[Senate Report 116-303]
[From the U.S. Government Publishing Office]
Calendar No. 601
116th Congress } { Report
SENATE
2d Session } { 116-303
_______________________________________________________________________
REAL ID MODERNIZATION ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 4133
TO MODERNIZE THE REAL ID ACT OF 2005, AND FOR
OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 7, 2020.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
19-010 WASHINGTON : 2020
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Christopher S. Boness, Professional Staff Member
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Roy S. Awabdeh, Minority Senior Counsel
Katie A. Conley, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 601
116th Congress } { Report
SENATE
2d Session } { 116-303
======================================================================
REAL ID MODERNIZATION ACT
_______
December 7, 2020.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 4133]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 4133) to modernize
the REAL ID Act of 2005, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............7
I. Purpose and Summary
S. 4133, the REAL ID Modernization Act, updates and
modernizes the REAL ID Act of 2005 (REAL ID Act).\1\
Specifically, the bill authorizes states to receive
authentication documents through electronic submission, removes
requirements to provide physical documentation of an
individual's social security number and principal address and
permits the use of a digital photograph already on file as long
as it was taken within the last six years. The bill also
terminates the Department of Homeland Security's (DHS)
authority to provide grants to states specifically to implement
the REAL ID Act.
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\1\Real ID Act of 2005, Pub. L. No. 109-13, Division B, Sec. Sec.
201-07, 119 Stat. 231, 302 (2005).
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II. Background and Need for the Legislation
The National Commission on Terrorist Attacks Upon the
United States, better known as the 9/11 Commission, issued a
report following the September 11th attacks.\2\ The report
outlined how the terrorists involved in the plot to attack the
U.S. used fraudulent documents to enter into the country and
travel from city to city. ``All but one of the 9/11 hijackers
acquired some form of U.S. identification document, some by
fraud. Acquisition of these forms of identification would have
assisted them in boarding commercial flights, renting cars, and
other necessary activities.''\3\ The report went on to
recommend that the U.S. heighten the security of identity
documents. ``The federal government should set standards for
the issuance of birth certificates and source of
identification, such as driver's licenses.''\4\ This
recommendation was the impetus for the enactment of the REAL ID
Act.
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\2\National Commission on Terrorist Attacks Upon the United States,
The 9/11 Commission Report 367-428 (2004), https://
govinfo.library.unt.edu/911/report/911Report.pdf.
\3\Id. at 390.
\4\Id.
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The REAL ID Act established a national standard of items
and information necessary to be present on a driver's license
or identification card. For instance, it required that a
person's full legal name, date of birth, gender, identification
number, photograph, principal residence, and signature are
present on the driver's license or identification card, as well
as security features to prevent tampering and fraudulent
documents.\5\ It also set a national standard of documents
needed to obtain a REAL ID Act--compliant driver's license or
identification card. Specifically, the REAL ID Act required
physical documents showing a person's full name, social
security number, and evidence of lawful status, among other
things.\6\ States were required to comply with the law within
three years in order for the Federal Government to accept a
driver's license or identification card for individuals to
access Federal facilities, board a commercial airplane, or
enter nuclear power plants.\7\
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\5\Real ID Act of 2005, Pub. L. No. 109-13, Division B, Sec. Sec.
201-07, 119 Stat. 231, 302 (2005).
\6\Id.
\7\Id.
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The law authorized the Secretary of Homeland Security to
grant extensions to states if they provided justification,
something DHS did frequently to avoid stopping millions of
travelers from boarding commercial airplanes.\8\ After the REAL
ID Act was enacted, approximately 14 states passed legislation
prohibiting their state from complying with the Federal law.\9\
DHS made a concerted effort to bring states into compliance.
However, according to DHS, only 26 states had achieved REAL ID
compliance by January 9, 2017--nine years after the initial
deadline.\10\ Many States repealed their state laws fearing
constituents would not be able to travel commercially, and by
March 26, 2019, 52 states and territories were in compliance,
two territories were under review, and two states had received
extensions and were expected to become complaint in the near
future.\11\
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\8\Id.
\9\Evyn, Oregon Bill Rejecting Real ID Becomes Law, ACLU Or. (May
28, 2009, 6:44 PM), https://aclu-or.org/en/news/privacy-update-oregon-
bill-rejecting-real-id-becomes-law.
\10\Call from Majority and Minority Staff, U.S. Senate Comm. on
Homeland Sec. & Governmental Affairs, to Transp. Sec. Admin. (Apr. 8,
2020) (on file with Committee Majority Staff).
\11\Id.
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Although every state and territory is in compliance with
the REAL ID Act or on a path to compliance, the majority of
Americans still do not have a REAL ID. According to a March 26,
2020 survey conducted by the U.S. Travel Association, an
estimated 65 percent of all driver's license holders do not
believe their driver's license is REAL ID Act compliant or
cannot identify REAL ID characteristics, such as a star, on
their license.\12\ Furthermore, according to the survey,
approximately 39 percent of Americans are not even aware of
REAL ID Act deadlines or know a REAL ID Act-compliant document
is required to travel commercially.\13\ Similarly, DHS reported
in January that states have issued approximately 95 million
REAL IDs, only 34 percent of all issued licenses.\14\ DHS
issued a Request for Information (or RFI) in November 2019 to
solicit feedback from states and other stakeholders for ways
DHS could streamline the REAL ID process and requirements.\15\
Their results informed this legislation as some required
congressional action.
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\12\Real ID Survey, U.S. Travel Ass'n (Mar. 26, 2020), https://
www.ustravel.org/sites/default/files/media_root/document/
REALID_SurveyFindings_03.20.20.pdf.
\13\Id.
\14\Press Release, U.S. Dep't of Homeland Sec., DHS Steps Up REAL
ID Education and Awareness Efforts (Jan. 24, 2020), https://
www.dhs.gov/news/2020/01/24/dhs-steps-real-id-education-and-awareness-
efforts.
\15\Press Release, U.S. Dep't of Homeland Sec., DHS Announces
Streamlining Measures to Help States in Issuing REAL IDs (Feb. 19,
2020), https://www.dhs.gov/news/2020/02/19/dhs-announces-streamlining-
measures-help-states-issuing-real-ids.
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S. 4133 modernizes the REAL ID Act to ensure the law keeps
pace with technological advances and eases the ID application
process while maintaining strong security and privacy policies
that motivated the original REAL ID Act. For example, the bill
updates the definition of a driver's license and identification
card to include mobile or digital cards. The bill also allows
states to electronically accept source documents like birth
certificates or evidence of lawful status.
Although the bill authorizes an individual to present a
mobile or digital driver's license to a federal officer, for
example a Transportation Security Administration Officer, to
board an airplane, the bill is clear that doing so does not
grant consent for the officer to search or seize the device.
The bill can also assist states in streamlining the
application process by using digital photographs taken within
the last six years if it is already on file with the state, and
not requiring physical presentation of a person's social
security number or principal residence. States already verify
much of this information, such as authenticating a social
security number through the Social Security Administration, so
requiring the physical document is not necessary, and, at
times, duplicative. Furthermore, many states require proof of
residence when applying through documents, such as utility or
mobile phone bills. Many of these documents are not provided by
government entities, and therefore do not contain security
features in the document. States have other means of verifying
an individual's address, so this too can be duplicative. While
the bill streamlines the application process, DHS will still
need to develop and implement regulations and promulgate rules
through the rulemaking process in order to establish processes
in many of these areas. The Committee urges DHS and the Office
of Management and Budget to expeditiously consider these rules
and regulations in order for states to implement these changes
in advance of the October 1, 2021 deadline.
In order to assist in raising awareness of the REAL ID
deadlines and requirements, the bill also requires airlines and
third-party reservation entities to notify passengers of the
deadline three months prior to enforcement and for a year
afterwards.
Finally, the bill repeals the REAL ID Act section allowing
the Secretary to provide grants to states specifically to
implement the REAL ID Act. Almost all states are in compliance
with the existing law, and according to DHS, no grants have
been appropriated for such use since 2011.\16\ Additionally,
states can apply for existing DHS Homeland Security Grant
funding towards their REAL ID efforts.\17\
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\16\Email from Office of Legislative Affairs, U.S. Dep't of
Homeland Sec., to Majority and Minority Staff, U.S. Senate Comm. on
Homeland Sec. & Governmental Affairs (July 20, 2020) (on file with
Committee Majority Staff).
\17\Id.
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III. Legislative History
Chairman Ron Johnson (R-WI) introduced S. 4133, the REAL ID
Modernization Act, on July 1, 2020, with Ranking Member Gary
Peters (D-MI) and Senator Ron Wyden (D-OR). The bill was
referred to the committee on Homeland Security and Governmental
Affairs. Senator Roger Wicker (R-MS) later joined as a
cosponsor.
The Committee considered S. 4133 at a business meeting on
July 22, 2020. During the business meeting, a substitute
amendment as modified was offered by Senators Johnson and
Peters making technical edits to the underlying bill. Senator
Rick Scott offered an amendment to repeal the availability of
grant funding to states for compliance activities. Both
amendments were agreed to by voice vote en bloc, with Senators
Johnson, Portman, Paul, Lankford, Romney, Scott, Enzi, Hawley,
Peters, Carper, Hassan, Harris, and Rosen present. The bill, as
amended, was ordered reported favorably by voice vote en bloc.
Senators Johnson, Portman, Paul, Lankford, Romney, Scott, Enzi,
Hawley, Peters, Carper, Hassan, Harris, and Rosen were present.
IV. Section-by-Section Analysis of the Bill, as Reported
Sec. 1. Short title
This section names the bill the ``REAL ID Modernization
Act''.
Sec. 2. REAL ID Act Amendments
Subsection (a) amends the REAL ID Act definition section.
Specifically, this section redefines the definition of a
driver's license and identification card to include mobile or
digital driver's licenses or identification cards.
Subsection (b) specifies that the fact of presenting a
digital or mobile driver's license or identification card
cannot be construed to grant consent for the Federal officer to
search or seize the device or grant access to any information
on the device other than that in the driver's license or
identification card. This subsection also allows states to use
a photograph already on file if the photograph was taken within
the last six years. The subsection also clarifies that states
may accept documents electronically if the process follows
regulations and guidelines set by the DHS Secretary and the
state certifies compliance. Finally, the subsection makes
technical corrections to language in the REAL ID Act.
Subsection (c) repeals Section 204 of the REAL ID Act which
authorized the DHS Secretary to make grants to states and
authorized appropriations to DHS to carry out the REAL ID Act.
Subsection (d) allows the Secretary to promulgate rules and
regulations needed to carry out the bill.
Subsection (e) requires airlines and third-party
reservation entities to notify travelers of the REAL ID Act
requirements and deadlines for three months prior to
enforcement of the REAL ID Act of 2005 and for a period of one
year after the date of enforcement.
Sec. 3. Immediate Burden Reduction Measures
This section provides states the ability to no longer
accept physical presentation of an applicant's social security
number or physical evidence of an applicant's principal
address.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 2, 2020.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 4133, the Real ID
Modernization Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lindsay
Wylie.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 4133 would provide flexibility to states to meet the
standards established in the Real ID Act of 2005 for
identification documents that are enforced by the Department of
Homeland Security (DHS). The bill also would allow states to
accept identity documents that are transmitted electronically
if DHS issues regulations regarding such transmission and
states certify with DHS that they are in compliance.
DHS currently allows states to accept identity information
electronically in some circumstances. Using information
obtained from the department, CBO expects that broadening the
rules regarding electronically transmitted documents and
tracking state certifications would not require significant DHS
staff or resources. On that basis, CBO estimates that
implementing the legislation would cost less than $500,000 over
the 2021-2025 period.
The bill contains intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
CBO estimates that the aggregate cost of the intergovernmental
and private-sector mandates would fall below the UMRA
thresholds ($84 million and $168 million in 2020, respectively,
adjusted annually for inflation).
S. 4133 would require states to ensure the security of the
production location and of the materials, records, and data
from which drivers' licenses and identification cards are
produced. That requirement would impose an intergovernmental
mandate on state governments. States also would be required to
establish training programs for fraud prevention. The training
would be provided to employees engaged in the issuance of
drivers' licenses and identification cards. According to
industry sources, the cost for states to comply with the
mandates would be small because the current practices of states
are consistent with provisions in the bill.
The bill also would require aircraft operators and some
reservation entities to notify passengers of identification
requirements and deadlines as established under The REAL ID
Act. That requirement would impose a private-sector mandate.
The incremental cost of the mandate would be small because the
mandated entities already provide information to passengers on
identification documents necessary for travel.
The CBO staff contacts for this estimate are Lindsay Wylie
(for federal costs) and Rachel Austin (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR DEFENSE, THE GLOBAL WAR
ON TERROR, AND TSUNAMI RELIEF, 2005
* * * * * * *
TITLE II--IMPROVED SECURITY FOR DRIVERS' LICENSES AND PERSONAL
IDENTIFICATION CARDS
* * * * * * *
SEC. 201. DEFINITIONS.
In this title, the following definitions apply:
(1) Driver's license.--[The term ``driver's license''
means] The term ``driver's license''--
(A) means a motor vehicle operator's license,
as defined in section 30301 of title 49, United
States Code; and
(B) includes driver's licenses stored or
accessed via electronic means, such as a mobile
or digital driver's licenses, which have been
issued in accordance with regulations
prescribed by the Secretary.
(2) Identification card.--[The term ``identification
card'' means] The term ``identification card''--
(A) means a personal identification card as
defined in section 1028(d) of title 18, United
States Code, issued by a State; and
(B) includes identification cards stored or
accessed via electronic means, such as mobile
or digital identification cards, which have
been issued in accordance with regulations
prescribed by the Secretary.
* * * * * * *
SEC. 202. MINIMUM [DOCUMENT] REQUIREMENTS AND ISSUANCE OF STANDARDS FOR
FEDERAL RECOGNITION.
(a) * * *
(1) * * *
(2) State certifications.--The Secretary shall
determine whether a State is meeting the requirements
of this section based on certifications made by the
State to the Secretary. Such certifications shall be
made at such times and in such manner as the
Secretary[, in consultation with the Secretary of
Transportation,] may prescribe by regulation.
(3) Limitation.--The presentation of digital
information from a mobile or digital driver's license
or identification card to an official of a Federal
agency for an official purpose may not be construed to
grant consent for such Federal agency to seize the
electronic device on which the license or card is
stored or to examine any other information contained on
such device.
(b) Minimum [Document] Driver's License and Identification
Card Requirements.--To meet the requirements of this section, a
State shall include, at a minimum, the following information
and features on, or as part of, each driver's license and
identification card issued to a person by the State:
(1) * * *
* * * * * * *
(5) A digital photograph of the person, which may be
the photograph taken by the State at the time the
person applies for a driver's license or identification
card or may be a digital photograph of the person that
is already on file with the State if the photograph was
taken of the person by the State during the 6-year
period preceding such application.
(6) The person's address of [principle] principal
residence.
(7) * * *
(8) [Physical security] Security features designed to
prevent tampering, counterfeiting, or duplication of
the [document] driver's license or identification card
for fraudulent purposes.
(9) * * *
(c) * * *
(1) * * *
(A) * * *
(B) * * *
(C) [Proof of the] The person's social
security account number or verification that
the person is eligible for a social security
account number.
(D) [Documentation showing the] The person's
name and address of principal residence.
(2) * * *
(3) Electronic presentation of identity and lawful
status information.--A State may accept information
required under paragraphs (1) and (2) through the use
of electronic transmission methods if--
(A) the Secretary issues regulations
regarding such electronic transmission that--
(i) describe the categories of
information eligible for electronic
transmission; and
(ii) include measures--
(I) to ensure the
authenticity of the information
transmitted;
(II) to protect personally
identifiable information; and
(III) to detect and prevent
identity fraud;
(B) the State certifies to the Department of
Homeland Security that its use of such
electronic methods complies with regulations
issued by the Secretary.
[(3)] (4) Verification of documents.--To meet the
requirements of this section, a State shall implement
the following procedures:
(A) Before issuing a driver's license or
identification card to a person, the State
shall verify, with the issuing agency, the
issuance, validity, and completeness of [each
document] the information and documentation
required to be presented by the person under
paragraph (1) or (2).
* * * * * * *
(7) Ensure the physical security of locations where
drivers' licenses and identification cards are produced
and the security of [document materials and papers]
materials, records, and data from which drivers'
licenses and identification cards are produced.
(8) Subject all persons authorized to manufacture or
produce drivers' licenses and identification cards to
appropriate [security clearance requirements]
background checks.
(9) Establish [fraudulent document recognition] fraud
detection and prevention training programs for
appropriate employees engaged in the issuance of
drivers' licenses and identification cards.
* * * * * * *
[SEC. 204. GRANTS TO STATES.
[(a) In General.--The Secretary may make grants to a State
to assist the State in conforming to the minimum standards set
forth in this title.
[(b) Authorization of appropriations.--There are authorized
to be appropriated to the Secretary for each of the fiscal
years 2005 through 2009 such sums as may be necessary to carry
out this title.]
SEC. 205. AUTHORITY.
[(a) Participation of Secretary of Transportation and
States.--All authority to issue regulations, set standards, and
issue grants under this title shall be carried out by the
Secretary, in consultation with the Secretary of Transportation
and the States.]
(a) Procedure.--At the Secretary's discretion, the
promulgation of regulations and the administration of this
title may be made without regard to--
(1) chapter 35 of title 44, United States Code
(commonly known as the ``Paperwork Reduction Act'');
and
(2) the notice and comment and delayed effective date
provisions under section 553 of title 5, United States
Code.
* * * * * * *
SEC. 208. NOTIFICATION OF REQUIREMENTS AND DEADLINES.
During the 15-month period beginning 90 days before the
date on which Federal agencies will no longer accept, for
official purposes, driver's licenses and identification cards
that do not comply with the requirements under section 202,
aircraft operators and third party reservation entities shall
notify passengers about the requirements and enforcement
deadlines under this Act.
* * * * * * *
[all]