Federal, State Officials Devise Bill to Replace REAL ID

Chris Strohm, National Journal, May 18, 2009

After four years of effort, federal and state officials believe they are finally closing in on new legislation to replace a controversial 2005 law that set national standards for driver’s licenses and identification cards.

Sen. Daniel Akaka, D-Hawaii, is expected to introduce the bill–called the PASS ID Act–that would repeal card requirements set forth under the so-called REAL ID law.

State governments–several of which rejected the REAL ID law outright through acts of their legislatures–are expected to back the new bill because many of its key provisions originated with the National Governors Association. And the Obama administration, while silent about the emerging bill, has been engaged in talks with the NGA over legislative changes to REAL ID.

The bill would require the Homeland Security Department to conduct a nine-month rulemaking process to establish security standards for state identification cards.

One year after the regulations are issued, state motor vehicle departments would have to begin issuing cards that are in compliance, according to the most recent draft of the bill, obtained by CongressDaily. All states must be in compliance within five years or their citizens could not use those cards for federal purposes, such as entering federal buildings.

In a notable departure from the REAL ID law, the bill would not prevent people from boarding a commercial airplane solely because they do not have a state-issued ID card that met federal standards.

The bill also eliminates several technology-related requirements of REAL ID that caused state officials to protest were too costly or burdensome to implement, said congressional aides familiar with the legislation. But it adds some new provisions intended to protect the privacy and civil liberties of U.S. citizens, said the aides, who asked to remain anonymous because the bill has not yet been introduced.

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Ditching the Databases

In a little-publicized disclosure in early March, Homeland Security Secretary Napolitano said her office was participating in a working group created by the NGA to review the Real ID law. “What they’re looking at is whether statutory changes need to be made to Real ID,” Napolitano told a questioner after a speech commemorating the creation of her department.

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Now, federal and state officials have fashioned PASS ID, an alternative that they describe as a compromise.

If the bill were enacted into law this year, the deadline for full compliance would actually be earlier than required under the REAL ID law, which mandates full compliance by 2017.

The tradeoff is that the bill would eliminate a mandate requiring state departments of motor vehicles to create a national information technology system for sharing data. Instead, a test program would be established to determine the feasibility of creating such a system.

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Under the proposed bill, states would have to “take appropriate steps” to determine that a person does not have a license from another state.

The bill also eliminates a requirement that states have to scan and store identification documents, such as birth certificates, electronically. DMVs still could digitize records if they wanted, but they also would have the option to keep paper copies.

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Validation vs. Verification

In another major departure from the REAL ID law, the bill would not require states to verify identification documents that applicants use to get a license, such as birth certificates or records showing where they live.

Aides and state officials said requiring those documents to be verified would be way too difficult and unnecessary. Instead, DMVs would have to validate that the documents are authentic–meaning trained personnel would look them over.

But the bill would still require DMVs to verify that an applicant is in the country legally. State motor vehicle officials would be expected to check federal immigration and Social Security databases to do so.

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To illustrate additional privacy and civil liberties protections for U.S. citizens provided in the bill, aides noted that private companies would be prohibited from storing, reselling or tracking information contained on PASS cards.

The bill also would create a redress process for people to correct false information in government databases. And it explicitly prevents the creation of a national identification card.

Lingering Cost Concerns

It is not yet clear whether Congress will need to provide additional funding to help states come into compliance with the requirements of the PASS ID alternative.

It is estimated that the REAL ID law would cost states about $4 billion, if not more. The Homeland Security Department’s FY10 proposed budget would allocate $50 million for REAL ID grants, an indication the Obama administration and Napolitano, a former Arizona governor, may be trying to address the states’ concerns.

Aides said they would expect costs to states to be much lower under a PASS ID law, mainly because the information-technology mandates would be dropped.

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The state official acknowledged that costs are likely to come down under the new bill, but said guaranteed funding would likely still be needed.

The bill authorizes a grant program to help states, including specific language that would guarantee each state a minimum amount. But the bill does not provide any dollar figures.

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