Constitutional Law

PASS ID: A Real ID Revival in Disguise

By Mary Bonventre, Technology & Liberty Program

On June 15, Senator Akaka (D-Hawaii) introduced S. 1261, the "Providing for Additional Security in States’ Identification Act of 2009″ or the "PASS ID Act,” which repeals and replaces the Real ID Act of 2005 with new national requirements for driver’s licenses. Sen. Akaka should be commended for his sincere attempt to tackle the constitutional quagmire that is the Real ID Act. Real ID is so inherently flawed that the privacy, constitutional, and security problems it presents simply cannot be fixed.

On its face, PASS ID is a significant improvement from Real ID, but some careful reading of the bill’s language reveals many of the same privacy and constitutional problems. And even though PASS ID claims to be less expensive to implement than Real ID, it’s still bound to be a substantial unfunded federal mandate on states and state taxpayers.

Just like Real ID, your driver’s license will have to be PASS ID-compliant if you plan on using it to board an airplane or enter any federal facility more critical to homeland security than your local post office.

At an April 22 speech before the Anti-Defamation League, Department of Homeland Security (DHS) Secretary Janet Napolitano remarked in relation to Real ID: "The question is: how do you have that relationship [between individuals and their government] in such a fashion that people’s privacy rights are not violated?" That’s the million-dollar question of secure driver’s licenses, but unfortunately, PASS ID is the wrong answer. Sen. Akaka had it right in the 110th Congress when he sponsored S.717, the Identification Security Enhancement Act, which called for a negotiated rulemaking process that brings state and federal officials and nongovernmental organizations to the regulatory table, with an emphasis on civil liberties. Such a process would secure drivers’ personal information, protect privacy, and uphold the states’ ability to determine the rules governing driver’s licenses.

As a Governor, Secretary Napolitano led one of the 23 states that have enacted anti-real ID bills or resolutions. Thirteen states passed binding legislation prohibiting participation in the Real ID program: Alaska, Arizona, Georgia, Idaho, Louisiana, Maine, Minnesota, Montana, New Hampshire, Oklahoma, South Carolina, Virginia and Washington. Several more states are now on the way to opting-out. These diverse states share a strong respect for individual privacy rights and a state’s right to control its internal affairs. They refused to participate in Real ID and expose their citizens to the harms of a national ID card. Unfortunately, they will do little better under the PASS ID Act.

The bottom line: a "Real ID lite" is still a national ID.

Full post as published by Blog of Rights on June 18, 2009 (boomark / email).