Topic: Law and Civil Liberties

USA Today Goes 0-5 on REAL ID

This morning the Department of Homeland Security’s Office of Public Liaison was good enough to email me a copy of USA Today’s editorial supporting the REAL ID Act.  Curiously absent from the email was a copy of, or even a link to, ACLU Executive Director Anthony Romero’s opposing view.

It has been called unwise to argue with someone who buys ink by the ton, but USA Today’s praiseworthy adoption of “Web 2.0” interactivity on its Web site shows how ink is shrinking in relevance.  So let’s go ahead and see how the paper did in its point-by-point assessment of REAL ID.  Below, USA Today’s points are in bold.  My commentary in roman text:

Taking the arguments of Real ID opponents one at a time:

•It won’t make the nation safer. True, there’s no guarantee that the law would have stopped the 9/11 hijackers and that determined terrorists won’t find a way around the new requirements. Averting terror attacks, however, requires layers of security. Credible IDs are an important layer.

To be more clear, the law would not have stopped the 9/11 hijackers.  All of the 9/11 attackers could have gotten driver’s licenses legally had the REAL ID Act been the law on September 11, 2001.  Identification really doesn’t provide any security against committed threats.

“Layered security” is a legitimate way of thinking about things.  One shouldn’t rely on a single security system, because that creates a single point of failure.  However, security layering doesn’t end the inquiry.  Each layer must provide security that is cost-justified.  If creating a national ID doesn’t create a substantial protection - and it doesn’t - the national ID layer does more harm than good.  Speaking of cost …

•It costs too much. Motorists will have to spend an estimated $20 more, a relatively small sum for a standardized, tamper-proof license. For states, the costs are estimated at up to $14.6 billion over five years, offset by as much as $100 million in federal grants this year alone, on top of $40 million in federal aid already provided. Governors can make a case for more help, but cost-sharing arguments shouldn’t stop the program from going forward.

DHS’s own cost estimate is that REAL ID costs over $17 billion dollars.  That’s about $50 per man, woman, and child in the United States.  State government officials are probably not enthused to know that DHS is making available less than 1 percent of the costs to implement REAL ID.

•It violates privacy. The creation of large databases always is reason to be wary. But the new regulations don’t create a national ID card or giant Big Brother-like federal database. States will still issue the licenses and retain information used to verify identity. Making an existing database more credible threatens privacy far less than many private sector data collections do.

To most people, a nationally standardized, government-issued card that is effectively mandatory to carry is a national ID card.

No database, huh?  Here’s section 202(d) of the Act:

To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards: …

(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.

As to private sector data collections, these, at least, people can prevent.  But if the private sector is wrong to do this, two wrongs don’t make a right.

It forces illegal immigrants to drive without licenses or insurance. Illegal immigrants won’t be able to get Real ID licenses, but states will be allowed to issue permits allowing them to drive and obtain insurance. In any event, the nation’s immigration problems require a comprehensive solution in Washington; they can’t be solved at state motor vehicle departments.

When the state of New Mexico de-linked driver licensing and immigration status, uninsured vehicle rates in the state dropped from 33 percent to 17 percent.  Unlicensed driving, hit-and-run accidents, and insurance rates probably followed a similar course.  It’s true that states will be allowed to issue non-federally-compliant IDs, including to illegal immigrants.  Knowing that such cards are “for illegals,” illegals are unlikely to get them.  Thanks to REAL ID, these drivers will kill innocent law-abiding Americans on the highways.

It’s too hasty. This is just absurd. DHS gave states until the end of 2009 to have programs in place to replace all licenses by 2013 — a sluggish 12 years after the 9/11 attacks.

Each day that driver’s licenses lack credibility is a day of needless vulnerability. As DHS Secretary Michael Chertoff told Congress last month, “If we don’t get it done now, someone’s going to be sitting around in three or four years explaining to the next 9/11 Commission why we didn’t do it.”

Few have made the argument that REAL ID is “too hasty.”  The Department of Homeland Security’s regulations didn’t make the law workable and neither can a delay.  The real problem is the law itself, and it needs to be repealed.

Careful observers noted the contrast between Secretary Chertoff’s urgency when speaking to Congress about REAL ID and his Department’s willingness to kick implementation down the road another year and a half, to December 2009.  Cards wouldn’t even be in everyone’s hands until 2013.  This puts the lie to the idea that a national ID is a security tool at all.

USA Today’s editorial page has been rather good on privacy issues in the past, and willing to call out government hypocrisy.  They took a winger on this one and got it wrong.

A Look Over the Horizon? Look All Around!

You don’t have to look far over the horizon to know what life in America would be like if we had a national ID.  On Saturday, the Associated Press reported that a mall in Wauwatosa, Wisconsin is considering requiring ID from youths before they can enter.  This is private ordering, of course, but private ordering doesn’t happen in a bubble.  Private actors will be much more likely to check IDs if there is a nationally uniform ID system.

With IDs and credentials of different designs and from different issuers in our hands today, ID checking is relatively rare, and rarely automated.  Nonetheless, companies like Intelli-Check are pushing electronic ID-checking systems for nanny-state purposes. They would have a much easier time if all of us carried the same card and it was effectively mandatory.  Keep in mind that more ID checking equals more personal data collection.

In tiny Earlville, Illinois, a woman named Joy Robinson-Van Gilder has started a one-woman crusade against her local public school which decided to use fingerprint biometrics to administer the purchase of hot lunches in the cafeteria.  Despite her wishes, they fingerprint-scanned her 7-year-old, for a time refusing to allow him hot lunches if he wouldn’t use their system. 

The starting point for this kind of program is using it to manage lunch payments, but the ending point is a detailed record of each child’s eating habits and the school usurping the role of parents.  It’s no wonder government schools are at the center of so much social conflict.

There is nothing inherently wrong with identification or with biometrics but, unless they are adopted through voluntary choice, they will be designed to serve institutions and not people.

The Federal Communications Commission Versus the First Amendment

Newspapers and movie studios have reasonably good protections from government intervention and censorship. But as Steve Chapman explains, the Federal Communications Commission successfully has limited the First Amendment rights of television networks:

The First Amendment’s guarantee of freedom of speech has complex implications, but it clearly means two things: The government cannot tell you what to say, and it cannot tell you what not to say. That is your own business, and if you conduct it in a way the government dislikes, the government can take a flying leap. Unless by “government” you mean the Federal Communications Commission. It operates on the assumption that in its special realm, the First Amendment is a nonbinding resolution.

In addition to the constitutional argument, he makes two excellent points. First, improving television quality (as defined by politicians) is not the business of government. Second, parents should decide what their kids see, not bureaucrats:

…parents who want to shield their kids from bad language on TV already have ample means to do so – via channel blocking and V-chips that can be used to filter out programs with content they regard as inappropriate. The FCC says these methods are ineffective because parents don’t use them. More likely, parents don’t bother because they don’t think the problem is serious enough to justify the effort to shield kids from words they’ve already heard on YouTube. To insert the federal government is not a way to strengthen the authority of parents but to circumvent it. …The idea that we need the FCC to assure educational opportunities for children is nonsense on stilts. In the first place, there are plenty of channels, from PBS to the Discovery Channel, that offer nothing but educational programming. …In the second place, any parents truly interested in exposing their children to intellectual stimulation are more likely to shut the TV off than turn it on. Even if more educational programming would be a good thing, what business is that of the government? More G-rated films would be a good thing, too, but we don’t force movie studios to produce them. …Today, most viewers no longer distinguish between cable and broadcast programs. So having different rules for each makes about as much sense as having different regulations for odd- and even-numbered channels.

Pork and Principle

The Hill reports that Blue Dog Democrats are very concerned about the proper balance of powers between the president and Congress. But for a big hike in farm subsidies, they’ll forget about that little constitutional matter. 

House Democratic leaders will add nearly $4 billion for farmers to a bill funding military operations in Iraq and Afghanistan to attract conservative Democrats concerned that the measure would wrongly constrict President Bush’s power as commander in chief.

The Democrats hope that moderate Republicans are just as malleable:

Democrats may also add money for children’s health insurance in the hope of winning the votes of Republicans such as Illinois Reps. Mark Kirk (R) and Judy Biggert (R), whose home state faces a $240 million deficit in its State Children’s Health Insurance Program (SCHIP).

To be fair, there’s no proof in the story that Kirk and Biggert are considering such a deal, but Republican leaders are reported to fear it.

In the civics books, they tell us that members of Congress deliberate about war, separation of powers, balanced budgets, and so on, and then make collective decisions. If you read a newspaper, though, you soon learn about logrolling and other budget games. Still, it’s one thing to trade your vote for farm pork for the other guy’s vote for urban pork; the taxpayers lose twice, but at least it’s only money. Trading your vote on a matter of life and death, which is also a fundamental constitutional issue, for a few billion in home-state pork seems entirely unbecoming to a member of the legislature of the world’s most successful republic.

Senator Susan Collins Supports National ID

I wrote here previously about Senator Susan Collins’ odd move to protect the REAL ID Act from a nationwide rebellion that began in her own state of Maine.  She had introduced a bill to extend the deadline for implementation of the REAL ID Act by two years.

Followers of REAL ID know that delaying implementation helps a national ID go forward by giving the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

It is now clear that the bill is intended to provide a key piece of support to proponents of a national ID, as shown by a press release on her Web site this morning touting a statement from the National Governors Association.  Collins has gone native, attending more carefully to the interests of national political organizations than to the interests of her constituents in Maine.

Representative Tom Allen (D-ME) has introduced legislation to repeal REAL ID and restore the identification provisions in the 9/11-Commission inspired Intelligence Reform and Terrorism Prevention Act.  Unlike Collins, he seems to be paying attention to his home state.  Politicians’ stances on REAL ID have affected their electability in the past.

Senator Collins should be well aware that delay can’t make the REAL ID Act work.  The real problem is the law itself, and it should be repealed.

Update: A DHS press release issued today announces that it will grant states an extension of the compliance deadline, and it will allocate funds from the Homeland Security Grant Program.  The money tree has already begun shaking.  Secretary Chertoff is quoted saying, “We are also pleased to have been able to work with Senator Susan Collins, and I believe that the proposed regulations reflect her approach.” 

FBI Scandal

The FBI looked the other way when it knew that several people were being framed for a crime they did not commit.  Some might say, “Well, we all know there were certain abuses when Hoover was running the bureau in the ol’ days.”  But behold the argument advanced by the attorney representing the United States government:

Yesterday, a Justice Department lawyer argued that the FBI had no duty to share internal documents with state prosecutors and insisted the state was responsible for convicting the men in the slaying of Edward “Teddy” Deegan in Chelsea.

“The United States is not liable to plaintiffs because they were convicted as a result of a state prosecution,” Bridget Bailey Lipscomb said. “The FBI did not initiate this prosecution, and there is no duty of the FBI to submit to state or local governments any of its internal files.”

The government is not denying the fact that it knew what was happening. Nor is it saying the plaintiffs were wronged but are asking for too much money.  The government is instead arguing that it had no duty to come forward. 

At a minimum, one might ask what the FBI means when it says that one of its “core values” is “Accountability [by] accepting responsibility for its actions and decisions and the consequences of its actions and decisions.”  Maybe the director means that his agents will not arrest people who bring lawsuits against the bureau alleging illegal conduct.  Maybe he means something else. 

At worst, criminal laws were broken here.  An ordinary citizen can go to jail for suborning perjury.  It is also a crime to stand by and let a crime take place without notifying the authorities (misprision of felony).  The feds evidently believe they are not bound by these rules.  Pretty shocking.  Even if the judge rules against the Department of Justice, we should not forget what it argued in this case.

To listen to a Cato event on the FBI’s informer scandal, go here.