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It’s a strange situation. What if they passed a federal statute that no one obeyed? Typically this isn’t a problem – there are a host of federal entities tasked with making sure that what Congress passes is followed. But in the case of Real ID, that is exactly what has happened.

The was aimed at improving drivers’ license security but its actual effect would have been to turn those same licenses into a national ID card. The law required a national database of all drivers and a common way for all licenses to be read by scanners. States would have to meet the standards in order for their citizens to use their driver’s licenses to board airplanes or enter federal facilities.

If fully implemented, the law would facilitate tracking of data on individuals and bring government into the very center of every citizen’s life. As happened with Social Security numbers decades ago, use of such ID cards would then quickly spread and be used for other purposes — from work to voting to gun ownership. Other groups opposed Real ID because of its high cost (more than $23 billion by initial government estimates), cumbersome bureaucracy and impact on religious minorities.

Because of all these problems instead of compliance, Real ID faced widespread opposition. States rebelled. They had already taken steps to strengthen licenses after 9/11 and Real ID would undo that in favor of an expensive one-size-fits-all federal solution. So instead 25 states, either through a statute or legislative resolution, rejected Real ID. In fact, in 15 states it is actually illegal for state officials to comply with the federal law.

So what does this mean? The only penalty for failure to comply with Real ID is that the citizens of non-compliant states can’t use their drivers’ licenses to board airplanes or enter federal facilities. If the Department of Homeland Security (DHS) were to implement Real ID, it would mean denying citizens of those 15 states (more than 20% of the U.S. population!) the right to use their drivers’ license when boarding airplanes.

Because the state drivers’ license is the main identification for most Americans, this is functionally impossible. Either DHS would have to ignore the aviation identification requirement altogether or send millions of people to secondary screening or employ other, much slower, mechanisms for verifying identity. This would bring air travel to a halt and cause numerous security problems at other federal facilities.

So instead DHS has chosen to postpone implementation over and over again. The final implementation date has been moved from May 2008 to December 31, 2009, then May 11, 2011 and is now January 2013. DHS itself acknowledges the moribund state of the law. DHS Secretary Janet Napolitano has said as much and the department also has only four full time employees working on Real ID - a tiny fraction of those necessary for actual implementation.

All of this is great news for privacy. There will be no national database of drivers’ identification and no need to show a Real ID in order to get on a plane. However problems still remain. Some states have begun Real ID compliance, forcing individuals to contend with a cumbersome new bureaucracy. And pro-Real ID members of Congress in spite of reality.

That’s why this week, as part of comments on Real ID regulations, we have called on DHS and the Office of Management and Budget to recognize the clear reality that Real ID is dead. The statute should be repealed. States should continue with their own drivers’ license security but skip the national ID card.

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