Nevadans who breathed a sigh of relief when last year’s Nevada Legislature killed a bill to implement the federal REAL ID program in the state can start worrying again—the Gibbons administration has implemented it anyway.
The director of the Nevada Department of Motor Vehicles (DMV) said the regulations give the state the ability to move forward with the REAL ID program, even though state legislators don’t want the state to do so.
REAL ID, a 2005 federal mandate, imposes authentication and issuance standards on state driver licenses and identification cards in order for them to be used for federal “official purposes,” however that is defined by homeland security officials. Essentially, it creates a national ID card, though design features may differ from state to state. It has raised concerns about both privacy and overreaching federal mandates.
But the federal law has faced stiff opposition in state legislatures—including Nevada’s—and the Obama administration and Congress have been drifting toward softening its provisions or junking it altogether.
REAL ID has also faced harsh criticism from advocates of personal privacy, particularly conservatives. Liberals have been more divided.
The federal Homeland Security Department has pretty much suspended REAL ID with extensions of time for the states until Congress can clarify its desires.
Gov. Jim Gibbons said he would implement the REAL ID law by executive regulation. As a member of the U.S. House, Gibbons voted for REAL ID both when it was a stand-alone bill, which failed to pass, and when it was tucked into a troop funding bill, which passed.
In Nevada, privacy advocates—particularly the American Civil Liberties Union of Nevada, which was instrumental in defeating the 2009 legislative implementation of REAL ID—feel betrayed. “I think that’s bad faith,” said Rebecca Gasca of ACLU of Nevada, referring not to individuals but to the fact that opponents played by the rules and defeated the legislation, only to see the program implemented anyway. “I mean, if they didn’t actually need the legislature, then why was it considered by the legislature? The DMV tried, multiple times, to have the legislature consider pieces of [REAL ID] legislation. That was open, it was transparent, and it was soundly rejected.”
In December, ACLU sent a letter to the governor reading, “Nevadans do not support REAL ID and their elected legislators have refused to adopt it. Here in Nevada, the 2007 Legislature passed a near-unanimous joint resolution, AJR6, urging Congress to repeal REAL ID.” Roberts responded, “AJR6 was passed when the law was passed prior to the final rules being released in January of 2008. The decision was based on many assumptions and unknowns regarding the final rule.”
“Information will still be contained on the back of the card and is scannable. There are no prohibitions on how and who can scan that.”
According to DMV, the regulations adopted by Nevada put it in basic compliance with 18 standards mandated by the Homeland Security Department. Those standards include requirements that the state keep photos of all drivers in its files rather than just using them for licenses; documentation by all drivers of their date of birth, social security number, residential address, and lawful status; background checks on DMV workers who have access to drivers’ information; and “integrated security features” in licenses. Many drivers, particularly older drivers, no longer have such documents—and having shown those documents to the DMV in the past will not help them in the future. They’ll have to present them again.
Gibbons used emergency regulations, in spite of the lack of an emergency. Such regulations remain in force for 120 days, after which legislators will probably void them. The problem is the DMV will likely have REAL ID already in place by the time the legislators can act—and the legislators will then be put in the position of undoing a program that is already in effect.