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Transportation Review Enhanced Driver's Licenses and REAL ID: Driver's License Update Information Can Be Shared with the Federal Government

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Transportation Review Enhanced Driver's Licenses and REAL ID: Driver's License Update Information Can Be Shared with the Federal Government National Conference of State Legislatures TRANSPORTATION RE VI E W ENHANC E D DRIV E R 'S LIC E NS E S AND REAL ID: DRIV E R 'S LIC E NS E UPDAT E by Anne Teigen July 2009 Beginning June 1,2009, the 17 states that border Canada or Mexico and countless port cities will require U.S. citizens re-entering the United States by land or sea to show a passport or other approved document. Citizens from Canada and Mexico who enter the United States also will have to show approved documentation. These new requirements affect business and vacation travelers as well as industry. A state-issued, enhanced driver’s license can be issued to citizens who want to cross the borders without using a passport. Enhanced Driver’s Licenses and the Western Hemisphere Travel Initiative The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) mandates the Department of Homeland Security (DHS) and Department of State (DOS) to develop and implement a plan to require U.S. citizens and foreign nationals to present a passport or other appropriate identity and citizenship documentation when entering the United States from Canada, Mexico and other Caribbean countries. DHS and DOS developed the Western Hemisphere Travel Initiative (WHTI) to implement the congressional mandate. The initiative requires all U.S. citizens entering the United States at sea or land ports of entry to show proof of identity and proof of U.S. citizenship by presenting a passport, a passport card or other documents approved by the DHS.1 All U.S. residents traveling by air must present a U.S. passport when returning to the United States. One document approved by DHS for use at border crossings is an enhanced driver’s license issued by the state. As of May 2009, Michigan, New York, Vermont, and Washington, had CONTENTS implemented enhanced driver’s license programs approved by the Department of Homeland Enhanced Driver's Security. Licenses and the Western Hemisphere The Washington Legislature passed an enhanced driver’s licensing bill in 2007. The bill provided Travel Initiative .......1 that the state Department of Licensing could enter into a memorandum of understanding with Enhanced Driver's any federal agency to develop a border crossing initiative that requires citizens to show citizenship Licenses and the Question of and identification. Washington began issuing an enhanced driver license and ID card (EDL/ID) Privacy ....................2 on January 22, 2008. The licensing department states, “The EDL/ID securely denotes identity How Do Enhanced and citizenship, and is an acceptable alternative to a passport for re-entry into the U.S. at land Driver's Licenses and sea border crossings.” Differ from REAL ID? ...............3 The Washington program is not mandatory, but people who would like to travel with ease to The Latest on British Columbia on a regular basis can obtain an enhanced driver’s license and use it instead REAL ID ................3 of a passport. A applicant for an enhanced license must provide proof of citizenship, identity Appendix. Summary and state residency. The law also requires that the enhanced driver’s licenses include biometric of State Action on technology and radio frequency identification. REAL ID, 2006 to 2009 ..........5 NATIONA L CONF E R E NC E OF STAT E LE GIS L AT U R E S 7700 East First Place Phone: (303) 364-7700 Denver, Colorado 80230 Fax: (303) 364-7800 Enhanced Driver's Licenses and REAL ID: Driver's License Update Biometrics is the use of digital technology to identify individuals based on their unique physical features. The Department of Licensing takes an applicant’s picture and keeps it in a database. When a license holder crosses the border, biometric technology compares facial characteristics— such as the distance between pupils and size and shape of facial features—of the database picture to the license picture. The Washington enhanced driver’s license also features a vicinity radio frequency identification (RFID) chip. The Washington Department of Licensing describes the RFID as not containing “any personal identifying information, just a unique reference number. At the border, the RFID reader will energize the RFID tag and transmit the EDL/ ID’s unique reference number back to the border officer. The number will be matched to our records to verify the information contained on the front of the EDL/ID card.” The Department of Licensing has used data encryption, secure networks and firewalls to protect transmission of any enhanced driver’s license information. Michigan passed an enhanced driver’s license bill in April 2008, and the program was approved by DHS in October 2008. Licenses became available to those who wanted one in April 2009. Cost for a license is $45 and it is delivered two to three weeks after application. Although four states have enacted legislation and implemented enhanced driver’s license programs, the debate over these licenses remains. In 2009, Arizona introduced House bill 2426, which specifically states that Arizona will not develop an enhanced driver’s license. The bill passed the House; it did not reach the Senate and did not pass before the 2009 session ended. Arkansas passed an enhanced driver’s license bill in 2009, but it states that the Office of Driver Services shall not include an electronic chip or RFID, which is required by DHS for all enhanced driver’s licenses. Without an RFID, an enhanced driver’s license from Arkansas will not comply with DHS regulations and may not be acceptable for border travel. Enhanced Driver’s Licenses and the Question of Privacy A state that chooses to produce enhanced driver’s licenses must enter into a Memorandum of Agreement with the Department of Homeland Security’s U.S. Customs and Border Protection Agency. The state and the agency then develop a comprehensive business plan and an information technology sharing agreement. The memorandums of agreement are public record, but the details of the business plans and computer systems are confidential. There has been some concern about the information shared between state and federal governments. When a state issues an enhanced driver’s license, the RFID chip contains a string of numbers that can be used to look up a person’s information (date of birth, picture, height, address, etc). In the memorandum of agreement, the state can choose whether to submit the data and have the Department of Homeland Security keep the information in a secure database, or the state can choose to maintain its secure database. State privacy statutes may dictate what 2 National Conference of State Legislatures / Transportation Review Enhanced Driver's Licenses and REAL ID: Driver's License Update information can be shared with the federal government. In such cases, a state-run database may be necessary. Some privacy groups are concerned that the information in the RFID chip in the EDL could be accessed by anyone who had a wand or scanner. The Department of Homeland Security maintains that the only information a scanner could detect would be a string of numbers. How Do Enhanced Driver’s Licenses Differ from REAL IDs? The Intelligence Reform and Terrorism Prevention Act of 2004 and the Real ID Act of 2005 contain provisions that affect state driver’s licensing but, the requirements and purposes of the two acts differ significantly. Enhanced driver’s licenses comply with the requirements of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) for the Western Hemisphere Travel Initiative. They are state-issued licenses that have been approved by the Department of Homeland Security to be used at land and sea border crossings. Under the Real ID Act, unless states adopt federal standards for driver’s licenses and identification cards, the federal government will not accept the licenses or cards for federal purposes such as boarding commercial aircraft, entering a federal building or nuclear power plant, or other purposes as determined by the secretary of Homeland Security. The Latest on REAL ID In January 2008, the Department of Homeland Security issued the long-awaited final regulations on implementation of the REAL ID Act of 2005, a mere four months before the May 11, 2008, statutory implementation date. States were required to certify compliance to DHS by May 11, 2008, or request an extension until Dec. 31, 2009. All 56 U.S. jurisdictions received an initial extension. To merit a second extension through May 11, 2011, states must demonstrate material compliance with REAL ID by meeting many or all of 18 benchmarks. By Dec. 1, 2014, states must begin issuing REAL IDs to applicants born after Dec. 1, 1964. The re-issuance process for all driver’s license and identification card holders is to be completed by Dec. 1, 2017. During any extension, the state’s non-REAL ID-compliant driver’s license and identification card will be recognized for federal purposes. States that choose not to comply or seek the second extension need not take action. After Dec. 31, 2009, however, their driver’s licenses and identification cards will not be recognized for federal purposes. Legislators in 24 states had proposed 38 bills, resolutions or memorials related to REAL ID as of June 2009. Virginia and Utah passed legislation in opposition to the act. Legislative activity was markedly lower in 2008 and 2009 than in the previous years because of the recently released regulations. Arkansas, California, Illinois, Maryland, Nebraska, Nevada, Oklahoma, Oregon, Texas, Virginia and Wyoming introduced legislation in 2009 that would comply with REAL ID. About half those states, however, also introduced conflicting bills National Conference of State Legislatures / Transportation Review 3 Enhanced Driver's Licenses and REAL ID: Driver's License Update indicating the state’s refusal to comply.
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