Opinion

Another Bite at Real ID

By Joan McCarter, 4-28-09

Real ID is an unfunded mandate program that requires states to replace drivers licenses with what is essentially a national identification card. That card would have a chip including, at a minimum, name, birth date, sex, ID number, a digital photograph, address, and a “common machine-readable technology” that Homeland Security would decide on. That’s at a minimum. These cards would be required, at a minimum, for air travel and access to federal buildings, at least the ones that require ID. All this information is supposed to end up being stored on a vast national database. While the states are required to comply, the federal agencies that are required to demand Real IDs isn’t explicit. In fact, the Department of Homeland Security were to decide that. Real ID could in theory be required for voting, flying, traveling on Amtrak, collecting federal welfare benefits, signing up for Social Security, applying for student loans, interacting with the U.S. Postal Service, entering national parks, and so on.

Back when this deadline was approaching, I wrote about frightening scope of the program:

[T]he Real ID debate has to be considered in light of the astounding revelations from a Wall Street Journal report last week:

Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans’ privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn’t disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system....

Two former officials familiar with the data-sifting efforts said they work by starting with some sort of lead, like a phone number or Internet address. In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item—and then the people who associated with them, and so on, casting a gradually wider net. An intelligence official described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a U.S. city—for instance, Detroit, a community with a high concentration of Muslim Americans—the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city.

The haul can include records of phone calls, e-mail headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit....

That’s right, in direct defiance of a Congressional ban, the NSA--which legally only has authority to monitor foreign intelligence--has implemented this program to track American citizens. Huge amounts of data--e-mail information (sender, recipient, subject line, time stamp), Internet searches (both conducted searches and sites visited), both wired and wireless phone calls (incoming and outgoing, as well as location and duration), financial records (credit card activity, wire transfers, bank account information), and tracking information from the TSA--are being swept up by the NSA and monitored for suspicious patterns.

There’s little question that the states’ database of Real ID information will be swept into the massive NSA database....

One would like to think that was just so much paranoia, but it’s turned out even worse over the past year, at least as far as the NSA and its activities are concerned. On April 16, the New York Times reported that the “National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.” In addition to getting the private e-mails and phone calls of just us regular folks, the Times reported that “the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.” Oops. At least now Congress might actually feel compelled to investigate.

But back to the data that would have been fed into that database--the Real ID information. Many states, including Montana, Maine, South Carolina, New Hampshire, and Oklahoma refused to implement the card. Montana’s Governor Schweitzer was among the most vocal.

Schweitzer said Friday that the debate over a deadline borders on the absurd, because nearly all states have asked for an extension and the feds haven’t detailed what type of licenses will meet the requirements.

“There is nothing to comply to,” he said. “We already have one of the most secure driver’s licenses in the country. Is the threat that one of the most secure driver’s licenses in the country will no longer be accepted, and the less-secure ones will?”

The rebellion has apparently done the trick. Enough states either refused to comply or requested delays in the program to allow the change of administration to happen, and for the program to be reconsidered. Last week, DHS Secretary Janet Napolitano admitted that Real ID was not working, and revealed plans to “repeal REAL ID and substitute something else that pivots off of the driver’s license but accomplishes some of the same goals.” That means, apparently, the new administration will be asking Congress to repeal the legislation establishing Real ID, and substituting it with something more workable, and hopefully a lot less intrusive into the private lives of Americans.

The ACLU is recommending an approach to rewriting the legislation that includes the states this time. The original legislation in 2004 was tacked onto an emergency, must-pass spending bill, and didn’t get a proper vetting in Congress. Governors certainly weren’t allowed to weigh in on the debate. The ACLU’s proposal argues for “a negotiated rulemaking process that brings state and federal officials and nongovernmental organizations to the regulatory table, with an emphasis on civil liberties.” I’m still not sold on the idea that we need a national ID card at all, but at least we now have a shot at a program that--importantly--involves state governments, making it reasonable for them to comply, and protects our civil liberties.

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