The Public Policy

Getting Real

Maine's state legislature balks at post-9/11 federal driver's license standards -- will its residents ever be allowed on board an airliner again? Or inside a federal building?

By 2.1.07

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State legislatures are grappling with the tricky balance between security and civil liberties. Last week, Maine became the first state to reject a federal law mandating new standards for driver's licenses. While libertarians, privacy advocates, and a majority of legislators in Augusta applauded the move, the father of a man killed in the Sept. 11 terrorist attacks argued it was a mistake.

"Driver's licenses are a key terrorist tool that open doors to places we cannot allow terrorists to enter again," said Peter Gadiel, president of 9/11 Families for a Secure America and a member of the Coalition for a Secure Driver's License. "The al Qaeda cell that killed my son in the World Trade Center got its licenses from Florida, Maryland, California and Virginia."

All but one of the 9/11 hijackers acquired some form of U.S. identification, some fraudulently, helping them board commercial flights, rent cars -- and kill Americans. Two of the terrorists boarded a plane in Portland, Maine, the day of the attacks, before transferring to another plane at Boston's Logan Airport.

The Real ID Act was passed in May 2005 to fulfill a 9/11 commission recommendation that states issue nationally uniform driver's licenses. Supporters of the law say it will prevent terrorism. The commission described entry points to vulnerable facilities as "the last opportunity to ensure that people are who they say they are and to check whether they are terrorists." In the commission's final report card, the government earned one of its better grades for enacting the law.

The measure requires states to comply with minimum security standards for issuing state driver's licenses by May 2008. Otherwise, driver's licenses from non-abiding states will not be accepted for boarding flights or entering federal buildings. Licenses must contain a digital photograph, be machine-readable, and contain security features.

Real ID also requires proof that the applicant is legally present in the country before a license or official identification card is issued. The cards could only be issued to legal immigrants for the period in which they are permitted to be in the country. For those without such proof, states would be permitted to issue driver's licenses that could not be used for federal purposes, such as presenting identification to board a flight.

But opponents say they are looking for a little security from Big Brother. They contend the Real ID Act will lead to a national ID card, violating states' rights and personal privacy alike. They are hoping Maine will live up to its state motto of "I lead" and that other states will follow. If enough states reject Real ID, Congress may be forced to change the law -- though they risk issuing driver's licenses that aren't recognized by the federal government.

Privacy advocates are particularly concerned about the act's requirements that a state gather and store large quantities of personal information in issuing the licenses, saying it would offer a boon to identity thieves. States are required to store copies of documents used to apply for the license. States must also provide electronic access to other states to the information kept in their databases.

Critics also say the cost of the Real ID Act is unreal, citing estimates that compliance could cost more than $11 billion over the first five years. That figure has been challenged by proponents of the law, who point out that the specific requirements have yet to be decided by the Department of Homeland Security (DHS). They also worry the law will lead to unlicensed drivers on the road because illegal immigrants will be unable to comply.

Congressman James Sensenbrenner (R-Wis.), the sponsor of the act, says many of these fears are overblown. "Real ID merely sets out uniform security standards for state drivers' licenses," and by improving their security it will weaken any movement to create a national ID, he said. He added that the law included requirements to protect the collected data from would-be identity thieves.

Amanda Bowman, a board member of the Coalition for a Secure Driver's License, also defended the Real ID Act. If just one state continues issuing licenses lacking security, the whole nation will remain vulnerable, she said. Bowman said "the privacy issue is a bogus one here -- you live in a world where you have to balance all the time" privacy and security.

Sensenbrenner argued that similar legislation in Tennessee hasn't led to a flood of unlicensed illegal immigrant drivers. And Bowman maintained that there is no legitimate states' rights concern because states still grant the licenses while they "play off the same song sheet."

As some states move to consider rejecting the Real ID Act, DHS is expected to shortly give it another green light toward implementation. It will propose the specific requirements for driver's licenses by the end of March, which will be followed by a period of public comment before the proposal is finalized.

But more roadblocks may be ahead. Sen. Daniel Akaka (D-Hawaii) has said he will "not hesitate to pursue a legislative change to Real ID" if he finds DHS's proposed rule sacrifices privacy and unduly burdens the states.

Meanwhile, the law's May 11, 2008 deadline is approaching. But with the debate intensifying, you might be able to delay getting in line for that new license.

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About the Author

Eleanor Stables is a British American and associate editor of the American Enterprise Institute's magazine the American.