A PDF of "The Problems of Information Privacy Law," which appears as Chapter 4 of "The Digital Person: Technology and Privacy in the Information Age", by Daniel J. Solove.

The Problems of Information Privacy Law

In 2005, Congress addressed the issue of national standards for drivers’ licenses and personal identification cards by passing The REAL ID Act of 2005 (REAL ID). The act contains a number of provisions relating to improved security for drivers’ licenses and personal identification cards, as well as instructions for states that do not comply with its provisions. In general, while REAL ID does not directly impose federal standards with respect to states’ issuance of drivers’ licenses and personal identification cards, states nevertheless appear compelled to adopt such standards and modify any conflicting laws or regulations to continue to have such documents recognized by federal agencies for official purposes.

Both at the time that REAL ID was debated in Congress, and during the regulatory comment period, questions about the constitutionality of the statute have been raised. There have been four main constitutional arguments made against REAL ID. First, because REAL ID cannot be premised on Congress’s power to regulate interstate commerce, it is a violation of states’ rights as protected by the Tenth Amendment. Second, the requirement that REAL IDs be used to board federally regulated aircraft impermissibly encroaches on citizens’ right to travel.

Third, specific requirements such as the digital photograph potentially violate the Free Exercise Clause of the First Amendment. Finally, REAL ID infringes upon a citizen’s right under the First Amendment to freely assemble, associate, and petition the government.

Since its adoption in 2005, REAL ID has been a highly contested issue among state legislatures and governors. According to some advocacy groups, state and federal elected officials — including numerous commentators to the proposed regulations — and other interested parties, REAL ID imposes an unconstitutional “unfunded mandate” on the states. Prior to the publication of the proposed rule in 2007, however, there was little activity at the state-lawmaking level, primarily because officials were uncertain as to precisely what the implementation requirements were going to necessitate, either in terms of cost or potential changes to state law. Since the publication of the proposed rule in 2007, there has been a dramatic increase in state responses to REAL ID and its requirements. The final regulations were promulgated by the Department of Homeland Security (DHS) on January 29, 2008, and contain 280 pages of explanation as well as responses to over 21,000 comments. This report contains a summary description and analysis of several of the major elements of the REAL ID regulations.

Finally, this report will address REAL ID in relationship to other federal laws and identification programs. This report will be updated as events warrant.

The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

Previously secret U.S. Air Force official histories of the Vietnam war published today by the National Security Archive disclose for the first time that Central Intelligence Agency contract employees had a direct role in combat air attacks when they flew Laotian government aircraft on strike missions and that the Air Force actively considered nuclear weapons options during the 1959 Laos crisis.

Fighting the War in Southeast Asia, 1961-1973

On April 3, David Tornquist, Assistant Inspector General for Rail and Maritime Program Audits and Economic Analysis, testified before the Senate Appropriations Subcommittee on Transportation, Housing & Urban Development regarding Amtrak’s future outlook and FY 2009 budgetary needs. Mr. Tornquist testified to the need for Amtrak to do more to minimize its costs and dependence on Federal subsidies and that its spending initiatives need to make a demonstrable contribution to its bottom line. The Assistant Inspector General drew heavily from ongoing OIG analysis of Amtrak’s financial performance and labor agreement costs, their efforts to achieve operating reform savings, the causes of on–time performance problems, and a review of Amtrak’s capital plan. The Assistant Inspector General testified that Amtrak would need $475 million in FY09 for cash operating losses, $675 million for capital spending, and $266 million for debt service to operate its nationwide system. The Assistant Inspector General stated that Amtrak does not require a FY 09 appropriation to cover retroactive wage costs included in its pending labor agreement.

Amtrak’s Future Outlook and Budgetary Needs

The farm bill is loaded with pork and environmentally disastrous provisions.

We'll reap what we sow

Two men, two speeches.

Two Speeches on Race

The Bush administration said yesterday that it plans to start using the nation's most advanced spy technology for domestic purposes soon, rebuffing challenges by House Democrats over the idea's legal authority.

Homeland Security Secretary Michael Chertoff said his department will activate his department's new domestic satellite surveillance office in stages, starting as soon as possible with traditional scientific and homeland security activities -- such as tracking hurricane damage, monitoring climate change and creating terrain maps.

Administration Set to Use New Spy Program in US

A large and growing burden on the nation’s economy, traffic congestion arises for various reasons, and more than one mechanism is needed to combat it. It is most unlikely, however, that serious inroads to address the problem will be made without fundamental reform in the way consumers are charged for their use of congested highways. Congestion prices are tolls that reflect the economic costs of congestion, including productivity losses from traffic delays, increased accidents, higher emissions, and more. Such prices would help reduce these economic costs, and guide transportation investment resources to their highest and best use—which would include a better balance between highway and transit investment. In addition, such prices would generate revenues to help finance new investment and compensate low-income people and others for whom toll payments are especially burdensome. Requiring federal, state, and local engagement, such reform is a necessary step in the development of an effective, efficient, and sustainable highway system for the twenty-first century.

America’s Traffic Congestion Problem: Toward a Framework for Nationwide Reform

It's hard to imagine another member of the United Nations Security Council, for instance, feeling threatened by Bjork. But when the big-voiced Icelandic pixie shouted "Tibet! Tibet!" from the concert stage in Shanghai - nearly two weeks before any hint of the violence that would roil Lhasa - the official Xinhua news agency reported that the Ministry of Culture would "investigate" her performance, which had "not only broken Chinese laws and regulations and hurt the feeling of Chinese people, but also went against the professional code of an artist."

China is one of the very small number of places on the planet where the political impulses of rock musicians are taken seriously by politicians.

Why China is the only world government scared of Bjork

While the gregarious Mr. Yoo continues to insert himself into the limelight and is now the best-known, it’s clear that his role is subsidiary to that of Haynes and Addington. And Haynes’s role in advocating the decisive Rumsfeld December 2, 2002 order and other documents may yet yield for him the dubious distinction of being the lead torture lawyer.

Over the last four days I’ve shared notes several times with Newsweek’s Michael Isikoff, who tells me he senses a distinct gathering of storm clouds around Haynes.

Torture Lawyer in the Crosshairs