F. LIMITS OF THE RESEARCH
II. REAL ID AS A SOLUTION TO THE PROBLEM OF INSECURE
The REAL ID Act can be traced to the aftermath of 9/11, when it became apparent that the hijackers had acquired numerous licenses or identification documents from different states and used those documents to embed themselves into U.S. society, and ultimately, to board the aircraft used in the attacks. The National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission), in its principal report, and in the associated Staff Report entitled 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks upon the United States, provided detailed information regarding the travel of the hijackers.30 According to the 9/11 Commission, all the pilots, and 14 of the 15 operatives, had acquired one or multiple forms of state issued identification documents.31 As noted in the Staff Report, having those documents would have “assisted them in boarding commercial flights, renting cars, and other necessary activities.”32 (See Appendix A for a detailed listing of the state driver’s licenses and identification documents obtained by the 9/11 hijackers.) As a result of its findings, the 9/11 Commission made the following recommendation:
Recommendation: Secure identification should begin in the United States.
The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses. Fraud in identification documents is no longer just a problem of theft. 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.33
30 National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report:
Final Report of the National Commission on Terrorist Attacks upon the United States, Authorized Edition (Westminster, MD: SOHO Books, as released by the U.S. Government, 2010).
31 National Commission on Terrorist Attacks upon the United States, 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks upon the United States (Franklin, TN:
Hillsboro Press, 2004), 13, 44.
32 National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, 390.
33 Ibid.
The REAL ID Act passed with no debate on its provisions, and was attached to a bill dealing with tsunami relief and military appropriations.34 The easy part, it seems, was passing the law; the greater difficulty lay in maintaining consensus after its passage, when the Bush administration sought to implement the provisions through the federal rulemaking process, during which it received and addressed over 21,000 public comments.35
The principal elements of REAL ID relate to standards that the law charged the federal government with promulgating for state-issued driver’s licenses and identification cards to be accepted for an “official purpose.”36 The REAL ID Act defines “official purpose” as including accessing federal facilities, boarding federally regulated commercial aircraft, entry into nuclear power plants, and such other purposes as established by the Secretary Homeland Security.37 DHS issued the final regulations on January 29, 2008.38 They included standards on “the information and security features that must be incorporated into each card; application information to establish the identity and lawful status of an applicant before a card can be issued; and physical security standards for the locations issuing driver’s licenses and identification cards.”39
The generally acknowledged purpose of such efforts was to address the myriad issues that arise from the increasing uncertainty that exists regarding the identity of the persons who interact with the government, with commercial systems, and with all
34 Electronic Privacy Information Center, REAL ID Implementation Review: Few Benefits, Staggering Costs: Analysis of the Department of Homeland Security’s National ID Program, 3.
35 “Department of Homeland Security, Notice of Proposed Rulemaking: Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes, 72 Fed Reg. 10,819,” Washington, D.C.: GPO, 2007, http://www.gpo.gov/fdsys/pkg/FR-2007-03-09/html/07-1009.htm; Department of Homeland Security, “Final Rule, Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes, 73 Fed. Reg. 5271,” January 29, 2008, http://www.gpo.gov/fdsys/pkg/FR-2008-01-29/html/08-140.htm.
36 EPIC: Real ID Implementation Review.
37 The REAL ID Act of 2005, 312.
38 Department of Homeland Security, “Final Rule.”
39 Department of Homeland Security, Privacy Impact Assessment for the REAL ID Final Rule.
Americans in their daily lives or interact with others through identity theft.40 Balanced against greater assurances of identity document security, and the true identity of those dealt with in society are the weighty concerns relating to information security, privacy, and liberty. REAL ID’s enactment and the related implementation efforts have raised numerous questions including whether it serves to create a form of national ID, whether it raises substantial constitutional and privacy concerns, and whether acceptable alternatives exist.
The use of fraudulently obtained identity documents by several of the 9/11 hijackers is relatively well known, but it is not the only example. A report, prepared by the Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security, shortly before the enactment of REAL ID illustrates the role that insecure documents play in national security concerns.
One area of concern to the Subcommittee is document security and terrorist use of identity theft . . . Since 1998, the Subcommittee has held seven hearings on identity theft and fraud. (citation omitted) During a Subcommittee hearing in 2002, Dennis Lormel, Chief of the FBI’s Terrorist Financial Review Group, testified that identity theft was a ‘key catalyst’ for terrorist groups. (citation omitted) He said that identity theft posed an ‘alarming” threat and that ‘terrorists have long utilized identity theft as well as Social Security Number fraud to enable them to obtain . . . cover employment and access to secure locations.’ (citation omitted) It is clear from the GAO’s report that terrorists and other dangerous criminals can pass as U.S. citizens or steal American identities with alarming ease. Robert Cramer, the Managing Director of the GAO, who oversaw the investigations, testified, ‘The weaknesses we found during these investigations clearly show that border inspectors, motor vehicle departments, and firearms dealers need to have the means to verify identity and to determine whether out-of-state driver’s licenses presented to them are authentic.’(citation omitted).
John Pistole, Acting Assistant Director of the FBI’s Counterterrorism Division, said that terrorists have long committed identity theft and misused Social Security numbers to infiltrate the United States. (citation omitted) Social Security number fraud has enabled them ‘to obtain such
40 The Institute for Communitarian Policy Studies, George Washington University, “Communitarian Update #48» Institute for Communitarian Policy Studies,” September 24, 2002, http://icps.gwu.edu/
contact/mailing-list/communitarian-letter-archives/communitarian-update-48/.
things as cover employment and access to secure locations.’ (citations omitted) Once Social Security numbers and driver’s licenses are obtained, bank and credit-card accounts, through which terrorism financing is facilitated, are easily accessed. (citations omitted)
Chairman Kyl said that the GAO’s investigation ‘shows a dangerous lapse in the ability of state and federal employees to detect and deter document fraud, which is often the first step terrorists must take to assimilate themselves in the United States and form sleeper cells.41
The final regulations issued by DHS on January 29, 2008, included standards on “the information and security features that must be incorporated into each card; application information to establish the identity and lawful status of an applicant before a card can be issued; and physical security standards for the locations issuing driver’s licenses and identification cards.”42