REAL ID, Rumor Control, and You

The Identity Project says that a new DHS “Rumor Control” web page lies about the REAL ID Act. That may be true, but a lie is an intentional misstatement, and we don’t know if the PR professional who wrote the material on that page knows the issues or the law. Let’s review the record, taking each of the rumors DHS addresses in turn, so that the agency doesn’t misstate the federal government’s national ID policy in the future.

Rumor: I need a passport to fly domestically

The DHS is correct that residents of any state can currently use their drivers’ licenses and IDs, as well as a variety of other forms of ID, at TSA checkpoints. Last fall, though, in an effort to buffalo states into compliance, DHS officials and others started fanning rumors that TSA would soon refuse the IDs and licenses of states that resisted the national ID program. You don’t need a passport to fly yet.

Given the practice of checking IDs at airport checkpoints, the upshot of REAL ID compliance would be that the U.S. will have an internal passport system for domestic air travelers. You don’t need a passport to travel within the United States now, but that is the direction the policy is going.

Rumor: TSA isn’t going to accept my driver’s license starting on January 1, 2016

It must have been reassuring when DHS’s “Rumor Control” page started spreading this good news on December 31, 2015….

After deferring deadlines many times since the statutory deadline came and went in May 2008, DHS said last year that it would begin to refuse IDs from recalcitrant states “no sooner than 2016,” and it has said it would provide 120-days’ notice before it did. But the desire to manufacture urgency and bring states to heel seems to have gotten the better of the department, and refusal of IDs on January 1 became a widespread belief.

In fact, TSA will never institute a policy of turning away travelers from recalcitrant states. The reason why is the tidal wave of blame the agency would bring down on itself and the Congress if it ever followed through on this threat.

That doesn’t mean its brinksmanship won’t work. Many governors and state legislators haven’t calculated what the politics look like, and they don’t know that DHS has backed down every time a state has refused them.

What’s also little understood is that DHS is picking and choosing which states to threaten based not on the REAL ID law, but on an in-house “material compliance checklist.” DHS is issuing blanket waivers of some terms of the law to some states while it tells state officials in other states that it is absolutely required to enforce other terms against them.

Rumor: I need to get a new driver’s license or passport

The DHS response here says, “The REAL ID Act places the responsibility for action on the state, not residents of the state.” A more complete clarification would say, “The REAL ID Act threatens residents of states to coerce action out of their state representatives.”

The only thing that might require people to get new driver’s licenses is their state legislatures and governors caving to the DHS and putting them into the national ID system. People in those states will be required to go back to the DMV and stand in line to show papers proving that they’re legally entitled to be in the country. That’ll be a challenge for many people, an insult to others, costly and time-consuming for everyone.

Rumor: The Department of Homeland Security is trying to build a national database with all of our information

DHS should not try to refute this again. Doing so is untruthful, false, not accurate, and incorrect. As I’ve noted before, the law requires states to

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State.

(13) Maintain a State motor vehicle database that contains, at a minimum –

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and
(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

Who knows why those two items are listed out of order, but compliance with REAL ID means maintaining a big database and sharing it with every other state. States that don’t do that are non-compliant with the REAL ID Act. DHS isn’t requiring it yet—it’s not on their “material compliance checklist”—but if states get on board, DHS will add this statutory requirement to the list.

REAL ID compliance now will put states “in for a penny, in for a pound.” They’re going to have to share lots of information about their residents with other states and the federal government.

Rumor: I can’t use my license to access a federal facility or nuclear power plant

As part of its staged implementation, DHS says that agencies are to refuse IDs from non-compliant states at federal facilities and locations regulated by federal identification rules. You see lots of announcements in the Federal Register about meetings where IDs from non-compliant states will be refused, and I’ve heard anecdotes about people coming to Washington, D.C., for government meetings being warned to have compliant IDs if their states are on the wrong side of DHS. What we haven’t seen yet is anyone actually turned away from a meeting, a courthouse, or other location because the only ID they had was from a non-compliant state.

When someone is turned away from a meeting or government facility for not having a national ID, the lawsuit will be really interesting. DHS will have to claim that it can condition the right to petition the government (for example) on showing ID. And it will raise the question whether a person can be denied a constitutional right because they live in a state whose driver licensing policy differs from what the federal government prefers. The lawsuit will also expose that DHS is picking and choosing among provisions of the REAL ID law to treat as “compliance.”

So, if you want your life to be easy, bring a passport on your next tour of a nuclear facility. But there are people in the country who stand on principle for liberty, sometimes at substantial cost to their convenience.