Tracking America: An All Too “REAL” National ID

By James Plummer

Signed into law recently was the “REAL ID Act,” which had been attached to the “emergency” supplemental spending bill (headlined by money for Iraq operations and tsunami relief). REAL ID will move America beyond a mere de facto national ID into new Big Brother territory.

Title II of the REAL ID Act repealed the language concerning state driver’s licenses from the last Congress’ intelligence reform package in favor of even more troubling anti-privacy provisions. The most troubling aspect of the license provisions is the requirement that states interlink their identity databases with standardized sets of data, such as name, date of birth, and Social Security Number.

The other major problem with the new law is that the Homeland Security Secretary is given sole power to write the design requirements for state driver’s licenses, with only undefined “consultation” offered by the Secretary of Transportation and the states. This is troubling not only because of the expansion of Department of Homeland Security’s (DHS) unilateral power at the expense of the states and the Transportation Department, but also because of two elements of the design requirements.

The requirement for a “common machine-readable technology” could easily be construed by the Homeland Security Department to include radio frequency identification (RFID) microchips, which broadcast all of the information contained on the license to anyone in range with the proper reading equipment. The State Department, alarmingly, has reportedly adopted an unencrypted RFID standard for redesigned passports; and the Virginia legislature considered RFID as the preferred machine-readable technology for driver’s licenses in a hearing last year.

Even if the standard is, at first anyway, a magnetic strip similar to the one on the back of credit cards, we are still looking at a situation where one standardized reader, available to private businesses as well as all kinds of law enforcement officers, can pull sensitive identity information from a driver’s license with one swipe. That swipe also creates a record of your presence – a record ripe for plucking by the data brokers who in turn sell the information to Total-Information-Awareness type surveillance programs run out of the Pentagon, a record vulnerable to the kind of “administrative” subpoenas being pushed through the Congress by the White House.

Additionally, the design requirement for “physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes” is so broad that Homeland Secretary may read it to include fingerprints, scans of the iris or retina of the eye, or even DNA.

Provisions in the REAL ID Act could also provide the tools necessary for a backdoor introduction of gun control. The bill would grant Homeland Secretary the power to determine what one needs to do to get a driver’s license -- and who may or may not get one. Since Americans now need a driver’s license to purchase a gun, DHS would also have the ability to control who can exercise their gun rights. Gun-rights activists are concerned that under a future anti-gun administration, a mainstream gun-rights group could be determined to be a “terrorist organization” and its members ineligible for drivers licenses.

Finally, the REAL ID Act imposes extremely costly mandates on strapped state governments. The National Council of State Legislators calls the mandates “impossible,” and estimates compliance costs of an initial $500 million to $750 million and ongoing annual costs of $50 million to $75 million. Given the nature of government, it is likely the actual numbers will be anywhere from three to 10 times as large. States who don’t comply will have their drivers licenses refused for identity from federal agents. That means that the Homeland Security TSA agents at the airports will bar citizens of those states from boarding planes. (Citizens with a US Passport may be allowed on board, however.)

Up until the final version of the bill, the text of REAL ID also would have had states join something called the “Driver License Agreement.” That agreement, a proposed interstate compact, had been drafted by AAMVA, the Association of American Motor Vehicle Administrators -- a kind of trade association of DMV bureaucrats. The compact, which no state has voluntarily joined, would also allow the states and provinces of Mexico and Canada to join into this database system -- without further input from state elected officials.

Fortunately, perhaps due to lobbying efforts of the Liberty Coalition and affiliated organizations, that one provision was pulled from the bill in conference. So, for now at least, our new Orwellian national ID card will not be a tri-national ID card. In the meantime, state driver’s licenses over the next few years are set to have everything standardized besides the typeface, and as this document is required at every airport it will serve as a de facto internal passport system.

The fallout from REAL ID will continue as the countdown to the 2007 deadline set for the states to comport their Motor Vehicle Departments and document-security practices. Litigation from civil-liberites and immigration groups is possible. The state house of Montana has already passed a bill declaring that state will not participate in any schemes to turn their state drivers licenses into national ID cards. If a handful of states can be persuaded to pass such a bill into law, the federal government will be forced to reconsider the whole REAL ID and the house of cards may come tumbling down.

James Plummer is Policy Director of the Liberty Coalition, a transpartisan working group concerned with privacy and Bill of Rights issues. Visit www.libertycoalition.net.