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.
Assembly Transportation Committee chair Kelvin Atkinson said, “We definitely didn’t fund it, and we were delaying it, waiting to see what the feds were going to instruct us to do because a lot of people felt like it was more than likely going away. … But what we did was totally put it on the backburner.” He said he hadn’t heard about the Gibbons regulations.
REAL ID has also faced harsh criticism from advocates of personal privacy, particularly conservatives. Liberals have been more divided.
In Nevada, an anti-REAL ID resolution was approved by the 2007 Nevada Legislature, and an implementation amendment was introduced and then killed in the closing hours of the 2009 Nevada Legislature. But an earlier 2007 measure also gave the state DMV authority to move forward with implementation, though that authority had restrictions on it.
One administration source says the Nevada REAL ID regulations were rushed to completion after the Las Vegas Review Journal ran a Nov. 26 story that read, “The head of [DMV] is questioning whether Nevadans will be allowed on interstate flights starting Jan. 1 because of the failure of legislators to adopt a driver’s license regulation to comply with the federal Real ID law.”
It was not true that people might not be allowed on flights—the federal Homeland Security Department has pretty much suspended REAL ID with extensions of time for the states until Congress can clarify its desires. But a few days after the R/J story ran, 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.”
Gibbons has drawn criticism from conservatives, such as a website that ran an essay headlined “Nevada governor Gibbons capitulates to Real ID citing phantom fear of stranding travelers.”
But Gasca said that all along, it’s been the DMV that has rushed REAL ID, applying for grants and changing cost estimates to move implementation along, all in defiance of the 2007 legislature’s anti-REAL ID resolution, Assembly Joint Resolution 6. DMV director Edgar Roberts has written to Gibbons that the lawmakers were poorly informed when they adopted that resolution. 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.”
Roberts and the governor’s office said the regulations prohibit using radio frequency identification (RFID) chips or any other technology capable of tracking people in Nevada licenses, which seems to be a straw man because REAL ID does not require those features in the first place.
“Just the mere fact that [RFID’s] not in the ID doesn’t mean it’s not a federal ID,” said Gasca. “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.
In his proclamation of the REAL ID regulations, Gibbons explained his authority in an unusually informal way. The proclamation reads that he was adopting the regulations in spite of the 2009 defeat of implementing regulations based on “conversations with Assembly leadership and [legislative] staff held throughout the [final] day” of the 2009 legislative session. The proclamation refers to “tight timelines” in those closing hours of the legislature and asserts that DMV representatives were “informed that the language in existing statute (passed during the 2007 Legislative Session) would allow the Department to adopt the federal requirements by regulation.”
We attempted to find out who at the legislature informed DMV officials of this and who the DMV officials were who received the information. We received a statement from DMV: “The information regarding existing language in statute was provided to the Department by LCB [Legislative Counsel Bureau] analysts and forwarded to the Assembly leadership. The Director [Roberts], the ASI project manager and the ASI project management analyst were informed on the last day of session, when SB52 was passed by the Senate and was scheduled to be heard by the Assembly.”
A DMV spokesperson said the 2007 statutory language “requires the Department to adopt rules by regs … prior to ‘the date of expiration of any extension of time granted to this State by the Secretary of Homeland Security to comply with the provisions of the Real ID Act of 2005, or until May 11, 2008, whichever is later.’ ”
However, while that language is in the statutes, so is language requiring that regulations “must not become effective until the later of: (a) May 11, 2008; (b) The effective date of the regulations issued by the Secretary of Homeland Security to implement the provisions of the Real ID Act of 2005; or (c) The expiration of any extension of time granted to this State by the Secretary of Homeland Security to comply with the provisions of the Real ID Act of 2005.” Extensions are still in force.
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.