“PASS ID: A Real ID Revival in Disguise”
So says Mary Bonventre from the ACLU’s Technology & Liberty Program on the ACLU blog.
Is the REAL ID Revival Bill, “PASS ID,” a National ID?
With the move in the Senate to revive our moribund national ID law, the REAL ID Act, under the name “PASS ID,” it’s important to look at whether we’re still dealing with a national ID law. My assessment is that we are.
First, PASS ID is modeled directly on REAL ID. The structure and major provisions of the two bills are the same. Just like REAL ID, PASS ID sets national standards for identity cards and drivers’ licenses, withholding federal recognition if they are not met.
There is no precise definition of a national identification card or system, of course, but its elements are relatively easy to identify.
First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID and PASS ID have the exact same purpose – to create a nationally uniform identity system.
Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using a card, this presses it into the national ID category.
Neither REAL ID nor PASS ID directly mandate carrying a card. Doing so would be too obviously a national ID system, and politically unpalatable. But both seek to take advantage of the state driver licensing system, and they do that for a reason: Carrying a driver’s license is a practical requirement in most parts of the country, where the automobile reigns supreme as the mode of travel.
But maybe states would decline to participate. Nothing in the PASS ID Act directly requires states to implement the system, and they are entirely free to issue non-compliant licenses and ID cards. But this was also true of REAL ID – because of the constitutional rule that the federal government cannot commandeer the organs of state government. (The case is New York v. United States.)
What both REAL ID and PASS ID do is make it difficult for state residents to function without their nationally standardized ID. They both require the nationally standardized ID to enter federal facilities (perhaps fewer of them under PASS ID), to access nuclear power plants, and to board aircraft.
But the PASS ID bill has specific language saying that a person can’t be denied boarding because they don’t have a national ID. Isn’t that an improvement? It sounds like it, but that language simply restates the rules that exist under REAL ID.
REAL ID Revival Bill Introduced in Senate
Though it’s not yet available, word has it that a bill to revive the REAL ID Act has been introduced in the Senate.
Its sponsors are an unlikely group: Senators Akaka (D-HI), Tester (D-MT), Baucus (D-MT), Carper (D-CT), Leahy (D-VT), and Voinovich (R-OH). REAL ID was dead in the water, but with a name change and a few burrs taken off, these five senators may just give it life once again.
Watch this space for posts as I analyze the bill and the politics. I’ll examine closely the substance of the “PASS ID Act.” I’ll try to figure out how both Senators from Montana – a state that rejected REAL ID flat out – became leaders in the fight to revive it.
More on the politics: As the stars lined up for repealing REAL ID outright, the Senate negotiated a compromise . . . with nobody. And I’ll look at something everyone is studiously ignoring – whether a national ID (by any name!) would actually do any good for the country!
Trouble With Your National ID? Change the Name!
L-1 Identity Solutions is a leading biometric technology company, and with its acquisition of Digimarc ID Systems it has become the nation’s number one manufacturer of state identity cards and drivers’ licenses. Such a company would benefit massively from implementation of the REAL ID Act, the nation’s moribund national ID law.
But REAL ID is in trouble. No state was in compliance by the May 2008 deadline, and the Department of Homeland Security had to give deadline extensions even to states that flatly refused to participate in the national ID scheme.
So what does the primary beneficiary of the failing REAL ID Act do? Change the name. On a recent earnings call, L-1′s Chairman, President, and Chief Executive Officer, Robert V. LaPenta, was a little too transparent in expressing his optimism about the government ID card buisiness:
We’re well-positioned in all of these opportunities and we’re seeing increased sell prices for those states that are incorporating and I won’t call it real ID, I’ll call it enhanced or higher security drivers license.
“I won’t call it real ID, I’ll call it enhanced or higher security drivers license.”
Enhanced driver’s licenses are a project at the Department of Homeland Security – with no congressional mandate – to move state driver’s licenses toward serving as national ID cards.
So it is with the “PASS Act,” a bill that would revive REAL ID under a different name.
Senator Daniel Akaka (D-HI), formerly an opponent of having a national ID, has been working with the National Governors Association to round down the sharpest corners of REAL ID and give the national ID law a new name.
A news report says the new bill “explicitly prevents the creation of a national identification card.” It might also prevent things that walk like ducks, quack like ducks, and swim like ducks from being called “ducks.”
The only way to resolve the problems with REAL ID is to repeal REAL ID. Reviving the national ID program under another name is not a solution.
National ID Mission Creep
It’s a given that, once in place, a national ID would be used for additional purposes.
In case you needed proof, on Wednesday, Senator David Vitter (R-LA) offered an amendment to H.R. 627, the Credit Cardholders’ Bill of Rights Act of 2009, requiring the Federal Reserve to impose federal identification standards on the opening of new credit accounts. Among the limited forms of ID credit issuers could accept are REAL ID cards, produced under the moribund national ID law. (Vitter may not realize that REAL ID is in collapse.)
To compound things, his amendment would require credit issuers to run new credit card applicants past terrorist watch-lists. The sense of normalcy, efficiency, and common sense that makes airports so pleasurable to visit today would infect our financial services system. Oh joy.
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.
The REAL ID Revival Bill Should Not Get a PASS
A draft Senate bill to revive the REAL ID Act has been leaked to to the anti-immigrant Center for Immigration Studies, and they find it wanting.
The bill is an attempt to smooth down REAL ID and make the national ID law more palatable. CIS is unhappy because they want a national ID implemented right away.
REAL ID is, of course, failing. Just ten months ago, the Bush Administration’s Secretary of Homeland Security granted waivers to every state in the country – not a single one of them was in compliance by the May, 2008 deadline, and several have statutorily barred themselves from complying.
Legislation to repeal REAL ID in both the House and Senate was introduced in the last Congress, but with an administration and Department of Homeland Security eager to demagogue the issue against a Democratic Congress, that legislation did not move. Repealing REAL ID would not have the same problem in the current Congress.
But since then, Washington’s wheels have been turning. The National Governors Association has turned into an advocate of reviving REAL ID because it hopes that federal dollars will flow behind federal mandates. They won’t, but reviving REAL ID will cement NGA’s role as a beggar for federal dollars in Washington. (Maybe other state legislator groups, as well.)
Everbody in Washington, D.C. salivates over the chance to make “deals” even if that means switching positions on issues of principle like whether the U.S. should have a national ID. We’ll be watching to see which political leaders reverse themselves and support this attempt at a national ID for their love of political dealmaking.
The working name of the REAL ID revival bill is the “PASS ID Act.” It should not be given a pass by opponents of a U.S. national ID and the REAL ID Act.
NYCLU: Repeal REAL ID
The New York Civil Liberties Union has issued an impressive report calling for the repeal of the REAL ID Act.
“No Freedom Without Privacy: The REAL ID Act’s Assault on Americans’ Everyday Life” is a thorough look at the federal government’s national ID law, which states have refused to implement.
Less than a year ago, when it was clear that no state would be in compliance with the national ID law by the May 2008 deadline, then-DHS secretary Michael Chertoff granted waivers until December of this year, even to states that have statutorily barred themselves from complying. One of those states was South Carolina, whose governor Mark Sanford (R) has been a leading REAL ID opponent. The report cites him favorably for that.
Last year, bills to repeal the national ID law were introduced in both the Senate and House. With President Bush sure to veto, and Secretary Chertoff sure to demagogue a REAL ID repeal, the bills did not move. The political dynamics have changed since then, of course.
“Though the Real ID Act is not a household name,” the report says, “it is a central component of the Bush Administration’s assault on Americans’ liberty and privacy rights, and one that if not repealed now would forever change the fabric of American life.”
In its finite wisdom, the federal government often doubles down on bad policies, but the REAL ID Act is ripe for repeal. The law can’t be fixed, and there is no such thing as an acceptable national ID card.
National ID Promoted by Anti-Immigrant Group — Sorta
If it was ever in doubt that REAL ID and the push for national ID systems are a project of anti-immigrant groups, this should dispel it.
The Center for Immigration Studies has a page up on its website in which REAL ID lobbyist Janice Kephart trots out videos of Bush administration Department of Homeland Security officials sort of making the case for REAL ID. Or at least for all the different ID programs they had. Or something.
Frankly, it’s not clear what this piece is getting at. The material is rather meandering, and neither the videos nor the text provide a coherent argument for a national ID, much less defeat the arguments against one. (The featured former officials are former, and not involved with the current administration, because voters rejected the fear-mongering of the former DHS and administration in the most recent election.)
What the text does say is that the Obama administration is cool on a national ID because it “gained many votes from those who support mass, illegal and unchecked immigration into the US.” This is inaccurate in many respects. Nobody supports illegal immigration, but many people do recognize that balanced and generous immigration rules would reduce it. This country has a long history of being immigrant friendly and of favoring liberty over things like national ID systems. If those kinds of policies win votes, so be it! It’s nice to see a group like CIS admit that their agenda is politically unpopular.
Whatever the case, if you had any doubt about what motivates national ID advocacy in the country, it’s anti-immigrant groups. Their amateurish interest in terrorism and national security is motivated by their fixation on preventing free movement of people. The great irony is that the Center for Immigration Studies would put native-born American citizens into a national ID system to try to get at their anti-immigrant goals.
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