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 261161 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 legislations 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 drivers licenses such as full legal name, a digital photograph, and address of principle residence. These items are already found on most, if not all, drivers 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 memoryan amount of storage capacity that not long ago was standard for most personal computers. These chips can easily store biometric data such as a persons 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 drivers 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 ownershipall in the name of homeland security. As RFID technology improves, the chips in drivers licenses could even be read remotely at greater distances, permitting the federal and state governments to know a citizens location at any time.
If states were to fail to implement the Secretarys requirements, federal agencies would refuse to accept the drivers 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 drivers license) does not meet the federal standards. This clearly clashes with the Supreme Courts 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. Madisons 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.
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