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The New Threat of Big Brother: The REAL ID Act: Newsroom: The 
Independent Institute

The New Threat of Big Brother: The REAL ID Act
March 10, 2005
William J. Watkins Jr.

The United States Senate is the most august deliberative body
in the world. In Federalist No. 63, James Madison, the principle
architect of the U.S. Constitution, reasoned that with fewer members
and longer terms than the House of Representatives, the Senate
would be insulated from the pressures of reckless popular politics.
Hence, it would possess the requisite coolness needed
for self-restrained deliberation.

With the REAL ID Act just approved by the House in a 261–161 voice
vote, temperate deliberation on the Senate floor is sorely needed.
Proponents of the REAL ID Act claim it is an anti-terrorism measure
meant to protect American lives. According to House Judiciary Chairman
James Sensenbrenner (R-Wisc.), the legislation’s author, the Act will
“prevent another 9/11-type attack by disrupting terrorist travel.”
Although the Act will make it easier for the national government
to monitor suspected terrorists, it also lays the groundwork
for a national identification system
that threatens to invade the privacy of ordinary Americans.

At first blush, the requirements of the REAL ID Act
do not appear onerous. For example, the Act commands state governments
to include nine categories of information on all state-issued driver’s
licenses such as full legal name, a digital photograph,
and address of principle residence.
These items are already found on most, if not all, driver’s licenses.

However, the ninth category requires states to use a
“common machine-readable technology, with defined minimum data elements.”
In implementing this and the other requirements, the Secretary of
Homeland Security would be empowered to impose regulations arbitrarily
on all citizens. This broad and highly intrusive power is key,
considering the recent advancements in technology.

Radio frequency identification (RFID) chips, which are smaller
than the width of a human hair, currently can hold up to 64K of memory
—an amount of storage capacity that not long ago was standard
for most personal computers. These chips can easily store biometric
data such as a person’s digital fingerprints, iris scans,
or DNA information. With a quick scan of the chip,
the data can be broadcast to a federal official with the proper
scanning equipment. These chips are already being used
by the State Department in its new “smart passports”
and could easily be integrated into other types of identification cards.

With federal regulation, the Homeland Security Secretary could
require states to adopt RFID technology in driver’s licenses.
The Secretary might also require that these chips contain fingerprints,
iris scans, and other biometric data. In addition, the Secretary
could require the states to include personal information such as
criminal history, employment history, or firearm ownership
—all in the name of “homeland security.” As RFID technology improves,
the chips in driver’s licenses could even be read remotely
at greater distances, permitting the federal and state governments
to know a citizen’s location at any time.

If states were to fail to implement the Secretary’s requirements,
federal agencies would refuse to accept the driver’s license
for official purposes. This means that a citizen would not be permitted
to board planes and trains if his identification card
(i.e., a driver’s license) does not meet the federal standards.
This clearly clashes with the Supreme Court’s recognition of the right
to travel as a fundamental right that can only be burdened
by restrictions narrowly tailored to serve a “compelling”
governmental interest. While the government certainly has a compelling
interest in protecting Americans from terrorist attacks, jeopardizing
the privacy of all American citizens is not warranted. Surely
safeguarding Americans can be furthered by a far less restrictive
and intrusive mechanism than that prescribed by the REAL ID Act.

Not surprisingly, the REAL ID Act is opposed by diverse groups including
the American Civil Liberties Union, American Conservative Union,
Free Congress Foundation, Amnesty International, and U.S. Conference
of Catholic Bishops. Rather than fighting terrorism, Marvin J. Johnson,
the ACLU Legislative Counsel, predicts that the REAL ID Act will
“only serve to restrict our freedoms and invade our privacy.”

Considering the carte blanche that would be given to the Secretary to
promulgate regulations regarding “common machine-readable technology,”
the concerns raised by the ACLU and other groups are very real.
So far, our massive leaps in technology have not brought Orwellian
monitoring by Big Brother. The REAL ID Act, however, could change
this completely. At the very least, it places too much discretion
in the hands of the Homeland Security Secretary to monitor Americans
and unnecessarily interferes with the fundamental right to travel.

It also lays the groundwork for a national ID system common in some
European and South American counties. In many of these systems,
citizens are required to keep their ID cards (“your papers”) with them
at all times, and they face stiff penalties for failure to comply.
Americans have been insulated from such a system in which government
officials can arbitrarily demand their “papers.”
The REAL ID Act is unfortunately a giant step in this direction.

James Madison envisioned the Senate blocking legislation sparked by
“irregular passions” and “artful misrepresentations” that might influence
the House of Representatives. There are perhaps no two
better phrases to describe the impetus behind REAL ID Act than those
used by Madison over 200 years ago. Let us hope that the Senate
will live up to Mr. Madison’s expectations by rejecting
this latest legislation that unnecessarily circumscribes liberty
in the name of national security.

William J. Watkins, Jr. is a Research Fellow at The Independent
Institute in Oakland, Calif. and author of the Independent Institute
book, Reclaiming the American Revolution.
For updates and info, contact scott at planttrees dot org.