March 2015 Bar Bulletin
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March 2015 Bar Bulletin


The Real Problems with REAL ID

By David A. Perez


A decade-long stalemate between Washington and Washington, D.C., may end this year if a bill being considered by the Legislature ends up passing. The conflict stretches back to 2005 when Congress passed the REAL ID Act, which mandates technical and procedural standards that states must follow before issuing driver's licenses and ID cards. In theory, once the law is implemented, licenses issued by states that don't follow REAL ID standards cannot be used to access federal buildings or airports.

But while Congress was very willing to dictate onerous standards to the states, Congress did not provide any funding to implement REAL ID, expecting that the states would foot the bill (estimated at $11 billion).

Almost immediately after REAL ID passed, there was a collective uproar among the states, which were facing a big implementation cost, but also genuine concerns about the far-reaching implications of a congressionally mandated, national identification standard.

Washington was one of the states that refused to comply, passing a law in 2007 that prohibited spending state funds to implement REAL ID. This set up a staring contest between the Department of Homeland Security (the federal agency tasked with implementing the law) and lawmakers in Olympia. It appears, however, that Olympia is about to blink.

National Security or National Identification?

The REAL ID act was passed in response to the 9/11 Commission's recommendations, ostensibly to address the risk that would-be terrorists could access federal buildings with state-issued identification cards. (Four of the 19 9/11 hijackers had state-issued identification cards.)

As the Electronic Privacy Information Center (EPIC) explains, to comply with REAL ID, states would have to require those seeking a driver's license or ID card to provide certain documents, such as: (1) a valid, unexpired U.S. passport; (2) a certified birth certificate (or consular report of birth abroad); (3) an unexpired permanent resident card; (4) an unexpired employment authorization document; (5) an unexpired foreign passport with valid U.S. visa affixed and "the approved I-94 form documenting the applicant's most recent admittance into the United States"; and (6) a U.S. certificate of naturalization or citizenship.1

States would have to make the ID cards or driver's licenses "machine readable" so that the individual's movements and personal information can be tracked and stored. And states must opt into a nationwide database that makes all this information available to all the other states and to the federal government.

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