National Journal - Eliza Newlin Carney
Sen. Lamar Alexander argues that in the post-9/11 world the United States needs a national identification card to help prevent terrorist attacks. But the Tennessee Republican vehemently opposes Real ID, the leading federal program to create fraud-resistant identification cards for tens of millions of Americans.
Alexander is co-sponsoring legislation to repeal key sections of the Real ID Act of 2005, which requires states to follow federal standards in verifying someone's identity before issuing a driver's license. The senator complained to National Journal that the law turns motor vehicle department workers "into little CIA agents" and burdens states with expensive new unfunded mandates. "If the federal government thinks this is such a good idea, the federal government ought to pay for it," he said.
In theory, at least, beefing up identification requirements for travel, work, and voting is quite popular. In the most recent national poll on the subject, Gallup found in 2005 that two-thirds of Americans support the creation of a national ID card. Many countries already require them. Advocates in the U.S. tout such cards as a way to fight terrorism and more-conventional crime, reduce illegal immigration, prevent election fraud, and curb identity theft.
In practice, however, efforts to outfit virtually all Americans with more-reliable identification have been fraught with headaches and controversy. And Alexander is far from alone in crying foul.
For example, the Real ID Act has spawned a mini-rebellion at the state level. Ten states--Alaska, Arkansas, Georgia, Idaho, Maine, Montana, New Hampshire, Oklahoma, South Carolina, and Washington--have enacted statutes declaring that they will not comply with the federal law. Meanwhile, new ID rules for travelers crossing into the U.S. have been caught up in administrative snafus, prompting criticism from Congress that bungling federal agencies are hurting commerce, trade, and tourism.
Implementing new state laws that require employers to certify that workers are legal U.S. residents has proved to be a nightmare, in part because of error-riddled federal databases. This year the U.S. Supreme Court upheld the Indiana law requiring voters to present some sort of government-issued photo ID. Civil-rights groups had challenged the law as unfair to racial minorities, the poor, and the elderly, arguing that they are less likely to have driver's licenses.
The Court's 6-3 ruling could clear the way for still more ID requirements of all stripes--and still more challenges. Already the federal courts are clogged with ID-related lawsuits and countersuits filed by parties ranging from chambers of commerce to civil libertarians, government workers, and even Bush administration officials themselves.
The emotional debate has also spawned a cottage industry of lobbyists--for technology companies hungry for lucrative government ID contracts, on the one hand, and a strange-bedfellows coalition of ID-wary business, labor, civil-rights, scientific, and state officials on the other. (See story, p. 29.)
Invariably, the struggle over IDs bumps up against big, even philosophical, questions: How can identity be proved? Can the government ever really be sure that individuals are who they say they are? If so, at what cost--in terms of lost freedom and privacy, not just dollars and cents?
As Sen. George Voinovich, R-Ohio, noted drily at a congressional hearing earlier this year, improving American ID security is "easier said than done." It's not a new undertaking. Attempts to expand the federal use of Social Security numbers, a system created in 1935 to make it easier to track and distribute federal retirement benefits, have sometimes failed. President Carter opposed the idea of turning Social Security cards into national identification cards; President Reagan opposed the creation of any form of national ID. But in 2001, the September 11 terrorist attacks heightened the intensity of the national ID debate. All but one of the hijackers had carried some form of ID issued by a government agency in this country, such as a Virginia driver's license. Some of the IDs were fraudulently obtained. The 9/11 commission recommended in 2004 that Congress tighten the security of driver's licenses.
During the mid-1990s, airports instituted basic ID requirements in response to the Unabomber's threats. Since then, the drive for more-trustworthy IDs has been fueled not only by 9/11 but also by the desire to crack down on illegal immigration; the growing epidemic of identity theft; credit-driven commerce; and even technological advances in identity verification techniques.
Taking advantage of one such breakthrough, Bush administration officials have announced plans to collect DNA from anyone arrested on federal charges. So-called smart cards, embedded with a computer chip containing the holder's biometric data, such as fingerprints or iris scans, are growing in popularity. The Defense Department and many Fortune 500 companies already use them.
Yet even as ID requirements proliferate, the backlash against them has grown. Some experts argue that there are better, more-direct ways to improve security. Others contend that the only way to create truly fraud-proof IDs is to collect DNA or biometrics from all Americans at birth--a Big Brother scenario that smacks of a surveillance society.
Whatever the ideal model in the long run, America's ID policy is at a crossroads. Americans may eventually embrace a national ID card, as Britons have done recently. Or, U.S. citizens may find themselves carrying multiple smart cards with different uses, as privacy experts prefer. In the meantime, ID wars are breaking out on many fronts.
When officials at the Indiana Bureau of Motor Vehicles set out to check the records of the state's 6.4 million licensed drivers last July, the effort began smoothly. The bureau had just upgraded its computer system and could now verify the Social Security numbers of drivers online, as the Real ID Act would soon require.
The records matched for 97 percent of drivers. In most of the other cases, a simple error--such as a typo or the person's failure to alert the Social Security Administration about a name change--caused a mismatch that was easily corrected. But that still left 34,000 Indiana drivers with records that didn't match. The bureau warned them that their licenses would be revoked if they didn't fix the problem within 30 days. When South Bend lawyer Lyn Leone received a notice, she promptly contacted the American Civil Liberties Union. Leone's Social Security card reads "Mary Lyn Leone." But Leone has been known as Lyn all her life, she says, and she maintains that she has a legal right to go by that name on her driver's license.
"They are basically trying to erase my identity," said Leone, 60, now a plaintiff in an ACLU lawsuit challenging the Indiana Bureau of Motor Vehicles. The licenses of thousands of Indiana drivers could be revoked for similar reasons, said Kenneth Falk, legal director of the Indiana ACLU. "If you are named 'William' but you've always used 'Bill,' and your license is in 'Bill,' you will be terminated."
Although few observers disagree with the basic premise of Real ID--before issuing a driver's license, states should obtain the applicant's identifying documents, such as a birth certificate and proof of legal residency, and verify their authenticity--Indiana's experience spotlights the things that can go wrong when a requirement becomes law with no public debate or hearings. Congress initially set out to bring state officials, privacy experts, and other stakeholders together in what's known as a negotiated rule-making. But in 2005, Real ID Act proponents in the House abruptly attached it to a must-pass appropriations bill funding the Iraq war and tsunami relief.
The Homeland Security Department fielded about 21,000 public comments on Real ID before issuing final regulations in January. By then, state governments were in such an uproar that DHS pushed back its deadline for taking the first steps toward full compliance--from May 11, 2008 to December 31, 2009. The final deadlines for states that pass certain benchmarks will be 2014 for drivers under 50 and 2017 for older ones. The extension averted what would have been a public-relations disaster, because anyone from a state not issuing Real IDs would have been barred from boarding a plane or entering a federal building.
Both the National Governors Association and the National Conference of State Legislatures have decried Real ID as a massive, unfunded mandate. The law is expected to cost at least $4 billion to implement, according to DHS, but less than $200 million in federal money has been set aside for the changeover. States may use their federal homeland-security money for Real ID, but many governors object.
"It makes our state less homeland-secure," said South Carolina Gov. Mark Sanford, "because while we don't know if we're going to get struck by a terrorist, what we do unquestionably know is that we are going to get struck by another hurricane." In an April 3 letter to members of Congress, the Republican governor called Real ID "the worst piece of legislation I have seen during the 15 years I have been engaged in the political process."
Sen. Daniel Akaka, D-Hawaii, has introduced legislation to repeal Real ID and return to the drawing board by having the negotiations on the issue that were skipped three years ago. Akaka and other critics of Real ID warn that it would create an extraordinary target for hackers and ID thieves: a huge new database loaded with personal information. That's because the states would be forced to link their databases in order to enforce the law's ban on drivers holding licenses from more than one state.
"We believe that this, if ever implemented, is the coming national ID card system," said Tim Sparapani, senior legislative counsel at the ACLU. Bush administration officials strongly disagree. "The notion that there's going to be a national database is just wrong," said Stewart Baker, assistant secretary for policy at DHS. Only "a very narrow" number of state employees will be able to check the databases, and those databases have proven fairly resistant to tampering, he said. Because of the threats posed by terrorism and identity theft, Baker continued, "there's an enthusiasm for good ID that, I think, is going to continue to grow."
Of course, his department's current deadline for final implementation isn't until December 1, 2017, more than 16 years after the 9/11 attacks.
As a government contractor whose job demands frequent plane flights, Kathy Stauffer has little patience for long airport lines. Last year she got particularly tired of missing the shuttle between New York City and Washington because she was stuck in security.
So this year Stauffer voluntarily subjected herself to an exhaustive government background check; allowed an index finger and an iris to be digitally scanned; and ponied up $128 for a high-tech biometric ID known as a Clear card. Now Stauffer simply waves her Clear card, places an index finger on a screen, and sails through airport security in less than 10 minutes. "I think the benefits I am getting from this are worth taking what I perceive as a very small amount of risk," said Stauffer, 37, who lives in Arlington, Va.
Verified Identity Pass, which provides the Clear card, has sold it to 175,000 travelers. Company officials estimate that as many as 10 million people will eventually want it. Experts applaud the company's strict privacy guarantee and its pledge not to track where customers use the card. "If the government came to us and said, 'We want to know where Joe Smith's using his Clear card,' we wouldn't have that information," said the company's CEO, Steven Brill. He got the idea for the card while researching his post-9/11 book, After, and seeing firsthand how tough it was for disparate federal agencies to work together on security.
But the Clear card's very popularity points up the problems plaguing U.S. travel ID regulations. It also illustrates that security checks have become so grueling that thousands of passengers are willing to accept onetime intrusive and costly burdens to avoid them. Concern is growing on Capitol Hill over the administration's travel ID rules, which lawmakers on both sides of the aisle say are chaotic, confusing, and ineffective.
The latest controversy involves the Western Hemisphere Travel Initiative. In January 2007 it began requiring all air travelers arriving in the United States to have passports; it will next require some form of approved ID for those crossing U.S. borders by land and sea from Canada, Mexico, or the Caribbean. DHS has published its final rules for the initiative, but Congress has postponed implementation until next June 1. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who pushed for the delay, has warned that DHS lacks the infrastructure to implement the new regulations without disrupting commerce.
Leahy and other critics also complain that the new U.S. passport card and the enhanced driver's license, which can be used for land and sea crossings but not for air travel, will contain a radio-frequency identification chip. Such chips, which can be scanned up to 30 feet away, could actually increase security threats, according to the Secure ID Coalition, which represents companies in the digital security business.
The chips "are vulnerable to skimming, cloning, spoofing, and denial-of-service attacks that will enable terrorists to exploit these vulnerabilities and render our borders less secure than they are today," the coalition wrote in public comments to DHS. A better model, it maintains, is the Transportation Worker Identification Credential, a biometric smart card being issued to all U.S. port workers.
"All that the RFID chip will contain is a number," countered Assistant DHS Secretary Baker. That number means nothing until it's punched into a secure government database, he said. Baker added that using such cards is voluntary and that anyone worried about the card being scanned unlawfully could shield it or carry an alternative ID, such as a passport.
But critics cite those alternatives as yet another problem: A host of federal agencies, including Homeland Security, the Transportation Security Administration, and U.S. Customs and Border Protection are handing out various types of travel IDs with little coordination or public education. In addition to the passport card and the enhanced driver's license, land and sea travelers may show a FAST card, a SENTRI card, a NEXUS card, or a border crossing card. (See box, p. 24.)
These complicated schemes are driving travelers away from U.S. borders, warns Roger Dow, president and CEO of the Travel Industry Association. The country has seen an alarming drop in travelers from overseas since the 9/11 attacks, according to Dow. "Let's get the right IDs; let's get them [explained] and distributed in a proper manner," he said. "And we are not doing that. There is confusion."
Arizona businessman Mitchell Laird says he is all in favor of making sure that the workers he employs are legal residents of the United States. But, he complains, the state law that requires him to do the background checks is costing him too much time and money.
"We've been forced to be the immigration-enforcement entity for the federal and state government," said Laird, president and CEO of MCL Enterprises, which owns and operates 24 Burger King restaurants around the state. MCL makes 900 to 1,000 new hires a year for low-wage jobs that can be hard to fill, Laird says.
Under the Legal Arizona Workers Act, which took effect in January, Laird must determine the residency status of his new hires through the federal government's E-Verify program. E-Verify allows employers to check a worker's Social Security number and citizenship or alien status against federal databases.
The problem for Laird is that Social Security databases have about a 4 percent error rate, according to the Social Security Administration. And if Laird--knowingly or not--employs an unauthorized worker, he could lose his business license. "I think if the law is enforced strictly, the way it is written, it could bankrupt the state of Arizona," he warned.
The U.S. Chamber of Commerce, along with Hispanic activists, is challenging the Arizona law in federal court, arguing that immigration enforcement is a federal function. The chamber has filed several similar suits around the country challenging E-Verify laws, which have been adopted in Colorado, Oklahoma, and Pennsylvania.
House Republicans are circulating a discharge petition to force a floor vote on the Secure America Through Verification and Enforcement Act, which was introduced by Rep. Heath Shuler, D-N.C. The act would require all employers to verify that their workers are in the U.S. legally. Shuler calls his bill a commonsense, bipartisan solution to the problem of illegal immigration. Meanwhile, Rep. Sam Johnson, R-Texas, has introduced the New Employee Verification Act, which would put the Social Security Administration in charge of monitoring the work status of American citizens and place DHS in charge of verifying the legal status of immigrants. "This is a federal issue and should be addressed federally," Johnson told National Journal.
A recent Bush executive order requires employers who do business with the federal government to check their workers' legal status through E-Verify.
Mandating that employers use E-Verify could encourage discrimination, particularly against Hispanic citizens and legal residents, says John Amaya, legislative staff attorney with the Mexican American Legal Defense and Educational Fund. He estimates that the 4 percent error rate in Social Security numbers translates into incorrect data for 17.8 million workers. The current E-Verify program lacks an appeals process, critics note; and if it were expanded, the program would put huge new burdens on the Social Security Administration.
Nevertheless, the sponsor of the Arizona law maintains that it is a success. "I think it is working," GOP state Rep. Russell Pearce told The Arizona Daily Star. "Employers, they are much more vigilant in their hiring practices. I've heard it from all over the state."
Still, there are indications that Arizona now faces a shortage of certain types of workers. The Legislature recently took up a bill that would establish a temporary pilot program for guest workers.
When 81-year-old Indiana resident Theresa Clemente learned that her state had passed a strict new voter ID requirement, she headed for the nearest Bureau of Motor Vehicles office to have her photo taken. Clemente does not drive, but the 2005 law requires voters to show a state-issued photo ID.
She was repeatedly sent home with no ID. The first time Clemente went to the office, she had a copy of her Massachusetts birth certificate but was told she needed an original. The second time, she presented an original, which cost her $28, but was told she also needed her marriage license. (Her birth certificate, of course, did not list her married name.)
To Clemente, whose story was submitted to the Supreme Court during the challenge to Indiana's law, the process was "humiliating, time-consuming, and extremely frustrating." In the end, however, she did walk away with a photo ID. As she told National Journal, "I was determined to get it. I have not missed voting in my whole voting life."
Clemente's experience illustrates both sides of the bitter voter ID battle. Critics say that photo ID laws, which have taken effect in a handful of states and are pending in several others, disenfranchise large blocs of voters: nondrivers such as Clemente, the disabled, students, the elderly, low-income workers, and minorities. "We're missing millions and millions of Americans who fall on the other side of the ID divide," Peter Swire, a senior fellow at the Center for American Progress, said at a June 2 event to unveil a major report critical of a host of new ID requirements.
Yet Clemente finally managed to vote, undermining the argument of the groups that challenged the Indiana law in Crawford v. Marion County Election Board. They could point to no examples of voters being turned away from the polls for lack of an ID. In upholding the law on April 28, the high court cited the need to restore voter confidence in the election process.
Critics of Indiana's law maintain that voter fraud is almost nonexistent and that the few instances of it usually involve mail-in ballots, a situation that won't be addressed by a requirement that voters show a photo ID at the polls. Experts differ wildly on the extent of voter fraud and on how many voters lack photo IDs. Partisan splits have defined the debate, with Democrats arguing that voters will be shut out and Republicans warning that votes will be stolen.
The law could eventually end up back at the Supreme Court. The justices in the majority left open the possibility of taking a second look at Indiana's statute if greater evidence surfaces of a burden on voting rights. Less than a month after the Court's ruling, a dozen elderly nuns were barred from voting in Indiana's Democratic primary because they lacked photo IDs. The Indiana League of Women Voters has already filed a second challenge to the law.
Some experts are convinced that a national, biometric ID card is the answer to the simmering "identity" crisis. "Right now, we are proceeding in hundreds of different ways, for dozens of different IDs, at tremendous expense," said Robert Pastor, co-director of the Center for Democracy and Election Management at American University. It makes more sense to "do it right, once," he maintains.
Pastor's AU colleague Curtis Gans, who heads the university's Center for the Study of the American Electorate, wants to establish a high-level, bipartisan commission to examine the issue of a mandatory biometric government ID. At least theoretically, Americans are receptive, polling shows. Gans is a vigorous advocate: "If we set up this national biometric ID, we could get rid of identity theft; we could deal with immigration better than the feds; we could provide for success in criminal prosecution and exoneration; we might constructively use it for medical records; we could eliminate the need for physical enumeration in the census. The uses are many and manifold, including the voting process."
But a growing number of scientists and privacy experts insist that requiring a single ID for multiple purposes would actually make Americans less safe. Skeptics liken a national ID to using a skeleton key for one's office, home, and safe deposit box: Lose it--or have it stolen--and you're vulnerable everywhere. The better model, they argue, is using multiple IDs for discrete uses, just as most people carry several keys.
"Uniformity in IDs across the country would create economies of scale" for prying eyes, warns Jim Harper, director of information policy studies at the Cato Institute and author of Identity Crisis: How Identification Is Overused and Misunderstood. "We want to prevent that uniformity. We want to prevent the tools for that surveillance society from being built."
Harper contends, "There's no practical way in a free country to defeat identity fraud." Illegal immigrants, terrorists, and garden-variety criminals forge birth certificates, Social Security cards, and other IDs all too easily, he notes. Reports abound, moreover, of motor vehicle department officials accepting bribes to assist fraud rings.
"Try to prevent it by locking down everybody's ID, and you have to build this cradle-to-grave biometric tracking system," Harper said.
Opponents of strict ID rules are quick to invoke the danger of an Orwellian, show-me-your-papers scenario reminiscent of Nazi Germany or South Africa under apartheid. "We're investing these federal agencies with an unprecedented level of authority to decide: Can we work, can we fly?" said Peter Zamora, the Washington, D.C., regional counsel for the Mexican American Legal Defense and Educational Fund. "And these are agencies that have not been proven to be flawless."
But even in the absence of a national ID, Americans will likely find that in more and more places they will be asked, "May I see your ID?"