[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.
---------------------------------------------------------------------------
    \1\Real ID Act of 2005, Pub. L. No. 109-13, Division B, Sec. Sec.  
201-07, 119 Stat. 231, 302 (2005).
---------------------------------------------------------------------------

              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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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]