID is matched against the boarding pass to confirm that this person is the person whose name appears on the BP, since a person on the no-fly list would be denied a BP, and a person on the watch list would get a BP with SSSS on it.

That's the theory. Of course, it's pretty obvious that in actual practice, a fake ID, a fake boarding pass, or both, could easily be used to avoid the list matching and get past the TDC. The system is useless - but the vast majority of Americans somehow believe that "show ID" is a magical force field that keeps all manner of Bad People out of places they're not supposed to go, making those places Safe From Evil.

Obviously, I have a somewhat different opinion.

TSORon

Lets start here:

“Section 1540.105(a)(2) simply states that persons may not enter the sterile area without complying with the systems, measures, or procedures being applied to control access to that area. TSA's identification requirement is one such system, measure or procedure that is used to determine who is permitted to access the sterile area.”

(http://blog.tsa.gov/2008_08_04_archive.html) A TSA blog entry from 2008 you might notice. Just how long is this poor horse going to be beaten anyway? While there, read the rest of that post, its quite illuminating.

One of those “systems, measures, or procedures being applied to control access” is requiring that a passenger provide the TDC with an ID. And ID from a fairly extensive list of those available to the general public.

The link below has a very interesting discussion about the subject and past/current cases in the courts.

http://congressionalresearch.com/RL3...ty+Regulations

Additionally, there is a fairly good case that was presented in 2002 by a gentleman to the 9th Circuit (http://en.wikisource.org/wiki/Gilmore_v._Gonzales) that I found an interesting read.

And I to yours.

OldGoat

TSORon, are you saying that that passenger has to provide the TSA with an ID, or that the TSA requires it's agents to identify the passenger? The difference is substantial and important.

As to 49 CFR 1540.105(a)(2), it does not say that providing an ID is a system, method, or procedure for entering the sterile area. It doesn't even mention ID.

Moreover, not even Blogger Bob claims that showing an ID is required. Instead, he says that the "identification requirement" is one method the TSA uses.

The blog you reference says:

(emphasis added)

Bottom line, although a passenger showing an ID has the advantage of speed, even Blogger Bob says no ID is required.

If you have evidence that the "identification requirement" is that the passenger show an ID, please provide it.

Finally, I thought the Phil Mocek trial put this issue to rest.

petaluma1

As far as I can determine 1540.105(a)(2) refers to TSA employees and other airport personnel.

IrishDoesntFlyNow

To whomever it refers, it is silent as to the nature of the "system, method, or procedure" with which a traveler must comply when seeking to enter the sterile area. Allowing for the implementation of a "system, method, or procedure" does not mean allowing for just any "system, method, or procedure".


~~ Irish

petaluma1

[QUOTE=IrishDoesntFlyNow;19452068]To whomever it refers, it is silent as to the nature of the "system, method, or procedure" with which a traveler must comply when seeking to enter the sterile area. Allowing for the implementation of a "system, method, or procedure" does not mean allowing for just any "system, method, or procedure".[QUOTE]

The important part is that Ron quoted the blog and the blog referenced rules for screening of TSA and airport employees. The rules developed by the TSA are different for this class of persons than for passengers. Passenger screening is covered under 1540.107.

The rules & procedures for airport security are found in CFR 1542.

Yes the entire mess is vague.

Wally Bird

And nowhere in it is the authority for TSA checkpoint workers to verify ID.

49 CFR 1560.105 is clear in stating that is a requirement of the carrier.Under the above, the mere act of issuing a boarding pass meets the requirements of Secure Flight. I find no other mention of "identification" in the CFRs, except for SIDA badges which are an entirely separate subject.

Not good enough for the TSA apparently and they have simply assumed that authority where none legally exists.

petaluma1

Further the link congressionalresearch.com states that ID must be presented to board a plane a train or a bus. (And the reasons are SSI.)

That is patently untrue. Every year I travel Amtrak to Boston and then go on to Portland by bus. I have NEVER been asked for ID on either the bus or the train.

ND Sol

Are you channeling Francine since she had the same tortured reasoning years ago, which failed then and still does now.

Here is my exchange with Francine the TSA Chief Counsel about this very matter (and the reason she is now Francine the Googling attorney):

Francine said: “As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.”

My response:

A basic rule of construction concerning the interpretation of CFR’s is breached in your analysis. CFR’s are to be interpreted in the strictest sense especially when the regulation involves restrictions on individuals and their actions. The agency that promulgates the regulation also is the drafter. As such, if the agency wanted to make the rule broader, it should have drafted it as such.

49 C.F.R. §1540.105(a)(2) addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is your limit for the sterile area.

You also conveniently left out two words (among others) when you state “that access to the sterile area is ‘generally’ controlled through the ‘screening’ of persons and property.” After the word “controlled”, the words “by TSA” were not included. As such, you give the impression that the word “generally” refers to the screening process when in fact the reference is to the TSA. That is not only disingenuous, but wrong. Boundaries are set for screening of persons and property.

We also don’t have a reason to go to Google for definitions of “screening.” It is contained in the CFR itself. If that definition is too restrictive, you just can’t conveniently ignore it; you need to go through the process of amending the regulation. In that manner the Google definition can then be included if you feel it is appropriate to accomplishing the TSA mission. Are you not amenable to that?

I had a very seasoned attorney once tell me that if he was given the opportunity to draft a document, as long as he was able to have free reign over the definitions section, then he would let the other side’s attorneys draft the rest of the document. Definitions are a critical and integral part of a legal instrument.

From 2004? So what is the authority for presenting IDs at checkpoints in there?

Does Gilmore stand for what you think it does? Let me pose a hypothetical (which has happened in airports). A passenger has no identification, nothing with his name on it except his BP. A verification process which asked him questions such as past rental history, credit history, etc., failed to identify the passenger. A complete and thorough search of his person and property is made without finding any WEI. Will he be permitted through the checkpoint and allow to fly?


Amazing that somehow you think this is a poor horse being beaten when you have yet to proffer the authority in the C.F.R.s for the TSA to check IDs at the screening checkpoint.

ETA: I just found where TSORon discussed this previously to which I replied over three years ago, and although he replied to others about other matters in the thread, he never did address my analysis.

halls120

While I would never give anyone free reign over the rest of the document, you are right that the definitions are critical.

He can't provide that which doesn't exist.

The whole process of checking the BP by TSA is a complete joke. Once they apply their magic scribbles to the BP and I pass through the Constitution-free zone, I can throw it away and pull out a duplicate BP. I do this virtually every time I fly, and I've never been prevented from boarding my flight.

WillCAD

So, your basic reasoning is that the CFR says, "security requirements are whatever TSA says...", and since TSA says that ID is a security requirement, that makes it legal, Constitutional, and hunky-dory.

Gotcha...

TSORon

No, I’m saying that the TSA is required to make every attempt to validate the passenger holding the boarding pass is the same as the person who’s name it is made out to. Some people just don’t have ID, but there are other systems at TSA’s disposal to validate an individuals identity.

It is a part of a system. Not an entire system in and of itself. “The difference is substantial and important.”

I believe that you would be hard pressed to find somewhere where I have made that claim either.

As for Phil, not hardly.