DHS Confirms Real ID Act Regulations Coming; States Rebel
By Renee Boucher Ferguson
February 28, 2007

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Events at the state and federal level are converging around the Real ID Act, as a spokesperson from the Department of Homeland Security confirmed Feb. 28 that regulations outlining technology mandates could be handed down as early as March 1.

At the same time, as many as 38 states, under a coalition formed by Missouri Representative Jim Guest, have confirmed that they will rebel against the act through legislation in their own states.


Congressman Tom Davis, a Republican from Virginia, requested Feb. 27 that the Committee on Oversight and Government Reform hold a hearing to further discuss the Real ID Act, which mandates that all states overhaul their driver's license procedures by 2008 to include machine-readable technology and a database that holds citizen data, to be connected to other state databases and to a federal database.

"On the one hand [Congressman Davis] thinks it vitally important that we remain steadfast in our support for more secure IDs. On the other hand, we can't simply ignore the rising tide of discontent at the state level," said David Marin, Republican staff director of the Committee on Oversight and Government Reform, in Washington.

Marin said there are some fundamental questions that need to be answered at a hearing: Why has it taken so long for the regulations to come from DHS, which passed the Act in 2005? Does the statute, as enacted, provide DHS enough flexibility to grant states more time to comply with the mandate? And, more importantly, are the questions at the state level really about time and money, or, "Is there something else at play here?" Marin said.

According to Rep. Guest, there is indeed something else involved: the revocation of basic, fundamental rights granted citizens by the U.S. Constitution.

eWEEK.com Special Report: Privacy

"We're supposed to be a government of, by and for the people. Government's role is to protect citizens' freedom. In this case, they're not doing that," said Rep. Guest. "[The Real ID Act] is a direct frontal assault on the freedom of citizens when [the federal government] wants us to carry a national ID."

Guest has two primary concerns about the new driver's license standards—the privacy and security threats inherent in the readable technology and the associated databases, and the fact that there is no judicial or congressional oversight for the DHS mandate.

"My concern is that even if they water [the Real ID Act] down a bit, DHS will try and accomplish what they want to with some other legislation," Guest said. "Homeland Security has total control; there is no judicial or legislative control over this. Once they issue [the Act] there is no way of stopping them."

Click here to read why some analysts say that the Real ID Act could help identity thieves.

Because the regulations haven't been handed down yet, it's unclear exactly what technology DHS will mandate. The front-runner is RFID (radio-frequency identification) with a biometric supplement. The states, which already maintain databases of driver's license information, must share that information with other states, the federal government, and countries that participate in the DLA (Driver License Agreement), a compact that would require states to give reciprocity to those provinces and territories in Canada and those states in Mexico that join the DLA and comply with its provisions. While it's not specifically stated, other countries could join the DLA, which would mandate reciprocity of information on potentially a global scale.

"With readable technology, it will allow the government to read and track every time you go some place or buy something. The [government] will be able to download and keep track of your information," Rep. Guest said. "With the databases, states are required to keep track of you and all the supporting data that comes into it for 10 years, and share that information with other states. Which means any motor vehicle [department] could [have] access to anybody's personal data. Instead of making us safer from terrorists, it makes us more vulnerable."

eWEEK.com Special Report: Politics Meets IT

Guest has written two separate bills for his state. The first would require Missouri to opt out of the Real ID provision and directs the Department of Motor Vehicles not to participate in the Act; the second would bar Missouri from participating in any national database.

"We have very good bipartisan support on this," Guest said. "If we don't stop it, it's an invasion of our private lives."

When he started promoting his state's rebellion against the Real ID Act, Guest realized Missouri citizens would be unduly penalized. DHS has said that after May 11, 2008, "A Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the Real ID Act, according to the rule's documentation. That means anyone carrying a non-compliant license will not be able to board a plane, enter a federal building or open a bank account.

Did the DHS say it planned to abandon RFID technology? Click here to read more.

So Guest started calling around to other states. Of the 38 states that have agreed to file legislation opposing the Real ID Act, resolutions by Montana and New Jersey have passed through the House and Maine's has passed through both the House and Senate. Maine's legislation would scrap the Real ID Act and replace it with a negotiated rulemaking process that would include state licensing experts, federal officials, and civil liberties and privacy advocates, according to the ACLU, which support's the states actions opposing the Act. Additionally, eight or 10 states have measures that have passed through one branch of legislation, according to Guest.

The ultimate goal of the unofficial consortium against the Real ID Act is for the federal government—in this case, DHS—to pass legislation to repeal the Act. Short of that, Guest is ready to take some drastic measures. He points out that the U.S. Constitution allows for someone to call an Assembly of States whereby one member from each state can vote, with the authority to bypass Congress and repeal federal legislation. "It's been done one or two times since the 1700s," Guest said. "But the seriousness of this justifies the means. If we don't [fight the Real ID Act] we'll lose all the individual freedoms we've enjoyed."

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