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Calendar No. 217
111th Congress Report
SENATE
1st Session 111-104
======================================================================
PROVIDING FOR ADDITIONAL SECURITY IN STATES' IDENTIFICATION ACT OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1261
TO REPEAL TITLE II OF THE REAL ID ACT OF 2005 AND AMEND TITLE II OF THE
HOMELAND SECURITY ACT OF 2002 TO BETTER PROTECT THE SECURITY,
CONFIDENTIALITY, AND INTEGRITY OF PERSONALLY IDENTIFIABLE INFORMATION
COLLECTED BY STATES WHEN ISSUING DRIVER'S LICENSES AND IDENTIFICATION
DOCUMENTS, AND FOR OTHER PURPOSES
December 9, 2009.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, Jr., Massachusetts
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Deborah P. Parkinson, Professional Staff Member
Evan W. Cash, Professional Staff Member, Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District of
Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
John K. Grant, Minority Counsel
Tara L. Shaw, Minority Counsel, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 217
111th Congress Report
SENATE
1st Session 111-104
======================================================================
PROVIDING FOR ADDITIONAL SECURITY IN STATES' IDENTIFICATION ACT OF 2009
_______
December 9, 2009.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1261]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1261) to repeal
title II of the REAL ID Act of 2005 and amend title II of the
Homeland Security Act of 2002 to better protect the security,
confidentiality, and integrity of personally identifiable
information collected by States when issuing driver's licenses
and identification documents, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................15
IV. Section-by-Section Analysis.....................................16
V. Evaluation of Regulatory Impact.................................20
VI. Congressional Budget Office Cost Estimate.......................20
VII. Changes in Existing Law Made by the Bill, as Reported...........25
I. Purpose and Summary
The purpose of S. 1261 is to replace existing minimum
standards for States' issuance of driver's licenses and
identification cards that can be used as identification for
certain federal official purposes in order to decrease the cost
and increase the practicality of issuing secure identification.
S. 1261 would replace Title II of the REAL ID Act of 2005 (P.L.
109-13) with new drivers license and identification card
standards. It would also amend the Drivers Privacy Protection
Act (P.L. 103-322) to set new conditions under which non-
governmental entities could read and use information stored on
the machine-readable component of a driver's license or
identification card.
II. Background and Need for the Legislation
The issuance of driver's licenses and State identification
cards has long been left to the discretion of State and local
governments. As a result, Americans face a patchwork of diverse
policies governing who qualifies for a driver's license, how an
individual proves his or her identity when applying for a
license, and the physical appearance and construction of the
card. Any coordination among the States has been done through
voluntary efforts by the departments of motor vehicles (DMVs)
themselves.
9/11 COMMISSION RECOMMENDATION
The need for federal intervention in the issuance protocols
for State driver's licenses and identification cards was raised
in 2004 by the National Commission on Terrorist Attacks Upon
the United States (9/11 Commission), which recommended that the
federal government set standards for the issuance of
identification documents, such as driver's licenses. This
recommendation was based on the finding that
All but one of the 9/11 hijackers acquired some form
of U.S. identification document, some by fraud.
Acquisition of these forms of identification would have
assisted them in boarding commercial flights, renting
cars, and other necessary activities. . . . Fraud in
identification documents is no longer just a problem of
theft. At many entry points to vulnerable facilities,
including gates for boarding aircraft, sources of
identification are the last opportunity to ensure that
people are who they say they are and to check whether
they are terrorists.\1\
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\1\9/11 Commission Report, p. 390.
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PREVIOUS LEGISLATIVE EFFORTS AT ESTABLISHING UNIFORM IDENTIFICATION
STANDARDS
In response to the 9/11 Commission Report, Congress passed
the Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA; P.L. 108-458), which among other things, required the
Secretary of Transportation, in consultation with the Secretary
of Homeland Security, to issue regulations with respect to
minimum standards for federal acceptance of driver's licenses
and identification cards through a negotiated rulemaking among
DOT and DHS representatives, State officials, and other
interested parties. Under Section 7212 of IRTPA, no federal
agency would be permitted to accept a State issued
identification card unless it conformed to the minimum
standards.
IRTPA directed its regulations to include minimum applicant
documentation standards, procedures for document verification,
requirements for the card contents, and standards for
application processing.\2\ It also mandated privacy protections
for those who apply for and hold such identification.
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\2\Public Law 108-458, Section 7212 (Repealed).
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The negotiated rulemaking committee had met only once
before Congress passed the REAL ID Act of 2005 as part of the
2005 Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief (P.L. 109-13). The
REAL ID Act repealed Section 7212 of IRTPA and replaced the
negotiated rulemaking provision with a stricter set of federal
requirements for the issuance of driver's licenses and
identification cards.\3\ The REAL ID Act was inserted into P.L.
109-13 during the House-Senate conference; the Senate did not
independently consider or vote on the REAL ID Act as either a
bill or an amendment to a bill. Moreover, neither the House nor
the Senate held hearings on the REAL ID Act prior to its
enactment.
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\3\Public Law 109-13, Division B--The REAL ID Act of 2005.
---------------------------------------------------------------------------
Title II of the REAL ID Act of 2005 requires that,
beginning on May 11, 2008, federal agencies may accept only
State issued driver's licenses and identification cards that
are compliant with the requirements of the Act as proof of
identification for certain federal purposes, including--but not
limited to--boarding an airplane, accessing a nuclear facility,
or entering a federal building. Before issuing a compliant
document, a state must verify the issuance, validity, and
completeness of: (1) a photo identification document or a non-
photo document containing both the individual's full legal name
and date of birth; (2) the individual's date of birth; (3) the
individual's social security number (SSN) or verification of
the individual's ineligibility for a SSN; and (4) name and
address of the individual's principle residence. In addition,
the Act requires States to provide electronic access to the
information contained in other States' driver's license
databases.
The REAL ID Act also requires States to verify an
applicant's legal status in the United States before issuing a
compliant driver's license or identification card and adopt
procedures and practices to: (1) employ technology to capture
digital images of identity source documents; (2) retain paper
copies of source documents for a minimum of seven years or
images of source documents presented for a minimum of ten
years; (3) take a picture of each applicant; (4) establish an
effective procedure to confirm or verify a renewing applicant's
information; (5) confirm with the Social Security
Administration a SSN presented by a person using the full
Social Security account number; (6) refuse issuance of a
driver's license or identification card to a person holding a
driver's license issued by another State without confirmation
that the person is terminating or has terminated the driver's
license; (7) ensure the physical security of locations where
cards are produced and the security of document materials and
papers from which driver's licenses and identification cards
are produced; (8) subject all persons authorized to manufacture
or produce driver's licenses and identification cards to
appropriate security clearance requirements; (9) establish
fraudulent document recognition training programs for
appropriate employees engaged in the issuance of driver's
licenses and identification cards; and (10) limit the length of
time a driver's license or identification card is valid to
eight years. The REAL ID Act did not require any protection of
personally identifiable information.
A September 2006 report issued by the National Governors
Association (NGA), the National Conference of State
Legislatures (NCSL), and the American Association of Motor
Vehicle Administrators (AAMVA), based on a nation-wide survey
of State DMVs, concluded that compliance with the REAL ID Act
would cost States more than $11 billion over five years, would
have a negative impact on DMV services, and would impose
unrealistic burdens on States.\4\
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\4\The Real ID Act: National Impact Analysis (September 2006).
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On March 1, 2007, Department of Homeland Security (DHS)
released a notice of proposed rulemaking (NPRM), which was
published in the Federal Register on March 9, 2007.\5\ The
proposed rule sought to implement each of the REAL ID Act's
mandates. The Office of Management and Budget (OMB) estimated
that the proposed rule would cost States $14.6 billion over 10
years.
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\5\72 Fed. Reg. 10820 (March 9, 2007).
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After receiving numerous comments on the NPRM, including
concerns regarding cost, schedule, and lack of privacy
protections, DHS issued a final rule implementing Title II of
the REAL ID Act on January 29, 2008.\6\ The final rule, which
differed significantly from the NPRM, required that States use
certain federal databases for verification purposes, set
minimum standards for State motor vehicle databases, check with
other States to determine if compliant identification had been
issued in any other State, complete security plans, and
physically secure identification issuance facilities. These
regulations addressed some of the timing and cost concerns with
REAL ID by offering a series of deadline extensions to States
demonstrating progress in meeting REAL ID requirements and
allowing a phased issuance of licenses and identification cards
to different segments of the population. OMB estimated the cost
of the final rule to States to be $3.9 billion over ten
years.\7\
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\6\73 Fed. Reg. 5272 (January 29, 2008).
\7\See Id. at p. 5272-5340.
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For all practical purposes, the final rule effectively
disregards the law's May 11, 2008, deadline. Instead it used
the waiver authority granted to the Secretary under REAL ID to
put in its place a series of deadlines, each requiring States
to demonstrate a certain level of compliance with REAL ID.
First, States were allowed to request from DHS an extension
until December 31, 2009, by submitting a written statement
attesting to the State's intent to comply with REAL ID.
However, in reality, a number of States were granted extensions
based on a promise to improve driver's license security in
general, as opposed to a specific commitment to comply with
REAL ID. Second, the rule stated that States that could
demonstrate ``material compliance'' with REAL ID by October
2009 would be granted an additional extension until May 10,
2011, to begin issuing fully compliant licenses. ``Material
compliance'' is defined to mean meeting a series of 18
benchmarks laid out by DHS in the final rule. By May 11, 2011,
all States must be compliant with REAL ID for the issuance of
all new licenses. The regulations provide for a phased-in,
risk-based issuance such that individuals born after December
1, 1964, be issued REAL-ID compliant driver's licenses by
December 1, 2014, and that all license holders seeking
compliant licenses have them by December 1, 2017.
If at any point a State does not meet one of the extension
criteria, the full weight of the REAL ID Act takes effect, and
no licenses issued by that State may be used to prove identity
for federal purposes, including boarding a commercial airplane.
COMMITTEE CONSIDERS OPTIONS
The Committee (HSGAC), including its Subcommittee on
Oversight of Government Management, the Federal Workforce, and
the District of Columbia (OGM), has held three hearings
exploring the implementation of the REAL ID Act since that
law's enactment. In addition, the Senate Judiciary Committee
held a hearing on the REAL ID Act on May 8, 2007.
On March 26, 2007, the OGM Subcommittee held a hearing on
the NPRM entitled, Understanding the Realities of REAL ID: A
Review of Efforts to Secure Drivers' Licenses and
Identification Cards.\8\ Witnesses included Richard C. Barth,
Assistant Secretary for Policy Development, DHS; Leticia Van de
Putte, Texas State Senator representing NCSL; Mufi Hannemann,
Mayor of Honolulu, Hawaii; David Quam, Director of Federal
Relations, NGA; Timothy Sparapani, Legislative Counsel,
American Civil Liberties Union (ACLU); and Jim Harper, Director
for Information Policy Studies, CATO Institute.
---------------------------------------------------------------------------
\8\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on Understanding the Realities of REAL ID:
A Review of Efforts to Secure Drivers' Licenses and Identification
Cards (S. Hrg. 110-291), March 26, 2007.
---------------------------------------------------------------------------
On April 29, 2008, the OGM Subcommittee held a second
hearing entitled The Impact of Implementation: A Review of the
REAL ID Act and the Western Hemisphere Travel Initiative. This
hearing examined the views of stakeholders on the final
regulations, and explored the challenges that remained in
implementation of REAL ID. The witnesses at that hearing were:
Stewart A. Baker, Assistant Secretary for Policy, DHS; Derwood
K. Staeben, Senior Advisor, Department of State; Donna Stone,
President, NCSL; David Quam, Director of Federal Relations,
NGA; Caroline Fredrickson, Director of the Washington
Legislative Office, ACLU; Roger J. Dow, Chief Executive
Officer, Travel Industry Association; Angelo I. Amador,
Director of Immigration Policy, U.S. Chamber of Commerce; and
Sophia Cope, Staff Attorney, Center for Democracy and
Technology (CDT).
On July 15, 2009, the Committee held a hearing entitled
Identification Security: Reevaluating the Real ID Act, which
focused on the PASS ID Act. Witnesses included: Janet
Napolitano, Secretary of Homeland Security; Jim Douglas,
Governor of Vermont; Stewart A. Baker, former Assistant
Secretary for Policy, DHS; Leroy D. Baca, Sheriff, Los Angeles
County; David Quam, Director of Federal Relations, NGA; and Ari
Schwartz, Vice President and Chief Operating Officer, Center
for Democracy and Technology.
At these hearings, many witnesses called for repealing REAL
ID and replacing it with more workable standards. Witnesses
opposing REAL ID cited cost, time constraints, lack of the
necessary federal electronic systems, refusal of multiple
States to comply, and privacy concerns as reasons to
contemplate a new proposal.
A number of states have passed resolutions denouncing the
REAL ID Act. Furthermore, to date, fifteen States have enacted
laws prohibiting compliance with REAL ID, and several others
have anti-REAL ID legislation pending.\9\ Unless these States
reverse the legislation, residents of these States will not
have compliant identification required for official federal
purposes. However, the legislatures in most States only meet
every two years, meaning that if a State legislature did want
to repeal existing anti-REAL ID laws there could be a
significant time delay before they are able. The most urgent
practical repercussion of this State rejection of REAL ID is
that as of December 31 of this year, millions of Americans will
not be able to use their State driver's license or
identification card to board an airplane, unless the Secretary
further exercises the waiver authority provided under the REAL
ID Act. At a minimum, this will cause the Transportation
Security Administration (TSA) to perform more extensive
screening procedures, potentially including secondary
screening, on the vast majority of passengers that travel
through certain airports, greatly inconveniencing passengers
and causing the air travel industry to lose revenue. The worst
case scenario is that TSA simply cannot handle the additional
screening burden and many of these individuals are unable to
board commercial flights all together.
---------------------------------------------------------------------------
\9\Those states with laws prohibiting compliance with REAL ID are
Alaska, Arizona, Georgia, Idaho, Louisiana, Maine, Minnesota, Missouri,
Montana, New Hampshire, Oklahoma, Oregon, South Carolina, Virginia, and
Washington.
---------------------------------------------------------------------------
To address the concerns with REAL ID and avoid significant
air travel disruptions at the end of this year, the PASS ID Act
(S. 1261) was introduced by Senators Daniel Akaka, George
Voinovich, Patrick Leahy, Jon Tester, Max Baucus, and Thomas
Carper on June 15, 2009 to address these concerns while still
ensuring a heightened level of security in drivers licenses and
state-issued identification cards. The following sections
discuss the major concerns with REAL ID identified in the
Committee's hearings and how PASS ID would address those
issues.
COST AND PRACTICALITY
States have repeatedly raised the REAL ID Act's high
implementation costs as one of their primary concerns with the
law. At OGM's 2007 hearing, David Quam, Director of Federal
Relations at NGA, testified that the $11 billion in
implementation costs, as estimated by NGA, NCSL and AAMVA,
would have a major adverse effect on State-offered public
services. According to Mr. Quam, many of the law's provisions
would impose significant costs on the States, which would have
to take on additional staff to compress their regular renewal
cycles for issuing licenses; rework the physical processes for
issuing licenses; ensure digital storage of all source
documentation; upgrade and interlink State databases; and
establish connections to Federal electronic databases.\10\ The
Honorable Leticia Van de Putte, Texas State Senator and
President of NCSL, echoed those concerns at the same hearing,
emphasizing the burden that the costs and implementation
timeline would create.\11\
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\10\See Senate Homeland Security and Governmental Affairs
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia Hearing on Understanding the
Realities of REAL ID: A Review of Efforts to Secure Drivers' Licenses
and Identification Cards (S. Hrg. 110-291), p. 26-27, March 26, 2007.
\11\Id. at p. 22-23.
---------------------------------------------------------------------------
After DHS issued its final regulations, DHS Assistant
Secretary for Policy Stewart Baker testified in April 2008 that
the final regulations reduced the cost to the States from the
$14.6 billion estimated for the NPRM's proposal to $3.9
billion. This 73 percent reduction from the NPRM was achieved,
according to DHS, by giving States more flexibility in security
requirements and timing.\12\ However, NGA disagreed with that
savings estimate. For example, according to NGA DHS assumed
that only 75 percent of all drivers would choose to receive a
REAL ID, while the States estimated that this figure could be
substantially higher, particularly if States decline to offer
their residents an alternative license that is not REAL ID
compliant.\13\
---------------------------------------------------------------------------
\12\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on The Impact of Implementation: A Review
of the REAL ID Act and the Western Hemisphere Travel Initiative (S.
Hrg. 110-555), p. 63, April 29, 2008.
\13\Id. at p. 36.
---------------------------------------------------------------------------
States view REAL ID as an unfunded mandate, and the
majority of governors and State legislators have maintained the
position that the federal government should bear the majority
of implementation costs. To date, the Department of Homeland
Security has awarded approximately $140 million to States to
implement the requirements of REAL ID, with another $50 million
appropriated for FY 2010.\14\ DHS has also allowed States to
reallocate up to 20 percent of their State Homeland Security
Program grants for REAL ID implementation since FY 2007;
however, States note that those funds are already committed to
other pressing homeland security projects and have generally
been unavailable for REAL ID.
---------------------------------------------------------------------------
\14\Id. at p. XX.
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NGA has estimated that PASS ID would cut in nearly half the
implementation costs to States by granting additional
flexibility, modifying requirements and eliminating fees for
federal databases, and allowing for date-forward renewals to
distribute compliant licenses and identification cards, meaning
that States would be given a date when they are required to
begin issuing compliant licenses as opposed to a date when all
residents must possess a compliant license.\15\
---------------------------------------------------------------------------
\15\Testimony of David Quam, Director, Office of Federal Relations,
National Governors Association before Senate Committee on Homeland
Security and Governmental Affairs, July 15, 2009.
---------------------------------------------------------------------------
RENEWAL CYCLE
One significant cost driver for States is the requirement
to issue compliant driver's licenses and identification cards
to all current card holders in person and within a condensed
timeframe. The original NPRM for the REAL ID Act would have
required that States reissue all driver's licenses and
identification cards no later than May 11, 2013. States
expressed concern over the disruption that they would face to
their regular renewal cycles under this timeframe. At the 2007
OGM hearing, Texas State Senator Van de Putte said that
implementing REAL ID under the NPRM would have required
approximately 741 additional full time positions and 18
additional facilities in the State of Texas alone.\16\
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\16\Testimony of Leticia Van de Putte, Texas State Senator before
Senate Committee on Homeland Security and Governmental Affairs, March
26, 2007.
---------------------------------------------------------------------------
Most States currently reissue driver's licenses every 5 to
10 years, though at least one State issues licenses that are
valid for 65 years.\17\ Additionally, all States rely on mail-
in and online application processes to facilitate a significant
percentage of renewals. REAL ID thus will not only require a
number of States to accelerate their existing schedules; it
also will require them to do so while issuing and reissuing
licenses in person. Both of these factors require additional
staff and, therefore, impose significant new costs.
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\17\Division of Motor Vehicles, State of Arizona, http://
www.dmv.com/az/arizona/drivers-license.
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To try to address those concerns, the final rule provided
for a phased enrollment period, whereby States would be
required to issue new licenses to all residents under the age
of 50 by December 1, 2014. States would have until December 1,
2017 to enroll individuals over the age of 50.
DHS justified these staggered deadlines by citing
statistical analysis finding that ``persons over the age of 50
were less likely to be involved in TSA-related law enforcement
incidents involving false or fraudulent identification.''\18\
However, the Governors argued that this change did not go far
enough. At the July 2009 HSGAC hearing, Vermont Governor Jim
Douglas argued for further flexibilities. Meeting this
deadline, he explained, would still require States to alter
existing timetables for driver's license re-issuance and
significantly increase costs to the States.\19\
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\18\73 Fed. Reg. 5275 (January 29, 2008).
\19\Testimony of the Honorable Jim Douglas, Director, Governor,
State of Vermont before Senate Committee on Homeland Security and
Governmental Affairs, July 15, 2009.
---------------------------------------------------------------------------
PASS ID would allow States to begin issuing compliant
licenses more in line with their current renewal cycle by
requiring compliance with PASS ID for all new or renewed
licenses issued one year or more after the effective date of
interim regulations promulgated pursuant to PASS ID. At the
same time, the bill accelerates the enrollment process by
requiring States to complete the process in five years, at
which point all license holders must possess a PASS ID
compliant license to use it for federal purposes. So, for
example, if S. 1261 becomes law during the 111th Congress, all
States would be fully compliant with PASS ID before 2017, the
current REAL ID completion date.
The Committee believes this compromise appropriately
balances the States' need for flexibility with the national
interest in achieving secure identification documents
expeditiously.
AVAILABILITY OF MANDATED TECHNOLOGIES
REAL ID requires States to verify the source documents, or
the essential information contained on the source documents,
with the issuing agency. For example, the validity of a Social
Security number would need to be verified with the Social
Security Administration. The most feasible way to obtain this
verification is through the use of electronic systems and
databases. Otherwise, verification would have to be done by
telephone or mail, which could substantially lengthen the
application and issuance process. In order to comply with REAL
ID, a State would need to access five separate electronic
systems.\20\
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\20\Public Law 109-13, Division B--The REAL ID Act of 2005.
---------------------------------------------------------------------------
Currently, only two of the five systems required by REAL ID
are fully developed and nationally deployed--the Systematic
Alien Verification for Entitlements (SAVE) system, administered
by U.S. Citizenship and Immigration Services at DHS, and the
Social Security On-Line Verification (SSOLV) system,
administered by the Social Security Administration.
The third system, the Electronic Verification of Vital
Events Records (EVVE) system, which would be used to verify
birth certificates, has yet to be fully populated and deployed
and will cost States millions of dollars to ensure all birth
records are electronically accessible and accurate. According
to testimony submitted for the Committee's July 2009 hearing
record from the National Association of Public Health
Statistics and Information Systems, which administers EVVE,
only three State DMVs are currently online with EVVE. The
system currently contains partial birth record information for
15 States, but the system requires additional work to input and
confirm records to improve reliability and accuracy.\21\ Once
State vital records offices are connected to EVVE, State DMVs
must make the necessary investments and system adjustments to
gain access to the database. Estimates suggest that it will
cost States at least $150 million to complete the necessary
work and allow the effective utilization of EVVE as part of the
driver's license and identification card application
process.\22\ There is no way to determine when EVVE will be
fully deployed to all 50 States and contain the necessary vital
records.
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\21\Baker Testimony, p. 5.
\22\Statement of the National Association for Public Health
Statistics and Information Systems for the Record Senate Committee on
Homeland Security and Governmental Affairs, July 15, 2009.
---------------------------------------------------------------------------
The other two required electronic systems are: a system
that connects to the State Department to verify passport
information, which does not currently exist; and a system
connecting each of the State DMVs to allow States to check for
duplicate licenses. In addition to privacy concerns raised over
these interlinking databases and the costs associated with
States enabling such information sharing, no electronic system
has been developed to connect the motor vehicle records of all
50 States. A pilot program, using funds provided by DHS to the
State of Mississippi, is currently underway to develop and test
the State-to-State connectivity, but it is unclear when it will
be completed and available to the States.
Governors and State legislators object to being required to
use electronic systems that are not currently available and
many over which they have no control. At the Committee's 2007
hearing, Ms. Van de Putte of NCSL testified, ``It is critical
that States not be required to electronically verify the
validity of identification documents with the issuing agency
until the necessary verification systems have been developed,
tested and made available nationwide.''
The PASS ID Act requires the presentation of the same
documentation to State DMVs as required under REAL ID. Where
there are existing functional databases, such as the federal
databases for verifying immigration status and social security
numbers, as discussed above, States will be required to use
them.
However, where there is no practical way to verify
documents, the verification requirement is substituted for a
validation requirement. This means that a person with
fraudulent document training must examine the document to
determine its authenticity, as the State Department does with
birth certificates when it issues passports.
As introduced, PASS ID would have required the validation,
rather than verification, of birth certificates, because the
EVVE system is not fully populated with data and is operational
only in three States' DMVs. At the 2009 HSGAC hearing, former
Homeland Security Assistant Secretary Stewart Baker raised
concerns over the exclusion of electronic verification
requirements for birth certificates in the PASS ID Act.\23\
Subsequently, the Committee addressed this concern as part of a
Lieberman-Collins-Voinovich substitute amendment, which
included provisions to phase in the use of the birth
certificate verification database. As amended, PASS ID would
require that birth certificate information be electronically
verified through the EVVE system no later than 6 years after
the date of enactment, provided that the Secretary of Homeland
Security has certified that the EVVE system is functioning and
has access to all States' electronic birth records. This
provision will remove REAL ID's impractical requirement of
using a system that has not yet been implemented nationwide and
will enhance security by ensuring that States eventually use
the system. Once the Secretary has certified that EVVE has been
sufficiently developed, States would be required to utilize the
system for any individual that has applied for a compliant
driver's license or identification card and has not previously
had his or her birth certificate verified. Additionally, to
address concerns with the costs of fully implementing EVVE, the
substitute amendment establishes a grant program for States to
digitize birth information, link that data to death records,
and electronically verify birth certificate information. The
bill also requires that any State accepting these grants
certify that all birth records in that State will be digitized
and accurate within three years of receiving the grant.
---------------------------------------------------------------------------
\23\Baker Testimony, p. 4.
---------------------------------------------------------------------------
The PASS ID Act would also codify the established pilot
program for State-to-State driver's license information sharing
with the goal of evaluating the feasibility of such an
electronic system, its costs, and the necessary governance
structure to ensure security and privacy. This would help
States develop and evaluate a mechanism for sharing electronic
information to verify the existence of a single compliant
driver's license or identification card in which States could
choose to participate. The Committee encourages States to
participate in this program and work collaboratively with DHS
to expand inter-State DMV information sharing capabilities.
CHARGES FOR USE OF EXISTING FEDERAL DATABASES
Under the REAL ID Act, States must use the Systematic Alien
Verification for Entitlements (SAVE) database from DHS to
verify immigration status and the Social Security Online
Verification (SSOLV) database from the Social Security
Administration to verify Social Security numbers. Currently,
States must pay transactional fees in order to use these
databases, which DHS estimates will cost States $56.8 million
over 11 years.\24\
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\24\E-mail from Legislative Affairs, DHS, to Majority Staff,
Committee on Homeland Security and Governmental Affairs (November 18,
2009).
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The Committee has determined that the use of these
databases is a necessary component of identification security.
However, the Federal government, rather than States, should
fund the use of these federal databases to comply with a
federal law. Therefore, the PASS ID Act specifies that States
shall not be charged transaction fees for the use of federal
electronic systems to implement this Act. Congress will need to
appropriate additional resources in the future in order to fund
the use of these databases by every State.
INFORMATION STORAGE AND PHYSICAL SECURITY REQUIREMENTS
Additional areas of high cost under REAL ID are the
requirements to electronically store copies of applicants'
identity documents and to ensure the physical security of DMV
facilities. The requirement to electronically store information
requires investments in both storage capacity and the
modification of information technology systems. The physical
security requirements have posed challenges for States, in part
due to the late release of more specific information and
guidance from DHS. Although REAL ID was enacted in 2005 and DHS
issued its final rule in January 2008, DHS did not release the
guidelines for physical security requirements until February
2009, giving States little time to assess the vulnerabilities
of their facilities and to determine the best means of
enhancing security where necessary. Some States have determined
that it would be cost-prohibitive to meet security requirements
at all facilities and are considering changing their operations
into a central issuance system that requires significant
process, facility, and staff adjustments.
To address these concerns, PASS ID modifies the requirement
for storage of documents used to prove identity. First, the
State need only keep them for the period for which the driver's
license or identification card is valid, rather than a period
of seven to ten years, as REAL ID requires. PASS ID would also
allow DMVs to store such information in either electronic or
paper format, as opposed REAL ID's requirement to keep them in
both formats. With respect to physical security requirements,
PASS ID would retain many of the requirements of REAL ID to
better secure facilities where driver's licenses and
identification cards are stored or issued but makes clear that
States can choose from a variety of safeguards to achieve this
goal.
PRIVACY AND CIVIL LIBERTIES
The CATO Institute, the American Civil Liberties Union, and
the Center for Democracy and Technology (CDT), as well as NGA
and NCSL, testified before the OGM subcommittee that the REAL
ID Act posed serious privacy and civil liberties concerns.
According to testimony from CDT at the July 15, 2009
hearing, the REAL ID Act failed to address privacy concerns
surrounding secure licensing. CDT contends that the Act and
DHS's final rule implementing it created new privacy and
security risks while exacerbating old ones.\25\ The REAL ID Act
failed to include statutory provisions to protect the privacy
of individuals' personally identifiable information. The
American Civil Liberties Union's testimony at the 2007 hearing
pointed to four main privacy issues: data on the face of the
cards, data stored in the machine-readable zone of the card,
data stored in interlinked State Department of Motor Vehicles
(DMV) databases, and the transmission of data.\26\
Additionally, privacy advocates feared that REAL ID would lead
to a de facto national ID card because of the network of
interlinked databases and the authority for the Secretary of
Homeland Security to declare new official purposes for which a
compliant card would be needed.
---------------------------------------------------------------------------
\25\Statement of Ari Schwartz, Vice President and Chief Operating
Officer, Center for Democracy and Technology before Senate Committee on
Homeland Security and Governmental Affairs, July 15, 2009 (hereafter
``Schwartz Testimony''), at p. 2.
\26\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on Understanding the Realities of REAL ID:
A Review of Efforts to Secure Driver's Licenses and Identification
Cards (S. Hrg. 110-291), p. 75, March 26, 2007.
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In addition, the REAL ID Act does not contain processes and
mechanisms to give individuals the ability to access, and amend
as necessary, information about them stored in Federal or State
databases.
The Department of Homeland Security maintained that because
it was not explicitly authorized to protect privacy in the REAL
ID Act, it did not have the legal authority to include such
protections in the regulations.
The PASS ID Act contains several important privacy
protections aimed at mitigating most of the concerns expressed
by privacy advocates. The PASS ID Act would require future
regulations to include procedures to protect the constitutional
rights and civil liberties of those who apply for licenses or
identification cards, protect individuals' ability to challenge
and correct errors in databases and data records, and would
prohibit a national, universal design or numbering scheme for
licenses. In addition, the definition of ``official purpose'',
which designates which federal purposes will require a
compliant license or identification card, would be limited to
the purposes defined in statute and so could not be expanded
without congressional action.
Information on the face of the card
The REAL ID Act requires people to list their principal
place of residence on their driver's licenses and
identification cards. This has been a source of substantial
concern for victims of domestic violence and others, who fear
that making their address so readily available could put them
in danger.\27\ The 2006 reauthorization of the Violence Against
Women Act\28\ required that there be exceptions to this REAL ID
Act mandate for the principal residence requirement for certain
individuals in these categories, and these exceptions were
incorporated into the REAL ID regulations.
---------------------------------------------------------------------------
\27\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on Understanding the Realities of REAL ID:
A Review of Efforts to Secure Drivers' Licenses and Identification
Cards (S. Hrg. 110-291), p. 81, March 26, 2007.
\28\Violence Against Women & Department of Justice Reauthorization
Act of 2005, Pub. L. No. 109-162, Sec. 827, 119 Stat. 2960, 3066
(2005).
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The PASS ID Act generally would maintain the requirement to
include the address of principle residence, but it explicitly
incorporates the Violence Against Women Act exemption, and
further provides that States can except the principle address
for an individual whom a State has determined merits the
exemption for his or her safety.
The REAL ID Act also requires that temporary driver's
licenses or identification cards be conspicuously marked,
indicating that they are temporary, and non-compliant licenses
are required to clearly state on their face that they may not
be accepted by a federal agency for identification or any other
official purpose. States argue that the requirement in the REAL
ID Act regulations to label compliant licenses and
identification cards as well as non-compliant cards creates a
duplicative and unnecessarily costly system that does not
contribute to security.
The PASS ID Act would remove the duplicative requirement
that a driver's license or identification card have a separate
marking indicating that a license is temporary, and instead
denotes temporary status with the expiration date. The bill
requires that States mark compliant documents, instead of non-
compliant documents. Removing duplicative information will make
the information on licenses more useful and easy to read.
The bill also requires a photograph of the license holder
on the face of the card. The Committee intends for this
photograph to be a clear view of the entire face. The Committee
recommends that DHS use the State Department passport
photograph regulations as guidance. The State Department
regulations are designed to conform to International Civil
Aviation Organization (ICAO) photo standards and allow for
certain religious exemptions. For example, religious headgear
is acceptable as long as the face is not obscured.
Machine-readable zone of the card
The REAL ID Act requires that driver's licenses and
identification cards include a common, machine-readable
component. The final implementing regulations for REAL ID
specify that compliant licenses should contain a two-
dimensional barcode standard, which is read with the use of an
optical scanner. There are currently no statutory prohibitions
on who may access the data and information contained within
machine-readable zones of driver's license and identification
cards, or how that information may be used. This creates a
vulnerability through which third-parties could scan and
utilize personal information without the consent of the card
holder, creating privacy and identity theft concerns.
PASS ID adds new protections to mitigate privacy and
identity theft risks associated with the inclusion of machine-
readable zones on driver's licenses and identification cards.
The PASS ID Act would prohibit the inclusion of a social
security number on the machine readable zone of a license. In
addition, the bill would restrict the use of machine-readable
information on a driver's license or identification card by
third-parties. To clarify the scope of this prohibition, the
substitute amendment adopted by the Committee clarifies that
scanning is permitted when an individual has given his or her
express consent,\29\ for law enforcement purposes, for consumer
fraud prevention, and for certain financial transactions, such
as credit checks. The amendment directs the Federal Trade
Commission to issue rules for implementing these restrictions,
which would apply to all driver's licenses and identification
cards.
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\29\``Express consent'' is defined in 18 U.S.C. 2725 to mean
``consent in writing, including consent conveyed electronically that
bears an electronic signature as defined in section 106(5) of Public
Law 106-229.'' The Committee notes that that definition would apply to
this provision of law as well.
---------------------------------------------------------------------------
The Committee recognizes that there are a number of
legitimate purposes for which the information contained in the
machine readable component of a driver's license or
identification card may be scanned and utilized. Such purposes
may include, but are not limited to, scanning and providing
information to banks for credit checks and credit card issuance
purposes; scanning and using information for law enforcement
purposes; scanning and using information to prevent consumer
fraud and identity theft; and scanning and sharing the
information among federal, State, or local agencies. The
Committee does not intend to prohibit any such legitimate uses,
and the Chairman stated his intent at the July 29 business
meeting to continue to work on this language and amend it on
the floor to be more permissive.
PASS ID also strengthens privacy protections more generally
by requiring procedures to prevent the unauthorized access to,
or sharing of, information; requiring public notice of privacy
policies; and establishing a redress process for individuals to
correct their records. New regulations would require procedures
to protect the constitutional rights and civil liberties of
those who apply for licenses or IDs, and provide individuals
with the ability to challenge and correct errors in databases
and data records.
Electronic data transmission
The REAL ID Act calls for DMVs to communicate with several
Federal databases, all other State databases, and would most
likely result in States consulting the EVVE database that the
National Association of Public Health Statistics and
Information Systems maintains. However, the REAL ID Act does
not require protection of the electronic communication among
these systems and networks, which could leave personally
identifiable information open to theft or fraud.
These required databases reside at different agencies, non-
governmental entities, and State and local governments. These
systems may already provide some protection for transmitting
data, but in cases where data were not previously shared, there
may be no protection or encryption.
The PASS ID Act would require that future regulations
include procedures to protect any personally identifiable
information electronically transmitted in support of complying
with the PASS ID Act. While groups such as the ACLU\30\ and the
Center for Democracy and Technology\31\ have specifically
called for encryption as the solution, the PASS ID Act stays
technology-neutral in its statutory language. This will allow
an open rulemaking process to produce the best processes to
ensure the protection of personally identifiable information.
---------------------------------------------------------------------------
\30\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on Understanding the Realities of REAL ID:
A Review of Efforts to Secure Drivers' Licenses and Identification
Cards (S. Hrg. 110-291), p. 84, March 26, 2007.
\31\Schwartz Testimony, p. 4.
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Access to air travel and other official purposes
To date, fifteen States have enacted laws prohibiting
compliance with REAL ID, and several others have anti-REAL ID
legislation pending. Unless these States repeal their laws,
their residents will face restrictions on their movements and
actions because they won't have the necessary identification to
present when seeking, for example, to board a plane or enter a
federal building. These restrictions will be exacerbated by the
fact that many businesses share facilities with federal
agencies; and according to testimony from the Chamber of
Commerce at the 2008 hearing, the guidance for identification
at such facilities was complicated and confusing.\32\
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\32\Senate Homeland Security and Governmental Affairs Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia Hearing on The Impact of Implementation: A Review
of the REAL ID Act and the Western Hemisphere Travel Initiative (S.
Hrg. 110-555), p. 53, April 29, 2008.
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To address concerns with the breadth of REAL ID's official
purpose section, while meeting the homeland security
objectives, PASS ID would require compliant identification for
air travel, access to nuclear facilities, and Federal
facilities that contain mission functions critical to homeland
security, national security, or defense, such as the Pentagon,
fusion centers, or classified laboratories.
In addition, the PASS ID Act includes language to clarify
the Secretary of Homeland Security's unreviewable discretion to
determine who may or may not board a commercial aircraft. This
does not change the Secretary's current authorities under the
REAL ID Act, but rather was included to allay concerns
expressed that the REAL ID Act was unclear on this point. Since
its inception, the Transportation Security Administration
(TSA), an agency under the Secretary's purview, has always had
the statutory authority to set screening procedures for cargo
and people boarding commercial aircraft. While the REAL ID Act
set standards for what type of State issued identification
documents TSA can rely upon in its screening process, it did
not rescind TSA's authority to rely on other types of
identification documents or use other methods to ascertain
identity. During the July 15, 2009, hearing on the PASS ID Act,
Secretary Napolitano testified that inclusion of language
clarifying TSA's authority in this regard would not change
TSA's current operating procedure.\33\
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\33\Senate Homeland Security and Governmental Affairs Committee
Hearing on Identification Security: Reevaluating the REAL ID Act, July
15, 2009.
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PASS ID, as introduced, provided that ``no person shall be
denied boarding a commercial aircraft solely on the basis of
failure to present a driver's license or identification card
issued pursuant to this subtitle.'' At the July 2009 hearing,
former DHS Assistant Secretary Stewart Baker testified that the
wording of this provision may lead to litigation by those
denied boarding an aircraft because they did not have a
compliant license, since the language was ambiguous on what is
meant by ``solely.''\34\ To address this concern, Senator
Voinovich offered an amendment clarifying the intent to codify
the TSA's existing authority. That amendment, adopted by the
Committee, provides: ``Any person not presenting a driver's
license or identification card issued pursuant to this subtitle
may be permitted to board a commercial aircraft or denied
permission to board such aircraft at the unreviewable
discretion of the Secretary or his or her designated security
official.''
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\34\Baker Testimony, p. 5-6.
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III. Legislative History
On June 15, 2009, S. 1261 was introduced by Senator Akaka
and was referred to the Committee on Homeland Security and
Governmental Affairs. Senators Alexander, Baucus, Burris,
Carper, Leahy, Lieberman, Voinovich, and Tester are cosponsors
of the legislation.
On July 15, 2009, the Committee held a hearing on S. 1261.
Witnesses included: Janet Napolitano, Secretary of Homeland
Security; Jim Douglas, Governor of Vermont; Stewart A. Baker,
former Assistant Secretary for Policy, DHS; Leroy D. Baca,
Sheriff, Los Angeles County; David Quam, Director of Federal
Relations, NGA; and Ari Schwartz, Vice President and Chief
Operating Officer, Center for Democracy and Technology.
On July 29, 2009, the Committee ordered S. 1261, as amended
by the Lieberman-Collins-Voinovich substitute amendment, the
Tester amendment, and the Voinovich amendment, reported
favorably by voice vote. Present for the vote were Chairman
Lieberman; Senators Akaka, Carper, Pryor, McCaskill, Tester,
and Burris; Ranking Minority Member Collins; Senator Voinovich.
The Lieberman-Collins-Voinovich substitute amendment makes
a number of policy changes as well as technical changes to the
bill as introduced.
First, the amendment requires that birth records be
verified with the issuing agency no later than 6 years after
the issuance of final regulations, provided that the Secretary
of Homeland Security has certified that an electronic system
enabling such verification is functioning and has access to all
States' electronic birth records. It also establishes a grant
program to help States digitize birth and death records and
authorizes $150 million for the grants.
Second, it struck section 242(a)(1)(B), which stated that
an individual may not be denied the right to board an airplane
solely on the basis of not presenting a PASS ID compliant
license.
Third, the amendment modifies Section 4 of S. 1261 to
direct the Federal Trade Commission to issue rules for the
exceptions to the prohibition on certain uses of the data on
the machine-readable component of a driver's license or
identification card.
Fourth, the amendment authorizes DHS to issue an interim
final rule implementing PASS ID, instead of repeating the
Notice of Proposed Rulemaking (NPRM) process that was already
executed for the REAL ID Act.
As discussed in the previous section, the Voinovich
amendment clarifies the Secretary's unreviewable discretion to
deny or grant an individual boarding on a commercial aircraft.
The Tester amendment adds a provision requiring reporting
on the privacy impacts of the PASS ID Act.
IV. Section-by-Section Analysis
Section 1. Short title
This section establishes the title of the act as the
``Providing for Additional Security in States' Identification
Act of 2009'' or the ``PASS ID Act.''
Section 2. Repeal
This section repeals Title II of the REAL ID Act of 2005
(Division B of Public Law 109-13).
Section 3. Identification security
This section amends Title II of the Homeland Security Act
of 2002 (6 U.S.C. 121 et seq.) by adding a new subtitle E,
which improves security for driver's licenses and personal
identification cards.
Section 241 of the new subtitle E would define the terms
``driver's license,'' ``identification card,'' ``materially
compliant,'' ``official purpose,'' ``Secretary,'' and
``State.''
Subsection 242(a) of the new subtitle E sets the minimum
standards for an identification document that is to be used for
certain official purposes, including boarding commercial
aircraft and entering certain secure federal facilities.
Beginning one year after the interim final rule is issued, a
federal agency could not accept, as a means of identification
for an official purpose, any driver's license or State-issued
identification card unless the State is materially compliant by
certifying to the Secretary that the State has commenced
issuing driver's licenses and identification cards that comply
with the requirements of the PASS ID Act. Beginning six years
after enactment, a federal agency could not accept, as a means
of identification for an official purpose, any driver's license
or State-issued identification card that is not compliant.
Additionally, this section provides that the Secretary of
Homeland Security shall prescribe a process to certify whether
States are meeting the standards for identification security.
This section would clarify that any identification document
meeting the requirements of subtitle E could be certified as
compliant with the subtitle.
Subsection 242(b) of the new subtitle E sets the minimum
requirements for the contents of a compliant driver's license
or identification card, including: (1) the person's legal name;
(2) the person's date of birth; (3) the person's gender; (4) a
driver's license or identification card number; (5) a digital
photograph of the person; (6) a person's address, except as
excepted by the Violence Against Women Act or for those whom a
State determines should be excepted for safety reasons; (7) the
person's signature; (8) security features to protect the
physical integrity of the document; (9) a common machine-
readable technology; and (10) a unique symbol designating that
the document is compliant with the requirements of this
subtitle.
Subsection 242(c) of the new subtitle E sets the minimum
standards for a State to issue a compliant driver's license or
identification card. In order to obtain a compliant document,
an individual must present a photo identity document, except
that a non-photo document is acceptable if it includes both the
person's full name and date of birth; proof of date of birth;
proof of the person's social security number; documentation
showing a person's address of principle residence; and evidence
that a person is a citizen of, or has lawful status in, the
United States. This section requires that licenses may only be
issued temporarily to individuals who are not citizens, lawful
permanent residents, or certain asylees or refugees. Temporary
driver's licenses and identification documents would be
required to clearly show an expiration date and would be valid
only for an individual's authorized period of admission to the
United States or for one year, if no such date exists. States
would be required to use the automated system known as
Systematic Alien Verification for Entitlements to verify the
lawful presence of any person other than a United States
citizen or national applying for compliant identification.
Subsection 242(d) of the new subtitle E requires States to
adopt several practices in issuing licenses, including: (1)
physical or electronic retention of source documents; (2) a
facial image capture to create a digital photograph; (3) an
effective procedure to confirm or verify renewal information;
(4) confirmation of social security account numbers; (5)
electronic verification of birth records after certification
that such electronic systems exist after six years; (6)
confirmation that an applicant does not possess or has
surrendered any other identification compliant with this
subtitle; (7) physical security of document manufacturing; (8)
protecting the personally identifiable information of driver's
license and identification card holders and access to amend
State information as determined appropriate by the State; (9)
appropriate background checks of individuals involved in
issuance of driver's licenses and State-issued identification
cards; (10) fraudulent document recognition training for
issuing staff; and (11) limiting the validity of any compliant
driver's license or identification card to eight years.
Subsection 242(e) of the new subtitle E requires that the
Secretary assess, at least annually, whether an electronic
system to allow reliable real-time verification of birth
records exists, is adequately deployed, and includes necessary
security and privacy measures.
Subsection 242(f) of the new subtitle E requires that
States adopt an exceptions process for documentation presented
pursuant to section (c) that applicants may not have due to
reasons beyond their control, including loss through natural
disasters. Alternative documents may not be used to demonstrate
lawful presence unless such documents establish that the
applicant is a citizen or national of the United States.
Subsection 242(g) of the new subtitle E provides that
States may not be required to pay fees for the use of a federal
system or database in connection with fulfilling the
requirements to issue a compliant driver's license or
identification card.
Subsection 242(h) of the new subtitle E clarifies that
States are not prohibited from issuing driver's licenses,
identification cards, or other documents that are not in
compliance with the requirements of this subtitle, although
federal agencies may not accept non-compliant documents for an
official purpose.
Section 243 of the new subtitle E requires that the
Secretary of Homeland Security keep a record in the appropriate
aviation security screening database of any individual
convicted of using a false driver's license or State-issued
identification card at an airport.
Subsection 244(a) of the new subtitle E establishes a grant
program to assist States in conforming to the minimum standards
of this subtitle. At least two-thirds of yearly grants made
available through appropriated funds would be distributed
proportionally to the States based on the number of driver's
licenses or identification cards issued in the prior year. The
remaining third would be allocated by the Secretary of Homeland
Security at his or her discretion. Each State would be
guaranteed at least 0.35 percent of the total allocation,
except certain U.S. territories would be guaranteed at least
0.08 percent of the total allocation.
Subsection 244(b) of the new subtitle E establishes a grant
program to assist States in digitizing birth records, linking
birth records with death records, and electronically verifying
birth records. Such grants would be distributed through the
Federal Emergency Management Agency in coordination with the
Secretary of Health and Human Services.
Section 245 of the new subtitle E codifies a demonstration
project, which is currently underway with the support of the
Department of Homeland Security, to evaluate the feasibility of
a State or States establishing a system to assist in
determining whether an applicant already possesses a driver's
license or identification card issued pursuant to the
requirements of subsection 242(d). This section requires that
the demonstration project include: a review of the costs of
such a system; the security and privacy measures necessary to
protect the integrity and physical security of licenses; and a
governance structure for managing such a system, which would
also protect the security and confidentiality of personally
identifiable information contained in the system. This section
does not authorize the creation by the federal government of a
national database of driver's license information or require
States to provide all other States with direct access to their
motor vehicle databases.
Section 246 of the new subtitle E gives the Secretary of
Homeland Security, in consultation with the Secretary of
Transportation and the States, the authority to issue
regulations, set standards, and issue grants under this
subtitle. This section also permits the Secretary of Homeland
Security to grant a State an extension of time to comply with
the requirements if the State provides adequate justification.
Section 247 of the new subtitle E would clarify that
nothing in this subtitle be construed to affect the authority
of States or the Secretary of Transportation under chapter 303
of title 49, United States Code. That chapter directs the
Secretary of Transportation to establish a National Drivers'
Registry to track individuals ineligible for a driver's
license. In addition, this section would make clear that no
State laws that are both consistent with this subtitle or rules
issued to implement this subtitle and more protective of
personal privacy than required by this subtitle or by
regulations issued to implement this subtitle, would be
preempted by this subtitle.
Section 4. Identification security
This section amends Chapter 123 of title 18, United States
Code by adding subsection 2272(c), which includes new
prohibitions on the use of machine readable information stored
on driver's licenses or State-issued identification cards.
The new subsection 2272(c) would allow the scanning or
reading of information contained in the machine-readable zone
of a driver's license or State-issued identification card. Such
information would be prohibited from being resold, shared, or
traded with third parties, used to track the use of a driver's
license or identification card, or stored by creating a record.
Within two years, the Federal Trade Commission must issue
regulations to define exceptions to those prohibitions through
a collection of acceptable uses. At a minimum, such exceptions
would include using the information for credit checks, for law
enforcement purposes, for prevention of consumer fraud, in
support of privacy laws, or for a use for which the driver's
license or identification card holder has given their express
written consent.
Section 5. Rulemaking
This section requires DHS to promulgate interim final rules
to implement the PASS ID Act within nine months of the law's
enactment.
The interim final regulations, as well as the final
regulations, must include procedures and requirements to
protect the privacy rights, constitutional rights, and civil
liberties of individuals who apply for and hold compliant
driver's licenses or identification cards. The regulations
would also require procedures to protect any electronically
transmitted personally identifiable information, both inside
the federal government and among the States. In addition, a
process must be established to allow individuals to access,
amend, and correct their own personally identifiable
information contained in federal databases used to comply with
this Act. Some federal systems already have such procedures in
place in accordance with the Privacy Act and will not be
required to create new procedures. The regulations may not
require that States use a common numbering or design standard
for driver's licenses and identification cards. The regulations
will apply only to driver's licenses and identification cards
that are issued in compliance with the PASS ID Act and not to
non-compliant documents or other identification documents
issued by States.
Section 6. Savings provision
This section includes a savings of certain administrative
actions, such as personnel actions, agreements, grants, and
contracts, carried out under the REAL ID Act. It also clarifies
that laws that were amended or repealed by title II of the REAL
ID Act of 2005 would be left unchanged by S. 1261.
Section 7. Annual privacy report
This section requires the DHS Chief Privacy Officer and the
Civil Rights and Civil Liberties Officer to issue an annual
report analyzing privacy implications of implementation of this
Act to the Senate Homeland Security and Governmental Affairs
Committee and the House Homeland Security Committee.
V. Evaluation of Regulatory Impact
Pursuant to the requirement of paragraph 11(b)(1) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill.
VI. Congressional Budget Office Cost Estimate
October 15, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1261, the Providing
for Additional Security in States' Identification Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1261--Providing for Additional Security in States' Identification
Act of 2009
Summary: S. 1261 would repeal title II of the REAL ID Act
of 2005 (Division B of Public Law 109-13) and place new
requirements on states to improve the security of driver's
licenses and identification cards. The legislation would
authorize the appropriation of whatever sums are necessary for
fiscal years 2010 through 2015 for the Department of Homeland
Security (DHS) to make grants to states to help them comply
with the bill's requirements. The bill also would authorize the
appropriation of $150 million over the 2011-2013 period for DHS
to make grants to states to ensure the accuracy of birth
records. In addition, S. 1261 would direct DHS to establish a
demonstration project relating to the security and integrity of
driver's licenses.
S. 1261 also would waive the fees that states currently pay
to access certain DHS and Social Security Administration (SSA)
databases to check the eligibility of applicants for driver's
licenses and identification cards. The bill would establish new
federal crimes relating to the misuse of data on driver's
licenses and identification cards.
CBO estimates that implementing S. 1261 would increase
discretionary costs by $123 million over the 2010-2014 period,
assuming appropriation of the necessary amounts. We estimate
that enacting the bill would increase direct spending by $4
million over both the 2010-2014 and 2010-2019 periods. Enacting
S. 1261 would have no significant effect on revenues.
S. 1261 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require states to have security and privacy policies for
personally identifiable information that they collect. Many
states currently have similar policies. CBO estimates that the
cost of creating or updating such policies to comply with the
new requirements would be small and well below the threshold
established in UMRA for intergovernmental mandates ($69 million
in 2009, adjusted annually for inflation).
S. 1261 would impose a private-sector mandate as defined in
UMRA by prohibiting persons from scanning and storing certain
information contained on a driver's license or identification
card. CBO estimates that the cost of complying with the mandate
would fall below the annual threshold for private-sector
mandates ($139 million in 2009, adjusted annually for
inflation).
Estimated Cost to the Federal Government: The estimated
budgetary impact of S. 1261 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
-------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
DHS Grants to States for Birth Records
Authorization Level................................. 0 150 0 0 0 150
Estimated Outlays................................... 0 6 23 39 30 98
DHS Demonstration Project
Estimated Authorization Level....................... 25 0 0 0 0 25
Estimated Outlays................................... 15 5 5 0 0 25
Total Changes
Estimated Authorization Level................... 25 150 0 0 0 175
Estimated Outlays............................... 15 11 28 39 30 123
CHANGES IN DIRECT SPENDING
Waiver of DHS Fees:
Estimated Authorization Level....................... 2 2 0 0 0 4
Estimated Outlays................................... 2 2 0 0 0 4
----------------------------------------------------------------------------------------------------------------
Note: DHS = Department of Homeland Security.
Basis of Estimate: For this estimate, CBO assumes that S.
1261 will be enacted near the beginning of fiscal year 2010. We
estimate that implementing the bill would increase
discretionary spending by $123 million over the 2010-2014
period, assuming appropriation of the necessary amounts. We
estimate that enacting the bill would increase direct spending
by $4 million over both the 2010-2014 and 2010-2019 periods.
Enacting S. 1261 would have no significant effect on revenues.
Spending subject to appropriation
DHS Grants for Birth Records. S. 1261 would authorize the
appropriation of $150 million over the 2011-2013 period for DHS
to make grants to states to ensure the accuracy of birth
records. CBO assumes that $150 million will be appropriated by
the beginning of fiscal year 2011 and that outlays will follow
the historical spending patterns for similar activities.
DHS Demonstration Project. The bill would authorize the
appropriation of whatever sums are necessary for fiscal years
2010 through 2012 for a demonstration project to evaluate an
electronic system for verifying that applicants for driver's
licenses or identification cards do not already possess such
documents. The Congress appropriated $50 million in fiscal year
2009 for DHS to begin this project. Based on information from
DHS, CBO estimates that the department would need $25 million
in 2010 to complete the demonstration project and that these
funds would be spent by the end of fiscal year 2012.
Grants to Assist States in Complying with Bill's
Requirements. Title II of the Real ID Act of 2005 (Division B
of Public Law 109-13, the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Tsunami Relief,
2005) placed requirements on states to improve the security of
driver's licenses and identification cards by May of 2008.
Since enactment, nearly half the states have passed laws or
resolutions opposing the act, and DHS has delayed the deadline.
(Currently, states must achieve partial compliance with the
provisions of the REAL ID Act by December 31, 2009, and full
compliance by May of 2011.) CBO has no basis for estimating the
number of states that will comply with the REAL ID Act, so we
cannot compare the compliance costs of S. 1261 with those under
current law.
The REAL ID Act authorized the appropriation of whatever
sums are necessary for fiscal years 2005 through 2009 for DHS
to make grants to states to assist them in complying with the
act's provisions. Over the 2006-2009 period, the Congress
appropriated about $140 million for this purpose. However, the
Administration's estimate of the total costs to states to
comply with the act exceeded $1 billion. As noted above, it is
possible that many states will not comply with the act's
provisions, so federal costs to help states implement the REAL
ID Act are uncertain.
S. 1261 would authorize the appropriation of whatever sums
are necessary over the 2010-2015 period for DHS to make grants
to states to help them comply with the bill's provisions. The
legislation would repeal title II of the REAL ID Act of 2005,
but the bill contains new provisions that would require states
to improve the security of driver's licenses and identification
cards. Compared to current law, S. 1261 would provide more
flexibility to states in adopting methods to verify
identification documents provided by driver's license
applicants.
If all states choose to comply with the provisions of the
REAL ID Act, CBO expects that the compliance costs of S. 1261
would be less expensive than those under current law because of
the greater flexibility provided by the bill. Because we do not
know how many states will eventually comply with the REAL ID
Act, however, we have no basis for estimating the costs or
savings of S. 1261 relative to current law.
SSA. Under current law, states reimburse the Social
Security Administration (SSA) for state motor-vehicle agencies'
use of the Social Security Online Verification (SSOLV) system.
In recent years, states have conducted roughly 20 million SSOLV
queries annually. At an average cost of around 1 cent per
transaction, states have paid SSA approximately $200,000 to
$250,000 per year. S. 1261 would waive those fees, and CBO
estimates that SSA's fee collections would decrease, thus
increasing net spending subject to appropriation by less than
$500,000 annually over the 2010-2014 period.
Direct spending and revenues
S. 1261 would waive the fees that states currently pay to
access certain DHS databases to check the eligibility of
applicants for driver's licenses and identification cards. CBO
estimates that this provision would decrease fee collections--
and thus increase direct spending--by about $2 million annually
over the 2010-2011 period.
DHS Fees. About half of the states use DHS's Systematic
Alien Verification for Entitlements (SAVE) program for checking
the immigration status of applicants for driver's licenses and
identification cards. The department collected about $1 million
in fees in 2009 from those states. In 2010 and subsequent
years, however, we expect greater collections as more
jurisdictions use the SAVE program. Based on information from
the department, CBO estimates that enacting S. 1261 would
decrease fee collections by roughly $2 million annually over
the 2010-2011 period.
DHS periodically reviews its fees for providing certain
services and sets fees sufficient to ensure the recovery of the
full costs of providing all such services, including the costs
of services provided without charge to certain applicants. DHS
is now completing a fee review; CBO assumes that this fee
adjustment would be unaffected by S. 1261 and that DHS would
raise fees as necessary sometime in 2011 to offset the
additional costs resulting from enactment of S. 1261. In that
case, the bill would have no significant net effect on DHS
spending after fiscal year 2011.
Other Provisions. In addition, S. 1261 could increase
collections of criminal fines for violations of the bill's
provisions relating to the misuse of data on driver's licenses
and identification cards. Criminal fines are recorded as
revenues, deposited in the Crime Victims Fund, and subsequently
spent without further appropriation. CBO estimates that any
increases in revenues and direct spending would not be
significant in any year.
Estimated impact on state, local, and tribal governments:
S. 1261 contains intergovernmental mandates as defined in UMRA.
The bill would require states to issue public notices about
their security and privacy policies that include information
about how personally identifiable information is used, stored,
accessed, and shared. The bill also would require states to
have a process that would allow individuals to access, amend,
and correct their information. Information from groups
representing state governments indicates that most states
currently have such policies and procedures, though some may
need to be revised. Therefore, CBO estimates that the cost to
states of those requirements would be well below the threshold
established in UMRA for intergovernmental mandates ($69 million
in 2009, adjusted annually for inflation).
Other provisions of the bill would benefit state, local,
and tribal governments. The bill would repeal the requirements
of the REAL ID Act and replace them with more flexible
requirements for issuing compliant driver's licenses and
identification cards. The bill also would authorize
appropriations that could be used to pay for those
requirements, and it would prohibit the federal government from
charging fees to states to access the SAVE and SSOLV data
systems.
Estimated impact on the private sector: S. 1261 would
impose a private-sector mandate as defined in UMRA by
prohibiting persons from scanning the information contained in
the machine-readable component of a driver's license or
identification card and storing, reselling, sharing, or trading
that information. The bill also would prohibit tracking the use
of a driver's license or identification card. According to the
FTC and industry sources, few private entities currently scan
driver's licenses, and for those that do, the costs of changing
that practice would be minimal. Therefore, CBO expects that the
cost of complying with the mandate would fall below the annual
threshold established in UMRA for private-sector mandates ($139
million in 2009, adjusted annually for inflation).
Estimate prepared by: Federal costs: Mark Grabowicz (DHS)
and David Rafferty (SSA); Impact on State, local, and Tribal
Governments: Melissa Merrell; Impact on the private sector:
Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows:
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR DEFENSE, THE GLOBAL WAR
ON TERROR, AND TSUNAMI RELIEF, 2005
(Public Law 109-13)
* * * * * * *
DIVISION B--REAL ID ACT OF 2005
* * * * * * *
[TITLE II--IMPROVED SECURITY FOR DRIVER'S LICENSES AND PERSONAL
IDENTIFICATION CARDS
SEC. 201. DEFINITIONS.
In this title, the following definitions apply:
(1) Driver's license.--The term ``driver's license''
means a motor vehicle operator's license, as defined in
section 30301 of title 49, United States Code.
(2) Identification card.--The term ``identification
card'' means a personal identification card, as defined
in section 1028(d) of title 18, United States Code,
issued by a State.
(3) Official purpose.--The term ``official purpose''
includes but is not limited to accessing Federal
facilities, boarding federally regulated commercial
aircraft, entering nuclear power plants, and any other
purposes that the Secretary shall determine.
(4) Secretary.--The term ``Secretary'' means the
Secretary of Homeland Security.
(5) State.--The term ``State'' means a State of the
United States, the District of Columbia, Puerto Rico,
the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific
Islands, and any other territory or possession of the
United States.
SEC. 202. MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS FOR
FEDERAL RECOGNITION.
(a) Minimum Standards for Federal Use.--
(1) In general.--Beginning 3 years after the date of
the enactment of this division, a Federal agency may
not accept, for any official purpose, a driver's
license or identification card issued by a State to any
person unless the State is meeting the requirements of
this section.
(2) State certifications.--The Secretary shall
determine whether a State is meeting the requirements
of this section based on certifications made by the
State to the Secretary. Such certifications shall be
made at such times and in such manner as the Secretary,
in consultation with the Secretary of Transportation,
may prescribe by regulation.
(b) Minimum Document Requirements.--To meet the
requirements of this section, a State shall include, at a
minimum, the following information and features on each
driver's license and identification card issued to a person by
the State:
(1) The person's full legal name.
(2) The person's date of birth.
(3) The person's gender.
(4) The person's driver's license or identification
card number.
(5) A digital photograph of the person.
(6) The person's address of principle residence.
(7) The person's signature.
(8) Physical security features designed to prevent
tampering, counterfeiting, or duplication of the
document for fraudulent purposes.
(9) A common machine-readable technology, with
defined minimum data elements.
(c) Minimum Issuance Standards.--
(1) In general.--To meet the requirements of this
section, a State shall require, at a minimum,
presentation and verification of the following
information before issuing a driver's license or
identification card to a person:
(A) A photo identity document, except that a
non-photo identity document is acceptable if it
includes both the person's full legal name and
date of birth.
(B) Documentation showing the person's date
of birth.
(C) Proof of the person's social security
account number or verification that the person
is not eligible for a social security account
number.
(D) Documentation showing the person's name
and address of principle residence.
(2) Special requirements.--
(A) In general.--To meet the requirements of
this section, a State shall comply with the
minimum standards of this paragraph.
(B) Evidence of lawful status.--A State shall
require, before issuing a driver's license or
identification card to a person, valid
documentary evidence that the person--
(i) is a citizen or national of the
United States;
(ii) is an alien lawfully admitted
for permanent or temporary residence in
the United States;
(iii) has conditional permanent
resident status in the United States;
(iv) has an approved application for
asylum in the United States or has
entered into the United States in
refugee status;
(v) has a valid, unexpired
nonimmigrant visa or nonimmigrant visa
status for entry into the United
States;
(vi) has a pending application for
asylum in the United States;
(vii) has a pending or approved
application for temporary protected
status in the United States;
(viii) has approved deferred action
status; or
(ix) has a pending application for
adjustment of status to that of an
alien lawfully admitted for permanent
residence in the United States or
conditional permanent resident status
in the United States.
(C) Temporary driver's licenses and
identification cards.--
(i) In general.--If a person presents
evidence under any of clauses (v)
through (ix) of subparagraph (B), the
State may only issue a temporary
driver's license or temporary
identification card to the person.
(ii) Expiration date.--A temporary
driver's license or temporary
identification card issued pursuant to
this subparagraph shall be valid only
during the period of time of the
applicant's authorized stay in the
United States or, if there is no
definite end to the period of
authorized stay, a period of one year.
(iii) Display of expiration date.--A
temporary driver's license or temporary
identification card issued pursuant to
this subparagraph shall clearly
indicate that it is temporary and shall
state the date on which it expires.
(iv) Renewal.--A temporary driver's
license or temporary identification
card issued pursuant to this
subparagraph may be renewed only upon
presentation of valid documentary
evidence that the status by which the
applicant qualified for the temporary
driver's license or temporary
identification card has been extended
by the Secretary of Homeland Security.
(3) Verification of documents.--To meet the
requirements of this section, a State shall implement
the following procedures:
(A) Before issuing a driver's license or
identification card to a person, the State
shall verify, with the issuing agency, the
issuance, validity, and completeness of each
document required to be presented by the person
under paragraph (1) or (2).
(B) The State shall not accept any foreign
document, other than an official passport, to
satisfy a requirement of paragraph (1) or (2).
(C) Not later than September 11, 2005, the
State shall enter into a memorandum of
understanding with the Secretary of Homeland
Security to routinely utilize the automated
system known as Systematic Alien Verification
for Entitlements, as provided for by section
404 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (110 Stat.
3009-664), to verify the legal presence status
of a person, other than a United States
citizen, applying for a driver's license or
identification card.
(d) Other Requirements.--To meet the requirements of this
section, a State shall adopt the following practices in the
issuance of driver's licenses and identification cards:
(1) Employ technology to capture digital images of
identity source documents so that the images can be
retained in electronic storage in a transferable
format.
(2) Retain paper copies of source documents for a
minimum of 7 years or images of source documents
presented for a minimum of 10 years.
(3) Subject each person applying for a driver's
license or identification card to mandatory facial
image capture.
(4) Establish an effective procedure to confirm or
verify a renewing applicant's information.
(5) Confirm with the Social Security Administration a
social security account number presented by a person
using the full social security account number. In the
event that a social security account number is already
registered to or associated with another person to
which any State has issued a driver's license or
identification card, the State shall resolve the
discrepancy and take appropriate action.
(6) Refuse to issue a driver's license or
identification card to a person holding a driver's
license issued by another State without confirmation
that the person is terminating or has terminated the
driver's license.
(7) Ensure the physical security of locations where
driver's licenses and identification cards are produced
and the security of document materials and papers from
which driver's licenses and identification cards are
produced.
(8) Subject all persons authorized to manufacture or
produce driver's licenses and identification cards to
appropriate security clearance requirements.
(9) Establish fraudulent document recognition
training programs for appropriate employees engaged in
the issuance of driver's licenses and identification
cards.
(10) Limit the period of validity of all driver's
licenses and identification cards that are not
temporary to a period that does not exceed 8 years.
(11) In any case in which the State issues a driver's
license or identification card that does not satisfy
the requirements of this section, ensure that such
license or identification card--
(A) clearly states on its face that it may
not be accepted by any Federal agency for
federal identification or any other official
purpose; and
(B) uses a unique design or color indicator
to alert Federal agency and other law
enforcement personnel that it may not be
accepted for any such purpose.
(12) Provide electronic access to all other States to
information contained in the motor vehicle database of
the State.
(13) Maintain a State motor vehicle database that
contains, at a minimum--
(A) all data fields printed on driver's
licenses and identification cards issued by the
State; and
(B) motor vehicle driver's histories,
including motor vehicle violations,
suspensions, and points on licenses.
SEC. 203. TRAFFICKING IN AUTHENTICATION FEATURES FOR USE IN FALSE
IDENTIFICATION DOCUMENTS.
(a) Criminal Penalty.--Section 1028(a)(8) of title 18,
United States Code, is amended by striking ``false
authentication features'' and inserting ``false or actual
authentication features''.
(b) Use of False Driver's License at Airports.--
(1) In general.--The Secretary shall enter, into the
appropriate aviation security screening database,
appropriate information regarding any person convicted
of using a false driver's license at an airport (as
such term is defined in section 40102 of title 49,
United States Code).
(2) False Defined.--In this subsection, the term
``false'' has the same meaning such term has under
section 1028(d) of title 18, United States Code.
SEC. 204. GRANTS TO STATES.
(a) In General.--The Secretary may make grants to a State
to assist the State in conforming to the minimum standards set
forth in this title.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary for each of the fiscal
years 2005 through 2009 such sums as may be necessary to carry
out this title.
SEC. 205. AUTHORITY.
(a) Participation of Secretary of Transportation and
States.--All authority to issue regulations, set standards, and
issue grants under this title shall be carried out by the
Secretary, in consultation with the Secretary of Transportation
and the States.
(b) Extensions of Deadlines.--The Secretary may grant to a
State an extension of time to meet the requirements of section
202(a)(1) if the State provides adequate justification for
noncompliance.
SEC. 206. REPEAL.
Section 7212 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458) is repealed.
SEC. 207. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this title shall be construed to affect the
authorities or responsibilities of the Secretary of
Transportation or the States under chapter 303 of title 49,
United States Code.]
* * * * * * *
UNITED STATES CODE
TITLE 6. DOMESTIC SECURITY
* * * * * * *
TABLE OF CONTENTS
* * * * * * *
Subtitle E--Improved Security for Driver's Licenses and Personal
Identification Cards
SEC. 241. DEFINITIONS.
Sec. 242. Minimum document requirements and issuance standards for
Federal recognition.
Sec. 243. Use of false driver's license at airports.
Sec. 244. Grants to States.
Sec. 245. State-to-State one driver, one license demonstration
project.
Sec. 246. Authority.
Sec. 247. Limitation on statutory construction.
* * * * * * *
CHAPTER 1. HOMELAND SECURITY ORGANIZATION
SUBCHAPTER IV. DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle E--Improved Security for Driver's Licenses and Personal
Identification Cards
SEC. 241. DEFINITIONS.
In this subtitle:
(1) Driver's license.--The term `driver's license'
means a motor vehicle operator's license, as defined in
section 30301 of title 49, United States Code.
(2) Identification card.--The term `identification
card' means a personal identification card, as defined
in section 1028(d) of title 18, United States Code,
issued by a State.
(3) Materially compliant.--A State is `materially
compliant' if the State has certified to the Secretary
that the State has commenced issuing driver's licenses
and identification cards that are compliant with the
requirements of this subtitle.
(4) Official purpose.--The term `official purpose'
means--
(A) accessing Federal facilities that
contain mission functions critical to
homeland security, national security,
or defense;
(B) accessing nuclear power plants;
or
(C) boarding federally regulated
commercial aircraft.
(5) Secretary.--The term `Secretary' means the
Secretary of Homeland Security.
(6) State.--The term `State' means a State of the
United States, the District of Columbia, Puerto Rico,
the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
SEC. 242. MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS FOR
FEDERAL RECOGNITION.
(a) Minimum Standards for Federal Use.--
(1) In general.--Beginning 1 year after the date on
which final regulations are issued to implement this
subtitle, pursuant to section 5 of the PASS ID Act--
(A) a Federal agency may not accept,
for any official purpose, a driver's
license or identification card issued
by a State to any person unless the
State is materially compliant; and
(B) no person shall be denied
boarding a commercial aircraft solely
on the basis of failure to present a
driver's license or identification card
issued pursuant to this subtitle.
(2) Agency acceptance.--Beginning 6 years after the
date on which final regulations are issued to implement
this subtitle, pursuant to section 5 of the PASS ID
Act, a Federal agency may not accept, for any official
purpose, a driver's license or identification card
unless the license or card complies with subsection
(b).
(3) State certifications.--The Secretary shall
determine whether a State is meeting the requirements
of this section based on certifications made by the
State to the Secretary. Such certifications shall be
made at such times and in such manner as the Secretary,
in consultation with the Secretary of Transportation,
may prescribe by regulation.
(4) Certification of other identification
documents.--The Secretary may certify any driver's
license or identification card, including an Enhanced
Driver's License designated by the Secretary under
section 7209 of the 9/11 Commission Implementation Act
of 2004, as compliant with the requirements of this
subtitle if the Secretary, after review, determines
such license or card meets the requirements of this
subtitle.
(b) Minimum Document Requirements.--To meet the
requirements of this section, a State shall include, at a
minimum, the following information and features on each
driver's license and identification card issued to a person by
the State:
(1) The person's legal name.
(2) The person's date of birth.
(3) The person's gender.
(4) The person's driver's license or identification
card number.
(5) A digital photograph of the person.
(6) The person's address of principle residence,
except--
(A) as provided for under section 827 of the
Violence Against Women Act (Public Law 109-
162); or
(B) for any individual who a State determines
should be exempted from the requirement under
this paragraph to protect the safety or
security of the applicant.
(7) The person's signature.
(8) A combination of security features designed to
protect the physical integrity of the document,
including the prevention of tampering, counterfeiting,
or duplication of the document for fraudulent purposes.
(9) A common machine-readable technology, containing
the data elements available on the face of a driver's
license or identification card. A person's social
security number may not be included in these data
elements.
(10) A unique symbol designated by the Secretary to
indicate compliance with the requirements under this
section.
(c) Minimum Issuance Standards.--
(1) In general.--To meet the requirements of this
section, for all driver's licenses and identification
cards issued under this subtitle at least 1 year after
the date on which final regulations are issued to
implement this subtitle, pursuant to section 5 of the
PASS ID Act, a State shall require, at a minimum,
presentation and validation of the following
information before issuing a driver's license or
identification card to a person:
(A) A photo identity document, except that a
non-photo identity document is acceptable if it
includes both the person's full name and date
of birth.
(B) Documentation showing the person's date
of birth.
(C) Proof of the person's social security
account number or verification that the person
is not eligible for a social security account
number.
(D) Documentation showing the person's name
and address of principle residence.
(2) Special requirements.--
(A) In general.--To meet the requirements of
this section, a State shall comply with the
minimum standards of this paragraph.
(B) Evidence of lawful status.--Before
issuing a driver's license or identification
card to a person, a State shall verify that the
person--
(i) is a citizen or national of the
United States;
(ii) has been granted lawful
permanent residence in the United
States;
(iii) has been granted asylum or
withholding of removal, or has been
admitted into the United States as a
refugee;
(iv) has been granted temporary
residence in the United States;
(v) has been paroled into the United
States under section 212(d)(5) of the
Immigration and Nationality Act (8
U.S.C. 1182(d)(5)), subject to such
exceptions as the Secretary, in the
Secretary's unreviewable discretion,
may prescribe for aliens paroled into
the United States for prosecution or
other categories of paroled aliens;
(vi) is a lawful nonimmigrant in the
United States;
(vii) has a pending application for
asylum or withholding of removal and
has been granted employment
authorization;
(viii) has been granted temporary
protected status in the United States
or has a pending application for
temporary protective status and has
been granted employment authorization;
(ix) has been granted deferred action
status;
(x) has a pending application for
adjustment of status to that of an
alien lawfully admitted for permanent
residence in the United States or
conditional permanent resident status
in the United States;
(xi) has otherwise been granted
employment autsent in the United
States, as determined by the
Secretaryhorization in the United
States; or
(xii) is otherwise an alien lawfully
pre in the Secretary's unreviewable
discretion.
(C) Temporary driver's licenses and
identification cards.--
(i) In general.--If a person presents
evidence under any of clauses (iv)
through (xii) of subparagraph (B), the
State may only issue a temporary
driver's license or temporary
identification card to the person that
is valid for a time period ending not
later than the expiration date of the
applicant's authorized stay in the
United States or, if there is no such
expiration date, for a period not to
exceed 1 year. The Secretary may, in
the Secretary's unreviewable
discretion, authorize the issuance of
temporary driver's licenses or
temporary identification cards, for
periods longer than 1 year, to
employees of international
organizations and to other nonimmigrant
aliens who are authorized to remain in
the United States for an indefinite
period.
(ii) Display of expiration date.--A
temporary driver's license or temporary
identification card issued pursuant to
this subparagraph shall clearly state
the date on which it expires.
(iii) Renewal.--A temporary driver's
license or temporary identification
card issued pursuant to this
subparagraph may be renewed only upon
verification of the applicant's current
lawful status.
(3) Validation of documents.--To meet the
requirements of this section, a State--
(A) shall not accept any foreign document,
other than an official passport, to satisfy a
requirement of paragraph (1) or (2); and
(B) not later than 1 year after the date on
which final regulations are issued to implement
this subtitle, pursuant to section 5 of the
PASS ID Act, shall enter into a memorandum of
understanding with the Secretary to routinely
utilize the automated system known as
Systematic Alien Verification for Entitlements
established under section 121 of the
Immigration Reform and Control Act of 1986
(Public Law 99-603), to verify the legal
presence status of a person, other than a
United States citizen or national, who is
applying for a driver's license or
identification card.
(d) Other Requirements.--To meet the requirements of this
section, a State shall adopt the following practices in the
issuance of driver's licenses and identification cards:
(1)(A) Employ technology to capture digital images of
identity source documents so that the images can be
retained in electronic storage in a transferrable
format for at least as long as the applicable driver's
license or identification card is valid; or
(B) retain paper copies of source documents for at
least as long as the applicable driver's license or
identification card is valid.
(2) Subject each person who submits an application
for a driver's license or identification card to
mandatory facial image capture.
(3) Establish an effective procedure to confirm or
verify a renewing applicant's information.
(4) Confirm with the Social Security Administration a
social security account number presented by a person
using the full social security account number. In the
event that a social security account number is already
registered to or associated with another person to
which any State has issued a driver's license or
identification card, the State may use any appropriate
procedures to resolve nonmatches.
(5) Establish an effective procedure to confirm that
a person submitting an application for a driver's
license or identification card is terminating or has
terminated any driver's license or identification card
issued pursuant to this section to such person by a
State.
(6) Provide for the physical security of locations
where driver's licenses and identification cards are
produced and the security of document materials and
papers from which driver's licenses and identification
cards are produced.
(7) Establish appropriate administrative and physical
safeguards to protect the security, confidentiality,
and integrity of personally identifiable information
collected and maintained at locations at which driver's
licenses or identification documents are produced or
stored, including--
(A) procedures to prevent the unauthorized
access to, or use of, personally identifiable
information;
(B) public notice of security and privacy
policies, including the use, storage, access
to, and sharing of personally identifiable
information;
(C) the establishment of a process through
which individuals may access, amend, and
correct, as determined appropriate by the
State, their own personally identifiable
information.
(8) Subject all persons authorized to manufacture or
produce driver's licenses and identification cards to
appropriate security clearance requirements.
(9) Establish fraudulent document recognition and
document validation training programs for appropriate
employees engaged in the issuance of driver's licenses
and identification cards.
(10) Limit the period of validity of all driver's
licenses and identification cards that are not
temporary to a period that does not exceed 8 years.
(e) Exceptions Process.--
(1) In general.--States shall establish an exceptions
process to reasonably accommodate persons who, for
extraordinary reasons beyond their control, are unable
to present the necessary documents listed in subsection
(c)(1).
(2) Alternative documents.--Alternative documents
accepted under an exceptions process established
pursuant to paragraph (1) may not be used to
demonstrate lawful presence under subsection (c)(2)
unless such documents establish that the person is a
citizen or national of the United States.
(3) Report.--States shall include a report on the use
of exceptions made under this subsection, which shall
not include any personally identifiable information, as
a component of the certification required under
subsection (a)(3).
(f) Use of Federal Systems.--States shall not be required
to pay fees or other costs associated with the use of the
automated systems known as Systematic Alien Verification for
Entitlements and Social Security On-Line Verification, or any
other Federal electronic system, in connection with the
issuance of driver's licenses or identification cards, in
accordance with this subtitle.
(g) Rule of Construction.--Nothing in this section shall be
construed to prohibit a State from issuing driver's licenses
and identification cards that do not comply with the
requirements of this section.
SEC. 243. USE OF FALSE DRIVER'S LICENSE AT AIRPORTS.
(a) In General.--The Secretary shall enter, into the
appropriate aviation security screening database, appropriate
information regarding any person convicted of using a false
driver's license at an airport.
(b) Definitions.--In this section:
(1) Airport.--The term `airport' has the meaning
given such term under section 40102 of title 49, United
States Code.
(2) False.--The term `false' has the meaning given
such term under section 1028(d) of title 18, United
States Code.
SEC. 244. GRANTS TO STATES.
(a) Establishment.--
(1) In general.--There is established a State
Driver's License Enhancement Grant Program to award
grants to assist States in conforming to the minimum
standards set forth in this subtitle.
(2) Distribution of grants.--The Secretary, through
the Administrator of the Federal Emergency Management
Agency, shall distribute grants awarded under this
section to States that submit an application as
follows:
(A) Proportional allocation.--Not less than
\2/3\ of the amounts appropriated for grants
under this section shall be allocated to each
State in the ratio that--
(i) the number of driver's licenses
and identification cards issued by such
State in the most recently ended
calendar year; bears to
(ii) the number of driver's licenses
and identifications cards issued by all
States in the most recently ended
calendar year.
(B) Remaining allocation.--The Secretary may
allocate to States any amounts appropriated for
grants under this section that are not
allocated under subparagraph (A) in such manner
as, in the Secretary's discretion, will most
effectively assist in achieving the goals of
this subtitle.
(C) Minimum allocation.--In allocating funds
under this section, the Secretary shall ensure
that for each fiscal year--
(i) except as provided under clause
(ii), each State receives not less than
an amount equal to 0.35 percent of the
total funds appropriated for grants
under this section for that fiscal
year; and
(ii) American Samoa, the Commonwealth
of the Northern Mariana Islands, Guam,
and the Virgin Islands each receive not
less than an amount equal to 0.08
percent of the total funds appropriated
for grants under this section for that
fiscal year.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary, for each of the fiscal
years 2010 through 2015, such sums as may be necessary to carry
out this section.
SEC. 245. STATE-TO-STATE ONE DRIVER, ONE LICENSE DEMONSTRATION PROJECT.
(a) Establishment.--The Secretary, in consultation with the
Secretary of Transportation, shall establish a State-to-State 1
driver, 1 license demonstration project.
(b) Purpose.--The demonstration project established under
this section shall include an evaluation of the feasibility of
establishing an electronic system to verify that an applicant
for a driver's license or identification card issued in
accordance with this subtitle does not retain a driver's
license or identification card issued in accordance with this
subtitle by another State.
(c) Requirements.--The demonstration project shall include
a review of--
(1) the costs affiliated with establishing and
maintaining an electronic records system;
(2) the security and privacy measures necessary to
protect the integrity and physical security of driver's
licenses; and
(3) the appropriate governance structure to ensure
effective management of the electronic records system,
including preventing the unauthorized use of
information in the system, and ensuring the security
and confidentiality of personally identifiable
information.
(d) Savings Provision.--Nothing in this section may be
construed to--
(1) authorize the creation of a national database of
driver's license information; or
(2) authorize States direct access to the motor
vehicle database of another State.
(e) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary for each of the fiscal
years 2010 through 2012 such sums as may be necessary to carry
out this section.
SEC. 246. AUTHORITY.
(a) Participation of Secretary of Transportation and
States.--All authority to issue regulations, set standards, and
issue grants under this subtitle shall be carried out by the
Secretary, in consultation with the Secretary of Transportation
and the States.
(b) Extensions of Deadlines.--The Secretary may grant to a
State an extension of time to meet the requirements of section
242(a)(1) if the State provides adequate justification for
noncompliance.
SEC. 247. LIMITATION ON STATUTORY CONSTRUCTION.
``Nothing in this subtitle may be construed to--
(1) affect the authorities or responsibilities of the
Secretary of Transportation or the States under chapter
303 of title 49, United States Code; or
(2) preempt State privacy laws that are more
protective of personal privacy than the requirements of
this subtitle or the standards or regulations
promulgated to implement this subtitle, provided that
such State laws are consistent with this subtitle and
the regulations prescribed pursuant to this subtitle.
* * * * * * *
TITLE 18. DOMESTIC SECURITY
* * * * * * *
CHAPTER 123--PROHIBITION ON RELEASE AND USE OF CERTAIN PERSONAL
INFORMATION FROM STATE MOTOR VEHICLE RECORDS
* * * * * * *
SEC. 2722. ADDITIONAL UNLAWFUL ACTS.
(c) Copying Information From Driver's Licenses or
Identification Cards.--It shall be unlawful for any person,
knowingly and without lawful authority--
(1) In general.--Except as provided in paragraph (2),
and unless authorized by Federal, State, or local law,
beginning 6 months after the date on which final
regulations are issued under paragraph (2), it shall be
unlawful for any person, knowingly and without lawful
authority--
(A) to scan the information contained in the
machine readable component of a driver's
license or identification card; and
(B)(i) to resell, share or trade that
information with any other third parties;
(ii) track the use of a driver's license or
identification card; or
(iii) store the information collected.
(2) Exceptions.--
(A) In general.--Not later than 2 years after
the date of the enactment of the PASS ID Act,
the Federal Trade Commission, after providing
notice and an opportunity for public comment,
shall issue final regulations that provide
exceptions to the prohibition under paragraph
(1) for acceptable uses of information derived
from the machine readable component of a
driver's license or identification card for
purposes including preventing fraud, abuse, or
criminal activity.
(B) Acceptable uses.--Acceptable uses under
subparagraph (A) shall protect the privacy and
security of the driver's license or
identification card holder and shall include--
(i) scanning and sharing personal
information for credit checks;
(ii) scanning and sharing, tracking,
or storing personal information for law
enforcement purposes;
(iii) scanning and storing
information to prevent consumer fraud;
(iv) scanning and sharing the
information between Federal, State, and
local agencies, in accordance with
section 552a of title 5, United States
Code, and other laws relevant to the
protection of the privacy of the
individual; and
(v) scanning and using the
information for a purpose for which the
driver's license or identification card
holder has given express written
consent.'';
* * * * * * *
SEC. 2724. CIVIL ACTIONS.
(a) Cause of Action.--A person who knowingly obtains,
discloses or uses personal information, from a motor vehicle
record, driver's license, or identification card for a purpose
not permitted under this chapter shall be liable to the
individual to whom the information pertains, who may bring a
civil action in a United States district court.
* * * * * * *
SEC. 2725. DEFINITIONS.
In this chapter--
[(1)] (5) ``motor vehicle record'' means any record
that pertains to a motor vehicle operator's permit,
motor vehicle title, motor vehicle registration, or
identification card issued by a department of motor
vehicles;
[(2)] (6) ``person'' means an individual,
organization or entity, but does not include a State or
agency thereof; and
[(3)] (7) ``personal information'' means information
that identifies an individual, including an
individual's photograph, social security number, driver
identification number, name, address (but not the 5-
digit zip code), telephone number, and medical or
disability information, but does not include
information on vehicular accidents, driving violations,
and driver's status.
[(4)] (3) ``highly restricted personal information''
means an individual's photograph or image, social
security number, medical or disability information;
[and]
(4) ``identification card'' means a personal
identification card, as defined in section 1028(d) of
title 18, United States Code, issued by a State.
[(5)] (1) ``driver's license'' means a motor vehicle
operator's license, as defined in section 30301 of
title 49, United States Code;''
(2) ``express consent'' means consent in writing,
including consent conveyed electronically that bears an
electronic signature as defined in section 106(5) of
Public Law 106-229.
