The REAL-ID Act of 2005

[Excerpt from the REAL-ID Act of 2005]

What is the REAL-ID Act?

The REAL-ID Act of 2005 is a Federal law that was hastily enacted by Congress, with almost no debate, during the period of panic after 9/11. States almost immediately realized that it would be expensive to implement and would violate individual rights. But Congress has been unwilling to admit its mistake and repeal the law.

What is the purpose of the REAL-ID Act?

The purpose of the REAL-ID Act is to pressure states to upload information about all their residents to a central database, creating the first-ever aggregated national ID database.

The  REAL-ID Act provides that, “To meet the requirements of this section, a State
shall… Provide electronic access to all other States to information contained in the motor vehicle database of the State [and] maintain a State motor vehicle database that contains, at a minimum… all data fields printed on drivers’ licenses and identification cards issued by the State.”

Pursuant to this provision of the law, information about all licenses and IDs must be shared, including information about “noncompliant” licenses and IDs.

The REAL-ID Act also requires compliant states to make and retain copies of specific documents from each applicant for a compliant license, including certified copies of birth certificates and an official paper trail of any name changes. This is difficult or impossible for many people to comply with, especially people who have made legal common-law name changes without needing court approval, and older women who may have changed their name, perhaps several times, when they were married or divorced, but who don’t have ready access to all of the original marriage and divorce records.

The TSA also hopes to use the REAL-ID Act as the pretext for a national digital ID for use on the Internet and for other purposes unrelated to transportation.

Is compliance with the REAL-ID Act mandatory?

No. The Federal government has no authority to dictate state driver’s licensing procedures. States don’t have to comply with the REAL-ID Act. But the Federal government has threatened to punish residents of noncompliant states, or individuals in compliant states who chose “noncompliant” drivers’ licenses, by illegally preventing them from flying.

Is REAL-ID required to fly? Will it be required?

No. No ID has been or will be required to fly. The consistent position of the TSA in court has been that no Federal law or regulation requires airline passengers to have or show any ID.  Thousands of people fly without ID, or ewith “unacceptable” ID, every day. See our FAQ on the TSA procedures for flying  with no ID or with “unbacceptable” ID, which have not been changed by the REAL-ID Act. The REAL-ID Act pertains only to circumstances in which ID is required by Federal law, which doesn’t include travel by common carriers such as airlines.

Will the REAL-ID Act make us safer?

No. Whether people have ID, or what ID they have, has nothing to do with whether they are dangerous. The US government has “pre-cogs” and no “pre-crime” system that can predict or compile a list of names of people who will do bad things in the future. The US no-fly list of more than  a million names is mostly just a Muslim-ban list.

Will the REAL-ID Act stop “illegal aliens” from flying?

No. Most foreigners in the US, regardless of immigration status, have foreign passports. Any passport is considered REAL-ID compliant ID, regardless of immigration status.

Is there a national REAL-ID database?

Yes. It’s called the State Pointer Exchange System (SPEXS), and it’s operated by the Association of American Motor Vehicle Administrators (AAMVA). By outsourcing the database to a nominally “private” entity, AAMVA, the Federal government and its collaborators in control and surveillance are able to claim that “there is no Federal database” because AAMVA isn’t a Federal agency. But a private national ID database aggrgated form state data is actually worse than a Federal one would be, since AAMVA isn’t subject to FOIA, the Privacy Act, or any of the other laws that apply to Federal agencies.

Can I opt out of the national ID database?

Not if your state chooses to comply with the REAL-ID Act. The REAL-ID Act requires that a state that wants to issue any compliant driver’s licenses or IDs has to share information (which in practice means uploading it to SPEXS) about all state-issued driver’s licenses and IDs, including noncompliant ones. So even if you get a noncompliant license, and think you have opted out, your information will still be added to AAMVA’s national ID database.

What can we do about the REAL-ID Act?

Congress can repeal the REAL-ID Act. States can chose not to comply. Individuals can resist. For what it’s worth, a US passport card is valid for any purpose — except operating a motor vehicle — for which a REAL-ID is valid, and for land travel between the US, Mexico, and Canada. A passport card is generally easier to get, valid for longer, and in many states cheaper over time than a REAL-ID Act compliant driver’s license or state ID. If your only reason to get a REAL-ID is air travel, you can fly without ID or without REAL-ID.