Constitutional Law

DHS Secretary Janet Napolitano Says: ?Repeal Real ID?

By Mary Bonventre, Technology & Liberty Program

The Real ID Act of 2005 has faced one major setback after another, and Tuesday, even the Deparment of Homeland Security (DHS) threw up its hands in defeat. In remarks delivered at the Anti-Defamation League National Leadership Conference, DHS Secretary Janet Napolitano admitted that Real ID was not working, and revealed plans to "repeal REAL ID and substitute something else that pivots off of the driver’s license but accomplishes some of the same goals."Excellent idea.

While it wasn’t expressly mentioned during her remarks, a change that drastic would require action from Congress. I assume that means we should expect federal legislation to repeal Real ID and replace it with new statute. The ACLU has been advocating this idea for years.

In her Tuesday remarks, Secretary Napolitano framed the debate perfectly: "The question is: how do you have that relationship in such a fashion that people’s privacy rights are not violated?"Our answer: a negotiated rulemaking process that brings state and federal officials and nongovernmental organizations to the regulatory table, with an emphasis on civil liberties. In the 110th Congress, we supported the Identification Security Enhancement Act of 2007, which repealed the Real ID Act and restored the negotiated rulemaking process established in the Intelligence Reform and Terrorism Prevention Act of 2004.

A negotiated rulemaking process could offer Americans a secure form of identification well before Real ID would be scheduled to go into effect. It would also secure drivers’ personal information, protect privacy, and uphold states’ ability to determine the rules governing drivers’ licenses. From the beginning, the Real ID Act was just one politician’s pet scheme that only passed because it was attached to a must-pass 2004 tsunami relief measure. It was never properly designed to be an effective security measure, and it shows.

It’s worth noting too the context of the question. The secretary was asked:

After the Holocaust, many survivors were very wary of any kind of government documents or identifying papers. Many Jews were even scared to circumcise their children for fear that the government could too easily identify them. How do we balance our need to identify people to protect our security with the kind of American feeling that they have a right to privacy and you have a right to not have to identify yourself to the government, and you should be able to just live anonymously about the government knowing too much about who you are or what you do every day?

The fear of unjust government action based on identity papers goes to the heart of the ACLU’s concern about Real ID.

Secretary Napolitano should be commended for her honesty and commitment to genuine homeland security. Now it’s time for Congress to pony up and admit that the Real ID Act is a failure that must be repealed.

Full post as published by Blog of Rights on April 24, 2009 (boomark / email).