The REAL ID Act (the “Act”) was passed by Congress and approved by the President in 2005 to create procedures and rules by which states and territories may lawfully issue drivers’ licenses and other forms of identification that are acceptable for Homeland Security purposes. The Act, called the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, has been implemented by regulations found at 6 C.F.R. Chapter I, Part 37 (the “Code”), administered by the Department of Homeland Security (“DHS”). Pennsylvania missed the first compliance deadline of May 11, 2008 and several other deadlines. Indeed, Pennsylvania responded to the Act by adopting Act 38 of 2012, which prohibits the Pennsylvania Governor and the Pennsylvania Department of Transportation (“DOT”) from complying with the Act. Faced with a January 30, 2017 deadline to comply with the Code so that Pennsylvanians could enter federal facilities with State identification, Pennsylvania requested and DHS issued a new compliance deadline of June 6, 2017. Pennsylvania residents will need a federally compliant form of identification to access federal buildings, nuclear power plants and military bases on June 7, 2017, and to pass federal security checks in domestic air travel on January 22, 2018.
What will the Code require of Pennsylvania under the current extension? The Code regulates (a) minimum documentation, verification and card issuance, (b) document retention and DOT databases, (c) security at DOT and driver’s license and identification card production facilities, and (d) DHS procedures for determining state compliance. The extent of these regulations is important to understand Pennsylvania legislators’ concerns with costs and federal surveillance when they adopted Act 38 of 2012. According to DHS, only 25 states and the District of Columbia are compliant with the Act, so Pennsylvania’s non-compliance is not an anomaly. Passports are an acceptable form of identification for air travel but fewer than 50% of Pennsylvanians own a U.S. passport, less than the approximately 90% percent of Pennsylvanians with a valid driver’s license or other photo identification. Accordingly, compliance with the Act is a convenience for Pennsylvanians in addition to fulfilling a stated federal policy.
What standards must Pennsylvania adopt as to proof of the applicant information and verification of sources of facts? Applicants for a Pennsylvania REAL ID Act driver’s license or other identification card must present: (1) a photo of the applicant’s face without shadows or obstructions from crown to base of chin and from ear to ear; (2) a declaration signed by the applicant under penalty of perjury; (3) a federally approved source of identification such as a U.S. passport or birth certificate from the State Vital Statistics Bureau; (4) date of birth; (5) social security number; (6) two documents showing applicant’s principal residence; (7) proof of lawful status in United States; and (8) exceptions to the foregoing determined by DOT (to be submitted to DHS for compliance). The State must verify those documents with the issuer of each document. Identity and lawful residence must be verified through the Systematic Alien Verification of Entitlements System. Social Security numbers and birth certificates are verified through the Social Security Administration and Electronic Verification of Vital Events Systems, respectively.
Security features are required for REAL ID drivers’ licenses and other identification cards. Security features are enumerated in the Code to (a) resist persons’ efforts to alter, falsify or counterfeit cards and (b) to detect false cards. Such licenses and cards must contain: (1) full legal name, (2) date of birth, (3) gender, (4) unique number, (5) full facial digital photograph, (6) signature, (7) physical security features, (8) machine-readable technology of back side of card, (9) date of transaction, (10) expiration date, (11) state or territory of issuance, (12) DHS character requirements, and (12) a DHS-approved security marking.
The State may issue only certain enumerated cards. No state may issue a REAL ID driver’s license and another REAL ID identification card for the same person. Each issuing state must check with all other states to make sure any existing REAL ID driver’s license or other identification card is being terminated before the inquiring state issues a counterpart REAL ID driver’s license or other identification card.
Each issuing state must retain application documents and maintain minimum information in its DOT database. The retention period for keeping paper records is 7 years and microfiche and digitally stored information must be kept for 10 years. The respective state motor vehicle database must contain: (1) all fields on the driver’s license and identification cards, (2) the full legal and recorded names, (3) histories, including motor vehicle code violations, suspension and points. States must implement security procedures to safeguard all personally identifiable information.
States must maintain security at DOT and license and card production facilities. Each compliant state must have a security plan that addresses (a) physical security at production facilities and storage facilities, (b) security of personally identifiable information, (c) document and physical security for the issued cards, (d) access control including credentialing and background checks for employees, and controlled access systems, (e) periodic training for employees, (f) emergency incident response plan, (g) internal audit controls, and (h) and an affirmation (not detailed in the plan) that the state has the means to handle, expunge and protect the confidentiality of the licenses and cards in dealing with requesting federal, state and local criminal justice agencies. The state must also have the procedures in place that the security plan details.
The proof of compliance is two-fold. First the state must produce initially and every 3 years thereafter the following: (a) a certificate of the chief executive of its DOT that the state is in compliance, (b) a letter from the state Attorney General that the state has the authority to impose requirements to meet the standards of the Act, (c) the exceptions process and waivers process adopted by the DOT, and (d) the state’s security plan. Second, the state must cooperate with the DHS review of the state’s compliance in a due process procedure.
Governor Wolf announced on January 19, 2017, his gratitude for the discretionary extension DHS issued most recently to Pennsylvania. Given the procedures and rules required by the Act and the related costs to be borne by Pennsylvania in a deficit budget year, Pennsylvania leadership will have to demonstrate particular teamwork to avoid requesting another extension for compliance.
© 2017 Robert J. Hobaugh, Jr.