June 22, 2005
The Honorable Gil Cedillo
State Capitol, Room 5100
Sacramento, CA 95814
Re: SB 60 – Oppose, unless amended
Dear Senator Cedillo:
We are writing to share our opposition, unless amended to SB 60, “The California REAL ID Act of 2005.”
Passage of any legislation enabling the federal REAL ID Act of 2005 is premature. REAL ID forces almost every American over the age of 16 to carry a common identity document and use it for all federal purposes including flying or entering a federal building. In short it is a National ID. REAL ID law represents a grave danger to the privacy of California’s citizens and lawmakers should be cautious in implementing any of its provisions.
As it has been drafted REAL ID consists of more questions than answers.
- Practical problems. REAL ID will represent an enormous administrative burden. States will likely have to copy, store and verify as many as four different documents in order to grant every driver’s license. This will mean long lines for consumers and increased costs, either in the form of higher taxes or license fees. The DMV will also have to change the composition of their license and the way that information is stored in a machine-readable format (currently a magnetic stripe for California drivers) on the back of the license. The Act also calls for the creation of a system to link all state motor vehicle databases. The cost of these changes is likely to run in the billions of dollars. Currently no federal funds have been appropriated to implement REAL ID.
- Identity theft. The Federal Trade Commission estimates that 10 million Americans are victims of identity theft annually. The drivers’ license contains valuable information for an identity thief including date of birth, gender, driver's license or identification card number, digital photograph, address and signature. Identity thieves recognize this and are increasingly targeting state Motor Vehicle Departments. REAL ID will make drivers’ license information accessible from tens of thousands of locations across the country.
- Private Sector Use. Requiring the machine-readable elements of the drivers’ license to be standardized enables the private sector to collect and save this information. Bars swiping licenses to collect personal data on customers will be just the tip of the iceberg as every convenience store learns to grab that data and sell it to data aggregators like ChoicePoint. This data will become part of existing private sector databases not subject even to the limited privacy rules in effect for the government. It is not clear how federal regulations will impact existing California state law protecting drivers’ license data.
- Your papers, please. In the days after 9/11, President Bush and others proclaimed that we must not let the terrorists change American life. It is now clear that – despite its lack of effectiveness against actual terrorism – we have allowed our security agencies to push us into making a deep, far-reaching change to the character of American life. Identification is already necessary to board a plane, open a bank account or participate in many routine activities that are part of living in a modern society. REAL ID dramatically expands the use of identification and its intrusions. It was passed without hearing or stand-alone vote on its merits in Congress. The federal government has already abdicated its responsibility to consider the serious issues raised by REAL ID, California cannot do the same.
- Biometrics. REAL ID requires the capture of a digital photograph that lays the groundwork for a sophisticated biometric system that allows for electronic storage and easy comparison against other facial images. Unfettered access by a law enforcement agency to records held by the DMV for purposes unrelated to driver’s licenses or identification cards may not have posed much of a privacy danger when all the DMV was gathering was a photograph and a thumbprint that many times was unusable or blurred (Vehicle Code section 1810.5). However the new system envisioned under REAL ID warrants a rethinking of this open access by law enforcement.
We recommend that privacy protections be included in SB 60, including encryption, destruction of the image after it has been converted to a biometric identifier, and the prohibition against matching or sharing, the facial images captured by the DMV should be used solely to ensure that the individual is issued only one driver’s license or identification card. In addition, if law enforcement is permitted access to the DMV fingerprint database, then law enforcement access should be limited to situations where the peace officer has grounds for and obtains a search warrant. SB 661 (Dunn), 2001 provides a useful template.
- Marked driver’s licenses for undocumented and other immigrants. Although we recognize that providing a means for individuals to drive legally is important, SB 60's approach does not appear to provide adequate safeguards, and there has not been adequate time to develop and evaluate alternative proposals because the federal regulations have not been issued and the experience of other states with permits has not been reviewed. Unfortunately, we cannot support the bill on immigrants’ rights grounds because of the increased risk of arrest, implementation problems, discrimination in non-police settings, and encouraging and local law enforcement to make arrests based on federal immigration grounds for which they lack authority.
We strongly recommend that at minimum amendments be taken to address our concerns: (1) a prohibition against any state or local entity from using information on the "marked" license for any purpose other than to determine whether a person is authorized to drive, and (2) require the DMV to disclose the ramifications of choosing to get a "marked" license, including that all persons will be placed in a database that is accessible by other states and the federal government, including that the person did not produce identification to qualify for the other licenses, and that the "marked" license will not be adequate identification for federal purposes.
Legislators have a duty to see that whatever state level legislation passes regarding REAL ID addresses these real and serious concerns. Moreover, if none of these issues are addressed the state must consider the possibility that, in order to protect the rights of Californians, the state must reject REAL ID and attempt to force Congress to repeal or amend it.
The debate has only begun around REAL ID. Passage of SB 60 would be an abdication of California’s leadership role among states in what promises to be a long and contentious debate over American’s privacy and security. For all of the above reasons we respectfully oppose passage of SB 60.
If you or your staff wish to discuss this matter, please call us.
Valerie Small Navarro
Cc: Members and Consultant, Assembly Transportation Committee
1 For a survey of press reports documenting problems see Center for Democracy and Technology, “Unlicensed Fraud: How bribery and lax security at state motor vehicle offices nationwide lead to identity theft and illegal driver’s licenses,” January 2004, pp. 5-7