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The License To 'Reconfigure A Society'
by Chris Strohm
Homeland Security Secretary Michael Chertoff on Friday announced regulations to require states to issue new driver's licenses and identification cards, declaring that "this is a great teaching moment on the challenges of really reconfiguring a society."
Supporters praised the Homeland Security Department for finally giving states details on how to comply with the so-called REAL ID Act, which Congress cleared nearly three years ago. "I think this is going to take the wind out of the opponents' sails quite a bit," said C. Stewart Verdery, a consultant and former department official. "They've made this much more reasonable."
Opponents, however, say the regulations do nothing to assuage their concerns and actually raise new questions and problems. House Homeland Security Committee Chairman Bennie Thompson, D-Miss., fired off a letter to Chertoff on Friday urging the department to postpone the regulations.
According to the rules, states have until May 2011 to begin complying, as long as they request extensions from the Homeland Security Department. By December 2014, states must begin issuing new licenses and identification cards to residents ages 50 and younger. They must issue REAL-ID-compliant licenses to all residents by December 2017.
Building The Backbone
Despite their differences, privacy advocates, industry experts and lawmakers all agree that states face enormous challenges building the information technology systems and finding the necessary funding satisfy the law. Significantly, the regulations require states to use databases that either do not exist or only partially exist.
"We have till 2011 to figure this out," said David Quam, federal relations director for the National Governors Association. "What we're talking about is not only do they have to work but they have to be accurate, reliable, and we have to protect people's privacy. All those questions have to be answered before those come online."
According to the rules, motor-vehicle departments have to check whether people applying for licenses already have them from other states. Such a network does not exist today. Homeland Security said it is assessing whether a network developed by the American Association of Motor Vehicle Administrators could serve as the backbone for a state-to-state data system.
Homeland Security also is exploring whether a network states use to issue and verify commercial driver's licenses could serve as a baseline platform. That network, however, only contains about 13 million records. To satisfy REAL ID, states will need a network that can verify about 245 million driver's licenses and ID cards across the country.
"I think it will be interesting to see what kind of approach DHS takes to determining who will build that for them," said Brendan Peter, an executive with LexisNexis who also chair's the Information Technology Association of America's identity management subcommittee. "They've been very clear that they don't want to own or operate it in anyway."
States also must connect to federal databases to verify license applicants' Social Security numbers and immigration status, and, if needed, their passports or visas. A national system to verify passports and visas does not yet exist, however. Nor do national databases to verify birth records or addresses, Homeland Security concedes.
Protecting Personal Information
Regardless, Peter, who previously ran the government affairs division at the American Association of Motor Vehicle Administrators, said he believes meeting the regulations is "definitely doable." He said he believes AAMVA will be tapped as the organization to manage the system for state-to-state checks, but it remains unclear which agency will operate the system for querying federal databases.
Verdery said giving states until 2017 to address problems was the right move. "They've stretched out the compliance so far that it's very plausible it can be built," he said.
Privacy and civil liberties advocates, however, immediately criticized Homeland Security for issuing a final rule that does not answer the most basic questions, such as which IT systems must be used and how personal information will be protected. In their view, states are in an impossible position. They are being forced to make personal information about their residents available to every other state with no guarantee of privacy or security.
Barry Steinhardt, director of the ACLU's technology and liberty program, said that Homeland Security has "kicked the can down the road" and that REAL ID will be "impossible to implement." The ACLU has called on Congress to repeal the law.
Data contained on the licenses will not be encrypted, which increases the potential that personal information could be stolen or skimmed by corporations to build profiles of people's spending and travel patterns, said Tim Sparapani, the ACLU's legislative counsel. Homeland Security said it decided not to require data encryption in order to make it easier for law enforcement agencies to check information on the cards.
The ACLU noted that the integrity of state databases also could be undermined if some states do not comply or adopt weaker security standards. "We actually think that the REAL ID Act makes us less secure, not more secure," Sparapani said.
The ACLU also questions whether REAL ID licenses one day will become national ID cards, and whether their uses will be expanded. Homeland Security does not rule out such an expansion, saying in the rule that the licenses one day could be required for accessing welfare benefits, becoming employed or being allowed to vote.
Cost Concerns
Another major challenge for states is having enough funding to comply with the law.
Homeland Security estimates that compliance will cost about $4 billion over the next decade. Chertoff said his department will give states about $360 million this year for the effort. About $80 million of that is in the form of direct congressional appropriations. The department said states will have access to the other $260 million by using up to 20 percent of their security grants.
Critics, however, immediately assailed the notion of using existing grant funds. A spokeswoman for Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn., said using the grants "would be a serious problem."
The committee's ranking Republican, Susan Collins of Maine, said "expecting states to use already limited homeland security grant funds to implement REAL ID is an unacceptable means of mitigating the high cost of this program." Collins also noted privacy concerns.
"Until these issues are addressed, states are going to have to assess the feasibility of implementing the program within the constraints of their own privacy laws and their own budgets," she said. "If these constraints prove too difficult to overcome, the department will need to consider just how much security REAL ID actually provides if several states are not participating in it."
According to the ACLU, 17 states -- including Maine -- have passed legislation opposing all or part of REAL ID. NGA's Quam said most states already have other uses for their grant funds. "I don't think that's a real account that can be drawn upon for state," he said. "That's not a real solution for states."
For now, at least, state officials are waiting to see how much funding Homeland Security requests for REAL ID in its fiscal 2009 budget -- which will be unveiled next month -- and how much money Congress actually provides.
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