Lawyers Journal

The Real ID Act — Will it make us safer or are we putting our privacy at risk?

On May 11 of this year, President Bush signed into law an $82 billion dollar "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief." Attached to this military funding bill was a little known act called "The Real ID Act of 2005."

According to Rep. F. James Sensenbrenner (R. - WI), the bill's sponsor, the Real ID Act will "hamper the ability of terrorist and criminal aliens to move freely throughout our society by requiring that all states require proof of lawful presence in the U.S., and for drivers' licenses to be accepted as identification for federal purposes such as boarding a commercial airplane, entering a federal building or a nuclear power plant."

The purported goal of the Real ID Act is to prevent another 9/11-type attack by disrupting terrorist travel. But opponents of the Real ID Act say Congress has, without hearings or debate, rolled back asylum laws, attacked immigrants and set the stage for de facto national IDs.

What is the Real ID Act?

The Act has three components: The mandate of a federally approved identification card, immigration law changes, and changes for those seeking asylum.

The Act requires anyone living or working in the United States to have a federally approved, electronically readable identification card within the next three years to travel on an airplane, open a bank account, collect Social Security payments, get into a federal building, get onto federal property, cross state lines or take advantage of nearly any government service.

The mechanics and implementation procedures for the federal identification card system have yet to be finalized; in fact, they aren't due out until spring 2006. But the data that will appear on the card is set. Each card will show an individual's name, birth date, drivers license number or identification card number, a digital photograph, address, signature and social security number. The card will also indicate whether the carrier is a U.S. citizen, a lawfully admitted alien or has an approved application for asylum in the United States or has entered into the United States in refugee status.

Similarly, the standards for physical security features and common machine-readable technology have yet to be decided. Common machine-readable technology could be magnetic strips, enhanced bar codes or radio frequency identification (RDIF) chips. These are the techniques most frequently used by the federal government. Homeland Security has indicated its preference for RDIF chips, which are traceable. The State Department is already using RFIDs in passports. The US-Visit program has begun to use digitally collected biometric identifiers to record the entry and exit of aliens who travel into the U.S. Retinal scans, thumb prints, DNA samples or some other technology could also be used.

The process of getting a Real Identification card

The next time your driver's license expires, it will likely have to be reissued to meet federal identification standards. It will be a more intense and lengthy process than is now the case. You will not only have to get the required documents together, those documents will have to be processed at the RMV. It is almost certain to be a more expensive process, because the Act places funding for the program onto the states.

However, a national survey by the Coalition for a Secure Driver's License showed that more than four out of five Americans (84 percent) polled would be willing to stand in line a few extra minutes or pay an extra dollar for a driver's license so that their identities could be authenticated. The study also showed that 68 percent of Americans polled agreed that uniform standards for state issued drivers licenses, as enacted by Congress under the Real ID Act, should be adopted by states.

The Registry of Motor Vehicles will be handling the paperwork and submitting the digitized information to a centralized federal database. Any person without the required documentation, such as illegal aliens and refugees, or anyone unable to get the required documentation must be reported to the centralized database by the RMV.

Local opinions

Harvey Silverglate, Good & Cormier, a civil liberties and criminal defense attorney, doesn't view the Act as a problem at all. "The national, mandatory identification system is a two-step process and I don't consider it to be a problem or a horrendous civil liberties issue — everyone already has a picture ID — everyone needs a picture ID to get around, (such as) a driver's license or passport to get on a plane."

But, Silverglate noted, "It's the second stage of the process we have to watch. How will the mandatory ID be used and what controls will be placed on it? We do have to fight against its abusive use."

Martin Rosenthal, a former criminal defense lawyer now currently handling attorney bar discipline cases, voiced a similar opinion. "Civil libertarians are going to be divided on the issues, but it (the Act) hasn't played out yet, it hasn't been studied. Until something happens with it (the Act), no one is going to hear anything about it."

Massachusetts ACLU Executive Director Carol Rose warns of a pattern emerging in Washington. "When Congress wants, without our knowledge, to violate our civil rights, it does so by attaching the violation to something that can't be voted down."

The Real ID Act was attached to a bill sending money to troops in Iraq and tsunami relief. "Congress wasn't about to vote out either of those items, yet in doing so, bypassed the fundamental right afforded Americans by the Constitution to hear and debate the Real ID Act," said Rose.

The ACLU's position is that the Act raises both civil liberty issues as well as civil rights issues that impact all Americans. The Act is an "incredibly scary piece of legislation," cautioned Rose.

Privacy

According to Congressman Edward J. Markey (D-Mass.) and others, one of the biggest concerns with the Real ID Act is protecting individual privacy and the potential for identity theft; it is a very real possibility the technology used to implement the Real ID act will be misused by identity thieves.

Many believe the enactment of the Real ID is a step toward a "show us your papers" society. Very soon we'll have to show our federal identification card at every airport and federal building we want to enter. The ACLU wonders what other entities will want to see the identification card and require us to show it. What will prevent credit card companies or other commercial vendors from requiring us to show them our identification card? And as pointed out by Rose, what will the stores, credit card companies and others do with our personal information once they have it?

The very real concern of identity theft looms over all these questions. The Federal Trade Commission reported that there were 9 million victims of identity theft last year. A single national database, as proposed by Real ID, is problematic. It seems only logical that a single database will be less secure with more information in it and more people and groups with access to it.

Markey, a senior member of the Homeland Security Committee and co-chairman of the Bi-Partisan Congressional Privacy Caucus, voted against the Real ID Act. Markey, sponsor of the Privacy Act, as well as other laws aimed at strengthening individual privacy protections, considers the Read ID Act a step backward in the fight for the protection of privacy.

Markey has voiced his concern that the rise in identification theft could have grave security consequences. He believes that terrorists are attempting to hack into databases to capture personal information about U.S. citizens, government personnel and private financial information, and that little is being done to thwart access to such information.

"Are the current privacy laws enough to protect your personal information? Is data encryption enough? Probably not. At best, they are tools, but they are not the only mechanisms to secure private information," said Markey.

Rose raised another concern: if the data collected from each state's RMV is shared from state to state and with the federal government, then untold amounts of people will have access to our personal information. Not only could the information be stolen by terrorists or computer hackers, the information could be mishandled by disgruntled employees, employees wanting to use the information against others, to steal identities themselves or for a host of other untoward purposes.

Costs

The second major concern of the Act is how it will be funded.

Earlier this year, Congressional Budget Office officials recommended federal appropriations of $100 million in five years for nationwide implementation of the Real ID Act. However, the National Conference of State Legislatures, a bipartisan group, estimates the implementation of the Real ID Act could cost states $13 billion as they try to restructure motor vehicle offices.

According to a recent economic analysis, the Act will cost Massachusetts somewhere in the $200 million dollar range. Amie O'Hearn, of the Massachusetts Registry of Motor Vehicles, has said "our state already has the most secure drivers license system in the country and therefore it won't cost as much to get the program off the ground. While not absolute, the registry does not anticipate any significant additional costs to the state or to license holders."

It appears, however, that there will be some additional costs. The Act requires states to have the technology to capture digital images of identity source documents so that the images can be retained in electronic storage in a transferable format. At a minimum, it must also be able to capture mandatory facial images, confirm social security numbers with the Social Security Administration and have the ability to determine if a license has been issued by another state. There must also be security clearances granted and training programs for RMV employees, particularly in the area of fraudulent document recognition. The restructuring involved will cost the state money.

The Real ID Act also contains language that requires RMV employees to identify illegal immigrants and to make the decision not to issue driver's licenses to them, regardless of any state policies to the contrary. Notwithstanding what some civil liberties experts call an anti-immigration provision, this particular provision will require, if not training for RMV employees in immigration law, at least the hiring of federal immigration law specialists to oversee the requirements handling. The enforcement of the federal immigration policy will cost the state money as well.

Massachusetts will be entitled to federal grant money for participating in the identification program, but proportionately speaking, there is no guarantee the grant will cover all its costs. "If there is a shortfall, where in the budget will the money come from to pay for the Act?" asked Rose. "Unless the state takes action to find funding now, we must be prepared to divert our economic resources to make ourselves ‘free and safe' as required by the Act."

Thwarting terrorist abuse of asylum

Finally, among other provisions, the Act gives discretion to immigration judges to determine witness credibility in asylum cases and purportedly keeps terrorists out of the United States by ensuring all terrorism-related grounds of inadmissibility are grounds for deportation.

Attorney Halim Morris, formerly of Greater Boston Legal Services and now engaged in private practice primarily in the area of immigration/asylum law, believes that while some people may benefit from other provisions of the Act, "for my clients, no. The Act is not favorable to those who are seeking asylum. It does terrible things to refugees and asylum seekers.

"Before May 12, 2005, testimony alone was evidence for individuals seeking asylum. A client could get in front of the judge and testify and that was it. The Real ID Act mandates documentation, and that's something asylum seekers just cannot get," said Morris.

Similarly, the Act broadens the reasons for denying asylum, most particularly including when the person seeking asylum has lied in the past for any reason. Before implementation of the Act, asylum could be denied only if the individual lied about something in conjunction with the asylum request. Now, according to Morris, evidence the individual has lied about anything is enough to deny the asylum request.

The Act also contains a provision that allows officials to require people seeking asylum to get supporting evidence from the very governments they are fleeing. Several ACLU immigration attorneys agreed "it's impossible."

"It's inhumane, absurd and unthinkable. It's a violation of fundamental human rights and common decency," said Rose. "The changes go against the very spirit of America. We no longer want anyone to ‘bring us your tired, your hungry and your tortured,' unless of course they bring their documents with them as well," said Rose.

©2014 Massachusetts Bar Association