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Saturday, December 15th, 2018Last Update: Tuesday, October 30th, 2018 07:58:08 PM

Biometric Photo for State Drivers License Challenged

By: Constitution Staff

An Oklahoma woman has sparked a controversy which could have national ramifications. Kaye Beach, who lives in Norman, chose not to renew her driver's license in protest of federal requirements issued under the REAL ID Act. Beach believes that the government collection of her biometric information is a violation of her constitutional rights. Biometric data include fingerprints, iris scans, facial recognition and DNA.

The REAL ID Act of 2005 was passed by Congress to address security issues identified by the 9/11 Commission associated with obtaining driver's licenses and government-issued identification. The 9/11 hijackers had over 30 forms of identification and 364 aliases among 19 men. Under the REAL ID Act states were required to reissue more than 240 million driver's licenses, starting in 2010. People 50 years old and under must have compliant driver's licenses by December 1, 2014; people ages 50 and older must have compliant licenses by December 1, 2017.

The Department of Homeland Security issued nearly 300 pages of guidelines for state-issued driver's licenses and identification cards, as well as standards for license-issuing facilities. The guidelines require physical security features on the licenses, including machine-readable data. Steps are required to verify the identity of driver's license applicants, including checks of birth certificates, Social Security numbers and citizenship status. Agencies that issue the IDs must capture digital images of driver identification documents, photograph each person applying for a license, and store the images electronically in a transferable format that can be shared with other entities.

Civil libertarians say the REAL ID Act is a further intrusion of the federal government into citizens' lives, and raise the specter of a nationwide database of personal information. They are particularly concerned about the provision requiring the state IDs to include high-resolution photos and fingerprints for potential biometric identification.

Beach has been an activist on the REAL ID issue since 2007, and has been working in conjunction with the Constitutional Alliance, a privacy group opposing the government use of biometrics. "When my driver's license expired, I realized the state was not going to protect us and so I opted against renewing my license," says Beach.

Although she met all of the other requirements for renewal of the license, renewal was denied when she refused the high-resolution photos. In February of 2011, Beach was pulled over by law enforcement officials in Norman and ticketed for driving with an expired license. In March, she again attempted to renew her license, but was again denied. Beach asked that she be allowed to use a low-resolution photograph for her license, based on religious grounds. The Oklahoma Department of Public Safety (DPS) refused her request, insisting that state law does not provide alternatives or allow exemptions for the digitalized photos.

On July 21, 2011, the citation was dismissed after her attorneys presented her case to the Norman City Attorney's office. But, the dismissal of the citation is not the end of the story. Rather, it may be the beginning of a contentious journey through the Oklahoma court system. Working with the conservative Rutherford Institute, Beach's attorneys: Eileen Echols, Jonathan Echols and Benjamin Sisney of Echols & Associates filed a civil suit in the District Court of Cleveland County against DPS for not accommodating Beach's religious beliefs in violation of the Oklahoma Religious Freedom Act.

John Whitehead, founder of The Rutherford Institute, explained the context of the legal argument: "The biometric photographs digitalize your face and then put all your information into a central computer which goes worldwide, which means it's like a facial scan, which means wherever you go, that becomes sort of your ID card. Beach believes that's the mark of the beast in the Book of Revelation." Whitehead notes that the effect of ODPS denying Beach's request are not confined to her capability to drive. "Because she will not get this type of biometric photograph on her driver's license, she cannot get prescription medicines, use her debit card, rent a hotel, obtain a post office box, or drive a car. The argument here, as most people know in the Book of Revelation, is that the mark of the beast won't let you buy, sell or move in society."

Some have questioned the authority of the DPS to require the high-resolution photo. In 2007, Senate Bill 464 was unanimously passed by the Oklahoma Legislature and signed by Gov. Brad Henry. The legislation says "the state of Oklahoma shall not participate in the implementation of the Real ID Act. The Department of Public Safety is hereby directed not to implement the provisions of the Real ID Act..." The bill further calls for the retrieval of any biometric data previously collected, obtained, or retained and deleting that data from any and all databases that had anything to do with the REAL ID. That sounds pretty definitive, and conservative celebrated a victory.

But, apparently DPS proceeded to make Oklahoma driver's licenses and IDs compliant with the standards issued under the REAL ID Act. This was explained to potential vendors who received a Request for Information (RFI) proposal issued by DPS on March 18, 2010. The RFI was issued when they were seeking a new information technology system for its driver's licensing stations. DPS explained: "Though DPS is prohibited from implementing and complying with the federal REAL ID Act of 2005, Public law no.109-13, DPS is permitted to use the security and biometric features that may also be set forth in the prohibited federal act, so long as the state is not attempting to comply with the federal act, as is the case in issuing an Oklahoma DDL solely under state authority." In other words, they were implementing the REAL ID requirements, but that is okay since they are not sharing the biometric data outside Oklahoma.

The RFI also described the existing system that DPS was seeking to replace. That description includes how DPS was already using facial recognition software to compare the biometric photos collected from driver's license applicants. The purpose for the comparison was for identity theft and driver license fraud prevention.

Since the DPS has made Oklahoma licenses and IDs compliant with REAL ID, all that remains is a decision to share the data with others.

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