ACLU: Real ID deadline extensions an attempt to 'kick can down the road'

Says feds blow off privacy concerns raised during public comment period

The American Civil Liberties Union (ACLU) on Friday described the decision by the U.S. Department of Homeland Security to push back the rollout of its controversial Real ID program as an attempt by the federal government to pass the buck to the next administration.

In a press conference Friday morning following the release of the final rules governing the Real ID program by DHS Secretary Michael Chertoff, ACLU officials claimed the extensions did little to reduce the need to repeal the act altogether.

"What the Bush administration did today was to set up the next administration to take the fall for a law that cannot be implemented," said Barry Steinhardt, director of the ACLU Technology and Liberty Program. "What the DHS has done is to kick the can down the road."

The Real ID Act of 2005 was passed as part of a wider effort to combat terrorism. It sets minimum national standards that states must use when issuing driver's licenses and other forms of identification. This includes a photo ID, documentation of birth date and address, proof of citizenship or immigration status, and verification of Social Security numbers.

States are required to hold digital images of each identity document for seven to 10 years. The cards themselves will include all of the standard elements found on most driver's licenses today and will be machine-readable to allow for the easy capture of information from the card. Under the act, all state driver's license databases would be linked with one another in one system with shared access.

Though states are not mandated to issue Real ID cards, access to federal facilities or services -- including air travel -- would eventually require it.

The proposal to issue Real ID cards has provoked a firestorm of protest from several quarters, privacy advocates and multiple states, some of which have said they will not issue the cards. Much of the concern stems from fears that the card would become a de facto national ID system that would be hard to manage and even harder to secure. There are also fears that the cards could eventually be used for a wide set of purposes -- including surveillance by the U.S. government.

Much of those concerns are unlikely to have changed with today's release of the final rules describing the manner in which the real ID program is to be rolled out over the next few years. The 285-page final rule follows a draft regulation that was published in the Federal Register last March. Those proposed requirements described the information and the security features that needed be implemented on each Real ID card, the processes for establishing the identity and immigration status of those who applied for the card, and certain physical security requirements for the facilities that would produce these cards.

Over 21,000 comments were generated in response to those proposed regulations during a 60-day comment period last year. The final rule document that was released on Friday noted that several changes had been made to the original rules as a result of those comments.

Among the most significant are several deadline extensions. Under the final rules, states have until May 11, 2008, to comply with certain mandatory minimum requirements of the Real ID Act. After that date, federal agencies will be prohibited from accepting state-issued driver's licenses or ID cards for official purposes -- including boarding commercial aircraft -- unless the state requests for an extension beforehand.

Under the original draft rules released last year, states that made such requests were to have been given only one deadline extension that would have expired on Dec. 31, 2009. Under the final rules, states that meet a set of 18 mandatory milestones before that date, can now ask for and receive a further second extension that will expire on May 11, 2011. At that time, all states will be required to start issuing Real ID cards.

Residents of states that do choose to comply with the program will, however, be allowed to use their existing state-issued IDs for official purposes including boarding commercial planes through Dec. 1, 2014. After that date, federal agencies will refuse to accept noncompliant cards from anyone under the age of 50 at that time. Starting Dec. 1, 2017, anyone seeking to use a driver's license or other forms of ID for official purposes will be required to have a Real ID card.

The deadline extensions mean that for many Americans, it will be at least another seven years before they are required to actually use Real ID cards, Steinhardt said. That's plenty of time for the next administration to repeal the act altogether, he said.

In addition to these deadline extensions, there were certain other modifications that were made to the draft rules. One example is a change in the rules relating to the time period for which photos of those denied Real ID cards were to be stored to a uniform five years. Another example is the elimination of the need for applicants to have actual Social Security cards as proof of their Social Security numbers.

Timothy Sparapani, the ACLU's senior legislative counsel, added that the final rules also appear to have totally ignored many of the privacy and security concerns expressed by groups such as the ACLU. For example, he said, there appears to be nothing in the rules that explains what measures are in place to prevent commercial entities from skimming information off the card to create vast repositories of highly detailed personal data.

Copyright © 2008 IDG Communications, Inc.

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