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Monday, May 09, 2005

Why the Real ID Act is a Really Bad Idea.

Quietly, almost by stealth, Congress is slipping through the Real ID Act by attaching it to a military funding bill.  The bill standardizes drivers' licenses, beginning in three years, so that millions of people in numerous states will have to get a new license.  It will embed personal information into a machine-readable format.  Security expert Bruce Schneier has a powerful argument that the measure will not only fail to improve security but will also create new security risks.  And Declan McCullagh has a good FAQ about it. 

I will not repeat the criticisms about the Act here, which are well-stated in the links above.  Regardless of what one thinks about the merits of the Real ID Act, the way that this is being legislated is despicable (to put it mildly).  National identification has long been a very controversial issue.  It is entirely inappropriate to resolve an issue such as this without debate or without hearings.

Posted by Daniel Solove on May 9, 2005 at 08:01 PM in Daniel Solove, Information and Technology | Permalink

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Quick note: I disagree with the act, but I urge everyone to take anything written by Declan McCullagh with a very large grain of salt. He's ethically dubious at best, prints extremely (libertarian) slanted stories. For example, here's where he all but admits manufacturing the Al Gore/internet story. (And here's the original smear, which shows that the mere fact that he didn't use the word "invented" doesn't save the obvious false implication in the story. ("Gore took credit for the internet.")

Posted by: Paul Gowder | May 9, 2005 9:20:02 PM

At least some versions of the "REAL ID" act also have terrible implications for refugee/asylum law, imposing unreasonable burdens of evidence on people fleeing for their lives, among other things. Some of the worst parts were removed, but much remains. It's a bad bill in many ways, and it will likely lead to at least some legitimate asylum seekers being killed when they are wrongfully returned to persecutors in their home countries.

Posted by: Matt | May 10, 2005 12:16:07 AM

State driver's licenses already essentially serve as national IDs. There are countless privileges that require the presentation of an ID to access (opening a bank account, renting a car, getting on an air plane, entering federal buildings, ect....). It would be wildly complex to get a couple of hundred million people to go set up a national ID system, but shouldn't there be mechanisms in place to make sure that people are who they say they are? If this isn't a reasonable answer, what is? The status quo?

Setting minimum federal standards, while still leaving the states in charge of issuing the driver's licenses seems practical and reasonable.

The left seems to be against any ideal that comes out of the Capital Building or the White House these days. Is there anything that you are for?

Posted by: MJ | May 10, 2005 9:38:09 AM

MJ: I don't really see any reason to set up mechanisms to make sure people are who they say they are, no. We have less indirect, better methods of preserving security.

For example, federal buildings. When I walk into a federal courthouse, I show ID. There's no "leftist lawyer watch list" to keep eeeeevvvviilll subversive people like me out, there isn't even enough time for the security guards to do more than glance at the id. At the same time, they run me through a metal detector, run any bag I have through an x-ray, etc.

So what does the ID add to the security of the process? Nothing.

I have my suspicions about airport ID. Given the insane way the "no-fly list" is being run (Teddy Kennedy being put on the list was bad enough, but it was an absolute TRIP when Helen Chenoweth stormed out of the airport after "extra screening" Man...), as well as the extensive searches, I see no reason ID improves security there.

Rental cars? That's purely a private measure: the rental car companies want to know who they're entrusting with their property. The government doesn't need to help them do that, they're doing just fine with the ID we have right now.

Banks, I can see some need for ID. After all, the banks have to report interest income to the IRS and comply with any number of anti money-laundering FINCEN sort of things. However, I'd submit that anyone sophisticated to engage in serious money laundering or tax evasion isn't going to be hindered from using numerous other means to do so.

Posted by: Paul Gowder | May 10, 2005 9:53:55 AM

One interesting fact -- you don't need identification to walk into Senate or House buildings. One would think that if identification is so important to security, people who come and go into the buildings of Congress should show ID. It is hard to imagine that this was simply overlooked. My guess is that people aren't identified so that lobbyists can quietly come and go without creating records. It seems as though folks in Congress don't seem to really think much of the relationship between identification and security, as they trust their own lives to a system without identification.

Posted by: Daniel Solove | May 10, 2005 10:15:31 AM

Paul,

Making sure that people are who they say they are by establishing a baseline of required information before they get access to an identification card serves a broader national security purpose by making it easier to enforce existing laws.

If you are required to provide (not 100% full-proof I recognize) information that identifies you prior to receiving an ID, it makes it that much easier for existing laws (warrants for arrest, no-fly lists, immigration violations) to be enforced. It creates greater opportunity for those laws to be enforced if identification cards actually identify the correct person.

Yes, people will still get fake IDs. But you can't tell me that the fact that that you may have to present an ID that actually identifies you will not 1) be a deterrent to persons who are wanted from entering or transacting with institutions that require the presentation of IDs 2) that it won't make it easier to track the whereabouts of people already wanted for violations of our laws 3) that people who come into contact with law enforcement will be more easily identified if all of the driver's licenses in the U.S. were properly issued and the system is more interconnected.

I fail to see the downside, unless you happen to not particularly interested in seeing the existing laws enforced in the first place. This legislation will surely make it easier to identify and catch people that have already broken our laws.

Posted by: MJ | May 10, 2005 11:12:02 AM

I fail to see the downside, unless you happen to not particularly interested in seeing the existing laws enforced in the first place.

The same argument could be laid against the Fourth Amendment in general.

As a society, we should value some baseline level of trust that permits people to go about their daily lives without having to justify their presence to authority on a regular basis. That's called "freedom." It's the same reason the police need a "reasonable suspicion" before stopping and questioning you on the street in a Terry stop.

So the downside is the loss of fundamental liberty inherent in being required to account for your activities to authority. Unless someone can show a large security upside, it's not worth it.

This also raises questions about perfect enforcement. IDs, especially with RFID chips, would tend to permit much greater tracking and step much closer to perfect enforcement of the law. But... is that a good thing? (Larry Lessig talks about this in places.) Don't we all break minor laws on occasion? Is that really a problem? Do we want to be tracked and watched and punished for those minor harmless transgressions?

Oh, and MJ, do you really want the no-fly list enforced? Helen Chenoweth might disagree.

Posted by: Paul Gowder | May 10, 2005 11:43:35 AM

I really think that is a straw man argument. This bill does not require IDs to be displayed at anyplace that they are already not required to be displayed. It simply increases the accuracy of the object being displayed.

So the "loss of fundamental liberty inherent in being required to account for your activities to authority" has already ocurred, and yet the Republic is still standing.

Do I want the no-fly list enforced? Yes, even if it occasionally leads to absurd results, I believe that it deters and helps detect people who might do us harm. You think that it shouldn't be enforced and we should go back to pre-9/11 standards? See if you can get a majority of your fellow citizens to agree with you.

I'm not asking for a treatise on this subject, but other than criticisms of all current security measures does anyone have better ideas?

Posted by: MJ | May 10, 2005 12:58:06 PM

This bill does not require IDs to be displayed at anyplace that they are already not required to be displayed. It simply increases the accuracy of the object being displayed.

As things become more standardized and useful, their use increases.

Posted by: Paul Gowder | May 10, 2005 1:23:50 PM

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