Oklahoma Receives REAL ID Extension
By: Constitution Staff
Governor Mary Fallin along with legislative leaders announced on January 3 that Oklahoma has received an extension through June 6, 2017, to meet the requirements in the REAL ID Act. But the U.S. Department of Homeland Security (DHS) warned that failure by the state to enact legislation committing Oklahoma to all REAL ID requirements during the 2017 legislative session could result in the denial of future extensions.
Last October, DHS denied the state’s previous extension request. Without the extension, starting on January 30, 2017, anyone without a compliant driver’s license would not be allowed to enter a federal government buildings, facilities, and military bases. And, beginning on January 22, 2018, a non-compliant driver’s license would not be accepted to board a commercial aircraft within the United States. Other forms of identification, such as a passport would have to be used instead. It is estimated that only about 30% of Oklahomans have a passport.
“Although this is great news for Oklahomans, this is only a temporary fix,” said Fallin. “I will continue to work with legislators, the state Department of Public Safety, Oklahoma’s congressional delegation and the U.S. Department of Homeland Security to ensure a permanent solution is passed into law before this extension expires in June.”
Identical letters sent to Fallin and Senate President Pro Tempore Mike Schulz and House Speaker Charles McCall state that DHS “recognizes Oklahoma’s efforts in enhancing the security of its driver’s licenses and identification cards” and granted the extension “indicating the plans of your administration and state legislative leaders to move forward on a legislative solution and their expectation that a vote will occur in the 2017 legislative session. This extension is intended to provide Oklahoma with the opportunity to take any necessary steps needed to meet all the requirements of the REAL ID Act and implementing regulation.” Fallin, Schulz and McCall wrote a letter in December to DHS requesting them to reconsider the denial of the previous extension request.
For the second year in a row, Sen. John Sparks (D-Norman) and Sen. Kay Floyd (D-Oklahoma City) filed legislation to make Oklahoma compliant with the federal mandate. “This bill will resolve this looming and very real issue which threatens to disrupt both our military’s mission as well as daily life at Oklahoma’s military installations. In addition, it will guarantee Oklahomans are not inconvenienced or at a disadvantage when it comes to dealing with federal agencies, accessing military installations, or, in 2018, boarding a commercial aircraft,” said Sparks. “We hope that the fact that this bill is designated as Senate Bill 1 of the upcoming session will communicate the urgency and gravity of the situation we are facing by remaining non-compliant with the Real ID Act,” said Floyd.
Two Republican legislators are also running a bill. State Representatives Leslie Osborn (R-Mustang) and Jon Echols (R-Oklahoma City) said the state is out of time and out of options.“Last year, the state Senate and state House passed bills out of their respective chambers that would have brought Oklahoma into compliance with the REAL ID Act, but an agreement on language could not be reached,” said Rep. Echols. “Our bill in the House would have not only allowed the state to comply with the federal law, but it also would have implemented real safeguards to protect individuals who reasonably believe that this is a prime example of federal overreach.” Rep. Echols added: “Unfortunately, the federal government is not giving us much of a choice, despite valid concerns that this law is poorly drafted and will have unintended consequences for individual privacy.” According to Rep. Echols, those Oklahomans wishing to opt for a traditional ID would not be able to board an airplane using that form of ID. But they could use an alternative form of ID, such as a passport, to fly on commercial planes.
Rep. Osborn noted that they are working with all players involved with the issue. “We are working closely with the Oklahoma Department of Public Safety and the federal Department of Homeland Security to draft language that will comply with the federal law while also protecting Oklahomans. We are confident that early next session we will be able to pass legislation that brings our state into compliance.”
Currently, 25 states and Washington D.C. have been deemed by DHS to be fully compliant with the federal requirements. Seven states are “noncompliant” and have not been granted additional time extensions. Those states are: Kentucky, Maine, Minnesota, Missouri, Montana, Pennsylvania, and Washington. State officials are concerned that information could be breached or could be used to track law-abiding citizens. The remaining 18 states, including Oklahoma, along with several U.S. territories have time extensions in effect.
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’s 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.
To implement the law, 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 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 ODPS proceeded to make Oklahoma driver’s 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 ODPS on March 18, 2010. The RFI was issued when they were seeking a new information technology system for its driver licensing stations. The RFI 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 the state.
DHS is trying to place pressure on the states that have not reached compliance. As Reason magazine of January 10, 2017 explained, “This year, after years of shifting deadlines on the federal government's effort to create a backdoor national ID card, the TSA began posting signs at airports warning travelers that, as of January 22, 2018, they'll need identification documents compliant with the Real ID Act, passed in 2005, to be allowed to fly.”
Reason said the “scary signs are meant to apply pressure to those states balking at making their drivers' licenses compliant with federal requirements.” Technically, the REAL ID Act does not force the states to comply, nor penalize states by withholding federal funds. But, by requiring compliant IDs in order to enter federal facilities or board commercial aircraft, the law could place public pressure on states to comply. Meanwhile, some hold out hope that the Trump Administration will be more willing to compromise with non-compliant states than the previous administration.
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