Feb 01 2016

REAL-ID Act “opt-outs” and “two-tier” ID systems

Under the pressure of empty (but scary) threats by the Federal government to harass residents of states whose governments the DHS doesn’t deem sufficiently “compliant” with the REAL-ID Act of 2005, many state governments are trying to find ways to “comply” with DHS desires without selling out their residents’ rights.

State legislatures in New Hampshire, New Mexico, Minnesota, Oklahoma, and Missouri, among others, are currently considering bills that would create “two-tier” systems of compliant and noncompliant driver’s licenses and state ID cards in, and would allow individual residents of those states to “opt out” of having driver’s licenses or state IUD cards that comply with the REAL-ID Act.

Some of the sponsors of these bills mean well, but what they are proposing — whether or not they realize it — is capitulation, not compromise.  Worse, these”two-tier” systems would give state residents who “opt out” of having a compliant license an illusion of security, while their personal information from state records would in fact be included in the nationally distributed ID database.

In order to put a gold star for REAL-ID Act compliance on anyone’s driver’s license or state ID card, the REAL-ID Act requires each state to make its entire database of information about all holders of driver’s licenses and state ID cards accessible to all other states and territories.  States can choose to issue noncompliant ID cards without the gold star to individuals who opt out of providing birth certificates and other documents or complying with other provisions of the REAL-ID Act. But the Federal law doesn’t let states give individuals a choice about having their information in the database.

In order for anyone in a state to get a compliant license or state ID card, information about everyone with any sort of driver’s license or state-issued ID card must be included in the database made available to all other states and territories.

As soon as a state issues its first gold-starred license or ID, it is committed to share its entire database of information about everyone with any sort of state-issued ID card. The only way for a state to opt-out of the REAL-ID Act distributed national ID database is not to issue any compliant licenses or ID cards.

The DHS hasn’t included compliance with the database access provisions of the REAL-ID Act in its discretionary criteria for granting states temporary transitional certifications of “material progress” toward compliance, or extensions of time to comply fully. But eventually, once the DHS deems the transitional period over and begins to base its decisions on full compliance, the Federal law leaves it no more discretion. States will then have to decide either to not to comply and to invalidate all the gold-star licenses they have issues during the transition period, or to comply and give all other states access to information about all state license or ID holders, including those with noncompliant cards who think they have “opted out” of national database access.

Many of the sponsors of these “opt-out” bills say they oppose the REAL-ID Act, but want to provide a “choice” for residents who “need” a REAl-ID Act compliant ID. Who exactly are these people, and why do they “need” compliant state-issued ID cards? Read More