The fake REAL ID panic

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UPDATE 2016/10/14: Oklahoma, Kentucky, Pennsylvania, Maine, and South Carolina have been reclassified as non-compliant and have been granted a grace period only until January 15, 2017. Alaska, California, Oregon, and Virginia have a limited extension until June 6, 2017, and American Samoa, Arkansas, Idaho, Illinois, Louisiana, Massachusetts, Michigan, Northern Marianas, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Puerto Rico, Rhode Island, and Texas have an extension until October 10, 2017. Guam, Montana, and Virgin Islands are under review.

Once again, local media outlets are not reporting that this problem affects anyone besides Oklahoma. My guess is that they're relying on DHS or Oklahoma DPS press releases and that DHS would like to pressure each state by making the citizens of each think they're isolated and alone on this issue. Jim Harper of Cato Institute wrote late last month that "Oklahoma is a current battleground."

A 2014 Cato Institute report notes:

Although REAL ID is moribund, a state-by-state review reveals that some states' legislatures have backtracked on their opposition to the national ID law, and in some states motor vehicle bureaus are quietly moving forward with REAL ID compliance--contrary to state policy. Surprisingly, in some states, motor vehicle bureaucrats are working to undercut state policy opposing REAL ID and the national ID system.

Keep in mind that Oklahoma legislators voted unanimously to reject REAL ID in 2007, with sponsors on both sides of the isle. Then-Gov. Brad Henry, a Democrat, signed the bill into law. Officials were concerned about the cost of fulfilling this unfunded federal mandate, the security of personally identifying information and vulnerability to identity theft, and privacy.

How many states are in full compliance with the REAL ID act? How many states have an exemption that expires on October 10, 2016? How many states are already out of compliance?

If you were just learning about the issue from local news and social media, I can see how you might have come to the conclusion that 49 states and all the territories were already in full compliance and the only holdout was backward, ignorant Oklahoma, led by our Bible-besotted legislators and that awful Mary Fallin who stupidly believe that REAL ID is practically the Mark of the Beast. If you're only reluctantly an Oklahoman, if you already hate our state's religiously-influenced cultural conservatism, the apparent practical consequences of REAL ID non-compliance serve as a hefty cudgel with which to beat your favorite straw man.

For example, this News 9 story received a lot of social media play early this week:

OK Licenses Will No Longer Be Accepted For Access Onto Military Bases By Dana Hertneky, News 9

MIDWEST CITY, Oklahoma -

Your Oklahoma driver's license many not get you on military bases after October 10. Oklahoma legislators failed last session to make our Oklahoma Driver's licenses REAL ID compliant, and the current extension expires October 10. Without another extension, visitors to the bases will no longer be able to use their Oklahoma driver's license for identification.

HGL Construction does work on all three military bases in Oklahoma. During a recent site visit they were told that after October 10, an Oklahoma driver's license would no longer be an acceptable identification to get them on base.

"It will require not only HGL, but our subcontractors to secure passports, which most of our subcontractors wouldn't necessarily have," said Patrick Renshaw, the VP and Director of Preconstruction for HGL Construction.

Public Affairs officers at the bases say the new rules will also affect delivery drivers and even family members visiting the base for graduations or ceremonies. At Ft. Sill, they are warning loved ones now about the change, so they have time to get the necessary documentation.

There's some important context that the story doesn't give you. The limits on access to military installations is nothing new. It's been decades since a driver's license was sufficient for unescorted access to a military base. On some bases, a federal Common Access Card (available to some contractors on a strictly controlled basis) is sufficient, but on others, you also need to present a background check to the base pass office to get a separate, base-specific pass, and on still others, you'll need a vehicle pass as well.

The most important context missing from the story is that Oklahoma is not alone in its REAL ID non-compliance. Here is the Department of Homeland Security's list (retrieved today) of the status of driver's licenses from each state and territory:

(A) 23 states and the District of Columbia are considered fully compliant.

(B) 24 states, Guam, Northern Marianas, Puerto Rico, and Virgin Islands "have an extension, allowing Federal agencies to accept driver's licenses from these states until October 10, 2016."

(C) American Samoa, Minnesota, Missouri, and Washington are non-compliant and do not have an extension. Federal agencies may accept Enhanced Driver's Licenses (equipped with an RFID chip and valid for land and sea border crossings) that are available to Minnesota and Washington residents.

Oklahoma is in category B, along with California, Texas, New York, Illinois, Michigan, New Jersey, North Carolina, Virginia, and Massachusetts -- some very big company indeed.

New York State is telling its citizens that, despite the impending expiration of their extension, there's no need to worry for another four years:

Can I board a plane with the driver license I have now?

Yes. DMV expects that all licenses and ID cards issued by New York State will remain acceptable for domestic flights and for access to federal buildings until October 1, 2020.

What happens after 2020?

Starting in October 2020,New Yorkers will need a REAL ID compliant license to board a domestic flight or enter a federal building without secondary forms of identification, as per the Department of Homeland Security (DHS).

New York State has been granted an extension to the REAL ID Act only through October 10, 2016. What does that mean?

The extension's 2016 expiration is no cause for concern, as DHS grants extensions only on an annual basis and New York State anticipates having a REAL ID extension until becoming fully compliant with the Act. That means New Yorkers can continue to use their current state-issued driver license or ID card to enter federal buildings or board a domestic flight until October 1, 2020.

...

Do I need to worry about this now?

No. All New York licenses and ID cards are currently acceptable for REAL ID purposes and DMV expects them to be until October 1, 2020.

I have come across a couple of reports (here and here) that a 90-day extension to January 9, 2017, was announced on Thursday but can't find anything reflecting that change on the DHS website.

Since Congress passed REAL ID in 2005 as a rider on a must-pass appropriations bill, there's been a kind of gamesmanship happening. DHS doesn't want to acknowledge widespread rebellion against this Federal overreach. They prefer to pretend that most non-compliant states are moving toward compliance, and as long as a state plays along -- periodically requests an extension, presents some plausible excuses (e.g. fiscal constraints), and professes progress toward compliance -- DHS is happy to grant an extension. The only states tarred with the scarlet non-compliance label are those who are making no pretense to compliance.

Those forces that want Americans to have to obtain what amounts to an internal passport, linked to a central database, use media to activate the herd mentality. They want to convey the impression that each non-compliant state is alone, and it's time to get with the program. But as long as non-compliant states (especially the larger ones) stick together, Federal agencies will have to continue to grant extensions. Enforcement would create enough inconvenience for federal agencies and citizens that have to interact with them to generate calls for repeal.

Why should you care? Civil liberties organizations have raised objections to the REAL ID plan since its inception, citing threats to liberty, privacy, and the security of your identity. The Electronic Privacy Information Center (EPIC), CATO Institute, Electronic Freedom Foundation, the left-leaning ACLU, and the right-leaning ACLJ have all come out in opposition to REAL ID. Here is an excerpt from EPIC's REAL ID page:

EPIC and 24 experts in privacy and technology submitted detailed comments (pdf) in May 2007 on the draft regulations explaining the many privacy and security threats raised by the REAL ID Act. The fundamentally flawed national identification system is unworkable and the REAL ID Act must be repealed. In particular, the group admonishes DHS for its failure to include adequate privacy and security safeguards for this massive national identification database. DHS's own Data Privacy and Integrity Advisory Committee has refused (pdf) to endorse the agency's plan. "The Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate."

Department of Homeland Security Secretary Michael Chertoff released the agency's final regulations for REAL ID on January 11, 2008. The Secretary scaled back some of the requirements, reduced the cost, and extended the deadline for state compliance. However, Secretary Chertoff also indicated that the REAL ID card would be used for a wide variety of purposes, unrelated to the law that authorized the system, including employment verification and immigration determination. He also indicated that the agency would not prevent the use of the card by private parties for non-government purposes. As part of the cost-saving effort, Homeland Security has decided not to encrypt the data that will be stored on the card.

In an opinion column written by Secretary Chertoff after the publication of the final rule, he said, "embracing REAL ID" would mean it would be used to "cash a check, hire a baby sitter, board a plane or engage in countless other activities." This is a description of a national identification system, which is illegal in the United States. When it created the Department of Homeland Security, Congress made clear in the enabling legislation that the agency could not create a national ID system. In September 2004, then-DHS Secretary Tom Ridge reiterated, "[t]he legislation that created the Department of Homeland Security was very specific on the question of a national ID card. They said there will be no national ID card."

In a detailed analysis (pdf) of the final rule, EPIC explained that the Department of Homeland Security's REAL ID system includes few protections for individual privacy and security in its massive national identification database. It harms national security by creating yet another "trusted" credential for criminals to exploit. The Department of Homeland Security has faced so many obstacles with the REAL ID system that the agency now plans an implementation deadline of 2017 -- nine years later than the 2008 statutory deadline. It is an unfunded mandate that would cost billions, with the burden ultimately being placed on the individual taxpayer.

Technical experts familiar with the challenges of privacy protection and identification presented the Department of Homeland Security with a variety of recommendations that would have minimized the risks of the REAL ID system. The DHS made some modifications, but left the essential system in place. As REAL ID currently stands, the costs are many and the benefits are few. EPIC also detailed the State rebellion against REAL ID.

EPIC urged the alternative model of a system of decentralized identification. This reduces the risks associated with security breaches and the misuse of personal information. Technological innovation can enable the development of context-dependent identifiers. A decentralized approach to identification is consistent with our commonsense understanding of identification. If you are banking, you should have a bank account number. If go to the library, you should have a library card number. If you rent videos from a store, you should have a video rental store card number. Utility bills, telephone bills, insurance, the list goes on. These context-dependent usernames and passwords enable authentication without the risk of a universal identification system. That way, if one number is compromised, all of the numbers are not spoiled and identity thieves cannot access all of your accounts. All of your accounts can become compartmentalized, enhancing their security. View the full report: Marc Rotenberg & Melissa Ngo, EPIC, REAL ID Implementation Review: Few Benefits, Staggering Costs (pdf) (May 2008).

I suspect that some REAL ID proponents support it mainly because of the perceived benefits for immigration enforcement. Other proponents may have a commercial interest -- providing the enhanced cards and the machines that produce them or the IT systems to manage the data gathered. Law enforcement might find it easier to do their jobs if your life was less compartmentalized. Commercial entities see financial opportunity in linking data among various aspects of your life; you may have noticed, in the move from computers to smart phones, that you have to use a single ID from Apple or Google to access various apps, and you have to give those apps permission to crawl around all the data that other apps have generated. Even if the Federal Government fails to establish a universal ID, Apple and Google may succeed.

Here's what EFF has to say about REAL ID:

Once the IDs and database are in place 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 coopted 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.

Real ID won't just cost you your privacy. The federal government didn't give the states funds to implement the law and overcome its many administrative burdens so the billions of dollars in costs will be passed down to you in the form of increased DMV fees or taxes.

And what will you get in return? Not improved national security because 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.

Kaye Beach is a Norman-based activist fighting against REAL ID and government collection of biometric information. Her Constitutional Alliance website has a helpful FAQ about biometrics. Her chilling summary:

We are being enrolled into a single global biometric identification system that links a person's body using biometrics to their ability to buy, sell, travel and work....

It is most important to note that ALL states meet Real ID benchmark #1 "Mandatory facial image capture and retention of such image." No matter whether your state is Real ID compliant or not, if you possess a state driver's license or photo ID card, you have been enrolled. The same is true for other government photo ID's such as a military ID or a US passport. These high resolution digital images are a biometric suitable for use with facial recognition technology and we know that at least 37 states are currently utilizing the facial biometric with facial recognition technology.

It is the capture of the biometric combined with the application of international standards that is at the heart of enrollment into a single global system of identification and control.

Beach writes that mandatory biometric identification shifts the balance of power from people to government, transforms rights into privileges, and destroys the presumption of innocence.

Her Constitutional Alliance co-founder, Mark Lerner, explains how this technology can have a chilling effect on the free exercise of our First Amendment rights:

The good news is now that the Snowden revelations have revealed to a large degree the domestic surveillance taking place, the public knows more about what OUR government is doing. The bad news is the chilling effect creating a surveillance state has on a representative form of government.

The chilling effect can be simply defined as the way in which people alter or modify their behavior to conform to political and social norms as a result of knowing or believing they are being observed. The observation can be from physical surveillance, telephone meta data being collected, emails being intercepted and read, search engine requests being maintained, text messages being read and stored, financial transactions being monitored and much more.

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This page contains a single entry by Michael Bates published on September 17, 2016 11:36 AM.

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