Post-9/11 Driver’s License Security Law Delayed over “Undue Burden and Confusion”

The Biden administration will again delay enforcing a law requiring driver’s license security standards designed to avert another terrorist attack because it could cause “undue burden and confusion” for those using licenses that fail to meet federal standards. The administration has already used COVID-19 as an excuse to postpone the security measure’s implementation, asserting that more time—two years—is needed to address the lingering impacts of the pandemic on the ability to obtain a compliant license. It is important to note that states had many years to comply long before COVID-19.

The law, known as the REAL ID Act, was passed by Congress after 9/11 to establish a more secure national system less prone to fraud after several of the hijackers exploited loopholes to obtain dozens of driver’s licenses from various states. The cards allowed the terrorists to take flight lessons and board planes to carry out the 2001 attacks. At the recommendation of the 9/11 Commission Congress passed the law in 2005 and states originally had until 2011 to comply, though the Obama administration tried to drastically weaken the legislation. Obama Homeland Security Secretary Janet Napolitano granted a 20-month extension on the deadline as she worked behind the scenes to undermine the REAL ID Act, asserting that it violates civil liberties and privacy.

In the fall of 2020 the Department of Homeland Security (DHS) announced that, after multiple delays, all 50 states were finally in full compliance with the REAL ID Act with most states becoming compliant under pressure from the Trump administration. “To date, the 50 states have issued more than 105 million REAL ID-compliant driver’s licenses and identification cards, representing 38 percent of all driver’s licenses and identification card holders,” DHS revealed at the time. In less than a year full enforcement of REAL ID will take effect at all federally regulated airports, federal facilities, and nuclear power plants, the 2020 bulletin further states. That means federal agencies, such as the Transportation Security Administration (TSA), will be prohibited from accepting licenses and ID cards that do not meet the law’s standards. Though it was welcome news at the time, it was still outrageous that it took 15 years after Congress passed the legislation to protect national security.

Now the Biden administration wants to stall beyond the pandemic delay by creating an exemption for certain licenses that do not meet REAL ID security standards. The White House is having DHS draft a proposed regulation to waive requirements that will allow federal agencies to accept licenses that do not qualify under the law. They specifically involve mobile driver’s licenses (mDLs), which are not REAL ID-compliant because they do not possess safeguards required by the legislation. At least eight states issue mDLs that reside on people’s mobile devices, including smartphones and smartwatches providing what the administration calls “potential benefits of increased convenience.” Sticking to the law and banning vulnerable mobile licenses from being accepted by federal agencies would present a burden, according to the White House. “Responding to this potential burden, DHS is developing a proposed regulation that would enable DHS to issue to states a temporary waiver of certain REAL ID regulatory requirements that would allow federal agencies to accept state-issued mDLs that meet certain security and data integrity requirements,” according to a White House report issued this month outlining how the federal government is reducing barriers to accessing critical benefits and services. The administration is also worried that individual states may waste time and resources choosing mDL safeguards that fail to meet REAL ID security requirements.

Besides inconveniencing states with pesky national security requirements, the administration has other concerns. “All too frequently these burdens fall unequally across the population,” the new report on reducing government burdens states. “Those families or small businesses that are already struggling—and who may face discrimination, exclusion, or marginalization—tend to also bear the largest burdens and time taxes. Families with irregular wages due to unemployment may have a harder time documenting their income than families with steady employment. Workers with multiple, part-time jobs may face higher barriers in taking time off to visit a government office in the middle of the day compared to workers with more predictable schedules.” Time will reveal the burdens created by the administration’s national security failures.