REAL ID Regulations Anything but "Final"

by Daniela Martinez Moreno
AFSC Special Projects Policy Fellow

On January 11, nearly three years after enactment of the REAL ID Act of 2005, the Department of Homeland Security (DHS) released final regulations establishing minimum standards for state-issued driver's licenses and identification cards. These regulations received a mixed reception including criticism from several members of Congress.

The final rule requires all individuals under the age of 50 to carry REAL-ID compliant driver's licenses and identification cards by the year 2014 in order for those documents to be accepted for federal purposes. Individuals over the age of 50 will have until the year 2017 to obtain these forms of identifications.

A Series of Extensions for Implementation of REAL ID

States have 60 days to apply for an extension for the implementation of REAL ID after the final rule is published in the Federal Register. States that apply will be granted an extension until December 31, 2009.

By May 11, 2008, a driver's license or identification card issued by a state that has not applied for an extension will not be accepted by federal agencies for official purposes. The final rule defines "official purposes" as "access to Federal facilities, boarding Federally-regulated commercial aircraft, entry into nuclear power plants, and such other purposes as established by the Secretary of Homeland Security".

The final regulations establish a procedure for states to apply for an additional extension by October 11, 2009, provided that they demonstrate they have achieved "certain milestones towards compliance with the Act and the final rule," specified in the DHS REAL ID Final Regulations. DHS will grant the second extension until May 11, 2011, at which time the state must begin issuing fully compliant REAL ID driver's licenses and identification cards.

States Stand in Opposition to REAL ID

DHS asserts that states are not mandated to participate in REAL ID. Individuals from states that do not choose to issue REAL ID-compliant driver's licenses and identification cards can still present other forms of acceptable identification - such as a U.S. passport - for official purposes, according to DHS.

In 2007, several states enacted legislation prohibiting compliance with REAL ID including Maine, Montana, New Hampshire, Oklahoma, South Carolina.

Members of Congress Oppose REAL ID

Several members of Congress spoke in opposition to REAL ID after DHS issued the final regulations. Both Senators Tester and Max Baucus (D-MT) reaffirmed their opposition to REAL ID. Senator Baucus emphasized the need to safeguard the country's security without compromising the privacy of Americans.

Senators Daniel Akaka (D-HI) and John E. Sununu (R-NH) also expressed disappointment over the final regulations released by DHS. Representative Tom Allen (D-ME) responded to the final REAL ID regulations by stating, "REAL ID imposes a costly mandate on states that require them to gather, scan, and retain personal information about everyone who seeks a driver's license or identification card, raising serious privacy concerns".

Senators Akaka and Sununu are co-sponsors of the Identification Security Enhancement Act of 2007 (S. 717), a bill that would repeal Title II of the REAL ID Act of 2005 and reinstitute section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004. Representative Allen (D-ME) is the sponsor of H.R. 1117, the House version of the Identification Security Enhancement Act of 2007.

Organizations Find REAL ID Problems Unresolved

Barry Steinhardt and Tim Sparapani of the American Civil Liberties Union stated that by delaying the implementation of REAL ID, DHS seems to have passed the problems of the statute on future administrations. The ACLU also argues that the final regulations fail to address many of the concerns raised by the more than 21,000 comments that the DHS received during the comment period. According to David Quam, director of federal relations for the National Governors Association, the final regulations "put us at the beginning of the process, not the end" (Washington Post).