Cemento

The terrorist attacks of 9/11 drove home with startling urgency the need to address a number of vulnerabilities faced by the nation in a number of areas that imperiled its national security. Among those, was the relative ease with which individuals could obtain identity documents that would allow them to remain in the United Sates and engage in activities that could facilitate events like 9/11. The United Sates had not been oblivious to these issues, and has been grappling with, and seeking to address, the relative insecurity of driver’s licenses and identity documents by strengthening the security of the documents and verification measures associated with their issuance to address fraud and identity theft concerns. While measures were pursued both before and after 9/11 through measures such as IIRIRA and IRTAPA, it took the events of 9/11 to galvanize government efforts to address this vulnerability in a more comprehensive manner.

An examination of the previous efforts shows that provisions in those earlier legislative efforts recognized the role of the states in identity document issuance and sought to balance the role of the federal government with that of the states; as best seen with the negotiated rulemaking provisions contained in the IRTPA. It is unclear what would have resulted had those efforts been allowed to proceed. On the one hand, they may have resulted in weaker document security provisions, thus diminishing the effort to address fraud. It may have also led to endless debate and disagreement with ensuing delays, which would have delayed implementation of needed changes. On the other hand, had the discussions been successful, it is easy to see how the states—particularly the ones currently opposing REAL ID—might have been more accepting of the changes and could have facilitated implementation and reduced state resistance.

69 Office of the Inspector General, Social Security Administration, “Audit Report: The Social Security Administration’s Compliance With Intelligence Reform and Terrorism Prevention Act of 2004 Provisions Regarding Security of Social Security Cards and Numbers,” May 2008, http://oig.ssa.gov/sites/default/

files/audit/full/html/A-08-08-18058.html.

REAL ID appears to have been one of those legislative enactments that passed due to all of the elements coming together to enable its passage, where it might not have passed at another time, and it seems it likely it would not be passed today. Furthermore, the Bush administration acted swiftly for a legislative and regulatory scheme of such a broad scope and tremendous impact upon the states and territories and their citizens. It undertook and published an extensive and ambitious rulemaking process in what many would agree was record time when compared with the difficulty and slow pace of extensive rulemaking efforts. It processed and addressed over 21,000 public comments and published regulations that altered significantly the requirements to be met by states in their identity document issuance procedures. As challenging as the rulemaking effort was, the more substantial challenges for both the federal government and the state governments, involved taking the measures necessary to implement the law successfully and do so in a way cognizant of, and which addressed the various concerns associated with REAL ID. The most significant of those concerns and the controversies surrounding them are discussed in the chapters that follow.

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III. DOES REAL ID CREATE A NATIONAL ID?

The literature review has briefly touched on several of the reasons that the passage and implementation of REAL ID has proven to be controversial. Among them, were issues, such as Tenth Amendment concerns regarding the proper role of the federal government as to functions reserved for and better entrusted to the states, concerns regarding the implementation costs of REAL ID and the belief that the law set forth unfunded mandates for the states, and privacy and civil liberties concerns stemming from the law’s requirements. All these reasons will be the subject of more detailed discussions in the paper. Within the category of concerns stemming from violations of civil liberties, is the concern raised by critics that REAL ID establishes a national identity card (national ID). This assertion composes part of the debate that continues to this day. DHS became enmeshed in the national ID debate through its efforts to implement REAL ID, which was enacted a mere two years after DHS came into existence. That law has come under assault by many who object to what they view as the creation of an insecure national ID system that imperils the privacy and civil liberties of the citizenry.⁷⁰

This chapter discusses DHS’ response to claims that it was establishing a national ID, and compares the REAL ID elements that give rise to the charge that it creates a national ID, to the efforts to those of four key democracies, the United Kingdom, India, South Africa, and Germany that have implemented, or have tried but failed to implement national ID schemes. Doing so provides a better understanding of how U.S. efforts compare to those of countries that have actually sought to establish a national ID. This thesis finds that the U.S. effort is more modest in its design, and discusses how DHS has countered the assertion that REAL ID establishes a national ID system. Nevertheless, REAL ID has faced opposition and slow adoption by many states. Looking at the experience of countries that have sought to implement a national ID system can assist DHS in identifying best practices that can help address some of the social acceptance

70 EPIC: Real ID Implementation Review; see also Steinbock, “Fourth Amendment Limits on National Identity Cards,” in Privacy and Technologies of Identity: A Cross-disciplinary Conversation. (Steinbock cites in footnote 1 to various articles from the last 20 years in which conversations regarding national IDs are referenced.).

issues that are impeding full implementation of the law, as well as countering critics’

claims that REAL ID constitutes a national ID scheme.