We had a disconcerting experience last month when we returned from a trip abroad and entered the US at San Francisco International Airport: When we opted out of facial recognition (which is posted as being optional for US citizens) and presented our US passport, the US Customs and Border Protection (CBP) officer asked us for a second piece of identification. “Since you opted out of facial recognition, I need to see some other ID.”

“Is there some question  as to my identity or citizenship?”

“No, but because you opted out of facial recognition, you have to show me a second piece of ID.”

By law (22 U.S. Code § 2705), a valid US passport is defined not just as “evidence” but as “proof” of US citizenship. What other ID would we have that would constitute evidence of identity and US citizenship? The CBP officer didn’t say.

For years, we’ve been getting reports from US citizens who have been told that submitting to facial recognition is required to enter or to leave the US, even while CBP officials have persisted in claiming that “no US citizen is ever required to  be photographed in order to enter or leave the US.”

But we haven’t previously heard of anyone being told that, while they could opt out of facial recognition, that would lead to their US passport not being accepted as ID.

Eventually, after we repeated three or four times that the evidence of our citizenship and identity was our US passport, the CBP officer allowed us to enter the country — but only after quizzing us about our travel history, to see if our answers matched with the border crossings logged in CBP’s Automated Targeting System.

How many international trips did we make last year? What country or countries did we visit on our last trip? Were we certain about that? No, we aren’t certain where CBP thinks we’ve been, or whether CBP has an accurate or complete record of our movements, especially with respect to countries we didn’t enter or leave directly from or to the US.

We followed up with CBP to try to find out if we had encountered a rogue or ill-trained CBP officer, a new unwritten (and illegal) but systemic CBP practice, or a new official (and illegal) CBP policy.

Several weeks later, we got the following message from CBP spokesperson  Erica Austin:

U.S. Customs and Border Protection policies remain unchanged: biometric facial comparison technology is optional for U.S. citizens… CBP confirms the use of biometric facial comparison technology at ports of  entry is voluntary for U.S. citizens. A valid U.S. passport is sufficient to verify citizenship and identity. Officers may request additional documents if further verification is needed, but opting out of biometric facial comparison technology does not automatically require a second form of ID. However, officers may request additional documents during inspection if there are concerns about identity, discrepancies in information, or issues with the passport itself.

This contradicts what happened to us: The CBP officer told us explicitly that there was no question as to our identity and citizenship, and that the only reason for their demand for a second piece of ID was our opting out of facial recognition.

Unsurprisingly, CBP didn’t mention of any reprimand or retraining for the officer.

Refusal to recognize a US passport, or giving automated facial recognition more weight than a US passport as evidence of identity and citizenship, is a serious breach of the law and of the rights of citizens. We’re pleased to know that official policy hasn’t changed, but concerned as to how widespread the illegal practice we encountered may be.

If you’re a US citizen and you’ver been asked for additional ID or subjected to additional questioning by CBP when you opted out of facial recognition, please let us know.

When we posted our latest know-your-rights guide, we noted that it describes the rights of U.S. citizens if you are stopped and/or asked to identify yourself or show ID documents in certain circumstances: as a pedestrian, as a passenger in a car (not the driver), at home, or at the airport for a domestic flight.

Why these exceptions and limitations? What about drivers of motor vehicles, passengers on international flights, and people who aren’t U.S. citizens? Don’t they have rights too?

Yes, everyone has rights. But we limited our guide to circumstances in which we think the law is clearly established. In other situations, U.S. courts have been less clear, and in some cases these issues are the subject of ongoing litigation.

Here are some notes on these exceptions and limitations:

• Non-U.S. citizens: All people have rights, regardless of their citizenship. The Bill of Rights refers to the rights of “persons”, not citizens. The U.S. is a party to international treaties, including the International Covenant on Civil and Political Rights (ICCPR), which according to the U.S. Constitution are the “supreme law of the land” just as much as the Constitution itself. Human rights, by definition, don’t depend on citizenship. But U.S. courts have often (wrongly, we think) interpreted some of the references to “persons” in the Bill of Rights and other U.S. laws as applying only to U.S. citizens and sometimes to permanent U.S. residents, not to all people. And U.S. courts have made it difficult or impossible to enforce rights recognized by the ICCPR, other international treaties, or customary international law through U.S. courts. In practice, non-U.S. citizens have fewer rights likely to be recognized by U.S. courts. U.S. law requires each non-U.S. citizen 18 or older in the U.S. for more than 30 days to register with the U.S. government and “at all times carry with him and have in his personal possession” their registration certificate. That law is of dubious validity, and hasn’t generally been enforced. It says non-U.S. citizens must “carry” their papers, but is silent on whether or when they are required to show those papers. Recent renewed enforcement of this law has prompted ongoing litigation in which these issues have been raised but not yet resolved. See  this know-your-rights brochure and these other resources from the American Immigration Lawyers Association for more on the rights of non-U.S. citizens.
• Drivers of motor vehicles: Unlike a mere passenger, the operator of a motor vehicle on a public road must have a license and must show their license to police if they are lawfully stopped. Case law on what constitutes a lawful traffic stop is complex and voluminous, with variations from state to state.  A key unresolved question is whether or in what circumstances ICE agents or other Federal law enforcement officers have the authority to make traffic stops or demand drivers licenses to investigate possible violations of state motor vehicle or traffic laws. In one recent ruling in an ongoing lawsuit in Minnesota, for example, the District Court Judge wrote that, “the Court declines to wade into whether federal immigration enforcement officers have any authority to enforce Minnesota’s traffic laws.”
• Passengers on international flights to and from the U.S.: Here again the case law is voluminous, complex, and silent on some key issues.  Federal agents have been allowed broad authority to stop and search anyone entering or leaving (or seeking to enter or leave) the U.S., whether at a land border or at an international airport or seaport.  Non-U.S. citizens can, in many cases, be denied entry to the U.S. if they decline to answer questions. But we can find no case law on the limits of the right of a U.S. citizen to remain silent in response to questions at the U.S. border or an international port of entry or exit, once they have declared their U.S. citizenship. (See more here about your rights at the airport for a domestic flight.)

We also noted in our guide that in some states, but not others, you might have to identify yourself verbally, if you have been legally stopped based on reasonable suspicion, but you don’t have to say anything else or show any papers. We think state “stop and ID” laws are unconstitutional. But whether “stop and ID” laws conflict with the 5th Amendment right to remain silent has not, so far as we can tell, been resolved by the courts.

Having the legal “right” to do something doesn’t mean that, in practice, you can do it without the police stopping you or retaliating against you for trying to exercise your rights. Retaliatory policing and retaliatory prosecutions are illegal but common.

Whether you are arrested, prosecuted, tortured, or shot by police, jailers, or prison guards may depend on the color of your skin,  your accent, what neighborhood you are in, whether you are wearing a hijab or other indicia of faith or ethnicity, or other aspects of your appearance and the situation, rather than on whether you are breaking the law.

Different people face different risks in trying to exercise their rights. Many of these risks are not ones individuals can choose whether to take. You are unavoidably “at risk”, to a greater or lesser degree, whether or not you chose to take additional risks. The law won’t always protect you. But neither will complying with the law always protect you.

One thing is certain: Your legal rights don’t matter if you never try to use them.

Immigration and Customs Enforcement (ICE) agents and an assortment of other masked Federal officers are arresting U.S. citizens for not showing ID or “proof” of citizenship on the streets, at traffic stops, and in warrantless door-to-door searches in the Twin Cities.

ICE is planning to station agents to “check documents” on the jetbridges at the Minneapolis-St.Paul International Airport.

With all this happening, we’ve posted a new know-your rights FAQ for U.S. citizens, “Do I have to show ID as a pedestrian, passenger in a car (not the driver, for whom the rules are different), at my home, or at the airport for a domestic flight?” (Also available here as a printable one-page PDF.)

This know-your-rights guide is for U.S. citizens. The law is different for those who aren’t U.S. citizens: U.S. law requires non-U.S. citizens in the U.S. for more than 30 days to register with the U.S. government and carry  their papers “at all times”.  But there are many other good resources for non-U.S. citizens such as this brochure. We’ve found few other clear guides to the rights of U.S. citizens in situations like those today in Minnesota, in which U.S. citizens are being (illegally) required to prove their right to walk the streets, live peacefully in their homes, or travel within their own country.

This guide is a work in progress. We’ve posted it quickly because the need seems urgent. We welcome suggestions for corrections or changes.

Knowing and asserting your rights protects everyone in our society — including non-U.S. citizens. It shows other people that they have rights too, and shows police that we know we have rights. Rights are not, in and of themselves, a protection. You can’t count on police to respect your rights. But police act differently when people know and assert their rights.

Liberty lives in its exercise. Freedom dies if it’s not used. Know your rights — and use them.

U.S. Citizenship and Immigration Services (USCIS), a Federal agency whose mandate is to administer naturalization and derivative citizenship for those not born as U.S. citizens, has been trying — without the public notice required by law for such a database — to construct a national ID registry of all U.S. citizens including natural-born U.S. citizens.

This process began in April and May of 2025 with a ten-fold expansion of the USCIS “Systematic Alien Verification for Entitlements Program” (SAVE) database to add records about hundreds of millions of native-born U.S. citizens to those already in the system about tens of millions of naturalized citizens and immigrants.

Information about a new category of individuals (native-born U.S. citizens) was added to SAVE from new sources including Social Security and state drivers’ license records.

The Privacy Act requires prior notice in the Federal Register of the categories of individuals, information, and sources of personal data in Federal databases. To deter Federal officials or employees form keeping secret databases about the citizenry, the Privacy Act makes the maintenance of such a database of personal information without proper notice a crime on the part of the responsible Federal officials and employees.

USCIS converted the SAVE database about immigration and naturalization into a comprehensive  database about all U.S. citizens without the required notice.

Six months later, in response to a lawsuit led by the League of Women Voters, USCIS published a notice of the changes to the SAVE system, with the notice to take effect today unless the changes are rescinded in response to public comments. But USCIS has kept the the revised SAVE system in operation, illegally, during the comment period.

In our comments submitted today to USCIS, the Identity Project points out that the ongoing maintenance of the revised SAVE system without proper notice has been a crime on the part of the responsible Federal officials and employees.

We also argue that “the revisions to the SAVE system of records exceed the statutory authority of USCIS and violate multiple provisions of the Privacy Act.”

According to our comments:

The statutory mandate of USCIS is to carry out various functions with respect to naturalization and derivative citizenship. No statute requires USCIS to carry out any function whatsoever with respect to natural-born U.S. citizens, or to collect information about them. Nor does any statute require any agency to maintain a national registry of U.S. citizens.

Even if Congress were to authorize  a national ID registry, “records of Social Security numbers and account information and state drivers’ license records would not be ‘relevant or necessary’ to accomplish that purpose”:

Pursuant to the U.S. Constitution, an individual born in the U.S. acquires U.S. citizenship by birth. In the absence of a valid renunciation of citizenship — which would be executed and recorded by the Department of State, not by USCIS, the Social Security Administration (SSA), or state drivers’ license agencies — the sole fact that is relevant or necessary to ascertain their U.S. citizenship is the fact of their birth in the U.S., not whether they have a Social Security number or drivers’ license, much less any other information in SSA or drivers’ license records.

What is the relevance of whether someone has a Social Security number to whether they are a U.S. citizen? Non-U.S. citizens can and routinely do (and in many cases must) have Social Security numbers and accounts. What is the “relevance” of whether an individual has a driver’s license to whether they are a U.S. citizen? Many states can and do issue driving permits to non-U.S. citizens, on the basis of their demonstrated competence to operate motor vehicles safely rather than on the basis of citizenship. Neither the Social Security Administration nor state driver licensing agencies are authoritative adjudicators of U.S. citizenship, and neither of them has any need, for any of their official purposes, to ensure that whatever information about U.S. citizenship they may incidentally collect and maintain is either accurate or up to date.

Will anyone who doesn’t have a drivers’ license be presumed not to be a U.S. citizen?

A “citizenship” registry constructed in garbage-in, garbage-out fashion by aggregating state drivers’ license records that have nothing to do with citizenship will inevitably be incomplete, inaccurate, and unfit for the purpose of judging citizenship, eligibility to vote, or eligibility for other Federal programs.

Finally, we call out USCIS for violating the provision of the Privacy Act that requires information that is to be used to determine eligibility for Federal programs (the stated purpose of the SAVE citizenship database) to be collected directly from the individuals to whom it pertains:

The Privacy Act at 5 U.S.C. § 552a(e)(2) also requires that, “Each agency that maintains a system of records shall… (2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs.”

None of the additional information in the revised SAVE system would be collected directly from the subject individuals, as required by this provision, although all of it could be.

If USCIS wants to create a registry of all U.S. citizens (and if a valid law has authorized it to do so, which it has not), USCIS must “to the greatest extent practicable” sign individuals up directly for that registry, first providing them with the notices required by the Privacy Act.

You can submit your own comments here through midnight EST tonight, December 1, 2025.

Given that the criminals at USCIS responsible for maintaining the SAVE system ignored the law when they expanded it into a  national ID registry, kept it in operation for six months before publishing a proper notice of what they were already doing, and have kept it in operation in its illegally revised and expanded form during the comment period, we have little hope that they will now come to their senses and rescind the changes, much less that they will be prosecuted for their criminal violations of the Privacy Act.

We wish all success to the League of Women Voters and their partners in their ongoing litigation against the unlawful transformation of this immigration and naturalization system into a national database of aggregated (mis)information about all U.S. citizens.