ACLU Slams Draft DHS Regulations on Real ID, Says Delay Fails to Address Privacy and Civil Liberties Concerns

ACLU Slams Draft DHS Regulations on Real ID, Says Delay Fails to Address Privacy and Civil Liberties Concerns (3/1/2007)

WASHINGTON - The American Civil Liberties Union today slammed draft regulations for the implementation of the Real ID Act released by the Department of Homeland Security, calling them a "real nightmare" for America that will only lead to a national identity card system that violates personal privacy, bigger bureaucratic messes, longer lines, increased identity theft and higher fees.

"Real ID is a really bad idea - and these regulations have only made it worse," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "It should now be clear to everyone that Congress needs to fix this disaster-in-the-making. Raising the bulkheads on the Titanic only delayed the inevitable. Delaying implementation of Real ID does the same. Instead of dealing with the problems itself, this administration is leaving the mess of Real ID to the next administration"

The Real ID Act, a national ID card system that would federalize and standardize state driver’s licenses, was forced through Congress in 2005 as part of a must-pass military appropriations bill. It will require every person in the country to have a Real ID-compliant identification document in order to fly on commercial airlines, enter government buildings, open a bank account, and more.

Specifically, the ACLU’s concerns with the DHS regulations include the following:

The DHS proposal to delay implementation fails to address the fundamental problems with the Act. Real ID remains a misguided policy that will waste money and create significant problems, without improving security.

Real ID will cost even more than anticipated. DHS concedes that the cost to the states will range from $10.7 billion to $14.6 billion, and adds that individuals will have to cover an additional $7.8 billion in costs, raising the price tag for Real ID to a whopping $23 billion.

Real ID is a federal takeover of the state DMVs. The regulations dictate details of DMV operations in a range of areas. Everything from the color of the card background to the fonts used on the card’s face must conform to the federal standard, requiring states to overhaul their systems completely.

The regulations are built on ‘vaporware’ databases. Sharing all the information in state databases with all other states is one of the most difficult challenges of Real ID. DHS abdicates responsibility and leaves it to the states to figure it out. Many of the major verification systems envisioned by DHS, including verifying passports and foreign documents, don’t exist. The birth certificate verification database is still in its infancy.

DHS punts on privacy. On the danger of license data being scanned and sold by third parties, which will contribute to massive identity theft, the regulations state, "DHS believes that it would be outside its authority to address this issue within this rulemaking," and encourages the states to come up with a solution.

The DHS verification requirements are even more onerous than the act requires. In many cases, DHS did not ease burdens on states and individuals, but in fact increased them. Verification of all identity documents will be required not just to obtain a Real ID, but also for renewal. Proof of address must be shown with not just one document, but two. Birth certificates must be verified with state vital records offices, and the regulations provide flexibility only for extraordinary circumstances.

The exemptions leave a security hole that terrorists could drive a truck through. Because many Americans will not have source documents, DHS has acknowledged it needs an exemption allowing individuals to bypass many of the states’ verification and document requirements. Unfortunately, this will also allow identity thieves and terrorists to exploit loopholes in the system, and obtain Real IDs. This simply demonstrates the fundamental security flaws that underlie Real ID.

"Simply put, DHS’s draft regulations for the Real ID Act get a failing grade," said Barry Steinhardt, Director of the ACLU’s Technology and Liberty Project. "As our Real ID Scorecard shows, these draft regulations fail to address the concerns that have been raised about Real ID’s impact on the states and Constitutional rights." Steinhardt said that the ACLU would shortly be releasing a scorecard that would systematically measure the extent to which the regulations solve the problems with Real ID that have been identified.

A growing nationwide rebellion against Real ID is currently underway within the states. In January, the Maine legislature passed a resolution rejecting participation in the ID scheme, and similar legislation has been passed by one chamber in the legislatures of Arizona, Georgia, Idaho, Montana, New Mexico, Utah, Vermont and Wyoming. Bills rejecting Real ID have also been introduced in Arizona, Hawaii, Illinois, Kentucky, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, Oklahoma, Rhode Island, South Carolina, Washington and West Virginia, with more expected in the coming weeks.

In Congress, Senators Daniel Akaka (D-HI), John Sununu (R-NH) and Representative Tom Allen (D-ME) have introduced legislation to add important privacy and civil liberties safeguards to the Real ID Act. Their similar bills would eliminate most of the requirements that laid the foundation for a National ID card. Their bills also call for more flexible "standards" instead of the current uniform mandates. The bills would prohibit the use of license data by third parties, require data encryption and preserve any state privacy laws that may provide greater protections.

"The Real ID Act is the marriage from hell --these regulations marry the efficiency of those who ran the Katrina recovery with the people who brought you long lines at the DMV - they will make getting a driver’s license a real ordeal," said Timothy D. Sparapani, an ACLU Legislative Counsel "Real ID creates huge burdens for Americans, places a massive unfunded mandate on state governments and fails to provide real security. We urge lawmakers instead to pursue proposals like the Akaka-Sununu bill and the Allen bill to restore privacy protections."

CLICK HERE to read the draft of the DHS Real ID Regulations

CLICK HERE to hear a MP3 Recording of a Teleconference on the Regulations

CLICK HERE to read the ACLU's Real ID Scorecard.

CLICK HERE for more on the ACLU's concerns with the Real ID Act.