Today I participated in a REAL ID v. PASS ID event at the Heritage Foundation. For the Heritage event, I created a Powerpoint presentation covering the following topics:
- the key flaws of PASS ID including the elimination of identity verification;
- the one benefit of PASS ID in enabling Enhanced Driver Licenses to be deemed compliant (which could simply be an add-on to REAL ID); and
- the importance of birth record digitization and interstate connectivity mandated by REAL ID but eliminated by PASS ID, resulting in a tremendous loss for every state's anti-fraud measures.
In general, the powerpoint makes clear:
- PASS ID is unnecessary; REAL ID is a better, stronger law that at least 16 states openly support while at least 10 others are quietly working towards compliance.
- PASS ID eliminates key elements of security called on by the American Association of Motor Vehicle Administrator's Security Framework of 2004 and does not live up to 9/11 Commission recommendations.
- Eliminates birth record digitization and interstate connectivity-- perhaps the single most negative aspect of PASS ID.
A backgrounder I did with Jena McNeil Baker of Heritage on this issue can be found at: http://www.heritage.org/Research/homelandsecurity/bg2288.cfm. This piece will be submitted for the record tomorrow at the Senate Homeland Security hearing on the issue.
PASS ID Weakens Drivers License Security, Opponents Argue
By Mickey McCarter
Homeland Security Today, July 15, 2009
PASS ID Act would not save states significant time and money and it would not meet recommendations by 9/11 Commmission, critics say
Opponents of the PASS ID Act (S. 1261) faulted the legislation Tuesday for provisions that would repeal requirements for electronic verification of birth certifications and loosen physical security standards for motor vehicle departments, thereby weakening secure driver's license laws to the point where they do not comply with a key recommendation of the 9/11 Commission.
The arguments came a day before Homeland Security Secretary Janet Napolitano was slated to provide a favorable assessment of the PASS ID Act before the Senate Homeland Security and Governmental Affairs Committee Wednesday.
Janice Kephart, director of National Security Policy at the Center for Immigration Studies, criticized the PASS ID Act for ignoring the 9/11 Commission's recommendation to set federal standards for the issuance of secure drivers licenses and the verification of birth records thus repealing a key provision of the REAL ID Act (Public Law 109-13).
The 9/11 Commission made the recommendation in 2004, the same year that the American Association of Motor Vehicle Administrators (AAMVA) issued a security framework that called for identity verification and document authentication on information such as an applicant's date of birth, passport information, and legal status when applying for a driver's license, Kephart said.
The REAL ID Act builds on those guides to set a deadline for states to verify the identity of applications seeking drivers' licenses, noted Kephart, formerly a staffer to the 9/11 Commission.
Under REAL ID, states are required to digitize their birth records and to provide network connectivity to their vital records so that any other state may check them. PASS ID, by contrast, would change the law so that states need only validate the identity of applicants by checking their paper documents, Kephart explained at a forum sponsored by The Heritage Foundation in Washington, DC.
REAL ID requires a secure driver's license to board a commercial aircraft, to enter a federal building, or to carry out some other official purpose, while PASS ID would eliminate that requirement, Kephart said. REAL ID requires states to submit security plans to the Department of Homeland Security (DHS) to meet security and privacy standards, but PASS ID would eliminate that requirement as well.
In addition, REAL ID requires the creation of a network of state databases to enable states to verify that applicants do not hold multiple licenses in multiple states under the principle of "one driver, one license," but PASS ID would repeal directives to set up that network, Kephart added.
But Kephart's main complaint was over the PASS ID's proposed elimination of birth record digitization and verification, which would negate any possibility of PASS ID adhering to the 9/11 Commission recommendation for secure drivers' licenses, she said.
Indeed, states are on track for digitizing their birth records, Kephart noted. Three years ago, only three states had digitized their birth records back to 1935, as required by the REAL ID Act. But as of today, 15 states and New York City have digitized their records, she added. Five more will have done so by the end of 2009.
All states would be compliant with the birth record digitization requirement by the last REAL ID deadline of May 2011, according to projections by the National Association for Public Health Statistics and Information Systems (NAPHSIS), the nonprofit overseeing the project.
The costs of the digitization and verification projects are also very affordable, Kephart asserted. The total cost of connecting all states and territories through a shared network is $3.8 million, which already has been provided. The cost of digitizing and cleaning up e-records in all states is less than $102.5 million (perhaps as low as $75 million), by NAPHSIS estimates based upon a survey of states three years ago.
Kephart did reserve praise for a provision of PASS ID that would allow the secretary of Homeland Security to certify enhanced drivers' licenses as compliant with national secure identification standards. Many border states are adopting these enhanced drivers' licenses to provide their residents with an identification that meets the requirements of the Western Hemisphere Travel Initiative, which requires a tamperproof identification for US citizens traveling over the border to Canada or Mexico.
The certification of enhanced drivers licenses as secure identification would make a worthy amendment to the REAL ID Act, Kephart acknowledged.
Cheaper and Faster
Others argued that the PASS ID Act was deceptive when it promised to deliver secure identification standards there were less expensive and faster to implement for states.
The "cleverly written language" of PASS ID creates the appearance of security while actually gutting requirements for identity security, submitted Brian Zimmer, president of the nonprofit Coalition for a Secure Driver's License, a think tank helping states with issues of secure identification.
At present, 27 states are at some level of compliance with REAL ID, Zimmer stated. Those states are tracking not just the 18 interim benchmarks due this fall but the requirements for the entire act.
The REAL ID Act provides the secretary of Homeland Security with broad discretion to create exceptions to the existing regulations, Zimmer argued, permitting Napolitano to work with states to comply with the regulations rather than seeking legislative alternatives.
Instead, PASS ID would ask states to start all over, requiring state motor vehicle departments to explain the differences between PASS ID and REAL ID requirements. Even states that are meeting the 18 interim benchmarks under REAL ID this year would not know for sure if they are completely in compliance with new PASS ID rules until they took time to study them.
PASS ID would require unsatisfactory standards for counterfeit resistance, Zimmer continued, while REAL ID sets clear requirements. Secure identifications are more difficult to counterfeit, so interest in counterfeiting them would go up, he said.
"As drivers licenses become more secure, they become more valuable," Zimmer remarked.
"Contrary to the administration's point of view, it is better to have some states working toward a good secure standard than to have all states operating at a meaningless, low standard," he added.
Zimmer also denounced state estimates for the cost of complying with REAL ID, which he said have been exaggerated by the National Governors Association (NGA), which helped draft the PASS ID Act.
The state of Virginia has awarded a contract to bring the state into compliance with the REAL ID Act in 2010, Zimmer said. The bill for those services will total less than $40 million, he declared.
The Coalition for a Secure Driver's License estimates the national cost of complying with REAL ID to be about $1.5 billion over a 5-year period. About 30 percent of those costs belong to the state of California alone, which is the biggest US state but has one of the lowest levels of driver's license security at present.
Stewart Baker, former assistant secretary of Policy for Homeland Security, ridiculed the PASS ID Act's requirement that DHS would finalize regulations for the program within 9 months after enactment of the act.
An examination of the existing regulations and statutory requirements for issuing regulations reveals a minimum of a 10-month finalization period, assuming that DHS itself can react with lightning speed, said Baker, now a partner at the law firm Steptoe and Johnson LLP.
An initial review by the US Office of Management and Budget (OMB) would require 90 days; DHS would then put a proposed rule out for comment for 60 days; DHS would address comments and the proposal would return to OMB for 90 more days; Congress would then review the regulation for 60 days.
"If DHS could do this in 24 hours twice, we still wouldn't make the nine-month deadline," Baker quipped. "Realistically, they cannot do that in less than three years."
"Many of the arguing points in favor of PASS ID are that it is faster, but that's not true," he commented.