TechKnowledge No. 108

The REAL ID Act: An Update

In just seven short months, states will begin issuing drivers’ licenses and identification cards in accordance with federal standards, and they’ll begin making their databases of driver information available nationwide. At least, that’s how the REAL ID Act would have it.

In fact, it’s unlikely that a single state will comply with this national ID law - a whopping unfunded surveillance mandate passed hastily by Congress in May 2005. The Department of Homeland Security asked states to commit to REAL ID or ask for an extension by October 1st, so now is a good time to review where things are with REAL ID, and perhaps see where they’re going.

Congress passed REAL ID in May 2005. Attached to a military spending bill, it was adopted without a separate vote in the Senate and without a hearing in either house of Congress. The law purports to set federal standards for state-issued drivers’ licenses and IDs. If states don’t meet the standards by May 2008, it says, they won’t be acceptable for federal purposes. The most important of these purposes is air travel - showing ID at airport checkpoints - but the law allows the Department of Homeland Security to add others.

Driver licensing and identification policy have always been based on local needs, but the REAL ID Act sought a federal takeover of Departments of Motor Vehicles. REAL ID would require state DMVs to accept a federally defined set of documents as proof of identity, and it would require DMVs to verify these documents with issuers - never mind that the infrastructure for doing this is pretty much imaginary. More concerning, REAL ID would require all IDs and licenses to have a common “machine-readable technology” - the groundwork for routine, automated checking of all Americans’ IDs. Even worse, DMVs would make the driver information in their databases available nationwide. The privacy and data security of Americans? DHS would deal with it in the regulations.

In late 2006, with the REAL ID deadline looming and no clarifying regulations out of the DHS, state leaders were getting antsy. Facing an unfunded mandate estimated at $11 billion - a mandate to build a federal surveillance infrastructure, no less - states across the country began to voice their displeasure. Maine was first. A bipartisan, nearly unanimous resolution against REAL ID passed both the state senate and the state house on the same day.

When the regulations finally did come out, they gave states no solace. The total cost of compliance, by DHS’s own estimate, was $17 billion. And Americans’ privacy and data security? DHS left it to the states. The regulatory analysis of its work - DHS’s big chance to show how REAL ID would benefit the country - made no attempt to describe - much less quantify - how REAL ID would add to the nation’s protections. It did find that REAL ID might suppress identity fraud - but by an embarrassingly small amount. REAL ID would bring a dime in identity security for every dollar spent.

The regulations proposed an interesting bargain to states: If they committed to compliance by October 2007, the Department of Homeland Security would ignore the law’s deadline and give them until December 2009 to figure out how to do it. The deal did not win states over to DHS’s national ID program, though, and they continued to pass resolutions and bills outright refusing participation in REAL ID. A total of 17 states have now passed such legislation.

In the meantime, Congress was taking notice of what it had done. In early 2007, it held its first hearings on the law passed two years prior. This helpful exposure of the errors in REAL ID’s ways was not enough to prompt corrective action, but a couple of times since then REAL ID has come up in Senate debate. These episodes reveal the lack of support for a national ID now that the idea has gotten some examination.

In the debate on immigration reform, for example, REAL ID was part of the consensus bill’s “internal enforcement” provisions, requiring Americans to have a REAL ID when they applied for work. In the United States of America, a national ID would have been required to earn a living. This noxious provision catalyzed the downfall of the immigration bill. When the Senate refused to table an amendment striking REAL ID from the bill, debate stalled, and the bill died.

A similar vote during debate on the Department of Homeland Security appropriations bill a month later again showed that the Senate has no stomach for the REAL ID Act. Taking the stance that Congress should fund REAL ID or repeal it, Senator Lamar Alexander offered an amendment to spend $300 million dollars on grants to states for REAL ID compliance. The Senate did not adopt the amendment.

With a significant number of states committed not to implement the national ID plan, the Congress unwilling to prop it up or fund it, and the DHS yet to issue final regulations, REAL ID is mostly dead. But government contractors and state bureaucrats are still working to build this national ID system, going so far as to train up for REAL ID advocacy using taxpayer funds. At a recent REAL ID conclave in Washington, D.C., DMV bureaucrats sat through panels with titles like, “Bringing Your Public Onboard … .”

Some border states are pushing forward with licenses and ID cards that might be REAL-ID- compliant because DHS is holding them out as a potential border crossing card. The Western Hemisphere Travel Initiative - another of the federal government’s false-security excesses - restricted Americans’ travel to Canada and other neighboring countries starting in January. Because of this, and despite legislation to reject REAL ID, the bureaucracy in Washington State, for example, is moving forward with a “hybrid” license easily convertible to the REAL ID system.

Good things are happening in other states, though. In New York, Governor Elliot Spitzer has taken a sensible approach - treating his state’s driver’s license as simply that: a license to drive. He recently announced that drivers’ licenses would be available to New Yorkers without regard to their immigration status. Spitzer’s belief is that using the driver’s license as an immigration card causes illegal immigrants to avoid licensing and the training that comes with it. This increases unlicensed driving, uninsured driving, and hit-and-run driving. It raises insurance costs for legal drivers and increases roadway injuries. Spitzer is not willing to shed the blood of New Yorkers to “take a stand” on immigration, which is not a problem state governments are supposed to solve anyway.

It’s a welcome - and somewhat surprising - move, to see a Democrat and law-and-order-type former attorney general resist mission creep in a state bureau and hold fast to the federal system devised in the constitution. But he’s done the right thing. Thanks most recently to Governor Spitzer, and to state leaders from across the ideological spectrum, REAL ID is in collapse. There are bills in the U.S. Senate and House to repeal REAL ID, but Congress has yet to fully acknowledge its error. And advocates for a national ID, and all the surveillance that comes with it, will not give up without a fight.

Jim Harper is director of information policy studies at the Cato Institute. To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.