REAL ID, WHTI Opponents' Concerns Persist

By Matthew Harwood

State officials, federal lawmakers, civil libertarians and business leaders formed a chorus of criticism against plans to require secure U.S. driver's licenses and travel documents within the Western Hemisphere on Wednesday before members of the Senate Homeland Security and Governmental Affairs Committee.

The policies under scrutiny, the REAL ID Act and the Department of Homeland Security's (DHS) Western Hemisphere Travel Initiative (WHTI), both stemmed from the 9-11 Commission's recommendations for preventing another terrorist attack. REAL ID requires secure state-issued drivers licenses for federal uses—like boarding airliners—while the WHTI mandates all travelers at U.S. borders have a document that verifies their identity and citizenship. On 9-11, most of the 19 hijackers had multiple government-issued IDs, many of which were obtained through legal means but with fraudulent supporting documents.

Opponents criticized each on a number of fronts. 

Senators and state leaders complained that REAL ID creates an unfunded mandate and called on the federal government to fully fund its implementation starting with $1 billion up-front to cover the initial start-up costs.

By extending implementation deadlines for REAL ID to 2017, the Department of Homeland Security has decreased the cost of issuing secure state licenses from $14.6 billion to $3.9 billion - a reduction of 73 percent, said Stewart Baker, assistant secretary for policy at DHS.

Regardless of the cost reduction to them, states want the federal government to fully fund REAL ID itself. Currently, the government has only appropriated $90 million for state REAL ID grants, said ranking member Senator George V. Voinovich (R-OH).

Representatives from the business community worried WHTI hurts cross-border commerce with Mexico and Canada and hampers international tourism to the United States.

Angelo Amador of the U.S. Chamber of Commerce told lawmakers "A number of inefficiencies at the borders are threatening our competitiveness and WHTI places further pressure on eroding infrastructure, which could harm legitimate commerce, trade, and tourism."

The inefficiencies, Amador said, include increased wait times at the border, inadequate staffing of border employees at ports of entry, and limited knowledge of changing U.S. border policies which hurts the ability of business to adapt in a timely and economical fashion.

Similarly, Roger J. Dow, president and CEO of the Travel Industry Association, testified that "overseas travelers are avoiding the U.S. due to concerns over the visa and entry experience and a global perception that visitors are not as welcome as they were prior to 9-11."

The American Civil Liberties Union's Caroline Fredrickson, director of the organization's legislative office in Washington, DC, restated concerns that REAL ID would create a "de facto National ID system" and predicted "third party retailers will be skimming information off the card and reselling purchase data to commercial data brokers who will in turn resell it to the government."

"The ability to live and move throughout the society freely," she said, "will largely evaporate."

All of the critics, and committee members,  voiced worry about data security.

"The massive amounts of personal information that would be stored in state databases that are to be shared electronically with all other states," said Senator Daniel Akaka (D-HI), "as well as the unencrypted data on the REAL ID card itself, could provide one-stop shopping for identity thieves."

Most of the complaints concerning the WHTI centered on vicinity radio frequency identification (RFID) technology embedded in WHTI-compliant licenses, or enhanced driver's licenses, that allow for border crossings. Vicinity RFID, as opposed to proximity RFID, allows card readers to read the information stored on a card at a distance, explained Sophia Cope, a staff attorney for the Center for Democracy and Technology.

Akaka said vicinity RFID "poses serious privacy and security risks as anyone with a RFID reader will be able to monitor the activities of EDL holders."

Representative Donna Stone of the Delaware General Assembly, who testified before the subcommittee on behalf of the National Conference of State Legislatures (NCSL), said DHS is contributing to RFID insecurity by mandating stronger RFID technology that emits farther while denying states ability to encrypt the information stored on the license.

According to Stone, 42 states have introduced anti-REAL ID legislation. Of those 42 states, 21 have passed anti-REAL ID measures, most of them just resolutions. Seven have passed legislation forbidding their states from complying with the law.

Both the NCSL and the ACLU want the federal government to scrap the REAL ID Act and for Congress to pass the  Identification Security Enhancement Act of 2007, co-authored by Akaka and Sen. John Sununu (R-NH). The bill would eliminate federal mandates and let states negotiate licensing standards, and it includes language addressing common privacy and civil liberties concerns.

The ACLU says the Akaka-Sununu bill would not create a national ID system but instead mandate minimal security standards that allow individual states to add additional security standards when it sees fit.

"Because REAL ID relies on a set of uniform national mandates," Fredrickson said, "such innovation is prevented absent passage of a new act of Congress or regulatory modifications."

"As we implement the 9-11 Commission recommendations, we must do so in a way that is intelligent, thoughtful, and involves good management practices," said Voinovich. "We cannot proffer artificial measures that will do more harm than good .... we must allocate the resources necessary to implement the 9-11 Commission recommendations."


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