A year from now, Maine driver’s licenses may no longer suffice as valid identification for boarding an airplane for flights within the country. That’s because Maine has not complied with a 10-year-old federal law regulating state-issued driver’s licenses and ID cards.
The federal Real ID Act, passed in 2005, set new requirements for state-issued driver’s licenses and identification cards. Those included denying licenses to undocumented immigrants, using facial recognition technology and retaining digital images of birth certificates, Social Security cards and other identity-verifying information in a central database that other states and the federal government can access.
Already, anyone entering restricted federal facilities — such as U.S. Department of Homeland Security headquarters, the U.S. mint, military bases and nuclear plants — must show a piece of ID that complies with the law.
The requirements of Real ID don’t apply to voting, registering to vote or applying for federal benefits.
Now the Department of Homeland Security is set to take the final step to require that travelers have compliant identification in order to board domestic flights, and travelers from Maine could be left in the lurch if the Legislature sticks to its opposition.
Safety, security and disobedience
Last month, the Department of Homeland Security granted Maine an extension setting Oct. 10, 2016, as the new date to comply. The department had previously given Maine until Jan. 10, 2016, after which point Maine driver’s licenses would no longer have been accepted for entrance into restricted federal facilities.
But, according to Maine Secretary of State Matthew Dunlap, the question is whether Maine wants to comply.
Real ID was one policy initiative that emerged in response to the 9/11 terrorist attacks. In its final report, the 9/11 Commission recommended new security policies to prevent undocumented immigrants and terrorists from obtaining state-issued identification. Several of the 9/11 hijackers had obtained state-issued identification in the months leading up to the attacks.
The law was supposed to have taken effect by May 2008. But not long after Congress passed Real ID, many state legislatures fought back against what they saw as an invasion of privacy and the creation of what amounted to an “ internal passport.”
In 2007, Maine became the first state to reject Real ID; 26 other states followed suit, passing laws prohibiting compliance or resolutions opposing it, according to the National Conference of State Legislatures. To date, 33 states and territories aren’t in full compliance with Real ID.
“One of the real weaknesses of the Real ID Act is that if just one state is not in compliance then the whole act is worthless,” Dunlap said. The federal government has largely exempted itself from the law, Dunlap added, even though the 9/11 hijackers entered the U.S. with State Department-issued visas.
Opponents hoped these state-level actions would pressure Congress to repeal Real ID. Congress, however, wasn’t moved.
As states pushed back, the Department of Homeland Security delayed the law’s implementation, granting states more time to comply with the law if they showed they were taking the steps needed to do so. The department continues to push states toward compliance.
Maine has met some Real ID requirements. It has tightened security where driver’s licenses are made, and undocumented immigrants can no longer get Maine licenses. The state also verifies applicants’ identities against federal databases and ensures no one obtains more than one driver’s license or identification card.
But Maine has yet to comply with Real ID’s more controversial requirements, such as using facial recognition technology; fingerprinting state employees who issue licenses; and retaining digital copies of birth certificates, Social Security cards and other identity source documents in a central database.
The idea of that database sparked widespread privacy concerns about who would be able to access it and whether it would make Mainers’ personal data vulnerable to theft.
In 2011, the Maine Legislature passed a bill restricting how information used to create licenses can be stored and shared. It also prohibited the use of facial recognition technology.
Aside from privacy concerns, implementing unmet Real ID provisions would cost up to $1 million, which the Legislature would have to authorize, Dunlap said.
But the Legislature has shown no interest in complying with the federal government, and legislative action seems unlikely at least until 2017.
None of the 32 bills the Legislature is set to consider next session, which begins in January, concern Real ID compliance. Two senators who serve on the Legislature’s Transportation Committee, which oversees the state’s Bureau of Motor Vehicles, said they haven’t seen any legislation coming forward.
Since legislation isn’t on the radar for 2016 — unless legislative leaders allow an emergency bill to be considered or Gov. Paul LePage proposes a Real ID measure — that leaves 2017 as the next time when lawmakers can take up Real ID.
This, of course, is after the end of Maine’s current extension. The Department of Homeland Security could exercise its authority to grant another extension, but to get one, Maine would have to demonstrate it is making progress toward compliance and explain why it hasn’t met outstanding requirements.
“Homeland Security could keep giving extensions every year,” Dunlap said. “They haven’t stopped yet.”
And lawmakers on the Transportation Committee could discuss the issue in the coming months and receive a status update, according to Sen. William Diamond, D-Windham. He said he expects the committee to have a conversation during the second session to find out where Maine is on the path to implementation and whether it can be achieved by next October.
“We have to have some answers,” he said. “We’re kind of in limbo mode here right now and waiting to see what happens with the extension.”
It’s unclear when the Department of Homeland Security will require compliant identification for boarding airplanes. The department said it plans to announce a plan by the end of the year.
If Maine still isn’t in compliance at that time, Mainers aren’t likely to be turned away at the airport terminal, Dunlap said. Imposing separate identification requirements on Mainers and travelers from other noncompliant states would require a separate process at airports across the country.
“It wouldn’t just affect Bangor International Airport,” he said. “It’s not small potatoes — there are Mainers all across the country.”
Mainers have the option to present other forms of identification in lieu of a driver’s license, Dunlap said. They still can use a U.S. passport or passport card, for instance.