The Utah Legislature said NO to REAL ID—So Why is the State Now Fully Compliant?

Starting this year, the U.S. Department of Homeland Security is threatening that the TSA will begin rejecting driver’s licenses from states that refused to comply with the federal REAL ID guidelines. This now sets the stage for a significant battle over federal power and state’s rights—a battle Utah quietly bowed out of. While this is likely just more posturing by DHS to enforce deadlines it has constantly been extending in order to save face, it also serves as a not-so-gentle reminder of the expansion of federal power in the name of security.

In the wake of 9/11, Congress passed the REAL ID Act of 2005. The Act created a list of security mandates for state-issued driver’s licenses, effectively creating a nationally standardized ID card. Because Congress has no constitutional authority to legislate in this area, the implementation was predicated on a threat from the federal government that any non-compliant driver’s license would be rejected as an official form of identification for any federal purpose—including admittance to secure government facilities like military bases and TSA screenings at the airport. The statutory deadline for state compliance was originally May 2008. However, by that time not a single state was in compliance and nearly twenty states had passed laws or resolutions rejecting REAL ID. Utah joined the list with a resolution in 2009. Now, eight years later, the federal government is finally saying it will clamp down as it prepares to act on its threats.

In 2010, the legislature instructed the state to refuse to comply with REAL ID. However, by that time, it was too late for most of the substantive requirements of the law. In 2008, Senate Bill 81 required proof of citizenship for the creation of any state-issued government identification. This bill was designed to prevent immigrants without legal status from gaining government identification cards. The next year, the legislature passed Senate Bill 40 which gave driving privilege cards to Utahns without legal immigration status instead of Utah driver’s licenses which are reserved for those with citizenship or legal status. This required proving legal immigration status to the driver’s license office before being approved for a Utah license. Together, these two measures undermined Utah’s effort to opt-out of REAL ID, as the identity verification requirements under these bills pushed Utah into material compliance with many of the provisions of REAL ID.

However, the greatest concern of REAL ID is how the increased documentation requirements may also lead to the collection, retention, and sharing of data across state lines in a way that undermines the privacy rights of Utahns. For example, REAL ID mandates that the driver’s license office must now take a photo of each applicant for a license or driving privilege card regardless of whether a license is actually issued. Those facial recognition quality photos are also retained in a state database for ten years. States also need to share their photo and informational databases with other states in order for states to be able to comply with the requirement to check for fraud or for duplicate driver’s licenses before issuing a REAL ID.

Based on these new requirements, some states have now begun sharing their driver’s license and identification information across both state and international lines (“State To State” or “S2S“) in a new national partnership arrangement called “Driver’s License/Identification Verification System” or “DIVS.” DIVS is being built by a non-profit corporation, first set up by the lead state of Mississippi, called Clerus Solutions which envisions a national system of data sharing where states can use their services to verify the information required to issue REAL ID compliant licenses. The system would facilitate birth certificate verification, Social Security number verification, immigration status verification, U.S. passport verification and State-to-State (S2S) driver’s license verification.

The DIVS project includes participation from DHS (including grant funding), various partner states, and the American Association of Motor Vehicle Administrators (AAMVA). It is interesting to note that AAMVA, which operates like a trade association for government bureaucracies, and in turn is funded by the tax dollars from the states with member agencies, is facilitating the migration to, and use of, facial recognition technology for state driver’s license databases—a goal that directly benefits the “national security” efforts of DHS and the REAL ID program generally. Yet, AAMVA and DIVS are both “state-based” efforts and are not explicitly federal programs. This is similar to how “Common Core” was a “national consortium of states” and not a specific federal program.

Additionally, the FBI has agreements with states to tap into these driver’s license photo databases as part of a new federal pilot program to build a national biometric identification database called the “Next Generation Identification System” (NGI). This new national database will build on, and ultimately replace, the existing national fingerprint database (the “Integrated Automated Fingerprint Identification System”). Historically, the FBI would only access the fingerprints and photos of individuals booked at local jails. More recently, agreements permit the FBI to send to photos to state agents to search against the in-state driver’s license database. Now, it may not be soon before the FBI incorporates these databases from participating states into this next generation system.

While REAL ID defies the 10th Amendment and is an inappropriate exercise of congressional authority, it is only the tip of the iceberg on what has become a growing national surveillance machine. States are already sharing data across state lines and with DHS through “fusion” centers. In Utah, this is called the State-wide Information and Analysis Center, or SIAC. There is also the Regional Information and Sharing System (RISS) where states partner with neighboring states in the region. Utah participates in the Rocky Mountain Information Network (RMIN)—the RISS for our region. There was also the “MATRIX” program (Multi-state Anti-terrorism Information Exchange), which was going to be another “state consortium” which proposed to build a prototype database that would combine government-collected data with private consumer data in order to facilitate data-mining by state law enforcement agencies. There was evidence that MATRIX was also going to include FBI and DHS participation. It seems at every turn, government seeks more and more information about the public no matter the burdens on individual privacy.

Despite opposition from the Utah legislature, hoping to achieve non-compliance with these national identification mandates, Utah has been declared compliant with REAL ID. We were curious just how it was that Utah went from loudly opposing REAL ID to quietly implementing it. We did some digging and this is what we found:

Through a government records request, and after waiting ten months, Libertas Institute obtained federal documents relating to Utah’s compliance with REAL ID and have incorporated them into the following timeline. Page numbers below refer to this packet of documents.

Timeline of REAL ID implementation in Utah:

• Feb. 2005: REAL ID Act passed into federal law
• Mar. 2007: House Resolution 2 passes in Utah urging Congress to repeal the REAL ID Act.
• Mar. 2008: Senate Bill 81 passes in Utah requiring proof of citizenship prior to the creation of government forms of identification.
• Mar. 2009: House Resolution 4 passes in Utah which expresses opposition to the creation of a national ID card.
• Mar. 2009: Senate Bill 40 passes in Utah which separated driving privilege cards for Utah non-citizens from Utah driver’s licenses for US citizens. This required proving citizenship to the driver’s license office before being approved for a Utah license.
• Sep. 2009: DHS sends a letter to Governor Herbert informing Utah of the Dec. 31st deadline to request an extension for compliance with REAL ID to 2011. (pg. 1-2)
• Feb. 2009: Legislative briefing given to legislators by OLRGC of Utah’s driver license and REAL ID.
• Mar. 2010: DHS sends a letter to Governor Herbert acknowledging Utah’s self-certification of its REAL ID compliance and reminding the state of the May 2011 compliance deadline. (pg. 5)
• Mar. 2010: House Bill 234 passes and is signed by the Governor. Bill nullifies REAL ID in Utah by creating a statutory prohibition on the implementation of REAL ID by the Driver’s License Division except for those provisions already mandated by Utah Code.
• May 2010: A legislative performance audit of the Driver’s License Division (DLD) finds the division’s compliance efforts with state law related to verifying identity and legal immigration status (SB40) as substantively putting Utah in compliance with REAL ID. However, it is clear that the bulk of the audit work actually took place prior to the prohibition on REAL ID implementation (HB234). After the passage of HB234, the position of the DLD was that it could still comply with all the federally-necessary REAL ID requirements based on the legal status verification requirements under SB81 and SB40.
• Aug. 2012: DHS issues a progress report on the compliance efforts of states with the provisions of REAL ID. As of Feb. 2012, Utah was deemed materially compliant with 16 of the 18 required benchmarks. The last two benchmarks were either not required in reports or were superseded by an indefinite stay by DHS. During 2008-2011 Utah received four federal grants to assist state efforts toward REAL ID implementation and compliance.
• Sep. 2012: Utah Department of Public Safety (DPS) sends a letter to DHS outlining the state’s progress in implementing REAL ID and its intention to complete full compliance. (pg. 34-41)
• Dec. 2012: DHS responds to Utah DPS asking for more information in order to make a final determination as to Utah’s compliance. (pg. 7-9)
• Jan. 2013: Utah DPS responds with a letter declaring Utah’s driver’s license program is consistent with the requirements of REAL ID and includes more material outlining Utah’s driver’s license program. (pg. 10-11)
• Feb. 2013: DHS sends a letter to Utah certifying it as compliant with REAL ID. (pg. 12-13)