Analysis: Dems plan overhaul of Real ID

By SHAUN WATERMAN, UPI Homeland and National Security Editor   |   Dec. 13, 2006 at 1:14 PM
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WASHINGTON, Dec. 12 (UPI) -- Democrats plan to overhaul the controversial Real ID Act when they take control of Congress next year, pushing back deadlines for the implementation of national standards for driver's licenses that state governments say cannot be met.

And if long-awaited regulations from the Department of Homeland Security do not provide needed protections for privacy and civil liberties, lawmakers have pledged to repeal the law entirely, resurrecting prior legislation with more leeway on standards for state and federal officials, and additional privacy restrictions.

"Given the shortsightedness of the law (the Department of Homeland Security) was given by Congress, it may be the case that a complete replacement of the Real ID Act is necessary," said Sen. Daniel Akaka, D-Hawaii, adding he was looking to the department to fix many of the problems in its regulations. "However, if our personal privacy is not protected and the burden placed on states is too great, a legislative change to Real ID may prove necessary."

Akaka will be chairman next year of a Senate Homeland Security and Governmental Affairs Subcommittee with jurisdiction over the relationship between federal and state governments. He is one of a number of senators from both parties who opposed the law last year, but were forced to accept it by a parliamentary maneuver.

The Real ID Act was incorporated into a must-pass supplemental appropriations law in 2005 as the price exacted by outgoing House Judiciary Committee Chairman Rep. James Sensenbrenner, R-Wis., and other House conservatives, for allowing the 2004 Intelligence Reform and Terrorism Prevention Act to pass.

Real ID mandated a massive overhaul of America's 50 driver's licensing systems to make them secure against identity thieves and undocumented or illegal aliens. The act ordered an ambitious set of electronic networks to allow real-time authentication for so-called feeder documents, like social security cards or birth certificates; and the creation of a virtual nationwide database of every license holder, by linking all state license databases.

The law also laid down standards for document security and tamper-proof features, and makes noncitizens applying for a license prove that they are lawfully in the United States. For holders of temporary visas, the license issued would expire on the same date as the visa.

Although the law does not -- and under the federal constitution cannot -- impose these standards on the 50 states, each of which issues its own licenses through a department of motor vehicles or similar agency, the act does say that IDs issued after May 2008 by states that don't meet the standards will not be acceptable for "federal purposes" -- like gaining entrance to government buildings or boarding planes.

But the Department of Homeland Security has issued no regulations to tell states how they should comply with the law's requirements, and Congress has allocated no funds to help states or federal agencies meet the costs.

There is not even a program office within homeland security, critics say, and much of the preparatory work has been done by state agencies and the private sector.

Advocates for state government say that time is running out if they are to have any chance of making the May 2008 deadline. Capital investments for compliance-standard equipment have to be made this year, and state legislatures, which will in many cases have to approve legal changes, don't meet year round.

Supporters of Real ID say there are provisions for extensions and exemptions in the law that officials could use to deal with these issues.

The act was opposed at the time by several senior senators, but the fate of any proposed overhaul was unclear. Spokesmen and women for several key lawmakers in both chambers did not respond to requests for interviews or comment.

"I don't think there's any way they can avoid dealing with the deadlines issue," said Tim Sparapani, a legislative counsel with the American Civil Liberties Union.

There is enormous variation in the capacity of states to meet the standards, observers say, and that will complicate the allocation of federal resources, since some small states may need to make larger investments than big ones.

Akaka introduced a bill last week authorizing $300 million annually for implementation, though the National Governors Association said earlier this year that the costs would be more than seven times that -- $11 billion over five years.

Akaka's bill, which would have be reintroduced in the next session to have any chance of becoming law, was designed, he said, to "send a message" to homeland security, which has been working on regulations to implement the law.

Akaka laid down seven issues that he said the department must deal with in regulation to head off a legislative overhaul. They include strict limitations on access to the nationwide virtual database; standards for security for data electronically stored on licenses; allowing flexibility in the technological solutions employed by states; ensuring that existing state and federal privacy protections are extended to the new systems; and a redress system for correcting inaccurate information in vehicle licensing database networks.

"I hope that the regulations will be well thought out and reflect the stakeholder input provided to DHS over the past year and a half which included the issues I just raised," Akaka said . But he added, "Given what I have heard from participants about the rule-making process thus far, I am concerned that the regulations are being developed by too few people without enough stakeholder engagement."

The bill would reintroduce a so-called negotiated rule-making process that would involve key stakeholders, including state governments and what the legislation calls privacy and immigration experts. Critics have painted the process as a recipe for gridlock, and noted the absence of law enforcement agencies at the table.

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