[Senate Hearing 110-291]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-291
 
 UNDERSTANDING THE REALITIES OF REAL ID: A REVIEW OF EFFORTS TO SECURE 
               DRIVERS' LICENSES AND IDENTIFICATION CARDS

=======================================================================



                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,
                     THE FEDERAL WORKFORCE, AND THE
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 26, 2007

                               __________

        Available via http://www.access.gpo.gov/congress/senate

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs


                     U.S. GOVERNMENT PRINTING OFFICE

34-415 PDF                 WASHINGTON DC:  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001




        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                  Trina Driessnack Tyrer, Chief Clerk


  OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE 
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware           TED STEVENS, Alaska
MARK L. PRYOR, Arkansas              TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana          JOHN WARNER, Virginia

                   Richard J. Kessler, Staff Director
                     Jennifer Tyree, Chief Counsel
             Jennifer A. Hemingway, Minority Staff Director
             David Cole, Minority Professional Staff Member
                      Emily Marthaler, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Voinovich............................................     3
    Senator Collins..............................................     5
    Senator Warner...............................................     6
Prepared statements:
    Senator Lieberman............................................    45
    Senator Sununu...............................................    47

                               WITNESSES
                         Monday, March 26, 2007

Hon. Richard C. Barth, Ph.D., Assistant Secretary, Office of 
  Policy Development, U.S. Department of Homeland Security.......     7
Hon. Leticia Van de Putte, Texas State Senator, and President, 
  National Conference of State Legislatures......................    22
Hon. Mufi Hannemann, Mayor, City and County of Honolulu, Hawaii; 
  accompanied by Dennis Kamimura, Licensing Administrator, City 
  and County of Honolulu, Hawaii.................................    23
David Quam, Director, Federal Relations, National Governors 
  Association....................................................    25
Timothy Sparapani, Legislative Council, American Civil Liberties 
  Union..........................................................    36
Jim Harper, Director, Information Policy Studies, The Cato 
  Institute......................................................    38

                     Alphabetical List of Witnesses

Barth, Hon. Richard C., Ph.D.:
    Testimony....................................................     7
    Prepared statement with an attachment........................    48
Hannemann, Hon. Mufi:
    Testimony....................................................    23
    Prepared statement...........................................    65
Harper, Jim:
    Testimony....................................................    38
    Prepared statement with attachments..........................    89
Quam, David:
    Testimony....................................................    25
    Prepared statement...........................................    69
Sparapani, Timothy D.:
    Testimony....................................................    36
    Prepared statement with an attachment........................    74
Van de Putte, Hon. Leticia:
    Testimony....................................................    21
    Prepared statement with an attachment........................    57

                                APPENDIX

Background.......................................................   108
September 2006 Report, ``The Real ID Act: National Impact 
  Analysis,'' presented by the National Governors Association, 
  National Conference of State Legislatures, and the American 
  Association of Motor Vehicle Administrators....................   119
``New Federal Regulations Get an `F' in Addressing Issues with 
  the Real ID Act,'' report submitted by the American Civil 
  Liberties Union (ACLU).........................................   179
Additional prepared statements submitted for the Record from:
    Jay Maxwell, President and CEO of Clerus Solutions...........   198
    Wendy R. Weiser, Deputy Director of the Democracy Program and 
      Myrna Perez, Counsel at the Brennan Center for Justice at 
      NYU School of Law..........................................   206
    Melissa Ngo, Director of the Identification and Surveillance 
      Project, Electronic Privacy Information Center.............   210
    Sophia Cope, Staff Attorney/Ron Plesser Fellow, Center for 
      Democracy and Technology...................................   223
    Hon. Mark Sanford, Governor, State of South Carolina.........   240
    George Valverde, Director, Office of the Director, Department 
      of Motor Vehicles, Sacramento, California, with an 
      attachment.................................................   243
Questions and responses submitted for the Record:
    Mr. Barth....................................................   246
    Ms. Van de Putte.............................................   260
    Mr. Hanneman and Mr. Kamimura................................   262
    Mr. Quam.....................................................   267


 UNDERSTANDING THE REALITIES OF REAL ID: A REVIEW OF EFFORTS TO SECURE 
               DRIVERS' LICENSES AND IDENTIFICATION CARDS

                              ----------                              


                         MONDAY, MARCH 26, 2007

                                   U.S. Senate,    
              Subcommittee on Oversight of Government      
                     Management, the Federal Workforce,    
                            and the District of Columbia,  
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room 342, Dirksen Senate Office Building, Hon. Daniel Akaka, 
Chairman of the Subcommittee, presiding.
    Present: Senators Akaka, Voinovich, Collins, and Warner.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. I call the Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District 
of Columbia to order.
    I want to welcome Senator Collins here. It seems as though 
our border States are vitally interested in the issue before us 
today.
    Before we begin, I want to extend a warm welcome to all of 
our witnesses today and especially to Honolulu Mayor Mufi 
Hannemann, who presented me this lei, and who is accompanied by 
Dennis Kamimura, the Licensing Administrator for the City and 
County of Honolulu. I greatly appreciate you coming all the way 
from Hawaii, Mufi, and I look forward to discussing how REAL ID 
impacts the State of Hawaii and the County of Honolulu.
    Today's hearing, ``Understanding the Realities of REAL ID: 
A Review of Efforts to Secure Drivers' Licenses and 
Identification Cards,'' will review the REAL ID Act of 2005 and 
the proposed regulations implementing the Act recently issued 
by the Department of Homeland Security.
    In 2004, the 9/11 Commission reported that all but one of 
the September 11 hijackers acquired some form of U.S. 
identification, some by fraudulent means, which assisted them 
in boarding commercial flights, renting cars, and other 
activities. As a result, the Commission recommended the Federal 
Government set standards for issuing sources of identification 
such as drivers' licenses.
    In December 2004, Congress passed the Intelligence Reform 
and Terrorism Prevention Act to establish a negotiated 
rulemaking process among the Federal Government, State, and 
local governments, privacy groups, and other stakeholders to 
develop standards for drivers' licenses and identification 
cards. However, the Act provided States with flexibility for 
complying with Federal requirements and ensured privacy 
protections.
    Without the benefit of Congressional hearings and before 
the negotiated rulemaking committee held its second meeting, 
the REAL ID Act was included in the 2005 Emergency Supplemental 
Conference Report, thus replacing the collective effort to 
address the 9/11 Commission's recommendation.
    From its inception, REAL ID has been controversial and 
criticized by both ends of the political spectrum. The Act 
places a significant unfunded mandate on States and poses a 
real threat to privacy and civil liberties.
    In issuing the REAL ID regulations, DHS has acknowledged 
the implementation problems and the need to address the burdens 
placed on the States. Secretary Chertoff announced that States 
could easily apply for a waiver for the compliance deadline and 
could use up to 20 percent of the States' Homeland Security 
Grant Program (SHSGP) funds to pay for REAL ID implementation. 
To me, this proposal does nothing to address the cost of REAL 
ID which DHS makes estimates to be anywhere from $17.2 billion 
to $23.1 billion. Moreover, the President's fiscal year 2008 
budget proposes to cut SHSGP by 52 percent. On top of this, 
States have already designated SHSGP funds for particular 
homeland security projects, such as interoperability equipment, 
physical security structures, training, and evacuation 
planning.
    My other concern is a serious threat by REAL ID to the 
privacy of Americans' personal information. The massive amounts 
of personal information that would be stored in State databases 
that are to be shared electronically with other States, as well 
as unencrypted data on the card, could provide one-stop 
shopping for identity thieves.
    In addition, the DHS regulations failed to address redress 
mechanisms for individuals whose data is lost or stolen in 
another State or guidance on how States are to secure source 
documents.
    As a result, REAL ID may make us less secure by giving us a 
false sense of security. Unfunded mandates and the lack of 
privacy and security requirements are real problems that 
deserve serious consideration and workable solutions.
    Congress has a responsibility to ensure that drivers' 
licenses and ID cards issued in the United States are 
affordable, practical, and secure, both from would-be 
terrorists and identity thieves.
    Over half of our Nation's State Legislatures, 28, have 
acted to introduce or to pass legislation expressing concern or 
calling for repeal of REAL ID. Two States, Maine and Idaho, 
have passed legislation to opt out of complying with REAL ID. 
In Hawaii, a resolution passed the State Senate which calls for 
repeal of those provisions of REAL ID that violate the rights 
and liberties guaranteed under the Hawaii State Constitution 
and the Constitution of the United States and create unfunded 
mandates for the State without any plan for financial 
subsidization for implementation.
    To address these concerns, I reintroduced the Identity 
Security Enhancement Act, S. 717, with Senators Sununu, Leahy, 
and Tester, to repeal REAL ID and replace it with a negotiated 
rulemaking process and the more reasonable guidelines 
established in the Intelligence Reform and Terrorism Prevention 
Act of 2004. It is in the interest of Americans that this 
hearing shed light on the problems with REAL ID and provide a 
forum to discuss solutions that both protect the Nation and 
Americans' privacy and civil liberties.
    I now turn to my good friend and partner on so many issues 
to improve government programs, Senator Voinovich, for any 
opening statement he may want to make. Senator Voinovich.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you, Mr. Chairman, for holding 
this important hearing today to discuss the proposed 
regulations for implementation of REAL ID. The statutory 
requirement to issue 245 million--245 million--secure drivers' 
licenses in 5 years places a significant burden on our States, 
which bear the bulk of the responsibility for meeting the 
mandate.
    The long-awaited draft regulation to implement REAL ID was 
released earlier this month. I want to begin by commending the 
Department of Homeland Security for its outreach process. The 
draft regulation clearly reflects a number of common sense 
recommendations that have been made by the States.
    I had the opportunity to meet Secretary Chertoff last month 
to discuss REAL ID and was heartened by his sincere commitment 
to make full use of the flexibilities provided in the draft 
regulation. Secretary Chertoff is firmly committed to waiving 
the May 2008 compliance deadline until the end of 2009 for any 
State that makes a reasonable request.
    However, I am concerned by the number of hurdles that stand 
in the way, including the cost to States and the lack of 
availability of electronic verification systems. It is 
important that we work together to find solutions to these 
challenges before us. The relationship between the Federal 
Government, State, and local governments should be one of 
partnership. Sadly, that is not always the case as the Federal 
Government has a tendency to force new responsibilities on 
State and local governments without providing adequate funding 
to cover the true cost.
    As Governor of Ohio, I became particularly concerned with 
the cost of Federal mandates. During my tenure, I worked 
tirelessly with State and local government groups to pass the 
Unfunded Mandates Reform Act. As a matter of fact, the first 
time in my life that I set foot on the floor of the U.S. Senate 
was when the unfunded mandates relief legislation passed. I was 
in the Rose Garden representing State and local governments 
when President Clinton signed the legislation in 1995 and that 
pen is proudly displayed in my office today.
    DHS estimates that the cost for States to comply with REAL 
ID will exceed $14 billion, and that most of these costs will 
be incurred in the first 5 years. Ohio, my State, estimates 
that it will need $45 million to comply and $11 million 
annually to run the program. As someone who has been 
responsible for balancing a public budget, I can assure you 
these are significant costs that require tough choices.
    This unfunded mandate poses a significant financial burden 
on States, many of whom are facing tight budgets. Though I am 
pleased the Department will allow States to use 20 percent of 
their State Homeland Security Grant Program funds to help 
implement REAL ID, I worry about the unmet homeland security 
needs that will be put on the back burner if States select this 
option.
    For example, last month, I was in Cuyahoga County, the 
largest county in Ohio, to discuss the cost of implementing 
their interoperability program, which is $114 million. It is 
ridiculous to ask States to use 20 percent of their State 
homeland grant programs, which in most cases have already been 
allocated, to implement REAL ID.
    I question whether Congress understands the huge cost 
burden we are placing on States, and I believe that the Federal 
Government should provide the necessary funding to aid States 
as they reconfigure their drivers' license requirements to meet 
their new Federal responsibility.
    Technology will also be a key factor in the successful 
implementation of REAL ID. States will need functional access 
to a number of databases for verification of an individual's 
identity. Given the limited time frame, our Federal Government 
must move quickly to ensure nationwide access to the required 
databases. As we ask States to do their part, we must be sure 
the Federal Government is also meeting its responsibility in a 
timely manner.
    The implementation of REAL ID comes at a time when the 
Federal Government is developing a number of new identification 
documents, including the Pass card, biometric passports, the 
TWIC card, and the Fast card. It seems to me that we ought to 
take a fresh look at the various identification requirements 
and consider whether or not some of these documents could be 
used for multiple purposes. For example, common sense would 
suggest that residents could use their REAL ID cards to cross 
our Northern land border instead of having to also apply for 
either a Pass card or a passport.
    My concern should not suggest that I am opposed to REAL ID. 
Rather, I want to be sure that as we move forward with 
implementation, we are honest about the true cost of 
compliance. DHS must also redouble its efforts to work closely 
with States to help ensure a seamless implementation. This 
partnership is essential to the success of REAL ID, and more 
importantly, to securing our homeland from another terrorist 
attack.
    Mr. Chairman, today's hearing marks an important first step 
in our oversight of REAL ID. As implementation moves forward, I 
would suggest that we invite some of our witnesses today, 
including DHS, to report back to us in 3 months on their 
progress.
    Senator Akaka. Thank you very much, Senator Voinovich.
    Now I will ask for the statement from the Senator from 
Maine, Senator Susan Collins, who has been a great leader in 
the Senate and especially with the Homeland Security Committee 
here. As I mentioned earlier, her State has already taken 
action on REAL ID, so, we are glad to have you here, Senator 
Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you very much, Mr. Chairman. I must 
say, I am very envious of the gift that the Honolulu Mayor 
brought to you. You look quite festive decked out in your lei 
there.
    Mr. Chairman, I am very pleased to join today in the 
discussion of the REAL ID Act of 2005 and the draft regulations 
that the Department of Homeland Security has recently issued to 
implement this program and I very much appreciate the comments 
that both the Chairman and Senator Voinovich have been making 
on this issue.
    I first became involved in this issue back in 2004 when 
Senator Lieberman and I were working on legislation to 
implement the recommendations of the 9/11 Commission, which 
included recommendations for more secure identity documents, 
including drivers' licenses. The Commission pointed to the fact 
that several of the hijackers used drivers' licenses to gain 
access to airplanes and that they had obtained them in some 
cases through fraudulent documents.
    To respond to that legitimate concern, Senator Lieberman 
and I drafted negotiated rulemaking provisions that were put 
into the Intelligence Reform Act of 2004 that called upon the 
Department of Transportation to convene a group to work with 
State officials, privacy advocates, and technological experts 
to come up with a workable, practical solution to the problem 
identified by the 9/11 Commission.
    And indeed, this committee, this rulemaking committee, was 
appointed. Maine's Secretary of State was one of the members 
and they were working along, making progress, doing exactly 
what they were charged with when, unfortunately, the House 
moved ahead and tacked on the REAL ID Act to an emergency war 
supplemental bill. This Act repealed the negotiated rulemaking 
provisions of the Intelligence Reform Act, and proceeded to 
direct the Department to unilaterally draft regulations.
    Well, now we find ourselves 2 years from the passage of the 
REAL ID Act, which repealed these 2004 provisions before they 
were given a chance to work, and only a year from the statutory 
deadline for compliance. I am very pleased that in response to 
concerns that many of us raised, the Department of Homeland 
Security has responded by extending the compliance deadline 
considerably and by trying to put back in place the negotiated 
rulemaking process, albeit as a response to the preliminary 
regulations rather than starting from scratch, and those 
provisions are similar to the bill that Senator Akaka and 
Senator Sununu have introduced to try to reintroduce negotiated 
rulemaking. I think that is going to greatly improve the 
process.
    We need to make sure that in the pursuit of more secure 
drivers' licenses that we are not jeopardizing the fundamental 
liberties of our citizens and that we are not simply handing 
the bill, an enormous bill, over to the states that requires 
them to divert funds from other vital homeland security 
activities. In that regard, I want to associate myself with the 
comments made by the Senator from Ohio, who is both a former 
governor and a former mayor and has a special appreciation for 
unfunded mandates.
    The State of Maine has estimated that the cost of complying 
with the REAL ID Act would be six times the cost of the entire 
budget for the Bureau of Motor Vehicles. So the cost of this 
remains a concern, and while I appreciate the Department trying 
to introduce flexibility, the fact is that the need for 
Homeland Security grant monies for a host of other vital and 
urgent needs remains, and I think it is going to be very 
difficult for States to use 20 percent of those funds to pay 
for compliance with the REAL ID Act.
    So I think this is an issue that we are going to have to do 
more work on, on the cost issues, on the privacy issues, and on 
the technology issues. This is not an easy task to make sure 
that States can tap into databases of other States and it 
raises many security concerns.
    So, Mr. Chairman, I thank you for holding this hearing, a 
hearing that had the normal course been followed with the REAL 
ID Act, we would have held years ago and I think we would have 
ended up with more reasonable legislation. So thank you.
    Senator Akaka. Thank you very much, Senator Collins.
    Now, before we move on, I would like to ask Senator Warner 
for any statement that he may have.

              OPENING STATEMENT OF SENATOR WARNER

    Senator Warner. Thank you, Mr. Chairman. I am pleased to be 
here because I am quite interested in this whole concept. I 
really think America needs to explore this particular concept 
in the national security interest. This is where my primary 
concern arises.
    We have now learned that the duplication and the 
falsification of drivers' licenses is quite feasible. Our 
security here at home is highly dependent in certain areas, 
like when boarding aircraft and otherwise, to have some sense 
of confidence that the individual that displays the card is, in 
fact, the rightful owner of it. And this card, because of 
technical advances, can be produced in such a way as to greatly 
increase the security as associated with any type of 
identification individual proffers, whether it is for the 
airlines or other purposes.
    So I approach this with an open mind, leaning hard towards 
seeing what we can do to help the States facilitate the law as 
it is now written, and if necessary, to change the law that is 
written to try to further help our States. But the bottom line 
is we have got to come to the recognition that the life before 
us is different than the life behind us and that we are faced 
with very serious threats from abroad and perhaps, regrettably, 
some internally, and this type of identification will go a long 
way to, I think, make us more secure here at home.
    I thank the Chairman.
    Senator Akaka. Thank you very much, Senator Warner.
    Senator Warner. I would ask to put the balance of my 
remarks in the record.
    Senator Akaka. It will be included in the record.
    [The prepared statement of Senator Warner follows:]
                  PREPARED STATEMENT OF SENATOR WARNER
    Thank you for calling today's hearing as I feel it is one that 
deserves greater attention in this Committee and indeed the entire 
Senate. Since the passage of the Real ID Act many have criticized the 
program for reasons of cost, inefficiency, and privacy. It is my hope 
that we may today explore these concerns and some potential solutions.
    I believe that standardized identification criteria among the 
States will make for a more secure country. We can eliminate fraud, 
provide a barrier to crime, and ultimately protect the American public 
better if we can rely on the authenticity of state issued drivers' 
licenses and identification cards. I believe that the sooner we have 
Real ID in place, the better. However, I have one significant concern 
with the program as it has been proposed--the passing of an unfunded 
mandate onto the States.
    It is my firmly held belief that the primary responsibility of the 
Federal Government is to provide for the national defense. And I also 
believe that the Real ID program is a part of this responsibility. What 
I do not understand is why this federal responsibility is not being 
funded by the Federal Government.
    The National Governors Association has estimated that the cost of 
compliance to the States with Real ID will be approximately $11 
billion. The Administration has argued that the costs should simply be 
passed on to the users in the form of increased fees for drivers 
licenses. Certainly larger states that issue millions of licenses can 
absorb these costs much easier than smaller states that may only issue 
a few hundred thousand.
    I am pleased that the Department of Homeland Security has 
recognized this issue and intends to help the States with some of the 
costs of compliance by paying for the network build-out but am 
concerned that this only represents a fraction of the costs to the 
States.
    I look forward to hearing more from our witnesses about their 
concerns and am hopeful that we may come together on some common ground 
on this important issue.

    Senator Akaka. I want to welcome the Hon. Richard Barth, 
Assistant Secretary for the Office of Policy Development at the 
Department of Homeland Security, to this Subcommittee hearing 
today.
    Mr. Barth, it is the custom of this Subcommittee to swear 
in all witnesses, so please stand and raise your right hand.
    Do you solemnly swear that the testimony you are about to 
give this Subcommittee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Barth. I do.
    Senator Akaka. Let the record note that the witness 
answered in the affirmative.
    Thank you. While statements are limited to 5 minutes, I 
want all of our witnesses to know that their entire statements 
will be included in the record.
    Mr. Barth, will you please proceed with your statement.

  TESTIMONY OF HON. RICHARD C. BARTH,\1\ ASSISTANT SECRETARY, 
   OFFICE OF POLICY DEVELOPMENT, U.S. DEPARTMENT OF HOMELAND 
                            SECURITY

    Mr. Barth. Chairman Akaka, Senator Voinovich, and 
distinguished Members of the Committee, thank you for the 
opportunity to appear before you today to discuss REAL ID.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Barth with an attachment appears 
in the Appendix on page 48.
---------------------------------------------------------------------------
    I also want to take this opportunity to thank you for 
introducing S. Res. 94 earlier this month to honor the 
employees of the Department of Homeland Security on the 
Department's fourth anniversary. It was gratifying to the 
employees to receive this recognition by the Senate.
    Your subject for this hearing, ``Understanding the 
Realities of REAL ID,'' is highly appropriate and timely. This 
is a very challenging program for both the States and the 
Federal Government to implement, with many complexities ranging 
from cost to technically integrating various data links while 
imposing strong data security and privacy protections.
    Let me be clear at the outset. Effectively implementing a 
REAL ID program is a top priority for DHS. REAL ID is 
fundamental to our security as a Nation. We can debate the 
costs. We can fret about the time to implement and time waiting 
in line to obtain a REAL ID. But the inextricable link to 
ensuring that people are who they say they are when someone 
gets on an airplane and sits next to you is of paramount 
importance to preventing another September 11.
    All but one of the September 11 hijackers acquired some 
form of U.S. identification document. Eighteen hijackers 
fraudulently obtained 17 drivers' licenses and 13 State-issued 
identifications and some even possessed duplicate licenses. The 
pilot who crashed American Airlines Flight 77 into the 
Pentagon, Hani Hanjour, had ID cards from three States. The 
drivers' licenses and State IDs enabled the hijackers to 
maneuver throughout the United States in order to plan and 
execute critical elements of their mission. Using these 
documents, they were able to rent cars, take flying lessons, 
and board airplanes. The hijackers believed that holding 
drivers' licenses and ID cards would allow them to operate 
freely in our country, and they were right.
    So again, as I will repeat over and over again today, our 
security as a people and collectively as a Nation relies on 
valid identification documents.
    Counsel to the 9/11 Commission, Janice Kephart, said the 
REAL ID recommendation was ``perhaps the single most effective 
measure the United States can accomplish to lay the necessary 
framework for sustainable national and economic security and 
public safety.'' Said another way, identity document security 
is a prerequisite for overall security in the United States. If 
we cannot verify that people are who they say they are and if 
we allow loopholes in obtaining drivers' licenses and IDs to 
exist, DHS's job and that of law enforcement becomes 
exponentially more difficult. Sadly, four of the hijackers had 
been stopped for traffic violations in various States while out 
of legal immigration status, a condition that should have 
resulted in their drivers' licenses expiring.
    Key features of the proposed rule include the following. 
Individuals seeking drivers' licenses or personal ID cards will 
need to establish their identity, U.S. nationality or lawful 
immigration status, date of birth, Social Security number, and 
principal residence. States would verify the issuance validity 
and completeness of the document presented. As you can see by 
the chart,\1\ which is also included in my testimony, 
electronic verification of these documents is a work in 
progress. But in some areas, we can quickly get the States 
online. For example, birth certificate information can be 
brought online for all States for about $4 million, and we hope 
to be able to use existing DHS grant money to facilitate that 
over the next year or so.
---------------------------------------------------------------------------
    \1\ The chart submitted by Mr. Barth appears in the Appendix on 
page 56.
---------------------------------------------------------------------------
    Standard information will be required to appear on the 
cards, including full legal name, date of birth, gender, a 
unique identification number, a full facial digital photograph, 
address of principal residence, issuance and expiration dates, 
and signature. The cards would also have physical security 
features and a common machine-readable technology.
    Each State must prepare a comprehensive security plan for 
all State DMV offices, storage and production facilities, 
databases, and systems. Employee background checks would be 
required to decrease the probability of criminal collusion with 
DMV employees.
    Further details on the floor that we are establishing for 
more secure IDs is in my written testimony, and it is important 
to note that the States are not precluded from requiring 
additional security features.
    The September 11 attacks cost 3,000 lives and $64 billion 
in immediate losses followed by longer-term financial losses of 
$375 billion. The potential for further loss of life and 
property far outweighs the financial burdens to States and 
territories in implementing REAL ID. As the Secretary noted 
when he held his press conference when we published the rule, 
these new cards will cost less than $20 additional each time 
you renew your license.
    I personally believe that any further delay in implementing 
REAL ID would significantly increase our vulnerabilities as a 
Nation, and as long as I have responsibility for this program, 
I intend to do everything possible to make sure that fake IDs 
are not part of the scenario in the next terrorist plot 
successfully carried out in this country.
    To echo the words of the 9/11 Commission, for terrorists, 
travel documents are as important as weapons. Our security, as 
a Nation, is at stake, and I hope you will support the full 
implementation of REAL ID. It is a national problem and demands 
a national solution.
    Thank you, Mr. Chairman, for the opportunity to testify 
today and I look forward to your questions.
    Senator Akaka. Thank you very much, Mr. Barth.
    Hawaii is an island State whose residents depend on air 
travel to travel within the State. If the State decides not to 
comply with the requirements of the REAL ID or if individuals 
in Hawaii cannot obtain a REAL ID-compliant driver's license, 
will DHS grant a waiver for inter-island travel so that our 
residents will be able to travel within the State to visit 
family and friends on other islands?
    Mr. Barth. That is a very good question, Mr. Chairman, and 
we are looking at various solutions for that question that 
would not prevent the residents of Hawaii from getting around 
the islands. One of the obvious solutions is that a passport, 
for those who hold a passport, is an easy alternative for 
getting on an airplane even if Hawaii decides to opt out of 
REAL ID.
    In addition, we are looking at alternative documentation 
like a Federal Government-issued ID out of the Department of 
Homeland Security to deal with citizens of States who want to 
be able to travel freely and easily on airplanes and provide an 
alternative to the REAL ID that would be equally validated and 
equally difficult to make fraudulent cards from.
    And finally, I would note that in virtually all cases where 
DHS has security, whether it is Customs coming into the country 
or TSA and airports for controlling security in airports, there 
is a secondary referral process that you can go to and present 
other kinds of documentation that will help inform the 
inspector to make a decision as to whether or not to let you 
onto the airplane without a REAL ID. So there are multiple 
scenarios that we think will effectively address your concern. 
Thank you.
    Senator Akaka. As you know, Mr. Barth, many people are 
worried about the REAL ID's impact on privacy and civil 
liberties. Because of this, did the White House Privacy and 
Civil Liberties Board review the regulations, and did DHS make 
any changes to the regulations based on their comments? If so, 
would you please describe those changes?
    Mr. Barth. Thank you, sir. I am not aware that the White 
House Privacy Board looked at the regulation before it went 
out. There is a White House circulation process and I am not 
aware of all the details of it. However, we were very concerned 
with the privacy issue. I think the regulation and the preamble 
to it goes into it at great length about our concerns to make 
sure the databases are secure. Certainly the background checks 
on DMV employees are a big part of protecting privacy.
    But we also issued at the time that the regulation came out 
or shortly thereafter a 25-page privacy impact analysis that 
our own Privacy Office did for DHS and it clearly addresses a 
lot of the different concerns, even beyond the regulation 
itself. We are looking forward to receiving comments from the 
privacy civil rights and civil liberties communities on the 
regulation during this 60-day comment period and we will do 
everything within our ability to try to make sure that their 
concerns are fully taken care of.
    No one wants to be a subject of identity theft, and so we 
want this document to be as secure as possible to become an 
added advantage in a world where identity theft is becoming a 
multi-billion-dollar problem for citizens across the country.
    Senator Akaka. As you know, Mr. Barth, REAL ID is going to 
cost State and local governments billions of dollars. Although 
DHS has approximately $40 million in grant funding to provide 
States and has authorized the use of State Homeland Security 
Grants, this is not enough. What are DHS's plans for helping 
States pay for REAL ID?
    Mr. Barth. Mr. Chairman, I think that the $40 million is 
something that we are looking at to become a keystone of doing 
one particular factor or technology link that needs to be 
accomplished to make REAL ID work and we are working with our 
grants and training folks in the Department and consulting with 
States on trying to find a way of funding the interconnectivity 
of all of those databases that you see up there while paying 
close attention to privacy and data security issues. So we are 
working to try to get the most significant impact out of that 
$40 million that has already been appropriated.
    Beyond that, I have expressed to our friends at the 
National Governors Association, National Council of State 
Legislatures, that they have significant lobbying powers and 
that we will not in any way, shape, or form try to object to 
them acquiring other money through appropriations and 
authorization by the Congress, but we just don't feel like that 
is necessarily our role at this time.
    The finalization of interoperable, interconnected networks 
of networks, which is what that chart represents, is something 
that we believe will cost probably more than $40 million and we 
are right now working with our various technology groups in the 
Department of Homeland Security, the CIO's Office, for example, 
to identify the way to link up these databases securely and 
with due process for identity theft and other problems, and 
when we conclude the preliminary work-up of that, we will be 
submitting to Congress, hopefully for the 2009 fiscal year 
budget, a proposal to have the Federal Government take on the 
responsibility of networking those networks effectively and 
securely.
    Senator Akaka. Mr. Barth, you have repeatedly said that the 
States will use a pointer system, which is based on the 
Commercial Driver's License Information System, to verify 
information from other States. However, the regulations do not 
state this and instead leave open how States are to share 
information with each other. This may be one reason why 
Americans fear this is becoming a national ID card. Why didn't 
DHS just require the use of CDLIS for REAL ID?
    Mr. Barth. Mr. Chairman, that is a very good question and 
there is a ready answer for it. The CDLIS system handles in the 
tens of millions of commercial drivers' licenses each year and 
it does so very effectively, and I might point out that to the 
Department of Transportation's knowledge, which has been 
managing the funding and the establishment of the Commercial 
Driver's License System since, I think, 1986 when they started 
the roll-out of that system, there have been no Privacy Act 
violations, so there is an additional reason, perhaps, to use 
that system, as you have suggested.
    At the time when we wanted to bring the regulation to 
closure and get it published, we were in intense dialogue with 
AAMVA, which manages the CDLIS system for the Transportation 
Department, as to their system and particularly whether it had 
the ability to scale up in time to handle the 240 million non-
commercial drivers' licenses that need to be renewed over a 5-
year period as part of this program.
    So we are getting closer and closer to having the kind of 
assurance for that exact pointer system, which has not had 
privacy problems since 1986, might be exactly the solution that 
we want. We are not ready to say that yet. It may be several 
more months. But to the extent we can possibly put that in the 
final regulation as our pathway forward, I will certainly take 
your comments on board, also, because we are inclined towards 
that.
    Senator Akaka. While the REAL ID Act requires States to 
verify information against certain databases, I understand that 
some databases do not exist and others are only in the pilot 
phase. Can you provide us specific data on the status of each 
database and their estimated time of availability on a national 
basis?
    Mr. Barth. Yes, sir. Mr. Chairman, again, I will refer to 
the chart that we provided up here. If you look at the far 
right, it is a column that shows absolutely no check-marks for 
States being able to access the Passport Office records for 
your individual passport to confirm that you are who you say 
you are. Interestingly, that database exists, it is highly 
accurate and very robust, and the only thing that is missing is 
the interconnectivity between the State DMV offices and the 
State Department Passport Office. We, for example, query that 
passport database all the time as part of the DHS's mission.
    So the chart, while it shows significant gaps, as you are 
suggesting, I think it also, when you dig deeper into 
explaining each of those links, it is not as bad as it looks.
    The next column over, which is the birth certificate 
confirmation, I am informed by the Department of Health and 
Human Services that 85 percent of all birth certificates dating 
back to 1935 have already been digitized. Those checks there 
show the pilot program that is effectively linking the birth 
records with DMV offices, and as I said in my oral testimony 
and the written testimony, for only $4 million, we can have 
that total column there have checks for that interconnectivity 
that we require.
    So each one is a different story and it would--perhaps in 
questions for the record we can give you all the details you 
wish.
    Senator Akaka. Thank you so much for your responses. Let me 
now call on Senator Voinovich for his questions.
    Senator Voinovich. Thank you.
    Dr. Barth, the proposed regulations state that DHS will 
require the use of several databases to electronically verify 
lawful status and Social Security numbers of individuals. They 
include Social Security Online Verification.
    The Department of State's Consolidated Consular Database, 
Electronic Verification and Vital Events System (EVVE), and the 
Systematic Alien Verification for Entitlement (SAVE), I 
understand, all 50 States have Memorandums of Understanding or 
access to SAVE. However, only 20 are currently using it to 
verify lawful status. States will also need to access U.S. 
Immigration and Customs Enforcement Student and Exchange 
Visitor Information (SEVIS).
    The question I have is how far in advance are you going to 
be able to have all these databases up and working?
    Mr. Barth. Thank you, Senator, for the question. If I could 
answer with the precise date, I would be thrilled to do so. I 
can tell you that we have teams working very hard to provide 
all that connectivity and all that verification capability that 
we share with you in wanting to provide to the States.
    If, for example, the State Department for funding reasons 
or manpower reasons or priority reasons is unable to provide 50 
States plus 7 territories linkage to their passport database, 
we will look very closely at finding some waiver authority 
within the Secretary's authority that would allow us to defer 
bringing the passports online until it is technologically 
feasible, funded, and has actually been accomplished by the 
State Department. In making sure that we don't create a 
loophole for further fraudulent activity, we could 
significantly increase the training for DMV officials on 
spotting fraudulent passports.
    So we think that there are tradeoffs there between 
fraudulent document review and actual exceptional digital 
verification that we can make in the early years of the roll-
out of REAL ID.
    Senator Voinovich. I think you have answered the second 
question that I was going to ask, and that is if the databases 
are not up and working by the May 2008 deadline, do you have 
the authority through regulation to extend that period beyond 
that date?
    Mr. Barth. My understanding is that we will have the 
authority to extend beyond that date, yes, and we will be--our 
hard target, if you will, for filling in that entire chart with 
check-marks for all 50 States and all five databases would be 
the December 31, 2009 deadline for which the Secretary has 
indicated he will issue waivers. But for those states that have 
indicated to us they want to be early adopters, if you will, we 
believe we have the authority to give them alternatives to 
electronic verification of a passport.
    Senator Voinovich. Is there any effort being made to 
coordinate the technology that is going to be implemented by 
the various States?
    Mr. Barth. Yes. We have considered that issue and have 
actually raised it in the regulation, and at this point in 
time, the proposed rule would not require the 50 States to use 
the connectivity that we provide. However, in order to ensure 
that data passes back and forth through the network 
efficiently, that is one of the reasons why we believe it 
should be a Federal responsibility to pay for the build-out of 
that network of networks to remove the incentive for a State to 
perhaps go down a different path. If it is paid for, built out 
faster than anything else, etc., we think that will be a 
powerful incentive to the States coming online, a single system 
rather than creating a panoply of systems, as you suggest.
    Senator Voinovich. You are developing technology that you 
will share with the States?
    Mr. Barth. We would not develop technology. We would seek a 
technology solution funded by the Federal Government that the 
States would have a large stakehold in. We have not yet defined 
in a high level of granularity what that will look like, but I 
will draw an analogy to the Department of Transportation, which 
funds the development of this CDLIS system that the Chairman 
was referring to, but the States own the system and have funded 
AAMVA, the American Association of Motor Vehicle 
Administrators, to build out this CDLIS system.
    And if that system proves to be, as I certainly hope it 
does, the framework for a significantly scaled up civilian 
driver's license verification network, it will have the 
advantages that the Chairman mentioned of being a pointer 
system, not a lot of data flowing. It won't retain a lot of 
data in a central database, which poses its own risks. And it 
will give us a platform on which to build without having to 
invent new technology.
    Senator Voinovich. Are you going to be able to guarantee 
that information is going to remain private?
    Mr. Barth. To the extent that we can provide the 
safeguards, we believe that this system will be vastly an 
improvement over the current 50-plus-7 territories systems that 
are built out now. Whether it is the documented cases last week 
in North Dakota of fraudulent driver's license activity, 
whether it is the $4,000-per-license cost to collude with an 
internal DMV person in New Jersey, or some Connecticut similar 
fraud cases in the past, I think wherever you have human beings 
involved and the capability to bribe them to do things that are 
wrong, you can't say there is zero risk.
    Senator Voinovich. Could somebody break into the system and 
get the information?
    Mr. Barth. They are likely to be under the age of 20, not 
to be glib, sir. But I think that we are going to provide the 
safeguards to do everything possible to prevent that from 
happening.
    Senator Voinovich. One concern of the NGA is that 24 States 
have a driver's license renewal period that is longer than 5 
years, many have 10 years. I understand that in the regulations 
you have ruled out 10 years and have said States have to do it 
in 5 years. I would like you to explain why DNS has chosen the 
5-year renewal date?
    Mr. Barth. In the consultation we did with the States, 
which have a very wide ranging number of years before renewals 
are required, we certainly didn't arbitrarily choose, but in 
consultation with them chose about an 8-year period for 
renewals as the maximum that we would allow. States that 
currently have 4-year renewals, they can continue their 4-year 
renewals. states that have 8-year renewals would have to--the 
individual applying for the driver's license would have to 
reappear every 16 years, so every other cycle, in person to 
revalidate their data, their place of--their documentation----
    Senator Voinovich. It is not 5 years?
    Mr. Barth. It is not 5 years, sir.
    Senator Voinovich. I thought that was in the regulation.
    Mr. Barth. I don't believe so. Yes. You are referring to 
the 5-year implementation period for the very first cycle of 
everyone in America who has a driver's license who lives in a 
State that opts into REAL ID, they have to move through that 
first cycle in 5 years. The second cycle is 8 years, and every 
cycle after that is a maximum of 8 years, but States can choose 
a shorter cycle.
    Senator Voinovich. Ambassador Wilson came in to see me last 
week and we talked about the Western Hemisphere Travel 
Initiative. As I mentioned in my opening statement, I want to 
ensure that DNS is taking into consideration the 
interoperability between the various screening tools and ID 
documents?
    Mr. Barth. Yes, it is, sir. Governor Gregoire of Washington 
State approached us some months ago with a proposal that we 
partner with Washington State on a dual-use Western Hemisphere 
Travel Card, WHTC, we call it, and REAL ID, and we fairly 
quickly sent back from Secretary Chertoff to the governor a 
letter saying we would definitely like to explore this with 
you. The ``too many cards out there'' problem is something we 
would like to try to get under control.
    Senator Voinovich. I would suggest that you stay on top of 
it. DNS should work with what they are doing there and 
individuals so they don't have to get multiple sources of ID in 
order to travel back and forth between Canada and the United 
States. There is real concern about moving people back and 
forth in the border States.
    I know in Ohio, we have many Canadian tourist visiting. We 
would like to make sure that they continue to visit our great 
State.
    Mr. Barth. We are piloting this in Washington State, and we 
expect to roll it out January 1, 2008, which I think is a very 
efficient way forward, and in many ways, that will show us the 
way forward for a lot of the border States, but any State, Ohio 
included, or Florida, if they want a dual-use card for, say, a 
snowbird from Ontario or somewhere, we would be very happy to 
try to accommodate that.
    Senator Voinovich. That would be wonderful. Stay on top of 
it and do what you can to make sure they get it done on the 
date that they say they are going to get it done.
    Mr. Barth. Thank you, sir. I will do that.
    Senator Akaka. Thank you very much, Senator Voinovich. 
Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Barth, in responding to a question from Senator 
Voinovich, you referred to states that choose to opt in to the 
REAL ID. But, in fact, States have very little choice but to 
participate in this new system. If they don't participate, then 
their citizens cannot board airplanes, they cannot gain access 
to certain Federal buildings. There are all sorts of practical 
ramifications. So do you really think that there is an 
alternative for any State but to opt in?
    Mr. Barth. Senator Collins, the 9/11 Commission was very 
clear as to the fundamental nature of clarifying this ID thing 
to prevent a future terrorist attack. I think that legislation 
reflects exactly what you just said, which was drafted by the 
Congress and we are trying to implement it.
    I think that with the alternative documentation, as I have 
already explained, a federally-issued other ID, for example, 
military ID, the military residents of Maine will be able to 
travel around without a REAL ID, we expect. Passport holders, 
which is some 30, and growing, percent of the American 
population, will be able to use that document. And if we, and I 
am expecting we will come up with a Federal alternative, a 
Maine farmer who never wants to leave the State or get on an 
airplane will be happy without his REAL ID and a Maine citizen 
who wants to travel will have multiple alternative documents to 
acquire to travel freely like anyone who has opted into the 
system.
    So I believe that there are strong incentives to come into 
the REAL ID program and opt in, but I believe that the 
disincentives are relatively low given the potential risk and 
vulnerability that it presents to the whole country. For states 
that continue to issue documents that are not as secure as 
other States--if you are a terrorist, you will very quickly 
find online that State X is where you go to get your fraudulent 
document to get on an airplane and drive it into a building.
    Senator Collins. I guess my point is that we need to face 
the practical reality that States almost certainly are going to 
have to participate in this program because of the practical 
consequences of not doing so for their citizens, which brings 
me back to the cost issue. The Department, when it issued its 
draft regulations, estimated that the cost to States of 
compliance with the REAL ID Act would be $14.6 billion over 10 
years. The NGA has estimated $11 billion over 5 years. Really, 
those are very similar estimates because a lot of the costs 
would be in the first 5 years, so I think it is fair to say 
that there is substantial agreement that we are talking about 
billions of dollars over a 5- and 10-year period for 
compliance.
    If the Federal Government is imposing this mandate, 
shouldn't we go beyond the $40 million that you have mentioned 
that could be used to set up a very useful interstate database 
that would allow for States to check each other's databases? I 
mean, isn't that just a drop in the bucket when you are talking 
about costs of this magnitude?
    Mr. Barth. Yes, that is a drop in the bucket, and even if 
it costs a couple hundred million--and we don't know the number 
yet--to fully integrate the databases securely and with data 
privacy protections installed, it is still a small portion of 
the cost compared to hiring people, in some cases, building 
additional lanes, bricks and mortar kinds of facilities, 
obtaining the equipment necessary.
    We are doing everything we can to mitigate those costs. For 
example, one of the things that we are going to do is work with 
GSA to have a single contract procurement activity for the 
cardstock and the card issuance equipment and allow GSA to put 
up on their procurement site enablement for all States to come 
in and buy, I presume, at lowest possible cost all the 
equipment and all the cardstock they need. This would save not 
only costs on the direct acquisition of those items with just a 
direct procurement from that list, but it would also save 50 
different State procurements. We are seriously looking at the 
cost issue and doing everything we possibly can to reduce it.
    But I think you have to look at it in a way of also 
evaluating which ones have already made a substantial 
investment to become, if not REAL ID compliant, but to improve 
their security. The State of Virginia has put an enormous 
amount of money into getting there already. The State of 
Michigan told us that they have spent roughly $30 million and 
they are a few million dollars from becoming REAL ID compliant. 
That is a fairly sizeable State with a fairly large population. 
So the numbers, frankly, are all over the map and we have 
instructed the economists in DHS to very closely pick apart the 
numbers that were in our proposed rule economic analysis and 
see if those costs are really that high. Even with that, 
though, I agree with you the costs are substantial and I 
believe, unfortunately, it would be very difficult for us to 
determine on a State-by-State basis how much they really need 
for this purpose.
    So I would finally note that Alabama, maybe, has provided 
the ultimate solution. I was talking to their DMV a few weeks 
ago. They have a zero-cost to the State implementation of REAL 
ID, or very close to that, depending on a final regulation. 
They entered into a contract with a service, an equipment 
provider, whereby that service and equipment provider is 
tacking on a fee to the issuance of the driver's license, and 
for no capital investment and I believe no operating investment 
by the State, they can and will be, when they rewrite the 
contract in light of REAL ID, compliant.
    So there are great models out there for mitigating the 
costs, for lowering the costs, and we are working with the 
States to----
    Senator Collins. I would say to you that paying perhaps 
double for your driver's license, most people would not 
consider to be no cost. But we will put that issue aside.
    I want to raise just one other issue in the brief time that 
I have remaining. State officials have repeatedly made the 
point to me that this system is only as good as the source 
documents and they are very concerned about training DMV 
personnel to evaluate the validity of a birth certificate, a 
baptismal certificate, a visa, or a passport. People working in 
the DMV offices are excellent public servants. They are very 
committed to the security of our country. But they are not 
trained to distinguish whether or not these source documents 
are valid and should be accepted.
    Are you going to assist States with training their 
personnel to different standards? There must be a huge degree 
of difference among the various States on birth certificates, 
for example. Someone coming into Maine who has moved from 
Virginia or Ohio or Hawaii, I am sure they have a birth 
certificate that looks different from Maine's. How are you 
going to deal with this? How are you going to train, to help 
the States train DMV personnel so that they can accurately 
assess source documents, because if they can't do that, the 
whole system on which REAL ID is based falls apart?
    Mr. Barth. Senator, there are several answers to your 
question, actually, so if you will bear with me, I will try to 
identify them.
    First off, in your passport files, once that data link is 
connected, and depending on how it is connected, you might be 
able to pull up the digital photograph of the person and 
literally match it to the person sitting in front of you. That 
biometric confirmation of who you are and that you got a 
passport, maybe all using fraudulent documents, but I hope not, 
is a very powerful confirmation of who you are.
    But more to your point specifically of training for the DMV 
officials, we have taken that into account. We have forensic 
document labs in the Department of Homeland Security. We have 
already been working with them on various aspects of this rule 
and we expect, I would say, to develop a package, a training 
package that the States could build on. The rule itself and the 
$14 billion that we highlight as the cost factors in a $300 
training cost for each and every DMV employee across the land. 
So that cost is factored in. It is not funded by the Federal 
Government, but it is factored in as one very important item, 
as you suggest.
    Senator Collins. Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Senator Collins. 
Senator Warner.
    Senator Warner. Thank you, Mr. Chairman.
    This has been a good hearing and I am impressed with the 
amount of work that you individually and members of your 
Department have done to try and resolve this. I just hope 
Congress adopts an attitude that we have got to be a working 
partner and not get into an adversarial process and also that 
the States can be working partners.
    In the preparation of your regulations, to what extent did 
the several States participate and come forward with ideas and 
concepts to improve the regulations?
    Mr. Barth. That is a very good question and the answer, I 
think, should be very comforting to you, which is that we ran 
an open phone call with at least four States every Thursday 
since, I believe, last August to consult with the States on 
various aspects of this regulation and the economic analysis. 
That, in part, is why, as Senator Collins suggested, our costs 
and their costs line up fairly well. We have been talking 
extensively.
    Four States in particular I want to commend for being on 
virtually every one of those calls. California, Iowa, New York, 
and Massachusetts sort of formed a core group that were 
extremely interested, had the capability within their DMV 
organizations, and participated weekly, came to Washington for 
a face-to-face meeting with Deputy Secretary Jackson, really 
doing everything possible to make exactly what you said, a 
partnership with the States for this important program.
    And I am very pleased to say that my project manager for 
this, Darrell Williams, just spent the entire last week on a 5-
day, four-city tour with the American Association of Motor 
Vehicle Administrators, pulling in regionally DMV 
administration people from many different States around the 
country. So not only has our consultation process been rigorous 
leading up to the issuance of the NPRM, it is going to continue 
to be rigorous as we move towards the final rule, and as we 
build out that network of networks, it is going to continue, 
sir.
    Senator Warner. Was part of that dialogue to discuss costs 
to the individual States?
    Mr. Barth. Yes. The States came in towards the end of 
developing their cost analysis, their $11 billion cost 
analysis. They came in jointly as the National Governors 
Association, the National Council of State Legislatures, and 
AAMVA, and they presented their document and they asked us to 
help them sort through the funding issue.
    Senator Warner. Is there any standardization of the 
criteria by which several States did make their estimates?
    Mr. Barth. No, sir, there was not. AAMVA, actually, I 
believe it was, developed the data from the States on which 
their figure and much of our figure is based. So each State had 
a different approach towards the funding and there is no 
standardization of that.
    Senator Warner. Was the thought given to trying to 
standardize it, because these estimates which were thrown out 
here, $23 billion by OMB, that, I understand, even involved the 
transportation of an individual to and from their home or 
workplace to the DMV, which strikes me as an odd way to compute 
things, but anyway DHS was at $14 billion, and $11 billion from 
the NGA. There is quite a disparity here. And then I also, 
based on the fragments that I have been able to collect, see 
where some States came in with a cost estimate, but almost 
uniformly all of them are coming down in the estimates. Would 
that be a correct assumption?
    Mr. Barth. Yes, sir, that is a correct assumption, I think 
in part because while we have been negotiating the regulation 
and getting it out, States have continued to make good, solid 
investments in many cases in their existing networks, and we 
hope that continues as we move toward a final rule, which we 
hope to announce in August. So I think that as we scrub the 
costs going forward, which as I have already said our 
economists are doing, I think that figure could be ultimately 
viewed as being very high.
    Senator Warner. What figure? I threw three out here. I 
don't know what figure you are talking about.
    Mr. Barth. The three key ones are the $23 billion includes 
if you are a disorganized person and it takes you an hour and a 
half to find your birth certificate, driver's license, 
passport, to go to the DMV. It even includes the cost of 
spending time at home finding your documents. That is the 
highest cost estimate----
    Senator Warner. I don't know which government clerk figured 
that one out.
    Mr. Barth. Well, required by OMB rules, sir.
    Senator Warner. Oh, is that it? All right. That is 
extraordinary to me. I can't believe that. Anyway, it took 2 
years to put this set of regulations together?
    Mr. Barth. It did, and I think in large part it was due to 
the extensive consultation, including, as I said, the Deputy 
Secretary, before he would sign off on the regulation, convened 
a meeting with AAMVA and the four states that I mentioned 
before that were our close partners in developing the 
regulation. So it is regrettable that it took so long, but the 
consultation process was at least as intense as it would have 
been under a negotiated rulemaking process.
    Senator Warner. Well, Congress is faced with this and we 
are getting a lot of understandable pressure. I have always 
identified myself here in my years as being one who fought 
against the compulsory mandating of legislation--I mean that 
then in turn made the States required to come up with the 
funds. I have always sort of been on the side of protecting the 
States from being subjected to this by the Congress and I am 
more than likely to continue in that vein. On the other hand, I 
am really concerned about the security elements of this.
    Where are we, do you think, in this process? Suppose 
somebody goes out here on an appropriations bill or elsewhere 
and attaches an amendment to further modify the existing law on 
this issue? Now, we have got the extension period in there. 
That is safely ensconced, would that not be correct, Mr. 
Chairman?
    Senator Akaka. Yes, the initial enrollment period has been 
extended but not the reenrollment deadline.
    Senator Warner. But I am concerned that others may have 
reason for further attack, which I want to have a convergence 
of all the information that should be brought to bear and any 
further action by the Congress to impede the progress of this 
program. Where is another time when there is going to be a 
considerable amount of data out there to try and begin to show 
the States as to how to alleviate their cost projections today?
    Mr. Barth. Yes. I think that the time frame of August-
September is when we are targeting issuing the final 
regulation, and to the extent we can, renewing our evaluation 
of the costs. So that is when I think you will find all the 
stakeholders will have something hard to shoot at rather than 
something soft, which is a proposed rule.
    Senator Warner. So it would be wise for the Congress now to 
withhold any further action until that time period?
    Mr. Barth. Except for the funding issue, which the Congress 
will consider separately----
    Senator Warner. As to whether we are going to step up and 
fund----
    Mr. Barth. Correct. There is the $40 million that has been 
appropriated for the grants to the States, but there has been 
no funding for the DHS or any department of the government for 
this program, nor, of course, for all the other costs of the 
State. So to that extent, I think that the cost issue is just a 
significant one. But until then, we won't be able to tell you 
even how much it is going to cost to build out that network of 
networks up there. So there is not a hard target to even fund, 
in my view, at this point in time.
    Senator Warner. Well, that is, I guess, my point. You 
really can't begin to ask Congress to give us so much money to 
try and defer some of the percentages of the State costs when 
each State is putting together their cost formula by different 
methods----
    Mr. Barth. And until, sir, they see the final regulation, 
they are not even----
    Senator Warner. That is correct.
    Mr. Barth [continuing]. Going to be able to put a final-
final cost figure per State on it, which I regret that is after 
some States even go out of legislative session.
    Senator Warner. So it is in the best interest of Congress 
to ride through this thing until early fall?
    Mr. Barth. With the amount of time and effort I and my team 
are putting into this, I would greatly appreciate that, sir.
    Senator Warner. Well, I am only one. There are many here, 
but I certainly would hope that we would proceed on this on a 
partnership concept of States and the Federal Government 
working together and the Congress to try and achieve some type 
of identification that will help America feel a little more 
secure in our daily requirements to identify ourselves and to 
otherwise conduct our life here at home. I thank you.
    Mr. Barth. Thank you for your support, Senator.
    Senator Akaka. Thank you very much, Senator Warner.
    Just to follow up on Senator Warner's questioning, Mr. 
Barth, you testified that we shouldn't act to change REAL ID. 
The proposed regulations state that DHS sought to provide for 
privacy and security to ``the extent of its authority.'' 
However, the regulations ask for comments as to whether the 
privacy protections are adequate. Given that DHS has acted to 
the extent of its authority, what statutory changes to the REAL 
ID Act do you believe are necessary to protect privacy?
    Mr. Barth. At some point, Mr. Chairman, I think that the 
Congress should take seriously a concern that I believe we 
share with the privacy community, and that is that probably the 
biggest significant risk for identity theft, for issuing 
fraudulent cards, for collusion with bad actors in the DMVs, 
the biggest risk is those bad actors in the DMVs. There is 
currently law on the books that identifies penalties at the 
Federal level, penalties for collusion of DMV workers with 
someone outside the DMV in acquiring a fraudulent document. I 
would invite the Congress to look carefully as to whether or 
not those penalties are high enough.
    If it only costs $4,000 to get a fake ID and lifetime 
employment in New Jersey, for example, not even committing bad 
acts, the penalty must not be stiff enough. If the cost goes up 
to about $50,000 or $100,000 per fake ID, then you might be 
getting close. So I make that sort of in jest, but I think that 
the penalties there should be looked at closely.
    I also think that one of the threats to privacy that has 
been identified is the lack of encryption of the machine-
readable technology that is used on the back of many cards 
issued today. I think that the technology issues and the 
encryption issues will be well vetted in the regulation, but 
the Congress could also consider coming up with substantially 
higher penalties for fraudulent use of information obtained 
from drivers' licenses, REAL ID drivers' licenses. That should 
be a real linchpin of the cost of making an error here, or 
intentionally stealing data and using it fraudulently from a 
license is so high that I don't think I am going to do it.
    Those are two very specific things that won't slow down our 
implementation of the rule, but will significantly enhance the 
effectiveness of whatever privacy protections we put into the 
rule.
    Senator Akaka. If Congress holds off on legislation, Mr. 
Barth, until the end of 2007, States will commit more and more 
funding towards REAL ID only to have the requirements modified 
if Congress acts on it later. Well, I want to thank you very 
much, Mr. Barth, for your responses to this Subcommittee and I 
want to tell you that we may have further questions for you 
that we will place into the record. Again, I want to thank you 
so much for being here with us.
    Mr. Barth. Thank you, Mr. Chairman.
    Senator Akaka. Now, I would like to call the second panel 
forward and welcome you to this Subcommittee.
     Testifying on the second panel are: State Senator Leticia 
Van de Putte, who represents the 26th District of Texas in the 
State Legislature and is the President of the National 
Conference of State Legislatures. Welcome.
    The Hon. Mufi Hannemann, Mayor of the City and County of 
Honolulu, who is accompanied by Dennis Kamimura, the Licensing 
Administrator for the City and County of Honolulu. Aloha and 
welcome, Mufi.
    David Quam is the Director of Federal Relations for the 
National Governors Association. Welcome, Mr. Quam.
    As you know, the custom of this Subcommittee is to swear in 
all witnesses, so will you please stand and raise your right 
hand.
    Do you swear that the testimony you are about to give this 
Subcommittee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Ms. Van de Putte. I do.
    Mr. Hannemann. I do.
    Mr. Kamimura. I do.
    Mr. Quam. I do.
    Senator Akaka. Thank you. Let the record note that all 
witnesses answered in the affirmative.
    I want to thank you again for your presence and we are 
looking forward to hearing from you. Senator Van de Putte 
please proceed with your statement.

TESTIMONY OF HON. LETICIA VAN DE PUTTE,\1\ TEXAS STATE SENATOR, 
    AND PRESIDENT, NATIONAL CONFERENCE OF STATE LEGISLATURES

    Ms. Van de Putte. Thank you, Chairman Akaka, Ranking Member 
Voinovich. I am Leticia Van de Putte, President of the National 
Conference of State Legislatures and a member of the Texas 
State Senate. I appear before you today on behalf of the 
National Conference of State Legislatures (NCSL), a bipartisan 
organization representing the legislatures of our Nation's 50 
States, its Commonwealths, territories, possessions, and the 
District of Columbia.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Van de Putte with an attachment 
appears in the Appendix on page 57.
---------------------------------------------------------------------------
    Mr. Chairman, thank you very much for your leadership on 
this important issue, not just today with this hearing, but 
with your introduction of legislation in both the 109th and 
110th Congresses to fix the REAL ID Act. It is imperative that 
this hearing be the first step toward a successful, cost-
effective implementation of the Act.
    Legislators across the country share the goal of improving 
the integrity and the security of drivers' licenses and 
identification cards, but we want to make sure that it is done 
right. Mr. Chairman, as you know, NCSL will call for the repeal 
of the Act if the recommendations made in the September 2006 
report,\2\ ``The Real ID Act: National Impact Analysis,'' 
issued by NCSL, the National Governors Association, and the 
American Association of Motor Vehicle Administrators, are not 
implemented and the mandate fully funded by December 31, 2007.
---------------------------------------------------------------------------
    \2\ The Real ID Act: National Impact Analysis,'' report submitted 
by Ms. Van de Putte appears in the Appendix on page 119.
---------------------------------------------------------------------------
    Mr. Chairman, I respectfully request that a copy of this 
report and the NCSL policy,\3\ ``Funds in the Fiscal Year 2008 
Budget Resolution for Implementation of the REAL ID,'' be 
submitted for the record with my full testimony.
---------------------------------------------------------------------------
    \3\ ``Funds in the Fiscal Year 2008 Budget Resoulution for 
Implementation of the REAL ID,'' submitted by Ms. Van de Putte appears 
in the Appendix on page 63.
---------------------------------------------------------------------------
    Senator Akaka. It will be included in the record.
    Ms. Van de Putte. Thank you, Mr. Chairman. NCSL 
acknowledges that the draft regulations incorporate a number of 
our recommendations made in the September 2006 report. However, 
they do not address several major recommendations, or more 
accurately stated, solutions needed for the successful cost-
effective implementation of the Act. These solutions would 
ensure that the verification systems are available nationally, 
allow States to adopt up to a 10-year progressive re-enrollment 
process, exempt certain populations from the REAL ID process, 
and provide the necessary Federal funds.
    Successful implementation of the Act with such a limited 
time frame largely depends on the availability of certain 
electronic systems to verify the validity of the identification 
documents. It appears that a number of these systems are not 
likely to be available on May 11, 2008, and given this fact, it 
is critical that the May 11 deadline be moved to a future date 
when the verification systems are available on a national 
level. Without this change, the States will spend billions of 
dollars to have a real pretty new card, but will have done 
nothing to actually improve security.
    States need to be able to adopt up to a 10-year progressive 
re-enrollment process. This solution would provide States the 
ability to manage enrollment over a greater length of time, 
would meet the objectives of the Act, reduce the fiscal effect 
on States and, on the Federal Government, and minimize service 
disruptions for customers. Mr. Chairman, in my State alone, 
without the 10-year progressive, reenrollment even hiring 900 
new FTEs, which we would be required to do, and running our 27 
new offices and our offices that are in effect right now 24 
hours a day, we could not re-enroll 11.8 million drivers and ID 
holders. It is impossible to do.
    Certain populations should be exempt from the REAL ID 
process. This exemption could be based on characteristics 
related to applicable risk, such as the year of birth or 
duration of the continuous relationship with the State. For 
example, under our draft regulations, an 82-year-old person who 
has lived in Texas his or her entire life would still have to 
make a visit to his or her local DMV. Is this really necessary? 
The verification requirements should be waived for applicants 
who have completed an identity verification process conducted 
by the Federal Government.
    Finally, I would like to talk about funding. Whether one 
uses the NCSL, NGA, and AAMVA estimate for State implementation 
costs, of at least $11 billion over 5 years or the DHS figure 
of $10 billion to $14 billion over 10 years, the REAL ID is an 
enormous unfunded mandate. For Texas, our start-up costs will 
be $142.6 million for the first year with an ongoing 
operational expense of $67 million. It is critical that new 
Federal funds, and I emphasize new, be provided for State 
implementation of the REAL ID. States should not be required to 
use their diminishing State Homeland Security grants and should 
not be required to pay for access to the verification systems.
    NCSL also recommends instituting a legislative trigger that 
would automatically release States from complying in any fiscal 
year that Congress fails to appropriate these funds.
    Mr. Chairman, in closing, NCSL remains steadfast in its 
resolve to work with Federal policy makers to fix, fund, and 
implement the REAL ID Act before December 31, 2007, as stated 
in our policy, and I encourage you to consider legislative 
action to adopt the solutions I have proposed today. This will 
provide the States with the necessary certainty to move 
forward.
    Thank you very much for this opportunity to testify.
    Senator Akaka. Thank you for your testimony. Mayor 
Hannemann.

TESTIMONY OF HON. MUFI HANNEMANN,\1\ MAYOR, CITY AND COUNTY OF 
  HONOLULU, HAWAII, ACCOMPANIED BY DENNIS KAMIMURA, LICENSING 
       ADMINISTRATOR, CITY AND COUNTY OF HONOLULU, HAWAII

    Mr. Hannemann. Good afternoon, Chairman Akaka and Ranking 
Member Senator Voinovich. Thank you very much for this 
opportunity to testify on the impact of REAL ID on the City and 
County of Honolulu, the capital city of the State of Hawaii, 
where three-fourths of our population resides.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Hannemann appears in the Appendix 
on page 65.
---------------------------------------------------------------------------
    I am here, as you indicated earlier, with Dennis Kamimura, 
who has over 30 years' experience of running our licensing 
program, and the City and County of Honolulu licenses 70 
percent of the 867,000 drivers in the State of Hawaii. 
Moreover, all of the State's drivers' computer records are 
stored in Honolulu's computer system.
    We, wholeheartedly, agree that the tragic events of 
September 11 require the strengthening of our security 
standards, procedures, and requirements for the issuance of 
drivers' licenses and identification cards, but we have several 
major concerns with the implementation of this law and they 
basically fall in four areas, Mr. Chairman, with respect to 
funding, the verification process, re-enrollment, and waivers.
    It will cost us $25.55 million over a 5-year period if this 
law were implemented. About 90 percent of this $25.55 million 
will be incurred by the City and County of Honolulu, and 
although the Department of Homeland Security announced that 20 
percent of the States' Homeland Security Grant Program funds 
could be made available during the 2007 grant cycle, most of 
these funds have already been dedicated.
    I would also add that we have recently upgraded the status 
of our Civil Defense Agency now to a full-fledged cabinet-level 
department called the Department of Emergency Management. That 
Department will be charged with securing other types of 
Homeland Security grants into areas that Senator Voinovich had 
already indicated, like interoperability, the pandemic flu, and 
other areas there that we would like that department to focus 
in. So therefore, we would be hard-pressed to tap into this 20 
percent for this particular program.
    With respect to the verification process, the Act requires 
that we refuse to issue a driver's license or identification 
card to a person holding a license or card issued by another 
jurisdiction. This is similar to a provision of the Commercial 
Motor Vehicle Safety Act, which requires commercial drivers to 
have one and only one license at any given time. This 
requirement is supported by CDLIS.
    CDLIS consists of a central site and nodes in each 
jurisdiction. Access to CDLIS is provided through a secure 
private network operated by the American Association of Motor 
Vehicle Administrators and cannot be accessed through the 
public Internet. Each site connected to the private network has 
its access controlled by several security mechanisms. Neither 
the State of Hawaii or AAMVA is aware of any privacy breaches 
of CDLIS since it went into development in 1989.
    In 2005, Congress passed the transportation reauthorization 
bill, SAFETEA-LU, which authorized $28 million to modernize 
CDLIS. Our recommendation is that we leverage this project and 
its Federal funding to expand the scope of the CDLIS 
modernization effort to support an all-driver pointer system 
for non-commercial drivers' licenses and identification cards, 
inasmuch as all jurisdictions are familiar with the CDLIS 
program, and the all-driver pointer system would use the same 
principles as CDLIS. Use of this technology would be more 
efficient than expending public money to create a new system.
    The Act would also require us to have access to five 
additional national databases, SSOLV for Social Security cards, 
Department of State for passport and consular report of birth 
abroads, EVVE for birth and marriage certificates, and SAVE for 
permanent resident status, employment authorization, or U.S. 
certificate of citizenship or naturalization, and SEVIS to 
verify the duration of lawful status for student aliens. 
Obviously, we have challenges with all the aforementioned.
    At present, almost all jurisdictions are using the SSOLV, 
which requires enhancements due to its unreliability. Several 
States are also using SAVE, but that system requires major 
improvements to ensure appropriate functionality to operate in 
real time with accessibility and reliability. Several States 
are testing EVVE. However, the system will not be fully 
operational until December 2009. There is no electronic 
accessibility to SEVIS and/or the Department of State database.
    We should not be required to use systems that are 
unreliable or under development. These systems should be 
developed and tested before placing the burden on local 
jurisdictions and the public that we serve. Additionally, we 
believe that Federal agencies operating these systems should be 
prohibited from charging jurisdictions transaction fees that 
only increase our operating cost.
    With respect to re-enrollment, the majority of our licensed 
drivers in the State of Hawaii are issued State identification 
cards over a 6-year expiration period, so therefore the 5-year 
re-enrollment as called for in the REAL ID Act will present 
some challenges there. We recommend that the period be at least 
7 years.
    Finally, with respect to the waivers, to facilitate the 
processing of all applicants, we recommend that applicants who 
are 72 years old or older be granted waivers from the 
verification requirements of the Act. Similarly, individuals 
who are required to undergo the same or more stringent 
verification process for Federal identification be granted 
waivers. Last, if an applicant has undergone the verification 
process in one jurisdiction and has been issued a REAL ID-
compliant driver's license or identification card, the 
verification process by the gaining jurisdiction should be 
waived.
    In conclusion, we support the intent of the REAL ID Act, 
but practical considerations aside, Mr. Chairman, the City and 
County of Honolulu cannot afford to implement the requirements 
of the Act without initial and continuing Federal funding. If 
funding is provided, the time limits for implementation of the 
program without the required electronic verification systems 
will place an enormous burden on the driver's licensing staff 
and be a tremendous inconvenience to the public. To ensure 
long-term success, a more realistic implementation plan should 
be developed with input from the jurisdictions who bear the 
burden of issuing drivers' licenses and identification cards.
    Thank you for granting me the opportunity to provide our 
perspective on this issue, Mr. Chairman.
    Senator Akaka. Thank you very much, Mr. Mayor. Mr. Quam.

   TESTIMONY OF DAVID QUAM,\1\ DIRECTOR, FEDERAL RELATIONS, 
                 NATIONAL GOVERNORS ASSOCIATION

    Mr. Quam. Chairman Akaka, Senator Voinovich, thank you very 
much for holding this hearing. I note as you did in your 
opening statement this is one of the first real hearings on 
REAL ID and that may be the most important thing that is 
happening today: Congress is taking an honest look at what this 
law means both to the States and the Federal Government, and 
probably more importantly, to our citizens.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Quam appears in the Appendix on 
page 69.
---------------------------------------------------------------------------
    I do not know of a single governor who is not a homeland 
security governor. Every one is very concerned about the 
security and integrity of their driver's license systems. Most 
States after 9/11 were already in the process of improving 
their systems when REAL ID came about. NGA supported the 
negotiated rulemaking process that was put together by this 
Subcommittee in the Intelligence Reform Act. It is both 
unfortunate and ironic to note that if that process had been 
allowed to continue, we probably would be done today.
    While several other folks here have noted some of the 
problems with REAL ID, I am going to focus really on solutions. 
I will note that NGA and governors have not called for the 
repeal of REAL ID. What we have done is try to work--governors 
have tried to work with their States, with motor vehicle 
association administrators, and also with legislators to find a 
fix, and that is going to require three things: More time, more 
flexibility, and additional funds.
    The most important message I can give to this Subcommittee 
and to Congress today is that REAL ID cannot be fixed without 
Congressional action. It cannot be fixed without legislative 
action by Congress.
    First and foremost, provide adequate time. Certainly, 
everyone recognized, including DHS, that May of next year was 
not enough time for States to prepare. NGA recommends that this 
Subcommittee adopt specific statutory deadlines. Alter the 
deadlines of REAL ID and set them to the later of December 31, 
2009, which is the extension granted under the proposed 
regulations, or a date that is 2 years after the publication of 
final regulations, whichever is later. That deadline should be 
set to when States actually know the rules.
    Grant all States a 10-year window in which to re-enroll all 
of their citizens. Moving the deadline on the front end but not 
giving a corresponding extension on the back end only means 
that States have to enroll more people in a shorter amount of 
time. That maximizes cost, minimizes efficiencies, and hinders 
States' ability to implement this Act.
    And finally, what several other witnesses here have cited, 
allow us to manage the line. Certain populations can be pushed 
to the end of the line while we give REAL ID to other folks up 
front. That allows States to keep some of the efficiencies that 
are so important to customer service.
    Second, the verification systems. I thought Secretary Barth 
did an excellent job of stating how critical electronic 
verification is. Without it, REAL ID doesn't work. Until it is 
online, States should not have to comply. It is that simple. 
Congress should amend REAL ID to specifically allow States to 
use existing verification practices until all necessary Federal 
and State systems are fully operational and deployed. The 
States won't hesitate to put them in place, but they can't be 
expected to use them until they are in place.
    Next, encourage State innovation. I was happy to hear that 
the Secretary may be willing to use his waiver authority and 
extension authority if States are making progress towards 
implementing REAL ID. These are extraordinarily complex 
systems. It will take time to build these systems and to 
prepare them and fund them, especially considering some State 
legislatures are going out of session. Budgeting time and 
planning time needs to accommodate State schedules.
    I will note, however, that even with the extensions of 
time, the proposed regulations are going to require all States 
to submit a complete certification package by February 10, 
2008. That is ahead of the original statutory deadline. That 
plan must include milestones, schedules, and estimated 
resources needed to meet all the requirements of the rule. If 
we don't finish this rule until August, September, or October 
of this year, that is a very short turnaround for States to do 
complete planning and go to DHS and say, this is how we are 
going to implement. That deadline should be pushed at least 1 
year by statute past the time of Federal regulations. That is 
adequate time for the States to plan. States aren't asking to 
put it off indefinitely, just give them time to plan.
    Finally, sufficient funding, which it has been discussed 
here repeatedly. It cannot be underscored enough. Congress must 
provide specific authorization of funds to cover the cost of 
REAL ID over the next 10 years. Specifically, it should also 
appropriate at least $1 billion in fiscal year 2008 to fund the 
initial cost.
    One thing I would like to point out, the cost estimates 
that were done by States were very carefully done. Phone calls 
were made to make sure that all States were comparing apples to 
apples, oranges to oranges. Not to contradict the Secretary, 
but I am going to contradict him. That was a very careful study 
and the $11 billion that States came up with is a minimum and a 
hard minimum that it is going to cost States to implement.
    Governors are very concerned with REAL ID. Governors want 
to make it work. If DHS wants to give States the flexibility to 
run with it, then they should give it to us completely. States 
can get the job done, but we are going to need time. Thank you.
    Senator Akaka. Thank you very much.
    I know Senator Voinovich, being a former governor and 
mayor, is very anxious to ask some questions here, so I will 
try to be brief.
    My first question is for the entire panel. If the final 
regulations for the REAL ID Act are issued this fall and remain 
substantially similar to the proposed regulations, when would 
your States or a majority of States and localities 
realistically be able to comply with the Act?
    Ms. Van de Putte. Thank you, Mr. Chairman. Our problem is 
not the wanting to comply, it is that we are going to have 
difficulty complying if the verification systems aren't ready. 
We can't set a date on which we can comply until the Federal 
Government itself has those verification systems operational. 
What we will have is a pretty card with no way to verify a 
person's identity. So I think that we really need to look at 
the budget process and the Federal Government and how much it 
is willing to put into the verification systems because we 
can't comply unless those systems are in place.
    Senator Akaka. Mayor Hannemann.
    Mr. Hannemann. Mr. Chairman, as indicated earlier, counties 
and cities are at the mercy of many of these mandates that come 
from the Congress or the Federal Government or the State. Right 
now, our legislative session is due to end in May. There is no 
vehicle for any type of funding. They recently, as you pointed 
out in your opening statement, issued a resolution basically 
expressing their concerns. We will not be able to comply at all 
for the following reasons that I indicated in my testimony. So 
not only is the funding not there, but even if we had the 
funding, there still are some concerns with respect to the 
verification process, the re-enrollment, and obviously the 
waivers. So it is very unrealistic for us to even figure out a 
way in which to comply given the concerns we continue to have.
    Senator Akaka. Mr. Quam.
    Mr. Quam. Just to echo that, REAL ID cannot be solved by 
any single issue. Money alone will not do it. An extension will 
not do it. It has got to be a comprehensive solution using both 
Congressional power and regulatory power at DHS to give States 
what they need. Until we know that picture, we are basically 
being handed a Monopoly board without instructions and saying, 
go play. You have no idea what the objective of the game is or 
how to play. We need the final rules and then we need the time 
to implement them and understand them to move forward. So 
unfortunately, at this time, it is one of the reasons we say 
REAL ID is unrealistic as planned.
    My other concern, Senator, is that the regulations may not 
look as they currently do. I will give DHS its due. The first 
time we really understood how much DHS had listened to States 
was when the draft regulations came out. I was very pleased to 
hear they had been talking to four States, but there are 50 
States and five territories that are going to be involved in 
this process and it is going to take time for us to move 
forward and understand exactly what is going to be required of 
States.
    Senator Akaka. Thank you. As you know, the regulations do 
not address what someone can do if another State loses or 
mishandles their personal information. Could each of you 
address how different States would handle this situation?
    Mr. Hannemann. Let me defer to Dennis Kamimura, who, as I 
said, he has 30 years of running this operation for our State. 
He is also a very active member of AAMVA. And I just wanted to, 
if I may before I turn it to him, Mr. Chairman, just echo what 
was said earlier. We want to participate. We want to be able to 
give our input, and so far, we have been doing it through 
AAMVA, but we would like to see more of a reaching out process 
on the part of the Department of Homeland Security as opposed 
to cities or counties or States petitioning them for input and 
the like. We think it should be a two-way street. As I said, we 
have been able to do most of our input through AAMVA, but we 
really believe that this is part of our petition here today, is 
to get a little more of a reaching out process from them.
    Senator Akaka. Mr. Kamimura.
    Mr. Kamimura. Mr. Chairman, essentially, the REAL ID Act 
does, in fact, provide for Federal penalties involved in 
misinformation or handling of information or release of data, 
personal data, that is not supposed to go out. Speaking for 
Hawaii, Hawaii does have penalties involved with release of 
personal information and I think what happens is that under the 
REAL ID, we would have to comply with whatever the Federal 
requirements are. But I don't believe that Hawaii would, in 
fact, loosen its requirements on any penalties for stolen 
identity, for example.
    Senator Akaka. Mr. Quam.
    Mr. Quam. What we have heard on the privacy front is a 
great concern for how these databases will be managed, and now 
that we have a better sense with regard to the regulations, 
there is some additional comfort in the States. However, I 
would note that there are several States who have privacy laws 
that are probably stronger than anything that the Federal 
Government would actually impose. One of my fears is that the 
privacy regulations will come out and actually loosen State 
standards with regard to privacy.
    I think addressing privacy may be one of the real critical 
missing links in moving forward. The negotiated rulemaking 
would have addressed that. It would have brought a lot of 
different players to the table. It is unfortunate that was not 
allowed to finish, but I think addressing the different 
standards States have and not lessening those standards will be 
critical moving forward.
    Senator Akaka. Senator Voinovich.
    Senator Voinovich. Thank you, Mr. Chairman.
    This is typical of the Federal Government, REAL ID was put 
into the emergency supplemental bill in 2005, with no hearings 
and no consideration about how it is to be implemented. 
Senator, you are from Texas, as you know first hand, we have a 
problem with the border, an immigration problem. If the 
Congress had given money to Customs and Border Patrol to do the 
job, we wouldn't have the problem today, but we didn't. 
Finally, Congress has recognized the problem and is funding 
CBP. This is typical of what we do here in the Congress.
    I would like your respective organizations, the National 
Council of State Legislatures, the NGA, to get back to this 
Subcommittee on what you are being asked to do with the State 
Homeland Security Grant Programs. I think it is ridiculous that 
they are saying to you, take the money and use up to 20 percent 
of it to offset the costs REAL ID. This money has already been 
spent or allocated by the States to pay for other programs like 
interoperability.
    I would like to get into some specifics about timing. Now, 
how much time after the final rule comes out, assuming that you 
feel that they are decent and proper, would you need to 
implement REAL ID?
    How much time would you think would be reasonable to give 
people in each State the ability to sign up? Much of the cost 
is going to happen during the intial phases of REAL ID as 
States bring people into the program. States are going to have 
to hire many more people to handle the registration. Ms. Van de 
Putte, how many new people did you say Texas would need to 
hire.
    Ms. Van de Putte. Minimally, our statistics say that we 
have to hire 741 new FTEs, but we are reshifting close to 200 
that are already in the department. So we have achieved some 
cost savings in other areas, but new hires will be 741 FTES. 
Senator, that was a very conservative estimate.
    Senator Voinovich. So you are working harder and smarter 
and you shifted 200 people over that were doing something else, 
but you need 700 to get the job done?
    Ms. Van de Putte. Yes, sir.
    Senator Voinovich. Could I get your opinion on these 
milestones and how you would set the deadlines?
    Mr. Quam. Senator, I would be happy to, if I may, and 
starting with final regulations as the key date, and why any of 
the deadlines were not set from there, I am not sure because 
that is the time when States know what is expected of them. 
That is when final regulations actually come out. So let us say 
that is August.
    Senator Voinovich. Why don't we just say that it is 
December 31.
    Mr. Quam. December 31, excellent. DHS has said from a 
regulatory standpoint that it wants--it is going to use a 
certification process, which States are familiar with and 
States actually recommend it. That certification is to present 
the State plan. We would recommend that should be 1 year from 
the date of final regulations, that the State submits a plan. 
That will allow us time to start putting all the different 
pieces in place.
    Senator Voinovich. One year to submit a plan of how you are 
going to comply?
    Mr. Quam. To DHS, correct. We would recommend 2 years from 
the date of final regulations before the first REAL ID has to 
be issued, the shorter of that date or the extension that was 
given under the regulations, which is to the end of 2009, 
whichever is later, and part of that is to defend against this 
regulation dragging on. I will note that we only got it this 
year. We needed this regulation the day the law passed, not 2 
weeks ago.
    Senator Voinovich. So you are talking 3 years actually 
from, say, December 31 of this year? That is 1 year to submit 
it and then 2 years thereafter to----
    Mr. Quam. I am actually talking 2 years from final 
regulations to begin.
    Senator Voinovich. OK.
    Mr. Quam. I think the States could do that and should 
recognize the flexibility DHS has given.
    Senator Voinovich. What about if the verification isn't 
there?
    Mr. Quam. That goes to a different issue, which is what 
does it mean to be compliant, and I think a core question is, 
States can meet that in 2 years if they have the flexibility to 
use whatever is at their means to verify identities. If the 
systems are up, running, deployed, working, and populated--that 
means they have the data in them--then States might be in a 
position to use them. If they don't exist, States have been 
verifying this information for several years using best 
practices. They should be allowed to continue to do that and 
use those verification processes as we transition. That way, 2 
years from now, States could begin issuing REAL IDs. So you 
have to change the definition of what it means to comply, and I 
focus on the verification systems. If they are there, we will 
use them. If they are not, best practices.
    Finally, the end game. When will we finish this process? We 
have called for a 10-year window from that date, from beginning 
to end, to bring everybody in. Allowing the States to manage 
the line so that people can come in, you can use certain 
efficiencies--there are populations, say, born before 1935, or 
folks who have been in the State for 20 years----
    Senator Voinovich. In other words, what you would do as 
part of your application is you would do some kind of a risk 
assessment about how States are going to phase-in people based 
on your experience, like I think you mentioned somebody who is 
83 years old. Give me a break.
    Ms. Van de Putte. If a resident had a driver's license for 
more than 60 years, exempt some sort of population--sorry for 
the interruption, Mr. Quam.
    Mr. Quam. No, please.
    Ms. Van de Putte. But those are the sort of things, Mr. 
Chairman, that we are looking at. But the timing issue--this 
couldn't happen at a worse time because most States will be out 
of legislative session, and several States are biennial 
legislatures, like Texas. And so we will hopefully have left to 
go back to our home cities after Memorial Day, and so there is 
this time lag. So the quicker that we can get these types of 
rules and regulations, we want to do it, we want it done right, 
but our fear is that we are going to have a really pretty card 
that gives people a false sense of security, but if you don't 
have the verification systems, if we are not able to have the 
flexibility, then it is really meaningless.
    And everyone wants to adhere to the goals. I think what you 
have heard from us today is no one doubts the goals and we are 
all in agreement with that. It is the ``how to,'' and we have 
had real problems with the ``how to'' and it is ironic, in 
fact, that had we continued with the negotiated rulemaking, we 
would have probably had this solved by now.
    Senator Voinovich. Thank you.
    Mr. Hannemann. Mr. Chairman, if I just might, just to add a 
few comments there. Normally, I would defer to our governor to 
make a statement on behalf of our State, but in this particular 
case there, as you know, Senator Akaka, in Hawaii, the counties 
issue the State drivers' licenses, not only for the County of 
Honolulu, but for Maui, Kawaii, and the big island. We would 
like as much time as possible. I have heard what our 
representative of NGA said, and even at that, we would really 
be pushing it. So we need as much flexibility and time.
    I heard Senator Voinovich speak about some of the unique 
issues he faces with Canadian visitors that come to his State. 
Well, we are also particularly concerned with many of the 
foreign visitors. As you know, we are a State that is dominated 
by tourism. We depend on foreign visitors. Many of them invest 
in our economy. That would be another major concern, to get as 
much information out that this is all part of national 
security, but at the same time, we want to continue to maintain 
good relations with our international visitors and the like.
    Senator Akaka. Thank you. We will have a second round.
    Senator Van de Putte and Mayor Hannemann, we have all heard 
of the enormous unfunded mandate and the impact this will have 
on the States. Could you both describe exactly how the costs 
will break down in your States or counties to describe what the 
average American will have to do to get a REAL ID driver's 
license under the proposed regulations?
    Ms. Van de Putte. Thank you, Mr. Chairman. Our cost 
estimates were done very conservatively and we were using the 
same methodologies as all the States and the counties in 
Hawaii. Very conservatively, for my State, we have a population 
of about 24 million, about 18.5 million drivers' and 
identification card holders. We would have to, under the 
timeline set by this guideline, fit about 13.8 million in that 
shortened time frame. We just physically can't do it. Our 
implementation total for first-year costs is $142.6 million and 
an annual cost of $67 million.
    But the real problem in our State, as in a lot of other 
jurisdictions, is that we wanted to utilize technology and to 
make it easier for our citizens, particularly those who have 
had drivers' licenses and identification cards for a long time, 
and so we allowed the mechanisms of the Internet for Internet 
renewal and mail renewal, and so, in fact, for efficient 
government, we closed down lots of offices. We utilize 
technology. And we know now that because of these regulations, 
we will have to have about 741 new FTEs, and then we have 
shifted within the department some that would be able to do 
this. But we are going to have to open up 18 new offices and 
retrofit about 28 other new offices.
    Part of our cost that we don't know will be what the 
security requirements are going to be for the physical 
locations. Under the draft rules and regulations, all of those 
physical requirements of security are for States and 
jurisdictions that issue over-the-counter. So, in other words, 
the application is made, all the verification is made, and then 
they receive the identification there. Some jurisdictions and 
States have a central location where they disperse, but 
Department of Homeland Security rules are going to require all 
of us to have every single office, and even in our rural areas, 
you might co-locate in a county clerk's office or in a rural 
community in the township's city offices. And so we have a lot 
of this sharing. We will not be able to service our rural 
citizens because of the security costs that have been mandated 
by the Department of Homeland Security for the integrity of the 
building itself.
    So our costs break out to the majority of FTE. The other 
ones are the software and the verification. But many States 
were going along that pathway anyway. We were putting in 
millions of dollars for enhancing our security. But I think 
that what we see is the cost, and with all due respect to our 
folks at Homeland Security, when we know it is going to be $11 
billion, to offer $40 million was almost an insult. And then 
their action to us when we asked them about the funds is that, 
oh, it is not our job. Our job is to put out the rules and 
regulations and that is Congress's job. So in other words, what 
they are telling you is that they are telling us to come talk 
to you about the funds. It doesn't make sense that they are 
asking us, the Department is asking States and jurisdictions to 
try to put the heat on Congress to fund it. Their answer is, it 
is not our job.
    Senator Akaka. Thank you. Mayor Hannemann.
    Mr. Hannemann. Yes. We give out about 867,000 drivers' 
licenses, of which 70 percent of that is issued out of the City 
and County of Honolulu. We estimated that of the $25.55 
million, and once again, it is just a very rough estimate given 
what we know at this time, to implement the program in the 
first year will be $7.67 million. Over a 5-year period, it 
would be $17.88 million.
    Mr. Kamimura runs his department with about 85 employees 
just to do drivers' licenses. Obviously, we are going to have 
to ramp that up. Our satellite city halls and various 
distribution points throughout the City and County of Honolulu 
will be challenged enormously. I think we will be facing 
everything from challenges to over-the-counter type of 
application processes to the long lines that everyone will 
experience. But I would expect that this number could increase 
as we know more about the challenges that we face and the 
opportunity that we have to leverage what the other programs 
are.
    In fact, I talked about some of the databases that we need 
to access, the systems that need to be set up, and I know that 
my Director of the Department of Information Technology, Gordon 
Bruce, who works very closely with Mr. Kamimura's department on 
this whole aspect of making sure that we are spending more time 
online than waiting in line, he has expressed several major 
concerns about the REAL ID.
    So these are just initial costs. It is obviously going to 
be very complicated, and therefore, if we are going to go 
forward, again, I hate to sound like a Johnny one-note, but we 
are going to need enormous Federal help, especially in the area 
of funding, to be able to even get to first base on this issue.
    Senator Akaka. Thank you very much. Senator Voinovich.
    Senator Voinovich. Let us talk about Texas again so that 
everyone understands how difficult this is and how expensive it 
will be. First of all, you are going to have to get 700 more 
FTEs.
    Ms. Van de Putte. That is correct.
    Senator Voinovich. Then you are going to have to open up 18 
new offices. Finally you will have to comply with new databases 
in order to verify the individuals.
    So the real issue is how do we help you get the job done? I 
would be interested in your response to some kind of 
partnership. What if we paid for the initial, cost all of the 
software and other things that you would need to do to 
implement this?
    Ms. Van de Putte. Yes, sir. The cost estimates that I have 
are based on the verification of documents using those five 
different systems that were talked about. It is an 
implementation cost of $3.4 million and an annual cost of $1.5 
million. And so I would imagine that is probably about $5 
million when our overall costs to implement are $210 million. 
So I guess if you take a percentage of that, that is just the 
verification of documents.
    I think that what is a bigger cost for us is the minimum 
document requirements itself. The implementation cost of that, 
again, $15 million for my State with an annual cost of almost 
$17 million, and that is requirements for the document itself. 
So those two put together might be something that would be 
workable for us.
    But I think that each State is going to be different. There 
are some states that did not utilize technology in the 1990s, 
and particularly the late 1990s, and so they may have lots of 
physical spaces and offices out there and may not have done as 
some of our states that tried to be more efficient.
    Senator Voinovich. Could you do me a favor? I would like, 
and Mr. Chairman, I think that the Subcommittee would agree, I 
would like the NCSL and NGA to give me the details of the 
costs. I can tell you that there is no way that the Federal 
Government is going to pay for all of this. But I think if you 
came back with a proposal with some kind of partnership it 
would be easier for this Subcommittee to develop some kind of 
funding program for REAL ID.
    Senator Akaka. Mayor Hannemann.
    Mr. Hannemann. Mr. Chairman and Senator Voinovich, I think 
that is an excellent idea, this idea of a partnership that you 
are talking about. We would wholeheartedly also recommend the 
American Association of Motor Vehicles Association that we work 
very closely with to tweak some of the numbers and so forth.
    My concern is always not only the implementation, but the 
ongoing maintenance costs, so we obviously would be very 
willing to participate in that, so we could----
    Senator Voinovich. Mr. Chairman, one other thing, and I am 
sure this is how OMB works, they figure like even sewer and the 
water and the rest of it. Let them raise their rates locally 
and pay for it.
    Mr. Hannemann. Absolutely. I have risen my sewer rates 
twice. [Laughter.]
    Senator Voinovich. You are talking about annual cost. How 
much more will you have to charge for the new ID? I would like 
to get some idea of what those annual costs would be.
    Mr. Quam. Senator, if I may, a couple of things that are in 
the cost impact study that was done by NGA, AAMVA, and NCSL. I 
am very happy to report when the negotiated rulemaking ended, 
the three groups came together as the key stakeholders and 
basically said, we have to continue this good work. We have to 
make sure that our voice is heard in this context. And so we 
have worked very cooperatively together and it has been an 
excellent partnership and we would love to extend it to the 
Federal Government and Congress.
    I will note in that report that $1 billion, the $1 billion 
I mentioned for an appropriation up front, is one-time cost. 
That was actually estimated by the States, one time, get the 
systems, buy them, man them, get the software, get everything 
up and running, one-time cost was $1 billion. The ongoing cost, 
then, over 5 years, you get to $11 billion over five years.
    You made a very excellent point and one that is often 
missed. It is not stated in the regulations, but it should be 
plain to everybody. The Department of Homeland Security sees 
this as a fee-based system. In other words, we are going to 
pass the cost along to folks getting a driver's license or 
identification card.
    Senator Voinovich. And by the way, they will raise thunder 
with you----
    Mr. Quam. Absolutely.
    Senator Voinovich [continuing]. And the Members of Congress 
will walk away and say, we didn't do it. [Laughter.]
    Mr. Quam. That is exactly right. The number we use is the 
$11 billion over 5 years divided by 245 million driver's 
license holders, because we have to bring everybody back in in 
5 years. That is pretty easy math. That is about $45 additional 
per card.
    Now, I am a Maryland resident. It costs me $30 to renew. An 
additional $45 on top of that for my REAL ID. I need to get a 
new certified copy of my birth certificate. I went online today 
to see what that would cost me. That is another $43 that it is 
going to cost me to get Colorado to send me a certified birth 
certificate. And just to be safe, so I can get on the airplane 
in the meantime, if I want a passport, well, the passport fee 
is $96 and you have got to wait 10 weeks to get it. If you want 
to expedite that, tack on another $60. You add that list up and 
you are at $274.
    Now, our citizens personally want to be secure and will 
stand in long lines to be secure, but if we don't really add 
value to this card as we move forward and do it in a 
responsible way, their resolve is going to end at some point, 
and you are absolutely right--their patience will run out and 
it will run out with local officials first and then with 
Congress.
    Senator Voinovich. One last point and then I will finish 
up. I get weekly reports from my constituency office. The 
passport offices are being overwhelmed today because of WHTI. 
It is unbelievable, the demand for passports. The passport 
offices don't have the people to take care of their customers.
    Senator Akaka. I want to thank this panel very much. You 
have been very helpful and I want to thank you for being here 
and for your responses. I also want to extend my appreciation 
to those of you who traveled from out of town to be here today 
and I hope you have a safe trip back home.
    Ms. Van de Putte. Thank you, Mr. Chairman, and thank you 
very much for having us here. I did want to note with Senator 
Voinovich's comments that part of our cost estimate is for new 
signage. In the Texas statute, we will have signage at each of 
the new offices that say that this is a Federal law that the 
State did not pass nor did the State fund and it will have the 
addresses and phone numbers of our two Senators and the local 
Member of Congress. [Laughter.]
    Senator Akaka. Thank you very much.
    Ms. Van de Putte. Thank you, Mr. Chairman.
    Senator Akaka. I now call the third panel to come forward.
    On our third panel we have Timothy Sparapani, Legislative 
Counsel for Privacy Rights at the American Civil Liberties 
Union, and Jim Harper, Director of Information Policy Studies 
at the Cato Institute.
    As you know, it is the custom of this Subcommittee to swear 
in all witnesses. I would ask for you to stand and raise your 
right hand.
    Do you solemnly swear that the testimony you are about to 
give this Subcommittee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Sparapani. I do.
    Mr. Harper. I do.
    Senator Akaka. Thank you very much. Let the record note 
that the witnesses answered in the affirmative.
    Mr. Sparapani please proceed with your statement.

  TESTIMONY OF TIMOTHY D. SPARAPANI,\1\ LEGISLATIVE COUNSEL, 
                 AMERICAN CIVIL LIBERTIES UNION

    Mr. Sparapani. Thank you, Mr. Chairman. On behalf of the 
ACLU and its half-million members, we recommend that this 
Subcommittee mark up your legislation, S. 717, the 
Identification Security Enhancement Act, to replace Title II of 
the unworkable REAL ID Act. Because Senators never considered 
REAL ID on its merits, they should be free to vote to replace 
it with a licensing scheme that is both achievable and free of 
privacy and civil liberties concerns.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Sparapani appears in the Appendix 
on page 74.
---------------------------------------------------------------------------
    As you can see from the map, the REAL ID rebellion is 
sweeping the country. As of today, 30 States are moving to 
reject REAL ID and calling for Congress to replace it. Maine 
and Idaho have enacted legislation to completely opt out. 
Driven equally by the extraordinary threat the Act poses to 
privacy and civil liberties and its prohibitively expensive 
cost, States are telling Congress that no matter the 
consequences, they will not participate. Drivers and DMV 
officials are telling Senators to expect lines at every DMV, 
not just out the door, but around the block, every day. 
Congress must respond to this outcry, and I believe your 
legislation does that.
    Therefore, the ACLU recommends three things. One, Congress 
should replace Title II of the REAL ID Act by enacting S. 717, 
which reestablishes a more workable process for improving 
drivers' licenses.
    Two, members should submit comments calling on DHS to 
withdraw its Notice of Proposed Rulemaking.
    Three, Congress should refrain from appropriating any funds 
to implement the REAL ID Act. Quite simply, there is no point 
in throwing good money after bad.
    Because time is short, I will just mention that REAL ID 
raises intractable constitutional problems. It threatens First 
Amendment rights and arguably violates the constitutional 
principles of federalism by usurping State authority.
    Make no mistake, REAL ID will be the national ID card. 
Since the Act's passage, legislators have proposed requiring 
everyone present a REAL ID to vote, get a job, obtain Medicaid, 
open a bank account, and travel on interstate busses, trains, 
and planes. In short, no person would be able to function in 
our society without providing a REAL ID.
    Additionally, REAL ID and DHS regulations pose 
unprecedented threats to privacy in four areas. Those four are 
data on the face of the ID card, data in the machine-readable 
zone on the card's back, data in the interlinked national ID 
database supporting the cards.
    And four, regarding transmissions of data between users. I 
will just mention a few of these privacy problems.
    First, data on the face of the ID card. REAL ID wipes out 
in States what are called address confidentiality laws by 
requiring that an individual's principal address be stated on 
the face of the license versus having a post office box. 
Consequently, police officers, elected officials, judges, and 
others will have their home address readily available to anyone 
who would want to see it. More importantly, an actual address 
endangers people like victims of domestic violence and sexual 
assault who are trying to flee their abusers.
    Unencrypted data in the machine-readable zone creates an 
enormous threat, a new threat, Senator, of private sector 
third-party skimming of data and resale of data contained in 
that machine-readable zone. DHS's proposed regulations failed 
to close the loophole because they do not require encryption.
    Contrary to DHS's assertions, it will become increasingly 
profitable for private sector retailers to skim each customer's 
data because the format of data collected will be standardized 
nationwide. This creates a huge new threat. Retailers will 
demand that customers provide these licenses for anti-fraud or 
customer loyalty purposes and then they are going to retain all 
the data. And then, of course, these companies can then resell 
it in two different ways. One, they can sell it for highly 
targeted and highly invasive direct marketing back to the 
people, or two, they can sell it to what we call data brokers, 
companies like ChoicePoint or Axciom or Lexis-Nexis, who in 
turn can sell it to other companies and to the Federal, State, 
and local governments. In short, Senator, everyone is going to 
know in the future what we bought and when we bought it, 
including books, magazines, medications, contraception, 
anything you can imagine. So, essentially, we have got some 
significant problems there.
    There are also problems with data in the National ID 
Database. And again, contrary to DHS's assertions, this 
unprecedented data aggregation imposed by REAL ID will actually 
make America, I believe, more vulnerable to terrorism and 
crime, not less vulnerable, and that is because we are going to 
have, I think, massive identity theft and fraud. That is 
because the Act is going to require that, at a minimum, a huge 
new set of data along with biometric information and these 
documents, the source documents you have heard about, be 
aggregated in one place. And then, of course, we are going to 
make this data set available to hundreds of thousands if not 
millions of Federal, State, and local employees.
    In addition, the identity theft and document fraud are 
going to be far more serious. Instead of obtaining just one 
password, an ID thief is going to have a treasure trove of 
data, and that is because DHS failed to build in basic computer 
security and safeguards.
    I will mention one final data privacy problem, and that is 
that the REAL ID database, I believe, is going to lead to 
significant new data mining, and that is because, again, DHS 
refuses to prohibit data mining of this data set, not only by 
itself, but by any other Federal, State, or local agency. And 
prior to REAL ID, it was impractical to do this data mining. 
But when you aggregate and link the data sets, sir, you are 
going to end up with the easy kind of data mining that I think 
many of us would want to avoid.
    So in closing, I just want to say, Senator, for this 
Subcommittee, it is your first opportunity to stop these 
abusive intrusions into America's privacy by DHS, and again, we 
would like to call on Congress to replace Title II of the REAL 
ID Act with an achievable licensing plan that does not threaten 
personal privacy or civil liberties.
    Thank you, Senator.
    Senator Akaka. Thank you very much. Mr. Harper.

   TESTIMONY OF JIM HARPER,\1\ DIRECTOR, INFORMATION POLICY 
                  STUDIES, THE CATO INSTITUTE

    Mr. Harper. Thank you, Chairman Akaka. Thank you for 
inviting me to be here today, and congratulations to you on 
your leadership on this issue, along with Senator Sununu, 
introducing legislation to repeal REAL ID and restore the 
identity provisions in the Intelligence Reform Act that 
preceded it.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Harper with attachments appears 
in the Appendix on page 89.
---------------------------------------------------------------------------
    I am Director of Information Policy Studies at the Cato 
Institute, which is a research foundation dedicated to 
preserving limited government, individual liberty, free 
markets, and peace. I also serve as an advisor to the 
Department of Homeland Security through the Data Privacy and 
Integrity Advisory Committee, which advises the Privacy Office 
and the Secretary of Homeland Security on privacy issues. 
Today, I speak only for myself, not for the committee or for my 
Institute.
    I have written a book on identification and identity issues 
that includes REAL ID. It is called, ``Identity Crisis: How 
Identification is Overused and Misunderstood,'' so I think I am 
well-studied on this issue and hope to share some of my 
knowledge with you today.
    I am going to be a little bit plainspoken at the outset 
here. We have done a lot of green-eyeshade stuff on previous 
panels about where the dollars come from and where they go. But 
I think the best conclusion is that the REAL ID Act is a dead 
letter and all that remains is for Congress to declare it so.
    Let me make three points and then offer one recommendation, 
if I can, regarding your legislation.
    First, on privacy, I think Tim Sparapani and the ACLU have 
done a great job of articulating the privacy concerns and I 
join them in their concerns. The Department of Homeland 
Security's regulation punted on some of REAL ID's most 
important technology, security, and privacy problems.
    I want to emphasize briefly why concerns with the card are 
so substantial. Economists know that standards create 
efficiencies and economies of scale. When railroads in the 
United States moved to a single track width, much more 
transportation occurred on the railroads because there was a 
single standard.
    I realize that is not a good example to use with a Senator 
from Hawaii, but understand that standards, a national standard 
in an ID card, means that ID cards will be used a lot more. You 
will have economies of scale in building the card readers, in 
the software and the databases to capture and use the 
information from the cards. Americans will inevitably be asked 
more and more often to produce their REAL ID and share the data 
from it when they engage in every kind of governmental and 
business transaction.
    Others will use the information collected in State 
databases and harvested from REAL ID cards. Ann Collins, who is 
the Registrar of Motor Vehicles in the State of Massachusetts, 
spoke to the DHS Privacy Committee last week and she said, ``if 
you build it, they will come.'' What she meant is that masses 
of personal information will be an irresistible attraction to 
the Department of Homeland Security and to others to dip into 
for an endless array of different purposes.
    For good or bad, an ID card system is a sort of 
surveillance system and it is becoming increasingly clear that 
REAL ID is a surveillance system focused on the law-abiding as 
much as the wrong-doer.
    I want to briefly talk about national security issues, 
because the privacy and dollar costs of REAL ID would be worth 
it if REAL ID got us any measure of security. If it improved 
the protections we have now, I think we would all be in favor 
of REAL ID, but it doesn't. You have heard the cost figures, so 
I won't belabor them.
    I was very concerned about the lack of risk management-
oriented discussion I heard even today from Assistant Secretary 
Barth. Creating a national identification scheme does not just 
attach a known accurate identity to everyone in the country. It 
causes the wrongdoers to change their behavior. Sometimes this 
will control risk. Sometimes this shifts the risk from one 
place to another. And other times it can create even greater 
risks.
    I want to give you an illustration about how a system like 
this works from a report that was released just last week in 
the United Kingdom. The U.K. home secretary's office released a 
report saying that about .5 percent of all U.K. passports are 
based on fraud. That means about 10,000 per year are issued 
based on fraud. Now, what kind of security do you get from that 
system, if you have a .5 percent fraudulent error rate? That is 
not a security system for purposes of national security. That 
is not a security system against committed terrorists. Perhaps 
the U.K. should have a national ID so we in America don't have 
to.
    In my written testimony, I have submitted a better cost-
benefit estimate than DHS did, and I am disappointed that they 
did not--they have not done better risk analysis up to this 
point. But all the money that goes into REAL ID is, as Senator 
Voinovich emphasized, coming away from other programs that are 
just as important.
    Finally and briefly, I want to emphasize an issue that I 
think is very important that has not been considered yet, one 
that I realized was quite prominent when I went through the 
regulations and the specifications in the regulations. The 
specifications called for by DHS to go on REAL ID-compliant 
cards has race and ethnicity as one of its key data elements. 
DHS does not specifically require inclusion of this 
information, but States are likely to adopt the entire standard 
when they do get in compliance. Thus, in May 2008, many 
Americans may start carrying nationally uniform cards that 
include race or ethnicity in machine-readable formats. This 
will be available for scanning and collection by anyone with a 
bar code reader. Government agencies and corporations alike may 
affiliate racial and ethnic data more closely than ever before 
with information about our travels through the economy and 
society.
    On this poster, I have reproduced the design 
specifications, which indicate race and ethnicity, and here is 
how they would be indicated on a card. This is an example of 
what a card may look like, the two-D bar code. And I have 
included here, because this is such an important issue, an ID 
card from Rwanda.\1\ In Rwanda, a national identification 
system that included ethnicity was very useful in the 
unfortunate, horrible genocide that occurred there. I do not 
believe that this was intentional on the part of DHS or anyone 
in Congress to have this kind of system. It is a product of 
error and it is a product of this system and REAL ID not being 
carefully considered in Congress before the law was passed.
---------------------------------------------------------------------------
    \1\ The ID card from Rwanda appears in the Appendix on page 107.
---------------------------------------------------------------------------
    With that, I have taken up quite a bit of your time. I have 
recommendations in my written testimony that I would refer you 
to. Thank you very much for hearing me out and taking my 
testimony.
    Senator Akaka. Thank you very much for your testimony.
    Both of you have discussed how the REAL ID Act infringes on 
Americans' privacy rights and civil liberties and have spoken 
in support of my legislation which would repeal REAL ID and 
replace it with the negotiated rulemaking process in the 
Intelligence Reform Act. Other than a straight repeal and 
replace, are there any changes that can be made to the REAL ID 
Act that would specifically address the concerns you both 
raised today? Mr. Sparapani.
    Mr. Sparapani. Yes, Senator, I think there are a couple 
that could be made. I mentioned one, or at least alluded to it 
in my testimony. I am really quite concerned, and the whole 
privacy world is concerned about this new threat about third-
party skimming of data off the back of the card. Congress 
really needs to do what it did in part back in 1994 when it 
passed the Drivers' Privacy Protection Act in closing down 
privacy loopholes involving this important data. Congress 
should specifically prohibit the resale of that data, or the 
sharing of data with an additional third party beyond the party 
that is collecting it.
    Additionally, I would just like to say on the 
constitutional standpoint, there are some intractable 
constitutional problems and I think you would have to rewrite 
large portions of the Act to get to that point and I think your 
legislation understands that. But clearly, we have got some 
First Amendment concerns here that won't be addressed unless 
there is a specific statutory exception created for some of 
those well-respected Supreme Court-protected rights.
    Senator Akaka. Mr. Harper.
    Mr. Harper. I don't believe that REAL ID can be fixed. I 
don't believe it can be improved and made to work. The Chairman 
of the full Committee, Senator Lieberman, said when REAL ID 
passed that the law was unworkable. It remains unworkable today 
and the proof of it is borne out on the earlier panels.
    I don't think that a national ID system of any stripe or 
character can provide the security that a lot of people assume 
it does. So it is important to have a conversation about this, 
to learn how ID actually works, how it breaks, what it is 
useful for, and what it is not useful for.
    In my written testimony, I have suggested considering some 
of the emerging digital identity management systems that are 
coming online. There are systems that exist today that can 
prove, for example, to the TSA that you are a member of the 
Registered Traveler Program but that don't tell the TSA who you 
are, and that is an important, narrow anti-surveillance 
feature. Prove to the TSA that you have been secured by their 
processes, but don't give them the opportunity to record where 
you have been and where you have gone and that kind of thing.
    These systems are coming online now. They are a little bit 
future-oriented. We should look down the horizon to these 
systems. But the last thing we want to do is build a government 
system, spend these millions and even maybe billions of dollars 
to build these government systems that ultimately are dead 
ends, very expensive dead ends. We need to integrate with the 
systems of the future, and so I think the whole thing needs to 
be reconsidered and this hearing is a good start.
    Senator Akaka. Mr. Harper, in your testimony, you mentioned 
how by creating REAL ID the Federal Government and the private 
sector will find creative uses for the data outside of the 
reason for which REAL ID was intended. Can you discuss some of 
these other ways the information on a REAL ID card or in a REAL 
ID database can be used?
    Mr. Harper. Well, it is interesting to travel in homeland 
security circles sometimes because you hear lots of talk about 
different plans that people have for REAL ID once it is in 
place. Let us do this with it. Let us do that with it. Frankly, 
the Department of Homeland Security itself has retreated 
somewhat from the idea that this provides security benefits. 
Secretary Stuart Baker came and spoke to the DHS Privacy 
Committee and suggested how strongly it would prevent against 
identity fraud. I proceeded to go to the regulatory docket and 
found that the estimate there is that it would prevent $1.6 
billion worth of fraud. That is a $17 billion cost to save $1.6 
billion. It doesn't quite balance out.
    But other proposals, we would use this to prevent underage 
drinking. We would use it to prevent underage smoking and that 
kind of thing. A terrific regulatory system, a terrific police 
state system for controlling all of our personal behavior. But 
that is inconsistent with the way we are supposed to live in 
the United States. It is inconsistent with having a free 
country. We do indulge a little unlawfulness along the margins, 
and many people who went to college understand that in terms of 
ID. When you are 20 years old, you really want to hang around 
with your 21-year-old friends. Do we want to make a $50,000 or 
$100,000 penalty come down on that kind of person? I think that 
is going the wrong direction.
    So there are lots of different ways to regulate and control 
the generally law-abiding populace and REAL ID would help with 
that, but I don't think that is what we want to do.
    Senator Akaka. Mr. Sparapani and Mr. Harper, as you know, 
the proposed regulations leave open the question of how States 
are to share drivers' information with each other. However, DHS 
repeatedly claims that the system will resemble the Commercial 
Drivers' License Information System. What is your opinion of 
CDLIS and the privacy protection that is in place? Mr. 
Sparapani.
    Mr. Sparapani. It is a good question, Senator. If you 
listen to Mr. Barth's statement earlier today, and in your 
question and answer period with him afterwards, I think he went 
at great length to talk to you about interconnectivity between 
systems of systems and networks. I think we are talking about a 
maximal sharing of data, not a minimal sharing of data. And so, 
in fact, I am really quite concerned about the volume. I mean, 
he showed the chart with all of the systems that would come 
online and that they would all need to talk to each other.
    This isn't going to look like CDLIS. This is going to look 
like CDLIS on steroids, if you will. So we are really talking 
about a plussed-up maximum sharing of all of our most sensitive 
personally identifiable information, and that is exactly the 
information that we don't want to have get in the hands of 
terrorists, immigrant smugglers, sophisticated criminals, and 
it will be easy and ripe for the taking and we will put it all 
in one place and then we will transmit it widely for anyone to 
intercept. I think it is the worst choice we could have made.
    Mr. Harper. Allow me to speak about CDLIS in terms of data 
security. Security turns out to be not a function of what you 
do to protect a thing, it turns out to be a function of how 
motivated your attacker is. I have got a shoebox at home that 
has never been breached. It has never been the subject of a 
breach. If I put information in there, a business card, no one 
would ever look at it. If I started to store bars of gold in 
that shoebox, it would be much more likely that that system 
would be breached.
    So if you take the CDLIS model and expand it out to records 
about politicians, law enforcement officials, Paris Hilton, if 
you make that system the security that terrorists want to 
break, well, that is a much more attractive system and it is 
much more likely to fail than the CDLIS of the past, which has 
information about 13 million truck drivers.
    Senator Akaka. I have another question for both of you. 
Although the REAL ID Act replaced the negotiated rulemaking 
under the Intelligence Reform and Terrorism Prevention Act of 
2004, I understand that DHS has been working with the privacy 
community to protect personal information. Can you tell me how 
you have been working with DHS and what recommendations you 
made to the Department that you see reflected in the proposed 
regulations?
    Mr. Harper. Well, Tim Sparapani was good enough to convene 
a couple of meetings with the regulators, and they were good to 
hear from us. It was welcome to have that input. So there is no 
fault in terms of the process or the people at DHS.
    I recommended that these databases, which are created 
subject to Federal law for Federal purposes, basically using a 
Federal mandate, should also be subjected to Federal laws like 
the Privacy Act. Condition compliance with REAL ID for States. 
Condition their certification of compliance on the fact that 
they have met Privacy Act standards. Condition that compliance 
on the fact that they have met FISMA, the information security 
law.
    DHS chose not to do that, citing federalism concerns that I 
think are a little stretched. Given the fact that the REAL ID 
Act was designed to eviscerate the distinction between the 
State and Federal Governments, and I think that is 
inappropriate, being especially carefully and following 
Marquise of Queensbury Rules when it comes to privacy and data 
security is a little bit off.
    Senator Akaka. Thank you.
    Mr. Sparapani. Senator, if I could respond very briefly, 
indeed, we were invited in to come and meet with DHS, but what 
I have heard over and over again over the last 2 years, and it 
is a remarkably long period of time, is something that is 
baffling to me. Here is the justification DHS is using for 
having a minimal approach to privacy in these regulations. They 
say that because the word ``privacy'' does not appear in the 
statute, they don't feel that they have sufficient authority to 
grant maximal protection to this information that we know, 
frankly, is more valuable than the gold in your bank account 
because it can be used for all sorts of other purposes besides 
just financial fraud.
    So with respect to the DHS Office, they have been good 
about meeting with us, but they have turned a deaf ear to the 
fact that in the information age, personal information is more 
valuable than gold and has to be protected at a much higher 
standard. We have to treat this like a bank vault.
    Senator Akaka. Thank you for that. Mr. Sparapani, you 
mentioned several constitutional concerns with the REAL ID Act 
in your testimony. Would you please elaborate on those issues?
    Mr. Sparapani. Senator, they are really unprecedented, as I 
said, and as my written statement elaborates on. I see at least 
four different First Amendment concerns, a Second Amendment 
concern, a derivative Sixth Amendment concern, and probably a 
Tenth Amendment concern, as well as significant due process 
concerns. Let me just touch on one of the due process concerns 
very briefly.
    If the government begins to demand that people produce a 
REAL ID-compliant driver's license to get all sorts of 
benefits, to enter a Social Security office, etc., many people 
in our society, lawful, law-abiding Americans, won't be able to 
produce the documents they need to get a REAL ID. And then when 
they need to get certain benefits, whether they be Medicaid or 
Social Security disability, etc., they won't even be able to 
get into the room to meet with the government officials to 
obtain those benefits.
    Similarly, if we begin to say that people who don't have a 
REAL ID license can't enter certain Federal buildings, they 
will not be able to exercise, I think, their First Amendment-
protected right to petition their government for redress. Now, 
in Washington, everybody knows nothing is more important than 
having a face-to-face meeting with your elected official so you 
can actually ask to have your concerns addressed. Again, when 
ID becomes a barrier to people exercising their 
constitutionally-protected rights, we have extraordinary 
problems.
    I think it is these kind of constitutional weaknesses in 
the law which are going to require a complete rewriting of 
certain sections of the Act. I think that is why S. 717, the 
bill that you have introduced, is really the appropriate 
direction to head.
    Senator Akaka. I want to thank you both so much for your 
responses. This has been a very interesting hearing and your 
testimony will help the Subcommittee with our work.
    Several of the problems with the regulations that have been 
identified are the direct result of the strict statutory 
language of the REAL ID Act. Based on our discussion today, it 
is evident that, at a minimum, Federal funding is needed to 
help State Governments enhance the security of drivers' 
licenses and legislative action is required to ensure that 
Americans' privacy and civil liberties are protected. I look 
forward to working with my colleagues and stakeholders to 
address these vital issues and look forward to working with 
you, also.
    The hearing record will be open for 1 week for additional 
statements or questions from other Members.
    Again, this has been an excellent hearing. This hearing is 
adjourned.
    [Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


                PREPARED STATEMENT OF SENATOR LIEBERMAN
    I want to thank Chairman Akaka for convening this hearing today 
which will provide the Committee an opportunity to finally shine much 
needed light on the REAL ID Act of 2005 by reviewing the rules that 
have been proposed for this program in an open forum.
    Earlier this month, the Department of Homeland Security (DHS) 
issued a Notice of Proposed Rulemaking (NPRM) implementing the REAL ID 
Act. The NPRM, which took the Department almost 2 years to issue, does 
little to alleviate the concerns that I, and many of my colleagues, 
expressed 2 years ago when the REAL ID Act was attached to an emergency 
spending bill and forced through Congress without debate or substantive 
consideration.
    The proposed regulations will cost approximately $23 billion 
according to the Office of Management and Budget, will bring Department 
of Motor Vehicle offices across the United States to a stand still, and 
may actually jeopardize security. We should not cause undue burden to 
the American public if security can be achieved in a more sensible way.
    I remain fully committed to increasing the security of drivers' 
licenses and identification cards, which should be a top priority for 
this country. However, I am concerned, as I was 2 years ago, that the 
REAL ID Act impedes rather than facilitates the achievement of that 
goal.
    In 2004, Congress passed the Intelligence Reform and Terrorism 
Prevention Act to implement the recommendations of the 9/11 Commission. 
Senators McCain, Collins and I worked together closely to produce 
reasonable, bi-partisan solutions based on the Commissioners' 
recommendations. One recommendation required the Federal Government to 
set national standards for the issuance of drivers' licenses and 
identification cards. This was based on the Commission's finding that 
many of the 9/11 hijackers obtained U.S. identification documents, some 
by fraud. We took this recommendation seriously and carefully crafted 
provisions--with input from both sides of the aisle and all interested 
constituencies--to increase the security and reliability of drivers' 
licenses and identification cards. Our provisions were endorsed by 
state and local governments, the Administration, and a range of 
immigration, privacy, and civil liberties advocacy groups.
    Regrettably, the REAL ID Act repealed those balanced provisions and 
replaced them with an unworkable, burdensome mandate. I opposed the 
REAL ID Act because I believed it imposed such unrealistic requirements 
that without substantial time and resources, it would not be 
implemented, making the Nation less safe as a result. If the original 
Intelligence Reform Act provisions had not been repealed, States would 
be well on their way to securing drivers' licenses today. Instead, DHS 
was saddled with implementing such a controversial and complex law that 
the Department took 2 years to issue regulations.
    After reviewing the NPRM, I remain concerned about REAL ID 
implementation because it does not appear that DHS has addressed many 
of the problems and concerns identified 2 years ago.
    First, the REAL ID Act requires States to verify all documents used 
to obtain a REAL ID, such as a birth certificate. To do so, States must 
rely on a series of electronic systems and federal databases. Yet some 
of these databases don't exist or are incomplete. Others are known to 
contain inaccurate data. One of the most egregious examples is the 
Electronic Verification of Vital Events (EVVE) system, which was 
developed by the National Association for Public Health Statistics and 
Information Systems (NAPHSIS) to provide a single interface for 
verification of birth and death records. EVVE is currently in pilot 
form, and only seven States have access. Even if all fifty States had 
access to the EVVE system, it would not allow for credible electronic 
verification of birth and death records because the database will not 
contain records from all the States. NAPHSIS issued a report in January 
2006 stating that the EVVE system could take as long as 7 years to be 
fully operational. The report specifically noted that the system must 
be implemented nationwide before it will be beneficial for REAL ID. A 
valid, verified birth certificate is at the heart of REAL ID, yet the 
timelines for these two programs are completely incompatible.
    In addition to the EVVE system, REAL ID relies upon a non-existent 
State Department system to verify U.S. passports and the DHS Systemic 
Alienation Verification for Entitlements (SAVE) system, which is 
notorious for containing erroneous, incomplete, or outdated 
information. Moreover, even though the success of REAL ID depends on 
these systems, there is no requirement in the REAL ID Act or in the 
NPRM that the federal agencies provide these systems in a timely or 
accurate manner. The States will be left holding the bag if the Federal 
Government fails to deliver.
    I am also troubled by the incomplete nature of the proposed 
regulations. There is virtually no guidance in the NPRM regarding what 
type of electronic system will be used to share information between 
States. This detail is critical to understanding the security and 
privacy vulnerabilities that may be created by REAL ID. Assistant 
Secretary Barth has said that the Department of Transportation's 
Commercial Driver's License Information System (CDLIS) will likely be 
the model used for REAL ID. CDLIS allows information on licensed 
commercial drivers to be shared between States on a limited basis--
commonly referred to as a ``pointer system.'' However, the NPRM does 
not specify a pointer system will be used for REAL ID, leaving the 
realization of a de facto national database as a distinct possibility 
under the regulations.
    Given the inevitable incompleteness and inaccuracies of the REAL ID 
databases, it is shocking to me that the NPRM does not call for a 
redress system. This is not a function that can be left to the States 
because REAL ID and the information it relies upon are bigger than the 
individual States. What happens if one state passes erroneous 
information about an individual to another state? Chances are there 
will be cases where both States claim it's the responsibility of the 
other state to adjudicate the complaint. Where does an individual turn 
if a state DMV and a federal agency cannot agree on who should correct 
an incomplete record? DHS needs to mandate a redress process and make 
it clear where that responsibility lies to ensure errors and oversights 
are resolved promptly.
    Also notably absent from the NPRM is a requirement to encrypt the 
data held electronically on the actual ID card. Without encryption it 
will be substantially easier to steal critical personal information, 
making all Americans more vulnerable to identity theft. Equipment 
capable of reading the Machine Readable Zone on the back of most 
drivers' licenses is readily available. If we're going to spend 
billions of dollars enhancing the security of the rest of the 
identification system, why leave this gaping hole?
    DHS has chosen to pass the responsibility for privacy protection to 
the States. This is inherently problematic because REAL ID requires 
States, and more importantly the individual citizen, to provide and 
share additional personal information in the name of security. Because 
REAL ID is a federal mandate, the Federal Government has an obligation 
to ensure the law is implemented appropriately and that information 
shared under REAL ID is secure. States deserve some flexibility in 
implementing REAL ID as they are the ones who understand the drivers' 
licensing process. However, given the security implications of 
widespread identity theft, the Federal Government cannot remain silent 
on this issue.
    Most troubling is that DHS has elected to hide behind what is not 
said in the REAL ID Act as a means to avoid addressing privacy. The 
NPRM States, ``DHS has sought to address these privacy concerns within 
the limits of its authority under the Act. The Act does not include 
language authorizing DHS to prescribe privacy requirements for state-
controlled databases or data exchange necessary to implement the Act.'' 
The concept that federal agencies need explicit Congressional 
authorization to protect Americans' privacy is just plain wrong. In 
fact, our government is obligated to ensure that programs and 
regulations do not unduly jeopardize an individual's right to privacy.
    Privacy is inherently tied to security. Secretary Chertoff made 
this argument earlier this month when he told the Northern Virginia 
Technology Council that ``Security and privacy are very much the same 
type of value. I don't think they're mutually exclusive, they're 
mutually reinforced.'' As Secretary Chertoff argued, executed 
correctly, better standards for drivers' license issuance will 
strengthen privacy safeguards and help prevent identity theft. However, 
we must remember that if this process is executed poorly, it will have 
the opposite effect.
    Finally, it should be noted that States across the country are 
moving to opt out of REAL ID. Because of the program's structure, it is 
only as strong as its weakest member. If we create a system so onerous 
that it precludes full participation, any security benefit is lost.
    While I regret the repeal of the common sense provisions in the 
Intelligence Reform Act, which I believe has made identification 
security much more difficult, I am committed to ensuring this job is 
done right. We must find a way to make the driver's license a trusted 
document, and the road the Department is now on is not the way. Secure 
identification is at the very heart of our homeland security. I 
strongly encourage the Department to consider the concerns expressed by 
Congress and others in formulation of the regulations. And I look 
forward to working with Chairman Akaka, Senator Collins, the Department 
of Homeland Security, and others to solve this critical and complex 
problem.

                               __________
                  PREPARED STATEMENT OF SENATOR SUNUNU
    Nearly 2 years ago, the REAL ID Act was inserted into an emergency 
spending bill without holding a single hearing or a substantive debate 
on the Senate floor. At that time, a number of my Senate colleagues and 
I sent a letter to then Senate Majority Leader Bill Frist voicing 
strong opposition to its inclusion. It was and still is my position 
this legislation was too significant to be included as an extraneous 
``rider'' on a spending bill and it needed to be debated before the 
Senate over a period of several weeks. For that reason, I commend 
Senator Akaka for convening this Subcommittee hearing--albeit 2 years 
too late--to review the REAL ID Act and to carefully consider ways to 
improve the security and eligibility standards for drivers' licenses in 
a manner that does not require a National ID or federal data base to 
track all drivers.
    This Committee appropriately and completely addressed the concerns 
first outlined by the 9/11 Commission's report to Congress regarding 
terrorists use of falsely obtained forms of identification to access 
sensitive security areas. The Commission recommended, ``The Federal 
Government should set standards for the issuance of sources of 
identification, such as drivers' licenses.'' (pg. 390) During the 
summer and fall of 2004, I worked with many of the current members of 
this committee to craft and pass legislation that included a 
collaborative process for developing minimum standards for drivers' 
licenses, such as name, address, phone and signature. This bipartisan 
legislation--The Intelligence Reform and Terrorist Prevention Act of 
2004 (IRTPA)--subsequently passed both Houses of Congress and was 
signed into law by President Bush in December of 2004.
    The IRTPA was mindful of States' rights through the inclusion of 
governors, State legislators and motor vehicle administrators in the 
negotiated rulemaking process. Equally important, it avoided the 
creation of a national ID, massive databases and billions of dollars in 
unfunded mandates. As we all know, this common-sense solution to a 
legitimate problem was eliminated and replaced by an unnecessary, 
unfunded, and unlikely to make you safer federal mandate: REAL ID.
    States understand this and have started to take action. Across the 
country, State Legislatures are introducing, debating and, in some 
cases, passing legislation outlawing the Federal Government 
implementing REAL ID. In this instance, the Senate needs to follow the 
example being set by the States.
    Most recently, the Department of Homeland Security (DHS) released a 
notice of proposed rulemaking. Included in these regulations is an 
agreement to give States a 2 year extension to implement new standards, 
as well as, the understanding that DHS will bring States, technology 
experts, and privacy advocates back to the table to ensure these 
standards are crafted in a way that respects States' rights and 
minimizes costs. It is important to note this would not have been 
possible without the efforts of Senator Collins and others who 
recognize the unreasonable burden REAL ID places on the States. 
Although this agreement is far superior to immediate implementation of 
REAL ID, more must be done to protect taxpayers, States' rights, and 
the privacy of all Americans.
    That is why Senator Akaka and I have reintroduced the 
``Identification Security Enhancement Act.'' Our legislation would 
repeal Title II of the REAL ID Act and replace it with the negotiated 
rulemaking process originally passed as part of the Intelligence Reform 
and Terrorist Prevention Act of 2004. These provisions would enhance 
privacy protections by ensuring procedures and requirements are in 
place to protect civil liberties, as well as, privacy and 
constitutional rights. I look forward to continuing my efforts to 
combat this unnecessary, unfunded mandate with Senator Akaka and my 
fellow colleagues on the Homeland Security and Government Affairs 
Committee.
[GRAPHIC] [TIFF OMITTED] 34415.001

[GRAPHIC] [TIFF OMITTED] 34415.002

[GRAPHIC] [TIFF OMITTED] 34415.003

[GRAPHIC] [TIFF OMITTED] 34415.004

[GRAPHIC] [TIFF OMITTED] 34415.005

[GRAPHIC] [TIFF OMITTED] 34415.006

[GRAPHIC] [TIFF OMITTED] 34415.007

[GRAPHIC] [TIFF OMITTED] 34415.008

[GRAPHIC] [TIFF OMITTED] 34415.200

[GRAPHIC] [TIFF OMITTED] 34415.009

[GRAPHIC] [TIFF OMITTED] 34415.010

[GRAPHIC] [TIFF OMITTED] 34415.011

[GRAPHIC] [TIFF OMITTED] 34415.012

[GRAPHIC] [TIFF OMITTED] 34415.013

[GRAPHIC] [TIFF OMITTED] 34415.014

[GRAPHIC] [TIFF OMITTED] 34415.198

[GRAPHIC] [TIFF OMITTED] 34415.199

[GRAPHIC] [TIFF OMITTED] 34415.015

[GRAPHIC] [TIFF OMITTED] 34415.016

[GRAPHIC] [TIFF OMITTED] 34415.017

[GRAPHIC] [TIFF OMITTED] 34415.018

[GRAPHIC] [TIFF OMITTED] 34415.019

[GRAPHIC] [TIFF OMITTED] 34415.020

[GRAPHIC] [TIFF OMITTED] 34415.021

[GRAPHIC] [TIFF OMITTED] 34415.022

[GRAPHIC] [TIFF OMITTED] 34415.023

[GRAPHIC] [TIFF OMITTED] 34415.024

[GRAPHIC] [TIFF OMITTED] 34415.025

[GRAPHIC] [TIFF OMITTED] 34415.026

[GRAPHIC] [TIFF OMITTED] 34415.027

[GRAPHIC] [TIFF OMITTED] 34415.028

[GRAPHIC] [TIFF OMITTED] 34415.029

[GRAPHIC] [TIFF OMITTED] 34415.030

[GRAPHIC] [TIFF OMITTED] 34415.031

[GRAPHIC] [TIFF OMITTED] 34415.032

[GRAPHIC] [TIFF OMITTED] 34415.033

[GRAPHIC] [TIFF OMITTED] 34415.034

[GRAPHIC] [TIFF OMITTED] 34415.035

[GRAPHIC] [TIFF OMITTED] 34415.036

[GRAPHIC] [TIFF OMITTED] 34415.037

[GRAPHIC] [TIFF OMITTED] 34415.038

[GRAPHIC] [TIFF OMITTED] 34415.039

[GRAPHIC] [TIFF OMITTED] 34415.040

[GRAPHIC] [TIFF OMITTED] 34415.041

[GRAPHIC] [TIFF OMITTED] 34415.042

[GRAPHIC] [TIFF OMITTED] 34415.043

[GRAPHIC] [TIFF OMITTED] 34415.044

[GRAPHIC] [TIFF OMITTED] 34415.045

[GRAPHIC] [TIFF OMITTED] 34415.046

[GRAPHIC] [TIFF OMITTED] 34415.047

[GRAPHIC] [TIFF OMITTED] 34415.048

[GRAPHIC] [TIFF OMITTED] 34415.049

[GRAPHIC] [TIFF OMITTED] 34415.050

[GRAPHIC] [TIFF OMITTED] 34415.051

[GRAPHIC] [TIFF OMITTED] 34415.052

[GRAPHIC] [TIFF OMITTED] 34415.053

[GRAPHIC] [TIFF OMITTED] 34415.054

[GRAPHIC] [TIFF OMITTED] 34415.055

[GRAPHIC] [TIFF OMITTED] 34415.056

[GRAPHIC] [TIFF OMITTED] 34415.201

[GRAPHIC] [TIFF OMITTED] 34415.057

[GRAPHIC] [TIFF OMITTED] 34415.058

[GRAPHIC] [TIFF OMITTED] 34415.059

[GRAPHIC] [TIFF OMITTED] 34415.060

[GRAPHIC] [TIFF OMITTED] 34415.061

[GRAPHIC] [TIFF OMITTED] 34415.062

[GRAPHIC] [TIFF OMITTED] 34415.063

[GRAPHIC] [TIFF OMITTED] 34415.064

[GRAPHIC] [TIFF OMITTED] 34415.065

[GRAPHIC] [TIFF OMITTED] 34415.066

[GRAPHIC] [TIFF OMITTED] 34415.067

[GRAPHIC] [TIFF OMITTED] 34415.068

[GRAPHIC] [TIFF OMITTED] 34415.069

[GRAPHIC] [TIFF OMITTED] 34415.070

[GRAPHIC] [TIFF OMITTED] 34415.071

[GRAPHIC] [TIFF OMITTED] 34415.072

[GRAPHIC] [TIFF OMITTED] 34415.073

[GRAPHIC] [TIFF OMITTED] 34415.074

[GRAPHIC] [TIFF OMITTED] 34415.075

[GRAPHIC] [TIFF OMITTED] 34415.076

[GRAPHIC] [TIFF OMITTED] 34415.077

[GRAPHIC] [TIFF OMITTED] 34415.078

[GRAPHIC] [TIFF OMITTED] 34415.079

[GRAPHIC] [TIFF OMITTED] 34415.080

[GRAPHIC] [TIFF OMITTED] 34415.081

[GRAPHIC] [TIFF OMITTED] 34415.082

[GRAPHIC] [TIFF OMITTED] 34415.083

[GRAPHIC] [TIFF OMITTED] 34415.084

[GRAPHIC] [TIFF OMITTED] 34415.085

[GRAPHIC] [TIFF OMITTED] 34415.086

[GRAPHIC] [TIFF OMITTED] 34415.087

[GRAPHIC] [TIFF OMITTED] 34415.088

[GRAPHIC] [TIFF OMITTED] 34415.089

[GRAPHIC] [TIFF OMITTED] 34415.090

[GRAPHIC] [TIFF OMITTED] 34415.091

[GRAPHIC] [TIFF OMITTED] 34415.092

[GRAPHIC] [TIFF OMITTED] 34415.093

[GRAPHIC] [TIFF OMITTED] 34415.094

[GRAPHIC] [TIFF OMITTED] 34415.095

[GRAPHIC] [TIFF OMITTED] 34415.096

[GRAPHIC] [TIFF OMITTED] 34415.097

[GRAPHIC] [TIFF OMITTED] 34415.098

[GRAPHIC] [TIFF OMITTED] 34415.099

[GRAPHIC] [TIFF OMITTED] 34415.100

[GRAPHIC] [TIFF OMITTED] 34415.101

[GRAPHIC] [TIFF OMITTED] 34415.102

[GRAPHIC] [TIFF OMITTED] 34415.103

[GRAPHIC] [TIFF OMITTED] 34415.104

[GRAPHIC] [TIFF OMITTED] 34415.105

[GRAPHIC] [TIFF OMITTED] 34415.106

[GRAPHIC] [TIFF OMITTED] 34415.107

[GRAPHIC] [TIFF OMITTED] 34415.108

[GRAPHIC] [TIFF OMITTED] 34415.109

[GRAPHIC] [TIFF OMITTED] 34415.110

[GRAPHIC] [TIFF OMITTED] 34415.111

[GRAPHIC] [TIFF OMITTED] 34415.112

[GRAPHIC] [TIFF OMITTED] 34415.113

[GRAPHIC] [TIFF OMITTED] 34415.114

[GRAPHIC] [TIFF OMITTED] 34415.115

[GRAPHIC] [TIFF OMITTED] 34415.116

[GRAPHIC] [TIFF OMITTED] 34415.117

[GRAPHIC] [TIFF OMITTED] 34415.118

[GRAPHIC] [TIFF OMITTED] 34415.119

[GRAPHIC] [TIFF OMITTED] 34415.120

[GRAPHIC] [TIFF OMITTED] 34415.121

[GRAPHIC] [TIFF OMITTED] 34415.122

[GRAPHIC] [TIFF OMITTED] 34415.123

[GRAPHIC] [TIFF OMITTED] 34415.124

[GRAPHIC] [TIFF OMITTED] 34415.125

[GRAPHIC] [TIFF OMITTED] 34415.126

[GRAPHIC] [TIFF OMITTED] 34415.127

[GRAPHIC] [TIFF OMITTED] 34415.202

[GRAPHIC] [TIFF OMITTED] 34415.203

[GRAPHIC] [TIFF OMITTED] 34415.204

[GRAPHIC] [TIFF OMITTED] 34415.205

[GRAPHIC] [TIFF OMITTED] 34415.206

[GRAPHIC] [TIFF OMITTED] 34415.207

[GRAPHIC] [TIFF OMITTED] 34415.208

[GRAPHIC] [TIFF OMITTED] 34415.209

[GRAPHIC] [TIFF OMITTED] 34415.210

[GRAPHIC] [TIFF OMITTED] 34415.211

[GRAPHIC] [TIFF OMITTED] 34415.212

[GRAPHIC] [TIFF OMITTED] 34415.213

[GRAPHIC] [TIFF OMITTED] 34415.214

[GRAPHIC] [TIFF OMITTED] 34415.215

[GRAPHIC] [TIFF OMITTED] 34415.216

[GRAPHIC] [TIFF OMITTED] 34415.217

[GRAPHIC] [TIFF OMITTED] 34415.218

[GRAPHIC] [TIFF OMITTED] 34415.219

[GRAPHIC] [TIFF OMITTED] 34415.220

[GRAPHIC] [TIFF OMITTED] 34415.128

[GRAPHIC] [TIFF OMITTED] 34415.129

[GRAPHIC] [TIFF OMITTED] 34415.130

[GRAPHIC] [TIFF OMITTED] 34415.131

[GRAPHIC] [TIFF OMITTED] 34415.132

[GRAPHIC] [TIFF OMITTED] 34415.133

[GRAPHIC] [TIFF OMITTED] 34415.134

[GRAPHIC] [TIFF OMITTED] 34415.135

[GRAPHIC] [TIFF OMITTED] 34415.136

[GRAPHIC] [TIFF OMITTED] 34415.137

[GRAPHIC] [TIFF OMITTED] 34415.138

[GRAPHIC] [TIFF OMITTED] 34415.139

[GRAPHIC] [TIFF OMITTED] 34415.140

[GRAPHIC] [TIFF OMITTED] 34415.141

[GRAPHIC] [TIFF OMITTED] 34415.142

[GRAPHIC] [TIFF OMITTED] 34415.143

[GRAPHIC] [TIFF OMITTED] 34415.144

[GRAPHIC] [TIFF OMITTED] 34415.145

[GRAPHIC] [TIFF OMITTED] 34415.146

[GRAPHIC] [TIFF OMITTED] 34415.147

[GRAPHIC] [TIFF OMITTED] 34415.148

[GRAPHIC] [TIFF OMITTED] 34415.149

[GRAPHIC] [TIFF OMITTED] 34415.150

[GRAPHIC] [TIFF OMITTED] 34415.151

[GRAPHIC] [TIFF OMITTED] 34415.152

[GRAPHIC] [TIFF OMITTED] 34415.153

[GRAPHIC] [TIFF OMITTED] 34415.154

[GRAPHIC] [TIFF OMITTED] 34415.155

[GRAPHIC] [TIFF OMITTED] 34415.156

[GRAPHIC] [TIFF OMITTED] 34415.157

[GRAPHIC] [TIFF OMITTED] 34415.158

[GRAPHIC] [TIFF OMITTED] 34415.159

[GRAPHIC] [TIFF OMITTED] 34415.160

[GRAPHIC] [TIFF OMITTED] 34415.161

[GRAPHIC] [TIFF OMITTED] 34415.162

[GRAPHIC] [TIFF OMITTED] 34415.163

[GRAPHIC] [TIFF OMITTED] 34415.164

[GRAPHIC] [TIFF OMITTED] 34415.165

[GRAPHIC] [TIFF OMITTED] 34415.166

[GRAPHIC] [TIFF OMITTED] 34415.167

[GRAPHIC] [TIFF OMITTED] 34415.168

[GRAPHIC] [TIFF OMITTED] 34415.169

[GRAPHIC] [TIFF OMITTED] 34415.170

[GRAPHIC] [TIFF OMITTED] 34415.171

[GRAPHIC] [TIFF OMITTED] 34415.172

[GRAPHIC] [TIFF OMITTED] 34415.173

[GRAPHIC] [TIFF OMITTED] 34415.174

[GRAPHIC] [TIFF OMITTED] 34415.175

[GRAPHIC] [TIFF OMITTED] 34415.176

[GRAPHIC] [TIFF OMITTED] 34415.177

[GRAPHIC] [TIFF OMITTED] 34415.178

[GRAPHIC] [TIFF OMITTED] 34415.179

[GRAPHIC] [TIFF OMITTED] 34415.180

[GRAPHIC] [TIFF OMITTED] 34415.181

[GRAPHIC] [TIFF OMITTED] 34415.182

[GRAPHIC] [TIFF OMITTED] 34415.183

[GRAPHIC] [TIFF OMITTED] 34415.184

[GRAPHIC] [TIFF OMITTED] 34415.185

[GRAPHIC] [TIFF OMITTED] 34415.186

[GRAPHIC] [TIFF OMITTED] 34415.187

[GRAPHIC] [TIFF OMITTED] 34415.188

[GRAPHIC] [TIFF OMITTED] 34415.189

[GRAPHIC] [TIFF OMITTED] 34415.190

[GRAPHIC] [TIFF OMITTED] 34415.191

[GRAPHIC] [TIFF OMITTED] 34415.192

[GRAPHIC] [TIFF OMITTED] 34415.193

[GRAPHIC] [TIFF OMITTED] 34415.194

[GRAPHIC] [TIFF OMITTED] 34415.195

[GRAPHIC] [TIFF OMITTED] 34415.196

[GRAPHIC] [TIFF OMITTED] 34415.197

                                 
