Is Real ID Really Going to Happen?

Yesterday, May 11, was when the Real ID Act, signed into law three years ago to the day, was due to kick in.

The law set national standards for all state driver’s licenses and other forms of photo identification. It directs states to store people’s drivers license information in a database, along with additional identity information, like a digital copy of each person’s birth certificate. The law mandates that all state databases are to be linked. By now, every state should have built this database and issued Real ID-compliant licenses to all residents.

Illustration by: Matt Mahurin

But you don’t need to worry about these new ID’s. The law has yet to go into effect.

Little about Real ID has gone as planned. All 50 states, and the District of Columbia, were given extensions by the Dept. of Homeland Security to comply with Real ID. This extension was given despite the fact that 17 states passed resolutions saying they have no intention of ever implementing the program.

State governors and legislatures, members of Congress and civil-liberties groups have slammed Real ID. They say the program is an unfunded mandate and that the federal government should not be in the business of directing how states issue identifications in the first place. They also argue that the linked databases, complete with comprehensive identity information on people from every state, creates a “one-stop shop” for identity theft.

Slipped into “must pass” legislation to fund the war in Iraq and help victims from the December 2004 Southeast Asian tsunami, Real ID is now one of Washington’s most maligned policy programs. Sen. Daniel Akaka (D-Hawaii) is leading a bipartisan effort in the Senate to repeal the law and replace it with recommendations made by the 9/11 Commission. The commission recommended that states and civil-liberties groups negotiate with the federal government in developing minimum ID standards.

So Real ID could be killed, most likely in the next administration. It’s still not a sure thing that, if implemented, the more modest and politically popular 9/11 commission guidelines would strike the right balance among state’s rights, personal privacy and the need to stop identity theft. The broad post-9/11 support for national ID standards could turn out to be an unworkable policy in any incarnation.

“I don’t think that just because the 9/11 commission said it was a good idea necessarily makes its a good idea.” said Lee Tien, senior staff attorney at the Electronic Frontier Foundation, an advocacy group opposed to Real ID.

The “Identification Security Enhancement Act,” was introduced last year by Akaka, and has since picked up Republican co-sponsors Sen. Lamar Alexander (R-Tenn.) and Sen. John Sununu (R-N.H.). It would follow suggestions from the 9/11 commission, which concluded that more identification requirements were needed because all but one of the 9/11 hijackers was able to obtain a driver’s license. Instead of outlining what information should go on a license or be stored in a database, the 9/11 Commission said it was best to let states, civil-liberties organizations and security experts set up a group to develop ID standards.

These recommendations were actually briefly law, after passage in December 2004 of the Intelligence Reform and Terrorism Prevention Act. In fact, the Dept. of Homeland Security had started to assemble the rule-making coalition.

But they were overwritten when Rep. James Sensenbrenner (R-Wis.), then chairman of the House Judiciary Committee, pasted the Real ID Act into a 2005 emergency spending bill for the war in Iraq and the Asian tsunami. With Real ID, the federal government was now setting requirements on state-issued ID’s instead of working with states and other stakeholders.

“By bringing everyone together,” Akaka said at a Senate oversight hearing last week that garnered bipartisan criticism of Real ID. “I believe that we can address the problems with Real ID and have secured drivers licenses faster than through the time frame proposed by DHS’s final rules.”

That time frame for Real ID has already been pushed back twice. The original May 11, 2008 deadline has been extended to Dec. 31, 2009. But states can request an extension from DHS, to be compliant by 2011. And states don’t need to issue Real ID’s for residents over 50 until 2017– nine years after the original deadline.

Critics of Real ID see the extensions as a sign that the Bush administration doesn’t seriously want to deal with implementation problems. “By granting all 50 states waivers, the current administration has handed off the issue to the next administration,” said Jim Dempsey, policy director at the Center for Democracy and Technology, another group against Real ID.

Tim Sparapani, senior legislative counsel for the American Civil Liberties Union, argues that DHS has not seriously addressed the need to develop technology that can safely store personal ID information on a database shared by all 50 states. Sparapani said that the linked databases create an appealing target for terrorists, or any identity thief.

“If I break into a database in Alabama, I don’t just get Alabama information.” Sparapani said . “I get information from all states.” He added that the extra identification requirements will give a hacker the information to commit identity fraud.

To develop secure databases and issue new licenses, homeland security now estimates that Real ID implementation will cost $3.9 billion. Sensenbrunner’s original estimate was $100 million, and so far homeland security has issued just $79.8 million in grants. Congress and the administration are reluctant, however, to make up the difference.

Part of the reason is that many state legislatures have made clear to Washington that they reject Real ID on principle. On the basis of state’s right and privacy concerns, 17 states have officially announced they won’t comply with Real ID, even if the money were available.

DHS, nonetheless, granted compliance extensions even to those states, saying that they are working to meet national security standards. “Whatever their motivations may be, states are taking measures toward the path of Real ID compliance,” said Russ Knocke, a spokesman for DHS.

Critics of Real ID pointed out that DHS had little choice. “Being at DHS is not an easy job,” said Tien, at the Electronic Frontier Foundation. “Congress has given them a stinky bill that they now have to make look workable.”

Repealing Real ID then, through the Akaka bill, has better prospects under a new administration that might give homeland security a clean slate. “It’s a political rule that nobody creates controversy during an election year,” said Jim Harper, director of information policy studies at the libertarian Cato institute, “But we’ll probably see it introduced again with a high likelihood of passage in December 2009, when states can apply for an additional extension.”

Like Tien, Harper is uncertain whether Akaka’s bill with the 9/11 commission recommendations is a good thing. “It’s obviously an improvement,” he said. But Harper added he prefers “pushing aside Real ID to create a new post-9/11 conversation.”

Some proponents of federal ID standards say that civil libertarians would create opposition to any kind of baseline ID requirement. “When Americans think up about national ID cards, it drives them up the wall,” said Amitai Etzioni, director at the Institute of Communitarian Studies at George Washington University. “Even after 9/11, they think of it as totalitarian.”

Along with never satisfying privacy advocates, Etizioni said that the negotiated rule-making called for by the 9/11 commission is wrong to expect that all 50 states could get on the same page. “If you negotiate with the states,” he said, “each will have their own ideas.”

But many Real ID critics do see the Akaka bill as a pragmatic solution. “There is a certain amount of national leadership needed to bring all the states up to certain minimum standards,” said Dempsey, at the Center for Democracy and Technology. “Negotiated rule-making with state and local officials and privacy advocates is the right approach.”

The Real ID Act was added onto a bill with no public debate on whether it effectively combated terrorism and identity theft. Almost all sides now talk about wanting Congress and the next administration to discuss the pitfalls of national standards, before killing, keeping or revising Real ID.

“I’m hopeful that Real ID will collapse under the weight of everyone’s lack of enthusiasm,” said Tien. “The real question is what comes next.”