Pushing national IDs: Congress tried its best to shackle the nation with a national ID through passage of the Real ID Act. Now several states try to roll back the measure.

The ABC News headline was intended to be alarming. Posted by "Brian Ross & the Investigative Team," the headline proclaimed: "FBI Terror Watch List 'Out of Control.'" According to the report by Justin Rood, the watch list, intended to help authorities keep tabs on a few of the world's worst terrorist threats, had gotten so big as to become nearly useless for actually fighting terrorism. "A spokesman for the interagency National Counterterrorism Center (NCTC), which maintains the government's list of all suspected terrorists with links to international organizations, said they had 465,000 names covering 350,000 individuals," Rood reported. "Many names are different versions of the same identity--'Usama bin Laden' and 'Osama bin Laden' for the al Qaeda chief, for example."

The number cited by the NCTC spokesman turns out to be too small, in fact. The ABC News report noted that a budget request on the Department of Justice website actually refers to a list containing 509,000 names. As Rood points out, this extensive list contains numerous mistakes. "U.S. lawmakers and their spouses have been detained because their names were on the watch list," Rood observed. "Reporters who have reviewed versions of the list found it included the names of former Iraqi dictator Saddam Hussein, at the time he was alive but in custody in Iraq; imprisoned al Qaeda plotter Zacarias Moussaoui; and 14 of the 19 Sept. 11, 2001 hijackers, all of whom perished in the attacks."

The expanding terror watch list is compelling evidence that the federal government can't even manage to keep a relatively small database under control. That's a bad omen for the future. Under legislation signed into law by President Bush in 2005 and now due to be implemented in 2009, the nation will create a federally administered list that is a quantum leap in size larger than the terrorist watch list. Moreover, under this new program it won't be the names of terrorists or suspected terrorists that inhabit the new, gargantuan federal database; it will be the names and personal information of ordinary law-abiding Americans.

The measure in question is the Real ID Act, which creates a de facto national ID for all Americans by requiring states to both issue licenses that conform to federal Department of Homeland Security guidelines and to link state driver's-license databases together in a massive new federally administered database. It's a highly controversial measure that is increasingly running into conflict with the states themselves over its enormous funding costs and its authoritarian overtones.

The Legislative Back Door

There have been many attempts to foist a national ID card onto the American public, even going back as far as the early 1980s, though these have often been viewed in a dim light as a result of religious concerns. The Reagan administration was a case in point. Writing for the Cato Institute in 1997, author Stephen Moore recalled that during Reagan's early years in office, "Then-Attorney General William French Smith argued that a perfectly harmless ID card system would be necessary to reduce illegal immigration. A second cabinet member asked: why not tattoo a number on each American's forearm? According to Martin Anderson, the White House domestic policy adviser at the time, Reagan blurted out 'My god, that's the mark of the beast.' As Anderson wrote, 'that was the end of the national identification card' during the Reagan years."

Opposition to such a scheme by President Reagan was not enough to kill national ID proposals outright, and by 1997, Congress was debating a measure introduced by Florida Republican Bill McCollum that intended to "improve the integrity of the Social Security Card" by turning it into a picture ID.

The issue came up again in a big way following the 9/11 terrorist attacks. Then, Oracle Corp. CEO Larry Ellison sparked outrage among privacy advocates when he offered to supply the database software that would underpin a national ID card to the federal government for free. "The government could phase in digital ID cards to replace existing Social Security cards and driver's licenses," Ellison said at the time in an article for the Wall Street Journal. "These new IDs should be based on a uniform standard such as credit card technology, which is harder to counterfeit than existing government IDs." At a conference on privacy that year, Wired News reporter Declan McCullagh noted, the Electronic Privacy Information Center (EPIC) passed out "LarryCards" to attendees. Another group called Larry Ellison "the privacy villain of the week."

Even in the immediate aftermath of 9/11, few took the prospect of a resurrected push for a national ID system seriously. But public disdain for a national ID in the wake of Ellison's proposal apparently didn't register with congressional lawmakers or with the Bush administration. On January 26, 2005, Wisconsin Republican F. James Sensenbrenner introduced H.R. 418, the Real ID Act of 2005, into the House of Representatives. The measure stipulated that federal agencies "may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section."

Among the requirements for the new ID was the stipulation that it include "common machine-readable technology, with defined minimum data elements"--in other words, an electronic means of storing personal data on the card itself that could be accessed by appropriate card-reading technologies. Moreover, all the data on the card would be linked via a massive federal database, much as envisioned by Larry Ellison.

The measure initially passed the House in February 2005, but because it looked like it would stall in committee in the Senate, the text of the Real ID Act was added to what was deemed the next must-pass legislation--an emergency supplemental appropriations bill funding the Iraq War as well as aid for victims of the Asian tsunami. The appropriations bill, with the Real ID Act attached, was passed 368-58 in the House on May 5, 2005, and in the Senate five days later by a unanimous vote. "I am glad the House could complete its work on the emergency supplemental bill," Real ID Act author Sensenbrenner said when the measure passed the House. "It provides the resources needed by our military to protect the country and win the war against terror. I am especially pleased with its inclusion of the REAL ID Act."

Opposition

Critics were not as pleased as Sensenbrenner. Pointing out that the measure was falsely linked with popular efforts like fighting terrorism and stopping illegal immigration, Congressman and presidential candidate Ron Paul pointed out, in an essay entitled "The National ID Trojan Horse," that it was really a dangerous step toward authoritarianism. "Supporters claim the national ID scheme is voluntary. However, any state that opts out will automatically make non-persons out of its citizens," Paul warned. "The citizens of that state will be unable to have any dealings with the federal government because their ID will not be accepted. They will not be able to fly or to take a train. In essence, in the eyes of the federal government they will cease to exist." Though supporters insisted the measure was not meant to be a form of national ID, Paul disagreed. "Federal legislation that nationalizes standards for drivers' licenses and birth certificates creates a national ID system pure and simple," he said. "It is just a matter of time until those who refuse to carry the new licenses will be denied the ability to drive or board an airplane. Such domestic travel restrictions are the hallmark of authoritarian states, not free republics."

Critics of Ron Paul's position on the measure point out that similar restrictions already exist for those who don't carry a state license or ID. That may be true, but the constitutionality of such a measure on the federal level is at least dubious, and the underlying philosophy of a national ID is diametrically in opposition to the motivating aims of the Founding Fathers. They believed, as Thomas Jefferson eloquently expressed, that rights come not from government, but from God, and that government may not abridge those rights. A government that issues a national ID turns that concept on its head. In issuing a national ID, a government, in essence, issues a license to citizens granting them access to rights that, absent the ID, would be legally inaccessible.

In sum, when a government issues a national ID, it is a sign that the government has adopted the idea that it--not God--is the source of human rights. This is the source of Congressman Paul's quip that those lacking a national ID, once these are required, will, in the eyes of government, "cease to exist."

Others have since echoed Congressman Paul's concerns and have added their own. The Electronic Frontier Foundation (EFF) has been similarly critical, stating that Real ID creates a dangerous national ID that will facilitate government surveillance of law-abiding citizens. "Once the IDs and database are in place," EFF warns, "their uses will inevitably expand to facilitate a wide range of surveillance activities. Remember, the Social Security number started innocuously enough, but it has become a prerequisite for a host of government services and been co-opted by private companies to create massive databases of personal information. A national ID poses similar dangers; for example, because 'common machine-readable technology' will be required on every ID, the government and businesses will be able to easily read your private information off the cards in myriad contexts."

Moreover, when implemented, Real ID will compromise the integrity and security of each person's private information while failing to improve national security. In EFF's opinion, the "IDs do nothing to stop those who haven't already been identified as threats, and wrongdoers will still be able to create fake documents. In fact, the IDs and database will simply create an irresistible target for identity thieves."

Security experts agree that the plan puts personal data at risk. According to computer security expert Bruce Schneier, author of the book Beyond Fear: Thinking Sensibly About Security in an Uncertain World, a national ID would be a security nightmare. In Schneier's opinion, no matter how secure the card is made, sooner or later clever criminals will find a way to create a forgery. They will have great incentive to do so because, unfortunately, the harder it is to create a forgery, the more valuable a successful forgery becomes.

Beyond that, though, is the risk from the linkage of 50 state databases into one massive federal database. "The security risks of this database are enormous," Schneier said in testimony to the Senate Judiciary Committee. "It would be a kludge of existing databases that are incompatible, full of erroneous data, and unreliable. Computer scientists don't know how to keep a database of this magnitude secure. The daily stories we see about leaked personal information demonstrate that we do not know how to secure these large databases against outsiders, to say nothing of the tens of thousands of insiders authorized to access it. The fact that REAL ID database is a 'one stop shop' for personal information exacerbates these risks."

For all the risk the Real ID system would mean to the integrity and security of personal information for millions of Americans, it would do little or nothing, according to Schneier, to prevent terrorism and ensure national security. It is based, he says, on the mistaken assumption that if government knows who everyone is, it will be able to identify the evildoers.

The theory behind Real ID, Schneier said in his Senate testimony, is that "if we know who you are, and if we have enough information about you, we can somehow predict whether you're likely to be an evildoer." That, he says, is untrue. "If you need any evidence of this, look at the single largest identity-based anti-terrorism security measure in this country: the No-Fly List. The No-Fly List has been a disaster in every way: it harasses innocents, it doesn't catch anyone guilty, and it is trivially easy to evade. This is what you get with identity-based security, and this is what you should expect more of with REAL ID."

Battleground in the States

As passed, the measure was due to take effect in 2008, but under pressure from vigorous and growing opposition, the Bush administration announced on Match 2 that implementation would be postponed to December 2009--if it is not repealed before then.

Opposition to the bill has come from many of the nation's states where the measure is billed as a dangerous, expensive, unfunded, and unnecessary mandate. In Missouri, opposition has been led by state Senator Jim Guest, a vocal critic of the measure who leads Legislators Against Real ID (LARI), a nationwide coalition of state legislators fighting to stop implementation of the Real ID Act.

Like others, Guest warns that the measure undermines the basic rights and freedoms of the American people. "We're supposed to be a government of, by and for the people," he told the online tech journal eWeek.com. "Government's role is to protect citizens' freedom. In this case, they're not doing that." According to the Missouri legislator, Real ID "is a direct frontal assault on the freedom of citizens." And it has to be stopped now, before implementation, be says, because it falls under the Department of Homeland Security and lacks future legislative oversight. "Homeland Security has total control; there is no judicial or legislative control over this. Once they issue [the Act] there is no way of stopping them."

Many states have taken Rep. Guest's warning seriously. So far 38 states have seen legislation introduced in their legislatures opposing the Real ID Actor even barring state participation in the measure once implemented. According to the Electronic Privacy Information Center, "The states that have passed anti-REAL ID legislation are Arkansas, Colorado, Georgia, Hawaii, Idaho, Illinois, Maine, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, South Carolina, and Washington."

The resolution passed by the state of Arkansas pulls no punches in its assessment of the threat posed by the Real ID Act. The Arkansas measure notes: "The 'common machine-readable technology' required by the REAL ID Act of 2005 would convert state-issued driver licenses and identification cards into tracking devices, allowing computers to note and record a person's whereabouts each time he or she is identified." The Arkansas resolution also points out that the Real ID Act "wrongly coerces states into doing the federal government's bidding by threatening to refuse to the citizens of non-complying states the privileges and immunities enjoyed by the citizens of other states."

In Montana, legislation opposing implementation of Real ID was tougher still. There, House Bill 487, which was signed into law by Governor Brian Schweitzer on April 17, directs "the Montana Department of Justice not to implement the provisions of the Federal Act" and states that "the purpose of the Legislature in enacting [this measure] is to refuse to implement the REAL ID Act and thereby protest the treatment by Congress and the President of the states as agents of the federal government and, by that protest, lead other state legislatures and Governors to reject ... the REAL ID Act." As be signed the measure into law, Governor Schweitzer was defiant. "The best way for Montana to deal with the federal government on this issue and many others is to say 'No. Nope. No way and hell no,'" be said.

The opposition at the state level may have finally caught the attention of federal lawmakers. On the Democratic side of the aisle, measures have been introduced in both the House and Senate to repeal the Real ID Act. While neither measure has garnered much support as of yet and both have been referred to committee, their existence is proof that activism at the state level is beginning to have an effect at the federal level. Much good has been done by the states that have already passed measures opposing the implementation of a national ID--it now falls to the rest of the states to follow suit and prevent the federal government from converting the free citizens of America into subjects of the budding new national-security regime.