Tag: real id

DHS: Even-handed Enforcer or Punisher of Select States?

Just over a month ago, another Department of Homeland Security deadline for state compliance with the provisions of the REAL ID Act passed. It was but the most recent in a series of deadlines DHS has improvised since the statutory May 2008 compliance date passed without a single state participating in the national ID program.

Time and again, when faced with resistance from the states, DHS has backed down. But the agency has had more success goading states toward compliance since it stopped issuing deadline extensions in the Federal Register and took the process offline to deal directly with individual states. Divide and conquer works.

A new series of deadlines assigns different states to one of three dates—January 30th, June 6th, and October 16th, 2017—depending on where they are in the compliance process. If the states in each category have not sufficiently answered to DHS by the relevant date, DHS will judge them non-compliant. As it has so many times before, DHS says their residents will then be at risk of having their state-issued IDs refused for federal purposes.

Because so much of this is happening behind the scenes, it is hard to gauge how DHS is choosing which states to play hardball with and which states to treat with kid gloves. But the staggered compliance deadlines have the feel of meting out punishment to states that have been the most vocal in their resistance to REAL ID. It does not have the feel of an agency neutrally enforcing a generally applicable law.

Consider the earliest group, which has a January 30th, 2017 deadline. It consists of Kentucky, Maine, Montana, Oklahoma, Pennsylvania, and South Carolina (as well as the U.S. territories of Guam and the Virgin Islands). DHS already considers Minnesota, Missouri, and Washington State “non-compliant” with REAL ID.

Grow That Government!

What does it take to make a state-level Republican policymaker work to grow the power of the Obama Administration? Not much! Washington Secretary of State Kim Wyman is a case in point.

In the wake of a shooting at a Macy’s in Mount Vernon, Washington, late last month, Secretary Wyman called for Washington State to comply with the national ID program run by the U.S. Department of Homeland Security under the REAL ID Act.

Secretary Wyman’s rationale for joining the national ID is that state authorities (including, for some reason, election officials) were unable to immediately identify the citizenship status of the shooter (who turned out to be a naturalized American citizen).

Washington State has hitherto declined to embrace REAL ID, and has been one of the states most actively pushing back against the federal program. Secretary Wyman argues that adopting REAL ID would allow the state to more quickly access federal databases and records and help prevent voter fraud in Washington State elections.

Whatever a state’s need for securing their vote, that’s no reason to join the national ID system. And REAL ID is a bloated, costly, and opaque federal program. Compliance would require Washington State to share its drivers’ personal data and copies of their digitally scanned documents with departments of motor vehicles across the country through a nationwide data sharing system. This database sharing is a two way street: Secretary Wyman might be able to access other jurisdiction’s databases, but any bad actor in a DMV from California to Connecticut could access Washington State’s.

In the wake of recent DMV hacking scandals in Louisiana and elsewhere, this concern is not overblown. Because of the hacking and identity fraud risks, and the lack of any real national security benefit, adoption of REAL ID would only make Washingtonians less safe.

Continuing Resolution to Fund the National ID

If as expected Congress passes a continuing resolution in coming weeks to fund the government into December, take note of how neatly our elected officials are side-stepping responsibility for government spending. The votes that should have come in the summer ahead of the election, giving them some electoral salience, will happen in December, after you’ve made your “choice.”

But let’s home in on another way that the failed appropriations process undercuts fiscal rectitude and freedom. A “CR” will almost certainly continue funding for implementation of the REAL ID Act, the federal national ID program.

From 2008 to 2011, direct funding for REAL ID was included in the DHS appropriations bills, typically at the level of $50 million per fiscal year. That process was evidently too transparent, so from 2011 on appropriators have folded REAL ID funding into the “State Homeland Security Grant Program” (SHSGP). That’s a $400 million discretionary fund. Combining the SHSGP with other funds, there’s a nearly $700 million pool of money for DHS to tap into in order to build a national ID.

State ID Databases Hacked

It won’t surprise anyone who follows data security to know that this past summer saw a hack of databases containing Louisiana driver information. A hacker going by the ironic handle “NSA” offered the data for sale on a “dark web” marketplace.

Over 290,000 residents of Louisiana were apparently affected by the data breach. The information stolen was typical of that which is held by motor vehicle bureaus: first name, middle name, last name, date of birth, driver’s license number, state in which the driver’s license was issued, address, phone number, email address, a record of driving offenses and infractions, and any and all fines paid to settle tickets and other fines.

This leak highlights the risks of state participation in the REAL ID Act. One of the problems with linking together the databases of every state to create a national ID is that the system will only be as secure as the state with the weakest security.

REAL ID mandates that states require drivers to present multiple documents for proof of identity, proof of legal presence in the United States, and proof of their Social Security number. The information from these documents and digital copies of the documents themselves are to be stored state-run databases just like the one that was hacked in Louisiana.

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.

What Massachusetts Needs Is a Legislature More Like the U.S. Congress, Said No One Ever

The Massachusetts legislature is currently debating the state government’s budget for the new fiscal year which begins July 1st. This phenomenon—finalizing a spending plan before the beginning of the fiscal year—is something rarely seen in the U.S. Congress any more. Kudos, Bay State, for surpassing the low bar set in Washington, D.C.

But the General Court of Massachusetts is taking one page from the U.S. Congress’s tattered playbook. According to WRAL news, it may attach national ID compliance legislation to the budget bill.

That’s how Congress passed the ill-conceived REAL ID Act back in 2005. There were no hearings on the national ID issue or the bill that gave us one. Instead, the Republican House leadership attached the national ID law to a must-pass spending bill and rammed it past the Senate to President Bush, leaving states to grapple with implementation challenges and Department of Homeland Security belligerence ever since.

As in many states, the U.S. DHS has been telling Massachusetts legislators that they have to get on board with the national ID law, issuing licenses and ID cards according to federal standards, or see their residents refused at TSA’s airport checkpoints.

The threat of federal enforcement in 2016 was broadcast loud and clear last fall. Then in January DHS kicked the deadline a few more years down the road. It’s hard to keep track of the number of times DHS has set a REAL ID deadline, then let it slide when elected state officials have declined to obey the instructions of unelected DHS bureaucrats.

Minnesota has had a similar experience. Last winter, its legislature was spooked into creating a special “Legislative Working Group on REAL ID Compliance.” But Minnesota just ended its legislative season without passing REAL ID compliance legislation. There are a few people there who recognize the demerits of joining the national ID system, and Minnesota elected officials may have figured out that when DHS bureaucrats say “Jump!” they do not have to ask “How high?”

The General Court has done better than the U.S. Congress on REAL ID by holding hearings before acting. In 2007, then-Massachusetts Attorney General Martha Coakley testified before the Joint Committee on Veterans and Federal Affairs.

Once Again, REAL ID Is a National ID

A small pro-national-ID group called “Keep Identities Safe” is dancing a little jig because New Hampshire Governor Maggie Hassan (R) has signed legislation to move her state closer to compliance with our national ID law, the REAL ID Act.

In a blog post—apparently their first ever (so that link will be broken if they blog again)—they try to declare the end of the REAL ID Rebellion. I often say it was founded when Rep. Neal Kurk (R-Weare) inveighed against the national ID law in a 2006 speech on the floor of the New Hampshire House of Representatives.

But the heart of the matter is the denial that REAL ID is a national ID law. The New Hampshire legislation says, “Any records received pursuant to this paragraph shall not be used, further transferred, or otherwise made available to any other person or entity for the purpose of creating or enhancing a federal identification database.”

How can New Hampshire offer a REAL ID option and not participate in a national identification database?

It’s a good question, so I’ll cite again directly to the terms of the REAL ID law, which 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.

The U.S. Department of Homeland Security has temporarily written that requirement out of the law in an effort to get states committed to REAL ID. When enough states are in the tank, the agency will move the compliance goalposts and require states to begin sharing their drivers’ data via the nationwide database system that the law specifically requires. The American Association of Motor Vehicle Administrators is currently touting on its website that Iowa has signed up to its “State-to-State Verification Service.”

The New Hampshire legislation also suffers from poor draftsmanship. New Hampshire’s motor vehicle bureaucrats can sign their state up to AAMVA’s information-sharing system simply by allowing themselves to believe that they are not doing so “for the purpose of creating or enhancing a federal identification database.” Governor Hassan has left New Hampshirites unprotected from seeing their data shared nationally.

Notably, the REAL ID law does not exempt “non-federal” licenses from the information-sharing requirement. New Hampshirites who choose that option will still have their information shared nationally.

Has the REAL ID Rebellion ended? Perhaps. DMV bureaucrats and their pro-national-ID allies at “Keep Identities Safe” have been working for years to wear down and evade state legislatures’ resistance to the national ID law. They have had some success in growing the power of the federal government in yet another direction.

Should this be a source of pride? A national ID is a poor security tool that wastes taxpayer dollars, upsets the constitutionally prescribed state-federal balance of power, and compromises law-abiding Americans’ privacy and liberties. The move toward national ID compliance in New Hampshire is probably not something to dance a jig about.

The National ID Social Season Is Underway

The American Association of Motor Vehicle Administrators is the umbrella group for DMV bureaucrats across the nation. It’s a non-profit group, but it does more than earnestly educate government officials and the public about the nuances of driver licensing. Since the 1930s, it has advocated for increased government spending on licensing bureaucracy—and it has advocated against driver’s rights. (It’s all discussed in my book Identity Crisis.) That doesn’t mean AAMVA can’t have fun. Indeed, AAMVA’s social season gets underway next week.

You see, AAMVA is a growing business. A decade ago, when the Capitol Hill staffer with lead responsibility for the REAL ID Act came through AAMVA’s revolving door, I noted the dollar-per-driver fee it collects in the Commercial Driver Licensing system. That $13 million in revenue has surely grown since then.

AAMVA’s revenues will grow far more when it runs the back-end of the REAL ID system, potentially pulling in from three-and-a-quarter cents to five cents per driver in the United States. At 210 million licensed drivers, AAMVA could make upwards of ten million dollars per year.

To help that business flow, every year AAMVA holds not one, but five lavish conferences, each of which has its own awards ceremonies aimed at saluting DMV officials and workers. There, AAMVA leadership, vendors, and officials from government agencies both state and federal gather to toast their successes in advancing their cause, including progress in implementating our national ID law, the REAL ID Act.

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