Wednesday, March 07, 2007

Let's start with the long ago part. For generations, this country's laws granted citizens the maximum degree of privacy possible. Such policy was, in essence, a check on government power and its potential abuse.

Thus, when the federal government instituted Social Security back in the 1930s, there was strong opposition to the part of it that created individual identification numbers for each citizen. Would the government only use those numbers for specific, and benign, purposes? Or would the United States go the way of totalitarian governments, knowing who you were, where you were and what you did at every moment?

Battles have been fought every decade since then over expanding the Social Security system's application to other programs and purposes. Virtually every administration has gone on record as opposing the establishment of a national identification system. In 1981, for example, the Reagan administration stated that it was "explicitly opposed" to creation of a national identity card, as did the Carter administration before it, several federal committees and the Social Security Administration itself.

IMPACT OF 9/11

Now to the more recent history, which starts with the deadly attacks of 9/11. Several of the hijackers who perpetrated the attacks were in the country illegally and possessed fraudulently obtained drivers' licenses.

The 9/11 Commission subsequently recommended that the federal government require states to establish much tighter, and uniform, standards for the issuance of drivers' licenses in order to make more difficult the kind of fraud that was an element of the 9/11 attacks.

Aware of how sensitive the privacy issue was, Bush administration officials and their allies in Congress disavowed the creation of any national identity card. The enabling legislation for the Department of Homeland Security stated that the agency would not create a national identity system. And in 2004, then-Secretary of Homeland Security Tom Ridge said "the legislation that created the Department ... was very specific on the question ... They said there will be no national ID card."

Instead, the 9/11 Commission's driver's license upgrade recommendation was adopted in the Intelligence Reform and Terrorism Prevention Act of 2004, a bipartisan bill that, among many other things, established a committee of federal and state officials and citizens to devise regulations to make licenses more secure while not unduly burdening states or impinging on individual rights and liberties. Given that the issue represented the convergence of a number of very sensitive subjects to Americans -- terrorism, privacy and immigration -- that was the proper way to go about devising new standards, which would then have been vetted by Congress when they were considered as legislation.

REAL ID ACT SNEAKS BY

But then, that careful process was blown to smithereens in May 2005 when a provision was attached to a supplemental spending bill that provided money to the troops in Iraq and tsunami victims. That provision created the Real ID Act, which repealed carefully crafted and bipartisan language in the Intelligence Reform Act and was passed without debate or public comment. The Department of Homeland Security was now directed to take over the job of devising the new driver's license standards.

The department announced that states would have to re-issue all drivers' licenses, require drivers to present a large number of documents to get those licenses, store those documents on a database and share all that information with the federal government. It would cost huge amounts of money, create the first large-scale national database on citizens and impose an administrative burden on states like nothing they'd ever seen before. And do it all by 2008.

Which is how we got to the great conflict we're in now as a nation. Both Republicans and Democrats have slammed the administration for dumping an unfunded mandate on the states that establishes a de facto national identity card. By creating a vast national database of information about citizens, critics say the Act will make citizens seriously vulnerable to identity theft as well as abuses of government power.

We believe that the 9/11 Commission's recommendation to tighten up driver's license requirements was a sound one. We need better systems that reliably verify who we are and that are less vulnerable to fraud. We believe that the country was well on the way to devising a reasonable set of regulations that would have produced a better ID. The Intelligence Reform Act promised to do that while setting into statute privacy protections; the Real ID Act does not. What started out as a reasonable road to better security got hijacked along the way by the Real ID Act and now we're in a mess.

BIPARTISAN MOVE TO FIX IT

Thankfully, the pressure to fix what's wrong with Real ID has come from a bipartisan chorus across the country. That pressure, including legislation from both Sen. Susan Collins, a Republican, and Rep. Tom Allen, a Democrat, has resulted in a chastened Department of Homeland Security. Last week, after intense negotiations spearheaded by Collins, Secretary Michael Chertoff announced the new rules for enhanced drivers' licenses. And in doing so, he backed down a bit. He said the deadline for states to comply with the act would be postponed and that the committee that had originally been formed to come up with rules would be consulted again.

That was a victory, but not quite enough. The draft rules proposed by Chertoff leave a lot of questions unanswered about how states will pay for the program. They contain barely a nod to privacy concerns such as how data will be shared and how it will be kept secure.

There will be a public comment period on the proposed rules, which is good, but that still doesn't make up for the lack of public hearings on Real ID when it was passed. So Sen. Daniel Akaka, D-Hawaii, has announced that he will hold hearings on Chertoff's implementation plan for Real ID. The lack of those hearings is what created the chaos we're in right now -- you can't impose such dramatic and expensive regulations that alter the foundation of this country's treatment of its citizens without the input of those citizens. And in the meantime, Akaka is keeping alive his bipartisan bill to repeal Real ID as a stick to keep Chertoff in line.

While we don't agree with some critics who say that any enhanced identification program is totalitarian government at its worst, we do agree with those who say that there are serious risks in the Real ID program that need to be debated and serious challenges that need to be resolved. That debate should have happened before the program's rules were announced -- not after.