As we noted a month ago, the California Department of Motor Vehicles (DMV) is currently considering whether to amend state regulations on driver’s license and state ID cards to meet some, but not all, of the statutory criteria for “compliance” with the Federal REAL-ID Act of 2005.

States are not required to comply with this Federal law, but apparently the DMV hopes that if the state of California makes a show of partial compliance, the TSA and DHS won’t carry out some of their threats to unlawfully interfere with air travel by residents of California and other noncompliant states.

Comments on these proposals can be submitted to the DMV in writing until 5 p.m. Monday, October 16th, or in person at a public hearing on Monday at 10 a.m. in Sacramento. We encourage everyone concerned about ID demands and freedom to travel to submit written comments and/or come to the hearing.

We’ll be at the hearing on Monday to testify in person, and today we submitted more detailed written comments, which we introduce with the following summary:

The Identity Project (“PapersPlease.org”) welcomes the opportunity to submit these comments to the California Department of Motor Vehicles (DMV) concerning the Notice of Proposed Action for amendments to the California Code of Regulations related to drivers licenses and identification cards, OAL File Number 2017-0822-06.

The Notice of Proposed Action is, on its face, self-contradictory as to what is or is not “required” by Federal statute or regulations. In fact, the actions proposed by the DMV in the notice are not required. Neither the REAL-ID Act of 2005, the implementing regulations for that Act, nor any other current or proposed Federal law or regulations requires or will require airline passengers to to have or to show any ID. That Federal act does not, and cannot, require California or any state to take any action whatsoever. And no California statute requires the DMV or the state to comply with the REAL-ID Act.

On the other hand, if California were to choose to comply with the REAL-ID Act, compliance would require uploading personal information concerning each holder of a state issued driver’s license or ID card (including each holder of a “noncompliant” card) to a national ID database accessible to all other U.S. states and territories. Participation in the national ID database would entail additional expenses, adverse effects on the rights of California residents, and adverse economic impacts on individuals and on businesses including small businesses, which are omitted from the DMV’s analysis of its proposal.

The actions by the DMV which would be necessary in order for the state of California to comply with the REAL-ID Act, including participation in the national ID database (“SPEXS”), would violate provisions of the Constitution of the State of California with respect to both the right to privacy and the use of driver’s license fees.

The real issue is not that the state of California or the DMV are “required” to comply with the REAL-ID Act. They are not. The real issue is that the Federal government has threatened to interfere unlawfully with the rights of California residents to freedom of movement, assembly, and travel by common carrier.

Although these threats have no basis in current Federal law or regulations, and although it would violate the U.S. Constitution and human rights treaties ratified by the U.S. for the Federal government to carry out these threats, the DMV has failed to consider any alternative to capitulation to those threats. In particular, the DMV has failed to consider, much less to prepare for, litigation by the state of California to defend the rights of California residents against this threatened unlawful Federal interference.

The DMV should withdraw this unlawful proposal, and the DMV and the Attorney General of the state of California should redirect their efforts to preparing to defend the rights of any California residents whose rights to freedom of movement, assembly, or travel by common carrier are infringed by Federal agents or contractors.

Comments of the Identity Project: Driver’s Licenses and Identification Cards: Real ID (October 11, 2017)