A decade-long stalemate between Washington State and Washington, DC may end this year if a bill being considered by the state legislature ends up passing. The conflict stretches back to 2005, when Congress passed the REAL ID Act, which mandates technical and procedural standards that states must follow before issuing driver’s licenses and ID cards. In theory, once the law is implemented, licenses issued by states that don’t follow REAL ID standards cannot be used to access federal buildings or airports.  

But while Congress was willing to dictate onerous standards to the states, they did not provide any funding to implement REAL ID, expecting that the states would foot the bill (estimated at $11 billion).

Almost immediately after REAL ID passed, there was a collective uproar among the states, which were facing a big implementation cost, but also genuine concerns about the far-reaching implications of a congressionally-mandated national identification standard. Washington was one of the States that refused to comply, passing a law in 2007 with broad bipartisan support that prohibited spending state funds to implement the REAL ID (the vote in the State Senate was 41 to 4, and the House vote was 95 to 2). This set up a decade-long staring contest between the Department of Homeland Security (the federal agency tasked with implementing the law) and lawmakers in Olympia.  It appears, however, that Olympia is about to blink.

 National Security or National Identification?

The REAL ID act was passed in response to the 9/11 Commission’s recommendations, ostensibly to address the risk that would-be terrorists access federal buildings with state-issued identification cards. (Four of the nineteen 9/11 hijackers had state-issued identification cards.)

States would have to make the ID cards or driver’s licenses “machine readable” so that the individual’s movements and personal information can be tracked and stored.

As the Electronic Privacy Information Center (EPIC) explains, to comply with REAL ID, states would have to require those seeking a driver’s license or ID card to provide certain documents, such as (1) a valid unexpired U.S. passport; (2) a certified birth certificate (or consular report of birth abroad); (3) an unexpired permanent resident card; (4) an unexpired employment authorization document; (5) an unexpired foreign passport with valid U.S. visa affixed and “the approved I-94 form documenting the applicant’s most recent admittance into the United States”; (6) U.S. certificate of naturalization or citizenship.

States would have to make the ID cards or driver’s licenses “machine readable” so that the individual’s movements and personal information can be tracked and stored. And states must opt into a nationwide database that makes all this information available to all the other states and to the federal government. 

In other words, REAL ID creates a national ID card, and a national database on each person carrying a card.

Despite being one of President George W. Bush’s signature bills, Washington state was hardly alone in refusing to implement REAL ID—opposition to REAL ID was immediate and bipartisan. Maine’s state legislature quickly passed a resolution refusing to implement the act. And in Utah the legislature unanimously passed a resolution condemning REAL ID as an unfunded mandate that “coerces states into doing the federal government’s bidding.” Twenty other states joined Maine, Utah, and Washington in opposing the law.

REAL Bad Policy

Under heavy pressure from DHS, the Washington state legislature is now considering a bill—supported by the Governor’s office and the State Department of Licensing—that would create a two-tiered system for driver’s licenses and identification cards, in order to comply with the REAL ID Act.

The most strident objections to the Governor’s proposal have come from members of the Latino community, who point out that the two-tiered license system—which would mark licenses issued to non-citizens with statements like “federal restrictions apply”—would expose Latinos to racial profiling, housing and employment discrimination, and potentially even deportation. But Latinos are hardly the only ones who should be concerned about this bill. Fully implementing REAL ID is a bad policy for several reasons. 

First, REAL ID does not make us safer. The law was pitched as a way to strengthen America’s national security by making it harder for would-be terrorists to get driver’s licenses. But there is no link between obtaining driver’s licenses and terrorism.  Nor is there any link between undocumented immigrants and terrorism. In fact, not a single terrorist threat has been unraveled because of an inability to get a driver’s license.  

Had all 50 states implemented REAL ID as soon as it was passed, we would have spent $11 billion to prevent exactly zero terrorist plots. Not exactly what one would call a healthy “return on investment.”

The absence of a credible link between terrorism and national ID cards would have come out during congressional testimony had there been a real debate on the bill. But REAL ID was passed as a rider to a tsunami relief and military appropriations bill—without a single hearing in the Senate.  In other words, Congress passed REAL ID without much debate or deliberation.  Against this backdrop, it is hard to take seriously the notion that REAL ID will make us safer. 

Even more worrisome than the threat from hackers is the notion that we would be giving the federal government reams of data on our movements.

Second, it is very likely that REAL ID will make us less safe by making us more vulnerable to data and identify theft on a nationwide scale. A database containing information on every American’s personal identification and movements would be a gold mine for hackers. Worse still, to cut costs the data stored on each ID card does not have to be encrypted, making it that much easier for hackers to break in. Despite assurances from the federal government that it can safely store all this data, the government doesn’t have a strong track record.  (Let’s not forget about that 29-year-old contractor who was able to make off with the Crown Jewels of the intelligence community.)

Even more worrisome than the threat from hackers is the notion that we would be giving the federal government reams of data on our movements. Once the 50-state database is put in place, the federal government will have the infrastructure necessary to monitor the routine movements and activities of everyone with a driver’s license and ID card.

These privacy concerns are not the product of the “tinfoil hat” community. Groups that oppose REAL ID include libertarian groups like the CATO Institute, human and civil rights organizations like the ACLU, labor groups such as the AFL-CIO, interest groups like gun owners, and even the editorial pages of the Wall Street Journal, the New York Times, the Los Angeles Times, and the old Seattle Post-Intelligencer. Notably, as a candidate for President back in 2008, then-Senator Obama found common ground with then-Representative Ron Paul, who both opposed REAL ID.

The third reason we should be concerned about the prospect of Washington state implementing the law is that REAL ID places an incredible burden on all immigrants and the state agencies charged with issuing driver’s licenses and ID cards. Specifically, the law requires states to deny a card to any applicant that (1) cannot verify his or her legal status, (2) fails a check through the nationwide database the law sets up, or (3) cannot prove their identity because they rely on foreign documents (such as a foreign birth certificate). 

Our DMV will become an extension of the federal government’s immigration service.  But workers in the DMV are not trained to enforce immigration laws, nor should they be forced into that position.  It is hard enough for trained lawyers to navigate the immigration system—requiring DMV officials and those seeking driver’s licenses to do so is a step too far.

Will This Washington Bow to Pressure from That Washington?

Taken together, the notion that REAL ID will make us safer is rather scurrilous, especially in the face of the very real data privacy issues that REAL ID would create—which explains why Washington state has been refusing to comply for 10 years. 

But Washington’s not alone.  The other States that remain noncompliant run the political gamut, from staunchly conservative Idaho, Louisiana, and Oklahoma, to middle-of-the road Maine and New Hampshire, to relatively liberal Minnesota and New York. Even Arizona—whose legislature is hardly afraid to pass controversial legislation targeting undocumented immigrants—has refused to implement REAL ID. 

It’s true that Washington state is under tremendous pressure from the federal government to implement REAL ID—including threats that Washington residents won’t be allowed to board airplanes (though, the prospect that the federal government is going to bar Washington residents or those from the 20 other states that are still not in compliance) from traveling on airplanes is unlikely. So rather than acquiescing to a policy that will store and track Washington’s 6.5 million driver’s licenses in an unsecured database, the state should instead work with the bipartisan group of governors to convince Congress to change REAL ID. 

With the right leadership, a law that was passed with little debate and with few institutional supporters should be stopped now. That leadership can begin in Olympia.

PubliCola's LawNerd is David A. Perez a Seattle attorney, practicing commercial litigation. David also maintains a pro bono practice that focuses on issues related to civil rights, voting rights, and constitutional law. You can contact him at [email protected], and follow him on Twitter @DavidAPerez1