Congress rethinks the Real ID Act

Opposition is growing to a forthcoming digital ID card for American citizens, but it may be too late to make sweeping changes to the controversial identification requirements.

During a congressional hearing on Tuesday, Sen. Patrick Leahy (D-Vt.) savaged the Real ID Act as an unwarranted intrusion into Americans' personal lives that a Republican-controlled Senate enacted two years ago without a single hearing or debate.

"Americans deeply value their privacy," said Leahy, who heads the influential Senate Judiciary committee. "Americans have traditionally recognized the danger of an overreaching government." He said Real ID will "effectively create a national ID card."

Leahy's hearing coincided with the last day to file comments with the Department of Homeland Security on its draft Real ID regulations, which were released on March 1. They drew immediate criticism for, among other things, requiring that drivers' home address and personal information be included in a two-dimensional barcode without encryption.

That means bars and banks and other businesses would face no technical obstacles when skimming and retaining those data. There is "nothing limiting the use of the Real ID card for this type of purpose," said Sen. Russ Feingold, a Wisconsin Democrat. Also, Homeland Security has not ruled out the use of mandatory radio frequency identification tags in the cards, which raises additional privacy concerns.

Enacted as part of an emergency Iraq war spending bill, the Real ID Act compels state governments to issue driver's licenses that follow national ID standards to be set by Homeland Security. Eventually, Americans without the federalized ID will not be able to use their state-issued ID to do things like open a bank account, enter federal buildings, or fly on a commercial airline. Homeland Security puts the total cost at $23.1 billion over 10 years.

That has sparked a kind of grassroots rebellion, with seven states so far enacting legislation opposing Real ID, according to the advocacy site RealNightmare.org. (The list: Washington, Idaho, Montana, North Dakota, Colorado, Arkansas and Maine.) An additional 14 states have had one chamber of their legislature approve some sort of anti-Real ID measure and more have bills pending.

But because the federal law is already on the books and final regulations are nearly complete, Real ID opponents face a difficult task.

A split among conservatives
Three groups tend to be strong supporters of Real ID. National security aficionados claim secure IDs will stop terrorists from boarding commercial flights, and some businesses hope to secure some of that $23.1 billion in spending for themselves by selling compliance technology to motor vehicle departments. The most influential groups, however, are anti-immigration advocates who believe Real ID will stop the flow of illegal Mexican immigrants across the border.

Rep. James Sensenbrenner, a Wisconsin Republican who was chairman of the House Judiciary Committee in 2005, was the politician most responsible for inserting Real ID into the military spending bill, which also funded tsunami relief. In an editorial on Tuesday, The Wall Street Journal criticized Real ID and dubbed Sensenbrenner's effort a "poll-driven election panic" designed to "placate noisy anti-immigration conservatives."

Conservatives are split on Real ID. States like Idaho and Montana that have come out against the idea are hardly bastions of liberalism, and an anti-Real ID coalition includes People for the American Way and the National Center for Transgender Equality--but also Gun Owners of America and the Virginia Gun Owners Coalition.

During Tuesday's Senate hearing, James Carafano, a policy analyst at the conservative Heritage Foundation, defended Real ID.

"Adequate privacy protection can be implemented," Carafano said. "We can fairly implement this system in a reasonable timeline...There obviously is some security value in having national standards that credentials presented for a federal purpose must meet."

Janice Kephart, president of 9/11 Security Solutions, also praised the 2005 law. "Real ID does not invade privacy," Kephart said, adding that at least 23 state legislatures have bills supporting the measure and Kansas and Michigan have enacted them. "Real ID does not create a national ID card."

Kephart's inside-the-Beltway firm makes money by providing consulting services to government contractors "with special expertise in border security." Her Web site lists Northrop Grumman as a client.

For their part, Kephart and other proponents of the Real ID Act say it's designed to implement proposals suggested by the 9/11 Commission, which noted that some of the hijackers on September 11, 2001, had fraudulently obtained state driver's licenses. But not all did: At least one hijacker simply showed his foreign passport and walked onto the airplane that day.

Beyond conservative and liberal groups, another potent source of opposition has been state legislatures and DMV offices, which are worried about the cost of doing background checks on their citizens and outfitting everyone with Real ID cards.

A summary (PDF) prepared by the National Governors Association, the National Conference of State Legislatures, and the American Association of Motor Vehicle Administrators said that Real ID will increase visits to state DMVs "by over 75 percent" a year at a minimum, and predicted that "there is simply not sufficient time to implement the requirements."

In a time-honored Washington political move, however, Real ID proponents have proposed silencing the states by writing large checks to cover any compliance costs. "I do believe Congress should pay its fair share in implementing the system," Heritage's Carafano said during Tuesday's hearing.

Opponents counter by stressing privacy and security concerns. Bruce Schneier, the chief technology officer of BT Counterpane, said in the same hearing Tuesday that security is better served by having a variety of different identification cards. "A single credential is a one-stop shop for identity thieves," he said.

In addition, even Homeland Security's own Data Privacy and Integrity Advisory Committee said this week that it could not endorse Real ID.

In Congress, there is at least some interest in revisiting Real ID. A modest approach by Sen. Susan Collins, a Maine Republican, would reduce Homeland Security's power to order states to comply with the law.

Other proposals include one from Rep. Thomas Allen, a Maine Democrat, that would rewrite the Real ID Act, insert privacy safeguards, and hand $2.4 billion to states over an eight-year period. And Sen. John Sununu, a New Hampshire Republican, and Daniel Akaka, a Hawaii Democrat, have reintroduced a bill to repeal portions of the existing law.