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Comparing the PASS Act with Real ID

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Is there a difference in the repeal legislation?

The PASS Act, S.1261, filed Monday is posing as part of the repeal effort of the expiring Real ID Act. The succession of this legislation comes on the heels of a DHS exchange, giving similar legislation a second genesis. 

The Real ID will be repealed in its entirety, but only upon the condition it is replaced with a similar legislation, such as the PASS Act.

What is the PASS Act?   

The Center for Democracy and Technology cited a a few of the comparisons and improvements. The more important question is how does passing another law, repeal the Real ID Act? According to the CDT, the Real ID Act is expected to "fade away" while the PASS Act takes its place.


The National Conference of State Legislatures and the National Governors Associatio n, mid-level players between the federal mandate and the masses, have commended the legislative the PASS Act as suitable substitute.

"NCSL is encouraged by the introduction of the PASS Act, because it would repeal Real ID and replace it with a system that will ensure greater safety and security without sacrificing privacy and without incurring exorbitant costs that REAL ID imposed," said Carl Tubbesing, NCSL's deputy director in the Washington, D.C., office. "We applaud the sponsors for recognizing the shortcomings of REAL ID and for working with states to bring about these much-needed changes."


While state legislative engines run in favor of the legislation, there is opposition. 

The ACLU disagrees with the direction of  the PASS Act that it is not dissimilar enough from the Real ID Act.  The ACLU would still much rather see identical legislation introduced to last sessions Identity Security Enhancement Act(HR 1117)

Critics of HR 1117 volleyed similar criticisms  that it too was not dissimilar enough from the Real ID Act of 2005.

"Unfortunately under Senator Akaka's proposal, a state would have to adopt Real ID or risk having all its citizens subject to secondary screening at airports,"said ACLU counsel, Chris Calabrese. "With this bill, states may still be coerced into adopting a National ID. It is also problematic that this legislation contains no exemption for religious beliefs of those who oppose identification."

"Any day now, we will have fully half of all states on record opposing Real ID," said Calabrese.  "We agree with Secretary of Homeland Security Napolitano that the best solution to the Real ID Act is to repeal it."

In weeks leading up to the PASS Act's introduction, neo-conservative think tanks, like the Heritage Foundation, attacked the legislation for taking the space of the Real ID Act and for its seemingly heedless compliance to 9-11 commission recommendations.    The 9-11 Commission report is still given justified consideration in the PASS Act  despite the abused and incomplete credibility of its contents.  

Is There Any Difference?

Depending on who you ask, the 9-11 Commisssion report's cred is not so much an issue as what is being traded in exchange for the security recommendations.   In the Real ID Act, DHS was given jurisdiction over identity.  Essentially DHS would have the power to determine who you are without much accountability or limits to qualify their demand to determine use of identity. The distinction has yet to be fully determined in public forum.

Regardless of the PASS Act's introduction, the Real ID remains on the books and has not yet been repealed to finality.   The deadlines and the pains of compliance continue into the daily lives of license holders nationally.

States and Compliance 

State legislatures still contend with license and immigration standards consistent with the Real ID Act.  Local activists and Real ID opponents fear the PASS Act becoming an Enhanced Drivers License mandate. Two of the original anti-Real ID stronghold states, Maine and South Carolina, are embattled with the grind of new challenging local concessions in favor of federal regulations. 

The more unsavory regulations include RFID tags and biometric identifiers as license requirements.  Biometrics vendors cite the Real ID Act as a good sale point for embedding DNA laminates in licenses.  DHS continues to push states on federal compliance benchmarks.  In Texas, vendors levied threats of legal suit, with or without merit, against licensing agencies over security fulfillments.   Conversely, states like Pennsylvania now are contending with lawsuits against the use of an insecure facial recognition software, Face Explorer licensed by Visage due to violations of the state's strict constitutional privacy provisions.

Renee Bumgartner is gaining daily support from other plaintiffs in Pennsylvania for what may be a class action lawsuit against the Real ID Act's requirements for biometric identifiers. Affirms that Real ID is alive and well. States who passed local laws barring Real ID compliance based on privacy and identity security are moving towards regulations in licenses without qualified consent and State constitutional laws.

"My research is trying to prove [PennDOT] is converting legacy photographs and new digital captured photos into biometric face prints templates, " says Bumgartner.    

RFID tags have the potential to send stores of private transactional information in State maintained fusion centers.  With some plausible legal slight of hand, personal information may be sold to 3rd parties.   States like Arizona and Texas, have transportation code moving towards RFID tag regulations but never were granted the federal funding to move programs forward. Literal compliance fell to the wayside. 

The battle for privacy, identity security clamor for recognition amid the white noise of immigration interests in border territories. The manifest destinies of state level Real ID touch diversity and immigration in America. California Senator Gil Cedillo carries the 2009 SB  60, a third attempt to pass the California Real ID Act, persisting to give undocumented immigrants license to drive and identity in the U.S. 


So far there has been no mention of border affairs in the PASS Act. That could be due to Congressman Raul Grijalva's work to repeal border fence provisions in the Real ID Act, providing exchange legislation in the Border Security and Responsibility Act.


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Sheila Dean is the blog editor for and speaks for the 5-11 Campaign, an anti-national ID advocacy campaign. Sheila promotes American Bill of Rights retention and deliverance from the federal banking system. She also produces (more...)
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