Kaye Beach

PA Rep Sam Rohrer ‘REAL ID and the PASS Act America’s Growing Surveillance Society’

In Issues on January 20, 2010 at 9:32 am

REAL ID and the PASS Act
America’s Growing Surveillance Society
Address to the 10th Annual Freedom21 Conference – August 14, 2009
By PA State Representative Sam Rohrer

Since I addressed this 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’d 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.

Preventive Detention

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 whole heartedly 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 God-given 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.

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.

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 state’s 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.

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.”

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 machinereadable 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.”

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