Home Politics John Aronno: On Politics Legislators Forced to Relitigate the REAL ID Act and All the Options...

Legislators Forced to Relitigate the REAL ID Act and All the Options are Horrible

Photo by Josh Hallett, Creative Commons Licensing.

Unless the legislature hits the turbo drive on legislation currently grinding its way through the Senate, many Alaskans’ Summer travel plans might soon be in jeopardy. If they succeed, a lot of personal data could end up at risk.

This is not a good year to be an elected official, but it’s also kind of on them.

In 2005, the President George W. Bush signed into law an omnibus bill entitled “Emergency Supplemental Appropriation for Defense, the Global War on Terror, and Tsunami Relief.” Within the sweeping measure was a set of new standards pertaining to drivers licenses and identification cards, recommended in the final report published by the 9/11 Commission as a necessary safety precaution to combat terrorism. Those provisions are known as the REAL ID Act.

“Fraud in identification documents is no longer just a problem of theft,” the commission found. “At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.”

Since terrorists likely wouldn’t check a box at the DMV identifying them such, the U.S. Congress codified broad changes mandating that all state-issued licenses and IDs must “bear digitally encoded personal information and possess physical features designed to prevent tampering, counterfeiting, or duplication for fraudulent purposes,” according to the Migration Policy Institute, a D.C.-based nonprofit.

It’s up to the states to turn those requirements into law.

In 2013, the Department of Homeland Security (DHS) transmitted a press release announcing that states not already in compliance with the REAL ID Act would begin to receive temporary deferments, during which federal agencies would permit Americans with non-compliant licenses and identification cards to board commercial aircraft and other specified purposes.

26 states have legislated their way into compliance. The Alaska State Legislature legislated its way into a mess.

Sen. Bill Wielechowski (D-Anchorage) sponsored SB202, which prohibited the use of any state funds “for the purpose of implementation of the requirements of the federal Real ID Act of 2005.”

The contention at that point in time — and which holds sway still today — was that the federal government was over-reaching; creating a electronic database and leveling expensive requirements the State would then have to pay for.

The bill passed with bipartisan support in both chambers and was signed into law by Gov. Sarah Palin (R-Alaska).

“Most Alaskans have serious privacy concerns about the development of a national database and about the ready access to personal information that this database would give the federal government and others through the technology envisioned by the REAL ID Act. I agree with those concerns,” Palin told Senate President Lyda Green (R-Alaska).

However, she cautioned, “Failure to comply with these federal requirements may restrict Alaskans’ freedom of travel and prevent their access to federal facilities. This presents a quandary for Alaskans who are so protective of state rights and liberties and yet, by necessity, must have federally-accepted identification in order to travel by airplane.”

Fast forward to last Thursday, Gov. Bill Walker (I-Alaska) announced that the day those lawmakers knew was coming for nine years (let’s emphasize that: nine years) is just about here.

“Starting June 6, Alaskans who work or live on U.S. military bases will not be able to gain unescorted entry using their Alaska driver’s licenses or any other form of state identification — if the legislature does not pass bills to ensure Alaska’s compliance with the federal REAL ID Act,” Walker stated in a press release. “Also, starting January [22, 2018], Alaskans will need a U.S. passport or other REAL ID Act-compliant forms of identification for domestic travel.”

The bill he is referred to is SB34, sponsored by the Senate Rules Committee at his request. Monday, it received its first hearing in Senate Finance after being moved out of State Affairs with lackluster enthusiasm. Only one senator, Sen. John Coghill (R-North Pole) recommended passage.

In past years, Alaska has received a series of three-year waivers exempting the state from enforcement of the REAL ID Act, but DHS has told the Department of Administration (DOA) that, unless the State passes legislation this year, there will not be another waiver.

As soon as June 6, state employees, private contractors, teachers, and others will not be permitted on base without action by the legislature.

“About 14,000 local contractors and service providers may be affected and required to have alternate forms of identifications or be unable to access the installations,” Brian Duffy, with the Department of Military and Veterans Affairs, told Senate Finance during public testimony on Monday. “The numbers at Fort Wainwright are approximately 5,000 per month and 2,600 a Eielson. And, in the case of JBER, there are approximately 50 different mission partners on the installation — some federal, some state, and with others being either public or private organizations.”

“In the future, without a State ID option, parents won’t be able to attend a school event or participate in parent-teacher conferences, or even pick up a sick child [on base] without a passport,” Sharice Walker, with the Fairbanks North Star Borough, added.

There 19 days left in the regular session.

The contention in 2008 was that the federal government was over-reaching; creating a electronic database and leveling expensive requirements the State would then have to pay for. That contention still permeates the issue today, which explains the glacial pace at which it has proceeded (again, not counting the nine years).

In a presentation on SB34 to the Senate State Affairs Committee last month, DOA Commissioner Sheldon Fisher told members that didn’t quite matter given the circumstances.

“The bill, as I’ve said before, it is necessary because of current legislation that prevents us from pursuing a REAL ID compliant license or spending funds to comply with a REAL ID which we’re prohibited from doing right now.”

How REAL ID would work.

To obtain a REAL ID compliant license or ID would require anyone wishing to obtain a state-issued card to bring four items to the DMV. A primary document, such as a birth certificate, visa, passport, or certificate of citizenship/naturalization/birth abroad is the first step. Next is a secondary document, which could be a primary document, an out-of-state license, employee or school card, voter registration card, or several other options. One would also need to provide proof of principle residence, such as a utility bill or paycheck stub. Finally, proof of a social security number.

The DMV will take a photo, which will be verified and stored in a database maintained by Electronic Verification of Vital Events (EVVE), owned by the National Association for Public Health Statistics and Information Systems (NAPHSIS), a non-governmental non-profit. If one uses a birth certificate as a form of ID, it will be verified by the Social Security Administration. If it’s an immigration document or a passport, DHS will vet it.

[Editor’s note: NAPHSIS was incorrectly identified as the organization that stored the photos in the original article.]

DOA provided a chart highlighting the process (slide eight).

For those who do not wish to comply, non-compliant licenses and ID cards will still be available and the process for procuring them will not change. The program is voluntary, DOA Deputy Commissioner Leslie Ridle emphasized to Senate Finance on Monday.

The new IDs and licenses would be valid for eight years, rather than the current five.

Senators grapple with concerns over data collection.

State Affairs offered a committee substitute (CS) for SB34 before passing it off to Senate Finance. The new version’s title summarizes the concerns of the former committee’s concerns.

The initial “Act relating to the implementation of the federal REAL ID Act of 2005; and relating to issuance of identification cards and driver’s licenses; and providing for an effective date” has been expounded upon to become an “Act relating to the implementation of the federal REAL ID Act of 2005; relating to issuance of identification cards and driver’s licenses; relating to data sharing by the Department of Administration; and providing for an effective date.” (emphasis added)

“Many people believe that the idea that the data’s not going anywhere, that’s hard for some folks to accept that that doesn’t happen given that, just about every week in the newspaper, there’s a report that there’s been data breaches, security breaches in data banks that were never even supposed to be shared,” Sen. Mike Dunleavy (R-Wasilla) offered.

The new version of SB34 doubled the fee to procure the new drivers license, from $5 to $10, totaling $25. ID cards would have a $5 increase, bringing the total to $20. This is in response to Fisher’s admission that the up front cost to the State to comply with the federal standards would be $1.5 million and the initial $5 fee increase would not cover that price tag. The CS’s fee hikes would.

Non-compliant drivers licenses and ID cards would not see any change in price.

Cards also would be required to be produced within the state, nixing the original proposal to contract with an Indiana-based and internationally-owned company.

Other changes include restrictions on what data about individuals are permissible to collect and a requirement that information will be provided making clear what data will be collected and stored. Those who opt to stick with a non-compliant card must express permission before any of their identity verification documents are copied and stored, including the photo placed on the ID. The revision also resolves that only the minimum amount of data required to be REAL ID compliant is to be collected.

Monday, lawmakers expressed similar concerns over privacy rights.

Senate Finance Chair Anna MacKinnon (R-Eagle River) held the bill and set a deadline for proposed amendments for Tuesday evening.

A very difficult position.

“It becomes a pain the neck to think that the federal government can force us to surrender to their description of an ID card that is a federal ID card. Especially when it’s really supposed to be about driving,” Sen. John Coghill (R-North Pole) said last month, rehashing much of the tenor of debate in 2008. “I think we’re supposed to be a free people and right now the fear of government is too high.”

Unfortunately, the question of whether or not data collection is the right thing to do is not the one confronting the legislature.

The U.S. Congress passed a bill and the time to act — the nine years of time to act — is very quickly drawing sunsetting. What the 9/11 Commission determined was the best policy to protect national security — trading privacy rights of private citizens for information to hopefully combat terror — was adopted into federal law. Now, failure to recognize this and respond has near-immediate and far-reaching consequences.

Only 55 percent of Alaska residents have a passport or a passport card, meaning 45 percent will not be able to use one in lieu of a READ ID card. Obtaining a passport can cost up to $150 and the process of doing so can be both lengthy and cumbersome, Ridle told Senate Finance Committee members Monday.

Lawmakers are in a predicament designed by top-down government and their own down-top inaction. There is little more anathema to Alaskans than perceived federal over-reach and potential threats to privacy.

However, if there’s anything that comes close, it’s cutting off access to vacations. Especially to Hawaii or other not-frigid-cold climes.

It’s quite a long drive to the Lower 48 and, in many parts of the state, will result in unfortunate water damage.

State Affairs did a thorough and exemplary job revising the initial bill limited in ability under the auspices of the federal legislation. As Eric Glatt, staff attorney for the Alaska Civil Liberties Union, wrote in a letter to Dunleavy, “Congress has put Alaska in a very difficult position[.]” (The ACLU still opposes the bill, as written.)

But, this is a rigid, binary choice. This is a U.S. government edict — whether one thinks it’s a fantastic trade off in the interest of national security or thinks it’s utter and dangerous garbage — and, as one star on the flag, Alaska is subject to the Supremacy Clause in Article VI, Section 2 of the United States Constitution. The federal law now putting legislators through mental contortions is the law of the land.

They have a choice to make and very little time left in which to make it.