Achieving full implementation of REAL ID will, first and foremost, contribute to greater assurance in knowing the true identity of individuals acquiring and using state driver’s license and identification documents. In turn, it will help to strengthen national security efforts by helping to identify terrorists and individuals with criminal backgrounds who seek to embed themselves in the United States without having federal, or state and local governments, and individuals with whom they interact, learn their true identities. It will give greater assurance that those who seek to avail themselves of the activities currently identified as “federal official purpose” have legitimate aims in accessing those federal services. It will potentially help to control illegal migration and residency in states that adhere to REAL ID requirements, as one of those requirements is that the states verify the status of individuals in the United States to limit issuance of
REAL ID compliant documentation to those individuals authorized to remain in the United States. Therefore, individuals who are unlawfully residing in the United States would not be eligible for REAL ID compliant licenses, and at best, would be issued driver’s licenses or identification cards that have only limited use, and are unable to be used for federal official purposes.
Various potential impacts and measures of success are possible, depending on the position and interests of those affected. Success should give greater assurance to government, business, and individuals that people with whom they interact are who they say they are, and in turn, should have an effect on reducing activities and crimes associated with hiding an individual’s identity. These beneficial effects could range from a reduction in terrorism, reductions in crimes against government entities, and against individuals. It would help law enforcement identify individuals who have been evading detection and capture using fraudulent documents.
Success initially can be measured quite simply by DHS reports as to how many states have been determined to be in full compliance with the provisions of REAL ID.
DHS issues the reports periodically, and should continue to issue them, but in a more public manner than is currently the case. The ultimate measure of success by this standard is having DHS determine that all 56 jurisdictions subject to REAL ID are in full compliance. In other less objective ways, success may be more difficult to measure. Part of the intended purposes of the law and its implementation is that it will serve as a deterrent to the use of fraudulent identities and documents, and thus to some extent, its effects are in the absence of certain events or occurrence of certain phenomenon. Success can, however, be measured in ways, such as detecting the trend over time in attempts to secure state driver’s licenses and identification documents through the use of fraudulent documents, through statistics showing hits against items like the SSA’s Death Master File, which would reveal attempts to present documents (birth certificates) belonging to already deceased individuals. It could also be measured by reductions in identity theft related crimes in states that achieved full compliance, as opposed to states that have not come into full compliance.
The risks associated with implementing the recommendations of the thesis are relatively few. One risk may perhaps be that if additional funding is needed to achieve full compliance, that in this partisan atmosphere, it will not be possible to achieve consensus for additional funding. As a result, in the course of discussing the need for additional funding, some members of Congress would seek to scale back the provisions of REAL ID, and perhaps even seeking to revive inadequate alternatives to REAL ID, such as the Pass ID legislation promoted by DHS early in the Obama administration.
Such legislation would be inadequate to obtain the security and law enforcement, and individual identity security benefits that REAL ID seeks to bring about.
The payoffs would be that the federal government, in facilitating access to those activities deemed to be federal official purposes under the act, would have greater assurances that the documents presented reflect the actual identity of the individual presenting them, and that the document was legitimately obtained. It would mean greater security in the transactions of individuals with the government, with business institutions, and with each other. It could help deter and address identity and identity theft related crime. A measure of success representing the results and benefits of REAL ID implementation would be the effect of REAL ID on identity theft. This success could encompass the tracking of data and publication of reports by the federal government or other entities showing whether REAL ID has resulted in reductions in identity theft, and other identity related crime and fraud, in states that have come into full compliance with REAL ID.
The costs of implementing REAL ID have not been insubstantial, and are one of the reasons states are opposed to REAL ID. The DHS estimate in the Notice of Proposed Rulemaking was projected to be $7.88 billion over 10 years, and the total undiscounted, 11-year cost of the final rule was estimated by DHS to be $9.9 billion.499 However, while the costs are substantial, the potential savings and reduction in losses due to identity theft and related offenses are substantially higher. For example, it is estimated that in 2010, losses to individuals from identity theft reached $37 billion.500 It is unclear to what extent
499 Department of Homeland Security, Final Rule.
500 U.S. Government Accountability Office, Driver’s License Security.
implementing the recommendations proposed by this thesis will add to, or reduce those implementation costs. However, it seems logical that proceeding with efficient implementation now, across states, will avoid incurring even higher costs associated with delayed implementation, such as those arising from changing technology, and uncoordinated efforts.
How long it takes to achieve full implementation by the states depends on various factors. Probably the largest driver will be the willingness of DHS to begin enforcing a firm deadline for the states to come into full compliance. DHS has extended that deadline several times, and after the last extension, which expired in January 2013, DHS provided a temporary deferment to states not in compliance and announced that in the fall of 2013, it would roll out a schedule of phased enforcement.501 That schedule was finally released in December 2013 with the initial enforcement measures, which limit access to DHS facilities, just beginning. It is hoped that DHS in signaling its intention to pursue enforcement, can persuade states that have been postponing complying with REAL ID, to do so. That tactic will work for some, but not all states that have not come into full compliance.
The other factor that will affect the implementation will be the availability of funding at the state level, as well as the availability of Congressional appropriations and DHS grants to assist states with defraying the costs of implementation. A goal of publishing this thesis is to drive the dialogue among, and between those within state and federal legislatures and those responsible for allocating federal grants, to make funding available to facilitate full implementation.
As noted, the ultimate measure of success is straightforward. It is when DHS determines that all states and territories subject to REAL ID requirements have come into full compliance with the federal standards for the issuance of state driver’s license and identity documents. To date, only 21 jurisdictions have been found to be in full compliance with 35 others in various stages of compliance. Until then, the regular
501 Department of Homeland Security, “DHS Determines 13 States Meet REAL ID Standards,”
accessed December 2, 2013, http://www.dhs.gov/news/2012/12/20/dhs-determines-13-states-meet-real-id-standards.
addition to the list of compliant jurisdictions, through regular and consistent reporting by DHS, perhaps on a quarterly basis of state found to be compliance, could be implemented. Another measure of interim success would be the roll out of phased consequences for states that remain non-compliant. While states are not required to come into compliance, no incentive exists for states to come into compliance if their citizens are in no better position in terms of access to the activities deemed federal official purposes, if consequences are not enforced for non-compliant states.
On a more fundamental level, it should be acknowledged that REAL ID represents an increasing trend and desire, particularly post-9/11, to address the “problem of identification” and satisfy the “persistent impulse to identify individuals with recourse to official records” largely because of a desire to “establish a relationship of trust between individuals and the institutions with which they interact in their daily lives.” A stated by one researcher who has studied REAL ID:
. . . the scale of modern society is such that institutions cannot possibly know each individual on a personal basis and thus they require some form of confirmation that establishes that individuals are who they claim to be.
Individuals themselves must establish their consistent identity over time and across distance for their own well-being.502
REAL ID can be seen as promoting the security of society, and in addition, improving the well being of individuals through its efforts to improve the security and reliability of state identity documents. Looked at presently, REAL ID “outlines a desired policy outcome rather than actually existing administrative system.”503 Whether, and when that desired policy outcome becomes an existing, fully functioning system remains to be seen.
However, after nearly nine years, the end of the REAL ID journey is within sight.
502 Gates, “The United States REAL ID Act and the Securitization of Identity,” in Playing the Identity Card Surveillance, Security and Identification in Global Perspective, 220.
503 Ibid., 226.
APPENDIX A. IDENTIFICATION DOCUMENTS HELD BY THE 9/11 HIJACKERS
504504 National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report:
Final Report of the National Commission on Terrorist Attacks upon the United States, 44.
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APPENDIX B. EVVE IMPLEMENTATION AS OF JUNE 2012
505505 Department of Homeland Security, Secure Identification State Progress: Fiscal Year 2012 Report to Congress, 23.