Unit 4 Project: The REAL ID Act of 2005

Irik Ravenblade

CM226-03: College Composition II for IT Majors

Kaplan University

I. INTRODUCTION The 9/11 terrorist attack changed the psyche of America. In response to the tragedy, portions of the nation's government were reorganized and many laws were altered or enacted. One such law was the REAL ID Act of 2005. Supporters of the law believe it will strengthen our nation's borders and protect us from foreign and domestic threats. Aimed at reducing fraud and improving the reliability of identification, the Act is commonly believed to be a practical and necessary step to fight terrorism and prevent illegal immigration. However, its implementation would require us to do away with many of our integral constitutional protections and rights. This well-intentioned law will cause more problems than it solves, and should be repealed.

II. THE REAL ID ACT OF 2005: BACKGROUND The REAL ID Act of 2005, enacted by Congress on May 11, 2005, altered federal law regarding authentication, immigration, and issuance of licenses and ID cards. Among the policies changed were visa limits, funding for border security projects, laws regarding asylum and deportation, the waiving of laws interfering with the construction of barriers on the nation's borders, and the establishing of new standards for state-issued licenses and identification cards. In debate is the manner in which the REAL ID Act creates a de facto national ID; the system with which it will be applied; the impact on the constitutional rights of American citizens; and the method by which the Act was passed through Congress. The REAL ID Act received very little oversight or scrutiny necessary for a measure of its nature because it was attached to the bill H.R. 1268: Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief; both were passed because H.R. 1268 was widely viewed as a "must pass" bill. Adding to the controversy, conferences were held privately, preventing a bipartisan participation in the REAL ID Act's negotiations (AILA, 2005).

III. DE FACTO NATIONAL ID The Department of Homeland Security claims that REAL ID is neither compulsory nor a national ID system because the state governments continue to be responsible for issuing cards and maintaining a database; the REAL ID Act merely sets forth national standards. According to the REAL ID Final Rule, states can continue to issue non-compliant cards, but after 2011 a federal agency may not accept a driver's license or ID card issued by any state unless it meets the REAL ID specification. States are required to be fully compliant by May 11, 2013. Furthermore, citizens who were born after December 1, 1964, are required to obtain a REAL ID by December 1, 2014; those born on or before December 1, 1964, are given until December 1, 2017 (Department of Homeland Security [DHS], 2009). This is contrary to statements by the Department of Homeland Security that the REAL ID system is non-compulsory, effectively forcing the implementation of a national ID through the REAL ID Act. Because the REAL ID Act repeals the cooperative state-federal process of negotiation to establish standards, leaving it solely in the hands of the Department of Homeland Security, any REAL ID compliant license or ID card would be considered a de facto national ID.

IV. REAL ID AND THE CONSTITUTION: VIOLATION OF CIVIL RIGHTS American driver's licenses have always been issued by the states. By removing state influence from the negotiations, the REAL ID Act violates the Tenth Amendment rights of the states to govern alongside the federal government. Under the REAL ID Act, no person without a REAL ID compliant card may enter a federal building, including the United States Capitol; this denies citizens without REAL ID compliant cards their First Amendment right to assemble and petition the government. The inclusion of some biometric indicators may be deemed a violation of the Fourth Amendment, which guarantees the privacy of a person and possessions, and protects against unreasonable search and seizures. The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," which is regarded by the courts as prohibiting any expansion of governmental power upon the rights enumerated in the Constitution. The Ninth Amendment and the liberty clause of the Fourteenth Amendment further call into question the constitutionality of the REAL ID Act.

V. COSTS Nineteen states have passed resolutions prohibiting the REAL ID system because of its constitutional violations and the fiscal burden of implementing its system. Although significantly lower than the draft estimate of $23.1 billion, within the final regulations the estimated cost is $9.9 billion. However, the Department of Homeland Security has only allocated $360 million for the states to implement the REAL ID system (EPIC, 2008). This would leave the lion's share of the burden for the states to fund during a time of economic upheaval; the cost of implementing the REAL ID system is prohibitive under the present budget.

VI. NATIONAL BIOMETRIC IDENTIFICATION SYTEM A key component of the REAL ID Act is the use of biometric indicators, or measurable biological characteristics for identification. Such data planned for REAL ID implementation may be facial scans, digitized fingerprints, and iris scans (Muir, 2005). Although these indicators are innocuous enough, there is nothing in the REAL ID Act preventing the use of DNA information for identification. Under the REAL ID Act, this and other personal information would be incorporated into a central database, which would make it a potential target for attack by foreign or criminal elements. The REAL ID system would be counterproductive to privacy and security, making the country’s identity theft problem worse. When a card is compromised in a centralized identification system, substantial harm can be caused (EPIC, 2008). Under the REAL ID Final Rule, data stored on the REAL ID cards will be unencrypted, in order to reduce expenses (DHS, 2009). This policy creates yet another security risk to personal information. Another issue to consider is that definitive information doesn't preclude errors in the system. For example, Rene Ramon Sanchez was misidentified as a drug dealer named Leo Rosario when police accidently placed Sanchez' fingerprints onto a card bearing Rosario's personal details. This card was entered into the criminal justice system; it wasn't until Sanchez had been arrested numerous times and spent months in jail that the error was finally corrected (Lyon, 2008). Another such example is the Homeland Security's implementation of Social Security Online Verification (SSOLV), which uses the Social Security Administration's Numerical Identification File (NUMIDENT) system. It was estimated by the Inspector General of the Social Security Administration that about 17.8 million records in NUMIDENT are incorrect, with about 13 million of these faulty records belonging to American citizens (EPIC, 2008). The core weakness in implementing the system proposed by Homeland Security is the enrollment process. All citizens would be entered into the system using the already existing birth and Social Security records systems through the use of the Electronic Verification of Vital Events system (EVVE), for birth certificate verification, and NUMIDENT for Social Security Number verification. Both records can be falsified, as proven in the recent case of Doitchin Krasev, a former regional manager for the Oregon Liquor Control Commission, who spent 28 years under the assumed identity of Jason Robert Evers ("Mystery man who stole dead boy's identity identified", 2010).

VII. CONCLUSION Summarizing the troubles caused by the REAL ID Act of 2005 is a quote by Sen. Patrick Leahy, "The Bush administration's Real ID program will not only lead to long lines at every DMV across the country, it will impose a massive unfunded mandate on state governments while offering absolutely no federal privacy protections to our citizens" (as cited in Esguerra, 2008). Rather than implement a costly, ineffective system that dismantles key constitutional liberties and rights of American citizens, it would be better to improve the identification system currently in place. The disadvantages of implementing the Real ID Act would far outweigh any perceived benefits and would undermine the liberty our nation was founded on. How many rights are the people willing to sacrifice for the illusion of feeling safe?

References
109th Congress (2005 - 2006) H.R. 418 REAL ID Act of 2005. (2005). Retrieved July 03, 2010 from The Library of Congress - Thomas database.
AILA Statement on REAL ID. (2005). Retrieved July 10, 2010 from visalaw.com - The Immigration Law Portal: http://www.visalaw.com/05may1/7may105.html
Department of Homeland Security. (2009). REAL ID Final Rule. Retrieved July 05, 2010 from http://www.dhs.gov/files/laws/gc_1172765386179.shtm
EPIC. (2008). REAL ID Implementation Review: Few Benefits, Staggering Costs. Retrieved July 01, 2010 from Electronic Privacy Information Center: http://epic.org/privacy/id-cards/epic_realid_0508.pdf
Esguerra, R. (2008). DHS Issues REAL ID Standards; Congressional Leaders Respond. Retrieved July 10, 2010 from Electronic Frontier Foundation: http://www.eff.org/deeplinks/2008/01/dhs-issues-real-id-standards-congressional-leaders-respond
Lyon, D. (2008). Biometrics, Identification and Surveillance. Bioethics, 22(9). Retrieved July 01, 2010, from Academic Search Premier database.
Muir, H. (2005). ID CARDS ON THE WAY. (Cover story). New Scientist, 187(2516), 29. Retrieved July 02, 2010, from Academic Search Premier database.
Mystery man who stole dead boy's identity identified. (2010). Retrieved January 17, 2010 from Associated Press & KGW, KTVB.com: http://www.ktvb.com/news/crime/man-accused-of-stealing-boys-identity-no-longer-known-as-john-doe-95108899.html