From the perspective of DHS, the major problem with REAL ID is that it is producing very little progress in terms of securing driver's licenses, and it is not getting us to where we need to be. Simply put, REAL ID is unrealistic. It presents major concerns to the states on a number of fronts, and when 12 states have so far outlawed themselves implementing REAL ID, there will never be effective national standards for identification until REAL ID is fixed.
Inflexible electronic verification requirements
A necessary part of increasing ID security is setting strong standards that states would need to meet in verifying the underlying documents a person presents when applying for a driver's license (for example, a birth certificate or driver's license from another state). REAL ID would require states to adopt new technologies in order to verify all those "identity source" documents electronically, including documents issued by other states.
This mandate is too rigid. Many of the required databases are simply not ready and this requirement provides states little leeway to try to adopt more efficient and effective methods for data verification. Under REAL ID, the states would need to spend an estimated $1.5 billion to electronically verify applicants' information and to upgrade their systems. States have bristled at being required to absorb this expense when they could take equally effective measures at less cost.
Similarly, the process by which current driver's license holders renew their driver's licenses, presenting their source documents to enroll secure ID, is a critical part of any ID security initiative. But REAL ID issues inflexible mandates to the states on this score.
Current regulations impose a specific schedule for the states to re-enroll their 245 million driver's license holders. Under REAL ID, re-enrollment would need to be completed in a six-year window, from May 11, 2011 until December 1, 2017. The rule then requires that those under the age of 50 about 60 percent of all license holders reenroll in the first three years of that window, by December 1, 2014.5
So long as the Nation reaches the same goal, states should be allowed to find the most efficient and effective ways of expeditiously bringing their residents into a secure ID program based on their own renewal cycles and operations, rather than being forced to follow a rigid age-based plan. PASS ID, if enacted this year, would have states complete issuance by 2016, one year earlier than the current REAL ID schedule, but states retain the authority to meet that deadline as they see fit.
Higher costs than necessary
REAL ID would require an estimated $3.96 billion for states to implement, yet minimal funds have been appropriated to the states for this purpose. When REAL ID passed in 2005, the states balked at accepting a mandate they had played no part in creating. Today, this hefty burden is made even more onerous by the economic conditions that are constricting state budgets.
Enhancing ID security by setting nationwide standards will be more expensive than the current system there's no question about it. But in specifically requiring how states meet security standards, rather than having states meet standards in the ways they deem most effective and efficient, REAL ID makes strong security standards more costly than they need to be. Mandating electronic verification or a specific re-enrollment schedule are examples of this.
No incentive to innovate
As is clear, the rigid mandates in the REAL ID Act provide states with little leeway to devise new or better systems to achieve the same security standards. Ideally, states would not merely meet security standards, but also exceed them, and accomplish this in new and better ways. States are laboratories for innovation in government and are best positioned to implement policies according to their operational considerations. Provided the states are on the path to meeting the same strong ID security standards, the federal government should allow flexibility in the means they choose to get there.
Inadequate privacy protections
Several provisions of REAL ID have raised substantial privacy concerns among citizens and state lawmakers. Specifically, REAL ID calls for states to provide electronic access to information contained in their motor vehicle databases to all other states. It is completely unclear how the law envisions this access to be used, much less monitored and managed to ensure privacy protections. Uncertainty about this provision has led to assumptions that REAL ID allows officials of any state to view an applicant's personally identifiable information as part of a national system.
REAL ID lacks sufficient rules regarding who could access, share, or even sell personal information contained in the machine-readable barcode on a REAL ID-compliant document. The current law also lacks protections or procedures for individuals who want to change their data or correct erroneous data in records databases.
Costs of inaction
It is essential for Congress to act promptly to address concerns raised by REAL ID because not changing the law could result in major complications, especially for the residents of the 12 states with anti-REAL ID laws on the books. Due to the concerns raised by states during the REAL ID rulemaking process, the Department has allowed for various extensions related to compliance. On March 1, 2007, the Department announced it would grant extensions to all states requesting extensions, not to exceed December 31, 2009. The Department has also announced that a second extension is available, but only to those states that have met certain benchmarks by December 31. These benchmarks include a certification by the state that it will comply with REAL ID.
Clearly, this is very problematic for states with anti-REAL ID laws and resolutions. In the 12 states with laws against REAL ID, the December 31 deadline means that residents of these states who number more than 40 million will not be able to use their driver's licenses for official purposes, such as boarding aircraft. The residents of Georgia and Virginia may also be affected by their states' less-conclusive anti-REAL ID laws. Eleven other states have passed legislative resolutions opposing REAL ID and could be affected. Together, all these states have 111 million residents, including more than 84 million adults, who could be affected by this deadline.
All in all, half the states have taken some kind of legislative stand against REAL ID and more have expressed serious reservations. Due to the significant budget problems facing all states, it is highly likely other states will also refuse to implement REAL ID.
And, under REAL ID, residents of states that have indicated they will comply will be allowed to use their driver's licenses for boarding aircraft and other official purposes, despite the fact that their licenses may be no more secure than those issued by states that have refused to comply. This is because no state including those without anti-REAL ID laws will issue REAL IDs by the end of the year. Which driver's licenses are accepted and which are not would be based on a promise of future action, rather than on actual security differences between those driver's licenses. Such a situation would not advance our security, and underscores the need of Congress to act quickly.
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