An unfunded federal mandate that seeks to create de facto national identity cards has spurred Montana to the forefront of rapidly mounting nationwide opposition. On Thursday, Feb. 1, the Montana House of Representatives unanimously approved two bills that signal the state’s refusal to go along with the 2005 Real ID Act. A bill introduced by Rep. Brady Wiseman, D-Bozeman, directs state government not to implement Real ID, while another by Rep. Diane Rice, R-Harrison, takes the opposition one step further by “nullifying” the law in Montana. Gov. Brian Schweitzer and the Montana attorney general’s office both have pledged their support, though neither bill has yet been considered by Montana’s Senate.
“The feeling is so strong that we don’t need to jawbone about this,” says Wiseman of the bills’ thus-far unanimous approval. “Our right to be left alone is being chipped away and we’ve drawn the line here in Montana.”
Wiseman and others raise a chorus of complaints in regard to the Real ID legislation, saying it opens a new chapter in Big Brother’s playbook, threatens privacy rights, attempts to “commandeer” state government, and creates overwhelming cost and needless bureaucracy. Besides, they say, rather than achieving Congress’ goal of increasing security to thwart terrorists, it will provide more fodder for identity thieves.
Rooted in a recommendation from the 9/11 Commission, the Real ID Act sets national standards for driver’s licenses and is scheduled to go into effect May 2008. It will create consistency among driver’s licenses nationwide and embed them all with “a common machine-readable technology,” which the Department of Homeland Security (DHS) has yet to define. For the first time, states will be asked to verify all documents used to issue licenses—like birth certificates and Social Security cards—and to create and share with state and federal governments a database of their citizens’ information. On top of that, Real ID expects states to fund their own licensing system overhauls, an undertaking expected to cost more than $11 billion nationally and at least $11 million in Montana. If states don’t conform with the new law, their residents won’t be able to use their state licenses for anything requiring federal approval, including boarding airplanes, entering federal buildings, opening bank accounts and collecting Social Security payments. Opponents say Real ID is a disaster of epic proportions.
“This law is bad. We believe Congress has made a mistake and we want to communicate to Congress that they need to redo this because we won’t comply,” Wiseman says.
A key concern for Montanans, who are afforded an explicit right to privacy by the state’s constitution, is control over their personal information, Wiseman says. And given that the DHS, which did not respond to interview requests, is still crafting specific rules to govern Real ID implementation, Wiseman says Montanans simply can’t trust federal officials to adequately shield confidential information. It’s impossible to even know at this juncture what information Real IDs will include. At a minimum, Real IDs must have a person’s name, birth date, gender, driver’s license number, home address, signature, machine-readable technology and a photograph, but DHS may retain authority to also require biometric identifiers like fingerprints or retinal scans.
Scott Crichton, director of Montana’s American Civil Liberties Union, likens the new ID system to Social Security numbers of old.
“It was sold as just being used for one purpose, and today it’s used for everything—you can’t even get some services without divulging it,” Crichton says. “The Real ID is that sort of thing, cubed.”
Each facet of Real ID—what information it includes and who can access it, what it will cost to create it and how it will interact with existing and future technology—raises a host of concerns that need addressing, Wiseman says. Take, for instance, the possibility that the “common machine-readable technology” incorporated into Real IDs could be Radio Frequency Identification (RFID) chips, which are already being incorporated in U.S. passports. RFIDs, tiny chips increasingly installed in consumer products and packaging, can be read and tracked from a distance without a subject’s knowledge.
“There are too many privately owned information dossiers that already track what we do, and we’re very leery of creating another way to do that,” Wiseman says. “There’s fear both of big brother and big cousin knowing too much about us.”
The making of the Real ID law itself lends insight into the controversy that’s ensued since its passage.
Larry Fasbender, deputy director of Montana’s Department of Justice, says states were already working in concert with the federal government to improve driver’s license security, but in May 2005 Rep. James Sensenbrenner, R-Wis., derailed the process by attaching the Real ID Act onto an appropriations bill funding Hurricane Katrina relief and the Iraq war. Subsequently, Real ID passed Congress with no debate and little discussion about the mandate’s implications.
Even if the states were desperately eager to implement Real ID, Fasbender says, there’s no way that could happen by 2008 in light of the bureaucratic and technological mountains to be moved.
“I don’t think the feds understood how difficult it was to achieve what they were mandating,” he says.
Regardless, Montana and many other states aren’t eager to go along.
State Rep. Jim Guest, a Missouri Republican who’s leading a national coalition against Real ID, says some 34 states are working on legislation like Montana’s. Maine’s Legislature already passed a resolution urging Congress to repeal the act, but Guest says Montana’s bills, which flat-out refuse to follow the law, propel the state to the battle’s front lines.
Guest says his goal is to raise enough resistance to frustrate the federal government’s attempt to sanction citizens in rebellious states.
“I’ve got a feeling that once the people of this country realize what’s being imposed on them, there will be a groundswell that will force the [federal government] to back down,” he says.
Wiseman says the House of Representatives considered the risk Montana citizens face if federal officials begin declining state IDs, but ultimately decided the jeopardy was worth it.
“The worst outcome here is we get hung out to dry and our citizens can’t get on planes or open bank accounts,” Wiseman says. “However, the more likely outcome is that other states are going to follow us.”
Rep. Rice’s bill to nullify Real ID also raises an interesting states’ rights question. While Rice didn’t return Independent calls by press time to elaborate, in many ways her bill speaks for itself. The Real ID mandate, her bill says, “appears to be an attempt to ‘commandeer’ the political machinery of the states and to require them to be agents of the federal government, in violation of the principles of federalism contained in the 10th amendment to the U.S. Constitution…”
With her attempt to void the federal law, Rice raises the specter of nullification debates in the historic South, where South Carolina and the federal government neared the brink of war in 1832 over that state’s insistence that it could refuse to recognize a federal tariff law. Martin Luther King Jr.’s “I Have a Dream” speech also mentioned nullification, in that case referring to Southern attempts to forestall federal civil rights laws: “I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification”—one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls…”
The importance of Rice’s inclusion of the word “nullify” is debatable. Some, like Schweitzer adviser Hal Harper, say the word is simply a synonym for “repeal” and carries little significance beyond demanding that the federal government reverse its law.
Others, like UM political science professor Jim Lopach, aren’t so sure, given the substantial role the nullification principle has played in American history.
“Whenever a state confronts the federal government like this, I think it’s a big issue—so much of our government is based on daily cooperation among the two levels of government,” he says.
Mandates such as this are tied to federal funding, Lopach says, which gives states the ability to reject them if they can bear the financial loss. In this case, the Department of Justice’s Fasbender says besides residents losing their ability to use state IDs for federal purposes, Montana also stands to lose 5 percent of its federal highway funding unless it implements Real ID.
Others, like the ACLU’s Crichton, would rather keep the current debate on Real ID, rather than on states’ rights rhetoric.
“Nullification is something we all need to learn more about,” he says. “What is important here is that we have two bills that have different ways of telling the federal government that Montanans aren’t going to go along with this.”
While Montana’s opposition will likely continue to harden as the state Senate takes up the issue, Fasbender says Montana will also continue working with the federal government to craft regulations Montanans can abide.
“We want to make sure that with any information about our citizens, we know how it’s being used, who’s accessing it and why,” he says. “That should be a decision the states get to make, not something the federal government forces on all of us.”
Fasbender continues: “We recognize the federal government has an interest in verifying that people who obtain IDs aren’t terrorists or looking to overthrow the government, but we also need to make sure that driver’s licenses can accommodate privacy needs and states’ rights. I think it can be done—it’s just going to take some work.”