The Common Law #1

The Common Law #1
(The following column originally ran in the June 6, 2007 edition of the Moody County Enterprise.)

Who are you?

By N. Bob Pesall
Attorney At Law
Flandreau, SD

A warm greeting to the good citizens of Moody County, and welcome to my column, The Common Law. The purpose of this column will be to talk about legal issues of interest to the citizens of South Dakota. The term common law is usually used to describe the law of South Dakota as it has been historically applied in our Courts. I chose it for the title of this column because it also reflects a fundamental fact: the law belongs to us all. 

G.C. Moody probably said it best during the 1885 South Dakota Constitutional Convention, when he observed that we know the common law, “not alone from reading books, not alone from hearing it from the mouths of lawyers and judges,” but we “absorb it from our surroundings.” There are a lot of laws out there, and a lot of myths about the law. It is my hope that, through this column, we will come to understand our laws better, and contemplate whether or not they really do reflect our common values.

For the maiden voyage of this column, I want discuss a controversial piece of federal law, the Real ID Act. We South Dakotans tend to value a strong, secure nation. We also value our personal privacy, and don't particularly like it when the District of Columbia starts telling us what to do. So it is somewhat surprising that the Real ID act has received limited attention in our media, and even less attention in our State Legislature. 

This Act, passed by Congress in 2005 as part of a defense, anti-terrorism, and tsunami-relief bill, essentially nationalizes driver license and identification card information. It requires the States to use federally approved documents and standards for proving a person's identity before he or she can be issued a State driver's license or identification card. It also requires the States to put their information into a single, easy to search, nationwide network by December 31, 2009. The network, when completed, would be available to federal and State law enforcement, and anti-terrorism agencies. It would facilitate communication between them, and allow them to respond more appropriately to criminal activity or security threats.

On its face, this seems like a pretty good idea. So good in fact, it came as a surprise to me learn that several of our sister states have passed laws expressly refusing to participate. Previously, the legislatures of Idaho, Arkansas, Maine, and New Hampshire all passed measures rejecting Real ID. On April 17 of this year, Montana joined them. Montana Governor Brian Schweitzer, while singing the bill into law, was quoted as saying “no, nope, no way, h*** no” in reference to to the program. Several more states are considering similar laws.

The fact that these States would so strongly reject Real ID should encourage us to take a closer look at the Act, and consider what's really under the hood. There are essentially three issues to consider. First, the Act does not actually require States to participate. Such a requirement would probably exceed the constitutional limits of federal authority. After all, the District of Columbia cannot just go around telling the States what to do. To get around this constitutional limitation, the Act targets federal agencies, and prohibits them from accepting ID cards from States that do not participate. Thus, we are told, if our State does not participate, we will not be allowed to board aircraft or enter federal courthouses. Whether this would actually happen, in light of our federal constitutional rights to travel, and to appear in Court, remains to be seen. (I can hardly wait to see the result when the first Montanan tells a federal judge that he failed to show up for Court because security wouldn't let him enter the building.) 

The second major concern with the Real ID Act is that it lacks funding. Creating a national identity card database would be expensive, very expensive. So expensive in fact, that the District of Columbia was apparently unwilling to foot the bill. Right now, each of the fifty States has its own system for regulating driver licenses and identity cards. Each of these systems is a little bit different. In order to participate in the Real ID network, each State would have to rewrite its existing system, buy new computers, train staff, and keep copies of a slough of records not previously retained. Most States do not have extra funds lying around to implement this sort of thing.

Finally, there are the security and abuse risks. The national news agencies seem to run a story about identity theft, or the large scale loss of personal information about once a month. In recent memory, we've heard the the same tale of data theft from Choice-point, the Veterans Administration, and several large banking institutions. The Real ID system would create yet another large database of of personal information, and this raises some tough questions. Are we confident that this information will not be misused? How can we be sure it will not fall into the wrong hands? Will we be able to correct errors when they occur? In short, when it comes to something as valuable and personal as our own identities, do we really want to put all of our eggs in one basket? 

In the end, South Dakota has the right to decide whether or not it will participate in this program. The underlying purpose of the Real ID Act is to increase security. Maybe it would. When we take a look at what this Act actually does, however, we should ask ourselves whether Montana has it right. Maybe we are better off by not creating this database at all.

The foregoing column is written for informational purposes only, and does not constitute legal advise. For those desiring more information, The Real ID Act of 2005 can be found in Pub. L. 109-13. The Montana bill rejecting it was House Bill 287. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at