A Primer on the Real ID Act


Janet Napolitano, secretary of the Department of Homeland Security
photo courtesy of the National Guard / CC BY-SA 2.0

By Robin Brown

— In a seven-year debate over homeland security vs. civil liberties, the Real ID Act is gridlocked.

It creates national standards for driver’s licenses and was signed into law in 2005 by President George W. Bush.

Residents of noncompliant states shouldn’t be able to use their state IDs to board commercial airplanes or enter federal buildings. The Department of Homeland Security has declared only 13 states to be compliant with the act. New Mexico is not one of them. The state’s failure to comply with federal guidelines will likely be fuel for another push by Gov. Susana Martinez to outlaw driver’s licenses for undocumented immigrants. The next legislative session begins Tuesday, Jan. 15.

Homeland Security extended the Real ID deadline a fourth time on Thursday, Dec. 20—a measure that prevents turmoil in the 37 states still deemed noncompliant. New Mexico driver’s licenses are acceptable on the federal level for at least another six months, which means passports are not yet an issue for in-country travel.

Due to widespread opposition to the Real ID Act, its future remains uncertain. Many argue the law was hastily pushed through Congress in 2005, tacked on to essential legislation for Iraq funding and tsunami relief. According to the National Conference of State Legislatures, 17 states have passed specific laws blocking compliance with Real ID. These states, including Utah, Alaska, Washington, Arizona, Utah and Louisiana, say compliance is too expensive and violates states’ rights.

Enforcement of Real ID would be tricky, given such outright defiance among many states. However, repeal of the act is also unlikely, given it would spark heavy controversy over national security.

According to the Heritage Foundation, a right-wing think tank that supports Real ID, threats to our nation include terrorism and fraud—dangers which often come from outside U.S. borders. The American Civil Liberties Union, on the other hand, says the bigger threats lie within our borders: invasion of privacy, infringement of individual liberties and excessive control and surveillance of citizens by the federal government.

Perceived Dangers

Jessica Zuckerman, a research associate with the Heritage Foundation in Washington D.C., says Real ID is necessary to prevent terrorism. She cites the fact 9/11 hijackers used multiple state IDs to create fake identities and board planes. Zuckerman says the Real ID Act will cut down on ways for criminals and terrorists to create fraudulent documents.

Peter Simonson, executive director of the ACLU of New Mexico, disagrees. The problem with the Heritage Foundation premise, he says, is it assumes people who intend to cause our country harm aren’t going to be able to obtain Real IDs or fraudulently create them. He also points to the 9/11 hijackers, saying the majority of them had legal identification and immigration documents. If criminals are intent on obtaining fake identification, says Simonson, it won’t be impossible with or without the Real ID Act.

Simonson adds threats to privacy posed by Real ID outweigh its benefits. In effect, he says, Real ID creates a national identification card. Driver’s license databases are notoriously susceptible to hacking and to identity theft, says Simonson, and the Real ID Act requires the creation of a single, national database with everyone’s personal information. “I think it creates a one-stop-shop for identity thieves to access people’s personal information,” he says.

Zuckerman says it’s a myth Real ID would create a federal database. The law is not a federal ID card, she adds. It creates a national set of standards states must comply with, and each state will have its own central database of stored information. However, provisions within the act will link state databases, and Zuckerman says individual states will be able to query the federal government for specific information.

Simonson also points to the requirement that Real ID cards be able to store data. Though not specified in the act itself, this requirement may consist of a microchip which can store personal information. He says this creates the possibility the federal government could track individuals spatially or permit private companies to access intimate information. “There’s no guarantee private companies couldn’t try to use data chip for their own purposes.”

License to Decide

Zuckerman says the level of opposition to Real ID is exaggerated. “I think we actually see the majority of states are largely compliant with this act,” she says. “We see a lot of the concerns being abated, and the opposition decreasing as it’s gone on.”

But Simonson says the opposition to Real ID is so strong it isn’t being tracked by the ACLU as a national issue anymore. “Once you have one state opting out, you thwarted the entire national security rationale for the card. You can’t guarantee any degree of national security coverage if one state and all of its population aren’t compliant,” he says. Requiring residents of objecting states to buy passports to board airplanes would create controversies the Department of Homeland Security seems to want no part of, he adds: On a national level, the ACLU sees the Real ID Act as a political stalemate.

According to the feds, Real ID stands. It just won’t be enforced in noncompliant states for another six months. Homeland Security’s strategy is to highlight the 13 states which meet the act’s standards, while deferring the 37 noncompliant states. States can be ideologically opposed to Real ID and still comply with its regulations. Colorado and Georgia, for example, have passed legislation objecting to Real ID, but they are also considered by Homeland Security to have met its guidelines.

The Heritage Foundation and ACLU both offer websites featuring colored maps of the United States. The Foundation’s version shows each state’s level of compliance. The ACLU’s Real Nightmare website displays levels of opposition.