I’ve written about PASS ID here a couple of times before - first on whether or not it’s a national ID and, second, on the politics of this REAL ID revival bill. Now I’ll take a look at whether it fixes the privacy issues with REAL ID. Privacy is complicated. Buckle up.
The day the bill was introduced, the Center for Democracy and Technology issued a press release giving it a privacy stamp of approval.
“The PASS ID Act addresses most of the major privacy and security concerns with REAL ID,” said Ari Schwartz, Vice-President of CDT. The release cited four ways that PASS ID was an improvement over the bill it’s modeled on, REAL ID.
Interstate Data Sharing?
First, CDT said, PASS ID “[r]emoves the requirement that states ‘provide electronic access’ allowing every other state to search their motor vehicles records.” It’s technically true: The language from REAL ID directly requiring states to share information among themselves came out of PASS ID. But the requirements of the law will cause that information sharing to happen all the same.
Like REAL ID did, PASS ID would require states to confirm that “a person submitting an application for a driver’s license or identification card is terminating or has terminated any driver’s license or identification card” issued by another state.
How do you do that? You check the driver license databases of every other state. Maybe you do this by directly accessing other states’ databases; maybe you do this indirectly, through a “pointer system” or “hub.” But to confirm that you’re talking about the right person, you don’t just compare names. You compare names, addresses, pictures, and other biometrics.
Just like REAL ID, PASS ID would require states to share driver data on a very large scale. It just doesn’t say so. As with REAL ID, the security weaknesses of any one state’s operations would accrue to the harm of all others.
Second, CDT says that PASS ID “[l]imits the ‘official purposes’ for which federal agencies can demand a PASS ID driver’s license, thereby helping prevent ‘mission creep.’” Again, it’s technically true, but materially false.
REAL ID had an open-ended list of “official purposes” - things that the homeland security secretary could require a REAL ID for. PASS ID is not so open-ended, but that is a small impediment to only one form of mission creep.
PASS ID places no limits on how the DHS, other agencies, and states could use the national ID to regulate the population. It simply requires the DHS to use PASS ID for certain purposes. A simple law change or amendment to existing regulation would expand those uses to give the federal government control over access to employment, access to credit cards, voting - CDT’s own PolicyBeta blog called a plan to use REAL ID to control cold medicine a “terrifying” example of mission creep. And these are just the ideas that have already been floated.
When I testified before the Senate Judiciary Committee on REAL ID in May 2007, I spoke about what we had recently heard in a meeting of the DHS Privacy Committee:
Ann Collins, the Registrar of Motor Vehicles from the State of Massachusetts, … said, “If you build it, they will come.” What she meant by that is that if you compile deep data bases of information about every driver, uses for it will be found. The Department of Homeland Security will find uses for it. Every agency that wants to control, manipulate, and affect people’s lives will say, “There is our easiest place to go. That is our path of least resistance.”
PASS ID is the same medium for mission creep that REAL ID is. The problem is with having a national ID at all - not with what its enabling legislation says.
Next, CDT says that PASS ID requires “privacy and security protections for PII stored in back-end motor vehicle databases.” (“PII” means “personally identifiable information.”)
A glaring oversight of REAL ID - and the competition for glaring oversights was fierce - was to omit any requirement for privacy and security of the databases states would maintain and share on behalf of the federal government. The DHS took pains in the REAL ID rulemaking to drain this swamp. It tried to require minimal information collection for identity verification and minimal information display on the card and in the machine readable zone. (It failed in important ways, as I will discuss below.) The REAL ID regulation required states to file security plans that would explain how the state would protect personally identifiable information. And it said it would produce a set of “Privacy and Security Best Practices.” None of this mollified REAL ID opponents, and the privacy bromides in the PASS ID Act won’t either.
One of the more interesting privacy “protections” in the PASS ID Act is a requirement that individuals may access, amend, and correct their own personally identifiable information. This is a new and different security/identity fraud challenge not found in REAL ID, and the states have no idea what they’re getting themselves into if they try to implement such a thing. A May 2000 report from a panel of experts convened by the Federal Trade Commission was bowled over by the complexity of trying to secure information while giving people access to it. Nowhere is that tension more acute than in giving the public access to basic identity information.
The privacy language in the PASS ID Act is a welcome change to REAL ID’s gross error on that score. At least there’s privacy language! But creating a national identity system that is privacy protective is like trying to make water that isn’t wet.
Limits on Use of Card Data?
CDT’s final defense of PASS ID is the presence of meager limits on how data collected from national ID cards will be used. Much like with mission creep, the statutory language is beside the point, but CDT points out that PASS ID “prohibits states from including the cardholder’s social security number in the MRZ and places limits on the storage, use, and re-disclosure of that information.”
“MRZ” stands for “machine-readable zone.” In the PASS Act and REAL ID Act, this is referred to as “machine-readable technology,” and in the REAL ID rulemaking, the DHS selected a 2D barcode standard for the back of REAL ID licenses and IDs. Think of government officials scanning your license the way grocery clerks scan your toilet paper and canned peaches.
It’s true that the PASS ID Act bars states from including the Social Security number in that easily scanable data, but it doesn’t prohibit anything else from being scanned - including race, which was included in DHS’ standard for REAL ID.
And don’t think that limits on the storage, use, and re-disclosure of card information would have any teeth. It would create a new crime: scanning licenses, reselling or trading information from them, or tracking holders of them “without lawful authority,” but it’s not clear what “without lawful authority” means. It would probably allow people to give implied permission for all this data-collection and -sharing by handing their cards to someone else. It would certainly allow governments to authorize themselves to collect and trade data from cards en masse.
Not that we should want this “protection.” The last thing we need is another obtusely defined federal crime. Nearly as bad as being required to carry a national ID is making it illegal for people to collect information from it when you want them to!
And in Some Ways PASS ID is Worse
But let’s talk some more about that machine-readable zone. When Congress passed REAL ID, suspicion was strong that the “MRZ” would be an RFID chip - a tiny computer chip that can be read remotely by radio.
Recognizing the insecurity of such devices - and the strong public opposition to it - DHS declined to adopt RFID for the REAL ID Act. It did, however, work with a few states and the U.S. State Department to develop an RFID-chipped license that it calls the “enhanced driver’s license.” This has a long read-range chip that will signal its presence to readers as much as fifteen or twenty feet away. The convenience gain DHS and State sought for themselves at the border would be a privacy loss, as scanning cards could become commonplace in doorways and other bottlenecks throughout the country - your whereabouts recorded regularly, as a matter of course, by public and private entities.
Why do we care about “enhanced drivers licenses”? Because the PASS ID Act would ratify them for use as national IDs. States could push their residents into using these chipped cards if they didn’t want to implement every last detail of PASS ID.
Needless to say, ID cards with long-distance (including surreptitious) tracking are a step backward for privacy. This is one sense in which PASS ID is worse than REAL ID.
Consider more carefully also what PASS ID and REAL ID are about in terms of biometrics. Both require states to “[s]ubject each person applying for a driver’s license or identification card to mandatory facial image capture.”
States across the country are using driver license photos to implement facial-recognition software that will ultimately be able to track people directly - nevermind whether you have an RFID-chipped license or show your card to a government official. They are aiming at preventing identity fraud, of course, but with advancing technology, before too long you will be subject to biometric tracking simply because you posed for an unsmiling digital photo at the DMV. REAL ID and PASS ID are part and parcel of promoting that.
Does PASS ID address “most of the major privacy and security concerns with REAL ID”? Not even close. PASS ID is a national ID, with all the privacy consequences that go with that.
Changing the name of REAL ID to something else is not an alternative to scrapping it. Scrapping REAL ID is something Senator Akaka (D-HI) proposed in the last Congress. Fixing REAL ID is an impossibility, and PASS ID does not do that.