Obama administration to inherit a real mess on Real ID

President-elect's position still unclear on controversial law setting national ID standards

As President-elect Barack Obama prepares to take the reins in Washington, it remains unclear how his administration will deal with the controversial Real ID national identification standards put in motion by predecessor George W. Bush.

Thus far, Obama himself has made almost no public comments about the Real ID initiative, which calls for driver's licenses and other state-issued IDs to include digital photos and be machine-readable so the information on them can be captured by scanning devices. And on the one occasion in which Obama had an opportunity to vote on an issue related to the Real ID Act in the Senate, he didn't cast a ballot.

Meanwhile, Arizona Gov. Janet Napolitano, Obama's choice to be secretary of the U.S. Department of Homeland Security (DHS) — the agency responsible for implementing the Real ID rules — previously signed a bill barring her state from participating in the program. Given that fact, it's uncertain how effective she would be in pushing for adoption of Real ID in her expected new role or if she would even be inclined to do so in the first place.

The Real ID Act was approved by Congress and signed into law by President Bush in 2005 as part of the government's effort to combat terrorism. But the law has evoked widespread criticism from privacy advocates and civil rights groups, which say it would create a de facto national identity card system that would be hard to manage and even harder to secure. Even a DHS advisory committee voiced reservations about the Real ID effort last year because of privacy, security and logistical concerns.

Over the past two years, Real ID has also become a bone of contention between the DHS and state governments that see it as an attempt by federal officials to force unwanted ID standards down their throats, while also making the states pay for the program. Several states have joined Arizona in refusing to participate, with the list including Arkansas, Idaho, Maine, Montana, New Hampshire, South Carolina and Washington.

"I don't think anybody in the next administration, including Napolitano, wants to deal with Real ID. It's a real stinking mess," said Jim Harper, director of information policy studies at the Cato Institute, a Washington-based public-policy research organization with libertarian leanings. "Most likely, they will find the quietest way they can to get it off their plates."

Other provisions in the Real ID law require participating states to store digital images of IDs for seven to 10 years and for their driver's license databases to be linked to essentially create a single large system with shared access. There's no mandate that states issue Real ID cards. But under the law, all citizens will eventually need ID cards that comply with the Real ID requirements in order to board planes, enter federal buildings and receive benefits from the federal government.

The outpouring of protests has prompted the DHS to ease up on the implementation deadlines and modify some of the requirements in an attempt to make Real ID more palatable. For instance, under the final rules set by the agency last January, driver's licenses issued under existing state standards will continue to be accepted as identification by federal agencies until December 2014. And people aged 50 and above won't have to show Real ID cards until December 2017.

In addition, after initially setting a deadline of last March for states to request an extension on meeting an initial set of Real ID requirements that were supposed to be implemented by May, the DHS backed off of threats to begin enforcing the law's rules, even going so far as to issue extensions to states that didn't actually ask for one.

Those moves weren't just an attempt by the DHS to appease state officials who are opposed to Real ID, Harper said, adding that the agency decided to slow down and pass the baton to the next administration. DHS officials "realized there's just no way they're going to win this" by taking a confrontational approach, he said.

Estimates that the final tab for the Real ID program could exceed $17 billion also make it a challenge to push forward, according to Harper. Even so, he doesn't expect Obama to seek an outright repeal of the law because that would likely generate criticism that the new president was being soft on terrorism and immigration-control issues.

The extensions to the original May deadline for initial Real ID compliance give states until next December to meet those requirements. At this point, the only reasonable way forward is for the DHS to work more cooperatively with the states on Real ID implementations instead of continuing to "dangle sabers over their heads," said Chris Dixon, an analyst at Input, a government-focused consulting firm in Reston, Va.

"I'm amazed that the Bush administration has allowed this to smolder for so long," Dixon said. "This should have been put to bed long ago."

According to Dixon, the one public comment that Obama has made about Real ID came during a primary campaign debate, when he voiced his opposition to the way the law was being implemented and the burdens it imposed on states. A perusal of Obama's Senate voting record on the Project Vote Smart Web site shows that as a senator from Illinois, Obama didn't vote on a proposal relating to Real ID funding.

But whatever position the new administration takes, the fact remains that many of the standards required under Real ID are already being implemented by states as part of their own efforts to improve security, Dixon said. As a result, he noted, moving the Real ID program forward may require little more than a willingness on the part of the DHS to see if those efforts are enough to qualify as complying with the law.

Dixon noted that Napolitano's experience as the governor of a state that is fighting against the Real ID initiative should have given her insight into the issues being faced by the other states as well. If she's confirmed to head the DHS, he said, "Napolitano could sit down with the governors and try to find a way out of this impasse."

Copyright © 2008 IDG Communications, Inc.

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