Homeland Security offers details on Real ID

States have until 2013 to federalize licenses; rules don't require encryption on new IDs to protect drivers' privacy.
Written by Declan McCullagh, Contributor
Hundreds of millions of Americans will have until 2013 to be outfitted with new digital ID cards, the Bush administration said on Thursday in a long-awaited announcement that reveals details of how the new identification plan will work.

The announcement by the U.S. Department of Homeland Security offers a five-year extension to the deadline for states to issue the ID cards, and proposes creating the equivalent of a national database that would include details on all 240 million licensed drivers.

According to the draft regulations (PDF), which were required by Congress in the 2005 Real ID Act and are unlikely to assuage privacy and cost concerns raised by state legislatures:

• The Real ID cards must include all drivers' home addresses and other personal information printed on the front and in a two-dimensional barcode on the back. The barcode will not be encrypted because of "operational complexity," which means that businesses like bars and banks that require ID would be capable of scanning and recording customers' home addresses.

• A radio frequency identification (RFID) tag is under consideration. Homeland Security is asking for input on how the licenses could incorporate "RFID-enabled vicinity chip technology, in addition to" the two-dimensional barcode requirement.

• States must submit a plan of how they'll comply with the Real ID Act by October 7, 2007. If they don't, their residents will not be able to use IDs to board planes or enter federal buildings starting on May 11, 2008.

• Homeland Security is considering standardizing a "unique design or color for Real ID licenses," which would effectively create a uniform national ID card.

Thursday's draft regulations arrive amid a groundswell of opposition to the Real ID Act from privacy groups, libertarians and state officials. On Wednesday, the National Governors Association endorsed a bill by Sen. Susan Collins, a Maine Republican, that would reduce Homeland Security's power to order states to comply with the law.

The draft rules, which are not final and will be subject to a public comment period, also include a more detailed estimate of how much it will cost to comply. The National Conference of State Legislatures and other state groups estimated last year that states will have to spend more than $11 billion. But Homeland Security says the total cost--including the cost to individuals--will be $23.1 billion over a 10-year period.

Another section of the 162-page regulations says that states have until December 31, 2009, to certify that they're on the path toward fully complying with the Real ID Act.

Push for repeal continues
Opponents of the Real ID Act, who have been advising states to publicly oppose the system, said that the draft rules are insufficiently privacy-protective and reiterated their call for a repeal of the entire law.

"We still need dramatic legislative action from Congress," said Tim Sparapani, legislative counsel for the ACLU, which runs the RealNightmare.org site. "We've got to wipe out the underlying act."

Sparapani and his allies of more than 50 groups, including the National Organization for Women and United Automobile Workers, sent a letter (PDF) on Monday endorsing a bill to repeal the Real ID Act. The letter says it was a "poorly-conceived law that can never be made to work in any fair or reasonable manner."

The ACLU believes Collins' bill is only a half-hearted step that doesn't go as far as it should. 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. On Wednesday, Sen. John Sununu, a New Hampshire Republican, and Daniel Akaka, a Hawaii Democrat, reintroduced a broader bill to repeal portions of the existing law.

Some state governments, such as Maine, already have come out against the Real ID Act--a move that effectively dares the federal government to continue even when some states refuse to participate. At least eight states (including Arizona, Georgia, and Vermont) have had anti-Real ID bills approved by one or both chambers of the legislature.

For their part, 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.

The Bush administration and many congressional Republicans have defended the Real ID Act as a way to stop future terrorist attacks and deter illegal immigrants.

"Raising the security standards on driver's licenses establishes another layer of protection to prevent terrorists from obtaining and using fake documents to plan or carry out an attack," Homeland Security Secretary Michael Chertoff said in a statement. "These standards correct glaring vulnerabilities exploited by some of the 9/11 hijackers who used fraudulently obtained drivers licenses to board the airplanes in their attack against America."

A 23-page report released this week by Janice Kephart, a former lawyer with the 9/11 Commission, defended the Real ID Act by calling it a "significant step in enhancing our national and economic security and our public safety." Kephart is now president of 9/11 Security Solutions.

States bowing out of Real ID requirements is "not the way to secure America," the report says. "Embedding identity security into state-issued (ID card) systems will take significant planning to fulfill the requirements of Real ID and significant financial resources for the 'brick and mortar' start-up costs. Congress must step up to the plate and make securing of identity documents the national priority that our citizens deserve."

The Real ID Act passed Congress as part of an $82 billion military spending bill that also included funds for tsunami relief. No up-or-down vote on solely the Real ID Act took place in the entire Congress, though the House of Representatives did approve the rules by a 261-161 vote.

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