Zebra 3 Report by Joe Anybody
Wednesday, 9 May 2007
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Hello My Friendly Neighborhood Z3 Readers,

I just found this today in the "news"

Big Brother National ID Card story link:



EDITORIAL - U.S. policymakers have long rejected a national ID as inconsistent with American freedom. Ordinary people, it has long been believed, should not have to carry a card as if they are criminal suspects and they should not be asked to account to authorities for their whereabouts or activities.

"...as the federal government has grown in size and scope, its desire to track and monitor citizens has increased."
Nonetheless, as the federal government has grown in size and scope, its desire to track and monitor citizens has increased. To administer increasingly complex tax laws and expanding entitlements, the government has come to need more and more information about citizens and more and more assurance of who is who.

The Social Security Number, originally created solely to administer the Social Security System, has taken on much of this role. Today, it is used throughout the public and private sector to distinctly identify people. Recent laws have required or encouraged parents to get SSNs even for their very young children. The SSN is our national identifier.

Meanwhile, because of the vast terrain our country covers, nearly everyone must carry a driver's license. Departments of Motor Vehicles have fallen naturally into the role of providing not only this authorization to drive, but also cards for people who need some proof of who they are.

With the REAL ID Act, the federal government is seeking to combine these two identifiers and proof of lawful presence on American soil in a federal identification card and database system. States that do not accord their driver licensing and identification card systems to federal standards will find that their residents can not use state-issued cards for a variety of federal purposes.

How REAL ID Was Passed

In early 2005, Congress' regular appropriation for military actions in Iraq and Afghanistan was giving out. Legislation was pending to provide the Defense Department more money — and to fund aid efforts after the devastating tsunami that hit the Indian Ocean at the end of 2004. It was clear that this $82 billion spending bill would pass. Opposition to it, even principled responses to important details, could easily be spun as "not supporting the troops."

Consistent with usual practice, the Iraq spending bill came before the Rules Committee on its way to the floor of the House of Representatives. But the Committee added a curious note to the rule governing debate on the bill. The Committee instructed the Clerk of the House to append the text of a different bill at the end once the bill had passed the House.1 This new bill was the "REAL ID Act."2 It would not be open to amendment or separate consideration on the floor of the House of Representatives.

Why would the Rules Committee append an unrelated bill to a military spending measure? It is widely speculated that in the previous Congress a powerful House committee chairman had held up intelligence reform legislation, releasing it only with a promise from House leadership that his preferred vision for a U.S. national ID would be passed early in the next Congress. Whatever the case, the military spending bill with REAL ID's new identification provisions passed by overwhelming margins in both the House and Senate. It was not considered in any hearing and was not the subject of a separate vote in the Senate. REAL ID repealed identification security provisions that had passed into law as part of the 9/11 Commission-inspired Intelligence Reform and Terrorism Prevention Act.

REAL ID Requirements

The REAL ID Act seeks to force states to issue drivers' licenses and identification cards consistent with federal standards. There are three steps in the process by which a typical government-issued identification card communicates information from an ID subject to a verifier, and REAL ID affects two of the three:

First, the ID subject communicates information to the card issuer. For example, a state resident submits information to the Department of Motor Vehicles.

Next, the issuer produces the identification card, which communicates information to the verifier. When a motor vehicle bureau produces a card, that provides information to whomever may check it.

Finally, the verifier compares the identifiers on the card to the ID subject. A law enforcement officer, for example, may look at a card and check the picture against the person he has pulled over.

If the identifiers and the ID subject match up, the information on the card is accepted as true and the ID subject is identified. Each of these steps is a point of weakness, though, and the REAL ID Act addresses two of them.

Data Veracity

The obvious weakness in the first step is that ID subjects are allowed to submit the information that goes into the card. The information on the card can be falsified. The REAL ID Act addresses this several different ways. First, it mandates collection of four different items of information:

* A photo identity document, except that a non-photo identity document is acceptable if it includes both the person's full legal name and date of birth;

* Documentation showing the person's date of birth;

* Proof of the person's social security account number or verification that the person is not eligible for a social security account number; and

* Documentation showing the person's name and address of principal residence.3

Along with increasing the number of identifiers, REAL ID also requires evidence of lawful status4 — that is, the legal right to be in the country. It requires states to issue temporary cards, marked as such conspicuously, to anyone temporarily in the country.5

Further, the REAL ID Act requires DMVs to capture digital copies of source documents and retain paper copies for seven years, images for ten years.6 DMVs can no longer accept foreign documents other than passports. Each person applying for a driver's license or identification is also subject to "mandatory facial image capture."7

The REAL ID Act also requires DMVs to verify "with the issuing agency, the issuance, validity, and completeness of each document" presented.8 At a potentially huge expense — few institutions have the resources or infrastructure to confirm their authorship of documents — this could suppress the easiest attack on data veracity: presenting DMV workers with fraudulent identifiers.

The REAL ID Act also sought to suppress fraud on DMVs by improving their employees' ability to detect false identifiers. Among other things, it requires states to "[e]stablish fraudulent document recognition training programs for appropriate employees engaged in the issuance of drivers' licenses and identification cards."9

If carried out properly, each of these steps would make it harder for ID subjects to inject false information into new identification cards and drivers' licenses. With constant oversight, they would make it harder to defraud DMVs.

The REAL ID Act also requires confirmation of some of the information a card applicant submits. It requires states to routinely utilize the Systematic Alien Verification for Entitlements system, which confirms the legal presence of foreigners in the country.10 It also requires them to confirm Social Security numbers with the Social Security Administration. In the event a Social Security number is already associated with another license or identification card, the state must "resolve the discrepancy."11

These processes attempt to use information held by governments to check the identifiers proffered by an ID subject. They help reduce one or two avenues for fraud.

Card Security

The REAL ID Act did a few things to address the security of identification cards, as well. It requires state-issued driver's licenses and identification cards to use physical security features designed to prevent tampering, counterfeiting, or duplication of documents for fraudulent purposes.12 It requires physical security features at the locations where drivers' licenses are produced. And it requires security to protect the materials and papers from which the documents are produced.13 The REAL ID Act also requires "appropriate security clearance requirements" for people who manufacture or produce driver's licenses.

Digital Identification

The REAL ID Act also calls for "[a] common machine-readable technology."14 Regulations fleshing out the Act were issued March 9th and they provisionally selected a 2D bar code. Plans are underway in some states to embed licenses with computer chips that will communicate information about the bearer by radio. The use of radio frequency identification (RFID) to track people is controversial, but RFID-chipped identity documents are being established, such as the U.S. State Department's new e-passport.

Complying with the REAL ID Act will require states to retool their identification card practices a great deal, particularly with respect to the information that they use to issue licenses and cards. The mandates in the REAL ID Act could be quite large.

The Costs of Complying with the REAL ID Act

Estimates from a variety of states and groups show that the costs of complying with the REAL ID Act could range from substantial to staggering:

Former Virginia Governor Mark Warner's Task Force on the Real ID Act estimated start-up costs if Virginia participated in REAL ID ranging from $35 million to $169 million, and recurring costs from $1 million to $63 million per year. The Task Force expressed doubts that federal funds would cover all the costs of implementing the REAL ID Act.15

The budget director of Washington state's Department of Licensing has estimated that his state might need to spend $97 million during the next two years should it implement REAL ID.16

In a broader study, the National Conference of State Legislatures estimated that it would cost $9 billion nationwide for states to implement the REAL ID Act.17

Taxpayer group Citizens Against Government Waste has estimated costs as high as $15 billion dollars for full implementation of the REAL ID Act. This would push the cost of a driver's license from the $10-$25 range up to $90 or more.18

The DHS' own cost estimate placed the tally at over $17 billion.

States agreeing to participate in the REAL ID Act system are incurring an open-ended obligation to tune their driver's licensing and identification card processes to federal standards.

Other Costs of REAL ID

While the monetary costs of the REAL ID Act are substantial, there are other important costs. The REAL ID Act is a further step toward a national ID, which has significant costs in terms of privacy and security.

Today, more personal information is captured, stored, transferred, and used than it ever has been before. Information storage and processing techniques are only getting better. In the past, identification merely confirmed who a person was, but now identification systems are effective surveillance systems. They record people's locations and activities, making this information available to others long into the future. Being identified is becoming a record-keeping event.

This is concerning not just because of privacy — the fact that people's lives are more exposed to governments and corporations than ever before. It is also a threat to liberty.

Historically, oppressive governments have used identification time and time again to administer evil acts. Well known historical examples include Nazi Germany and the Soviet Union. Modern genocides like Rwanda's were facilitated by an identification card system. Uniform and centralized identification systems provide no failsafe in the event a democracy fails, or fails to protect liberty. A diverse identification system is more difficult to navigate. This makes it a bulwark of liberty.

Uniform identification systems are also too easy to navigate for crooks. Today, identity fraudsters are successfully exploiting the single-key identification system used by the government and financial services sector. Simply having access to a person's Social Security Number puts a criminal well on the way to impersonating his or her financial identity, defrauding merchants out of thousands of dollars, and ruining the credit of the victim.

These costs — to privacy, liberty, and personal security — are also significant considerations in the REAL ID Act. Because it is relying on the states to implement its national ID system, Congress has shifted these costs, along with the monetary ones, to state leaders rather than bearing the burdens themselves.

Does it Work?

Most people would happily bear these burdens if doing so would add to our nation's protections. Some might accept these costs as a way to control illegal immigration. But because Congress did not hold a hearing before creating this national ID, these issues have not been thoroughly vetted.

Identification is a powerful force as to willing participants in our economy and society, but it will generally have little influence over terrorists. They neither seek the benefits of our society nor are they deterred by knowing they will be held accountable after they act. Identifying people merely tells you who they are. It does not reveal their intentions.

The dynamic is similar in the case of illegal immigration. People who have entered the United States illegally are unlikely to be deterred by the prospect of violating one or two more laws so they can work. The existing market for false identification and the use of identity fraud by illegal aliens will grow if a national ID is used for domestic enforcement of immigration laws, such as by requiring all people to seek federal government approval to work.

There is overlap between these two issues, of course. The false identification system created by and for illegal immigrants could be used by terrorists to evade the identification-based security systems we have in this country. The use of identification as a national security tool, or as an immigration law enforcement tool, is a minefield of difficult issues that require a great deal of study.

Where REAL ID is Going

The future of the REAL ID Act is uncertain. Department of Homeland Security regulations issued March 9th essentially "punted" on the most difficult technical, security, and privacy issues associated with the law. The regulations offered states a "golden handcuffs" opportunity: if they commit to implementing REAL ID early, it will grant them an extension until December 2009 to implement the law. If they do not commit early, they are faced with the statutory May 2008 deadline.

While some states have taken some steps to comply with the REAL ID Act mandates they anticipate, other states have declined to do so, or signaled their outright refusal of the REAL ID Act's mandates.

The state of Alabama, for example, tried to get ahead of the REAL ID Act in late 2005 by having residents conform the names on their licenses to the records held by the Social Security Administration. Alabama officials sent out 65,000 letters to residents asking them to have their licenses reissued before public outrage halted the program.19 Proposed legislation in California (SB 1160) is designed to comply with Real ID while providing drivers' licenses to undocumented immigrants. New Mexico's HB 852 aims to prevent undocumented immigrants from obtaining licenses. The state of Alaska, on the other hand, recently declined to pass legislation that would have begun compliance with the REAL ID Act.

In Maine and Idaho, both houses of the legislature have passed resolutions opposing REAL ID. Bills and resolutions rejecting the REAL ID Act are pending or have passed at least one house of the legislature in more than half of the states in the country.

Among the many issues that have come up in debates about the REAL ID Act, along with cost, are the consequences of refusing to accept this federal mandate on states. After May 2008, the law says that drivers' licenses and identification cards from states that do not comply with the Act will not be acceptable identification or any "official purpose." DHS regulations could alter what this means at any time, but the primary lever is the requirement that travelers show identification at airports.

In January 2006, a Ninth Circuit ruling showed that the TSA does not require identification at airports. Rather, travelers have an option between showing identification or being subject to secondary screening.20 Nonetheless, most people believe that identification is required to travel. State legislators have been concerned that, if their states have not come into compliance, the federal government might effectively shut down passenger air travel. This is a question of the federal authorities' willingness to make economic war against the states to force compliance — and whether the air transportation industry would not intervene with federal authorities long before there was such a showdown.

On the horizon, there are a variety of technologies and processes that may be able to get governments, corporations, consumers, and citizens all the benefits of identification without the costs in terms of privacy and surveillance. "Digital identity management" is the idea that technologies can be designed to share only the information needed in a transaction — and to destroy that data when it is no longer needed. Identification and credentialing may soon become an economic service just like payments, telecommunications, and credit reporting. Rather than a government monopoly on identification, a diverse competitive private industry may emerge to provide proper assurance of who a person is, and of other information needed to support transactions.


The REAL ID Act is a complex law whose contours and benefits have still not yet come into focus, though its costs are increasingly clear. This national ID program received little consideration in the federal Congress, but state legislators must now grapple with it, facing a May 2008 compliance deadline. In addition to significant monetary costs, the Act will threaten Americans' privacy, liberty, and personal security. The decision about whether this is appropriate turns on whether a national ID would be an effective addition to our protections against terrorism and illegal immigration.

A variety of states are struggling to implement the REAL ID Act. Others have decided to outright rebel from this federal mandate. Should the rebellion hold, the issue will move back to Congress, which may then be forced to have hearings and up-or-down votes on whether the United States government should require her citizens to carry a national ID card.



1 H. Res. 151 § 2 (109th Cong., 1st Sess.).

2 H.R. 418 (109th Cong., 1st Sess.).

3 Id. at § 202(c).

4 Id. at § 202(c)(2)(B).

5 Id. at § 202(c)(2)(C).

6 Id. at § 202(d)(1), (2).

7 Id. at § 202(d)(3).

8 Id. at § 202(c)(3).

9 Id. at §202(d)(9).

10 Id. at § 202(c)(3)(C).

11 Id. at § 202(d)(5).

12 Id. at § 202(b)(8).

13 Id. at § 202(d)(7).

14 Id. at § 202(b)(9).

15 Report: The Governor's Task Force on the REAL ID Act (December 29, 2005) .

16 States may face higher costs for Real ID, Federal Computer Week (August 19, 2005) .

17 Federal Preemption of State Authority a Disturbing Trend: Implementations of REAL ID Act to cost at least $9 billion, National Conference of State Legislatures (August 16, 2005) .

18 CAGW Issues Report on Real ID: DHS Regulations Could Cost Taxpayers, Threaten Privacy (October 18, 2005) .

19 Alabama Puts Brakes on License Notification, The Decatur Daily, Oct. 7, 2005

20 Gilmore v. Gonzales, 435 F.3d 1125 (2006).


Posted by Joe Anybody at 11:16 AM PDT
Updated: Wednesday, 9 May 2007 11:35 AM PDT

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