REAL ID and Domestic Violence
REAL ID creates minimum standards for driver's licenses that states must implement by May 11, 2008. These standards effectively create a national ID with serious implications for domestic violence survivors. Lawmakers did not consider these implications fully as the REAL ID act was put into a "must pass" bill appropriating money for tsunami relief and defense. Pub. Law 109-13. REAL ID was added to this bill without any hearings.
The standards govern what information must be on the license, and in what format. The standards also set what documents must be used to obtain a license, and how states must verify these documents. Lastly, all states' information is added to a national database, sharing the information. REAL ID so far has not laid out the precise technical settings for these standards. Regulations are expected to finalize the details.
Congress is forcing compliance by punishing the driver's license holders. Normally, Congress cannot directly force the states to make their drivers licenses in a particular way. Congress hopes to prod the states by requiring people to show REAL ID compliant drivers licenses for employment, interstate travel and other federal purposes. Thus not only are states forced to comply with REAL ID, but individual citizens who already have valid ID will have to return to their state motor vehicle departments and apply for new, REAL ID compliant identification. It is expected that implementation will cost 11 billion dollars. National Governor's Association, et al, The Real ID Act: National Impact Analysis, September 2006.
- National Identification Plan Announced.Department of Homeland Security Secretary Michael Chertoff today released the agency's final regulationsfor REAL ID, the national identification system. The proposal has drawn sharp criticism from state governments, members of Congress, civil liberties advocates, and security experts(pdf). The Secretary scaled back some of the requirements, reduced the cost, and extended the deadline for state compliance. However, Secretary Chertoff also indicated that the REAL ID card would be used for a wide variety of purposes, unrelated to the law that authorized the system, including employment verification and immigration determination. He also indicated that the agency would not prevent the use of the card by private parties for non-government purposes. As part of the cost-saving effort, Homeland Security has decided not to encrypt the data that will be stored on the card. Congress is considering legislation to repeal the Act. View EPIC's press release: Homeland Security Department Announces Deeply Flawed Regulations For National ID System. (January 11)
- EPIC, 24 Experts Call for Repeal of Unworkable REAL ID Act, Highlighting Impact on Domestic Violence Survivors.Today, EPIC and 24 experts in privacy and technology submitted comments(pdf) on the Department of Homeland Security's draft implementation regulations for the REAL ID Act. The group warned the federal agency not to go forward with the REAL ID proposal. The group said that the ill-conceived plan would create new security risks for the American public, such as increasing the risk of and the damage caused by identity theft. Creating a national ID database full of personal documents such as birth and citizenship certificates, making that database accessible to thousands of people, while not requiring adequate security and privacy safeguards, will necessarily make us less secure as a nation and as individuals. REAL ID endangers address confidentiality and will make it easier for abusers to find their victims. (May 8).
Address Confidentiality Protection
REAL ID § 202(b) describes what minimum information must be on a drivers license or identity card:
(1) The person's full legal name.
(2) The person's date of birth.
(3) The person's gender.
(4) The person's driver's license or identification card number.
(5) A digital photograph of the person.
(6) The person's address of principle residence.
(7) The person's signature.
(8) Physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes.
(9) A common machine-readable technology, with defined minimum data elements.
Requiring principal places of residence effectively destroys many state address confidentiality programs. Address confidentiality programs are run by several states for survivors of domestic violence and sexual assault. Individuals are given a mailbox with their secretary of state or attorney general who forwards mail on to the individual. This address can also be used for official business with the state such as voter registration or service of process. Thus many state records will not have the real address of survivors of domestic assault. Perpetrators will not be able to use these records, or the many private sector databases that mirror these records, in locating their target.
The harm to the destruction of these address confidentiality programs is magnified by other provisions in REAL ID. As described below, REAL ID also increases the potential for collection and sharing of driver's license information in state and private sector databases. For a list of the states with address confidentiality programs, see this pageby the National Conference of State Legislatures.
The Violence Against Women Act of 2005 (VAWA) requires the Department of Homeland Security (DHS) to "consider and address the needs" of survivors whose addresses are entitled to be confidential pursuant to state or federal law. VAWA § 827.
The final regulations issued by DHS exempt those in address confidentiality programs from having their residences on the card. They also allow state and DMVs rules or procedures to allow non-residential addresses on cards, or to suppress addresses via court order.
Surveillance and Tracking of Survivors Via Machine Readable IDs
Requiring a common machine readable technology exposes individuals to identity theft, and turns the drivers license into a surveillance and tracking system beyond a simple identification system. Making IDs easily machine readable changes the nature of the interaction when we identify ourselves. When another person visually checks your ID, they look to see if you match your ID. When a machine does it, it records the information on the card. Thus what used to be an ID check is now a recording, and thus, surveillance and data collection.
Bars, businesses and private entities will be reading these IDs, collecting the information on them, and building private databases. Some bars in the New York City area are already doing this:
Club managers love the gadget, and it's rapidly becoming standard issue at the bigger clubs in Manhattan, New Jersey and elsewhere. But the box does more than just check birth dates. It also retains the customer's name, address, license number -- even height, weight and eye color. All that information then can easily be downloaded into a computer system. Most patrons have no idea their information is being electronically stored -- nor are they asked if they mind.
Ian T. Shern, With ID Swipe, Big Brother Bellies up to the Bar, Star Ledger, Nov 21, 2006. These databases will include not just all the information from the license, but also be used for surveillance, tracking, and profiling purposes. The information collected at bars, retail establishments, or other private parties is valuable and can be sold to data brokers. For an example of a player on the personal data broker industry, see EPIC's page on Choicepoint.
Lastly, the requirements for what is placed on the REAL ID are minimum requirements. Some states may put more information on the ID, such as citizenship status, and may make this machine readable as well. This turns a driver's license into a proof of citizenship document.
Documents Required to Have A REAL ID Compliant License
REAL ID requires that documents be presented verifying the above information. § 202(c)(1). Furthermore, these documents are to be verified and checked for completeness with the issuing authority. § 202 (c)(3). REAL ID requires proof of US citizenship or lawful immigration status in order to get an Identification card or driver's license. § 201(c)(2)(B). For most Americans, this will be a birth certificate, a naturalization certificate, or US Passport. For immigrants, the driver's license must expire at the time that their visas are set to expire, or at most a year if there is no set expiration. § 201(c)(2)(C).
Driver's license applicants will be required to show a birth certificate, and this certificate's authenticity will have to be verified with the "issuing authority." Sometimes, fleeing domestic violence is a sudden and dramatic step. Domestic violence advocates, as part of their safety planning, counsel those in danger to keep documents in a place where they are ready to be taken in short notice. However, for some, their abusers may control these documents, or the flight has to be sudden. Therefore they may not have ready access to these documents.
State DMVs are permitted to develop exceptions to the document requirement for proof of identity or US citizenship. Exceptions may not be used to show lawful status other than US citizenship. The only foreign document accepted is a passport. §202(c)(3)(B). Immigrants whose abusers have taken their passport or other document to show lawful status will need to get another passport before they can get a REAL ID compliant driver's license.
Exposing Name History Information
DMV databases will be required to contain name histories -- all the different name changes one has gone through-- to the extent these names differ from source documents. However, the face of the card and the machine readable zone will only contain the current name. Domestic violence survivors often change their names, and keep the court records of the name change sealed, in order to escape their abusers. As an example, an individual may have changed their name at marriage, again at divorce, and then one more time in a sealed court order to escape an abusive ex. If this individual brings in this documentation along with a birth certificate, all of that name history will be recorded back to the birth certificate. This will expose name change histories to data breaches and insider fraud at DMVs. The REAL ID cards and machine readable zone are only required to show the current name.
Mandating REAL ID Compliance & Creating REAL ID Based Mandates
REAL ID is being implemented by putting those who do not get REAL ID licenses in a second-class status. The federal government cannot directly force states to issue driver's licenses in a particular way. But the federal government has other powers that it can use, and is mandating compliance by requiring citizen ID holders to get these REAL ID compliant driver's licenses. Beginning in May 2008, federal agencies will not accept any ID which does not comply with the requirements of REAL ID. § 201(a)(1). Since the Transportation Security Administration requires identification in order to fly, people without REAL ID cards will be unable to fly.
Additional legislation could piggyback on REAL ID and thus expand the number of requirements. Senate bill S 2611, on comprehensive immigration reform, requires REAL ID compliant licenses of citizens when they start jobs. That bill has passed the Senate but has not been ratified into law.
Domestic violence survivors who do not have a REAL ID will not be able to enter any federal government buildings, such as courthouses or prosecutor's offices. Federal agencies such as the social security administration, will not be permitted to accept their identification.
Lastly, voting rights groups fear that states implementing voting identification requirements will borrow the REAL ID standards. Thus voters will require REAL ID compliant driver's licenses.
Databases -- A National Out-of-Our Hands ID.
REAL ID effectively creates a National ID system that will be used by states and the private sector to track, profile and identify individuals. REAL ID mandates that the information in state motor vehicle databases must be made available to other states in electronic format. §202(d)(12). Thus the 50 state identification systems will in reality be unified into one.
This database will be a rich target to identity thieves and those wishing to access the personal information of individuals. States will not only be keeping driving or motor vehicle records, but they also have to maintain electronic copies of the supporting documents used to gain a license. § 202(d). Abusers seeking personal information will find a trove of it in their state DMV. The widespread sharing of the data with all the states could harm the confidentiality of information that is in the database. All an abuser needs is to compromise, or gain a conspirator, in one state DMV, and they will be able to access information on their target anywhere in the country.
Allowing the cards to be machine readable will spur the growth of unregulated private databases. The Drivers Privacy Protection Act (DPPA) restricts what state motor vehicle departments can do with our data. See EPIC's DPPA page. But REAL ID facilitates the private sector end run around this protection. Bars, retail establishments, and other entities will look for ways to scan cards of their patrons. These individual entities will be building databases as well as potentially selling the personal data to information brokers creating nationwide databases. For more on the data broker industry, see EPIC's Choicepoint page.
REAL ID has potential to severely harm the privacy interests of domestic violence survivors. REAL ID endangers domestic violence survivors at moments when they most require privacy and other confidentiality. Exceptions from REAL ID requirements for domestic violence survivors will not adequately protect domestic violence survivors. REAL ID's harms to privacy may come before someone is subject to domestic violence.
- REAL ID Worries Domestic Violence Groups, C|Net, February 8, 2008.
- Hiding from REAL ID, ReasonOnline, February 1, 2008.
- Text of Real ID.
- Text of VAWA 2005.
- EPIC National ID Page / Real ID Page. Tracking the REAL ID act.
- EPIC RFID Page. RFID may be used as the REAL ID required common machine readable technology.
- Address Confidentiality Programs and Confidential Voter Listings. List by the National Network to End Domestic Violence.
- Summary of REAL ID provisions. By the National Conference of State Legislatures.
- REAL ID: National Impact Analysis. A report by the National Governor's Association, the National Conference of State Legislatures and the American Association of Motor Vehicle Administrators. The report estimates the cost of REAL ID implementation to be 11 billion dollars.
- RealNightmare: ACLU website on REAL ID.
- Analysis of REAL ID text. By the Congressional Research Service (pdf).
- Letter to Congress from the National Network to End Violence Against Immigrant Women.. Describing the impact that REAL ID will have on battered women. (pdf).
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Communications Law and Policy
Jerry Kang and Alan Butler