Wisconsin Lawyer
Vol. 81, No. 8, August 2008

Who are you? Prove it! The Federal REAL ID Act and Its Fate in Wisconsin

by Aaron R. Gary

n May 11, 2005, President George W. Bush signed into law the federal REAL ID Act¹ Under this Act, beginning on May 11, 2008, a Wisconsin resident may not use a Wisconsin driver's license or state-issued identification car² to prove identity when boarding a commercial aircraft or entering a federal building unless the driver's license or identification card is REAL ID-compliant. The Department of Homeland Security (DHS), which administers the provisions of the federal law, has extended the time for states to comply with REAL ID. Although some Wisconsin legislative efforts have moved the state closer to implementing the standards established under the REAL ID Act, it remains unclear whether Wisconsin ultimately will comply with these standards or opt out of REAL ID. The fate of REAL ID in Wisconsin will be determined in the very near future. If Wisconsin opts out, beginning on Jan. 1, 2010, Wisconsin attorneys might no longer be able to enter federal courthouses or board commercial aircraft with their accustomed ease.

Origin and Purpose of the REAL ID Act

REAL ID Act provisions were attached as a rider to an emergency military spending and tsunami relief bill during a conference committee after differing versions of the bill already had passed each house of Congress³ The primary sponsor of the REAL ID Act⁴ Rep. James Sensenbrenner (R-Wis.), stated that the "goal of the REAL ID Act is … to prevent another 9/11-type attack by disrupting terrorist travel."⁵ According to the DHS, the REAL ID Act implements a 9/11 Commission recommendation to require more secure sources of identification for use in boarding aircraft and accessing vulnerable facilities⁶ "The REAL ID Act of 2005 was passed by Congress to make it more difficult to fraudulently acquire a driver's license or ID card, as part of the effort to fight terrorism and reduce fraud. … `For terrorists, travel documents are as important as weapons.'"⁷ From the beginning, several advocacy organizations, including the National Conference of State Legislatures (NCSL), the National Governors Association, the Council of State Governments, and the American Association of Automobile Administrators, opposed the REAL ID Act, based primarily on the cost and administrative complexity of implementation.

Provisions of the Federal REAL ID Act and Wisconsin's Initial Response

The REAL ID Act states that, beginning May 11, 2008, federal agencies cannot accept a driver's license or identification card "for any official purpose" unless the issuing state meets all REAL ID Act requirements. The Act defines official purpose to mean accessing federal buildings and facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purpose specified by the DHS⁸ States are not required to implement the standards established under the REAL ID Act, but a state's residents will suffer the consequences of the state's decision not to comply with the Act's requirements⁹ The Act provides the DHS with authority to extend any state's compliance deadline if the state shows adequate justification¹⁰ and Wisconsin has received such an extension.

The REAL ID Act specifies certain elements and features that must be included in every driver's license and identification card issued by the applicable state authority, which in Wisconsin is the Division of Motor Vehicles (DMV) in the Department of Transportation (DOT). For example, each driver's license and identification card must contain "common machine-readable technology." Under the Act, before the DMV can issue a driver's license or identification card, an applicant must present a "photo identity document" or another identity document that includes the applicant's full legal name and date of birth, documentation showing the applicant's date of birth, proof of the applicant's Social Security number (SSN) or verification that the applicant is not eligible for an SSN, documentation showing the applicant's name and principal residence address, and valid documentary evidence that the applicant is a U.S. citizen or otherwise lawfully present in the United States. The DMV must "verify, with the issuing agency, the issuance, validity, and completeness of each document" presented. The DMV also must take and retain a digital photograph of the applicant (even if no driver's license or identification card is ultimately issued) and scan and retain digital images of all the identity documents the applicant presents. The DMV must issue to certain noncitizens "temporary" driver's licenses and identification cards, which expire no later than the time the person's authorized presence in the U.S. expires or one year after issuance. Among other provisions, the REAL ID Act also creates security requirements for DMV facilities and personnel and requires the DMV to provide other states with electronic access to driver and identification card information¹¹ Satisfying all of these requirements will necessitate significant and costly changes to the DMV's procedures.

To begin implementing REAL ID, the Wisconsin Legislature last session incorporated into state law a "legal presence" requirement for issuance of driver's licenses and identification cards¹² This session, the 2007 Executive Budget Bill (S.B. 40), which became 2007 Wisconsin Act 20, included numerous provisions to conform state law to the requirements of the REAL ID Act. Because these statutory provisions closely track the federal requirements discussed above, they are not discussed in detail here¹³ However, some of the necessary changes to Wisconsin law include eliminating the exception allowing issuance of a driver's license without a photograph based on seriously held religious convictions, denying driver's licenses and identification cards to persons who are eligible for an SSN but do not have one, and expanding driver record information available to other states to include electronic access to photographs, signatures, and SSNs. Nonetheless, most of the Act 20 provisions incorporating REAL ID standards into state law are subject to a very unusual effective-date provision and have not yet become effective. These provisions will become effective only when the DOT determines that it will be ready to fully implement these REAL ID provisions and provides notice of the date on which it will be ready¹⁴ In Act 20, the legislature, instead of appropriating money directly to the DOT for REAL ID implementation, allocated approximately $20 million for a Joint Committee on Finance (JCF) supplemental appropriation to cover the DOT's costs of implementing REAL ID in the 2007-09 fiscal biennium (July 1, 2007 to June 30, 2009)¹⁵ The DOT can receive these funds only upon express or tacit approval of the JCF.

Aaron R. Gary, Univ. California-Davis 1992, Order of the Coif, is a legislative attorney with the Legislative Reference Bureau, Madison, and drafted the state statutory provisions relating to REAL ID.

Regulations Implementing the Federal REAL ID Act and States' Reactions

In March 2007, after a long delay and after the Act 20 REAL ID provisions had been drafted, the DHS finally issued preliminary rules for REAL ID¹⁶ In a 60-day public comment period, the DHS received 21,000 comments to these preliminary rules. In January 2008, the DHS issued final rules¹⁷ Since May 11, 2005, the date President Bush signed the REAL ID Act, there has been considerable discussion and critique of the Act in the media and among state administrators and policy-makers.

The REAL ID Act, opposed from the start by certain state advocacy organizations, has continued to be heavily criticized by many states and by privacy groups. In formulating its final regulations, the DHS made significant changes from its preliminary regulations, in an effort to subdue the backlash it was hearing from the states. At an NCSL meeting in November 2007, the DHS asked states to "[h]old your fire until you can actually read the darn thing [final regulations]."¹⁸ The biggest factors in states' opposition have been the cost and time frame for implementation, but privacy concerns also have been a major issue. Some opponents have further asserted that the Act is administratively unworkable, ultimately will be ineffective, and is an improper conscription of state driver licensing agencies in federal immigration enforcement¹⁹ As of April 2008, 24 states had passed bills or resolutions opposing REAL ID in its present form, including seven states that prohibited state agencies from complying with REAL ID requirements. Six states, including Wisconsin, had affirmatively enacted legislation that in some form adopts REAL ID standards²⁰ There also have been federal legislative efforts to significantly modify or repeal the REAL ID Act²¹ "REAL ID's enactment was roughly analogous to the federal government shoving its figurative hand deep into a hornet's nest. Few federal acts in recent memory have elicited such strong state reaction."²²

The DHS estimates the total cost of REAL ID during the first 11 years of implementation will be $9.9 billion, of which about $3.9 billion is the cost to state governments, about $5.8 billion is the cost to individuals (in lost time and miscellaneous expenses necessary to obtain documentation), and about $171 million is the cost to the federal government. The cost to state governments is estimated to be approximately $8.30 for each driver's license or identification card issued²³ The great bulk of REAL ID costs will be borne by state residents and state governments, and only very limited funding will be available from the federal government²⁴

While the DHS has promoted REAL ID as a tool against identity theft, privacy groups have asserted that the REAL ID Act will increase the risk of identity theft by requiring creation of a massive personal data network without ensuring sufficient data and privacy protections and by failing to ensure protection of the data required to be loaded into the common machine-readable technology of each driver's license and identification card²⁵

The DHS's REAL ID final regulations generally require a U.S. citizen to present to the DMV an original or certified copy of his or her birth certificate to prove identity, date of birth, and lawful presence in the United States. (A valid unexpired U.S. passport also is acceptable, but a person generally must present a birth certificate to the federal Department of State to obtain a passport.) If the person's name has changed so that the name no longer matches the birth certificate name (for example, because of marriage, adoption, or court order), the person also must present official documents showing the name change²⁶ Each applicant also must "present at least two documents of the State's choice that include the individual's name and principal residence" (for example, a utility or telephone bill), but the regulations fail to address state concerns about the undue burden of "verify[ing], with the issuing agency, the issuance, validity, and completeness of" these documents²⁷ Regardless of an applicant's sincerely held religious beliefs, every driver's license and identification card must include a full-face digital photograph, without scarves, veils, or any other item that may obscure any facial feature²⁸ The DMV may establish a written defined-exceptions process, subject to DHS review and approval, for persons who, for reasons beyond their control, are unable to present the required documents to establish identity or date of birth²⁹

The DMV must verify the documents submitted by an applicant "with the issuer of the document" to ensure that each document is genuine and not altered and that the identity data in the document is valid. The DMV must use systems for electronic validation of document and identity data as they become available or use alternative methods approved by the DHS³⁰ The DHS envisions that, by May 11, 2011, a "hub" computer system can be created to allow state driver licensing agency computer systems to interface with other states' systems as well as the federal systems of the DHS, the Social Security Administration, and the Department of State. The DHS also seems to envision a vast birth certificate verification system interfacing with this hub system. In 2005, the DHS expected that all this information technology infrastructure would be complete by May 2008, yet virtually none of it exists or is functional today³¹ The cost and complexity of verification is the single biggest challenge for state motor vehicle administrators under the REAL ID Act.

The DHS's REAL ID final regulations require the back of each driver's license to contain, as the "common machine-readable technology," a two-dimensional bar code containing, among other information, the licensee's name, date of birth, and address³² (This is the same bar code that currently appears on Wisconsin driver's licenses.) Some privacy groups had feared that the DHS would require each driver's license and identification card to incorporate, as the common machine-readable technology, a radio frequency identification device (RFID) capable of transmitting personal data at a distance. The DHS opted against RFID technology in favor of the bar code and also opted against requiring the loading of advanced biometrics, such as fingerprints and iris images, into the machine-readable technology³³

The DHS's REAL ID final regulations contain general directives, rather than specific requirements, relating to privacy and give states broad authority to determine how best to carry out these directives. The regulations require states to "take measures to protect any personally identifiable information collected" as part of the REAL ID process (including protecting DMV databases), to comply with the federal Driver's Privacy Protection Ac³⁴ in releasing or using personal information, and to have a security plan that addresses security of personally identifiable information maintained by the DMV. The security plan must include a privacy policy and safeguards to protect the security, confidentiality, and integrity of personally identifiable information retained by the DMV. The regulations, however, do not specify security standards or privacy protections that states must implement³⁵ Some privacy groups have argued that identity thieves might target the data systems of the state driver licensing agency with the weakest security protections to gain access, through the hub system, to driver information in other states³⁶

Unless a state is operating under an extension granted by the DHS, any driver license or identification card not in compliance with REAL ID requirements is not acceptable as identification by federal agencies for "official purposes," beginning on May 11, 2008³⁷ In promulgating the final regulations, the DHS declined Congress's invitation to expand the definition of "official purpose," limiting the definition to those purposes specifically identified in the REAL ID Act³⁸

The Fate of REAL ID in Wisconsin

Implementing REAL ID in Wisconsin will require extensive and costly changes to the DMV's operating procedures. In May 2006, the DOT stated that estimated initial implementation costs, plus operating costs for the first year, could exceed $20 million. The DOT will need to install document scanners at all DMV service counters and implement extensive new document-verification procedures. The DOT will need to expand its data systems to retain these documents and make them available to other state driver licensing agencies. The DOT will need to reorganize its licensing process so that the photograph is taken at the beginning of the process, and the DMV must retain and store an applicant's photograph even if no driver's license or identification card is issued. Because of the change in verification procedures, the DMV will no longer be able to issue a driver's license over the counter on the day of application. The DOT will need to move to a system of delayed, central-office issuance and will need to issue some type of temporary driving authorization to be used in lieu of the driver's license while verification procedures are conducted and the driver's license is mailed. The REAL ID Act will require more and longer in-person visits to DMV service centers, requiring additional DMV personnel or longer processing times. The DMV cannot implement REAL ID without funding and sufficient lead time.

Wisconsin, and all other states, received from the DHS an initial REAL ID compliance extension, until Dec. 31, 2009³⁹ Because of this extension, federal agencies will continue until Dec. 31, 2009, to accept Wisconsin driver's licenses and identification cards that are not REAL ID-compliant as proof of identity. After this date, if Wisconsin is not in material compliance with the requirements in the REAL ID Act, federal agencies will not accept Wisconsin driver's licenses and identification cards as proof of identity. However, if Wisconsin is in material compliance with REAL ID by Jan. 1, 2010, Wisconsin may request an additional extension that would allow postponement of full compliance until May 11, 2011⁴⁰ If such an additional extension were granted, although the DMV would have to begin issuing fully compliant REAL ID driver's licenses and identification cards by May 11, 2011, federal agencies would not require REAL ID-compliant driver's licenses and identification cards as proof of identity until Dec. 1, 2014 (for persons under age 50 on that date) or Dec. 1, 2017 (for all other persons)⁴¹

If Wisconsin is not in material compliance with the requirements under the REAL ID Act by the end of 2009, persons holding Wisconsin driver's licenses and identification cards will not be able to use their driver's licenses and identification cards to board commercial aircraft or enter federal buildings beginning on Jan. 1, 2010. Will Wisconsin be in material compliance with REAL ID requirements by that date? Despite the provisions included in 2007 Wisconsin Act 20, it is still unclear whether the state will choose to opt out of REAL ID. In this year's Budget Adjustment Bill (Assembly Bill 1, Special Session March 2008), the Executive Budget Adjustment Bill proposed reducing REAL ID funding by $5 million and applying this amount toward the state's general fund deficit⁴² However, the Budget Adjustment Bill passed by the legislature and sent to the governor for signature (Conference Substitute Amendment 1 to Special Session AB-1) completely eliminated funding for REAL ID implementation and applied all REAL ID implementation funds toward reducing the general fund deficit⁴³ This action likely would have been the death of REAL ID in Wisconsin, because the DMV would have had no funding for REAL ID implementation until, at the earliest, late summer or fall of 2009, which would likely be too late to bring the state into material compliance with REAL ID by Jan. 1, 2010⁴⁴ However, the governor vetoed the legislature's elimination in the Budget Adjustment Bill of REAL ID funding for the 2007-09 fiscal biennium. Still, the governor's veto was not a restoration of funding for REAL ID. Instead, the veto merely put the ball back in the legislature's court. Under 2007 Wisconsin Act 20, the DOT was not directly appropriated funds to implement REAL ID; Act 20 allows DOT to request up to $20 million from the JCF for REAL ID implementation. The JCF can choose to provide all, some, or none of these requested funds.

Shortly before publication, the DOT requested from the JCF $19.9 million, itemized by expense type, as the amount needed for initial REAL ID implementation costs in the current (2008-09) fiscal year, but acknowledged that additional amounts also would be needed next fiscal biennium.  The JCF considered this request at a committee meeting on June 24, 2008.  The first motion made at the meeting, to provide no requested funding for the DOT and prevent implementation of REAL ID in Wisconsin, failed on a vote of 13-3.  On a vote of 14-2, the committee adopted a subsequent motion to provide the DOT with only $11.2 million of the $19.9 million requested.  It is presently unknown whether this amount will be sufficient to enable the DOT to become materially compliant with REAL ID by Dec. 31, 2009 or whether, if the DOT were to make a subsequent request for funding, the JCF would provide additional funds at a later date.  Accordingly, the fate of REAL ID in Wisconsin is still unknown, and in all likelihood hangs on the decision of the JCF in the coming months.

Conclusion

While various deadlines identified in the DHS's REAL ID final regulations seem far off, Wisconsin is at a REAL ID crossroads and must decide now whether to opt in or opt out of federal REAL ID compliance, with resulting consequences for Wisconsin attorneys who fly or enter federal buildings. If the JCF continues the course taken by the legislature in the Budget Adjustment Bill and chooses not to provide funding for the DMV to implement REAL ID this fiscal biennium, this is likely a de facto decision to opt out of REAL ID.

What would be the consequences to the state's residents on Jan. 1, 2010, if the state were not materially compliant with REAL ID standards? There is no indication that the state's residents would be denied access to commercial aircraft or federal buildings. Residents will be able to use a U.S. passport in lieu of a driver's license or identification card as an acceptable identification document. Many attorneys likely will choose to obtain and carry a passport when flying or entering federal courthouses. Other government-issued identification documents, such as military identification cards, also may be acceptable. It appears that people without an acceptable identification document still will be able to board commercial aircraft and enter federal buildings, but they might be subject to significant delays and potentially intrusive searches of their person and belongings⁴⁵

The media has suggested that states have a long time to decide whether or not to cross the REAL ID bridge. However, in Wisconsin, the decision whether or not to do so is imminent, and the consequences of the decision could be felt as early as Jan. 1, 2010.

Endnotes

Wisconsin Lawyer