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Article - United States Introduces the REAL ID Act (June 2005)
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Introduction
This article describes the key aspects of the US REAL ID Act and some of the controversy that has surrounded this proposal. The article concludes with an examination of the potential impact of this development in Australia.
Identity fraud and identity theft are major issues in Internet regulation. They have become the major focus of cyber crime initiatives and debate. Legislation has recently been passed in the US that critics say will create a de facto national ID card. Backed by the REAL ID Act of 2005,[1] the US will soon bring into place massive reforms to standardise driver’s licenses and personal identification cards, effectively paving the way for a system of national identification.
The Act, which comes into effect in May 2008, calls for a standardised set of federal requirements to be incorporated into US driver’s licenses and personal identification cards. This includes:
- Minimum issuance standards;
- Minimum document requirements;
- Electronic data sharing by all States; and
- Incorporation of machine-readable technology.
Background
The REAL ID Act of 2005 (H.R. 418) was introduced in the US House of Representatives on January 26 2005 in response to recommendations of the 9/11 Commission. The Act was passed by the House on February 10 2005. Controversially, these provisions were then incorporated into an $82 billion military funding bill - the Emergency Supplemental Appropriations Act for Defence, the Global War on Terror, and Tsunami Relief 2005 (H.R.1268), which critics say almost certainly guaranteed its smooth passage through the Senate. It was signed into law by President Bush on 11 May 2005 with its mandate to take effect from May 2008.
Main Provisions of the Act
The purpose of the Act is ‘to establish and rapidly implement regulations for state driver’s license and identification document security standards, to prevent terrorists from abusing the asylum laws of the United States, to unify terrorism-related grounds for inadmissibility and removal, and to ensure expeditious construction of the San Diego border fence.’
The REAL ID Act repeals the driver’s license provisions of the Intelligence Reform and Terrorism Prevention Act of 2004. Title II of the Act - Improved Security for Drivers’ Licenses and Personal Identification Cards sets out the new standards required.
Minimum Document Requirements and Issuance Standards for Federal Recognition
Section 202 of the Act prevents Federal agencies from accepting, for any official purpose, a driver’s license or identification card issued by the state unless it meets certain document requirements and issuance standards. Official purpose includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary of the Department of Homeland Security determines.
Minimum Issuance Standards
Prior to issuing a driver’s license or personal identification card, the state must cite and verify information about the applicant including:
- A photo identity document (a non-photo identity is acceptable if it includes both the person’s full legal name and date of birth);
- Documentation showing the person’s date of birth;
- Proof of the person’s social security account number (or proof that the person is not eligible for a social security account number);
- Documentation showing the person’s name and address of principal residence; and
- Evidence of immigration status. Citizens, aliens lawfully admitted for permanent or temporary residence, those on conditional permanent residency and those with an approved application for asylum or refugee status may receive a driver’s license or identification card. Non US citizens on temporary immigration status are only entitled to a temporary license or identification card. Such a license or identification card is valid only for the duration of authorized stay or where the applicant’s stay is indefinite, it shall be valid for a period not exceeding one year.
States must verify with the issuing agency the issuance, validity and completeness of each piece of documentation presented by the applicant. Further, states cannot accept foreign documents other than passports to satisfy the minimum issuance standards.
Minimum Document requirements
A driver’s license or identification card issued by the state must contain:
- The person’s full legal name;
- The person’s date of birth;
- The person’s gender;
- The person’s driver’s license or identification card number;
- A digital photograph of the person;
- The person’s address of principle residence;
- The person’s signature;
- Physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes; and
- A common-machine readable technology, with defined minimum data elements.
Pursuant to s. 203, to be eligible for any funding or financial assistance under the Act, states are required to participate in an interstate compact known as the ‘Driver License Agreement.’ Under this agreement, states must share driver license information by providing electronic access to information contained in their motor vehicle database. This information must include at a minimum all data fields printed on drivers’ licenses and identification cards and motor vehicle drivers’ histories.
Controversy
Critics are outraged at the lack of consultation and debate surrounding the implementation of these massive reforms.[2] REAL ID was attached to a must-pass emergency appropriations bill for the military effort in Iraq and tsunami relief. Critics say had it been a stand-alone piece of legislation, it is doubtful whether it would have passed through Congress so easily.
Supporters of the Act argue that REAL ID is necessary to prevent terrorist activity in the wake of the September 11 attacks. Critics argue however that such measures are counterproductive and do little for national security.
The Act takes power away from states to determine licensing requirements and forces them to comply with federal standards. Though states may continue to maintain their own eligibility criteria, the Act mandates that such licenses and IDs will not be accepted by Federal agencies. Critics argue that the provisions were unnecessary in light of the recently passed Intelligence Reform and Terrorism Prevention Act (repealed by REAL ID) which maintained a more effective balance of power with states, the federal government and other interested parties collectively determining license requirements.
The Act has prompted furore from privacy and civil liberties groups, including the American Civil Liberties Union. These groups argue that by standardizing license requirements across the 50 US states, the provisions effectively create a national ID card. Of even more concern, the requirement that each state link its motor vehicle database will result in the creation of a single national database. The privacy implications of this are massive. The availability of such vast amounts of personal information in a concentrated source will inevitably provide a haven for identity thieves.
Concerns have also been expressed about the incorporation of a ‘machine readable’ technology into the new license. Whilst the Act does not specify the type of technology to be used, the Department of Homeland Security has indicated a preference for using Radio Frequency Identification chips, the same technology currently being used in the implementation of biometric passports. These chips pose further privacy and security risks because information can be read from a distance without requiring the license to be physically scanned through a reader.
Potential Impact for Australia
Currently in Australia driver’s licenses are issued at the state/territory level and power is given to the states/territories to determine standards and criteria for licenses and personal identification cards. However, given that the US reforms have been implemented on the premise of fighting terrorism coupled with Australia’s ongoing commitment to the US on this stance, it is possible that the US approach will be seen as an international benchmark or precedent.
Allocation of funding in this year’s Commonwealth Budget to strengthen identity security reflects government concerns regarding identity fraud, identity theft and national security. Although there is a history in Australia of opposition to national ID products (eg the defeat of a Commonwealth proposal to introduce a national identity card - the Australia Card - in 1986[3]), the REAL ID Act is an indication of a growing international interest in national ID products.
[1] REAL ID Act of 2005 (H.R. 418), <http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00418:>.
[2] See, for example, Electronic Privacy Information Centre, National ID Cards and REAL ID Act, Last updated 27 June 2005, <http://www.epic.org/privacy/id_cards/>.
[3] Roger Clarke, Just Another Piece of Plastic for your Wallet: The 'Australia Card' Scheme, Prometheus, (Canberra 1987) <http://www.anu.edu.au/people/Roger.Clarke/DV/OzCard.html>.
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