PASS ID Versus REAL ID: An Inadeqaute Fix

As I always do when discussing REAL ID, before I get to the articles I want to highlight, I like to give a quick refresher course on the Act and the state revolt that it inspired:

The Real ID Act was approved by Congress - underhandedly as a rider - and then signed into law by President Bush in 2005 as part of the government's so called "war on terror".

At the time, few lawmakers even knew what they were voting for, or necessarily supported the concept to begin with. Since that time the law has evoked widespread criticism from privacy advocates and civil rights groups, which say it would create a de facto national identity card system that would be hard to manage and even harder to secure. The law requires states to issue new licenses which are supposed to screen potential terrorists and identify illegal immigrants.

Electronic Frontier Foundation (EFF) sums up the concerns of privacy advocates thusly:

Once the IDs and database are in place, their uses will inevitably expand to facilitate a wide range of surveillance activities. Remember, the Social Security number started innocuously enough, but it has become a prerequisite for a host of government services and been co-opted by private companies to create massive databases of personal information. A national ID poses similar dangers; for example, because "common machine-readable technology" will be required on every ID, the government and businesses will be able to easily read your private information off the cards in myriad contexts.

The States Rebel!

Since the law's enactment, at least 42 states have considered anti-Real ID legislation, and another 24 states have enacted anti-real ID bills or resolutions, and fourteen of those states have passed binding legislation prohibiting participation in the Real ID program. Five more states have already passed resolutions or statutes in 2009 - with Missouri likely becoming the next state to opt out of Real ID if its governor signs legislation currently before him.

Initially, States had until May of 2008 to implement Real ID, but the department extended that until Dec. 31, 2009. If they need more time and have met certain benchmarks, states can request an extension until May 11, 2011.

For everything that's wrong with the REAL ID Act, check out the REAL NIGHTMARE site.

The Birth of PASS ID

The Obama Administration has recently begun voicing its opposition to key components of REAL ID. This fact, combined with overwhelming state opposition, and the fast approaching deadline they face for implementation, has led to a renewed debate in the Senate as to whether it should be abolished altogether, or simply take a modified, more "mild" form, known as PASS ID?

Senator Daniel Akaka (D-HI) - seeking to reform the REAL ID Act - introduced the “Providing for Additional Security in States’ Identification Act” (PASS ID) last week with 5 co-sponsors, offering some important privacy protections, most notably, eliminating interconnected databases and repealing the requirement that states query other states or verify birth certificates with the originating agencies. The bad news is, PASS ID could ultimately become the basis for a National ID.

I would echo the comments made by the ACLU'S Chris Calabrese, Counsel of the ACLU Technology and Liberty Program:

“Senator Akaka is right in his efforts to eliminate a substantial number of the more problematic aspects of Real ID, including the creation of a national database of driver information and misuse of license information by the private sector...Any day now, we will have fully half of all states on record opposing Real ID. We agree with Secretary of Homeland Security Napolitano that the best solution to the Real ID Act is to repeal it.”

With all this said, let me get to my two featured "articles" today. Joan Friedlan, focuses on the anti-immigrant aspect of PASS ID in a piece entitled "The Real ID Act Is an Unfixable Disaster...Why Tinkering with it Won't Help". In this clip, she points out some of the disturbing similarities shared by PASS ID and REAL ID, which include:

Make non-citizens prove lawful immigration status to get a license. Immigration law is complicated, contradictory and ever-changing, so it is not surprising that REAL ID left out some categories of lawfully present immigrants who should be eligible for a license—such as trafficking—victim applicants for non-immigrant visas or those protected under the Convention against Torture.

PASS ID attempts to cure some of these deficiencies, but at the same time gives DHS unreviewable discretion to add categories of lawfully present non-citizens, leaving open the possibility that this might be done in a discriminatory or irrational way. States will likely find a shifting list of eligible immigration statuses to be confusing and cumbersome.

Recognize that exceptional circumstances – e.g. Hurricane Katrina – can make it impossible for people to provide the required documents for a license. States can set up an “exceptions process” to deal with this. But states can’t do the same for immigration status, even if people lose their documents proving immigration status in the very same disaster.

Require a passport as the only foreign document that can be used to prove identity and date of birth for a driver’s license—even though other documents such as birth certificates and school records can be used in actually obtaining legal status.

On a similar note, the ACLU has published a one page fact sheet that sums up quite nicely exactly why PASS ID is an inadequate fix for REAL ID. Here are a couple useful highlights:

PASS ID would impose the United States' first-ever national identity card system, which would violate privacy by helping to consolidate data and facilitate tracking. After a 5-year hiatus to allow for implementation, PASS ID will be required for boarding airplanes in the same manner as Real ID, and over time its use will almost certainly expand to cover other activities necessary to participate in society.

PASS ID mandates that all identity source documents be copied physically or digitally and retained as long as the license is valid. By creating troves of sensitive documents on millions of individuals, this provision will be a dream for identity thieves.

In a provision that is actually worse than Real ID, PASS ID will allow insecure technology such as radio RFID chips to be used as part of PASS ID, despite the strong potential that technology holds for tracking of individuals' movements. While PASS ID makes some concessions for the security of domestic violence victims, it still requires victims to get approval from the state before they can shield their identity.

Click here to read the fact sheet in full.

Again, I will defer to the ACLU on this, as I just couldn't agree more with the conclusion they reach on REAL ID, PASS ID, and what appears to be in the end, the government's continued efforts to march us, slowly but surely, towards a national identification card:

This legislation is entirely unnecessary because, thanks to the rebellion in the states, the Real ID Act is already dead...Rather than saving Americans from the Real ID legislation that they have rejected in such large numbers, PASS ID would actually rescue the core policies of Real ID at a time when it is about to die of its own misguided impracticality.

The problems inherent in Real ID cannot be solved by tinkering around the edges of the act. Instead, the entire unworkable system must be scrapped and replaced with a system that does not endanger Americans' privacy and civil liberties, such as a "negotiated rulemaking" process that brings together stakeholders to hash out wise and realistic improvements to driver's licenses (such a process was underway before Real ID shut it down). The PASS ID Act creates more problems than it solves, and it should not be viewed as a viable alternative to a true repeal of Real ID.

Perhaps the most important step Congress could take is to engage the American people in a real debate as to the value of a national ID. Remember, REAL ID was passed without that debate, and with fear as the trump card, and slipped deeply into a spending bill that funded the war and tsunami relief.

William Jackson of Government Computer news sums up this line of thinking nicely:

If the American people and their representatives agree that creation of some form of national ID makes sense, the government can then take steps to implement it in a way that is fair, reasonable and secure. But if we decide that people should not need papers to travel freely within the borders of their own country, the issue of creating and securing state databases of personally identifiable information becomes moot.

In the meantime, I'm afraid to say, that even as we are taking steps away from adopting the REAL ID concept as first proposed, we continue (with PASS ID anyway) moving towards something nearly as unnacceptable: a national identification card. Stay tuned...