The Wrong Way to Fix REAL ID
In the two years since the REAL ID Act of 2005 was passed, there has been an upwelling of controversy and opposition to the Act among state officials; privacy, civil liberties and immigration advocates; and the general public. Members of Congress have been feeling pressure from their home states and individual constituents to do something about REAL ID. Senator Susan Collins (R-Maine) responded this morning by introducing an amendment (S. 563) to the 9/11 recommendations bill (S. 4) that would create a review committee and also extend the deadline for state implementation to two years after the Department of Homeland Security finalizes its proposed regulations (expected out tomorrow). While Senator Collins' amendment requires the review committee to provide Congress with suggested changes to the REAL ID Act itself, the bulk of the bill focuses on review of and changes to DHS's proposed regulations. In fact, the amendment states that the committee must provide Congress with "a list of recommended amendments to the REAL ID Act of 2005 that would address any concerns that could not be resolved by regulation." CDT believes that this approach is backward: the REAL ID Act itself poses so many privacy and civil liberties concerns that the statutory language should first be changed before any implementing regulations are considered. CDT commends Senator Collins for wanting the DHS regulations to "include procedures and requirements to protect the Federal and State constitutional rights, civil liberties, and privacy rights of individuals." However, this shifts responsibility for resolving the REAL ID controversy from Congress to a federal agency. The REAL ID Act itself is inherently flawed: for example, it mandates the creation of a nationwide electronic network for the sharing of personal information, and the retention of copies of highly sensitive documents (such as birth certificates, social security cards, passports, and utility bills); and it does not address the use of the new cards or the collection of personal information. The REAL ID Act also contains no mention of "privacy" anywhere in the statute. It is inappropriate to expect administrative regulations to make up for these statutory deficiencies. What's more, REAL ID is too controversial to be "fixed" by tacking an amendment onto a larger bill with little debate and no hearings (thus far). This is how the REAL ID Act was passed in the first place. The Act -- which calls for the creation of a de facto national ID card -- was pushed through Congress as an amendment to a must-pass funding bill for the war on terror and tsunami relief. It received no debate in the Senate and no hearings in either chamber. The Act thwarted a promising effort to convene multiple stakeholders -- including privacy and civil liberties advocates -- to create a comprehensive policy approach to address the problem of driver's license and state ID card fraud while also protecting individual rights. CDT supports stand-alone legislation to amend the REAL ID Act, if not repeal it all together and start from scratch. CDT this week signed onto a letter in support of Rep. Tom Allen's (D-Maine) bill (H.R. 1117). CDT would also support a similar bill in the Senate, such as the one Senators Daniel Akaka (D-Hawaii) and John Sununu (R-N.H.) introduced in the 109th Congress (S. 4117). CDT also strongly encourages members of Congress to hold extensive hearings to get at the root of the driver's license/state ID problem and come up with a thoughtful and comprehensive policy that will be effective while also protecting privacy and civil liberties.