NEWSROOM
Commentary Articles
In The News
News Releases
Experts



Media Inquiries

Kim Cloidt
Director of Marketing & Communications
(510) 632-1366 x116
(202) 725-7722 (cell)
Send Email

Robert Ade
Communications Manager
(510) 632-1366 x114
Send Email


Subscribe



Commentary
Facebook Facebook Facebook Facebook

Contribute
Your participation will advance liberty. Join us as an Independent Institute member.



Contact Us
The Independent Institute
100 Swan Way
Oakland, CA 94621-1428

510-632-1366 Phone
510-568-6040 Fax
Send us email


Interested in working with us?  Click here for more information.

Commentary

The New Threat of Big Brother: The REAL ID Act


     
 Print 

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. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.

pt   New from William J. Watkins, Jr.!
PATENT TROLLS: Predatory Litigation and the Smothering of Innovation
Using overbroad patents based on dated technology, patent trolls are stifiling innovation by bringing infringement suits against inventors. Trolls typically do not produce products or services, but are in the business of litigation. They lie in wait for someone to create a process or product that has some relationship to the patent held by the troll, and then they pounce with threats and lawsuits.






Home | About Us | Blogs | Issues | Newsroom | Multimedia | Events | Publications | Centers | Students | Store | Donate

Product Catalog | RSS | Jobs | Course Adoption | Links | Privacy Policy | Site Map
Facebook Facebook Facebook Facebook
Copyright 2014 The Independent Institute