Thursday, March 10, 2011

Amidst Continued Opposition REAL ID Delayed - AGAIN

Before I get to the article in CNet News detailing the latest buckling by the Homeland Security Department on the privacy abomination that is REAL ID, let me give you 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 I might add - and then signed into law by President Bush in 2005 as part of the government's effort to combat terrorism.

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.

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. Now that deadline has been moved back again!

This new federal identity document - REAL ID - would ostensibly be required of every American in order to fly on commercial airlines, enter government buildings, open a bank account, and more. The common reaction from citizens and states across the country has centered on the threat it would pose to individual privacy, the high costs states would incur to implement it, the increased danger of identity theft, and the possible loss of freedoms due to expanded government power.

As noted by the Electronic Frontier Foundation (EFF):

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.

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

Now to the latest news. As I mentioned above, the law was set to take effect May 11. But, Homeland Security Secretary Janet Napolitano indicated last week that she plans to delay the deadline for states to comply until at least January 2013. House Republicans have been arguing that we need to implement the law sooner, rather than later, but lawmakers from both sides of the aisle, particularly on the Democratic side, have continued to aggressively oppose the law -  urging straight out repeal.

Unfortunately, we lost the most effective leader against REAL ID last election, Russ Feingold, but we still have Senators like Patrick Leahy, who was quoted last week as praising the decision to delay implementation, stating, "“I have made no secret of my disagreement with this policy, which was rushed through Congress with little debate or consideration. This law has saddled the states with enormous costs and burdened citizens with the prospect of what effectively would be a national identification card. When so many states are struggling with extremely difficult budget choices, the last thing they need is to think about how to pay for this unfunded federal mandate." 

Declan McCullagh reported on Cnet: 

The reason Homeland Security granted the delay is that, apart from some Republican stalwarts in Congress, this law creating a digital nationalized ID is hardly popular, with critics calling it a national ID card. A chart (PDF) updated last month by the National Conference of State Legislatures lists 16 states, including Arizona, Georgia, Oregon, and Washington, with laws forbidding them to comply with Real ID and 8 states, including Colorado, Hawaii, and Illinois, that have enacted resolutions effectively boycotting it.

Once the regulations take full effect, the impact on Americans would be dramatic: Residents of the 24 states mentioned above would not be able to simply use their driver's license to fly or to enter a federal building such as a courthouse, even for jury duty. U.S. passports or military IDs, however, would remain valid for identification.


Because Real ID links state DMV databases, establishes a standard bar code that can be digitally scanned, and mandates that original documents such as birth certificates be verified, backers claim the benefits extend beyond antiterror and ID fraud cases. (Extending it to firearm and prescription drug sales has not been ruled out.)

Homeland Security's announcement today carefully neglected to mention the state-by-state revolt against these federal mandates, with state governments citing privacy, federalism, and funding as reasons for their refusal to cooperate. One estimate puts compliance costs as high as $11 billion.


During the Bush administration, Homeland Security was an unabashed champion of Real ID. But under the Obama administration, the department has been far less effusive in its support of the law, and Napolitano has been quoted as talking about repealing Real ID in hopes of replacing it with something that "accomplishes some of the same goals." As Arizona governor, Napolitano signed a law forbidding the state from complying with Real ID. 

Click here to read more.

The REAL ID program has appeared to be dying a slow death from the steady drip of states voicing their opposition for a long time now. Unfortunately, an improved yet totally unacceptable version of the act was gaining steam in the Senate, no doubt buoyed by support from the President and Homeland Security Chief Janet Napolitano, called PASS ID. Little media attention has been given to this new proposal, or the threat it STILL would pose to an individual's right to privacy.

Many of us - including a broad privacy coalition that opposes Real ID - remain concerned that such a variation of the Act will end up being the "compromise" position. It's not so much what such a compromised ID program would do differently, its what it would have in common: the creation of a national identification card. Whether its PASS ID, REAL ID, or a variation of the two, each would still endanger victims of domestic violence by failing to adequately shield their addresses, raise fees associated with identification cards, expose consumers to identity theft and fail to improve our nation's security.

Do we really want to create a database with all of our personal information in it? 

Here's EFF's take on the larger issues associated with a national ID type it with increased safeguards or not:

Proponents seem to be blind to the systemic impotence of such an identification card scheme. Individuals originally motivated to obtain and use fake IDs will instead use fake identity documents to procure "real" drivers' licenses. PASS ID creates new risks -- it calls for the scanning and storage of copies of applicants' identity documents (birth certificates, visas, etc.). These documents will be stored in databases that will become leaky honeypots of sensitive personal data, prime targets for malicious identity thieves or otherwise accessible by individuals authorized to obtain documents from the database.

Despite some alterations to the scheme, PASS ID is still bad for privacy in many of the same ways the REAL ID was. And proponents of the national ID effort seem blissfully unaware of the creepy implications of a "papers please" mentality that may grow from the issuance of mandatory federal identification cards. Despite token provisions that claim to give states the freedom to issue non-federal identification cards, the card will be mandatory for most -- the PASS ID Act seeks to require everyone to show the federally recognized ID for "any official purpose," including boarding a plane or entering a federal building.

In other words, even as REAL ID has been delayed yet again, stay tuned for more alternative approaches that may be slightly more palatable, yet still unacceptable.

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