REAL ID and the PASS Act: America's Growing Surveillance Society
Address to the 10th Annual Freedom21 Conference
August 14, 2009
August 14, 2009
Since I addressed the Freedom 21 convention last year about the same topic, much has changed while much has also remained the same. First, let me offer my congratulations and thanks to so many of you who have faithfully fought the good fight for freedom and against the dangerous provisions of REAL ID.
Thousands of hours have been spent resisting REAL ID and all it represents, and I stand before you now to say that those hours have not been spent in vain.
In all, legislative bodies in twenty-six states have spoken out against this government power grab.
Such a stunning reaction against federal legislation would not have been possible without the hard work of many in this room and many at this conference. Yet, while battles have been won, the war has not.
Today I would like to provide an overview of where the REAL ID issue stands currently. Most of you probably know the problems associated with REAL ID and may have even heard my speech on this topic last year (The DeWeese Report, Volume 14, Issue 9 - September 2008). My presentation this year has been geared as a continuation of what I presented last year.
First, I will set the philosophical stage that underlies much of the thinking behind REAL ID and similar ideas.
Next, I will briefly discuss fusion centers and their role in the coming American surveillance society.
From that point, I will focus on the 2009 version of REAL ID and discuss a range of related issues, pointing out significant threats to our personal privacy and security along the way.
I will close by offering my thoughts about the next steps we should each take in resisting REAL ID.
Let me start with this question, “Why is it that honest, law-abiding civilians are so worried about the federal government increasing its knowledge of citizens and their activities?”
After all, if you’ve done nothing wrong, you’ve nothing to worry about, right? - WRONG!
Under true justice, this statement would be fairly accurate, but it no longer is. A basic reason is that the law enforcement and the terrorism-fighting community have wholeheartedly embraced a new and dangerous operating philosophy. Now the focus of the law enforcement community has changed to crime and terrorism prevention through the use of massive amounts of intelligence.
In fact, on May 21 of this year, a New York Times story noted, “President Obama told human rights advocates at the White House . . . that he was mulling the need for a ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried.” This startling statement should stop us in our tracks – preventive detention? What happened to the Constitution and its protections? You mean looking inside someone’s head or heart and incarcerating him because someone thinks he might commit a crime in the future? Would this “preventive detention” apply to Americans accused of being right-wing extremists?
This emerging philosophy is known as “Intelligence-led Policing.” Most proponents of this philosophy have come to believe that the more that is known about all people in general, the greater the chance to catch the criminal or terrorist at large in the community before he commits his act of terrorism or crime. In essence, cast the net broadly. Let me clearly state that I believe the causes of crime and terrorism should be a matter of focus.
However, I equally – and just as strongly – believe that law enforcement and intelligence goals must be balanced with the Constitutional rights of American citizens.
Granting government in any form, including police, too much authority will turn America into a police state where citizens are stripped of their constitutional rights and a presumption of guilt is established.
Focusing on the principle of individual autonomy derived from natural rights, our Founders and subsequent court decisions established and confirmed this historic balance by agreeing that citizens must be presumed innocent until proven guilty “beyond reasonable doubt.” The danger with the “Intelligence-led Policing” view is that, without the protection of this proper balance, the basic right of the presumption of innocence is destroyed, and with it our Freedom.
This is so because, once this foundational concept is discarded, like falling dominoes in a row, other major changes begin. The entire mindset in Washington has developed into a philosophy which advocates nearly total government knowledge of all citizens’ information.
Fusion Centers and the Web of Intimidation
Such a transformation has been crystallized within the law enforcement community in the form of “fusion centers” and how they have operated in the years following 9/11. These amorphous institutions were created to simplify information transfer between local, state, and federal officials. In fact, the official Fusion Center Guidelines state: “The principal role of the fusion center is to compile, analyze, and disseminate criminal/terrorist information and intelligence . . . to support efforts to anticipate, identify, prevent, and/or monitor criminal/terrorist activity.
You can easily spot the “Intelligence-led Policing” and “preventive detention” philosophies underpinning those guidelines, but more to my point is what these fusion centers have produced.
The Missouri Information and Analysis Fusion Center produced a document with which you may be familiar in February of this year, called “The Modern Militia Movement.”
This report, allegedly aimed to inform law enforcement officials throughout Missouri, actually linked militia members with supporters of third-party political candidates Ron Paul, Bob Barr, and others. This document smeared all supporters of those candidates as potentially dangerous militia members who might incite violence against law enforcement officers or government officials.
Another report issued by a Virginia Fusion Center noted that dangerous student radicalization could occur at colleges and universities, specifically two “Historically Black Colleges” and “Regent University, a private, evangelical Christian institution.”
Both of these fusion center reports illustrate the danger of unbalanced “Intelligence-led Policing” and show more importantly why even those who do nothing wrong should be very worried when government has expansive knowledge and control. Should your daughter or granddaughter attending law school at Regent University have fewer rights because she chose a school based on its conservative religious beliefs? A centralized and top-heavy drive to prevent crime can easily result in such Constitutional violations.
Once these fundamental changes from assumed innocence to assumed guilt and law enforcement to preventative detention occur, freedom gives way to a surveillance society mentality, and the operational problems of fusion centers. But significant changes have occurred in other federal government initiatives which advance the surveillance society in America.
Keep Smiling or You May Be Locked Up
The first of these initiatives is nicknamed FAST (Future Attribute Screening Technology).
This technology uses an array of sensors to measure physiological characteristics such as heart rate, breathing rate, facial expressions, and pupil dilation to determine whether or not a person intends to
commit a crime.
commit a crime.
The Department of Homeland Security plans to implement this technology in airports and at major event locations. Again, you can see the emphasis on prevention underlying this massive privacy violation. People’s heart rates climb and pupils dilate for a multitude of reasons. The real effect will be a massive loss of freedom as innocent Americans are detained for wearing the wrong facial expressions or showing nervousness about flying.
A second initiative is Enhanced Driver’s Licenses (or EDLs). This is another portion of the federal government initiative built on Real ID which drastically increases federal government knowledge of everyday life.
These new licenses double as a passport with Mexico and Canada and contain an RFID chip that is read when any border is crossed. However, the significant convenience for the consumer is more than outweighed by the resulting privacy concerns.
As a recent Associated Press article noted, the RFID chips in Enhanced Driver’s Licenses can be easily skimmed by someone holding a reader within thirty feet or more of the license.
As technology improves, these licenses will be readable from a much greater distance. Currently four states and two Canadian provinces issue these licenses, but more states and provinces will likely do so in the future. Enhanced driver’s licenses are another topic entirely, but they serve to show increasing breadth of government knowledge and control over American citizens.
PASS Act - Wolf in Sheep’s Clothing
Now let me turn to the key federal government initiative which drastically increases government knowledge and control - the “Providing for Additional Security in States’ Identification Act” (PASS ID). Influential players in the federal government have switched horses and begun promoting this act. Introduced June 15th and now out of the Senate Homeland Security Committee, this alternative allegedly corrects the abuses of REAL ID while still improving overall security.
Be assured that this switch does not take me or anyone else who has studied this issue by surprise. REAL ID was a poorly conceived and hastily passed bill – for months we have known that it would be scrapped in favor of PASS ID. Accordingly, I have studied PASS ID and determined that it is no improvement. The tactics have changed, even as the administration has changed, but the end result remains the same. Through PASS ID, the leaders of the federal government will accrue to themselves unprecedented knowledge about and control over the American people.
This license will enroll Americans in a global system of biometric identification.
Predictably, the tactics have not changed. Senator Joseph Lieberman, chairman of the Senate Committee on Homeland Security and Government Affairs, exercises vast control over hearings in that committee, including the committee hearing about PASS ID.
When determining which experts would be allowed to testify in committee about PASS ID, just recently on July 15th, he refused to allow anyone opposed to PASS ID to testify.
All those testifying represented organizations which supported either PASS ID or REAL ID.
There was no debate on whether the federal government should mandate regulations for states' driver’s licenses - that premise was a foregone conclusion. The main question was what those regulations should look like. PASS ID was written to eliminate enough objections from opponents of REAL ID to ensure that federal regulations would be imposed on the states.
Not surprisingly, PASS ID was just recently voted out of committee.
We also learn that both the National Governors Association (NGA) and the National Conference of State Legislatures (NCSL) both support PASS ID. Those organizations, which were opposed to REAL ID and should defend state constitutions and individual freedom, now support PASS ID because some cost concerns have been eliminated from the legislation, as if cost were the primary concern. In fact, the more important privacy and Constitutional concerns remain.
The blatant bias for PASS ID during the Senate committee hearings exhibits the increasingly arrogant approach of many in the federal government. They exercise extraordinary faith in the laws and regulations passed by Congress to remedy security problems in each of the fifty states. As a seventeen-year state legislator, believe me, I know the consequences of the federal government forcing solutions to complex problems upon the states. The solution will always be too “broad-brushed” to be either effective or workable and will also violate some aspect of the Constitution. The best solution to problems including state-issued drivers’ licenses simply must come from the states.
As I mentioned previously, PASS ID fails to improve REAL ID. In fact, it keeps the most egregious portions of REAL ID intact.
First, PASS ID allows the federal government to regulate a traditionally state-determined process, in violation of the Ninth and Tenth Amendments
to the US Constitution.
to the US Constitution.
Second, Section 242 of PASS ID requires each state to, “subject each person who submits an application for a driver’s license or identification card to mandatory facial image capture.”
Third, PASS ID gives enormous power to the Secretary of Homeland Security. The language reads, “All authority to issue regulations, set standards, and issue grants under this subtitle shall be carried out by the Secretary, in consultation with the Secretary of Transportation and the States.”
These regulations, which should be granted a lengthy comment period during which time groups can point out problems with PASS ID, are supposed to be finalized only nine months after the date the legislation passes. Additionally, the traditional rule-making process will likely be circumvented, allowing for no public comment about PASS ID regulations.
Fourth, six years after PASS ID regulations are issued, federal agencies will be prohibited from allowing citizens to use non-compliant licenses for official purposes. This is the same REAL ID tactic to force states into compliance.
If you read through PASS ID, you will note toward the end the following provision, “Nothing in this section may be construed to—(1) authorize the
creation of a national database of driver’s license information; or (2) authorize States direct access to the motor vehicle database of another State.”
creation of a national database of driver’s license information; or (2) authorize States direct access to the motor vehicle database of another State.”
This portion of the legislation is often trumpeted as an important privacy protection but it offers nothing of the sort. The truth is, massive datasharing goes on between states and the federal government on a daily basis already, whether or not direct access is statutorily allowed. In fact fusion centers were created for the purpose of facilitating information transfer between state, local, and federal government agencies. Creating a new national database would be superfluous since in reality it already exists.
In an excellent article opposing PASS ID, the Electronic Privacy Information Center (EPIC) lists several further problems which bear repeating now.
First, the data collection and retention requirements raise significant privacy concerns. These requirements are nearly indistinguishable from the data requirements of the REAL ID Act. As with REAL ID, the PASS ID data requirements will encourage and simplify the identity theft process.
Second, PASS ID requires no physical security protections for the machine readable zone (MRZ) on the back of the license, only the promise of prosecution after someone steals that information. This machine readable zone will provide identity thieves with a barcode scanner easy access to your personal data.
Cameras, Cameras Everywhere
Finally, the massive amount of information collected and stored as a result of PASS ID will provide government with the use of large amounts of personal data – “achieving the effect of a national database.”
Of major impact is that facial recognition technology, the biometric portion of REAL ID also mandated by PASS ID, can be used to track people in real time, through networks of surveillance cameras linked to databases containing facial recognition templates. Proof for that statement comes from a 2003 Carnegie- Mellon University study, the introduction of which declares, “In the context of sharing video surveillance data, a significant threat to privacy is face recognition software, which can automatically identify known people, such as from a database of drivers’ license photos, and thereby track people regardless of suspicion.”
The private commercial sector is already using facial recognition technology in conjunction with surveillance cameras.
3VR is a leading company which markets such technology. According to the 3VR website, this technology can: “capture, index and catalog Facial Images; track suspects using face similarity search; build, manage, and share watch lists of faces; receive notifications when the system recognizes a watch list individual; and maximize hard drive space by saving video and images associated with face events for longer.”
According to a January 2008 Popular Mechanics article, "Twelve bank companies employ 3VR systems at numerous locations, which build a facial template for every single person that enters any branch.”
Few people probably realize what is happening when they enter a bank with such a system in place. But such a system controlled by governments and potentially operating world-wide is the direction this technology is headed.
An extensive surveillance camera network capable of tracking people has already spread across the country.
According to the same Popular Mechanics article, an estimated 30 million surveillance cameras pepper areas across the nation, from tiny Dillingham, Alaska (population 2,400), to New York City with its multiple thousands of cameras. A few cities – like Brookline, NH – have refused the cameras, but most areas of the country have installed them.
Exactly how advanced are these surveillance cameras?
Well, according to a Chicago Sun-Times article, new cameras being installed in Chicago are so advanced they can rotate independently and “pick up a face in a crowd six blocks away.”
Certain ultra-long range surveillance cameras are advertised online as being able to precisely identify a human more than 3.5 miles away!
Government By Intimidation
Again, many people assume that as long as they are not criminals, they have nothing to fear. Again, not true – as I have said, the whole mindset in Washington has changed. Just watch as more of these privacy-invading, freedom-destroying programs are pushed through in the future. Imagine the consequences of a police force using real-time surveillance cameras to determine the identity of participants at a rally opposing some government policy. Imagine being questioned for completely legal behavior that only looked suspicious on the surveillance camera. As American citizens, we have been guaranteed the First Amendment “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” I believe that such knowledge and power already infringe on this basic right. American citizens also have a clear expectation of privacy implicit in the Fourth Amendment – “The right of the people to be secure in their persons ... shall not be violated.” Surveillance cameras operated by law enforcement officials have already been documented abusing certain persons’ right to privacy and security of person. Also concerning, a Privacy International report ranking privacy protections of countries around the world listed the US in the worst group – among the United Kingdom, China, and Russia.
You may wonder how the federal government could gain access to drivers' license photos to make tracking people by surveillance camera possible. Currently, the Driver’s Privacy Protection Act (DPPA) makes information in state DMV databases available to law enforcement and federal agencies. The network which facilitates this transfer of information is NLETS, the International Justice and Public Safety Network, a not-for-profit organization owned and run by the states.
According to the NLETS website, this information exchange system links 30,000 agencies, nearly 700,000 terminals, and over 1 million users.
Additionally, NLETS “will soon allow users in the US to electronically access INTERPOL files in Lyon, France.”
In all, roughly 90 million messages are transacted each month.
A new NLETS initiative called the NLETS Interstate Sharing of Photos, or NISP, allows all participating states to access driver’s license photographs from other states. This massive data-sharing between states and countries could easily provide the infrastructure to allow the federal government to link the facial recognition photo found in your state DMV database to a government-sponsored surveillance camera network. Having INTERPOL connected to the system opens the door to international surveillance.
You Are The Target
This developing surveillance society received a major push under the previous administration. During those years, the National Security Administration was given broad access to massive amounts of private telecommunications information via AT&T for the purpose of fighting the war on terror. Fighting terrorists is a good thing, but using an unconstitutional and invasive means to do so, when it spreads the net to innocent citizens, certainly is not. This action, however well-intentioned, left the door wide open for abuse of whomever the current President deems a threat against the United States.
It seems like nearly every piece of legislation that comes out of Washington these days involves some sort of information gathering on Americans. Even the seemingly innocuous “Cash for Clunkers” program authorized the Federal Government to take certain information from computers which logged on to the Cars.gov website.
And, lest we forget, combine all these dangers with the recent positions taken by the United States Department of Homeland Security. That government agency issued two startling documents earlier this year which you probably remember.
The first was called, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” That DHS report noted, “The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists.”
Notice how military veterans and those who oppose further firearm restrictions are singled out as potential threats to the US.
Also notice how this DHS document defines “right-wing extremism:” “Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented. . . and those that are mainly anti-government, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.”
The second report issued by DHS was called the Domestic Extremism Lexicon.
This lexicon used a very broad brush to paint numerous groups as extremist.
These groups include not only abortion opponents, but also such liberal groups as animal rights activists, anti-war protestors, and environmental activists. Even the White House has begun calling those in opposition to the President’s socialized medicine agenda “mobs” who use “scare tactics.” These dangerous definitions point out the increasing danger to both the left and right of a government that is growing ever larger and more intrusive.
Even to the more casual observer, it is increasingly easy to see the direction in which America is headed. Many people believe that more knowledge, control, and surveillance equals more safety. They blindly assume that as long as they do nothing wrong, they have nothing to fear. The tradeoff that many do not consider, and that is the reason I oppose REAL ID and PASS ID is the resulting loss of freedom inherent in these ideas. Make no mistake, PASS ID is an attack on freedom. It keeps the most onerous provisions of REAL ID and is a major component of the massive surveillance society being set up in America and around the world. So what can be done about it?
First, understand that these issues we’re discussing in this conference are issues that stem from anti-freedom philosophies. Many promoters of these philosophies are aggressively pushing this nation toward fascism. We must be just as committed and aggressive – the stakes are high.
Secondly, continue to educate yourself. Spend the time necessary to find and read good, credible resources and always think for yourself rather than accepting the opinion of another.
Thirdly, pass on what you learn to others. In this way, you can duplicate your efforts, getting greater “return” on the time you have invested to stay up-to-date and factual about current events.
Also, continue to support organizations such as the Stop REAL ID Coalition, as they serve to enlarge our efforts by spending time we don’t have and using expertise we don’t possess to achieve that common goal of defending our liberties.
When our freedoms are at stake, inaction is the worst course of action. To win this fight, we need each person to do as much as possible. The cameras of a total surveillance society are moving ever closer. Without the American people pushing back against these encroaching efforts of the federal government, we will wake up one day, in the not-too-distant future, wondering what happened to the “land of the free and the home of the brave.”
Allow me to close with a quote from one of our Founding Fathers, Samuel Adams. “The liberties of our country, the freedoms of our civil Constitution are worth defending at all hazards; it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors. They purchased them for us with toil and danger and expense of treasure and blood. It will bring a mark of everlasting infamy on the present generation – enlightened as it is – if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of designing men.” -Samuel Adams___________
Representative Samuel E. Rohrer is a Pennsylvania State Representative from the 128th district in Berks County. For more information, visit http://samrohrer.org/ Statement of Policy.
Learn about Mr. Stolyarov's novel, Eden against the Colossus, here.