Originally Posted by
saizai
I agree it says that the aircraft operator's supposed to ask for ID. But e.g. note 1560.105(c)(1): "The individual must present a verifying identity document to the covered aircraft operator at the airport."
If you have an electronic boarding pass / e-checkin, then you've not shown them ID at the airport. This doesn't seem to be enforced, unless the TSA document checker got somehow delegated the ID checking job by the airlines.
Seems like a good FOIA, anyhow… /me adds it to the list
First, you need to read all of 1560.105(c)(1) to put the last sentence in context:
Request for identification —(1) In general. If TSA has not informed the covered aircraft operator of the results of watch list matching for an individual by the time the individual attempts to check in, or informs the covered aircraft operator that an individual has been placed in inhibited status, the aircraft operator must request from the individual a verifying identity document pursuant to procedures in its security program., as provided in 49 CFR part 1544, subpart B or 49 CFR part 1546, subpart B. The individual must present a verifying identity document to the covered aircraft operator at the airport.
So it is the airline that has to ask for the ID, and only under specified circumstances. Under the above, the mere act of issuing a boarding pass meets the requirements of Secure Flight. What happens if the airline fails to obtain that identification:
(d) Failure to obtain identification . If a passenger or non-traveling individual does not present a verifying identity document when requested by the covered aircraft operator, in order to comply with paragraph (c) of this section, the covered aircraft operator must not issue a boarding pass or give authorization to enter a sterile area to that individual and must not allow that individual to board an aircraft or enter a sterile area, unless otherwise authorized by TSA.
I think that there is a reason why the TSA is not involved in this process directly with the passenger.
The TSA Reasoning For ID Presentation Requirement
As for doing a FOIA request, I wouldn't waste my time. (I have one that has been pending for over three years.) The Chief Counsel has already given her tortured analysis as to the TSA's authority to require ID, which is why she became Francine the Googling Attorney. Here is my exchange with Francine:
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.