Testimony Regarding SB 262 and the U.S. Federal REAL ID Act

Committee on Transporation
New Hampshire State Senate

Chairwoman Stiles and members of the committee:

It is a pleasure to return to New Hampshire today to speak with you about SB 262 and the U.S. federal REAL ID Act.1 Nine years ago, I testified in the Senate Committee on Public and Municipal Affairs about HB 1582, which in its original version was a nation-leading bill to refuse participation in the national ID system created by REAL ID.2

New Hampshire issued the first volley in what became known as the “REAL ID Rebellion.” New Hampshire’s lead inspired states across the country and political leaders from both major parties to reject the U.S. national ID and the tracking and surveillance that a national ID would facilitate. I hope that you will continue in New Hampshire’s truly American tradition of resisting coercion from above and reserving policy decisions for state and local leaders. You are closer to the people and imbued with common sense no longer found in Washington, D.C.

You can continue to reject REAL ID with confidence for a number of reasons. First and foremost, the threat that the U.S. Department of Homeland Security (DHS) will interfere with the travel of law-abiding citizens from New Hampshire or any non-compliant state is an empty one. Over the last decade, the DHS has backed down time and time again when states, including New Hampshire, have declined to herd their residents into the federal government’s national ID system.

If push comes to shove upon the arrival of the DHS’s informal 2016 deadline, the federal government will back down again. This is because DHS officials know that the political costs of disrupting travel would fall solely on their agency and their overseers in Congress. Washington, D.C.’s national ID project is not New Hampshire’s problem.

Resistance to REAL ID is also warranted because a national ID would not produce cost-effective security. Constructing a U.S. national ID would cost billions in taxpayer dollars nationwide and lay waste to the privacy of law-abiding, natural-born citizens. In exchange, we would gain negligible security benefits: mild inconvenience to terrorists and dedicated criminals.

The history of REAL ID over the last decade helps illustrate why New Hampshire need not and should not participate in the failed national ID program.

A Short History of REAL ID Implementation

The REAL ID Act tries to coerce states into issuing drivers’ licenses according to federal standards. It does so using a gambit that is fairly clever, but that has not proven to work.

REAL ID bars federal agencies from accepting licenses and IDs from states that are not issuing these documents according to federal standards, which include “machine-readable technology” chosen by the DHS, “mandatory facial image capture” of all drivers’ license applicants, and nationwide sharing of information about licensees. The threat is that agents of the Transportation Security Administration (TSA) may not accept the licenses and ID cards of travelers from resistant states, which would inconvenience travelers.

This is meant to cow state leaders into falling in line. But in the decade since REAL ID passed, the federal government has never made good on this threat. To protect the interests of their residents, states have routinely backed the DHS down.

When it passed in May, 2005, REAL ID set a deadline for compliance three years after its passage, in May of 2008. Nothing went well. It took the DHS until March of 2007 — nearly two years — to even propose regulations in the Federal Register that would detail how states should comply with the law.3 Timely compliance being impossible, the DHS made December 31, 2009 a new deadline, available to any state that asked for an extension by October 1, 2007.

By this time, state legislatures had begun to consider what REAL ID meant for them and their residents, and they were bridling at the prospect of spending hard-earned taxpayer dollars on developing a domestic surveillance system. Here in New Hampshire, a bill to bar state compliance produced one of the first shots in what became known as the “REAL ID Rebellion.”

Speaking in favor of barring New Hampshire from complying with REAL ID in April, 2006, Representative Neal Kurk (R-Weare) gave an electric speech in which he harkened to Patrick Henry’s “Give me Liberty or Give Me Death” speech, saying: “I don’t believe the people of New Hampshire elected us to help the federal government create a national identification card. We care more for our liberties than to meekly hand over to the federal government the potential to enumerate, track, identify, and eventually control.”4

In January 2007, Maine became the first state in the union to officially reject REAL ID, passing a resolution refusing to implement the law and calling on Congress to repeal it. States across the country soon followed, passing outright bans on compliance or calling for revision or repeal.

In late January 2008, DHS published final regulations in the Federal Register, telling states what they would have to do if they were to implement REAL ID.5 Because the statutory deadline was just months away and many states had not asked for extensions by DHS’s improvised October 2007 deadline, DHS produced another non-statutory deadline scheme: If states requested an extension by March 31, they would automatically get an extension to December 31, 2009. If by October, 2009, states showed that they were achieving the milestones laid out in a “material compliance checklist,”6 they could get extensions to May 11, 2011. This pared back “material compliance checklist” is what DHS often claims to be compliance today.

But when the new deadline for requesting an extension rolled around on October 1, 2009, several state leaders did not think they could ask for one in good conscience, as their states had no plans to participate in REAL ID. The DHS menaced these state leaders with the prospect that TSA agents might refuse their residents access to travel, but the state officials did not back down.

Montana Democratic governor Brian Schweitzer and his attorney general sent DHS a letter stating that Montana would not implement REAL ID, but describing the steps it had taken independently to improve its driver licensing. DHS Secretary Michael Chertoff interpreted that as a request for extension and granted it. “I sent them a horse,” Schweitzer told a reporter, “and if they want to call it a zebra, that’s up to them.”7

South Carolina’s Republican governor, Mark Sanford, sent Chertoff a scathing critique of the REAL ID program on the last possible day to ask for an extension. Because he noted his state’s independent actions on licensing, Chertoff treated his letter as an extension request and granted it.8 Maine was the last state to receive an extension — days beyond the DHS’s deadline — after dickering between Governor John Baldacci (D) and DHS officials.9

The next deadline was the “material compliance” deadline of October 11, 2009. DHS wanted states to show significant progress toward implementing REAL ID or it would deny a further extension to May, 2011. The threat, again, was that TSA might refuse the IDs of travelers from recalcitrant states starting on January 1, 2010. But states weren’t doing very much to comply, and it was increasingly clear that federal officials, not state officials, would be blamed if the TSA started denying Americans the right to travel.

In late September, the DHS published a notice in the Federal Register that extended the deadline for requesting an extension by a month and a half.10 And at the end of December, 2011, DHS published another announcement. “[A] large majority of States and territories — 46 of 56 — have informed DHS that they will not be able to meet the REAL ID material compliance deadline,” it said, adding:

To avoid the unnecessary disruption of commercial air travel over the upcoming holiday season that would result if Federal agencies cannot accept State-issued identification cards from travelers beginning January 1, 2010, the Secretary of Homeland Security … is staying the material compliance deadline of January 1, 2010, until further notice. Although the material compliance date has been stayed, the full compliance date of May 11, 2011, remains in effect.11

Fifteen months later, with that May 2011 deadline looming, the Department of Homeland Security again caved on its threat to disrupt air travel. In March 2011 it published a Federal Register notice changing the material compliance deadline to January 15, 2013.12

Then January 2013 came along. It was clear once again that states were not going to meet a REAL ID deadline. Indeed, in December 2012, DHS listed only 13 states as being compliant, even according to its pared-back “material compliance” standards.13 By December 2013, DHS’s latest listing of “materially compliant” jurisdictions had grown to only 21.14

At this point, the Federal Register notices stopped. The DHS put its best face on an essentially abandoned effort to force REAL ID compliance by releasing some documents on its web site claiming the existence of a new enforcement schedule. Enforcement would be phased in starting in April 2014, it said, with access to the DHS’s own headquarters in Washington, D.C., becoming unavailable to those trying to identify themselves with an ID from a noncompliant state.

The DHS’s game defense of REAL ID said, “forty-one states and territories are either fully compliant with the REAL ID standards or have made sufficient progress to qualify for an extension.”15 But, again, “fully compliant” actually means compliant with the pared-back “material compliance checklist” that DHS devised in 2008. The only achievement of the remaining states was getting yet another extension. Fifteen jurisdictions had not bothered to comply with DHS’s six-year-old interim goals or even get an extension.

The weak threat of TSA enforcement has now been put off to at least 2016, according to these DHS Internet postings. They say enforcement will be preceded by a “review and evaluation” period in which TSA will provide notice to individuals using drivers’ licenses or identification cards from noncompliant states, but it will not interfere with Americans’ right to travel.16 It is unlikely that TSA will even get as far as the “review and evaluation” step, but if it does, as the history shows, this will once again augur in pushed-back deadlines.

But right now the DHS is in a full-court press, signaling in states around the country that it may soon inconvenience American travelers. New Hampshire should not be impressed by the threat, because the blame will fall where it should: on the DHS and the federal government.

National ID Politics

Illinois is another state where the DHS is leaning on state officials and transportation industry officials seeking to coerce national ID compliance. There, State Senator Lou Lang (D-Skokie) recently criticized the REAL ID program, saying, “I don’t want to be a part of any kind of action that restricts people from our state from moving around the country as free Americans ought to be able to do.” Lang says the federal government has failed to listen to state concerns.17 The reason he can confidently push back against REAL ID compliance for Illinois is because the politics of this national ID program lean strongly against the federal government and in favor of Americans’ freedom.

The Transportation Security Administration is already a deeply unpopular agency. Its parent agency, the Department of Homeland Security, is no public darling either. If TSA and DHS were to further harry and inconvenience travelers by even threatening to decline certain IDs, they would be held accountable by the press and public for introducing yet more absurdities into air travel.

The mechanics of the process make this clear. It would be federal government workers wearing federal insignia telling American travelers that their papers are insufficient. It would be federal officials at TSA, DHS, and in Congress who the public would recognize as responsible for their travel woes. It would be the TSA press office, the DHS, and members of Congress that reporters call for comment. Yours truly would help make clear exactly where responsibility lies.

That is exactly why the DHS has never sought to enforce REAL ID before. DHS could have refused to allow travelers from Montana, South Carolina, and Maine onto airplanes in October 2009. These small-population states might have been good candidates for DHS to make an example of. But DHS officials recognized the heaps of derision that would fall on their agency if it interfered with Americans’ right to travel in the name of herding Americans into a national ID system.

As 2016 draws nearer, and DHS officials see that their informal schedule requires them to start impeding Americans’ right to travel, they will face exactly the same circumstances the agency has seen many times before. They will recognize that the blame for their actions would fall with them. The harder the DHS pressed, the greater the blame the DHS and TSA would receive, as well as their congressional overseers. That is a recipe for retreat.

And remember: the DHS is on an informal schedule. It failed to issue regulations that could ever be complied with before the statutory compliance deadline. For a period of years, DHS published rollbacks of the deadline in the Federal Register. Now, DHS is just making up deadlines as it goes along.

The only things concerning about the collapse of REAL ID are the waste of federal taxpayer dollars and the chance that intimidated state officials will needlessly raid their states’ coffers at DHS’s behest. This is because REAL ID is bad policy. If it were implemented, the national ID law would cost more in misspent dollars and lost privacy than it would ever deliver in security or other benefits.

The Demerits of REAL ID

The REAL ID Act’s effort to produce a national ID was one of a thousand security ships that sailed after the terror attacks of September 11, 2001. Like many such efforts, unfortunately, it had no destination. Congress did not consider the complexities or costs of producing a national ID, or the offense that a national ID does to American values. Nor, most importantly, did Congress recognize its ineffectiveness as a security tool.

Though sometimes touted as an important recommendation of the 9/11 Commission, REAL ID was not. The commission dedicated three-quarters of a page (out of 400+ pages) to identity documents. The 9/11 Commission report did not detail how a national ID would have secured against the 2001 terror attacks in any way that is remotely cost-effective.

And in fact, the REAL ID Act replaced identification provisions in the Intelligence Reform and Terrorism Prevention Act that Congress passed in response to the 9/11 Commission the year before. The law that the REAL ID Act replaced had established a negotiated rulemaking committee in which state motor vehicle administrators, privacy experts, and federal representatives were to negotiate about how to do driver’s license security.

Rather than seeing careful deliberation, REAL ID sailed through Congress in May of 2005 as part of a military spending bill. At about the midpoint of the 2005 fiscal year, the military had been spending heavily, and an 82-billion-dollar spending bill to provide the military more money and to fund aid efforts after a devastating tsunami in Asia was clearly going to pass. Opposition to it, even principled responses to important details, could easily be spun as “not supporting the troops.”

Consistent with usual practice, the military appropriations bill came before the Rules Committee on its way to the floor of the House of Representatives. But the committee added a curious note to the rule governing debate on the bill. The committee instructed the Clerk of the House to append the text of a different bill at the end, once the spending bill had passed the House.18 The added language was the REAL ID Act.19

REAL ID would not be open to amendment or separate consideration on the floor of the House, though another version of the bill had passed earlier on a test vote. The Senate passed the military spending bill unamended days later, and President George W. Bush signed it a day after that.

REAL ID seeks to “strengthen” each step in the process by which people are identified using ID cards, and it would tie state IDs together as a national ID. Compliant states would take more care to see that they get accurate information from licensees. State processes would make forgery of cards harder. And “mandatory facial image capture” would slightly strengthen confirmation that an ID belongs to the person holding it, a step toward machine-readable biometrics.

REAL ID is a national ID system. First, it is national in scope. Real ID seeks to knit together diverse state-controlled systems into a federally controlled system that is uniform with respect to its data elements and behind-the-scenes information sharing. Second, it is obviously used for identification. Finally, it is legally or practically required. These are the three hallmarks of a national ID. With the prevalence of state-issued IDs in society, and specifically the requirement to have one to drive a car in this large country, a government-issued license or identification card is practically required, even if carrying and displaying ID at an official’s command is not yet required by law. The Department of Homeland Security’s gambit to cow you into compliance is based on the prevalent use of driver’s licenses for non-driving purposes like identification.

When DHS issued its proposed REAL ID regulations in March of 2007, the regulations were accompanied by a required economic analysis which estimated that implementing REAL ID would cost about $17 billion — roughly $50 for every man, woman, and child in the United States. About $11 billion of these costs would come directly from state governments, according to the estimate, and the other $6 billion would be borne by the public in the costs of navigating the new bureaucracy and the red tape needed just to get a driver’s license.

The amount of money states have spent so far is unknown, and it is probably nothing like $17 billion. Non-compliance, delays, and pared-back requirements (that “material compliance checklist”) have reduced the cost of REAL ID so far. The important thing for state leaders to understand is that REAL ID compliance is not a one-time or short-term cost. REAL ID compliance is a commitment to spend whatever the federal government requires for driver licensing evermore.

When New Hampshire considered REAL ID in 2006, a federal grant of $3 million was on offer to the state to help defray costs. I cautioned against accepting that grant or agreeing to participate in the federal national ID program because it would commit New Hampshire to far larger expenditures with no guarantee of support from the federal government in the future. “The decision you are making with HB 1582 is not whether you will receive $3 million in federal funds,” I wrote, “but whether you will spend ten times that to participate in the national ID system.”

That is still the case for REAL ID compliance. Agreeing to the DHS’s driver licensing standards is agreeing to spend state funds to implement DHS’s demands from now on. That is a bad deal for New Hampshire on principle and in terms of fiscal responsibility.

The dollar costs of REAL ID are joined by other costs that are harder to measure but no less important: New Hampshirites privacy and personal power. When I testified about REAL ID here in 2006, I had just finished writing my book, Identity Crisis: How Identification is Overused and Misunderstood. (I sold my first copy, a publisher’s proof, to an interested reader in the New Hampshire State House.) The book documents how a national ID system would allow vastly more common and more efficient gathering of data by governments and corporations alike.

A national ID system like REAL ID would reduce Americans’ power to control what information institutions have about them, undercutting an important defense against corporate and government manipulation and control. If REAL ID were fully implemented, we could expect to see ID requirements used to control access to financial services and credit, housing, guns and ammunition, medical care, prescriptions, and voting. All of these things have been proposed as uses for REAL ID if it is implemented.

Data collected via national ID checks at airports, and at federal office buildings, private office buildings, pharmacies, stores, and numerous other places would join other data sources in the already rapidly advancing surveillance society. There are benefits to be gotten from data collection and use, but there is no reason for government policy to force New Hampshirites and other Americans into using a data collection system like a nationally uniform ID system.

Some loss of privacy would be worth it, of course, if a national ID provided a good measure of security. The Fourth Amendment standard of “reasonableness” is the appropriate one for considering whether a national ID is good policy. But easy evasion of national ID systems means that they provide little security compared to their costs.

There are two routes to evading a national ID system like REAL ID: physical avoidance and logical avoidance. Physical avoidance is using facilities that are not controlled by identification systems. Logical avoidance is acquiring whatever ID is needed, either fraudulently or legitimately, to access the facility.

The recent threat issued by Al Shabaab against the Mall of America would illustrate physical avoidance. Malls and other places people congregate are not subject to ID checks. An attacker who is constrained by ID checks elsewhere could shift to attacking such a place. Making malls and similar places subject to ID checks would be hugely costly in terms of dollars, shoppers’ time, inconvenience, and commerce. And trying to secure malls this way is fruitless, of course, unless all places people congregate are subject to ID checks, because an attacker could merely shift to yet another popular location. (Happily, the Al Shabaab threat was almost certainly empty, if, perhaps, aspirational.) Physical avoidance deeply undercuts the counterterrorism rationale for ID checking.

Logical avoidance was the technique used in the 9/11 attacks on New York City and Washington, D.C. The terrorists used their own passports and drivers’ licenses to identify themselves accurately at airports. One or two had engaged in trivial fraud to get licenses — claiming longer residency in Virginia than they actually had. But they “defeated” ID checks at airports, which are not really a security system, by simply identifying themselves.

The 9/11 attackers were not concerned with punishment after the fact, of course. A national identification system may have more effects on criminals who can be deterred by punishment and on less sophisticated criminals who may be unable to figure out how to acquire the necessary ID.

The only way to defeat these evasions, though, is to tighten ID requirements for all. Physical avoidance can only be curtailed by requiring people to show ID everywhere people congregate, which would have massive costs. Logical avoidance can only be curtailed by limiting access to IDs more tightly. The REAL ID Act takes limited steps in this direction, seeking to ensure a little more carefully that only people who are supposed to have IDs have them.

This requires everyone in America to produce more paperwork, spend more time in lines at the DMV, and wait for licenses to be mailed to them rather than receiving them over the counter. It means more tracking of everyone so that “suspects” (in quotes because they don’t meet any legal standard for suspicion) can be singled out for a second look at the airport. If REAL ID had been in effect on 9/11, it would have had little or no effect on the attack. It may have required one or two hijackers to use a passport rather than a driver’s license or to carry out the attack while their visas were still current. The expense of putting all Americans into a national ID system is not worth security gains as small as that.

Making drivers’ licenses into a national security system means making them into a national surveillance system — a system for tracking every driver in New Hampshire and around the country. It comes at too high a price given the relatively small security benefits.

The REAL ID Act was an ill-considered legislative boondoggle and unfunded mandate. States around the country, including New Hampshire, were right to refuse the national ID project when DHS first attempted to implement it.

As the history of REAL ID shows, the threat that DHS will inconvenience air travelers is weak and getting weaker over time. This is because federal officials at TSA, DHS, and in Congress would bear the brunt of public scorn should they move to interfere with Americans’ right to travel. Recognizing this, they have consistently backed down when confronted by state leaders declining to implement REAL ID.

Here in New Hampshire, you can confidently continue declining to comply with the REAL ID Act’s mandates. This is not only because the DHS’s threats are empty, but because implementing REAL ID would be bad for New Hampshire and bad for America.

1 The national ID provisions of U.S. Public Law 109-113 are in Title II of Division B, though all of Division B is called the “REAL ID Act.”
2 That testimony is available at: https://www.cato.org/publications/congressional-testimony/regarding-hb-1582-act-prohibiting-new-hampshire-participating-national-identification-card-system.
3 Office of the Secretary, Department of Homeland Security, “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 72 Fed. Reg. 10,820 (Mar. 9, 2007).
4 See David Weigel, “Who Killed REAL ID?”, Reason Magazine (Oct. 2008) http://reason.com/archives/2008/10/06/who-killed-real-id/.
5 Office of the Secretary, Department of Homeland Security, “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 73 Fed. Reg. 5,272 (Jan. 29, 2008).
6 Reproduced at Appendix B.
7 Ryan Singel, “Montana Governor: DHS ‘Blinks’ on REAL ID,” Wired, March 21, 2008 http://www.wired.com/threatlevel/2008/03/montana-gov-dhs/.
8 Ryan Singel, “Defiant South Carolina Wins Real ID Extension,” Wired, March 31, 2008 http://www.wired.com/threatlevel/2008/03/defiant-south-c/.
9 Ryan Singel, “Maine Gets Real ID Extension; ID Card Issue Punted to Next Administration,” Wired, April 2, 2008 http://www.wired.com/threatlevel/2008/04/maine-gets-real/.
10 Office of the Secretary, Department of Homeland Security, “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 74 Fed. Reg. 49,308 (Sept. 28, 2009).
11 Office of the Secretary, Department of Homeland Security, “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 74 Fed. Reg. 68,477 (Dec. 28, 2009).
12 Office of the Secretary, Department of Homeland Security, “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 76 Fed. Reg. 12,269 (Mar. 7, 2011).
13 Department of Homeland Security, “DHS Determines 13 States Meet REAL ID Standards,” December 20, 2012, http://www.dhs.gov/news/2012/12/20/dhs-determines-13-states-meet-real-id-standards.
14 Department of Homeland Security, “REAL ID Enforcement in Brief,” February 5, 2014, http://www.dhs.gov/sites/default/files/publications/real-id-enforcement-in-brief-20140205.pdf.
15 Department of Homeland Security, “DHS Releases Phased Enforcement Schedule for REAL ID,” December 20, 2013, http://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
16 Department of Homeland Security, “REAL ID Enforcement in Brief,” February 5, 2014, http://www.dhs.gov/sites/default/files/publications/real-id-enforcement-in-brief-20140205.pdf.
17 Mark Fitton, “State Has Real Concerns About Real ID,” The Southern (Illinois News Network) (Feb. 25, 2015) http://thesouthern.com/news/local/state-and-regional/state-has-real-concerns-about-real-id/article_4f3fb8ec-0c4e-5dae-8de7-0ca495a98204.html.
18 H. Res. 151 § 2 (109th Cong., 1st Sess.).
19 H.R. 418 (109th Cong., 1st Sess.).