DHS is gamely trying to press states to make the national ID law workable. Its inventiveness in rewriting the law and improvising deadlines draws into question whether the agency is acting with dispassion or with vindictiveness toward states that it sees as opportune victims of federal punishment.
Consistent with precedents both longstanding and recent, the Court should recognize that telecommunications customers can have property rights in such data, and that when the government seeks to seize and search such data, it generally requires a warrant.
If fully implemented, REAL ID would be a de facto national ID card administered by states for DHS. The back‐end database system would be vunerable to hacking risks and access by corrupt DMV employees anywhere in the country.
For the tiniest increment in national security—inconveniencing any foreign terrorist who might use a driver’s license in the U.S.—REAL ID increases the risk of wholesale data breaches and wide‐scale identity fraud. It’s not a good trade‐off.
Transparency is a legacy issue for President Obama, who campaigned in 2008 on promises of true reform. The transparency movement is a reform movement based on a vision of modern government. Sunstein and Yglesias make modest arguments against transparency that don’t appear to recognize the government’s long, systematic exclusion of the public from its processes or the resulting atrophy of Americans’ civic muscles. Thus, they too easily conclude that transparency is not necessary because it’s not useful.
Though it has called the “reasonable expectation of privacy” test and its odd corollaries into question, the Supreme Court has not provided a clear path for lower courts. Judge Gorsuch’s opinion in U.S. v. Ackerman is a game attempt at finding the right path.