Kaye Beach | Oct. 6, 2015
The headlines are scary.
Vaguely worded policies issued by the federal Department of Homeland Security and sensational headlines have allowed misconceptions about the actual consequences of not having a REAL ID to grow.
The very worst possible consequences of not having not having a REAL ID card are actually quite minimal.
To refresh your memory- the REAL ID Act was passed with little to no debate in Congress in 2005 as a rider to a ‘must pass’ military and disaster relief funding bill. The most controversial portion of the law imposes federal standards upon state driver’s licenses and ID documents. And contrary to media reports, the REAL ID Act does require the collection and digital retention of every driver license applicants’ biometric facial image. This fact is acknowledged by the National Conference of State Legislatures as well as other policy professionals so you don’t have to take my word for it.
The biometric and other personal information is required to be shared among the states and is accessible to the federal government.
The consequences for having a REAL ID are far more disturbing than the consequences for not having a REAL ID which can be summed up like this; Someday, if you do not have a REAL ID compliant driver’s license or one of the umpteen acceptable alternatives, the TSA will look you up in their database to make sure that you are really you and you may be subject to a secondary screening which generally means you will be asked to either go through the naked scanner or get a pat down and they will look in your bags. That’s about it so why are we being treated to this over the top fright fest?
Because fear is one of the only tools DHS has to get the states to comply
Jim Harper at Cato explains:
Right now, the Department of Homeland Security is sending out emissaries to tell state leaders that their residents might soon feel the TSA’s wrath. State motor vehicle bureaucrats and pro-national ID groups are joining them in the effort to herd state leaders over the national ID cliff.
But the threat of TSA enforcement is an empty one. REAL ID “deadlines” have come and gone many times. No state has ever come into compliance with REAL ID. No state will be in compliance in 2016. And the TSA will not begin a program to prevent Americans from traveling by air.
The adoption of the REAL ID standards is (by law) is voluntary for the states. This is not a mandate so implementation can only be accomplished gradually by persuading (or intimidating) the states into compliance. Since the law is so controversial (not to mention convoluted and costly!) states have little incentive to adopt the REAL ID standards.
No one really seems to want a REAL ID — unless they think that the consequences for not having one might be dire.
“. . .by requiring Real ID-compliant licenses to board commercial aircraft, the law could put a lot of public pressure on states to issue licenses that meet its standards.”
Source: USA Today, Real ID is slowly changing state drivers’ licenses, Jan. 22, 2014
Oklahoma has been granted an extension by the Dept. of Homeland Security. An extension means that the state’s driver’s license and ID cards will be accepted just as if the ID was fully REAL ID compliant.
From the Dept. of Homeland Security, REAL ID Enforcement in Brief:
“Individuals holding driver’s licenses or identification cards from these jurisdiction may continue to use them as before.”
The jurisdiction referred to are states where their licenses have been “(1) determined to meet the Act’s standards; or (2) that have received extensions.”
This means that Oklahoma ID’s are acceptable for flying, entering specified federal buildings and entering a nuclear facility, 3 of the four “official purposes” that will require a REAL ID. There are FOUR official purposes that require a REAL ID but I have yet to hear the media cover the fourth purpose even once.
The REAL ID final rules require a REAL ID complaint driver’s license or ID card for certain specified “official purposes” (defined in Sec 201 of the Act.)
#1 Entering Federal facilities
#2 boarding a Federally-regulated commercial aircraft
#3 Entering a nuclear power plant
#4 Any other purpose established by the Secretary of Homeland Security
(Real ID Final Rules http://www.gpo.gov/fdsys/pkg/FR-2008-01-29/pdf/08-140.pdf)
The fourth official purpose is what a good friend of mine refers to as the “dictator clause” It means just what it says. The Secretary of Homeland Security can add any other purpose he or she wisher. No congressional review – no nothing. Would it bother you if you were required to present your biometric national ID for say….ammo?
That fourth purpose could come in handy for just about anything that needs to be monitored, rationed or controlled. Ask Oklahoma media to cover THAT!
The DHS will be reviewing the progress of states that have received extensions this month. I predict that Oklahoma will be granted another extension.
On Dec. 29, 2014, the Dept. Of Homeland Security extended the deadline for enforcement upon states that have an extension or are deemed compliant with REAL ID until Oct. 1, 2020. Oklahoma appears to exempt from enforcement until 2020.
In the worst-case-scenario, one where the DHS refuses to grant our state and extension and we become subject to enforcement in order to board a plane “no sooner than 2016,” it’s still not going to be a big deal for Okies.
Not once has it been publicly asserted by the Department of Homeland Security or the TSA that not having a REAL ID compliant license would ever be a basis for denying a person the ability to board a commercial aircraft or that a U.S. Passport is the only accepted alternative to REAL ID
Clarifying statements have been made by DHS officials though, they just aren’t the ones that make the headlines.
For example, Darrell Williams, former Senior Director, Office of State Issued ID Support, Department of Homeland Security, testified before a Congressional subcommittee that there are a variety of identification alternatives to a REAL ID and that not having a REAL ID compliant license will not prevent a person from boarding a plane. He went on to say to say that even individuals with NO FORM OF ID at all can still be permitted to fly.
Mr. Williams as the former Director of the REAL ID program for the Department of Homeland Security with (which directs the Transportation Security Administration) is very familiar with the policies of both agencies. No publicly available official statement on the matter of REAL ID and boarding a federally regulated commercial aircraft refutes Mr. Williams’ testimony.
Here is the TSA’s list of preferred ID documents:
• Driver’s licenses or other state photo identity cards issued by Department of Motor Vehicles (or equivalent)
• U.S. passport
• U.S. passport card
• DHS trusted traveler cards (Global Entry, NEXUS, SENTRI, FAST)
• U.S. military ID (active duty or retired military and their dependents, and DoD civilians)
• Permanent resident card
• Border crossing card
• DHS-designated enhanced driver’s license
• Airline or airport-issued ID (if issued under a TSA-approved security plan)
• Federally recognized, tribal-issued photo ID
• HSPD-12 PIV card
• Foreign government-issued passport
• Canadian provincial driver’s license or Indian and Northern Affairs Canada card
• Transportation worker identification credential
Here the TSA goes into a bit more detail regarding its identity verification procedures:
“TSA prefers that passengers use an acceptable ID at the checkpoint and only publishes the acceptable forms of primary ID, such as a driver’s license and passport on its website. However, we understand that, due to extenuating circumstances a passenger may not have an acceptable form of ID when attempting to travel on a commercial aircraft. Therefore, TSA has alternate means to verify identity in order to allow a passenger to travel and may rely on a variety of government-issued documents, commercial databases, and other agencies to verify passenger identity. The alternative means to establish identity are not published on the website in part because TSA prefers that passengers use acceptable ID.
The TSA website informs passengers that, if they do not have acceptable ID, they can alternatively provide additional information and undergo additional screening in order to be cleared. Specifically, the website informs the public that: “If you are willing to provide additional information, we have other ways to confirm your identity, like using publicly available databases, so you can reach your flight.”
(TSA response to congressional inquiry Aug. 7, 2014
No one is going to have to get a passport or be barred from flying due to the REAL ID Act.
This press released today by the Oklahoma Senate certainly sounds dire.
Can you imagine if people were unable to enter the Social Security office? What if you were asked to appear in Federal Court and you don’t have a REAL ID? What would happen?
REAL ID Act of 2005 Implementation: An Interagency Security Committee Guide
Aug 2015, Interagency Security Committee
“…there is no requirement to produce a REAL ID Act compliant ID to enter a Federal facility for accessing health or life preserving services (including hospitals and health clinics), law enforcement (including participating in law enforcement proceedings or investigations), participating in constitutionally protected activities (including a defendant’s or spectator’s access to court proceedings, access by jurors or potential jurors), voting or registering to vote, or applying for or receiving Federal benefits…”
According to the Department of Homeland Security–
REAL ID does NOT apply to the following:
• Entering Federal facilities that do not require a person to present identification
• Voting or registering to vote
• Applying for or receiving Federal benefits
• Being licensed by a state to drive
• Accessing Health or life preserving services (including hospitals and health clinics), law enforcement, or constitutionally protected activities (including a defendant’s access to court proceedings)
• Participating in law enforcement proceedings or investigations
There is too much fear, uncertainty and doubt being pumped out by the media and state officials for me to address in just one post so expect more posts soon. Until then – don’t let them scare you!