Don’t BELIEVE the Hype—Though Unformed, the Democrats’ National ID Plan Is Rife With Threats to Privacy and Civil Liberties
Senate Democrats have solidified and given more definition to their plan to create a biometric national ID, the centerpiece of their immigration reform proposal. (For reasons unrelated to the national ID plan, Senator Lindsey Graham (R-SC) has dropped out of the picture for now.) The “Conceptual Proposal for Immigration Reform” they released last week gives much more detail to the sketchy plans I previously reviewed.
In my Cato Policy Analysis, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution for Illegal Immigration,” I wrote about the possibility of a work authorization document limited to that purpose—and my doubts that the government would adopt one.
A credential such as eligibility for employment under [the immigration laws] can be proved without creating a nationwide biometric tracking scheme. In fact, templates already exist. But it is unlikely to see adoption. . . . [I]dentification and tracking . . . shift the risk of error in the card-issuance process from the government to the citizen. . . . [T]racking preserves government power. A work-eligibility and tracking system . . . makes the individual’s employment eligibility subject to revision at a later time, if the government wants to change the rules or adapt the system to new purposes, for example.
Those doubts are validated by this plan, which appears to be a full-fledged national ID and national biometric database. Assurances that it won’t be used for purposes beyond immigration control are not persuasive. This is national identity and surveillance infrastructure that will be “switched on” by later policy changes.
They’re calling it “BELIEVE,” short for “Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment.” They can call it that. We’ll study it, and give credence to what we learn.
The plan is confusing, disorganized, repetitive, and sometimes contradictory. Summarizing it is a little like trying to piece together the egg when all you have is the omelet, but three themes emerge: First, this summary backs away from an earlier claim that there would not be a biometric national identity database. There will be a national biometric database. Second, repeating the word “fraud-proof” does not make this national ID system fraud proof. Third, this national ID system definitely paves the way for uses beyond work authorization. This is the comprehensive national identity system that people across the ideological and political spectrum oppose.
The national ID part of the Democrats’ proposal begins at the bottom of page eight. It’s a veritable word-cloud, suggesting a violation of the rule of thumb that simple solutions are usually the best. But let’s look at it, line by line.
University of Denver Panel Recommends You Have a National ID
If you have a job, a panel convened by the University of Denver thinks you should have a national ID card.
DU’s “Report of the Strategic Issues Panel on Immigration” says:
The idea of a national card for identifying citizens and non-citizens has become the third rail of immigration politics. But in truth, without a means of positive identification, it makes very little difference what immigration policies are adopted because they can’t be effectively enforced. A means of positive identification is essential to prevent the employment of illegal immigrants.
Only the panel’s narrow framing leads to this conclusion.
Restrictive immigration policies may require a national ID and federal background check system because such policies are so at odds with employers’ and workers’ interests. The federal government will have to continually investigate workers and employers to maintain them.
But policies that align immigration rates with our country’s demand for new workers would foster the rule of law naturally—without a national ID, worker surveillance, and an overweening federal government.
Much hand-waving animates the report. It imagines a card system that is “extremely difficult or impossible to counterfeit.” But that’s a product of how much value your card system controls—the more value, the more effort goes into forging it—and access to employment in the U.S. is worth a lot. The report says nothing about fraud in the card issuance process.
Nor does it calculate the expense to our nation’s seven million employers—many of them small businesses, families, and individuals—for getting card readers. Their proposal to hold employers harmless is an embossed invitation to fraud on the system—unless those inexpensive card readers are also fingerprint or iris scanners. If the system is going to work, someone legally responsible has to verify that the card belongs to the person presenting it. And if you’re going to use biometric scanners, there is a lot of work yet to be done to control error rates.
Of privacy concerns, the panel says it listened to “experts and advocates on all sides.” But the advisors listed in the report do not include any privacy expert or civil liberties advocate. They do include an advocate for restrictionist immigration policies, a police chief, a former U.S. attorney, a federal Immigration and Customs Enforcement official, a Colorado state homeland security official, a federal Department of Homeland Security official, a sheriff, the Colorado Attorney General, and a CIA officer. It is unlikely that the one “immigrant rights” advocate addressed the privacy issues for U.S. citizens, much less the technical and data security problems.
It’s not new for people focusing on one issue to think that a national ID is their solution. In fact, it’s typical for people to think that sprinkling technology over economic and social problems can solve them.
Assessing the Claim that CDT Opposes a National ID
It was good of Ari Schwartz to respond last week to my recent post querying whether the Center for Democracy and Technology outright opposes a national ID or simply “does not support” one.
Ari says CDT does oppose a national ID, and I believe that he honestly believes that. But it’s worth taking a look at whether the group’s actions are consistent with opposition to a national ID. I believe CDT’s actions — most recently its support of the PASS ID Act — support the creation of a national ID.
(The title of his post and some of his commentary suggest I have engaged in rhetorical excess and mischaracterized his views. Please do judge for yourself whether I’m being shrill or unfair, which is not my intention.)
First I want to address an unusual claim of Ari’s — that we already have a national ID system. If that is true, his support for PASS ID is more sensible because it is an opportunity to inject federal privacy protections into the existing system (putting aside whether it is a federal responsibility to manage a state system or systems).
Would PASS ID Really Save States Money?
The proposed PASS ID Act is a national ID just like REAL ID, and it threatens privacy just as much. Some argue that a national ID under PASS ID should be palatable, though, because it reduces costs to states.
But savings to states under PASS ID are not at all clear. Let’s take a look at the costs of creating a U.S. national ID.
The REAL ID Act, passed in May 2005, required states to begin implementing a national ID system within three years. In regulations it proposed in March 2007, the Department of Homeland Security extended that draconian deadline. States would have five years, starting in May 2008, to move all driver’s license and ID card holders into REAL ID-compliant cards.
The Department of Homeland Security estimated the costs for this project at $17.2 billion dollars (net present value, 7% discount). Costs to individuals came it at nearly $6 billion – mostly in wasted time. Americans would spend more than 250 million hours filling out forms, finding birth certificates and Social Security cards, and waiting in line at the DMV.
The bulk of the costs fell on state governments, though: nearly $11 billion dollars. The top three expenditures were $5.25 billion for customer service at DMVs, $4 billion for card production, and $1.1 billion for data systems and IT. Getting hundreds of millions of people through DMVs and issuing them new cards in such a short time was the bulk of the cost.
To drive down the cost estimate, DHS pushed the implementation schedule way back. In its final rule of January 2008, it allowed states a deadline extension to December 31, 2009 just for the asking, and a second extension to May 2011 for meeting certain milestones. Then states would have until the end of 2017 to replace all cards with the national ID card. That’s just under ten years.
Then the DHS decided to assume that only 75% of people would actually get the national ID. (Never mind that whatever benefits from having a national ID drop to near zero if it is not actually “national.”)
The result was a total cost estimate of about $6.85 billion (net present value, 7% discount). Individual citizens would still spend $5.2 billion worth of their time (in undiscounted dollars) on paperwork and waiting at the DMV. But states would spend just $1.5 billion on data and interconnectivity systems; $970 million on customer service; and $953 million on card production and issuance—a total of about $2.4 billion. (All undiscounted—DHS didn’t publish estimates for the final rule the same way it published their estimates for the proposed rule.)
Maybe these cost estimates were still too high. Maybe they weren’t believable. Or maybe Americans’ love of privacy and hatred of a national ID explains it. But the lower cost estimate did not slow the “REAL ID Rebellion.” Given the costs, the complexity, the privacy consequences, and the dubious benefits, states rejected REAL ID.
Enter PASS ID, which supposedly alleviates the costs to states of REAL ID. But would it?
At a Senate hearing last week, not one, but two representatives of the National Governors Association testified in favor of PASS ID, citing their internal estimate that implementing PASS ID would cost states just $2 billion.
But there is reason to doubt that figure. PASS ID is a lot more like REAL ID – the original REAL ID – in the way that most affects costs: the implementation schedule.
EPIC on PASS ID: a National ID Card
The Electronic Privacy Information Center has produced a very thorough analysis of the PASS ID Act, which would revive the REAL ID national ID program.
The EPIC analysis states flatly, “The bill would establish a national ID card,” and, “The intent of this legislation is to facilitate a National ID system.”
That’s quite a contrast to Ari Schwartz at the Center for Democracy and Technology, who alone believes that PASS ID “prevents the creation of a National ID system.”
PASS ID and National ID – Rejoinder to Schwartz
Ari Schwartz responded in characteristic even tones to my critique of his testimony in favor of the PASS ID Act, which would revive the moribund REAL ID law. It’s worth a rejoinder, and I’ll offer him the same again here if he wishes.
Ari clouds matters slightly by suggesting that my “strong biases” obscure certain facts. I readily admit having a strong bias in favor of liberty — it’s why I do what I do. Ari admits several biases, including one in favor of consensus-building, which was what I accused him of prioritizing over principle. Let’s put aside the question of bias.
It’s good to see Ari state that CDT does not support a national ID system. It would be better to see him state that CDT opposes having a national ID system. (I imagine this is just a matter of word choice, but it would be good to have clarity.)
Next, Ari says his testimony “makes it clear that we believe that PASS ID prevents the creation of a National ID system.” I don’t believe this is clear from his testimony. More importantly, this is not a sound assessment of what a national ID is or what PASS ID does.
We need some defined terms, so let’s tease out what he means by “national ID.” (He has told me that there is some distinction between a “national ID,” a “national ID system,” and perhaps a “national ID card,” but the distinction is lost on me. I believe a national ID card is part of a national ID system, both of which are commonly referred to in shorthand as a “national ID.”)
Twice in his testimony, he correctly calls REAL ID a national ID system. The factors that make it so appear to be “the very real possibility that individuals would not be able to function in American society without a REAL ID card” and “giving unfettered discretion to DHS to expand the ‘official purposes’ for which REAL ID cards could be required.”
Review of the Big REAL ID Hearing
The Senate Homeland Security and Governmental Affairs Committee held a hearing yesterday on the REAL ID Act and the REAL ID revival bill, known as PASS ID. I attended and want to share with you some highlights.
Good News!
Little good came from the hearing, as it was primarily focused on how to get the states and people to accept a national ID. But there is some good news.
First, Department of Homeland Security Secretary Janet Napolitano declared REAL ID dead (much as I did in my testimony two-plus years ago). “DOA” is how she referred to it.
She also said that no state will be in compliance with REAL ID by the current December 31, 2009 deadline. This is important because a lot of people think that states doing anything about the security of drivers’ licenses and ID cards are complying with REAL ID.
Another highlight was the commentary of Senator Roland Burris (D-IL). He is a beleaguered outsider to the Senate and evidently wasn’t coached on the talking points around REAL ID and PASS ID. So he flat out asked why we shouldn’t just have “a national ID.”
Senator Susan Collins’ (R-ME) nervous smile was particularly noticeable when Burris asked why the emperor had no clothes. No one was supposed to talk about national IDs at this hearing! But that’s what PASS ID is.
REAL ID and PASS ID are two versions of the same national ID system, and nobody is denying it. That’s good news because the effort to rebrand REAL ID through PASS ID has failed.
Parties in Power Like National ID Systems
In a recent post, I noted how Department of Homeland Security secretary Janet Napolitano was “taking the national ID tar baby in a loving embrace.” Now the administration seems to be similarly embracing the E-Verify government background check system.
Starting September 8th, it will go forward with a Bush administration plan to require federal contractors to check their employees against federal databases. The E-Verify program is riddled with problems, and it will send many American workers and legal immigrants into Kafkaesque ordeals when they find they aren’t approved by the federal government to earn a living. Ultimately, “internal enforcement” of immigration law, which is what E-Verify is about, requires a biometric national identity system.
Wasn’t a Democratic administration going to be the antidote to the aggressive security-statism of the Bush administration? Well, no. Once in power, either political party will see merit in national ID systems. After all, a national ID gives the government direct regulatory control over individuals – and that’s a sweet sound to the powerful, regardless of political affiliation. This is why it was so interesting to see the left begin to embrace a national ID as it anticipated an Obama victory in November.
Parties in power like national ID systems.
Virginians’ Happiness Frustrates DMV
Showing off those pearly whites frustrates facial recognition software used by the Virginia Department of Motor Vehicles, so DMV workers are instructing motorists not to smile for their driver license photos. It’s a story worthy of The Onion, but it’s apparently true.
Facial recognition is just another way that governments are looking to keep tabs on citizens and residents. The need for specific no-smiling instructions will recede over time as national ID systems facilitate government control and make life in America naturally unhappy.
Questions for Heritage: REAL ID
The Heritage Foundation’s “The Foundry” blog has a post up called “Questions for Secretary Napolitano: Real ID.”
Honest advocates on two sides of an issue can come to almost perfectly opposite views, and this provides an example, because I find the post confused, wrong, or misleading in nearly every respect.
Let’s give it a brief fisking. Below, the language from the post is in italics, and my comments are in roman text:
“. . . and Replace It with REAL ID”
CNN wrote an exciting headline on Wednesday: “Homeland Security Chief Seeks to Repeal Real ID Act.” What they left out was that the replacement would be . . . the REAL ID Act.
Intentionally or not, Secretary of Homeland Security Janet Napolitano has created the impression that the national ID law might go away. But simply renaming the Department of Homeland Security’s national ID program is not a repeal of REAL ID.
The REAL ID revival bill that has been circulating is the same national identification and tracking system with a few of the sharpest corners taken off and the hope of federal money held out to up-to-now recalcitrant states. The REAL ID revival bill would corral every American citizen into the national ID system to try and attack illegal immigrants.
Bills to repeal REAL ID were introduced in the previous Congress, but they did not move because the Bush administration and Chertoff DHS would have eagerly demagogued the issue. Those political conditions no longer hold. And just 10 months ago, Secretary Chertoff delayed the implementation of REAL ID without bringing any political repercussions to the Bush administration whatsoever. Secretary Napolitano can do the same if Congress fails to truly repeal REAL ID, as it should.
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