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California Law Undermines Air Safety

Nearly three weeks ago, embattled California Gov. Gray Davis signed SB 60, the bill that makes anyone with a federal Individual Taxpayer Identification Number (search) ("ITIN") eligible for a California driver's license.

Since the bill's Sept. 5 signing, the full implications of Davis' act have become clearer: Not only does the bill represent the most unalloyed act of ethnic pandering in decades, but directly jeopardizes the safety of America’s air passengers.

As has been widely reported, in January 2004 California will allow individuals whose identity is demonstrated only by a federal ITIN to apply for driver's licenses. Much criticism of the law has focused on the fact that there are no plans to check the background of these applicants. But even if background checks were required, and no disqualifying information located, the ITIN-foundation of the new California driver's license is so prone to fraud that federal authorities now have a duty to intercede and stop the law from taking effect. For, we now know that the law promises to subvert two years of efforts by the Transportation Security Administration (search) to make flying safer for Americans.

The security problem created by the California law is simple but grave. The law allows a person to use the IRS-issued ITIN (which, according to the IRS, is not designed for use as identification and may not be used for identification purposes) to obtain a driver's license. But the Transportation Security Administration rules allow the bearer of a driver’s license to board a plane. I'm inclined to hope that the California legislators who sponsored the bill were unaware of this, but given the condition of the state, it's more likely that they did and just didn't care.

The Transportation Security Administration was established in the autumn of 2001, when some FAA security functions were transferred to the newly created agency. The role of the TSA is to implement the provisions of the Aviation and Transportation Security Act (search) signed by President Bush on Nov. 19, 2001. Its regulations are designed to prevent a known terrorist, a "watched" person or, famously, anyone with a sharp object to get onto a plane. Every ticket holder must be matched to his ticket with "government-issued" photo identification.

State driver's licenses, including the California driver's license, are an acceptable form of government-issued identification.

So what does it take to obtain an ITIN? Surprisingly little. One need only complete a one-page form and attach photocopied identification that will serve as proof of identity. The Internal Revenue Service will accept as proof of identity such things as a foreign country's voter registration card.

The IRS, in its instructions to apply for the number, explicitly encourages illegal aliens -- the vast majority of whom are individuals who have evaded our border controls -- to apply for an ITIN. Though the IRS issues the ITIN solely for purposes of tax collection, it has so little confidence in the verifiability of an ITIN applicant's identity that its regulations do not allow the number to be used as a means of identification.

But Gray Davis and Cruz Bustamante (search), and now the California Department of Motor Vehicles, do.

Anyone who is in the U.S., on a watch list and tasked with a terror mission would have every reason to consider relocating to California. But more than the image of flights out of LAX striking important buildings, the new driver's license law conjures the very real prospect that Americans will be forced to carry passports in their own country. In simple terms, a new California driver's license does almost nothing to demonstrate the bearer's identity and nothing at all to indicate U.S. citizenship or legal status within the U.S.

The days when a person returning from Canada could get through U.S. Immigration by showing his driver's license are almost certainly over. And if the Transportation Security Administration does what it is charged to do and determines that the California driver's license is too unreliable a form of government-issued identification to permit its use to board a plane, then passports -- at least for Californians -- are a likely future requirement for air travel even between Chicago and St. Louis.

Arnold Schwarzenegger (search) has said that if he is elected, the new California driver's license law will not take effect. The choice made by Californians next week will have real effects on the security of Americans. Voters can stand by and allow America's security to be compromised by Davis' Hail Mary attempt at winning the favor of a voting block, or they can go to the polls and do something to restore responsible public administration to the state of California.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He teaches at Berkeley College, and is author of The New Immigration Law and Practice, to be published in October.

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