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No Real Debate for Real ID 

Wired News | May 10, 2005
By Kim Zetter

Hundreds of civil liberties groups, immigrant support groups and government associations oppose the Real ID Act, a piece of legislation that critics say would produce a de facto national ID card, cost states millions of dollars and punish undocumented immigrants.

Yet despite widespread opposition to the bill, it passed through the House last week and is expected to easily pass through the Senate on Tuesday.

The legislation is raising questions not only about privacy and costs but about the ways in which critical legislation gets passed in Congress.

That's because lawmakers slipped the bill into a larger piece of legislation -- an $82 billion spending bill -- that authorizes funds for the Iraq war and tsunami relief, among other things, and is considered a must-pass piece of legislation.

It's not the first time Congress has slipped contentious bills into larger legislation that is almost guaranteed to pass. In 2003, Congress augmented Patriot Act surveillance powers with wording slipped into the Intelligence Authorization Act, a bill that authorized funding for intelligence agencies.

Critics, such as the American Civil Liberties Union, say lawmakers slipped the Real ID Act into the relatively uncontroversial spending bill in order to avoid a congressional debate over the ID measure.

"The legislation was created in the backrooms of Congress without hearings and without any real understanding or thought about what was being created," said Barry Steinhardt, director of the ACLU's technology and liberty program.

The Real ID Act, sponsored by House Judiciary Committee chairman James Sensenbrenner (R-Wisconsin), responds to recommendations made by the 9/11 Commission to make it more difficult for terrorists and undocumented immigrants to obtain legitimate identification documents and travel freely around the country. The bill also is designed to make it difficult for anyone to forge identification documents and use them for criminal purposes.

A spokesman from Sensenbrenner's office did not return a call for comment in time for publication. But proponents of the legislation say they are simply implementing recommendations that the 9/11 Commission wanted.

"The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver's licenses," wrote the commissioners in their report. "Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists."

Among other things, the legislation would force states to produce standardized, tamper-resistant driver's licenses that would include machine-readable, encoded data.

States theoretically could choose not to comply with the standards, but residents of those states would not be able to use their license as identification to obtain federal benefits -- such as veteran's benefits or Social Security -- or to travel on airplanes.

The legislation doesn't specify what data states must encode in the driver's license. The secretary of transportation and Department of Homeland Security secretary have authority to designate the data.

The National Governors Association, the Council of State Governments and the American Association of Motor Vehicle Administrators are among those who say the law creates unnecessary bureaucracy for drivers and imposes hardship and undue cost on state offices.

The legislation would require all drivers, including current license holders, to provide multiple documents to verify their identity before they could obtain a license or renew one. Drivers would have to provide four types of documentation, such as a photo ID, a birth certificate, proof that their Social Security number is legitimate and something that verifies the applicant's full home address, such as a utility bill. The law would then compel Department of Motor Vehicle employees to verify the documents against federal databases and store the documents and a digital photo of the card holder in a database.

"What's the clerk in Denver supposed to do when someone provides a birth certificate from Angola?" asked Marc Rotenberg, executive director of the Electronic Privacy Information Center. "Are they supposed (to call Angola) to check the accuracy of that?"

The Congressional Budget Office estimates that the cost for states to train workers and switch to the new licensing system would be $100 million over five years. But critics like the National Council of State Legislatures say it will more likely cost between $500 million and $700 million.

Some critics call the legislation anti-immigration. Among other things, it would prohibit undocumented immigrants from obtaining a driver's license. Nearly a dozen states currently don't require proof of legal residency to obtain a driver's license, but this would change with the new law.

Civil liberties groups are concerned about the privacy implications of the bill. Although the bill states that licenses must be machine-readable, it does not state the kind of technology to be used. Steinhardt said that officials would likely require states to embed a contactless RFID chip in licenses at some point, even if they didn't require this in the initial rollout of licenses.

RFID chips can hold more data than magnetic stripes, but they can also allow someone with an RFID reader to collect information stored on a license from a distance without the license holder's knowledge.

The machine-readable part of the license will contain most of the information printed on the license front -- such as the holder's name, birth date, gender and digital photograph. But the Department of Homeland Security could add more data, such as digital fingerprints.

Proponents of the bill such as the nonprofit group NumbersUSA could not be reached for comment. But the group's members have said in the past that the bill successfully balances security and privacy interests.

Among other things, the group argues that the bill does not create a national ID card because it allows individual states to issue the documents and does not force states to comply unless they want the documents to be accepted by federal agencies as proof of identity. In fact, they argue that the Real ID bill will make it unnecessary for the federal government to issue a national ID card.

Steinhardt disagrees.

"This is a national ID, there's no question about that," Steinhardt said. "It may be issued by the 50 states, but it's going to be the same documents, which will be backed up by a huge database."

Steinhardt says a standardized license would allow the government and businesses to track people and would essentially create a single national database, since states would be required to open their driver's license databases to other states. He expressed concern that businesses would also want to read and collect the data on driver's licenses.

"Everyone from 7-Eleven to the owner of your apartment building to a retailer and a bank are going to demand to see this document," Steinhardt said. "And they're going to be able to read all of the private data off of the machine-readable strip."

Currently, some business such as bars and restaurants scan the magnetic strip on driver's licenses to collect data on patrons for marketing purposes. But the practice is not widespread.

Steinhardt said that making the content and format of the data uniform would encourage retailers and others to harvest the information and create their own parallel database and sell the information to data brokers like ChoicePoint.

Talk about a standardized driver's license arose last year after the 9/11 Commission Report revealed the ease with which the World Trade Center terrorists obtained legitimate driver's licenses and moved around the country unthwarted.

This year Sensenbrenner introduced the legislation as a stand-alone bill, which passed in the House in February. In March lawmakers, anticipating trouble passing it through the Senate, slipped the act into the larger, must-pass spending bill. It's this bill that the Senate is expected to pass on Tuesday.

"The deal's been cut," Steinhardt said. "I would be stunned beyond belief if it didn't pass at this point."

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