Is gradual implementation of the REAL-ID Act cooking us slowly, like frogs who, if the temperature of the water is increased gradually enough, don’t realize that they need to jump out of the pot until it’s too late?

Last month was another of the deadlines set by the Department of Homeland Security for “implementation” and “enforcement” of the REAL-ID Act.  That also makes it time for stepped-up resistance to REAL-ID.

Understanding the meaning of this deadline, and the remaining deadlines to come, requires some background. Below is an overview of what the REAL-ID Act is, how and by whom it will be implemented and enforced, what it means to “comply” with the REAL-ID Act, what we can expect to happen next, and — perphaps most importantly — what we can do, now, to resist it.

[See this 15-minute video for an introduction to the REAL-ID Act, and the REAL-ID category in this blog for more recent updates.]

The REAL-ID Act of 2005 is a Federal law intended to mandate the creation of a distributed but integrated national database of personal identity records (including birth certificates or alternative “breeder documents” [sic]) linked to state-issued identity credentials. The REAL-ID Act also includes Federal standards for the physical ID cards, including drivers’ licenses or alternative non-driver ID cards, issued by US states and territories. But the real focus is on the database: what data will be included and how it will be normalized and made accessible through a single user query interface.

The Federal government can, and often does, bribe states with Federal funding to do things the way the Feds want. But the REAL-ID Act didn’t include funding for state-level implementation, and was based (like many other DHS programs, such as its multi-billion dollar mandates for modifications to airline IT systems to support surveillance and control of air travelers) on gross underestimates of its cost. In any event, some states strongly opposed the whole idea of a national ID scheme, and would probably have declined to participate even if the Feds had been willing to foot the bill.

The states already manage the issuance of drivers’ licenses and non-driver ID cards, which are most US citizens’ primary government-issued identity credentials.  Setting up a Federally-administered ID credential system would have been vastly more expensive and politically controversial than leaving it to the states.

So the problem for the architects of “REAL-ID” was how to induce all the states and territories to “comply” with goals and standards that would neither be officially binding on the states, nor financed by the Feds.

The workaround for indirect coercion of state governments was to threaten Federal sanctions against individual residents of states that don’t comply with the REAL-ID Act. The sponsors of REAL-ID hoped that these threats would scare voters into lobbying their state legislators’ to bring their states into line with the Feds’ desires.

The REAL-ID Act doesn’t officially “require” states or individuals to do anything.  Its “enforcement” mechanism is a prohibition on acceptance for “Federal purposes” of drivers’ licenses or other ID credentials issued by states or territories that don’t comply with the requirements in the Federal law and the implementing regulations issued by the DHS.

There was still a problem for the DHS and the other backers of REAL-ID, however: How to make the threat of sanctions against residents of “noncompliant” states sufficiently harsh and sufficiently credible to get them to pressure their state governments to comply, without catalyzing a mass movement of grassroots resistance by outraged victims (or potential victims, or their supporters) of those sanctions.

The strategy adopted by the DHS has been to phase in the sanctions very gradually, over a period of many years, starting with those which would have the least significant consequences.  The problem for the DHS is that those threats which are most intimidating are those which would be most likely to provoke blowback against the Feds, and lead to more pressure on Congress to repeal the REAL-ID Act. The result has been a decade-long game of chicken between the DHS and reluctant or resistant state governments.

The DHS won’t (and politically can’t) admit the possibility that states won’t kowtow to its demands. State legislators can’t believe that the DHS would really be able to get away with denying access to Federally-controlled facilities and programs (more on that below) to all residents of noncompliant states, as well as residents of compliant states who are unable and/or unwilling to satisfy the documentary prerequisites for issuance of a REAL-ID compliant ID card.

When states haven’t complied — because they didn’t want to, or because they couldnt’t afford to, or because it was taking longer than expected to develop the infrastructure for the distributed database  — the DHS postponed the deadlines.

It’s been a decade since the REAL-ID act of 2005 was enacted, and most residents of “noncompliant” states have yet to be subjected to any Federal consequences for not having a REAL-ID card.  The criterion for “compliance” is political obeisance and stated or inferred intent, not action. All states that said they intended eventually to comply were deemed to be “compliant”, and given extensions of time to get with the program in practice. Even some states which enacted state laws prohibiting state agencies from implementing REAL-ID procedures have been “certified” by the DHS to be in “constructive compliance” with the required intent to comply.

Is this DHS certiification wishful thinking? What will these states do as the deadlines approach? That remains to be seen, and depends primarily on what individual residents of those states do.

Read More →