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Return of the REAL ID

July 9, 2009 - by Isabelle Cutting

In the form of an amendment to the 2005 military spending bill, Congress slipped the REAL ID Act into law with hardly any debate or deliberation. Since then, 23 States have passed legislation blocking its implementation.

Now there is a recurrent bill in Congress, the PASS ID Act, which with bi-partisan support, suggests bringing back the REAL ID Act from dormancy, albeit while attempting to address many of the privacy concerns previously held by critics. As a result, an unusually wide range of civil rights groups from both the right and left are arguing, that although the PASS ID Act is an improvement upon its predecessor, efforts to amend the 2005 law would be insufficient and merely another attempt to put in place a National ID.

S.1261, Providing for Additional Security in States’ Identification Act of 2009 or the PASS ID Act, sets out minimum requirements for State driver’s licenses and ID cards regarding what data is included and what documentation must be presented when receiving such ID cards. Such provisions in turn, seek to repeal title II of the REAL ID Act of 2005 for the (typically ambiguous) purposes of better protecting the “security, confidentiality, and integrity of personally identifiable information collected by States when issuing driver’s licenses and identification documents.”

On a more antagonistic tone, the bill states that a Federal agency may not accept, for any official purpose, a State driver’s license or identification card unless the State is materially compliant to the provisions of this legislation.

The particulars of this bill include that a driver’s license or an identification card issued by the state must include the following information about the relevant person:

  • legal name,
  • date of birth,
  • gender,
  • a driver’s license or identification card number,
  • a digital photograph,
  • address, signature,
  • a combination of security features designed to protect the physical integrity of the document,
  • a common machine-readable technology containing the data elements,
  • and a symbol designated by the Secretary, indicating material compliance.

The legislation specifically mentions, however, that the State may not include a person’s social security number as an additional data element. In order to issue a driver’s license or ID card, the State must require, at a minimum, the presentation and validation of documents showing the person’s full name, date of birth, social security number (or equivalent) and address. These documents must also show proof that the person is a United States citizen or otherwise residing legally within the United States with employment authorization.

In anticipation of criticisms to the costliness of implementing these provisions in the individual states, this legislation also offers grants to help states meet these minimum requirements. Lastly, this bill seeks to establish a “State-to-State 1 driver, 1 license” demonstration project to evaluate the feasibility of creating an electronic system verifying that someone does not receive duplicate materially compliant duplicate driver’s license or identification card.

More interesting, however, is the legislative lineage from which this bill stems, and the uproar it entices among voices, which are otherwise rarely heard in unison.

To start, the previously mentioned REAL ID Act was introduced in 2005 as H.R.418 by Rep. Sensenbrenner [R, WI-5] but then became stagnant in the Senate. With Sensenbrenner’s graces, however, the bill rode on the 2005 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, H.R.1268. This then perceived must-pass bill with the REAL ID rider flew through the House (368-58) and Senate (100-0) and was subsequently signed into law. Despite the unanimity of the latter vote, the Senate, never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage, raising claims of a democratic deficit.

The implementation and enforcement of the REAL ID provisions, however, have since then been perpetually postponed in the hopes of gaining State support. This has been all but reached, however, as 23 States have actually passed legislation in opposition to the REAL ID Act. Furthermore, opposition cuts across libertarian, immigrant advocacy, human and civil rights, privacy advocacy, good government and government accountability, labor, consumer and patient protection, and gun rights groups. On the other hand, the Real ID Act is strongly supported many anti-illegal immigration advocates. Within congress, the Real ID Act enjoys support from members such as Sen. John McCain [R,AZ], but has been rejected by members such as Rep. Ron Paul [R, TX-14]. (When a senator, President Obama also opposed the legislation.)

Given this heavy opposition, it is not surprising that legislation, such as the PASS ID Act, has been introduced to repeal provisions in the REAL ID Act. Similar bills, H.R.1117 and S.717, were presented in the previous Congressional session but died while in committee. The former was introduce by former Rep. Thomas Allen and enjoyed support from 40 democratic co-sponsors while the latter, like the current S.1261, was introduced by Sen. Daniel Akaka [D, HI] and carried bi-partisan support from 7 co-sponsors.

After sponsoring this congressional session’s version of the bill, Akaka stated that:

Perhaps the most important improvement in the PASS ID Act is the removal of the mandate that states share all of their driver’s license data with each of the other states. This provision created a clear risk to the privacy of all Americans’ personal information and posed a great risk for identity theft and fraud. Moreover, it was this provision that raised the specter of a national database of all Americans’ personal information…The PASS ID Act instead will allow states to continue to maintain their own individual databases with more stringent security requirements. (Examiner)

Indeed such improvements are evident in the bill’s text, which states that nothing “may be construed to —
(1) authorize the creation of a national database of driver’s license information; or

(2) authorize States direct access to the motor vehicle database of another State.” See Akaka’s press release for how S.1261 more specifically does and does not alter the REAL ID Act.

Despite these changes, critics largely charge that, although a step in the right direction, the PASS ID Act is too similar to the REAL ID Act to warrant support.

For example, Chris Calabrese, counsel of the ACLU Technology and Liberty Program, stated that:

Sen. Akaka is right in his efforts to eliminate a substantial number of the more problematic aspects of Real ID…But while these attempts at improvement are commendable, Real ID cannot be ‘fixed,’ and we oppose anything that would revive it.

Opponents further argue that this bill still violates the 10th amendment and the concept of Federalism. Immigrant and civil rights advocates also state that the bill’s evidentiary standards would prevent many legitimate asylum seekers from obtaining that status and that they are merely blunt instruments, which would do little for immigration reform.

For such reasons the PASS ID Act is simultaneously one of the top ten most written about bills in the news and is currently the bill attracting the most attention in the blogosphere. Similarly, the above-mentioned sentiments have been echoed amongst OpenCongress voters, whose opposition to S.1261 caused the bill to “heat up” this week on our Battle Royale function. In light of all this attention, here are a few points of discussion regarding the PASS ID Act:

  • A comparison of the REAL ID and PASS ID Acts (Jim Harper)
  • A more visual comparison of the two pieces of legislation (CDT)
  • REAL ID Should Be Repealed, Not Fixed (ACLU)
  • update: Also see Rep. Sensenbrenner’s comments for why the REAL ID Act was seen as relevant to the political climate of 2005 (House.gov)
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isabellecutting 07/10/2009 10:15am

Yes, looking back my language is too general. The REAL ID act did not pass surreptitiously through all of Congress. There was plenty of debate surrounding the legislation, both as a stand-alone bill and a rider to H.R.1268, in the House. However I have not found any indication that such debate occurred in the upper chamber.

The REAL ID act, initially H.R.418, was accompanied by two resolutions providing for debate and further consideration of the bill’s content. Both of these resolutions passed and the bill proceeded to pass (by a vote of 261-161) in a period of two days. When referred to the Senate, however, the bill fizzled out while in the Committee on the Judiciary.

A month later, pursuant to H.Res.51, providing for further consideration on the military spending bill (H.R.1268), the text of the REAL ID Act was appended as Division B to the end of this legislation. While the Senate then did indeed consider and vote on H.R.1268, it did not do so specifically for the REAL ID Act…

isabellecutting 07/10/2009 10:15am

…My opening sentence was intended to allude to this, and what I wrote in the 9th paragraph or so of the post. It is my impression that when a stand-alone bill, the REAL ID act was more visible and open to criticism (such as that from the 23 States which passed legislation opposing the act). However, as a rider to the emergency spending supplemental, a bill which was almost guaranteed to pass in the Senate (note the vote of 100-0), the REAL ID Act became less visible and less accessible.

Indeed as you noted, the votes of H.R.1268 are no indication that the REAL ID Act was not thoroughly considered in Congress. I meant, rather, that the manner, in which the REAL ID Act was passed, was a bit “slippery”.

The political climate of 2005 is also an important factor, which I did not consider in the post.

Thanks so much for the comment and giving me the chance to further explain myself! I wholly agree with your comment about conspiracy.

Anonymous 07/10/2009 7:35am

“In the form of an amendment to the 2005 military spending bill, Congress slipped the REAL ID Act into law with hardly any debate or deliberation.”

I don’t think you really represent what went on regarding REAL ID. 100 votes in the Senate and nearly 400 in the House is not an indication that this bill was not thoroughly considered by each voting Member. When taken in the context of Capitol Hill in 2005 what we now concern ourselves with in the bill would have been seen as necessary despite privacy concerns.

Rest of the article is good but let’s not see conspiracy in every corner, eh?

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