Jan 05 2018

A REAL-ID Christmas present from the California DMV

On the Friday before Christmas Monday, when state officials hoped that everyone who might object would be sleeping, the California Department of Motor Vehicles finalized its regulations for partial compliance by the state with the Federal REAL-ID Act of 2005.

The final regulations and a statement of responses to public testimony and comments were posted on the DMV website on December 22, 2017, and went into effect the same day.

The final regulations are essentially unchanged from those the DMV proposed in September 2017, and that we objected to in written comments and in-person testimony at the DMV’s one hearing on the proposal in Sacramento in October.

The DMV’s response to public testimony and comments brushes off our objections, and the objections by other commenters and witnesses, on the basis of repeated invocation of patently false and/or irrelevant and unresponsive legal and factual claims.

In response to our comment that no law or regulation currently requires air travelers to show any ID, the DMV cites the provision of the REAL-ID Act that prohibits “acceptance” of noncompliant ID. But this is unresponsive to our objection, and irrelevant to whether the REAL-ID Act or any other law requires air travelers to show any ID.

The REAL-ID Act does not impose any requirement for ID to fly. The REAL-ID Act only affects which ID credentials may be “accepted” by Federal agencies, in circumstances where individuals are required by some valid law or regulation to show some ID credentials.

In spite of false and misleading notices on the TSA and DHS websites, signs in airports (which the TSA has admitted are inaccurate), and widespread belief in the myth that ID is required to travel by air, the consistent position of the TSA in court has been that it is not. The TSA’s responses to our FOIA requests show that hundreds of people fly every day without showing “acceptable” ID, or without showing any ID at all.

Even when we called the DMV on its misstatement of Federal law on ID to fly, the DMV failed to respond with any Federal or state law or regulation that purports to require any ID to fly.

We can’t overstate the significance of the California DMV’s misstatement of the law on ID to fly: The DMV’s entire purported rationale for having the state partially comply with the REAL-ID Act is that, as stated by the DMV in response to our objections, “not complying posed a serious threat to California citizens’ ability to access commercial aviation.”

Federal agencies have made such threats. But Federal threats to interfere with air travel by California residents have no basis in law. The DMV cites no legal basis for such a Federal threat, and gives no reason for dismissing out of hand the alternative we recommended of litigation by the state to defend state residents against any attempt by Federal agencies or agents to carry out such a threat of unlawful interference with Californians’ rights to freedom of travel, assembly, and movement.

It doesn’t really matter whether the DMV is genuinely obtuse or legally incompetent, or is deliberately misleading the public about what the law does and doesn’t require. California residents and the state legislature should reject these false and completely unsupported claims, and the regulations being imposed on the basis of them.

In response to our objections to participation by California in the SPEXS national ID database being set up to enable states that choose to comply with the REAL-ID Act to satisfy the requirement for nationwide sharing of ID data, the DMV says that, “The federal REAL ID regulations do not address the creation of a federal database.”

This DMV response is a misleading half-truth that misstates our objection: As we noted in our comments and testimony, the requirement for nationwide sharing of state ID data is in the REAL-ID statute, not the REAL-ID regulations.

The national ID database has been built and is being operated by a nominally private contractor and subcontractor, not directly controlled or limited by any Federal regulations and not subject to any Federal or state FOIA or other transparency laws. That’s part of the problem, as we and other  commenters pointed out to the California DMV.

In response to our objections, the DMV says that, “Documents maintained by the state regarding the conduct of public business, unless specifically exempted, is subject to disclosure under the California Public Records Act. The comment does not identify how such records would be exempt from disclosure.” But the objection in our comments wasn’t that records maintained by the state would be exempt. Rather, our objection was, and remains unrebutted, that records maintained by the contractor and subcontractor to which the national ID database has been outsourced will be outside the reach of state and Federal transparency and accountability laws.

More fundamentally, our objection is to the California DMV uploading data about all holders of drivers licenses and state ID cards to a national ID database, not to whether participation in that national  ID database is required by statute or by regulation or whether it is merely implicit in the requirement for any compliant state to share all its ID data about its residents with all other states.

The DMV’s only response to our state and federal Constitutional objections to this data sharing and to participation in the national database that enables it is the claim that, “Civ. Code Sec. 1798 et seq. specifically allows the DMV to disclose personal information maintained in its records to another governmental entity when required by federal law.”

State law, of course, can trump neither the state nor the Federal constitution. So this is unresponsive to our state and Federal Constitutional objections to the DMV  proposal.

In any case, Civil Code Section 1798 applies only to actions required by Federal law, and therefore is inapplicable to the REAL-ID Act. Although both the DHS and the DMV have sometimes contradicted themselves, both the Federal and state agencies have admitted that the REAL-ID Act does not, and cannot, require California or any other states to take any action. The “requirements” for state compliance with the REAl-ID Act specify what a state must do to comply, if that state voluntarily chooses to comply.

All of our state and Federal Constitutional objections to (voluntary) compliance with the REAL-ID Act  by the state of California remain unanswered. No competent DMV attorney could possibly believe that California Civil Code Section 1798 or any other action of the state legislature could take precedence over the state or Federal Constitution. And any claim that states are “required” to comply with the REAL-ID Act misstates the law.

Finally, the California DMV brushed off our objections to the practical burdens and costs that its new regulations would impose. California residents who would have to chase down birth, marriage, or other records from other states or, in the case of immigrants, from around the world.  The “Catch 22” horror stories we’ve been hearing for years from residents of other states that have implemented these sorts of documentation requirements for issuance or renewal of drivers licenses or state ID cards will now come to California.

Apparently, the DMV thinks that as long as it claims this authority, the extent to which it burdens state residents or imposes costs on their exercise of rights is irrelevant.

The new California DMV regulations only deal with document requirements and issuance procedures for drivers licenses and state ID cards. The new regulations do not and will not bring  California into compliance with the REAL-ID Act. Compliance would require sharing information about all drivers licenses and ID cards in the state’s database with all other states.

It remains unclear whether or when the California DMV plans to join the SPEXS national ID database or upload information about California residents. It’s also unclear whether the DMV would do that by administrative fiat without any public consultation or notice , or through rulemaking and regulations, or whether or in the context of what other legislation the DMV will seek approval for this from the state legislature.

It’s clear from the issuance of these final regulations that the California DMV is intent on collaboration with Federal desires for greater control of our movements. As such, the DMV is a rogue agency out of sync with the sentiments of California residents, and the positions with respect to Federal overreach and interference with state choices that have been taken by many California politicians. The state’s legislature and the courts need to take action to explicitly override these regulations and to uphold the Federal and state Constitutions.  And Californians should challenge any infringement of their rights.

4 thoughts on “A REAL-ID Christmas present from the California DMV

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