The Department of Homeland Security moved the goal posts back in December again when it granted a third extension for 37 states to comply with the REAL ID Act of 2005.
The act was passed after the 9/11 commission recommended that all state-issued identification cards be standardized in order to prevent fraud and a repeat of the attacks. Almost all of the al-Qaida terrorists used false identity documents to board the aircraft the day of the attacks.
The law, sponsored by then House Judiciary Committee Chairman Rep. James Sensenbrenner, R-Wis., was attached to a so-called “must-pass” bill to provide tsunami relief and fund the Iraq War. The Senate never had a chance to debate the law or hold hearings.
It came under immediate criticism from state leaders, who wondered how they would comply with all of its requirements, especially ones that called for original documents such as birth certificates to verify an identity.
Along with bureaucrats and state officials, a broad spectrum of concerned citizen’s groups joined the debate. Unlikely bedfellows such as the right-wing American Center for Law and Justice and the American Civil Liberties Union, among others, held a joint press conference in 2008 to voice their opposition to the law. The libertarian Cato Institute also emerged as a critic. Most of the opposition from these groups stemmed from privacy issues, and the collection and storage of biometric data and documents.
It also requires proof of lawful status within the United States, which sparked opposition from immigrant rights groups.
Meanwhile, states complained that they couldn’t meet the deadlines. One leading critic was Arizona Gov. Janet Napolitano prior to her appointment as DHS secretary.
REAL ID does not require states to comply. But non-compliance means that those without an approved identity card won’t be able to board passenger aircraft.
Chairman of the Senate Homeland Security and Governmental Affairs subcommittee on oversight of government management, Sen. Daniel Akaka, D-Hawaii, conducted several hearings about REAL ID implementation that explored the financial burden it imposed on states and privacy risks. He applauded the new extension, noting that his state’s residents are dependent on air travel, as well as its tourist industry.
Despite the widespread opposition, Congress has never passed a bill repealing REAL ID, or changing any of the unpopular requirements. Seventeen states, meanwhile, have enacted laws opposing implementation, according to a Government Accountability Office Report, “Driver’s License Security: Federal Leadership Needed to Address Remaining Vulnerabilities,” which was released in September.
The law does have supporters, and 13 states have managed to put the requirements in place. A DHS statement “commended” those that have succeeded: Colorado, Connecticut, Delaware, Georgia, Iowa, Indiana, Maryland, Ohio, South Dakota, Tennessee, West Virginia, Wisconsin and Wyoming.
David Inserra, writing for the Heritage Foundation, said, “While it is encouraging to see 13 states certified as fully compliant with REAL ID, the extension given to the remaining states is the third such extension issued by DHS and represents yet another failure by the department to implement REAL ID.
“Most states want to move forward with REAL ID but have been hampered by a lack of information and assistance coming from DHS,” he wrote. He accused Napolitano of foot-dragging because of her personal opposition to the law.
Four years after releasing its final regulations in 2008, GAO found that DHS did not provide “timely, comprehensive, or proactive guidance on how states seeking REAL ID compliance could meet the identity verification requirements.”
State officials said this means they won’t know if they are within the law, or not.
David Quam, director of federal relations at the National Governors Association, said, “NGA has always has concerns about REAL ID — that as written, it is unworkable.”
The DHS statement said its “goal is to implement the REAL ID Act as required by law, in a measured, fair and responsible way.”
The deadline extensions were necessary “in a period of declining state revenues,” it said. DHS by fall will issue a new schedule for compliance, the statement said.
Quam said DHS has tried “to make a bad law work.” Thirteen states have complied, but he pointed out that the law requires five different national databases for states to tap into to verify identities. Those are not up and running.
“Full compliance under the law is something that is still not there yet,” Quam said. But states are moving toward more secure licenses and IDs. They just want to know what the rules are so they know what is expected of them, he said. The timeline anticipated in the fall will help them establish that, he added.
States in the meantime are verifying identities in a variety of ways, said the GAO report. Most use a federal database to verify the validity of Social Security cards. Front desk staff at motor vehicle departments have different methods to check for fraudulent documents. There is no standardization of the procedures, though. Cross-state fraud remains a problem, with criminals successfully using other states’ documents to obtain new IDs.
The problem goes beyond the security issues raised by 9/11, GAO noted. There is no reliable data on how often they are used, but criminals employ fake IDs in financial fraud and identity theft cases.
GAO investigators successfully obtained driver’s licenses using false identities in three states by employing fraudulent out-of-state documents.
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