Invasive ID

States and privacy groups pick a fight with the Real ID Act.

by / May 26, 2005
If underage drinkers find it so easy to manufacture fake IDs, what's stopping terrorists from doing the same? And why is it so simple for illegal immigrants to acquire legitimate drivers' licenses?

These questions troubled Rep. James Sensenbrenner Jr., R-Wis., who introduced legislation earlier this year designed to keep terrorists from using drivers' licenses as identification.

The broad set of rules, known as the Real ID Act, would require states to issue federally approved electronic identification cards, including drivers' licenses. Licenses and ID cards must include a digital photo and anti-counterfeiting features, such as undefined "machine-readable technology with defined minimum data elements." Radio frequency ID tags or magnetic strips are two examples of machine-readable technology the ID cards could feature.

In addition, states would be required to demand proof of the person's Social Security card and birth certificate before issuing a license. States would also be required to link their license databases if they wished to continue receiving federal funds.

Technically the legislation's requirements aren't mandatory, however, if states don't opt in and use them for issuing drivers' licenses, the licenses would be unacceptable at any federal service or site.Any American without approved identification would be denied access to all federally controlled sites, such as airplanes, trains, national parks, federal courthouses and other places.

Because the new standards aren't mandatory, the legislation doesn't create a national identification system, according to the bill's supporters.

"The goal of the Real ID Act is to prevent another 9/11-type attack by disrupting terrorist travel," said Sensenbrenner when he introduced the legislation. "American citizens have the right to know who is in their country, that people are who they say they are, and that the name on a driver's license is the holder's real name, not some alias."

The legislation, which passed in the House on Feb. 10, 2005, is under consideration in the Senate where its fate is less certain. At press time, the bill had been read twice in the Senate and referred to the Senate's Committee on the Judiciary.

Opponents Find Flaws
Though the bill is backed by numerous groups, including the Coalition for a Secure Driver's License and the 9/11 Families for a Secure America, it has a broad and diverse group of detractors.

State groups, such as the National Governors Association (NGA) and the National Conference of State Legislatures (NCSL), oppose the bill. So does the American Civil Liberties Union (ACLU), as well as the American Conservative Union, the Free Congress Foundation and the Republican Liberty Caucus, to name a few.

The ACLU opposes the Real ID Act for what it sees as an anti-immigration bill masquerading as rules to stop terrorism. The bill would prohibit states from issuing drivers' licenses to illegal immigrants. Currently 10 states issue licenses to applicants regardless of their immigration status.

"The House has made one of its first must-pass bills a measure that would do little to enhance our security while severely undermining our national commitment to freedom and liberty," said Timothy H. Edgar, an ACLU legislative counsel. "The bill takes ideas rejected by Congress last session and seeks to create significant hurdles to the persecuted seeking safe haven here."

Last year, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004, which called for the federal government to work with states to develop workable standards for drivers' licenses and personal identification.

The NGA, NCSL and the American Association of Motor Vehicle Administrators backed that legislation with varying degrees of support.

But in a letter sent in March to Sens. Bill Frist, R-Tenn., and Harry Reid, D-Nev., in anticipation of the Senate taking up the Real ID Act, the NGA observed that the House version of the bill contains a provision that would burden states with costs.

"H.R. 418 would impose technological standards and verification procedures on states, many of which are beyond the current capacity of even the federal government," the letter said. "Moreover, the cost of implementing such standards and verification procedures for the 220 million drivers' licenses issued by the states represents a massive unfunded mandate."

States expressed concern that the implementation cost of the Real ID Act will run in the hundreds of millions, if not billions, of dollars.

Another feature of the bill that has opponents fuming is the provision that would allow the secretary of homeland security to have virtually uninhibited legal control to ensure that security standards protect the country's borders. In an editorial, The Washington Post called the provision "bizarre."

Piercing Privacy
Despite all the attention focused on unfunded mandates, extreme legal provisions and anti-immigration requirements, the Real ID Act poses a real threat to privacy, according to one security expert.

Richard Hunter, vice president and research director for the Gartner Executive Programs, and author of the book, World Without Secrets, explained that the bill contains no legal constraints on what can be done when access to identification information is authorized.

Authorization occurs when an individual allows someone to scan the card containing biometric and other identification information, said Hunter, and because of that, the Real ID Act will make it much easier to gather identity data and use it for other purposes.

Hunter mentioned the recent experience of bars in Boston and New York purchasing scanners to read embedded data on Massachusetts and New York licenses to find bogus IDs used by underage drinkers.

Little attention was given to the fact that the scanners can capture the data stored on magnetic stripes or chips embedded in the IDs and drivers' licenses. Under the Real ID Act, there's nothing legally wrong with allowing bars to distribute that information to a third party, according to Hunter.

"The Real ID Act provides no legal restrictions on the ability of a private firm to collect and store such data," he said.

More worrisome than bars collecting the data is government agencies' ability to scan drivers' licenses, which could contain biometric information about the individual.

"It used to be you had to commit a crime before the government would gather a biometric from you," he said. "Under this legislation, they are saying, 'We'll do it regardless.'"

Given that many private-sector entities that collect background information on citizens get a great deal of their data from the government, Hunter wondered, what's to stop them from gathering biometric information as well?

According to a 2002 survey conducted by Gartner and Harris Interactive, two-thirds of those polled supported national IDs, provided their uses were restricted to activities such as validating identification at the U.S. border. However, when the number of uses increased, support for a national ID dropped dramatically, according to Hunter.

Just as revealing was the fact that less than 16 percent of the survey respondents trusted state DMVs to manage a national identification system.

America's willingness to allow the government to collect and store biometric information for security purposes will be sorely tested by the current federal legislation.
Tod Newcombe Features Editor