Tag: real id act

Is a ‘Non-Federal’ License Still a National ID?

The Department of Homeland Security has been pressuring state legislatures to implement our U.S. national ID law, the REAL ID Act. States are free to set their own policies because the DHS will always back down. But many state legislators don’t know that. They’re in a bind where they feel obligated to obey federal mandates, but they want to do right by the citizens of their states. Law-abiding Americans shouldn’t have to scrounge up long-lost identity documents, stand in line at DMVs, and see themselves entered into a national ID system just so they can carry a driver’s license.

So practical legislators are seeking that golden compromise, which the REAL ID Act seems to hold out. But watch your wallet, because a “non-federal” license may still be a national ID.

REAL ID permits the issuance of “non-federal” licenses and IDs. These can be issued without the many stringent, time-consuming, and annoying requirements of REAL ID. Such a card simply has to state clearly on its face that it may not be accepted by federal agencies for official purposes, and it must use unique designs or colors to indicate this.

But REAL ID also requires compliant states to give all other states access to the information contained in their motor vehicle databases. The law requires them to share all the data printed on the REAL ID cards, as well as driver histories, including motor vehicle violations, suspensions, and points on licenses.

That leaves an open question: Does the REAL ID Act require nationwide info-sharing on every licensee? Or just the licensees who carry REAL ID cards?

The question is important, because of the huge data security implications from exposing data about every driver to the motor vehicle bureau of every other state. A good reason to avoid REAL ID is to avoid the risk that a rogue DMV employee in any state can access the data of drivers in all the others. That’s a recipe for mass-scale identity fraud.

Drivers who are worried about identity fraud and their privacy should be able to opt out of this information sharing. While we’re at it, the privacy of security-conscious drivers could be protected if “non-federal” licenses came without the “machine-readable zone” that REAL ID requires. It allows easy collection of driver data and tracking with every swipe or scan of the card in a digital reader.

States should really resist REAL ID entirely. Congress should stop funding it and repeal the unnecessary and burdensome national ID law. But if there are to be “non-federal” IDs from compliant states, it would be nice if they offered Americans a way to opt out of the insecure information-sharing requirements in this national ID system.

Why Should California Obey Federal National ID Demands?

If California were to decline to follow federal driver licensing mandates, would the Transportation Security Administration turn Californians away at our nation’s airports, preventing more than 10% of the nation’s population from flying? Of course not. The outrage would be palpable, and it would be directed at the federal government’s most unpopular agency, TSA.

But the incredibly low risk of federal punishment is apparently what spurred the California legislature to pass A.B. 1465, which now sits on Governor Jerry Brown’s desk. If signed, the bill would move California another step closer to compliance with the REAL ID Act, increasing the burden on California driver’s license applicants just a little more, so that TSA will continue to defer enforcement of the national ID law as to California.

But TSA hasn’t enforced REAL ID for any state since the statutory compliance deadline in 2008. (It’s ongoing mass deferment is disguised by crediting some states with satisfying a “material compliance checklist.” Find a history in our report, REAL ID: A State-by-State Update.) The reason why is not kindness on the part of the feds or good faith progress on the part of states. It’s the fact that the federal government does not have the power to demand compliance from states. State leaders would not be blamed if TSA denied people’s IDs at the airports. TSA would be.

There is no need for California to spend a dime on REAL ID compliance, but the most recent analysis of A.B. 1465 says the California DMV would incur costs of approximately $5.56 million in 2016-17 and $5.4 million each year after that. The legislator most responsible for delay and expense at the DMV is Assemblymember Rich Gordon (D-Menlo Park).

The spending is absolutely unnecessary. The federal government will always back down. There is no reason California should obey federal national ID demands.

New Hampshire Ends Brief Flirtation with National ID Compliance

When the REAL ID Act passed in 2005, Senator Joe Lieberman (D-CT), no civil libertarian, called the national ID law “unworkable” for good reason. It seeks to herd all Americans into a national ID system by coercing states into issuing drivers licenses (and sharing information about their drivers) according to complex federal standards.

The hook REAL ID uses in seeking to dragoon states into compliance is the threat that TSA agents will refuse IDs from non-complying states at our nation’s airports. The threat is an empty one. Consistently over years, every time a DHS-created compliance deadline has come around, state leaders with spines have backed the Department of Homeland Security down. I detailed the years-long saga of pushed-back deadlines last year in the Cato Policy Analysis, “REAL ID: A State-by-State Update.”

DHS has stopped publishing deadline changes in the Federal Register–perhaps the endless retreats were getting embarrassing–and now it has simply said on its website that TSA enforcement will begin sometime in 2016. But it’s evidently back-channeling threats to state officials. Those folks–unaware that REAL ID doesn’t work, and disinterested in the allocation of state and federal power–are lobbying their state legislatures to get on board with the national ID program.

REAL ID: Walking Dead

The REAL ID Act is a federal law that calls on states to knit their driver licensing systems together into a national ID. Congress passed it nine years ago yesterday, setting a three-year deadline for state compliance.

You might think that a program would be dead if it failed to materialize after more than triple the time Congress gave for its implementation. But REAL ID is walking dead.

After the law passed, half the states in the country passed resolutions objecting to REAL ID or laws barring their states from complying. And the Department of Homeland Security has pushed back the deadline again and again and again. But the federal government keeps funding REAL ID, and state bureaucrats keep plodding forward with the national ID system.

In a Policy Analysis released today, we examined the progress of REAL ID in states around the country. REAL ID: A State-by-State Update reveals that some states’ legislatures have backtracked on their opposition to the national ID law. Some motor vehicle bureaucrats have quietly moved forward with REAL ID compliance contrary to state policy. And in some states, motor vehicle bureaucrats have worked to undercut state policy opposing REAL ID and the national ID system.

Louisiana recently reversed course and embraced the national ID law. The District of Columbia began requiring drivers to get REAL ID-compliant licenses effective May 1st.

Funds for implementing REAL ID come from DHS annual budget, which is appropriated by the House and Senate Appropriations Committees’ homeland security subcommittees. Congress has put around $50 million a year toward REAL ID in recent years, part of $300 to $500 million a year it spends on identification and tracking programs.

The alternative is better: Congress could save money and protect liberty if it fully defunded REAL ID. State political leaders should check to see if the administrators who work under them are building a national ID contrary to state policy, or if bureaucrats are lobbying to put the legislature behind the national ID program.

It hasn’t been implemented, but because it hasn’t been repealed or defunded, REAL ID awaits the day when the political winds blow in favor of a national ID.

The ObamaCare Rebellion Turns Exchange ‘Deadline’ into a ‘Rolling Deadline’

The Obama administration had set a deadline of November 16 for states to signal whether they would create their own health insurance “exchanges,” or let the federal government do it.

But the federal government is so desperate to have states do the heavy lifting, and so few states are interested, that for some time (most recently in a National Review Online column that posted yesterday) I have been predicting the Obama administration would push back that deadline. It seems I was right. Well, today’s CQ Healthbeat reports:

The federal government is likely to extend the Nov. 16 deadline for states to decide whether they will run their own health insurance exchanges, according to several state officials. … Instead, HHS officials are expected to set a new deadline for states that want to operate the marketplaces alone but have a rolling deadline with ongoing discussions for states that are interested in a partnership.

What is the difference between a “rolling deadline” and no deadline?

It’s “the REAL ID rebellion“ all over again.

Defund REAL ID

Lots of other stories have dominated the headlines lately, so people have paid little attention to news that House and Senate leaders have settled on a plan to fund the government for the first half of fiscal 2013 through a continuing resolution.

Senator Reid’s press release states that the agreement “will avoid a government shutdown while funding the government at $1.047 trillion.” If only that were true. The president’s most recent budget estimates that federal outlays will be something more like $3.8 trillion.

Whatever the case on the total figures, this is a good time to be asking just what will be in that six-month extension of government funding. And I’m particularly interested in whether it will continue to fund our national ID law, the REAL ID Act.

Not being a dialed-in appropriations lobbyist, all I have to go on are the proposals for Department of Homeland Security spending that the House and Senate have put together. Those proposals are H.R. 5855, the Department of Homeland Security Appropriations Act, 2013, and S. 3216, the Department of Homeland Security Appropriations Act, 2013. Both bills spend about $450 per U.S. family on the operations of the DHS.

Poring through the bills and committee reports, I find REAL ID funding in a pot of over $1.7 billion administered by FEMA in its “State Homeland Security Grant Program.” The House Appropriations Committee says the money should be divided among many different programs “according to threat, vulnerability, and consequence, at the discretion of the Secretary of Homeland Security.” Considering what little REAL ID does for security, the Secretary could zero out REAL ID. But this is unlikely to happen.

I find no mention of REAL ID in the Senate bill, though there is a similar pot of money that I assume might fund REAL ID implementation in the states. Precious dollars that local bureaucrats feel utterly obligated to chase after.

With REAL ID funding becoming an also-ran in the world of homeland security grants, its long, slow decline continues. But I have no capacity to calculate the amounts going to REAL ID implementation. That’s nicely hidden in the opacity and arcana of federal government grant-making.

Were I asked what to put in the upcoming continuing resolution, I would simplify things dramatically. I would recommend that REAL ID be stripped from the “State Homeland Security Grant Program.” Zeroed out. Nada. Nothing. In fact, I would add REAL ID to the cluster of Provided’s and Provided further’s that make appropriations bills so hard to read:

Provided further, that no funds shall be used to implement section 204 of the REAL ID Act of 2005 (49 U.S.C. 30301 note).

The country rejects having a national ID. The government is under tight budgetary constraints. The policy that kills two birds with one stone is to entirely defund the national ID law, barring any federal expenditures on its implementation. If Congress can’t see fit to repeal the law, the DHS can issue another blanket extension early next year when a new faux implementation deadline for the national ID law arrives.

Will Pennsylvania Join the REAL ID Rebellion?

Since Congress passed a national ID law called the REAL ID Act in 2005, states have been registering their objections. The law tries to coerce states into implementing the feds’ national ID and would have them issue uniform drivers’ licenses and put drivers’ personal information into a federal data exchange. By 2009, fully half the states had barred themselves from implementing REAL ID or passed resolutions denouncing the law.

The states continue to play their constitutional role in counterbalancing federal overreach. I noted a few weeks ago how New Hampshire is resisting E-Verify, the federal background check system. But—as I also recently wrote—federal “bureaucrats and big-governmenters” are working to revive their national ID.

Pennsylvania may soon join the REAL ID rebellion. The legislature there has sent Governor Tom Corbett (R) a bill to opt the state out of REAL ID’s national ID system.

As we often see, though, there is confusion about the relevance of IDs and a national ID to national security. In the story linked above, state representative Greg Vitali (D) is cited saying that the 9-11 hijackers were carrying multiple phony drivers’ licenses. “And I’m just concerned with regard to the message that we send by backing away from more secure IDs,” he says.

Representative Vitali is mistaken on the facts. The 9/11 hijackers did not have false identification documents. The 9/11 Commission report said: “All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud.” Those “frauds” were things like fibbing about the length of their residency in Virginia, not their names.

The security issues are complicated. I dealt with them in my book, Identity Crisis: How Identification is Overused and Misunderstood. But here’s what it boils down to: Had REAL ID been the law prior to 9/11 and operating perfectly—100% compliance, no corruption at DMVs, and no forgery of breeder documents or licenses—that might have required the 9/11 attackers to keep their visas current. That’s the extent of its security value.

How many hundreds of millions of taxpayer dollars should we spend, how much of Americans’ privacy should we give up, and how much power should we transfer to the federal government when the only benefit is to mildly inconvenience some future attacker?

Many of the threats we imagined in the years after 9/11 were not real. Sleeper cells? Osama bin Laden sleeps with the fishes.

Terrorism didn’t get its start on 9/11, and it will never be non-existent. But our strong nation can celebrate its victory over terrorism by deep-sixing the national ID card. That’s the “message” that would come from defeating the federal government’s national ID law.

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