Inside Augusta

REAL ID is a privacy-eroding overreach by the federal government

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In 2005, the United States Congress passed the REAL ID Act, with the purpose of establishing “minimum security standards for license issuance.” The Act was recommended by the 9/11 Commission and set standards for states to issue state IDs or driver’s licenses to their residents. The state of Maine was initially opposed to the idea of complying with the REAL ID Act. In response, the state legislature passed LD 1138 to prevent Maine from complying with the REAL ID Act in 2007, primarily due to concerns about it being an overreach by the federal government.

This sentiment wasn’t unique to Maine; only 23 states and the District of Columbia were compliant with the REAL ID Act in 2016. Since then, most states have succumbed to the pressure from the federal government. According to the Department of Homeland Security’s website, only five states still have extension waivers. State waivers can no longer be renewed starting in 2020.

Maine overturned LD 1138 in 2017, when legislators directed the Secretary of State to implement REAL ID by 2019. Sure enough, the Secretary of State made REAL IDs available to the public on July 1, 2019. This begs the question: Why was Maine reluctant to comply with the REAL ID Act, and is it an overreach by the federal government?

First and foremost, lawmakers were concerned that the REAL ID Act would facilitate a national ID, otherwise known as an internal passport. In addition, the standards set forth in the REAL ID Act requires individuals to have their photograph taken with facial recognition technology as well as have their social security card and birth certificate scanned to a digital record. 

The concerns about the REAL ID Act turning into an internal passport have become a reality. While an individual has the freedom to opt-out of obtaining a REAL ID, the consequences of doing so make it impossible to travel or enter a federal facility using only a driver’s license or state ID. For example, if a Maine resident does not obtain a REAL ID by October 1, 2020, they will not be able to fly on a federally regulated commercial aircraft. In other words, don’t plan on flying to Disney World without a REAL ID or a passport.

Lawmakers and the governor were fearful that non-compliance would significantly impact Mainers if state government did not act. In this scenario, states either had to conform to the federal government’s demands or its citizens would suffer the consequences put forth by the federal government.  

In addition, federal government agencies have utilized state databases to obtain information to assist in their investigations. According to a report from the US Government Accountability Office, the Federal Bureau of Investigation (FBI) has access to facial recognition databases in 21 states containing more than 641 million photographs. This has resulted in the FBI conducting 390,186 searches at the time of the report. Giving the federal government unlimited access to this information is the antithesis of federalism and violates the privacy of state residents, especially when searches are conducted without their knowledge.

The worst part? The Department of Homeland Security can amend their rules anytime to include more burdensome information. In his testimony on LD 306, Maine Secretary of State Matthew Dunlap noted that this “required” information could eventually become more personal, such as a thumbprint or iris scan. Another relevant portion of his testimony recalled moments in history in which information had been abused by the federal government:

“What sets us apart as a nation is that we are, ostensibly, free of government surveillance; that we can travel unimpeded, engage in our business, and speak our minds without fear of that midnight knock on our doors. Our history of abrogations of that freedom is checkered enough; the FBI investigations of clergy opposed to the Vietnam War, the constant surveillance of Martin Luther King, Jr. and the other leaders of the civil rights movement, and even tracking the movements of Hollywood actors who were thought to be engaged in discussions with suspected Communists are enough to remind us to be vigilant in the protection of our rights as American citizens.”

Thankfully, Secretary Dunlap has refused to give the federal government unlimited access to Maine’s databases saying, “Maine residents don’t have much to worry about. We don’t allow wholesale access to our databases.” Federal agencies will need to make a request to Dunlap’s office and will either be approved or denied based on the criteria and rationale of their request. Thus, Mainers’ data is not available for the FBI or any other federal agency for the purposes of conducting a mass search. 

In sum, your data may be protected from the federal government for the moment, but you will need either a passport or REAL ID to travel on commercial aircraft starting in October 2020, which will undoubtedly cause burden for some individuals. Congress should reconsider the merits of the REAL ID Act and pursue other avenues of providing security that do not infringe upon the rights of states or individuals.

About Adam Crepeau

Adam Crepeau serves as a policy analyst at The Maine Heritage Policy Center. He can be reached at acrepeau@mainepolicy.org.

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