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Obama and Congress: maybe REAL ID needs changes

Last week according to Stateline, the Obama administration and Congress proposed legislation that will significantly change the REAL ID Act. The PASS ID Act (Providing for Additional Security in States’ Identification Act) hopes to the allay opposition’s privacy concerns highlighted by the personal data collected and RFID incorporation, and the charges of states’ rights infringement.

The PASS ID Act currently circulating in Washington would give states even more time (4 additional years) than the 2008 DHS extensions until 2017, additional flexibility in the design and implementation and, most importantly, money to meet federal REAL ID requirements.  PASS ID would allow continued use of current driver’s licenses for commercial airline travel and for federal building entrance for the foreseeable future.  Under the REAL ID Act, states not meeting a list of license upgrades would have to bring their US passport after January 2010 to catch a plane or head into a federal building.

The Homeland Security Secretary, Janet Napolitano said last Wednesday, “We’ve been, over the last weeks, meeting with governors of both parties to look at a way to repeal Real ID and substitute something else that…accomplishes some of the same goals. And we hope to announce something on that soon.”  Napolitano was the previous governor of Arizona, and signed a bill prohibiting the state’s compliance with REAL ID.  A total of 18 states since 2005 have passed anti-REAL ID legislation, calling the act an unfunded mandate violating state’s rights.  Of the 18 states that passed non-binding resolutions or prohibiting statues, 12 cited privacy as rationale for the disaccord. 

A former 9/11 Commission counsel and National Security Policy Director at the Center for Immigration Studies produced a scathing analysis of the Pass ID proposal, saying it is “a complete gutting of REAL ID,” and “leaves the 9/11 Commission secure ID recommendations in the dust, setting minimum standards that the 9/11 hijackers could easily have bypassed”.  The Director of Information Policy Studies at the libertarian Cato Institute, thinks PASS ID will not go far enough to eliminate all state concerns.  “The structure of it is obviously Real ID, with some of the sharpest corners taken off.”

Will the new legislation alleviate the most significant privacy violations?  Montana will likely have a say, already passing a refusal to comply law due, among other reasons, to the REAL ID Act’s violating the “right to privacy, as secured by Article II, section 10, of the Montana Constitution, of thousands of residents of Montana”.  Other states, including Michigan and Pennsylvania have followed suit without further concessions or privacy guarantees from DHS.   This is a direct confrontation over state’s rights, with privacy considerations anchored front and center.

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