By Constitution Staff

The U.S. Department of Homeland Security (DHS)announced on January 8th that states which have not yet complied with the federal Real ID Act mandating certain driver license changes will have another two years to do so. Last fall, the DHS granted Oklahoma an extension through October 10, 2016, but the extension announced in January affects all states as territories. DHS Secretary Jeh Johnson said in the press release announcing the extension: "Until January 22, 2018, residents of all states will still be able to use a state-issued driver's license or identification card for domestic air travel." After that date, passengers with a licenses issued by a state that is still not compliant with the REAL ID Act, and if not granted a further extension, will need to show an alternative form of acceptable identification for domestic air travel to board a commercial airliner. DHS does not intend to offer any extensions beyond October 1, 2020.

Currently, 23 states and territories are fully compliant with the federal requirements and 24, including Oklahoma, have made enough progress to earn additional time to comply. Three are being reviewed for the same extension, but six are classified as "noncompliant" -- including Illinois, Minnesota, Missouri, New Mexico and Washington. Those states oppose requirements in the law that include storing images of documents that driver license applicants present as proof of their identity, such as birth certificates. State officials say that information could be breached and could be used to track law-abiding U.S. citizens.

Without the extension, Oklahomans with an Oklahoma driver license or other state-issued identification (ID) card might need a second form of identification, such as a passport, to board a commercial airliner. And, the Oklahoma IDs might no longer allow entry into federal buildings where an ID is required. There are already some places in which the Oklahoma IDs are not valid for entrance. Since April of 2014, you cannot use the state IDs to access the DHS headquarters in Washington D.C., and since July 2014 they were no longer valid for certain restricted areas in federal facilities and nuclear power plants.

Prior to the new extension, there were calls for Oklahoma to become compliant with the federal law. In November, a legislative study committee held a public meeting on the subject and legislation requiring compliance has been filed in the Oklahoma Legislature. But, the additional time extension removes the necessity for Oklahoma to consider changing the current state law in the 2016 legislative session.

State Sen. John Sparks (D-Norman), and Sen. Kay Floyd (D-Oklahoma City), filed Senate Bill 865 last October to require Oklahoma compliance with the federal Real ID Act. "This bill will ensure that Oklahoma's driver licenses and identification cards meet the requirements set forth in the Act. This will guarantee Oklahomans are not inconvenienced or at a disadvantage when it comes to dealing with federal agencies, accessing military installations, or, in 2016, boarding a commercial aircraft," said Sparks ."This is a serious issue that we need to resolve as quickly and efficiently as possible," Floyd said. "By filing this legislation, we can at least ensure that this solution will be on the table when session starts in February, 2016."

The Real ID Act was signed into law by President George W. Bush in May of 2005. The legislation was passed by Congress to address security issues identified by the 9/11 Commission associated with obtaining driver licenses or government-issued identification. The 9/11 hijackers had over 30 forms of identification and 364 aliases among the 19 men. Under the REAL ID Act states were required to reissue more than 240 million driver licenses, starting in 2010. Currently, Oklahoma is not compliant with the law due to state legislation passed in 2007.

The DHS issued nearly 300 pages of guidelines for state-issued driver licenses and identification cards, as well as standards for license-issuing facilities. The guidelines require physical features on the licenses, including machine-readable data. Steps are required to verify the identity of driver license applicants, including checks of birth certificates, Social Security numbers and citizenship status. Agencies that issue the IDs must capture digital images of driver identification documents, photograph each person applying for a license in a high-resolution digital format, and store the images electronically in a transferable format that can be shared with other entities. Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state driver licenses or ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses).

Civil libertarians say the REAL ID Act is a further intrusion of the federal government into citizens' lives, and raise the specter of a nationwide database of personal information. They are particularly concerned about the provision requiring the state IDs to include high-resolution photos and fingerprints for potential biometric identification.

In 2007, Senate Bill 464 was unanimously passed by the Oklahoma Legislature and was signed by Gov. Brad Henry. The legislation says "the state of Oklahoma shall not participate in the implementation of the Real ID Act. The Department of Public Safety is hereby directed not to implement the provisions of the Real ID Act..." The bill further calls for the retrieval of any biometric data previously collected, obtained, or retained and deleting that data from any and all databases that had anything to do with REAL ID. That sounds pretty definitive, and conservatives celebrated a victory.

But, apparently the Department of Public Safety (DPS) proceeded to make Oklahoma driver licenses and IDs compliant with the standards issued under the REAL ID Act. This was explained to potential vendors who received a Request for Information (RFI) application issued by DPS on March 18, 2010. The RFI was issued when they were seeking a new information technology system for its driver's licensing stations. DPS explained: "Though DPS is prohibited from implementing and complying with the federal REAL ID Act of 2005, Public law no.109-13, DPS is permitted to use the security and biometric features that may also be set forth in the prohibited federal act, so long as the state is not attempting to comply with the federal act, as is the case in issuing an Oklahoma DDL solely under state authority." In other words, they were implementing the REAL ID requirements, but that is okay since they are not sharing the biometric data outside Oklahoma.

Oklahoma began issuing a new form of driver license in 2012 which meets most of the requirements in the REAL ID Act. This included placing machine-readable data on the back of the cards and shifting the placement of the photo. While there are still compliance issues such as the training of employees issuing licenses to detect fraudulent documents, the critical remaining obstacle is Oklahoma's unwillingness to share the data with others outside of the state.

Technically, the REAL ID Act does not force the states to comply, nor penalize states by withholding federal funds. But, by requiring compliant IDs to board commercial aircraft, the law could place public pressure on states to comply.