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By Reed F. Morris

Introduction

States are the primary issuers of driver's licenses and identification cards, and in response to national security concerns and identity theft, state legislatures have taken a closer look at policies concerning state-issued identification. In 2002, state legislatures are addressing the issue of license and identification card security on three main fronts. First, states are considering who should be eligible to apply for state licenses or identification cards and what should be acceptable forms of documentation. Second, states are considering how to stop people from using to obtain false documentation to present to the licensing office. Finally, states are considering how to stop people from sidestepping the state licensing office requirements all together and counterfeiting their own licenses and identification cards.

Many people remember the trip to the state licensing office to get their first driver's license. While the driver's license is the primary form of identification, the emergence of state identification cards highlights the importance of having a state-issued identification for those not eligible to receive a driver's license. As most states issue identification cards to minors who have not yet reached the driving age, today the first trip to the licensing office is often much earlier. Whether it is to board a train or open a bank account, today's youth are realizing the importance of carrying an accepted identification card. In most states, state identification cards and driver's licenses look similar and require the same documentation. Although the focus in recent months has been on the policies protecting the security of the driver's license, the majority of 2002 licensing legislation affects both ID cards and driver's licenses because the issuing criteria for both are often governed through the same statutes or administrative rules.

The States' Role in Driver Licensing

By 2000 there were nearly 191 million drivers licensed by the states and the District of Columbia. And, 88 percent of those eligible were licensed, up more than 30 percent since 1950. Traditionally, the states and territories have administered their own driver licensing systems, and since 1959 all states have required an examination before issuance of a license. Administering the driver's license and testing drivers, however, is no longer the sole concern of state licensing agencies. The driver's license has assumed a role beyond traffic safety, and both government and private entities rely on the license as an accurate piece of personal identification. In 2002, nearly every state considered legislation aimed at keeping the license secure in its function as an identifier.

There are two main areas where states are restricting immigrants' access to driver's licenses- requiring applicants to demonstrate they are legally present in the country under U.S. law and requiring applicants to present Social Security numbers.

Since the events of September 2001, some state legislators have taken a tougher stance on whether to allow undocumented immigrants access to state driver's licenses. Because the license is the primary form of identification used to board airplanes, and generally function in today's society, the license has been the focus of many states' efforts to increase national security.

Opponents of restricting license eligibility argue that by not issuing undocumented immigrants driver's licenses, those individuals are unable to obtain motor vehicle insurance or receive proper driver education and examination. Traffic safety concerns arise because, with or without a license, many immigrants are likely to continue driving. The policy of issuing licenses and identification cards that would expire with a documented immigrant's legal presence was considered by several states in 2002 (see Appendix A).

Some states considered conflicting legislation that centered on the dual role of the license-a traffic safety device and an identifier. For example, Colorado considered two differing bills that centered on safety and security (Table 1). Under current Colorado law, an individual must be legally present in the United States to receive a driver's license. Senator Ron Teck introduced a bill that attempted to tighten a loophole in the licensing law by no longer allowing licenses from states that issue to undocumented immigrants as primary proof of birth date or legal presence. Senator Ron Tupa introduced a bill to allow licenses to be issued to undocumented immigrants. After the committee debated the arguments of traffic safety, verification of identity terrorism by immigrants, Senator Tupa's bill died and Senator Teck's bill went on to be passed by the General Assembly and enacted by the governor.

While the focus of this report is to review legislative actions in driver's license security, some states have made substantive changes at the agency level to strengthen their licensing security. Through changes in state administrative regulations, states have added restrictions that require applicants to demonstrate legal presence in the United States. Connecticut, for example, closed a loophole through a rule change similar to that used in Colorado. The emergency regulations adopted by the Connecticut Department of Motor Vehicles in January 2002 also require applicants to prove legal presence in the United States upon application for a state ID or license. Because of increases in fraudulent application documents, easily forged documents such as baptismal certificates are no longer being accepted under the new regulations. The Connecticut DMV is currently undergoing a notice and comment period on the temporary regulations, which is the first step in establishing permanent regulations.

Providing Social Security numbers (SSN) when applying for state driver's licenses is a federal mandate to aid child support enforcement under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (42 U.S.C. section 651 et seq.) The act, as amended, requires state licensing agencies to collect license applicants' SSNs by Oct. 1, 2000. The Balance Budget Act of 1997 expanded the requirements to include both commercial and noncommercial licenses. Due to some confusion regarding the recording of SSNs on driver's license applications for new applicants, on July 14, 1999, the Commissioner of the Office of Child Support Enforcement in the U.S. Department of Health and Human Services issued an interpretation. It states that licensing offices must collect any SSN that the applicant may have, but does not require individuals to have a SSN as a condition to receiving a state driver's license. The interpretation went on to advise state licensing offices to obtain a sworn affidavit from applicants stating that they do not have a SSN. (DHHS PIQ-99-05, July 14, 1999.)

Most states require applicants to provide proof of their SSN as a prerequisite for obtaining a driver's license. Before the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 35 states were already collecting SSNs for a variety of administrative purposes. According to a February 2002 U.S. General Accounting Office report, only six states do not collect SSNs of all applicants for driver's licenses: Georgia, Kansas, Maryland, Michigan, Minnesota and Oregon. In 2002, the Kansas Senate passed legislation that would have added the requirement, but it later failed in a House floor vote. In Minnesota, resolutions were introduced in both the Senate and House urging Congress to repeal the federal provisions that require the collection of SSNs, citing the state's privileges under the 10th Amendment and identity theft concerns. In 1998, the Michigan Legislature passed a law requiring the collection of SSNs, but the law has not been implemented.

Several states allow applicants who do not have a SSN to provide other documentation (Table 2). For example, Wisconsin allows applicants who do not have an SSN to sign a sworn statement that they do not have one. New York allows individuals who are not eligible for a SSN to submit a letter from the Social Security Administration confirming the applicant's ineligibility.

Some states allow applicants to submit IRS individual taxpayer identification numbers (ITIN) in lieu of a SSN. The ITIN, like the SSN, is a nine-digit number used to track earnings and is available to individuals who are not eligible for a SSN. Several states considered legislation that would allow the use of the ITIN by driver's license applicants (see Appendix B). Utah, which allows the use of the ITIN, considered legislation that would have repealed that provision. In April, the Utah Transportation Interim Committee heard testimony on the state driver's license application identity requirements including testimony by Judy Hamaker Mann from the Driver License Division. Ms. Hamaker Mann noted that the state has received negative publicity as an easy state to receive a license, but she went on to say that since the state began allowing the use of the ITIN, the number of under-insured drivers in the state has decreased.

Increasing the security of licenses involves making it more difficult for people to obtain licenses after presenting false identification and making the too difficult for counterfeiters to duplicate. In 2002, several states considered legislation that would improve the technology at the licensing agency to stay a step ahead of the technology used on the street by counterfeiters. A further concern raised by advances in technology is the creation of false identification documents used by applicants for a state license or ID. Testing the validity of identification documents, or training licensing personnel in spotting fraudulent documents are issues facing states that hope to secure the integrity of the state-issued driver's license. Technologies and programs to battle counterfeiters comes at a cost, and some states are looking at raising driver's license fees to fund the technological improvements. Alaska, for example, passed legislation that raised licensing fees and permits by amounts between $5 and $10 to fund the conversion of the state's driver's licensing system to digital technology.

Creating a license that is difficult to counterfeit has been a focus of state legislatures wishing to protect against identity thieves and minors attempting to create a license that shows an age over 21 (see Appendix C). In creating a license that is "hardened" to those trying to crack it, administrators have focused on making licenses that are difficult to replicate by the naked eye, and now, the eye of the machine-reader. Holograms, watermarks and high definition photographs on laminated licenses have been traditional methods of preventing people from creating a fake license that would appear valid to the naked eye. By adding further information to the license stored in magnetic strips and barcodes, most states are issuing driver's licenses that are verifiable by machine-readers as well.

The information in the magnetic strips and barcodes in most states is the standard information contained on the front of the license. Newer two-dimensional barcodes used in about 30 states are capable of storing even more detailed information like digitalized photos, signatures or fingerprints. Although law enforcement are the primary holders of machines capable of scanning this information from a license, scanners are becoming commercially available, allowing businesses to verify the validity of the license. For example, owners of bars and casinos using scanners could visually check a license to verify the age of the holder, and then scan the license to verify the license's integrity. Privacy advocates argue that information stored on licenses and scanning creates an intrusion into Americans' everyday lives and creates information that can be stored in central databases.

Biometric technology can verify the identity of individuals based on their unique physical characteristics. Biometrics software takes photographs or scans of physical features such as facial features, retinas or fingerprints and quantifies that information into mathematical algorithms. Facial biometrics quantify the distances between major points such as the eyes, nose or templates, and fingerprint biometrics quantifies the distances between branches and endpoints of the ridges. Once the information is stored, scans of the thumb or other physical features can be crosschecked with existing databases to verify identity. The biometrics industry boasts numerous areas the technology could have value in government and businesses. In 2002, several states considered measures to use biometrics in the state driver's licensing office (see Appendix D). Privacy concerns and costs are the biggest barriers to the wide use of biometric technology.

The collection and use of digital identifiers has come under fire by civil libertarians. Some states are also considering legislation that would protect the digital information from abuse by state officials. For licensing technology to be effective, it must also protect the privacy of the individual who submits the unique digital identifiers. Many states are considering legislation that includes digital identifiers under protected information in their identity theft laws (see Appendix E).

Currently, seven states-California, Colorado, Florida, Georgia, Hawaii, Texas and West Virginia-collect fingerprints at application for a driver's license. However, only Georgia uses fingerprint scans to verify the applicant's identity when issuing a replacement license. West Virginia uses facial recognition technology to verify identity of individuals seeking to renew or replace a driver's license. This fall, Colorado is planning to implement a facial recognition system similar to that used in West Virginia.

How far biometric technology will reach is yet unknown. The day may come where one does not need to carry any driver's license or state ID. A thumb-stamp of approval or a look into an optical scanner may prove identity at a point of purchase.

Making it difficult for a person to create a state-issued license is one way to deter fraud. Another area state legislatures have considered is through criminal laws. As identity theft has become a high profile issue, many states have considered legislation that establishes or increases penalties for using or possessing personally identifying information from a driver's license. States are also considering legislation that would heighten penalties for counterfeiting licenses or identification cards (see Appendix F).

Some states have introduced legislation aimed at individuals attempting to use the state licensing office as their source of a fraudulent license or identification card. Some high profile cases have grabbed media attention in states such as New Jersey and Tennessee where state licensing officials have been charged with fraudulently aiding in counterfeiting state driver's licenses.

States considering legislation aimed at stopping state-issued fraudulent identification target two primary sources: individuals who create false identification documents that allow them to obtain a license from the unknowing licensing official; and second, legislation that targets the licensing officials themselves who knowingly help another in obtaining a fraudulent license.

Conclusion

More than 40 states considered driver's license legislation during the 2001 and 2002 legislative sessions to strengthen the security of driver's licenses and identification cards. State lawmakers continue to consider who should be eligible for state identification cards and driver's licenses, what documentation will be accepted, and how to determine whether the documentation is valid with either technology or adequately trained personnel. Furthermore, identity theft has raised legislators' awareness of technology used to create fraudulent documents, state licenses or IDs. States are looking at making the driver's license more difficult to replicate by using biometrics to serve as a secondary identity verification. Although state licensing regulations in many states are largely administrative, state legislators in 2002 have taken a fresh look at this issue and the legislative options for improving the security of state-issued identification.

Appendices

Appendix A: Legal Presence and Application Documentation Legislation by State

Appendix B: SSN and ITIN Legislation by State

Appendix C: "Hardened" License Legislation by State

Appendix D: Biometrics Implementation Legislation by State

Appendix E: Biometrics (Fraud and Use) Legislation by State

Appendix F: License and ID Fraud Legislation by State

Web Resources

• United States Social Security Administration
• National Conference of State Legislatures and the Council of State Governments: Report on Driver's License Integrity
• National Immigration Law Center: Immigrants & Public Benefits: Driver's Licenses
• United States Office of Homeland Security: National Security Strategy of the United States of America (pdf version)

Contact Information

Melissa A. Savage, Senior Policy Specialist
(303) 364-7700
melissa.savage@ncsl.org

James B. Reed, Transportation Program Director
(303) 364-7700
jim.reed@ncsl.org

Notes

1. U.S. Department of Health and Human Services, Administration for Children & Families, Office of Child Support Enforcement, Inclusion of Social Security Numbers on License Applications and Other Documents, PIQ-99-05, July 14, 1999, obtained from http://www.acf.dhhs.gov/programs/cse/pol/piq-9905.htm; Internet.
2. U.S. General Accounting Office, Child Support Enforcement: Most States Collect Drivers' SSNs and Use Them to Enforce Child Support, Report to the Subcommittee on Human Resources, Committee on Ways and Means, House of Representatives, GAO-02-239 (February 2002).
3. Minutes of the Delaware Interim Transportation Committee, April 24, 2002, obtained from http://www.le.state.ut.us/interim/2002/HTML/20020424.INTTRA.MN.01.htm; Internet.

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