BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 60
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: Cedillo
VERSION: 1/20/09
Analysis by: Jennifer Gress FISCAL: yes
Hearing date: April 14, 2009
SUBJECT:
Federal Real ID Act: driver's license eligibility
DESCRIPTION:
This bill requires the State of California to comply with the
federal Real ID Act of 2005, a measure that establishes
standards for the issuance of drivers' licenses and
identification cards that may be used by federal agencies for
official purposes. In complying with the Real ID Act, this bill
requires the Department of Motor Vehicles (DMV) to issue two
types of drivers' licenses and identification cards: cards that
may be used for official federal purposes, and for persons who
are not able to demonstrate legal presence status, cards that do
not.
ANALYSIS AND BACKGROUND:
Existing State Law
Current law provides that DMV shall "require every applicant for
an original driver's license or identification card to submit
satisfactory proof that the applicant's presence in the United
States is authorized under federal law." DMV may not issue an
original driver's license to persons who cannot submit
satisfactory proof of legal presence. In addition, existing law
provides that "the department shall require every application
for a driver's license to contain the applicant's social
security number and any other number or identifier determined to
be appropriate by DMV." The California Code of Regulations
specifies approximately 27 documents that may be submitted as
satisfactory proof of legal presence status. It a misdemeanor
for any person to assist knowingly in obtaining a driver's
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license or identification card for any person whose presence in
the United States is not authorized under federal law.
The legal presence provision was enacted by the Legislature (SB
976 (Alquist), Chapter 820, Statutes of 1993) in order to make
the driver's license a more secure form of identification with
the intent of preventing undocumented persons from being
licensed or obtaining DMV identification cards. The supporters
of SB 976 asserted that the driver's license was a "breeder
document" that was used to acquire other documentation and
served as the most widely accepted form of personal
identification used to qualify for both private and public
sector services and programs.
In response to the enactment of Senate Bill 976, DMV authorized
a variety of birth verification/immigration status documents
that applicants for an original driver's license or
identification card can submit for the purpose of documenting
legal presence. When an applicant submits a specified document,
such as a birth certificate, it is reviewed for acceptability
and authenticity by a DMV field office employee. For
verification of Bureau of Citizenship & Immigration Services
(formerly the "Immigration and Naturalization Service")
documents submitted by applicants, DMV has direct computer
access to the Systematic Alien Verification for Entitlements
(SAVE), an electronic intergovernmental-sharing system
maintained by the U.S. Department of Homeland Security (DHS) to
ensure that only legally entitled aliens receive government
benefits and services.
The Federal Real ID Act
The federal Real ID Act of 2005 emerged as one response to the
terrorist attacks that occurred on September 11, 2001. A number
of the 9/11 hijackers had acquired state-issued drivers'
licenses, primarily from the State of Florida and the
Commonwealth of Virginia, which were used for identification
purposes to board and later hijack the ill-fated airliners. As
a result of these attacks, the federal government established
the National Commission on Terrorist Attacks upon the United
States (the 9/11 Commission). In its final report, the 9/11
Commission concluded that the "abuse of the immigration system
and a lack of interior enforcement were unwittingly working
together to support terrorist activities."
Congress enacted H.R. 1268 - the "Real ID Act of 2005" to
improve the security of driver's licenses and identification
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cards issued by the states. The Real ID Act includes certain
minimum document and license issuance requirements, as described
below. The federal act allows for three types of driver's
licenses. For driver's license applicants meeting all of the
requirements, including demonstrating lawful presence, the state
shall issue a driver's license that may be used by federal
agencies for official purposes. For those applicants who have
an application for legal status pending, has an approved
deferred action status, or has temporary protected status, a
state shall issue a temporary driver's license or identification
card that may be used by federal agencies for official purposes.
Finally, for those applicants who are unable to demonstrate
lawful presence, a state may issue a driver's license or
identification card, providing the license meets certain
appearance requirements and clearly states that it cannot be
used for any official purpose.
While not specifically mandating the provisions of Real ID on
states, the act provides that if a state fails to implement its
provisions, a federal agency would not be authorized to accept a
license issued by that state for any official purpose, including
to board an airplane or enter a federal building or facility.
At the time Real ID was passed, it was expected that all the
states would adopt these provisions. The federal act originally
required implementation to begin in May 2008, however, the final
regulations delay full implementation until May 11, 2011, at
which time states must begin issuing Real ID-compliant cards.
The pertinent provisions included in the Real ID Act of 2005 are
outlined below.
Provisions of Real ID
Minimum License Document Requirements:
Applicant's full legal name and gender.
Applicant's date of birth.
Digital photograph of the applicant.
License number and applicant's signature.
Applicant's residence address.
Security features designed to prevent tampering,
counterfeiting, or duplication.
Common machine readable technology.
Minimum Issuance Standards for Applicants:
Provide a photo identity document.
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Provide date of birth documentation.
Provide proof of social security number (or
verification that the applicant is not eligible).
Provide residence documentation.
Evidence of Lawful Status: A state "shall require, before
issuing a driver's license or identification card to a person,
valid documentary evidence that the person":
Is a citizen or national of the United States.
Is an alien lawfully admitted for permanent or
temporary residency.
Has conditional permanent resident status.
Has an approved application for asylum or has
refugee status.
Has a valid, unexpired nonimmigrant visa or
nonimmigrant visa status.
Has a pending application for asylum.
Has a pending or approved application for temporary
protected status.
Has approved deferred action status.
Has a pending application for adjustment of status.
Verification of Documents:
A state "shall verify, with the issuing agency, the
issuance, validity, and completeness of each document
required to be presented by the applicant."
A state shall not accept any foreign document, other
than a passport.
A state shall use the Systematic Alien Verification
for Entitlements to verify legal presence.
Other Requirements:
Employ technology to capture digital images of
identity source documents.
Retain paper documents for 7 years or images of
source documents for 10 years.
Subject applicants to mandatory facial image
capture.
Establish an effective procedure to confirm or
verify a renewing applicant's information.
Confirm with the Social Security Administration a
social security number.
Limit term of a license or identification card to 8
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years.
Confirm that an out-of-state license applicant is
terminating or has terminated the license from that
state.
Licenses for Undocumented Persons: A state is permitted to
issue a driver's license or identification card to a person
without legal presence status providing that it meets the
following requirements:
The license or identification card "clearly states
on its face that it may not be accepted by any Federal
agency for federal identification or any other official
purpose."
The license or identification card "uses a unique
design or color indicator to alert federal agencies and
other law enforcement personnel that it may not be
accepted for any such purpose."
Federal Regulations to Implement the Real ID Act
The final regulations, published in the Federal Register on
January 29, 2008, were very different from the act itself and
allowed states to apply for up to two extensions in order to
phase in the implementation of the act and the issuance of
compliant cards. The final rule established two levels of
compliance and timeframes for each. The first level is referred
to as material compliance, which states must achieve by January
1, 2010, and the second level is full compliance, which must be
achieved by May 11, 2011. DMV has developed a table that
outlines each requirement for material and full compliance,
which is included in Appendix A of this analysis.
According to DMV, California's current driver's license and
identification card (DL/ID) system already incorporates
approximately 90 percent of the requirements necessary to be
deemed materially compliant with the Real ID Act for original
applicants. There are no states that can claim to be in full
compliance with the Real ID Act because the national databases
necessary to complete the required verification procedures do
not currently exist. Therefore, while California has made no
decision to comply with the Real ID Act, DMV believes it is well
positioned to meet the material compliance requirements
contained in the regulations.
In addition to phasing in the state's compliance, the final
regulations provided more time for states to issue compliant
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driver's licenses and identification cards (DL/IDs). States
have until December 1, 2014 to issue new cards to people born
after December 1, 1964 and until December 1, 2017 to anyone born
on or before December 1, 1964. The following section of this
report highlights key dates for implementing the Act.
Compliance Timelines
05/11/2008 By May 11, 2008, the federal government cannot accept
state-issued driver license or identification cards
for official purposes from states that have not been
determined to be in compliance unless the state has
requested an extension by mid-March. California has
requested and received an extension to December 31,
2009.
12/31/2009 The initial extension will terminate unless the
state, by October 1, 2009, has requested an additional
extension and submitted certification that the state
has achieved material compliance.
05/11/2011 Driver license and identification cards will not be
accepted from states that are not in full compliance
with the provisions of the Real ID Act. States must
begin issuing Real ID compliant DL/IDs.
12/01/2014 Federal agencies will not accept DL/IDs for official
purposes from any individual born after December 1,
1964. For California, this represents approximately
60 percent of all cardholders.
12/01/2017 Federal agencies will not accept any DL/IDs for
official purposes from any individual born on or
before December 1, 1964. For California, this
represents approximately 40 percent of all
cardholders.
This bill :
Requires the State of California to comply with the federal
Real ID Act of 2005. In complying with the Real ID Act, this
bill requires DMV to issue, beginning 240 days following the
date when the state is deemed to be in compliance with the
Act, two types of DL/IDs: cards that may be used for official
federal purposes, and for persons who are not able to
demonstrate legal presence status, cards that do not.
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Deletes the provision that it is a misdemeanor for any person
to assist knowingly in obtaining a driver's license or
identification card for any person whose presence in the
United States is not authorized under federal law, and
instead, once the state is in compliance with the Real ID Act,
makes it a misdemeanor for any person to assist knowingly in
obtaining a driver's license or identification card that is in
violation of the Real ID Act.
COMMENTS:
1.Purpose . This measure, known as the "California Real ID Act
of 2009," is intended to ensure that the State of California
meets the standards and requirements contained in the federal
Real ID Act and the state "has a federally recognized driver's
license and identification card." In addition, it would
explicitly enact into state law the option in the federal act
that authorizes a state to issue a driver's license to a
person who cannot meet the identify requirements of the act.
According to the author, this bill is needed because DMV
cannot begin implementation of the federal law until the
Legislature passes and the Governor signs a bill authorizing
them to proceed.
2.Criticisms of Real ID and barriers to implementation .
Unfunded mandate. According to DMV's analysis of the final
rule, the federal Office of Management and Budget estimated
the cost of the act to be over $10 billion, of which $4
billion would be borne by the states for implementation. To
date, DHS has provided a total of $90 million to the states to
help defray these costs.
In California, DMV estimates that implementing Real ID over
eight years would cost $143 million for material compliance
and $303 million for full compliance. It has received $3.2
million in federal grant aid.
Databases not yet developed. The principal difference between
material and full compliance is that to be in full compliance,
the states must verify the identity documents using national
databases that have not yet been developed. Appendix B of
this analysis contains a figure that describes each of the
databases required by the final rule and whether it database
is necessary for material or full compliance (i.e., does it
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exist). It is not known when these databases will be
developed and ready for use. The committee may wish to
consider whether it is appropriate to move forward with
implementation when full compliance is dependent on
infrastructure that does not yet exist.
These databases raise additional concerns. California will
likely bear some cost associated with developing and accessing
the databases. How much? Where will those funds come from?
Finally, databases that contain identity information of much
of the nation's population may invite hacking or other
unauthorized use to commit fraud or identity theft. How will
the databases be secured to assure that the privacy of
Californians is adequately protected?
Privacy. Since the passage of the Real ID Act in 2005,
privacy and civil rights advocates, most notably the American
Civil Liberties Union (ACLU), have raised concerns regarding
how personal information acquired and technology deployed
under the Act may compromise one's privacy.
Discrimination and racial profiling. The ACLU, along with
other organizations, have also raised concerns regarding the
potential that having two distinct cards may lead to racial
profiling. In its letter of opposition, the ACLU states:
Citizens and immigrants who look or sound "foreign" may
be subject to greater scrutiny as DMV workers must
determine and verify the immigration status and then issue
a specific class or license depending on that status. Many
citizens and lawfully present immigrants will be denied
licenses improperly by DMV employees who may not be able to
determine their immigration status. Other potentially
eligible citizens and immigrants will be unable to secure a
license because they do not possess one of the documents on
the new narrow list. For example, the Center on Budget and
Policy Priorities surveyed U.S. born Medicaid recipients
and determined that 3-5 million lacked a birth certificate
or U.S. passport.
3.This bill does not implement Real ID . To fully comply with
Real ID, several changes to state law would be necessary,
which this bill does not make. In its assessment of the final
regulations, DMV identified at least three areas that would
require legislation if the state were to implement the Act.
These include:
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Authorizing the issuance of two types of DL/IDs.
Strengthening the privacy statutes to protect
individuals from unwarranted access to personal
information.
Making conforming or small changes throughout the
statutes to facilitate implementation (e.g., modifying the
list of acceptable forms of identification, changing the
renewal-by-mail program).
4.Premature ? According to DMV, the National Governor's
Association is sponsoring legislation that will give the
states more flexibility in implementing Real ID.
Additionally, in its analysis of the Governor's budget
proposal to increase funding to assist DMV in achieving
material compliance, the Legislative Analyst's Office (LAO)
concluded, "?given the change in the federal administration,
we think it makes sense to hold off on implementation of Real
ID until more is known about the new administration's position
on this hugely expensive and unfunded federal mandate?states
are not required to begin issuing Real ID compliant licenses
until May 2011. There would still be time for the state to
come into compliance with this requirement by the federal
deadline?" Given the uncertainty surrounding the future of
the Real ID Act at the federal level, the committee may wish
to consider whether it is necessary or appropriate to take
action now to implement the act, particularly in light of the
significant criticisms and barriers that exist to doing so.
5.Other states . Fifteen states have taken legislative action
either to implement or not to implement the Real ID Act.
Three states are implementing Real ID and have
legislation enacted to authorize it: Florida, Nevada, and
Tennessee.
Eleven states have statutes that prohibit the
implementation of Real ID: Alaska, Arizona, Georgia,
Idaho, Louisiana, Maine, Minnesota, Montana, New Hampshire,
Oklahoma, and South Carolina.
One state has a statute that allows for the
implementation of Real ID if federal funding becomes
available: Washington.
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6.Issuance by 12/1/09 . Under existing law, drivers' licenses
are renewed every five years. To meet the requirement that
all people born after December 1, 1964 be issued cards that
are in compliance with Real ID, DMV would have to start
issuing new and original cards by December 1 of this year in
order to avoid having to require individuals to come into a
DMV field office prior to the date by which they would
otherwise be required to renew their license. Neither this
bill nor any other state action will permit DMV to achieve
this given the barriers to implementation that currently
exist.
7.Suggested amendments .
a) Given the barriers to implementation and uncertainty
regarding the future of Real ID, the author or committee
may wish to consider amendments that would delete the
requirement to implement Real ID and instead require DMV to
issue licenses to individuals even if they are not able to
document legal presence status, provided those persons are
able to demonstrate they can safely operate a motor
vehicle.
b) The bill requires DMV to begin issuing Real ID-compliant
DL/IDs 240 days after the state is deemed by DHS to be in
compliance with the federal act. It is unclear, however,
how this date (240 days after compliance) conforms with the
dates for material and full compliance, or by the dates it
would be necessary to begin issuing compliant DL/IDs to
achieve the 2014 and 2017 deadlines. For this reason, the
author or committee may wish to consider amendments to
establish a firm deadline for implementing the Act, either
January 1, 2010 (material compliance) or May 11, 2011 (full
compliance).
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
April 8, 2009)
SUPPORT: California Catholic Conference
Consumer Attorneys of California
Los Angeles Unified School District
Yolo County Sheriff's Department
OPPOSED: American Civil Liberties Union
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Californians for Population Stabilization
California Immigrant Policy Center
Concerned Women for America