by State Rep. Paul Opsommer (MI-93)

Regardless of whether you felt REAL ID represented critical improvements in security standards or a federal government ID system outsourced upon the states, Secretary Napolitano recently affirmed that, at least by name, that Title II of the Act was dead:

“By Dec 31st, no state will have issued a REAL ID compliant identification document.  We cannot have national standards for driver’s licenses when the states themselves refuse to participate.”

But, just how dead is it?  As politicians, we see firsthand how often things are simply retooled, renamed and resubmitted.  And in the case of REAL ID, which has its roots in failed attempts to implement AAMVA’s Driver’s License Agreement (DLA), it would not be the first time the concept behind a “one license, one record” national ID card was being repackaged.

The DLA started as a dismal failure with few states coming on board because it allowed for foreign data sharing and would have left AAMVA in charge of the biometric and technological standards of what had previously been a state’s sovereign document.

Because AAMVA is a 501c3 with foreign voting members, the DLA essentially left many important driver licensing decisions in the hands of a non-governmental organization that has virtually no state oversight.  With few initial takers, the DLA was inserted into early versions of REAL ID in an attempt to resurrect it.

Now that it appears REAL ID will be replaced with PASS ID, it will be interesting to see how many vestiges of REAL ID and the DLA will remain. Although initially less prescriptive, PASS ID retains many of the core aspects of REAL ID and still puts DHS in charge of current and future rulemaking processes.

The bill is largely silent on RFID and foreign data sharing, and rather than including language that would formally prohibit such practices, PASS ID neither specifically calls for nor prohibits them. This leaves many to wonder if such controversial issues are simply being kicked down the road to future rule making processes that would take place after the states are already part of the system.

Once a state is PASS ID compliant, in practice it would be very hard for them to drop out even if the rules are subsequently changed.

PASS ID still contains provisions that States be able to verify licenses with each other, although exactly how is not defined.  A pilot verification program is being created, and while PASS ID makes it voluntary for states to participate in the pilot, the law makes it very clear that such a process ultimately can be done only in a manner that is approved by DHS.

Whether or not DHS will give its approval to any process other than the one that comes out of the pilot program is unknown, but I have doubts based on my personal experience with the DHS “Enhanced Drivers License” program in Michigan.

In that case, the State of Washington did the pilot, and the project called for the use of “facilitative technology”.  In practice this ended up meaning not just the use of RFID, but a very specific kind of RFID.  DHS said we could use another technology if they approved it, but it quickly became clear that the only type they would greenlight was the kind used in Washington.

Not using RFID was completely off the table. The flexibility we were initially promised ended up only being the flexibility to either participate or not participate.

Likewise, if the new “voluntary” verification pilot project is treated this same way, in practical terms it will still be a mandate for a state that wishes to participate in PASS ID. Going full circle, many feel this pilot will ultimately be similar to the AAMVA Drivers License Agreement.

The pilot therefore needs to run its course before states can determine what exactly they would be agreeing to.  I also have concerns that participation in PASS ID might be linked to federal road dollars, as we continue to see legislation being introduced that links expanded car seat use, ignition interlock devices and texting bans as conditions for receiving these taxdollars. Federal road dollars have quickly gone from being a carrot to a stick.

The deadlines for REAL ID are quickly approaching, and it will be interesting to see if DHS offers automatic waivers as they have in the past or if they will attempt to use the deadlines to push PASS ID quickly through the legislative process, even before the pilot project is completed.

This will ultimately be a good indicator for the states on whether DHS wants to truly be a partner this time around or if PASS ID is simply another iteration in attempting to pass some version of the AAMVA DLA.

State Rep. Paul Opsommer [send him email] was elected to a second term in the Michigan House of Representatives in November 2008.  He represents the residents of Clinton and Gratiot counties.

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