REAL ID Act
Encyclopedia
The REAL ID Act of 2005, , was an Act of Congress
that modified U.S. federal law
pertaining to security
, authentication
, and issuance procedures standards for the state
driver's license
s and identification (ID) cards, as well as various immigration
issues pertaining to terrorism
.
The law set forth certain requirements for state driver's licenses and ID cards to be accepted by the federal government for "official purposes", as defined by the Secretary of Homeland Security
. The Secretary of Homeland Security has currently defined "official purposes" as presenting state driver's licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants.
The REAL ID Act implements the following:
As of April 2, 2008, all 50 states
have either applied for extensions of the original May 11, 2008 compliance deadline or received unsolicited extensions. , 25 states have approved either resolutions or binding legislation not to participate in the program, and with President Obama's selection of Janet Napolitano
(a prominent critic of the program) to head the Department of Homeland Security, the future of the law remains uncertain, and bills have been introduced into Congress to amend or repeal it. The most recent of these, dubbed PASS ID
, would eliminate many of the more burdensome technological requirements but still require states to meet federal standards in order to have their ID cards accepted by federal agencies.
, the author of the original Real ID Act, then attached it as a rider on a military spending bill, , the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The House of Representatives passed that spending bill with the Real ID rider 368–58, and the Senate passed the joint House-Senate conference report on that bill 100–0. President Bush signed it into law on May 11, 2005.
On March 2, 2007, it was announced that enforcement of the Act would be postponed for two years. The provisions of the bill will be delayed from going into effect until December 2009. On January 11, 2008, it was announced that the deadline has been extended again, until 2011, in hopes of gaining more support from states. On the same date the Department of Homeland Security released the final rule regarding the implementation of the driver's licenses provisions of the Real ID Act.
s are issued by the states, not by the federal government
. Additionally, because the United States has no national identification card and because of the widespread use of cars, driver's licenses have been used as a de facto
standard form of identification within the country. For non-drivers, states also issue voluntary identification cards which do not grant driving privileges. Prior to the REAL ID Act, each state set its own rules and criteria regarding the issuance of a driver's license or identification card, including the look of the card, what data is on the card, what documents must be provided to obtain one, and what information is stored in each state's database of licensed drivers and identification card holders.
Instead, the Real ID Act directly imposes specific federal driver’s license standards.
The REAL ID Act Driver's License Summary details the following provisions of the Act's driver's license title:
After 2011, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the REAL ID Act. The DHS will continue to consider additional ways in which a REAL ID license can or should be used for official federal purposes without seeking the approval of Congress before doing so. States remain free to also issue non-complying licenses and IDs, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration
is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft without additional screening unless they had an alternative government-issued photo ID.
People born on or after December 1, 1964, will have to obtain a REAL ID by December 1, 2014. Those born before December 1, 1964, will have until December 1, 2017 to obtain their REAL ID.
The national license/ID standards cover:
Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 , which had not yet gone into effect before being repealed by the Real ID Act.
Said cards must also feature specific security features intended to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes. These cards must also present data in a common, machine-readable format (bar codes, Smart card technology
, et al.). Although the use of wireless RFID chips was offered for consideration in the proposed rulemaking process, it was not included in the latest rulemaking process. DHS could consider additional technological requirements to be incorporated into the licenses after consulting with the states. In addition, DHS has required the use of RFID chips in its Enhanced Driver's License program, which the Department is proposing as an alternative to REAL ID.
Digital images of each identity document
will be stored in each state DMV database.
The DHS final rule regarding implementation of the Real ID Act driver's license provisions relaxes, and in some instances waives altogether, these verification requirements of the Real ID Act. Thus the DHS rule concedes that there is no practical mechanism to verify with the issuers the validity of documents proving the applicant's primary address (such as a mortgage statement or a utility bill) and leaves the implementation of this verification requirement to discretion of the states (page 5297 of the DHS final rule in the Federal Register). However, the DHS rule, Section 37.11(c), mandates that the Real ID license applicants be required to present at least two documents documenting the address of their primary residence.
The DHS rule declines to implement, as impractical, the provision of the Act requiring verification of the validity of foreign passports, presented by foreign driver's license applicants as proof of identity, with the authorities that issued these foreign passports (page 5294 of the DHS final rule in the Federal Register).
Section 37.11(c) of the DHS final rule allows the states to accept several types of documents as proof of social security number: a social security card, a W-2 form, an SSA-1099 form, a non-SSA-1099 form, or a pay stub bearing the applicant's name and SSN. However, the states are not required to verify the validity of these documents directly with their issuers (e.g. with the employer that issued a W-2 form or a pay stub). Instead, the DHS rule requires the states to verify the validity, and its match with the name given, of the social security number itself, via electronically querying the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration.
The DHS rule, Section 37.13(b)(3), specifies that the validity of birth certificates, presented to document the date of birth or to prove U.S. citizenship, should be verified electronically, by accessing the Electronic Verification of Vital Events (EVVE) system maintained by the National Association of Public Health Statistics and Information Systems (NAPHSIS), rather than directly with the issuers of the birth certificates (such as hospitals).
Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement
(DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with staff support provided by the American Association of Motor Vehicle Administrators AAMVA
and as approved by state Driver Licensing Agency representatives. The DLA is a consolidation of the Driver's License Compact and the Non-Resident Violators Compact, which currently have 46 and 45 member states, respectively. The following controversial elements of the DLA are already in the existing compacts: a convicting state must report out-of-state convictions to the licensing state, states must grant license reciprocity to drivers licensed in other states, and states must allow authorities in other states access to driving records, consistent with the Driver Privacy Protection Act.
and states in Mexico
are allowed to join the DLA and (2) member states, provinces, and territories are subject to reviews by DLA authorities for compliance with the provisions of the DLA. The DLA originated in concept with the 1994 establishment of a North American Driver License Agreement (NADLA) task force, and has created controversy among state representatives opposed to citizen data being shared with other countries. According to a 2005 analysis of the DLA done by the National Conference of State Legislators, the DLA defines "jurisdiction" to allow participation by a territory or province of Canada and by any state of the Republic of Mexico or the Federal District of Mexico. The DLA can be amended by a vote of at least two-thirds of the member jurisdictions.
After the final May 11, 2011 implementation deadline, some non-Real-ID-compliant licenses will continue to be accepted for federal purposes, provided DHS judges that the state which issued such a license is in full compliance with the Real ID Act by May 11, 2011. However, in order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017.
Restricting illegal immigrants or legal immigrants who can't prove their legal status, or are without social security numbers, from obtaining driver's licenses may keep them from obtaining liability insurance and from working, in practice, causing many immigrants and foreign nationals to lose their jobs or to travel internationally in order to renew their drivers license. Furthermore, for visitors on J-1 and H1B visas, the fact that visas may expire before their legal stay is over (this happens due to the fact that J-1 Visas are issued with a one year expiration date but visitors are allowed to stay for their "duration of stay" as long as they have a valid contract) can make the process of renewing a driver's license extremely complex and, as mentioned above, force legal foreign citizens to travel abroad only to renew a VISA which wouldn't need to be renewed if it weren't for the need to renew one's drivers license. Although the new law does allow states to offer "not for federal ID" licenses in these cases, and that some states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses, allowing such applicants to be tested and licensed to drive and obtain liability insurance, the majority of US states do not plan to offer "not for federal ID" licenses. In October 2007, then-governor of New York Eliot Spitzer
announced that the state will adopt a similar "multi-tiered" licensing scheme in which the state will issue three different kinds of driver licenses, two of which comply with the Real ID security requirements and one which will be marked as "not for federal ID" purposes. However, following a political outcry, Spitzer withdrew his proposal to issue licenses to those unable to prove legal residence.
Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry
into the United States."
Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.
Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.
The Real ID Act amends the language of subsection (c) to make the following changes:
and deportation of aliens
for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:
The deportation of aliens for terrorist activities is governed by the following provisions:
Section 212(a)(3)(B): Terrorist activities
The INA (Immigration & Nationality Act) defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
Other pertinent portions of Section 212(a)(3)(B) are set forth below:
"Engage in terrorist activity" defined
As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:
This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State
, after consultation with the Attorney General
, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."
"Representative" defined
As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
"Terrorist organization" defined
As used in Clause (i)(VI) and Clause (iv), the term ‘terrorist organization’ means an organization:
Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence
, perpetrated against noncombatant targets by subnational groups or clandestine agents."
Under the REAL ID Act, nationals of Australia
are eligible to receive a special E-3 visa
. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement
which came into force on January 1, 2005.
Opponents of the Real ID Act include libertarian groups"Florida Libertarian Party chairman surrenders driver's license in Real ID protest", in particular the Cato Institute
; immigrant advocacy groups; human and civil rights organizations, including ACLU; Christian advocacy groups such as the ACLJ; privacy advocacy groups, including 511 campaign; state-level citizen's groups such as North Carolinians Against Real ID and Floridians Against REAL ID ; good government and government accountability groups; labor groups such as AFL-CIO
; People for the American Way
; consumer and patient protection groups; some gun rights groups; many state lawmakers, state legislatures and governors; The Constitution Party and others. Real ID is opposed by such groups as Gun Owners of America
, by the editorial page of the Wall Street Journal as well as the Obama administration. Along with the Bush administration, the Real ID Act is strongly supported by the conservative Heritage Foundation
and by many anti-illegal immigration advocates. Founded by evangelical Christian Pat Robertson, the American Center for Law and Justice (ACLJ) participated in a joint press conference with the ACLU in 2008, highlighting the broad diversity of the coalition opposing Title II of the REAL ID Act. The National Coalition Against Domestic Violence has also voiced concern about REAL ID.
Several legal challenges to REAL ID are underway by individuals in state courts, including Adrian Wyllie
in Florida and Kaye Beach in Oklahoma.
Among the 2008 presidential candidates, according to a February 2008 CNet
report at news.com, John McCain
strongly supported the Real ID Act, Barack Obama
and Ron Paul
flatly opposed it, while Hillary Clinton called for the law to be reviewed. In a September 2007 interview Mike Huckabee
expressed opposition to the Real ID Act, calling the Real ID Act "a huge mistake".
to H.R. 1268, a bill dealing with emergency appropriations for the Iraq War and with the Tsunami relief funding. H.R. 1268 was widely regarded as a "must-pass" legislation. The original version of H.R. 1268 was passed by the Senate on April 21, 2005 and did not include the Real ID Act. However, the Real ID Act was inserted in the conference report on H.R. 1268 that was then passed by the House on May 5, 2005 by a 368-58 vote and was unanimously passed by the Senate on May 10, 2005. The Senate never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage.
Critics charged that this procedure was undemocratic and that the bill's proponents avoided a substantive debate on a far-reaching piece of legislation by attaching it to a "must-pass" bill.
A May 3, 2005 statement by the American Immigration Lawyers Association said: "Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating."
and (especially) the linked databases, and by the fact that such identification is mandatory if people wish to travel out of the US.
Many advocacy groups and individual opponents of the Real ID Act believe that having a Real ID-compliant license may become a requirement for various basic tasks. Thus a January 2008 statement by ACLU of Maryland says: "The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs." However, in order to perform many of those tasks, government-issued identification is already required (e.g., two forms of ID - usually a driver's license, passport, or Social Security card - are required by the Patriot Act in order to open a bank account).
On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature
that refuses implementation of the Real ID Act in that state, and calls on Congress to repeal the law. Many Maine
lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine
taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states. The Resolution vote in the Maine House was 137-4 and in the Maine Senate
unanimous, 34-0.
On February 16, 2007, Utah unanimously passed a resolution that opposes the REAL ID Act. The resolution states that REAL ID is "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government." It further states that "the use of identification-based security cannot be justified as part of a 'layered' security system if the costs of the identification 'layer'--in dollars, lost privacy, and lost liberty--are greater than the security identification provides":
Arkansas
, Arizona
, Colorado
, Georgia
, Hawaii
, Idaho
, Illinois
, Louisiana
, Michigan
, Minnesota
, Missouri
, Montana
, Nebraska
, Nevada
, New Hampshire
, North Dakota
, Oklahoma
, South Carolina
, Tennessee
, Virginia
, and Washington have joined Maine
and Utah
in passing legislation opposing Real ID.
Similar resolutions are pending in Alaska
, Kentucky
, Louisiana
, Maryland
, Massachusetts
, New Mexico
, New York
, Ohio
, Oregon
, Pennsylvania
, Rhode Island
, Texas
, Utah
, Vermont
, Washington, D.C.
, West Virginia
, Wisconsin
, and Wyoming
.
Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as North Carolina
. Some states whose legislatures passed non-binding resolutions opposing REAL ID are nonetheless working to comply with the law, such as Illinois
. In announcing the new regulations, Secretary of Homeland Security Michael Chertoff
cited California
, Alabama
and North Dakota
as examples of states that had made progress in complying with Real ID.
On July 7, 2008, PR
-Governor Aníbal Acevedo Vilá
announced that all 15 Puerto Rico
Department of Transportation and Public Works Driver's Services Center will implement a new system complying with the Real-ID Act.
\
As of January 29, 2008, the Department of Homeland Security has announced $79.8 million in grant monies to assist states with REAL ID implementation, and set an application deadline of March 7, 2008.
On April 16, 2009 the Missouri House of Representatives passed the anti REAL ID bill HB 361 to repeal section 302.171, RSMo, and to enact in lieu thereof two new sections relating to noncompliance with the federal REAL ID Act of 2005 sponsored by Representative Jim Guest by a vote of 83 Ayes 69 Noes and 3 Present. On May 13, 2009 the Missouri Senate unanimously passed HB 361, 43 Ayes 0 Noes. Missouri Governor Jay Nixon signed this bill into law on July 13, 2009.
For the 2012 Florida Legislative Session, an anti-REAL ID bill, HB 109 and Senate companion S 220 will be heard. Named the Florida Driver's License Citizen Protection Act, it would require discontinuation of several of the federally-mandated provisions of REAL ID and destruction of citizen's documents that had been scanned into the government database.
violates the Tenth Amendment to the United States Constitution
as a federal legislation in an area that, under the terms of the Tenth Amendment, is the province of the states. Thus, Anthony Romero
, the executive director of ACLU, stated: "... Real ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers, destroys states' dual sovereignty and consolidates every American's private information, leaving all of us far more vulnerable to identity thieves.".
Former Republican U.S. Representative Bob Barr
wrote in a February 2008 article: "A person not possessing a Real ID Act-compliant identification card could not enter any federal building, or an office of his or her congressman or senator or the U.S. Capitol. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment."
The DHS final rule regarding implementation of the Real ID Act discusses a number of constitutional concerns raised by the commenters on the proposed version of this rule. The DHS rule explicitly rejects the assertion that the implementation of the Real ID Act will lead to violations of the citizens' individual constitutional rights (page 5284 of the DHS rule in the Federal register). In relation to the Tenth Amendment argument about violation of states' constitutional rights, the DHS rule acknowledges that that these concerns have been raised by a number of individual commenters and in the comments by some states. The DHS rule does not attempt to rebuff the Tenth Amendment argument directly, but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act (pages 5284 and 5317 of the DHS final rule in the Federal Register).
On November 1, 2007, attorneys for Defenders of Wildlife
and the Sierra Club
filed an amended complaint in U.S. District Court challenging the 2005 REAL ID Act. The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups argue that Congress unconstitutionally delegated the power to the Department of Homeland Security (an appointed Executive branch not accountable to the public) to pick and choose which laws will apply to border wall construction. On December 18, 2007, Judge Ellen S. Huvelle rejected the challenge.
On March 17, 2008, attorneys for Defenders of Wildlife and the Sierra Club filed a Petition for a Writ
of Certiorari
with the U.S. Supreme Court
to hear its "constitutional challenge to the Secretary’s decision waiving nineteen federal laws, and all state and local legal requirements related to them, in connection with the construction of a barrier along a portion of the border with Mexico". They question whether the preclusion of judicial review amounts to an unconstitutional delegation of legislative power and whether the "grant of waiver authority violates Article I’s requirement that a duly-enacted law may be repealed only by legislation approved by both Houses of Congress and presented to the President". On April 17, 2008, numerous amicus briefs "supporting the petition were filed on behalf 14 members of Congress, a diverse coalition of conservation, religious and Native American organizations, and 28 law professors and constitutional scholars".
.
Thus a 2005 article in LCCR-sponsored "Civil Rights Monitor" says: "The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as "demeanor". Critics said the reason for putting such asylum restrictions into what was being sold as an anti terrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit. "
.
Similarly, some immigration and human rights advocacy groups maintain that the Real ID Act provides an overly broad definition of "terrorist activity" that will prevent some deserving categories of applicants from gaining asylum or refugee status in the United States. A November 2007 report by Human Rights Watch
raises this criticism specifically in relation to former child soldiers who have been forcibly and illegally recruited to participate in an armed group.
of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version .
But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain so-called "judicial activism
" so needed barriers can be built. Opponents assert that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution
), and violate the principle of separation of powers
.
rights advocates charge that by creating a national system electronically storing vast amounts of detailed personal data about individuals, the Real ID Act increases the chance of such data being stolen and thus raises the risk of identity theft.
The Bush administration, in the DHS final rule regarding the Real ID Act implementation, counters that the security precautions regarding handling sensitive personal data and hiring DMV workers, that are specified in the Real ID Act and in the DHS final rule, provide sufficient protections against unauthorized use and theft of such personal data (pages 5281-5283 of the DHS final rule in the Federal Register).
Another privacy concern raised by the privacy advocates, such as the Electronic Frontier Foundation
, is that the implementation of the Real ID Act will make it substantially easier for the government to track numerous activities of Americans
and conduct their surveillance
.
Supporters of the Real ID Act, such as a conservative think-tank the Heritage Foundation
, dismiss this criticism under the grounds that states will be permitted (by law) to share data only when validating someone's identity.
The Data Privacy and Integrity Advisory Committee, which was established to advise the Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security's proposed rules for the standardization of state driver licenses on May 7, 2007. The committee stated that "Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate," and "The issues pose serious risks to an individual’s privacy and, without amelioration, could undermine the stated goals of the REAL ID Act."
[D-HI] introduced the Senate Bill S. 717, "Identification Security Enhancement Act of 2007", subtitled:
"A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security".
The bill is co-sponsored by Senators Lamar Alexander
[R-TN], Max Baucus
[D-MT], Patrick Leahy
[D-VT], John E. Sununu
[R-NH], Jon Tester
[D-MT]. The bill was read twice and referred to the Senate Committee on the Judiciary on February 28, 2007.
A similar bill was introduced on February 16, 2007 in the U.S. House of Representatives by Rep. Thomas Allen [D-ME], with 32 co-sponsors (all Democrats). The House bill, H.R. 1117, "REAL ID Repeal and Identification Security Enhancement Act of 2007", is subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security."
On May 23, 2007, the House Oversight and Government Reform Committee referred H.R. 1117 to the Subcommittee on Government Management, Organization, and Procurement.
A more limited bill, S. 563, that would extend the deadlines for the states' compliance with the Real ID Act, was introduced on February 13, 2007 in the U.S. Senate by Sen. Susan Collins
[R, ME], together with Senators Lamar Alexander
[R, TN], Thomas Carper [D, DE], Charles Hagel [R, NE], and Olympia Snowe
[R, ME].
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
that modified U.S. federal law
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
pertaining to security
Security
Security is the degree of protection against danger, damage, loss, and crime. Security as a form of protection are structures and processes that provide or improve security as a condition. The Institute for Security and Open Methodologies in the OSSTMM 3 defines security as "a form of protection...
, authentication
Authentication
Authentication is the act of confirming the truth of an attribute of a datum or entity...
, and issuance procedures standards for the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
s and identification (ID) cards, as well as various immigration
Immigration
Immigration is the act of foreigners passing or coming into a country for the purpose of permanent residence...
issues pertaining to terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
.
The law set forth certain requirements for state driver's licenses and ID cards to be accepted by the federal government for "official purposes", as defined by the Secretary of Homeland Security
Homeland security
Homeland security is an umbrella term for security efforts to protect states against terrorist activity. Specifically, is a concerted national effort to prevent terrorist attacks within the U.S., reduce America’s vulnerability to terrorism, and minimize the damage and recover from attacks that do...
. The Secretary of Homeland Security has currently defined "official purposes" as presenting state driver's licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants.
The REAL ID Act implements the following:
- Title II of the act establishes new federal standards for state-issued driver licenses and non-driver identification cards.
- Changing visa limits for temporary workers, nurses, and AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n citizens. - Funding some reports and pilot projects related to border security.
- Introducing rules covering "delivery bonds" (similar to bail bonds but for aliens who have been released pending hearings).
- Updating and tightening the laws on application for asylum and deportation of aliens for terrorist activityTerrorismTerrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
. - Waiving laws that interfere with construction of physical barriers at the borders.
As of April 2, 2008, all 50 states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
have either applied for extensions of the original May 11, 2008 compliance deadline or received unsolicited extensions. , 25 states have approved either resolutions or binding legislation not to participate in the program, and with President Obama's selection of Janet Napolitano
Janet Napolitano
Janet Napolitano is the third and current United States Secretary of Homeland Security, serving in the administration of President Barack Obama. She is the fourth person to hold the position, which was created after the 9/11 terrorist attacks. A member of the Democratic Party, she was the 21st...
(a prominent critic of the program) to head the Department of Homeland Security, the future of the law remains uncertain, and bills have been introduced into Congress to amend or repeal it. The most recent of these, dubbed PASS ID
PASS ID
PASS ID is a proposed U.S. law intended to replace REAL ID. Like REAL ID, it implements federal standards for state identification documents. Currently, states are not obligated to follow the standards, but if PASS ID takes full effect, federal agencies will only accept identification from states...
, would eliminate many of the more burdensome technological requirements but still require states to meet federal standards in order to have their ID cards accepted by federal agencies.
Legislative history
The Real ID Act started off as , which passed the House and went stagnant. Representative James Sensenbrenner (R) of WisconsinWisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, the author of the original Real ID Act, then attached it as a rider on a military spending bill, , the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The House of Representatives passed that spending bill with the Real ID rider 368–58, and the Senate passed the joint House-Senate conference report on that bill 100–0. President Bush signed it into law on May 11, 2005.
On March 2, 2007, it was announced that enforcement of the Act would be postponed for two years. The provisions of the bill will be delayed from going into effect until December 2009. On January 11, 2008, it was announced that the deadline has been extended again, until 2011, in hopes of gaining more support from states. On the same date the Department of Homeland Security released the final rule regarding the implementation of the driver's licenses provisions of the Real ID Act.
IDs and driver's licenses as identification
In the United States, driver's licenseDriver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
s are issued by the states, not by the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
. Additionally, because the United States has no national identification card and because of the widespread use of cars, driver's licenses have been used as a de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
standard form of identification within the country. For non-drivers, states also issue voluntary identification cards which do not grant driving privileges. Prior to the REAL ID Act, each state set its own rules and criteria regarding the issuance of a driver's license or identification card, including the look of the card, what data is on the card, what documents must be provided to obtain one, and what information is stored in each state's database of licensed drivers and identification card holders.
Federally mandated standards for state driver's licenses or ID cards
Driver's license implications- The REAL ID Act's implications for driver's licenses and ID cards is detailed in Title II of the Act. Title II of REAL ID — “Improved Security for Driver’s License and Personal Identification Cards” — repeals the driver's licenses provisions of the Intelligence Reform and Terrorism Prevention ActIntelligence Reform and Terrorism Prevention ActThe Intelligence Reform and Terrorism Prevention Act of 2004 , , is a 236-page Act of Congress, signed by President George W. Bush, that broadly affects US federal terrorism laws. In juxtaposition with the single-subject rule, the act is composed of several separate titles with varying subject...
, also known as the "9/11 Commission Implementation Act of 2004", that was enacted in December 2004. Section 7212 of that law established a cooperative state-federal process, via a negotiated rule-making procedure, to create federal standards for driver’s licenses.
Instead, the Real ID Act directly imposes specific federal driver’s license standards.
The REAL ID Act Driver's License Summary details the following provisions of the Act's driver's license title:
- Authority
- Data Retention and Storage
- DL/ID Document Standards
- Grants to States
- Immigration Requirements
- Linking of Databases
- Minimum DL/ID Issuance Standards
- Minimum Standards for Federal Use
- Repeal of 9/11 Commission Implementation Act DL/ID Provisions
- Security and Fraud Prevention Standards
- Verification of Documents
After 2011, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the REAL ID Act. The DHS will continue to consider additional ways in which a REAL ID license can or should be used for official federal purposes without seeking the approval of Congress before doing so. States remain free to also issue non-complying licenses and IDs, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft without additional screening unless they had an alternative government-issued photo ID.
People born on or after December 1, 1964, will have to obtain a REAL ID by December 1, 2014. Those born before December 1, 1964, will have until December 1, 2017 to obtain their REAL ID.
The national license/ID standards cover:
- How the states must share their databases both domestically and internationally through AAMVAAAMVAThe American Association of Motor Vehicle Administrators is a non-governmental, voluntary, tax-exempt, nonprofit educational association. AAMVA is a private corporation which strives to develop model programs in motor vehicle administration, police traffic services, and highway safety...
. - What data must be included on the card and what technology it is encoded with;
- What documentation must be presented and electronically stored before a card can be issued.
Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 , which had not yet gone into effect before being repealed by the Real ID Act.
Data requirements
A Real ID-compliant form of identification requires, at a minimum, the following pieces of data:- Full legal name,
- Signature,
- Date of birth,
- Gender,
- Unique, identifying number,
- Principal residence address,
- Front-facing photograph of the applicant.
Said cards must also feature specific security features intended to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes. These cards must also present data in a common, machine-readable format (bar codes, Smart card technology
Smart card
A smart card, chip card, or integrated circuit card , is any pocket-sized card with embedded integrated circuits. A smart card or microprocessor cards contain volatile memory and microprocessor components. The card is made of plastic, generally polyvinyl chloride, but sometimes acrylonitrile...
, et al.). Although the use of wireless RFID chips was offered for consideration in the proposed rulemaking process, it was not included in the latest rulemaking process. DHS could consider additional technological requirements to be incorporated into the licenses after consulting with the states. In addition, DHS has required the use of RFID chips in its Enhanced Driver's License program, which the Department is proposing as an alternative to REAL ID.
Documentation required before issuing a license or ID card
Before a card can be issued, the applicant must provide the following documentation:- A photo ID, or a non-photo ID that includes full legal name and birthdate.
- Documentation of birth date.
- Documentation of legal status and Social Security numberSocial Security numberIn the United States, a Social Security number is a nine-digit number issued to U.S. citizens, permanent residents, and temporary residents under section 205 of the Social Security Act, codified as . The number is issued to an individual by the Social Security Administration, an independent...
- Documentation showing name and principal residence address.
Digital images of each identity document
Identity document
An identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
will be stored in each state DMV database.
Document Verification Requirements
Section 202(c)(3) of the Real ID Act requires the states to "verify, with the issuing agency, the issuance, validity, and completeness of each document" that is required to be presented by a driver's license applicant to prove their identity, birth date, legal status in the U.S., social security number and the address of their principal residence. The same section states that the only foreign document acceptable is a foreign passport.The DHS final rule regarding implementation of the Real ID Act driver's license provisions relaxes, and in some instances waives altogether, these verification requirements of the Real ID Act. Thus the DHS rule concedes that there is no practical mechanism to verify with the issuers the validity of documents proving the applicant's primary address (such as a mortgage statement or a utility bill) and leaves the implementation of this verification requirement to discretion of the states (page 5297 of the DHS final rule in the Federal Register). However, the DHS rule, Section 37.11(c), mandates that the Real ID license applicants be required to present at least two documents documenting the address of their primary residence.
The DHS rule declines to implement, as impractical, the provision of the Act requiring verification of the validity of foreign passports, presented by foreign driver's license applicants as proof of identity, with the authorities that issued these foreign passports (page 5294 of the DHS final rule in the Federal Register).
Section 37.11(c) of the DHS final rule allows the states to accept several types of documents as proof of social security number: a social security card, a W-2 form, an SSA-1099 form, a non-SSA-1099 form, or a pay stub bearing the applicant's name and SSN. However, the states are not required to verify the validity of these documents directly with their issuers (e.g. with the employer that issued a W-2 form or a pay stub). Instead, the DHS rule requires the states to verify the validity, and its match with the name given, of the social security number itself, via electronically querying the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration.
The DHS rule, Section 37.13(b)(3), specifies that the validity of birth certificates, presented to document the date of birth or to prove U.S. citizenship, should be verified electronically, by accessing the Electronic Verification of Vital Events (EVVE) system maintained by the National Association of Public Health Statistics and Information Systems (NAPHSIS), rather than directly with the issuers of the birth certificates (such as hospitals).
Linking of license and ID card databases
Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state drivers' licenses and ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses).Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement
Driver License Agreement
In the USA, the Driver License Agreement is a new interstate compact written by the Joint Executive Board of the Driver License Compact and the Non-Resident Violator Compact with staff support provided by the American Association of Motor Vehicle Administrators...
(DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with staff support provided by the American Association of Motor Vehicle Administrators AAMVA
AAMVA
The American Association of Motor Vehicle Administrators is a non-governmental, voluntary, tax-exempt, nonprofit educational association. AAMVA is a private corporation which strives to develop model programs in motor vehicle administration, police traffic services, and highway safety...
and as approved by state Driver Licensing Agency representatives. The DLA is a consolidation of the Driver's License Compact and the Non-Resident Violators Compact, which currently have 46 and 45 member states, respectively. The following controversial elements of the DLA are already in the existing compacts: a convicting state must report out-of-state convictions to the licensing state, states must grant license reciprocity to drivers licensed in other states, and states must allow authorities in other states access to driving records, consistent with the Driver Privacy Protection Act.
Foreign Data Sharing
New controversial requirements of the DLA are: (1) provinces and territories in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and states in Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
are allowed to join the DLA and (2) member states, provinces, and territories are subject to reviews by DLA authorities for compliance with the provisions of the DLA. The DLA originated in concept with the 1994 establishment of a North American Driver License Agreement (NADLA) task force, and has created controversy among state representatives opposed to citizen data being shared with other countries. According to a 2005 analysis of the DLA done by the National Conference of State Legislators, the DLA defines "jurisdiction" to allow participation by a territory or province of Canada and by any state of the Republic of Mexico or the Federal District of Mexico. The DLA can be amended by a vote of at least two-thirds of the member jurisdictions.
DHS regulations regarding implementation of the Driver's License provisions of the Act
On January 11, 2008 DHS released the final rule regarding the implementation of the driver's licenses provisions of the Real ID Act. Under the DHS final rule, those states that chose to comply with Driver's License provisions of the Real ID Act are allowed to apply for up to two extensions of the May 11, 2008 deadline for implementing these provisions: an extension until no later than December 31, 2009 and an additional extension until no later than May 11, 2011. The DHS final rule mandates that, as of March 11, 2011, driver's licenses issued by the states that are not deemed to be in full compliance with the Real ID Act, will not be accepted for federal purposes. The Secretary of Homeland Security is given discretion to determine the scope of such official purposes in the future. For the states that do not apply to DHS, by March 31, 2008, for an extension of the May 11, 2008 implementation deadline, that deadline will apply: after May 11, 2008 driver's licenses issued by such states will not be accepted for federal purposes.After the final May 11, 2011 implementation deadline, some non-Real-ID-compliant licenses will continue to be accepted for federal purposes, provided DHS judges that the state which issued such a license is in full compliance with the Real ID Act by May 11, 2011. However, in order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017.
Immigration
As of May 11, 2005, several portions of the Real ID Act have imposed higher burdens and stricter standards of proof for individuals applying for asylum and other related forms of relief. For the first time, immigration judges can require an applicant to produce corroborating evidence (. Additionally, the government may also require that an applicant produce corroborating evidence, a requirement that may only be overcome if the judge is convinced that such evidence is unavailable .Restricting illegal immigrants or legal immigrants who can't prove their legal status, or are without social security numbers, from obtaining driver's licenses may keep them from obtaining liability insurance and from working, in practice, causing many immigrants and foreign nationals to lose their jobs or to travel internationally in order to renew their drivers license. Furthermore, for visitors on J-1 and H1B visas, the fact that visas may expire before their legal stay is over (this happens due to the fact that J-1 Visas are issued with a one year expiration date but visitors are allowed to stay for their "duration of stay" as long as they have a valid contract) can make the process of renewing a driver's license extremely complex and, as mentioned above, force legal foreign citizens to travel abroad only to renew a VISA which wouldn't need to be renewed if it weren't for the need to renew one's drivers license. Although the new law does allow states to offer "not for federal ID" licenses in these cases, and that some states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses, allowing such applicants to be tested and licensed to drive and obtain liability insurance, the majority of US states do not plan to offer "not for federal ID" licenses. In October 2007, then-governor of New York Eliot Spitzer
Eliot Spitzer
Eliot Laurence Spitzer is an American lawyer, former Democratic Party politician, and political commentator. He was the co-host of In the Arena, a talk-show and punditry forum broadcast on CNN until CNN cancelled his show in July of 2011...
announced that the state will adopt a similar "multi-tiered" licensing scheme in which the state will issue three different kinds of driver licenses, two of which comply with the Real ID security requirements and one which will be marked as "not for federal ID" purposes. However, following a political outcry, Spitzer withdrew his proposal to issue licenses to those unable to prove legal residence.
Waiving laws that interfere with construction of border barriers
An earlier law (Section 102 of , which is now part of ) provided for improvements to physical barriers at the borders of the United States.Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry
Illegal entry
Illegal entry is the act of foreign nationals arriving in or crossing the borders into a country in violation of its immigration law.Migrants from nations that do not have automatic visa agreements, or who would not otherwise qualify for a visa, often cross the borders illegally in some areas like...
into the United States."
Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.
Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.
The Real ID Act amends the language of subsection (c) to make the following changes:
- Allows waivers of any and all laws "necessary to ensure expeditious construction of the barriers and roads under this section."
- Gives this waiver authority to the Secretary of Homeland Security (rather than the Attorney General). Waivers are made at his sole discretion.
- Restricts court review of waiver decisions: "The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph." Claims are barred unless filed within 60 days, and cases may be appealed "only upon petition for a writ of certiorari to the Supreme Court".
Application for asylum; deportation of aliens for terrorist activity
The Real ID Act introduces stricter laws governing applications for asylumRefugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
and deportation of aliens
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:
- Elimination of the 10,000 annual limit for previously approved asylees to adjust to permanent legal residence. This had been urged for years because the average asylee had a 17-year wait before he would be able to achieve legal resident status. As a result, in fiscal years 2005 and 2006, the backlog was greatly reduced as 147,131 asylees were granted legal permanent residence status.
- Usage of 50,000 unused employment-based visas from 2003. This was a compromise between proponents who had earlier tried to include all employment visas which went unused between 2001 and 2004, and immigration restrictionists. They were used, mostly in fiscal year 2006, for Schedule A workers newly arrived mainly from the Philippines and India, rather than for adjustments of status cases like the American Competitiveness in the 21st Century Act.
The deportation of aliens for terrorist activities is governed by the following provisions:
Section 212(a)(3)(B): Terrorist activities
The INA (Immigration & Nationality Act) defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
- (I) The hijackingRobberyRobbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
or sabotageSabotageSabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...
of any conveyance (including an aircraft, vessel, or vehicle). - (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
- (III) A violent attack upon an internationally protected person (as defined in Section 1116(b)(4) of Title 18, United States Code) or upon the liberty of such a person.
- (IV) An assassinationAssassinationTo carry out an assassination is "to murder by a sudden and/or secret attack, often for political reasons." Alternatively, assassination may be defined as "the act of deliberately killing someone, especially a public figure, usually for hire or for political reasons."An assassination may be...
. - (V) The use of any:
- (a) biological agentBiological agentA biological agent — also called bio-agent or biological threat agent — is a bacterium, virus, prion, or fungus which may cause infection, allergy, toxicity or otherwise create a hazard to human health. They can be used as a biological weapon in bioterrorism or biological warfare...
, chemical agent, or nuclear weaponNuclear weaponA nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission or a combination of fission and fusion. Both reactions release vast quantities of energy from relatively small amounts of matter. The first fission bomb test released the same amount...
or device. - (b) explosive, firearmFirearmA firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
- (a) biological agent
- (VI) A threat, attempt, or conspiracy to do any of the foregoing.
Other pertinent portions of Section 212(a)(3)(B) are set forth below:
"Engage in terrorist activity" defined
As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:
- to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
- to gather information on potential targets for terrorist activity;
- to prepare or plan a terrorist activity;
- to solicit funds or other things of value for:
- (aa) a terrorist activity;
- (bb) a terrorist organization described in Clause (vi)(I) or (vi)(II);
- (cc) a terrorist organization described in Clause (vi)(III), unless the solicitorSolicitorSolicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;
- to solicit any individual:
- (aa) to engage in conduct otherwise described in this clause;
- (bb) for membership in terrorist organization described in Clause (vi)(I) or (vi)(II); or
- (cc) for membership in a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or
- to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weaponRadiological weaponA radiological weapon or radiological dispersion device is any weapon that is designed to spread radioactive material with the intent to kill, and cause disruption upon a city or nation....
s), explosives, or training:- (aa) for the commission of a terrorist activity;
- (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
- (cc) to a terrorist organization described in Clause (vi)(I) or (vi)(II); or
- (dd) to a terrorist organization described in Clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.
This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
, after consultation with the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."
"Representative" defined
As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
"Terrorist organization" defined
As used in Clause (i)(VI) and Clause (iv), the term ‘terrorist organization’ means an organization:
- designated under Section 219 ;
- otherwise designated, upon publication in the Federal RegisterFederal RegisterThe Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...
, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in Subclause (I), (II), or (III) of Clause (iv), or that the organization provides material support to further terrorist activity; or - that is a group of two or more individuals, whether organized or not, which engages in the activities described in Subclause (I), (II), or (III) of Clause (iv).
Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
, perpetrated against noncombatant targets by subnational groups or clandestine agents."
Delivery bonds
The Real ID Act introduces complex rules covering "delivery bonds." These resemble bail bonds, but are to be required for aliens that have been released pending hearings.Miscellaneous provisions
The remaining sections of the Real ID Act allocate funding for some reports and pilot projects related to border security, and change visa limits for temporary workers, nurses, and Australians.Under the REAL ID Act, nationals of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
are eligible to receive a special E-3 visa
E-3 visa
The E-3 visa is a United States visa for which only citizens of Australia are eligible. It was created by an Act of the United States Congress as a result of the Australia-United States Free Trade Agreement , although it is not formally a part of the AUSFTA. The legislation creating the E-3 visa...
. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement
Australia-United States Free Trade Agreement
The Australia – United States Free Trade Agreement is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement . The free trade agreement was signed on 18 May 2004, ratified by the U.S. House of Representatives on 14 July 2004 by a...
which came into force on January 1, 2005.
Controversy and opposition
The Real ID Act has faced criticism from across the political spectrum and remains the subject of several ongoing controversies.Opponents of the Real ID Act include libertarian groups"Florida Libertarian Party chairman surrenders driver's license in Real ID protest", in particular the Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
; immigrant advocacy groups; human and civil rights organizations, including ACLU; Christian advocacy groups such as the ACLJ; privacy advocacy groups, including 511 campaign; state-level citizen's groups such as North Carolinians Against Real ID and Floridians Against REAL ID ; good government and government accountability groups; labor groups such as AFL-CIO
AFL-CIO
The American Federation of Labor and Congress of Industrial Organizations, commonly AFL–CIO, is a national trade union center, the largest federation of unions in the United States, made up of 56 national and international unions, together representing more than 11 million workers...
; People for the American Way
People For the American Way
People For the American Way is a progressive advocacy group in the United States. Under U.S. tax code, People For the American Way is organized as a tax-exempt 501 non-profit organization.-Purpose:...
; consumer and patient protection groups; some gun rights groups; many state lawmakers, state legislatures and governors; The Constitution Party and others. Real ID is opposed by such groups as Gun Owners of America
Gun Owners of America
Gun Owners of America is a gun rights organization in the United States with over 300,000 members. They make efforts to differentiate themselves from the larger National Rifle Association , and have publicly criticized the NRA on multiple occasions for what the GOA considers to be the selling out...
, by the editorial page of the Wall Street Journal as well as the Obama administration. Along with the Bush administration, the Real ID Act is strongly supported by the conservative Heritage Foundation
Heritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
and by many anti-illegal immigration advocates. Founded by evangelical Christian Pat Robertson, the American Center for Law and Justice (ACLJ) participated in a joint press conference with the ACLU in 2008, highlighting the broad diversity of the coalition opposing Title II of the REAL ID Act. The National Coalition Against Domestic Violence has also voiced concern about REAL ID.
Several legal challenges to REAL ID are underway by individuals in state courts, including Adrian Wyllie
Adrian Wyllie
Adrian Wyllie, born in 1970, is the Chairman of the Libertarian Party of Florida. Wyllie is also a host of a syndicated AM radio program that focuses on libertarian issues...
in Florida and Kaye Beach in Oklahoma.
Among the 2008 presidential candidates, according to a February 2008 CNet
CNET
CNET is a tech media website that publishes news articles, blogs, and podcasts on technology and consumer electronics. Originally founded in 1994 by Halsey Minor and Shelby Bonnie, it was the flagship brand of CNET Networks and became a brand of CBS Interactive through CNET Networks' acquisition...
report at news.com, John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
strongly supported the Real ID Act, Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
and Ron Paul
Ron Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...
flatly opposed it, while Hillary Clinton called for the law to be reviewed. In a September 2007 interview Mike Huckabee
Mike Huckabee
Michael "Mike" Dale Huckabee is an American politician who served as the 44th Governor of Arkansas from 1996 to 2007. He was a candidate in the 2008 United States Republican presidential primaries, finishing second in delegate count and third in both popular vote and number of states won . He won...
expressed opposition to the Real ID Act, calling the Real ID Act "a huge mistake".
Congressional passage procedure controversy
The original Real ID Act, H. R. 418, was approved by the House on February 10, 2005 by a vote of 261-161. At the insistence of the Real ID Act sponsor and then House Judiciary Committee Chair F. James Sensenbrenner (Republican, Wisconsin), the Real ID Act was subsequently attached by the House Republican leadership as a riderRider (legislation)
In legislative procedure, a rider is an additional provision added to a bill or other measure under the consideration by a legislature, having little connection with the subject matter of the bill. Riders are usually created as a tactic to pass a controversial provision that would not pass as its...
to H.R. 1268, a bill dealing with emergency appropriations for the Iraq War and with the Tsunami relief funding. H.R. 1268 was widely regarded as a "must-pass" legislation. The original version of H.R. 1268 was passed by the Senate on April 21, 2005 and did not include the Real ID Act. However, the Real ID Act was inserted in the conference report on H.R. 1268 that was then passed by the House on May 5, 2005 by a 368-58 vote and was unanimously passed by the Senate on May 10, 2005. The Senate never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage.
Critics charged that this procedure was undemocratic and that the bill's proponents avoided a substantive debate on a far-reaching piece of legislation by attaching it to a "must-pass" bill.
A May 3, 2005 statement by the American Immigration Lawyers Association said: "Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating."
National ID card controversy
There is disagreement about whether the Real ID Act institutes a "national identification card" system. The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, the Department of Homeland Security claims it is not a "national ID" system. Web sites such as no2realid.org, unrealid.com, and realnightmare.org argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVAAAMVA
The American Association of Motor Vehicle Administrators is a non-governmental, voluntary, tax-exempt, nonprofit educational association. AAMVA is a private corporation which strives to develop model programs in motor vehicle administration, police traffic services, and highway safety...
and (especially) the linked databases, and by the fact that such identification is mandatory if people wish to travel out of the US.
Many advocacy groups and individual opponents of the Real ID Act believe that having a Real ID-compliant license may become a requirement for various basic tasks. Thus a January 2008 statement by ACLU of Maryland says: "The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs." However, in order to perform many of those tasks, government-issued identification is already required (e.g., two forms of ID - usually a driver's license, passport, or Social Security card - are required by the Patriot Act in order to open a bank account).
State adoption and non-compliance
Portions of the Real ID Act pertaining to states were scheduled to take effect on May 11, 2008, three years after the law passed, but the deadline had been extended to December 31, 2009. On January 11, 2008, it was announced the deadline has been extended again, until 2011, in hopes of gaining more support from states.On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature
Maine Legislature
The Maine Legislature is the state legislature of the U.S. state of Maine. It is a bicameral body composed of the lower house Maine House of Representatives and the upper house Maine Senate...
that refuses implementation of the Real ID Act in that state, and calls on Congress to repeal the law. Many Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states. The Resolution vote in the Maine House was 137-4 and in the Maine Senate
Maine Senate
The Maine Senate is the upper house of the Maine Legislature, the state legislature of the U.S. state of Maine. The Senate currently consists of 35 members representing an equal number of districts across the state, though the Maine Constitution allows for "an odd number of Senators, not less than...
unanimous, 34-0.
On February 16, 2007, Utah unanimously passed a resolution that opposes the REAL ID Act. The resolution states that REAL ID is "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government." It further states that "the use of identification-based security cannot be justified as part of a 'layered' security system if the costs of the identification 'layer'--in dollars, lost privacy, and lost liberty--are greater than the security identification provides":
"the "common machine-readable technology" required by the REAL ID Act
would convert state-issued driver licenses and identification cards into tracking devices,
allowing computers to note and record people's whereabouts each time they are identified"
"the requirement that states maintain databases of information about their
citizens and residents and then share this personal information with all other states will expose every state to the information security weaknesses of every other state and threaten the privacy of every American"
"the REAL ID Act wrongly coerces states into doing the federal government's bidding
by threatening to refuse noncomplying states' citizens the privileges and immunities enjoyed
by other states' citizens"
Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
, Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
, Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
, North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
, Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, and Washington have joined Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
and Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
in passing legislation opposing Real ID.
Similar resolutions are pending in Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
, Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
, Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
, Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
, Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
, Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, and Wyoming
Wyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
.
Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
. Some states whose legislatures passed non-binding resolutions opposing REAL ID are nonetheless working to comply with the law, such as Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
. In announcing the new regulations, Secretary of Homeland Security Michael Chertoff
Michael Chertoff
Michael Chertoff was the second United States Secretary of Homeland Security under President George W. Bush and co-author of the USA PATRIOT Act. He previously served as a judge on the United States Court of Appeals for the Third Circuit, as a federal prosecutor, and as assistant U.S. Attorney...
cited California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
and North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
as examples of states that had made progress in complying with Real ID.
On July 7, 2008, PR
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
-Governor Aníbal Acevedo Vilá
Aníbal Acevedo Vilá
Aníbal Salvador Acevedo Vilá is a Puerto Rican politician and lawyer. He served as the eighth Governor of the Commonwealth of Puerto Rico, a Commonwealth of the United States, from 2005 to 2009. He is a Harvard University alumnus and a graduate of the University of Puerto Rico School of Law,...
announced that all 15 Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
Department of Transportation and Public Works Driver's Services Center will implement a new system complying with the Real-ID Act.
\
As of January 29, 2008, the Department of Homeland Security has announced $79.8 million in grant monies to assist states with REAL ID implementation, and set an application deadline of March 7, 2008.
On April 16, 2009 the Missouri House of Representatives passed the anti REAL ID bill HB 361 to repeal section 302.171, RSMo, and to enact in lieu thereof two new sections relating to noncompliance with the federal REAL ID Act of 2005 sponsored by Representative Jim Guest by a vote of 83 Ayes 69 Noes and 3 Present. On May 13, 2009 the Missouri Senate unanimously passed HB 361, 43 Ayes 0 Noes. Missouri Governor Jay Nixon signed this bill into law on July 13, 2009.
For the 2012 Florida Legislative Session, an anti-REAL ID bill, HB 109 and Senate companion S 220 will be heard. Named the Florida Driver's License Citizen Protection Act, it would require discontinuation of several of the federally-mandated provisions of REAL ID and destruction of citizen's documents that had been scanned into the government database.
Constitutionality
Some critics claim that the Real ID ActREAL ID Act
The REAL ID Act of 2005, , was an Act of Congress that modified U.S. federal law pertaining to security, authentication, and issuance procedures standards for the state driver's licenses and identification cards, as well as various immigration issues pertaining to terrorism.The law set forth...
violates the Tenth Amendment to the United States Constitution
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
as a federal legislation in an area that, under the terms of the Tenth Amendment, is the province of the states. Thus, Anthony Romero
Anthony Romero
Anthony D. Romero is the American executive director of the American Civil Liberties Union.-Early life:Romero was born in New York City on July 9, 1965 to Puerto Rican parents Demetrio and Coralie Romero. He was raised in the Bronx.-Education:...
, the executive director of ACLU, stated: "... Real ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers, destroys states' dual sovereignty and consolidates every American's private information, leaving all of us far more vulnerable to identity thieves.".
Former Republican U.S. Representative Bob Barr
Bob Barr
Robert Laurence "Bob" Barr, Jr. is a former federal prosecutorand a former member of the United States House of Representatives. He represented Georgia's 7th congressional district as a Republican from 1995 to 2003. Barr attained national prominence as one of the leaders of the impeachment of...
wrote in a February 2008 article: "A person not possessing a Real ID Act-compliant identification card could not enter any federal building, or an office of his or her congressman or senator or the U.S. Capitol. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment."
The DHS final rule regarding implementation of the Real ID Act discusses a number of constitutional concerns raised by the commenters on the proposed version of this rule. The DHS rule explicitly rejects the assertion that the implementation of the Real ID Act will lead to violations of the citizens' individual constitutional rights (page 5284 of the DHS rule in the Federal register). In relation to the Tenth Amendment argument about violation of states' constitutional rights, the DHS rule acknowledges that that these concerns have been raised by a number of individual commenters and in the comments by some states. The DHS rule does not attempt to rebuff the Tenth Amendment argument directly, but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act (pages 5284 and 5317 of the DHS final rule in the Federal Register).
On November 1, 2007, attorneys for Defenders of Wildlife
Defenders of Wildlife
Defenders of Wildlife is a United States-based, 501 non-profit organization founded in 1947, "dedicated to the protection of all native animals and plants in their natural communities." The organization is active in political interventions and lobbying aimed at protection of wildlife, and...
and the Sierra Club
Sierra Club
The Sierra Club is the oldest, largest, and most influential grassroots environmental organization in the United States. It was founded on May 28, 1892, in San Francisco, California, by the conservationist and preservationist John Muir, who became its first president...
filed an amended complaint in U.S. District Court challenging the 2005 REAL ID Act. The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups argue that Congress unconstitutionally delegated the power to the Department of Homeland Security (an appointed Executive branch not accountable to the public) to pick and choose which laws will apply to border wall construction. On December 18, 2007, Judge Ellen S. Huvelle rejected the challenge.
On March 17, 2008, attorneys for Defenders of Wildlife and the Sierra Club filed a Petition for a Writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of Certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
with the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to hear its "constitutional challenge to the Secretary’s decision waiving nineteen federal laws, and all state and local legal requirements related to them, in connection with the construction of a barrier along a portion of the border with Mexico". They question whether the preclusion of judicial review amounts to an unconstitutional delegation of legislative power and whether the "grant of waiver authority violates Article I’s requirement that a duly-enacted law may be repealed only by legislation approved by both Houses of Congress and presented to the President". On April 17, 2008, numerous amicus briefs "supporting the petition were filed on behalf 14 members of Congress, a diverse coalition of conservation, religious and Native American organizations, and 28 law professors and constitutional scholars".
Asylum and deportation controversy
Many immigrant and civil rights advocates feel that the changes related to evidentiary standards and the immigration officers' discretion in asylum cases, contained in the Real ID Act, would prevent many legitimate asylum seekers from obtaining asylum..
Thus a 2005 article in LCCR-sponsored "Civil Rights Monitor" says: "The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as "demeanor". Critics said the reason for putting such asylum restrictions into what was being sold as an anti terrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit. "
.
Similarly, some immigration and human rights advocacy groups maintain that the Real ID Act provides an overly broad definition of "terrorist activity" that will prevent some deserving categories of applicants from gaining asylum or refugee status in the United States. A November 2007 report by Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
raises this criticism specifically in relation to former child soldiers who have been forcibly and illegally recruited to participate in an armed group.
Judicial review controversy
A previous version of the Real ID Act would have prohibited any judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version .
But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain so-called "judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
" so needed barriers can be built. Opponents assert that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
), and violate the principle of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
.
Privacy
Many privacyPrivacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
rights advocates charge that by creating a national system electronically storing vast amounts of detailed personal data about individuals, the Real ID Act increases the chance of such data being stolen and thus raises the risk of identity theft.
The Bush administration, in the DHS final rule regarding the Real ID Act implementation, counters that the security precautions regarding handling sensitive personal data and hiring DMV workers, that are specified in the Real ID Act and in the DHS final rule, provide sufficient protections against unauthorized use and theft of such personal data (pages 5281-5283 of the DHS final rule in the Federal Register).
Another privacy concern raised by the privacy advocates, such as the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, is that the implementation of the Real ID Act will make it substantially easier for the government to track numerous activities of Americans
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and conduct their surveillance
Surveillance
Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...
.
Supporters of the Real ID Act, such as a conservative think-tank the Heritage Foundation
Heritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
, dismiss this criticism under the grounds that states will be permitted (by law) to share data only when validating someone's identity.
The Data Privacy and Integrity Advisory Committee, which was established to advise the Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security's proposed rules for the standardization of state driver licenses on May 7, 2007. The committee stated that "Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate," and "The issues pose serious risks to an individual’s privacy and, without amelioration, could undermine the stated goals of the REAL ID Act."
Congressional efforts to change or repeal the Real ID Act
On February 28, 2007 U.S. Senator Daniel AkakaDaniel Akaka
Daniel Kahikina Akaka is the junior U.S. Senator from Hawaii and a member of the Democratic Party. He is the first U.S. Senator of Native Hawaiian ancestry and is currently the only member of the Senate who has Chinese ancestry....
[D-HI] introduced the Senate Bill S. 717, "Identification Security Enhancement Act of 2007", subtitled:
"A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security".
The bill is co-sponsored by Senators Lamar Alexander
Lamar Alexander
Andrew Lamar Alexander is the senior United States Senator from Tennessee and Conference Chair of the Republican Party. He was previously the 45th Governor of Tennessee from 1979 to 1987, United States Secretary of Education from 1991 to 1993 under President George H. W...
[R-TN], Max Baucus
Max Baucus
Max Sieben Baucus is the senior United States Senator from Montana and a member of the Democratic Party. First elected to the Senate in 1978, as of 2010 he is the longest-serving Senator from Montana, and the fifth longest-serving U.S...
[D-MT], Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
[D-VT], John E. Sununu
John E. Sununu
John Edward Sununu is a former Republican United States Senator from New Hampshire, of Lebanese and Palestinian Christian ancestry. Sununu was the youngest member of the Senate for his entire six year term. He is the son of former New Hampshire Governor John H...
[R-NH], Jon Tester
Jon Tester
Jon Tester is the junior U.S. Senator for Montana, serving since 2007. He is a member of the Democratic Party. He previously served as President of the Montana Senate.-Early life, education, and farming career:...
[D-MT]. The bill was read twice and referred to the Senate Committee on the Judiciary on February 28, 2007.
A similar bill was introduced on February 16, 2007 in the U.S. House of Representatives by Rep. Thomas Allen [D-ME], with 32 co-sponsors (all Democrats). The House bill, H.R. 1117, "REAL ID Repeal and Identification Security Enhancement Act of 2007", is subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security."
On May 23, 2007, the House Oversight and Government Reform Committee referred H.R. 1117 to the Subcommittee on Government Management, Organization, and Procurement.
A more limited bill, S. 563, that would extend the deadlines for the states' compliance with the Real ID Act, was introduced on February 13, 2007 in the U.S. Senate by Sen. Susan Collins
Susan Collins
Susan Margaret Collins is the junior United States Senator from Maine and a member of the Republican Party. First elected to the Senate in 1996, she is the ranking member of the Senate Committee on Homeland Security and Governmental Affairs...
[R, ME], together with Senators Lamar Alexander
Lamar Alexander
Andrew Lamar Alexander is the senior United States Senator from Tennessee and Conference Chair of the Republican Party. He was previously the 45th Governor of Tennessee from 1979 to 1987, United States Secretary of Education from 1991 to 1993 under President George H. W...
[R, TN], Thomas Carper [D, DE], Charles Hagel [R, NE], and Olympia Snowe
Olympia Snowe
Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,...
[R, ME].
See also
- PASS IDPASS IDPASS ID is a proposed U.S. law intended to replace REAL ID. Like REAL ID, it implements federal standards for state identification documents. Currently, states are not obligated to follow the standards, but if PASS ID takes full effect, federal agencies will only accept identification from states...
- Coalition for a Secure Driver's LicenseCoalition for a Secure Driver's LicenseThe Coalition for a Secure Driver’s License is a 501 non-partisan not for profit crime prevention education charity incorporated in Washington, D.C...
- Identity documentIdentity documentAn identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
- Internal passportInternal passportAn internal passport is an identity document used in some countries to control the internal movement and residence of its people. Countries that currently have internal passports include Russia, Ukraine, China and North Korea...
- VeriChipVeriChipVeriChip was the only Food and Drug Administration -approved human-implantable radio-frequency identification microchip. It was marketed by PositiveID, a subsidiary of Applied Digital Solutions, and it received United States FDA approval in 2004. Its manufacture and marketing were discontinued in...
- Registered TravelerRegistered TravelerThe Registered Traveler Pilot Program was an airline passenger security assessment system tested in the United States air travel industry in 2005. It was used in several U.S. airports in a voluntary pilot phase and continues in operation in several airports around the country...
External links
- REAL ID Solution: REAL Search: The Law requires Verification of all forms of ID. Perform Verification of SSN & EIN Numbers & Drivers License Verification. Offers a Free Trial & various subscriptions
- Broad coalition launches campaign to urge the public to submit comments to Dept. of Homeland Security regarding REAL ID program. Comments due May 8, 2007. http://www.privacycoalition.org/stoprealid/
- Actual proposed rules Search ID: DHS-2006-0030-0001 Click on "Docket ID" for commentary.
- Real ID - The Art of the Possible http://www.diamondconsultants.com/PublicSite/ideas/perspectives/downloads/INSIGHT%20-%20Real%20ID.pdf
- National Governor's Association (NGA) and National Council of State Legislator's (NCSL) REAL ID Impact Analyis http://www.nga.org/Files/pdf/0609REALID.PDF
- 9/11 Security Solutions, LLC Identity Document Security Library http://www.911securitysolutions.com/index.php?option=com_content&task=view&id=125&Itemid=45
- U.S. Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia
Title: Understanding the Realities of REAL ID: A Review of Efforts to Secure Drivers' Licenses and Identification Cards
http://www.senate.gov/~govt-aff/index.cfm?Fuseaction=Hearings.Detail&HearingID=430 - NoNAIS.org http://NoNAIS.org which covers developments around the US REAL ID proposal as well as the USDA National Animal Identification System which is a remarkably similar system for animals.
- From California DMV: Report to the Legislature on the Status of the REAL ID Act
- Legislators Against REAL ID http://legislatorsagainstrealid.com/
- REAL ID Nightmare http://www.realnightmare.org/
- The American Civil Liberties Union's position against REAL ID http://www.aclu.tv/realid
- Report: No Freedom Without Privacy: The Real ID Act's Assault on Americans' Everyday Lives, an NYCLU report on the Real ID Act's impact on civil liberties.
- Comments of the Electronic Privacy Information Center (EPIC) and [Experts in Privacy and Technology] against Homeland Security's Real_ID Bill http://www.epic.org/privacy/id_cards/epic_realid_comments.pdf
- Alaska Libertarian Party on the REAL ID Act and the Tenth Amendment. http://www.lpalaska.org/?m=200706
- Liberty Coalition on National ID http://libertycoalition.net/issues/national-id-0?page=2
- Beware the IDs of March http://www.lewrockwell.com/tennant/tennant20.html
- Real ID Vulnerabilities: A Real Security Threat
- Coalition for a Secure Driver's License, an advocacy group supporting the Real ID Act