[Senate Hearing 111-981]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-981
 
         IDENTIFICATION SECURITY: REEVALUATING THE REAL ID ACT

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



                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                                 of the

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 15, 2009

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

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



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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              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado

                  Michael L. Alexander, Staff Director
            Deborah P. Parkinson, Professional Staff Member
              Seamus A. Hughes, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                    John K. Grant, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................     1
    Senator Collins..............................................     3
    Senator Akaka................................................     5
    Senator Voinovich............................................     7
    Senator Burris...............................................    20
Prepared statements:
    Senator Lieberman............................................    45
    Senator Collins..............................................    47
    Senator Akaka with attachments...............................    50
    Senator Voinovich............................................    79
    Senator Burris...............................................    81

                               WITNESSES
                        Wednesday, July 15, 2009

Hon. Janet A. Napolitano, Secretary, U.S. Department of Homeland 
  Security.......................................................     7
Hon. Jim Douglas, Governor, State of Vermont; Vice Chair, 
  National Governors Association.................................    10
Hon. Stewart A. Baker, Former Assistant Secretary of Homeland 
  Security.......................................................    24
Hon. Leroy D. Baca, Sheriff, Los Angeles County, California......    26
David Quam, Director of Federal Relations, National Governors 
  Association....................................................    28
Ari Schwartz, Vice President and Chief Operating Officer, Center 
  for Democracy and Technology...................................    30

                     Alphabetical List of Witnesses

Baca, Hon. Leroy D.:
    Testimony....................................................    26
    Prepared statement...........................................   113
Baker, Hon. Stewart A.:
    Testimony....................................................    24
    Prepared statement with attachments..........................    98
Douglas, Hon. Jim:
    Testimony....................................................    10
    Prepared statement...........................................    91
Napolitano, Hon. Janet A.:
    Testimony....................................................     7
    Prepared statement...........................................    82
Quam, David:
    Testimony....................................................    28
    Prepared statement with attachments..........................   118
Schwartz, Ari:
    Testimony....................................................    30
    Prepared statement...........................................   127

                                APPENDIX

Prepared statements submitted for the Record from:
    Sheila Dean, The 5-11 Campaign...............................   139
    Janice L. Kephart, National Security Policy Director, Center 
      for Immigration Studies, and Jena Baker McNeill, Policy 
      Analyst, Homeland Security, Heritage Foundation............   147
    Dr. Nelson Ludlow, Director and Chief Executive Officer, 
      Intellicheck Mobilisa, Inc.................................   158
    National Association for Public Health Statistics and 
      Information Systems (NAPHSIS)..............................   164
    Paul E. Opsommer, State Representative, Michigan House of 
      Representatives............................................   169


         IDENTIFICATION SECURITY: REEVALUATING THE REAL ID ACT

                              ----------                              


                        WEDNESDAY, JULY 15, 2009

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                    and Government Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Akaka, Tester, Burris, Bennet, 
Collins, and Voinovich.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. Good morning and welcome to this 
hearing where we will review the steps that the U.S. Government 
has taken and State governments have responded to and those 
steps that we may ultimately take to achieve the important 
national goal of keeping fraudulent State identification cards 
and drivers' licenses out of the hands of terrorists and 
criminals.
    I want to welcome Secretary Napolitano, Governor Douglas of 
Vermont, and our witnesses on the second panel, and to thank 
you for all the work that you have done on this very important 
matter.
    I always kick myself when I say I told you so, but I regret 
to say that I am not surprised we are here today. When Congress 
adopted the so-called REAL ID Act of 2005 as an amendment to a 
supplemental appropriations bill without hearings of any kind 
or any formal public vetting, we replaced a process for 
developing Federal identification requirements that Senator 
Collins and I had made part of the Intelligence Reform and 
Terrorism Prevention Act of 2004, the so-called 9/11 Commission 
legislation.
    In our work, Senator Collins and I took very seriously the 
finding of the 9/11 Commission that ``All but one of the 9/11 
hijackers acquired some form of U.S. identification document, 
some by fraud. Acquisition of these forms of identification 
would have assisted them in boarding commercial flights, 
renting cars and other necessary activities.''
    And the 9/11 Commission went on to appeal to the Federal 
Government to ``set standards for the issuance of birth 
certificates and sources of identification on such as drivers' 
licenses.''
    With that in mind, we therefore included in the 9/11 
legislation of 2004 a requirement that the Federal Government 
establish a negotiated rulemaking committee composed of subject 
matter experts and stakeholders including, of course, 
representatives of the State governments to propose workable 
identification security standards.
    Then came the REAL ID Act of 2005, which, as I said, was 
submitted as an amendment to supplemental appropriations 
legislation. Though I thought some of the parts of the Act and 
the intention of the Act were good, I opposed the REAL ID Act 
because I thought ultimately it laid out a very prescriptive, 
unworkable, and expensive process. And, unfortunately, history 
has borne this out, and that is why we are here today, if I may 
rub it in a little bit.
    I really believe that if our original 9/11 Commission 
legislation had been left intact and a rulemaking process had 
begun negotiations with the States and the Federal Government, 
and it had not been repealed by REAL ID, we would have millions 
more secure IDs instead of being involved in a continuing 
debate and, really, a joust between the States and the Federal 
Government.
    Some States, including Connecticut, are working to 
implement REAL ID, but the fact is that the legislatures of 13 
States have passed laws prohibiting their States from complying 
with REAL ID as it presently stands, and several other States 
are right now considering some other legislation, and that is 
at the risk that their State identification documents will not 
be accepted by the Federal Government, for instance, for 
boarding a plane.
    So that is the dilemma and the crisis really that brings us 
here today as we try to answer the question of what kinds of 
changes to REAL ID are necessary to achieve a workable solution 
here.
    As always in the Congress, we cannot let the perfect be the 
enemy of the good, but, of course, we want to ensure that what 
we consider to be good is not diluted so that we in any way 
compromise our homeland security. I, personally, think we can 
achieve both goals.
    Today, we are going to discuss bipartisan legislation 
sponsored by a number of Members of this Committee--Senators 
Akaka, Voinovich, Carper, Tester, and Burris--which is called 
the PASS ID Act that reforms REAL ID in an attempt to make it 
work as intended while trying to ease the strain on our 
overburdened and underfunded State governments.
    The plan retains parts of REAL ID such as the requirement 
of a digital photograph, signature, and machine-readable coding 
on State-issued ID cards. States will also need to verify an 
applicant's Social Security number and legal status by checking 
Federal immigration and Social Security databases.
    But the States would be given more flexibility in issuing 
the new identification cards while staying, I am pleased to 
say, within the REAL ID time table. In fact, if the Providing 
for Additional Security in States' Identification (PASS ID) Act 
becomes law this year, States must be fully compliant with it 
before the current REAL ID deadline of 2017, and that is 
important, I am sure, to all of us because any acceptable 
solution must really work within existing timetables and not 
delay increased personal identification security.
    PASS ID does eliminate a requirement that motor vehicle 
departments electronically check the validity of some identity 
documents such as birth certificates with the originating 
agency. I know this change has been a major source of concern, 
and this morning I want to discuss it with our witnesses and 
see if those concerns are justified.
    PASS ID also strengthens privacy protections by requiring 
procedures be put in place to prevent the unauthorized access 
or sharing of information, to require a public notice of 
privacy policy and a process for individuals to correct their 
records.
    So let me thank Senators Akaka, Voinovich, and others who 
join them, as well as Secretary Napolitano, for the efforts 
that you have made to come up with a plan that can work while 
not losing sight of the very direct statement of the 9/11 
Commission warning us that ``For terrorists, travel documents 
are as important as weapons.''
    I still do have some concerns about PASS ID that I want to 
explore with our witnesses today, but, bottom line, in an age 
of terrorism, reliable personal identification is an important 
and urgent matter critical to our homeland security. I hope 
that this hearing will enable us to move forward and mark up 
legislation in this Committee on this matter in the very near 
future.
    Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank, Mr. Chairman.
    One week from today, we mark the 5th Anniversary of the 
release of the bipartisan 9/11 Commission Report. In examining 
how terrorists were able to attack our country the Commission 
found that all but one of the 19 terrorists used drivers' 
licenses to board the planes that were then used as weapons in 
the attacks that killed nearly 3,000 people.
    The commissioners recognized that easily-obtained drivers' 
licenses were a security vulnerability. As the Chairman has 
said, the words that I, too, remember are the Commission's 
words saying that ``For terrorists, travel documents are as 
important as weapons.'' And to address this vulnerability, the 
Commission recommended that the Federal Government set 
standards for the issuance of birth certificates and other 
sources of identification, particularly drivers' licenses which 
had proven to be so vital to the hijackers' ability to carry 
out their deadly plot.
    To call the effort to implement this recommendation 
``difficult'' would be an understatement. As Senator Lieberman 
has recounted, he and I authored very well thought-out 
provisions in the Intelligence Reform Act of 2004 that 
established a collaborative committee comprised of Federal and 
State officials, technology experts and privacy advocates to 
develop these secure identification standards, and the work of 
this Committee was well underway in 2005 when, regrettably, the 
House of Representatives repealed our provisions by slipping 
the REAL ID Act into an urgent war-funding bill.
    I use the word, slipping it into the urgent war-funding 
bill advisedly because in the Senate there were no hearings, 
there was no debate, there was no vote. This was a take it or 
leave it vote on the entire war supplemental.
    Then, for more than 2 years, States were left to 
contemplate the enormity of the task of reissuing new licenses 
to all drivers by May 2008, while they waited for the 
Department of Homeland Security (DHS) to issue the regulations 
that would tell them how to achieve that requirement. And the 
States waited and waited and waited until January 29, 2008, 
when a final rule was issued, leaving the States just 103 days 
until the May 11, 2008, compliance deadline.
    Complicating the problem, State budgets had little room for 
the hundreds of millions of dollars that it would cost to 
implement the new regulations, and, of course, a faltering 
economy only worsened the financial strain.
    Another problem was that the key information technology 
systems necessary to implement the law efficiently were not 
readily available.
    And, although identity theft costs the economy billions of 
dollars and causes much distress to its victims, the 
Department's regulations failed to address critical privacy 
issues created by the interconnected systems of databases 
mandated by the law.
    With these problems unresolved and numerous States 
protesting REAL ID or even outright refusing to implement the 
law, I worked to persuade the Department to provide States with 
an additional 18 months to meet the REAL ID deadline, giving us 
all time to revisit the issues.
    The PASS ID Act that we are discussing today is one attempt 
to resolve these problems. It refines rather than repeals the 
law, and it targets areas where the law imposed unreasonable 
and costly burdens, failed to protect the privacy interests of 
our citizens and mandated technological solutions that may not 
be practical.
    One example of these refinements is in the bill's approach 
to ensuring that each person possess only one valid license, 
from any one State, at any one time. To meet this goal, REAL ID 
would have mandated an information sharing system that may not 
be technically feasible or governed by basic privacy 
protections. Instead of scrapping the system altogether, PASS 
ID would preserve and fund a pilot program to test the 
necessary technology and to permit a careful examination of 
privacy concerns. This makes a great deal of sense.
    Nonetheless, I recognize the concerns of those who fear 
that this bill, in addressing the problems of REAL ID, may have 
unintended consequences. Drivers' licenses can be the keys to 
the kingdom for terrorists bent on death and destruction. 
States have a responsibility to ensure that licenses are 
tamper-proof and issued only to people whose identity and legal 
status can be verified.
    Certain language in the PASS ID Act may undermine that goal 
because it would not allow the Transportation Security 
Administration (TSA) to prevent a passenger from boarding a 
plane based solely on the fact that he or she did not have a 
compliant license. This provision would eliminate an important 
incentive for States to adopt Federal standards and could 
impose worrisome restrictions on the discretion of security 
officials who believe a passenger without a compliant license 
should not be permitted to board a plane.
    As we examine this legislation today, my primary concerns 
are whether these provisions are moving us toward the security 
goal set by the 9/11 Commission 5 years ago while accommodating 
the legitimate concerns of States and privacy experts.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you very much, Senator Collins.
    It seems appropriate to move slightly away from normal 
Committee procedures and to invite Senator Akaka and Senator 
Voinovich to make an opening statement, if they would like, 
based on the extensive work that they have done in preparing 
and introducing PASS ID.
    Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I want to 
thank you for holding this hearing to further explore the 
ramifications REAL ID on States, on security, and on privacy as 
well as the proposal that I, along with Senators Voinovich, 
Carper, Tester, Burris and other Members, have put forward to 
fix REAL ID.
    At this point, Mr. Chairman, may I add happy birthday to 
our friend here, Senator Voinovich.
    Chairman Lieberman. Happy birthday.
    Senator Collins. Happy birthday.
    Senator Akaka. I have been a longtime opponent of REAL ID 
due to concerns about protecting individuals' privacy as well 
as the States' inability to implement the burdensome program. 
REAL ID calls on the States to collect and electronically store 
individuals' personal records when issuing licenses and to 
share that information with every department of motor vehicles 
(DMV) nationwide. This effectively would create a national 
database containing massive amounts of personal information.
    During the last Congress, I chaired two hearings on REAL ID 
where it became clear that it was simply not workable. Some of 
the data systems do not yet exist because so many States have 
balked at the high costs and privacy implications of creating 
such a system. If REAL ID is implemented, these databases could 
provide one-stop shopping for identity thieves and become the 
backbone for a national identification card.
    We must act to fix REAL ID. States simply still cannot 
afford the $4 billion it would take to implement REAL ID. Over 
a dozen States have already refused to comply, and several 
more, like Hawaii, have expressed serious concerns with the 
program. Without the participation of all States, there will be 
only a patchwork system for identification security, which 
means no real security at all.
    The bill I am proposing, S. 1261,\1\ the Providing for 
Additional Security in States' Identification Act of 2009, or 
PASS ID Act, represents a pragmatic approach to resolving many 
of the most troubling aspects of the REAL ID Act. I worked 
closely with the stakeholders, many of whom are here today, 
representing a broad range of views, to develop this practical 
alternative to REAL ID.
---------------------------------------------------------------------------
    \1\ The bill (S. 1261) referenced by Senator Akaka appears in the 
Appendix on page 55.
---------------------------------------------------------------------------
    The PASS ID Act does exactly what the 9/11 Commission 
recommended: It sets strong security standards for the issuance 
of identification cards and drivers' licenses.
    What it does not do is go far beyond that recommendation by 
requiring the collection of Americans' personal information and 
storing it in a centralized repository accessible by any State 
DMV.
    Perhaps the most important change in our bill is the 
removal of the mandate that States share all of their drivers' 
license data with each of the other States. This provision 
created a clear threat to the privacy of all Americans' 
personal information, posed a great risk for identity theft and 
fraud, and raised the specter of a national database of all 
Americans' personal information.
    The bill requires States to protect electronic information 
and, for the first time, any machine readable data stored on 
identification cards and drivers' licenses themselves, ensuring 
it is only used for its intended purposes.
    Another change I want to highlight is the clarification of 
Americans' right to travel on commercial aircraft and to enter 
Federal buildings. The current law restricts these rights by 
requiring a REAL ID-compliant ID to board commercial aircraft 
and to enter Federal buildings.
    In this country, we cherish the right to travel and the 
right to petition the government. Americans should not be 
denied boarding an aircraft or denied entry to most Federal 
buildings solely because they have lost or do not have their 
identification. Instead, such situations should be resolved 
through additional security screening or other inquiries as 
needed, as is currently TSA policy and is the case with every 
other type of security risk.
    As important as what would change with PASS ID is what 
would not change: Individuals would still need to prove that 
they are lawfully present in the United States; individuals 
would only be allowed one compliant identification to be used 
for official purposes; and individuals would need to present 
the same sources of identifying documents to obtain a compliant 
license.
    This compromise bill does not address all of my concerns 
with REAL ID. I know that others are disappointed that it does 
not address all of their concerns. However, the reality we face 
right now is that in less than a year States will be required 
to comply with a law that is overly burdensome and unworkable. 
We cannot let the perfect be the enemy of the good, especially 
when we are working to address a seriously flawed law already 
on the books.
    To date, the Department of Homeland Security, the National 
Governors Association, National Conference of State 
Legislatures, the Center for Democracy and Technology, and 
several law enforcement organizations have endorsed PASS ID. I 
hope we will move swiftly to ensure its enactment and provide 
some clarity to States facing REAL ID implementation deadlines.
    As always, my goal remains to protect both the security 
needs and the privacy rights of all Americans, and I will 
continue to work closely with the Department of Homeland 
Security to ensure that individual rights and liberties are 
fully protected during the implementation of PASS ID.
    I thank you again, Chairman Lieberman and Ranking Member 
Collins, for agreeing to hold this hearing.
    I ask that my full statement from the introduction of PASS 
ID be included in this hearing's record.\1\
---------------------------------------------------------------------------
    \1\ The statement referenced by Senator Akaka appears in the 
Appendix on page 52.
---------------------------------------------------------------------------
    Chairman Lieberman. Thanks, Senator Akaka. Without 
objection, so ordered.
    Happy birthday, Senator Voinovich. I do not know your age, 
but I am prepared to say that you look younger than you are.
    Senator Voinovich. I will hire you for public relations. 
[Laughter.]
    Chairman Lieberman. I bet I am right, but you do not have 
to disclose anything here.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. I have a problem because I have to do an 
amendment in a committee, and I have just been told I have to 
get up there for it. So I will make this really brief.
    First of all, Senator Akaka, thank you very much for all 
the work that you have put in on this bill. We have some great 
co-sponsors of this legislation. You have spoken eloquently to 
this, but what everyone ought to understand is that REAL ID, 5 
years later after enactment has not been implemented. It is not 
implemented.
    Why did it not get implemented? It is because Congress did 
not sit down with the people that were impacted by the 
legislation and get their thoughts on how we could go about 
making these requirements possible.
    And I will never forget when we had the hearing last year 
and Senator Akaka said we have to stop, throw it all out, begin 
again, get everybody involved, and do it right. And that is 
exactly what we have done.
    Madam Secretary, thank you very much, and the National 
Governors Association too. You have come together, figured out 
how we can get this done and set Federal requirements working 
together. We have a symbiotic relationship. We want to secure 
America. But the way we do that is by working together, and 
that is exactly what this legislation, I think, accomplishes.
    Now there may be some things yet that need to be added to 
it. But it is a good lesson for this Committee and for 
Congress. It is that when you go out and you do not dot the 
I's, cross the T's, and spend the time with the people that are 
really involved with an issue, what happens is it does not 
work.
    And then what happens? You have to start all over again. So 
why not do it right the first time?
    So we are going to do it right the second time. Thank you.
    Chairman Lieberman. Hear, hear. Thank you.
    Thanks, Secretary Napolitano and Governor Douglas for being 
here, for your patience while we did the opening statements. 
Now I am happy to call on our Secretary of Homeland Security, 
Janet Napolitano.

   STATEMENT OF HON. JANET A. NAPOLITANO,\1\ SECRETARY, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Secretary Napolitano. Thank you, Mr. Chairman, Senator 
Collins, Members of the Committee, for the opportunity to 
testify on PASS ID. I have a longer statement that I ask be 
included in the record.
---------------------------------------------------------------------------
    \1\ The prepared statement of Secretary Napolitano appears in the 
Appendix on page 82.
---------------------------------------------------------------------------
    Chairman Lieberman. Without objection.
    Secretary Napolitano. PASS ID is a bill that I support. The 
Department of Homeland Security (DHS) worked with governors and 
other stakeholders to provide technical assistance in its 
drafting, and so the approach that PASS ID takes to fix REAL ID 
is one that I support, and I think it makes sense.
    This is an important piece of national security legislation 
that is designed to help fulfill the 9/11 Commission's 
recommendation that the Federal Government set security 
standards for drivers' licenses. As has already been commented 
upon, the first attempt to do this, the REAL ID Act, was a 
start that badly needs to be fixed. PASS ID is a fix for REAL 
ID.
    The States agree that REAL ID is too rigid and needlessly 
expensive in mandating how States meet their security goals. As 
you noted, Chairman Lieberman, 13 States--I think Missouri 
being the most recent last night--have actually enacted 
legislation barring themselves from implementing REAL ID, and 
13 other States have passed resolutions opposing REAL ID. We 
cannot have national standards for drivers' licenses when the 
States themselves refuse to participate.
    Now the practical problem with REAL ID is one of 
timeliness, and that sets the urgency for PASS ID because under 
REAL ID, as of December 31 of this year, States are required to 
attest that they are implementing REAL ID for their drivers' 
licenses so that they can be accepted for things like boarding 
a plane. By December 31 of this year, no State will have issued 
a REAL ID-compliant identification document. No State will have 
a REAL ID-compliant document.
    Chairman Lieberman. So, if I may interrupt you, that means 
that assuming nothing else happens in between, that it is under 
the law the drivers' licenses issued by the States would not be 
accepted by TSA to gain passage onto airplanes?
    Secretary Napolitano. That is correct, Mr. Chairman, not 
without additional screening by TSA, and one can only 
contemplate just the inconvenience in airline travel that could 
occur if everyone has to undergo additional screening because 
they do not have a REAL ID-compliant drivers' license.
    Chairman Lieberman. In other words, the kind of secondary 
screening that goes on now, if for some reason you forget your 
license or something of that kind, that would have to happen to 
everybody?
    Secretary Napolitano. That is right, Senator.
    Chairman Lieberman. Interesting.
    Secretary Napolitano. So that sets the urgency for REAL ID 
and why I am so appreciative of PASS ID, why I am so 
appreciative that the Committee scheduled this hearing today 
and is moving forward.
    I am very pleased to be sitting next to Jim Douglas, my 
good friend, the Republican Governor of Vermont. He is the 
incoming Chair of the National Governors Association.
    Later, you will hear from Sheriff Leroy Baca of Los Angeles 
on why law enforcement supports PASS ID.
    Now we get to the fundamental reason why we have these laws 
in the first place. We go back to the 9/11 Commission Report. 
We need secure identification to thwart potential terrorists. 
Law enforcement needs to have confidence that an ID holder is 
who he or she claims to be. As the 9/11 Commission Report said, 
to terrorists, travel documents are just as important as 
weapons.
    States vary widely in the standards they employ. Now the 
system is too open to fraud. National standards are necessary, 
but national standards are embodied both in REAL ID and in PASS 
ID. Secure identification certainly will not thwart every 
planned terrorist attack, but it can present an obstacle and 
given another counterterrorism tool to law enforcement that we 
need.
    Now, as has been mentioned, there are many similarities 
between REAL ID and PASS ID. The main similarities between the 
two are the requirements for physical security of drivers' 
license production. The premises must be secure. A background 
check on employees must be conducted. There must be fraudulent 
document training given to all employees involved in the 
process.
    A requirement to show PASS ID: At the end of the 
implementation period, noncompliant identifications would no 
longer be automatically accepted to board planes, enter nuclear 
plants, government buildings, and the like.
    Document validation: Both laws would require States to 
validate the legitimacy of the underlying source documents such 
as birth certificates or licenses from other States. Further, 
under PASS ID, the requirement for electronic verification of 
Social Security numbers and lawful status remains.
    Now the differences: Why is this easier to implement from 
the State perspective?
    First, PASS ID eliminates the blanket requirement to use 
untested technologies for electronic verification of any and 
all source documents. States still have to validate documents, 
but they can pursue different ways to reach that standard.
    Second, they are required to electronically verify the 
Social Security and lawful presence through the Social Security 
Online Verification (SSOLV) and Systematic Alien Verification 
for Entitlements (SAVE) databases. But unlike REAL ID, under 
PASS ID, they are exempted from paying the fee for doing those 
checks.
    Third, there is greater flexibility under PASS ID in terms 
of how you re-enroll existing drivers' license holders because 
under REAL ID you have to re-enroll everybody under the age of 
50, 3 years earlier than everybody else. Under PASS ID, we give 
the States flexibility on how to do the re-enrollment so long 
as everything is complete by 2016, which actually is one year 
earlier than the final completion date for REAL ID.
    And, last, in terms of differences, as has been noted by 
Senator Akaka, unlike REAL ID, PASS ID actually contains within 
it specific assurance that States and privacy advocates have 
sought for the protection of the information that is garnered 
in the process.
    So these differences which are designed to make the goal of 
REAL ID a reachable goal and designed to move us toward 
reaching the goal of the 9/11 Commission Report, these 
differences contained within PASS ID make it a bill that, if 
passed and implemented before the December 31 deadline of this 
year, will fix a bill that was flawed from the outset.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Madam Secretary. That was very 
helpful testimony.
    Governor Douglas, we are honored to have you. You are here 
obviously not only in your capacity as the Governor of Vermont 
but as the incoming Chairman of the National Governors 
Association (NGA) which has endorsed PASS ID. Good morning.

 STATEMENT OF HON. JIM DOUGLAS,\1\ GOVERNOR, STATE OF VERMONT; 
           VICE CHAIR, NATIONAL GOVERNORS ASSOCIATION

    Governor Douglas. Well, thank you, Mr. Chairman, very much 
for your time today. It is great to be here, and I want to 
thank you for scheduling the hearing and for choosing the 
appropriate title, which is Reevaluating the REAL ID Act, 
because that is certainly what we need to do. We need to 
reevaluate it because it is not working. We have to come up 
with some solutions that will help us accomplish its goals.
---------------------------------------------------------------------------
    \1\ The prepared statement of Governor Douglas appears in the 
Appendix on page 91.
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    For the past several years, at our NGA meetings, as the 
Secretary knows well, we have been talking about this, and all 
of the conversations seem to end the same way, with a great 
deal of frustration. Governors are frustrated because every 
governor is a security governor.
    Every governor wants his or her State to issue licenses 
that are accurate and secure. Every governor wants government 
to work. Every governor is vividly aware of what happened on 
September 11, 2001, and wants to do what he or she can to make 
sure that it does not happen again.
    As you noted, Mr. Chairman, in your opening comments and 
Senator Collins did as well, the two of you crafted a 
negotiated rulemaking process as part of the Intelligence 
Reform Act that was designed to bring all the parties to the 
table to craft meaningful national standards for drivers' 
licenses. Ironically, if that agreement had been left in place, 
we probably would not be having this discussion today. But, 
instead, the negotiated rulemaking was replaced, as you have 
noted, by REAL ID.
    As of yesterday, 13 States have enacted laws prohibiting 
its implementation, and a number of others have adopted joint 
resolutions opposing the law. Well, it seems to me that 
security systems only work if people are willing to use them. 
REAL ID does not work because a lot of States have just said 
no.
    So I am committed to providing Vermonters with a driver's 
license that is accurate and secure, and I know my colleagues 
are in their State as well. But, while the objectives of REAL 
ID are laudable, the law represents an unworkable and unfunded 
mandate that fails to make us more secure. I really believe we 
need a better mousetrap.
    PASS ID provides a solution and a path forward, and I want 
to thank Senator Akaka and Senator Voinovich and their 
colleagues for introducing it.
    PASS ID builds on the strengths of REAL ID. It solves its 
weaknesses and delivers more cost-effective common-sense 
solutions that can enhance the security and integrity of all 
licenses and State identification cards.
    PASS ID is consistent with the 9/11 Commission 
recommendation that has been cited. It increased security. It 
facilitates participation by all jurisdictions. And it 
addresses one of the largest concerns with REAL ID: how to 
allow States with anti-REAL ID laws to come into compliance 
with a workable national standard.
    The PASS ID Act was written as the original act should have 
been, with States, the Homeland Security Department, and other 
interested groups at the table. That is why NGA supports this 
proposal. That is why I am happy to join my former colleague, 
herself a former Chair of NGA, Secretary Napolitano, and offer 
my endorsement of the bill.
    We fully understand the need to ensure the integrity of 
security and security of the process by which we issue drivers' 
licenses and ID cards in my State. We are working toward 
compliance with the law. I want to assure the Committee that we 
are one of the states that is not resisting. We are doing 
everything we can to comply, but, as enacted, REAL ID poses 
significant challenges for implementation.
    Now PASS ID will also present some real challenges, some 
changes at least in the way we issue licenses, but its 
elimination of unnecessary requirements and its cost-
effectiveness make it a much better alternative.
    There are significant challenges in developing the 
electronic systems that REAL ID requires as some of you have 
noted and, frankly, a great deal of doubt about whether they 
are going to be ready on time, whether they will be reliable, 
and whether they will be nationally deployed so that we can 
begin issuing fully compliant licenses by the deadline.
    In contrast, our State's processes for validating documents 
like birth certificates and ensuring only one license per 
driver are rigorous and reliable. In Vermont, we feel we can 
achieve the same level of security called for in REAL ID and do 
it sooner under PASS ID.
    It is most cost-effective--the key consideration, 
especially in these difficult fiscal times. The present cost 
estimate for States to implement REAL ID nationally is $3.9 
billion. In Vermont, we estimate it will cost us at least $20 
million, which is a lot for a State our size and a real 
roadblock to its implementation.
    Vermont has not completed a detailed cost analysis of PASS 
ID, but it is clear that it eliminates unnecessary costs and 
authorizes some of the funding necessary for States to 
implement the program, and that is an important first step 
toward covering the cost of compliance.
    PASS ID eliminates unnecessary costs like the transaction 
charges for linking to and using the Federal system. It 
authorizes some of the funding necessary to implement the 
program. These are big steps toward covering those costs. In 
fact, the NGA, with the assistance of State stakeholders, 
estimates that PASS ID would cost States about $2 billion, 
approximately half of REAL ID.
    In addition, PASS ID strengthens privacy protections. It 
requires privacy and security protections for the personal 
identification that is collected and stored in databases for 
the program. It requires States to establish safeguards against 
unauthorized access and use of such information as well as to 
create a process for cardholders to access and correct their 
own information if they find an error.
    One aspect of PASS ID that we particularly appreciate is 
the bill's explicit recognition of the Enhanced Driver's 
Licenses. Since we are so close to the Canadian province of 
Quebec, we very much value the importance of having an open but 
secure border.
    I have my Enhanced Driver's License, Mr. Chairman, and I 
have already used it in returning to Vermont from across the 
Canadian border. It is convenient. It is faster, and I 
appreciate the work of the Homeland Security Department in 
facilitating our approval of this document.
    Just do not look at the weight, Secretary Napolitano. I am 
not under oath on that. [Laughter.]
    Vermont businesses retain jobs and grow because of 
opportunities to sell products and services to our neighbors to 
the north. The United States and Canada enjoy the largest 
bilateral trading relationship in the world with more than $1.3 
billion in goods and services crossing the border every day.
    Thousands of people in my State cross the border with 
Quebec every day. Our border station at Derby Line is one of 
the busiest on the Canadian border for commercial truck 
traffic. In today's economic climate, a free and open border 
for Vermont manufacturers and retail businesses is more crucial 
than ever.
    The importance of our Enhanced Driver's License (EDL) being 
recognized as compliant with Federal driver's license standards 
cannot be understated. Our economic, environmental, and 
cultural relationship with Quebec is of paramount importance. 
The EDL costs us about a million dollars to implement, but, 
more importantly, the ease of border travel that it allows is 
key to our economy and our relationship with Canada, our 
largest trading partner.
    Now since the passage of REAL ID, governors have 
consistently offered constructive suggestions for implementing 
it. We have encourage DHS and Congress to fix the Act by 
implementing statutory or regulatory changes to make it 
feasible and cost-effective. We have called on the Federal 
Government to fund it by providing support to offset our State 
expenditures for meeting Federal standards.
    I really believe that PASS ID represents the kind of 
common-sense solution that governors have long sought. PASS ID 
represents, in contrast with REAL ID, a workable, cost-
effective solution that can increase the security and integrity 
of all license and identification systems.
    I want to highlight the critical deadline that is facing us 
at the end of this year. By December 31, all States must meet 
18 specific requirements to be deemed materially compliant with 
REAL ID. With a quarter of States legally prohibited from 
meeting these requirements and almost every State, if not 
literally every State, as the Secretary noted, unlikely to 
achieve compliance by year-end, we really need to address these 
challenges if we are going to continue to have the kind of 
access to our borders and to our transportation infrastructure 
that we all seek. So I urge your support for passage of this 
legislation.
    I want to thank you for the opportunity to appear on behalf 
of the Nation's governors, and I look forward to continuing to 
work with the Committee to address any issues that may remain.
    Chairman Lieberman. Thanks very much, Governor Douglas.
    We will start with a 7-minute round of questions for the 
Senators.
    While we are on that subject of Enhanced Driver's License, 
for those who do not live in States that have them, how do you 
use them? Just give us a quick report on how you get across the 
border and back?
    Governor Douglas. As you pull up to the border, roll down 
the window, and there is a screen that is very close to the 
driver's side of the vehicle, similar to ordering something at 
a fast food restaurant.
    Chairman Lieberman. Yes.
    Governor Douglas. And you hold the card right up to the 
screen, and then the information goes to the border agent in 
the border station so that he or she has that readily available 
without having to take it off the document manually which is 
what happens now.
    There have been some concerns about the security of these 
documents, and we provide little security envelopes that make 
sure that they cannot be read if people are concerned about it. 
But it is that easy.
    Chairman Lieberman. And it is quick?
    Governor Douglas. Absolutely.
    Chairman Lieberman. Thanks.
    I mentioned in my opening statement that I was grateful for 
the work that has been done by the two of you and a lot of 
others including Senators Akaka, Voinovich, and their co-
sponsors here, but that I had some continuing concerns, and I 
want to ask you a question or two about those.
    I worry that the identity verification procedures may have 
been weakened--I know I have heard that from some critics of 
the PASS ID--and that we will wind up where none of us want to 
be, which is back where we were before September 11, 2001, when 
State authorities could accept an identity document without 
checking the validity. In other words, the license itself would 
be valid, but the identity documents on which it was based were 
not. And, as we know, a number of the September 11, 2001, 
terrorists used falsified source documents to get valid State 
IDs that allowed them to travel in and out of the United 
States.
    So the question is if PASS ID becomes law, will the next 
group of terrorists planning an attack on the United States be 
able to evade our laws in that same way, Secretary?
    Secretary Napolitano. Mr. Chairman, let me respond at 
several levels. One is because the States by and large are not 
implementing REAL ID you cannot assume that it sets a higher 
security standard for breeder documents than PASS ID because 
REAL ID, in a way, is dead on arrival. I mean it is just not 
being done, as Governor Douglas said, by so many States.
    I do want to clarify a statement I made earlier in our 
colloquy, which is to say it is absolutely true that no State 
by December 31 will have a REAL ID-compliant document.
    Chairman Lieberman. Right.
    Secretary Napolitano. The only exception will be if a State 
comes to me and certifies that they are ready or willing to 
comply with REAL ID and are making material progress to comply.
    Chairman Lieberman. Such as Vermont?
    Secretary Napolitano. Perhaps.
    Chairman Lieberman. Maybe. You retain discretion. 
[Laughter.]
    Secretary Napolitano. Nonetheless, they still would not 
have a REAL ID-compliant document. They would just be able to 
get an extension.
    Chairman Lieberman. Yes.
    Secretary Napolitano. You have 12 States covering 40 
million people plus now Missouri, which is another 6 million, 
that are actually barred from even seeking such an extension. 
So it gives you a sense of the problem.
    Chairman Lieberman. Right.
    Secretary Napolitano. Going back to your question, States 
are still required to validate the breeder document. There are 
a variety of ways that States can do that, and we can give you 
greater detail on that, but they still must validate the 
underlying documents.
    Chairman Lieberman. Under PASS ID, if PASS ID should pass.
    Secretary Napolitano. Under PASS ID, yes, Mr. Chairman.
    Second, they are required to electronically verify the 
Social Security number and lawful status with the Federal 
databases we have for those.
    Chairman Lieberman. Excuse me for interrupting. That would 
be with the Social Security Administration and with 
Immigration?
    Secretary Napolitano. Immigration, correct. So that is 
added. The difference is that we do not charge the States a fee 
for requiring that they do that verification.
    The third thing is, and this is a difference from the pre-
September 11, 2001, world, your drivers' license can only be 
issued for a time period that is consistent with your 
immigration status.
    In other words, let's say you have a visa that will permit 
you to be in the United States for 4 years. A normal drivers' 
license period is 7 years. Your drivers' license can only be 
issued for the period that your lawful status is established. 
That difference would have picked up some of the September 11, 
2001, hijackers.
    Chairman Lieberman. OK. That is helpful.
    Let me ask you the second part of this, and then I will ask 
Governor Douglas to get into this. There is also concern about 
eliminating the provision in REAL ID that mandates information-
sharing among States and transfers it through the PASS ID 
legislation to a voluntary pilot program.
    As you know, the September 11, 2001, hijackers held 
multiple drivers' licenses and IDs from multiple States. Of 
course, it is not just terrorists but drug runners, 
counterfeiters, other criminals, even bad drivers with multiple 
offenses, like DUIs, can exploit this lack of information-
sharing between States. In other words, they have a license in 
one or more States--that may be a problem--and they exploit the 
failure to share information between the States to help them 
hide from law enforcement.
    So tell us about why this change was made and why not 
compel information-sharing among the States just to avoid this 
loophole?
    Governor, do you want to start?
    Governor Douglas. Well, I think, as some of you said in 
your opening statements, there is a great deal of concern about 
the protection of personal privacy as we consider these issues 
and a lot of concern in the REAL ID legislation about this 
national sharing database among all of the States. And so, with 
so many States declining to comply and with concerns about the 
flow of information around the country, the proposal under PASS 
ID to have a pilot program, I think, makes some sense.
    Chairman Lieberman. Is the privacy concern just expressed 
explicitly that the more people who have access to more data, 
the more possibility there is of violations of privacy rights?
    Governor Douglas. I think that is exactly right.
    There are a lot of concerns that come up in various 
contexts, as you certainly know, with respect to privacy. I did 
not believe, for example, that there was really a need for a 
privacy sleeve on our Enhanced Driver's License, but to satisfy 
the concerns of those who wonder if somehow information can be 
electronically captured, we make them available. And I think 
there are some concerns that may not be well founded but are 
there. So what we are trying to find is that right middle 
ground between access to information that is necessary and 
respecting the rights of privacy of the American people.
    Chairman Lieberman. This is a classic example in this post-
September 11, 2001, world of our responsibility to weigh those 
privacy concerns against what I would assume was the advantage 
to our national security from mandating information-sharing 
among the States about whether the individual coming in for a 
drivers' license has had a license in another State that has 
been compromised.
    I presume there is also a cost concern here or is there 
not, Secretary?
    Secretary Napolitano. Mr. Chairman, yes, there is a 
significant cost concern. This is where the concept that there 
would actually be some big centralized hub that would have to 
be created that somehow the States would have to pay arose, and 
the issues with privacy and the ease of infiltration of a hub 
if there is one place where all the information is gathered.
    The technical feasibility of some of these systems also 
needs to be explored. From what you watch on television, you 
would assume that all these things can happen with a snap of a 
finger, but in fact technically some of these things are very 
difficult.
    That is why under PASS ID, we continue with what I call the 
Mississippi Pilot Project, which has several States 
participating, because as we move forward there may indeed be 
cost-effective solutions to some of those issues that have been 
raised by the States. But, as we stand right now, we really do 
not have the capacity to say that we are going to have in one 
place easy electronic verification of every type of license and 
document.
    Chairman Lieberman. I thank you. My time is up.
    I would like to work with you and my colleagues on the 
Committee to see if there is some way we can strengthen this 
section of the PASS ID without going over the tipping point 
where we continue to encourage the States not to comply because 
we obviously need them to comply.
    Senator Collins.
    Senator Collins. Thank you, Mr. Chairman. Governor, all of 
us are concerned about the looming deadline under the current 
law and the ability of States to comply with the law.
    Under the previous Administration and, indeed, in the 
current regulations, there is a material compliance standard 
that the Department of Homeland Security uses to assess whether 
or not a State is complying with REAL ID. I remember very 
distinctly Secretary Chertoff telling me that Vermont was an 
example of a State that is in material compliance with REAL ID, 
and he pointed to your Enhanced Driver's License as an example 
of a compliant drivers' license. He also cited Washington 
State, New York, and Michigan as being in material compliance.
    So, therefore, I am very surprised to hear Secretary 
Napolitano assert this morning that no State is in compliance 
with REAL ID. So I first want to ask you, Governor, do you 
consider Vermont to be in material compliance with REAL ID?
    Governor Douglas. I do at this point, but on December 31, 
there are 18 benchmarks that States have to meet, and even a 
State like mine that is doing its best to comply is not going 
to be able to meet all of these 18 benchmarks on that date 
because of the requirement for the national databases that are 
not yet up and running. So, now we are, but we are going to 
find it virtually impossible to meet all these 18 benchmarks by 
the end of the year. So that is why the urgency that the 
Secretary noted is critical.
    Senator Collins. Which is an excellent point, and it is the 
reason that we have gathered here today, but I do not want to 
leave the impression that there has been no progress in this 
area, that States are completely unable to make improvements in 
their security when virtually every State has taken steps, 
including my State of Maine, to make sure that we are giving 
licenses only to people who are lawfully in this country.
    My State was one that did not have that requirement. We 
had, for example, some people who were here illegally, coming 
to Maine, renting a post office box and being able to get a 
drivers' license, and that obviously is fraught with problems.
    Secretary Napolitano, I want to ask you about a provision 
in PASS ID that you and I have discussed that I find troubling, 
and that is the provision that says that an individual cannot 
be prohibited from boarding an airplane solely because of the 
lack of a compliant drivers' license. A strong incentive for 
States to comply with the law has been the fact that they want 
to avoid problems for their residents in boarding airplanes, 
yet this bill would appear to undermine that incentive by 
including specific language that prohibits Federal security 
officials at airports from denying a passenger access to a 
plane solely on that basis.
    Now I want to make clear that the Transportation Security 
Administration (TSA) has always had the discretion to exercise 
judgment if an individual shows up at the airport without 
sufficient identification. They do that every day now. But that 
is very different from putting specific language in the law 
that tells States that they are not going to be inconveniencing 
their residents as much, at least if they do not have a 
compliant ID, and I find that troubling.
    Do you support that provision?
    Secretary Napolitano. Senator, I think what would happen 
under that provision is basically the same as what would happen 
without that provision. In other words, TSA's operating 
procedure would be that if someone appeared without a REAL ID-
compliant document they would be subjected to additional 
screening, so that it would not be an automatic you cannot 
board. It is just the same as you described it, but they would 
have to be looked at or other things would have to be evaluated 
by the TSA employee to ascertain whether they should be allowed 
to board.
    Senator Collins. Do you think that language should be in 
the bill?
    Secretary Napolitano. We would be happy to work with you on 
that language.
    Senator Collins. Are you concerned that the provision could 
become the basis of lawsuits challenging the decisions of 
security officials under that standard?
    Here is the issue. Let's say the individual does not have 
the compliant ID. There is a law that says that this cannot be 
the basis for keeping the individual off the airplane. 
Secondary screening is done. It finds nothing, but the security 
official still believes that individual should not board the 
plane.
    I think you are creating a situation where that security 
official is going to feel he or she has no choice but to let 
the individual board the plane because you have now put that 
specific language in the bill, in the law.
    Secretary Napolitano. Senator, yes, I think there may be a 
point there that we can explore with you between now and markup 
of the bill, but I want to go back to the fact that with the 
language or without the language, the guidance from TSA is 
going to be if you appear without a REAL ID-compliant document 
some additional exploration is going to be needed to be done 
before you are allowed to board a plane.
    Senator Collins. Mr. Chairman, I hope this is an issue at 
which we will look further. I support many of the provisions of 
PASS ID, and I commend all of those, including my own staff, 
who have worked so hard to come up with a system that is less 
expensive, less burdensome to the States, and more protective 
of privacy concerns. But I do want to make sure that we are not 
creating unintended consequences that get us back to the 
terrible situation that we had prior to September 11, 2001.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Collins. I share 
your concerns, and we will make sure they are reflected in our 
markup.
    Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Secretary Napolitano, as you well know through your 
previous role as the Governor of Arizona, in 2007, DHS issued 
all States an extension for complying to the REAL ID Act. As 
you testified, DHS also announced that it would grant States 
another extension but only if they proved they meet 18 REAL ID 
benchmarks by December 31, 2009, and this was raised by the 
Governor.
    Many States, home to millions of people, may not meet this 
deadline. What will DHS do if Congress does not act this year? 
Would you expect to begin enforcing your travel and facilities 
restrictions next year or to issue another extension for 
compliance?
    Secretary Napolitano. Senator Akaka, you have just 
described the paradigm of being between a rock in a hard place 
because we will be faced with either not enforcing a law that 
Congress has passed so that millions of Americans are not 
prevented from traveling, entering courthouses, or the like, or 
at least highly inconvenienced before they can do that, versus 
enforcing it and causing all of those effects.
    In my view, that is why we need PASS ID but more than that. 
If all I do is basically enact another universal extension, we 
are not getting to where we need to be because the whole goal 
here is to begin reaching the goal of the 9/11 Commission, 
which is to have a secure form of ID. So, if the law on the 
books is one that for all the reasons described earlier just 
has to be continually extended, we are not actually getting to 
a system that reaches the security goal that we are striving 
for.
    So, with a better law, we will be better able to enforce 
and get to the standard that we want to reach.
    Senator Akaka. Thank you. I know it is difficult, but thank 
you for your response.
    Governor Douglas, as you know, one of the biggest problems 
for States implementing the REAL ID Act has been inadequate 
funding. States simply cannot afford to foot the bill for a $4 
billion unfunded mandate in this economic climate. DHS has 
issued grants to States to offset some of these costs and has 
allowed States to use part of their State Homeland Security 
Grant Program funds which are required for other pressing 
security needs.
    Mr. Baker's written testimony for the next panel states 
that the Federal Government should insist that States give 
highest priority to drivers' license security rather than 
State-level homeland security priorities.
    Would you like to address from your experience, as a 
governor, the financial burdens REAL ID, in its current form, 
imposes on States and whether States are properly prioritizing 
their Homeland Security Grant funds?
    Governor Douglas. Well, I feel good about the 
prioritization in Vermont. You may want to ask other States to 
respond to that.
    There obviously is a great deal of accountability when we 
receive those Homeland Security resources. We believe we have 
deployed them responsibly. We are audited by the Federal 
Government. So I think we have done a good job.
    You have identified one of the key concerns, Senator, that 
all States have, especially in this challenging fiscal climate. 
We are facing tremendous pressure to balance our budgets to 
meet the legitimate needs of the people we serve, and I am sure 
you have heard stories from around the country about dramatic 
service curtailments that States are now facing because of this 
fiscal and economic crisis. So to impose an additional 
responsibility through REAL ID obviously means that something 
has to give in terms of State finances.
    For most of the last century, when drivers' licenses were 
first issued, it has been exclusively a State responsibility, a 
State discretion. States have decided how to do it. But now the 
Federal Government has imposed some requirements. And I do not 
object to them, but I think it is fair that it not be an 
unfunded mandate.
    So I really do appreciate the resources that have been 
proposed, the more cost-effective approach that your bill 
recommends. We believe about half as costly as what it is in 
the REAL ID law, and I think especially in this climate that is 
a critically important feature.
    Senator Akaka. Thank you very much for your response.
    Secretary Napolitano, the PASS ID Act requires that DHS 
issue regulations to implement it within 9 months after the 
bill is enacted. Some have expressed concern that DHS could not 
meet the deadline, although substantial portions of the REAL ID 
regulations could be used to craft PASS ID regulations.
    Do you believe that DHS will be able to meet this deadline?
    Secretary Napolitano. Senator, yes. It will be tight, and 
it will be tough, but we believe that we can. As you yourself 
noted, we are not starting from scratch here because really 
PASS ID is a REAL ID fix, so that we have good building blocks 
from which to work. So, yes, we believe 9 months can be met.
    And, indeed, even if there were to be some slippage, we 
still could get regulations out prior to the effective date of 
what REAL ID would have provided because the PASS ID time line 
would actually end with full implementation 1 year before REAL 
ID would have.
    Senator Akaka. Thank you very much for your response.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Akaka, very much.
    Senator Voinovich, welcome back.
    Senator Voinovich. I apologize if any of these questions 
have been asked already, but, Governor Douglas, it has been 
said that PASS ID allows States to rubberstamp applicant source 
documents like birth certificates and Social Security numbers. 
I want to point out that PASS ID does in fact require 
confirmation of Social Security numbers using the Social 
Security Online Verification database.
    But can you speak to any concerns you have with the other 
REAL ID verification requirements such as the requirement that 
birth certificates be verified using the Electronic 
Verification Events database?
    Governor Douglas. Well, as you noted, Senator, some of the 
requirements in PASS ID are the same as they are in REAL ID in 
terms of verification of those source documents. So that should 
give all of us a sense of belief that those verifications will 
be as strong as they were under the current law.
    The problem is these national databases, such as vital 
records or the passport verification database or the drivers' 
license information-sharing one that was referred to earlier, 
are not available. They are not up and running, and so I think 
to have a requirement as we do in the REAL ID law that is not 
there does not give anyone a sense of security.
    So I think PASS ID is equally strong in these areas of 
document verification, and the pilot project that the Secretary 
mentioned in terms of drivers' license verification will give 
us a sense of whether that can be done on a more universal 
basis.
    Senator Voinovich. Madam Secretary, can you speak to the 
status of efforts to develop the systems, the databases that we 
need to verify passports and birth certificates?
    Secretary Napolitano. I can, although those questions are 
more appropriately I think probably for Departments of State 
and Health and Human Services (HHS) which has, of course, the 
birth certificate registry.
    But it is known as the Electronic Verification of Vital 
Events (EVVE). I believe that something like 13 States now are 
participating in EVVE, which is the birth certificate database, 
but the remainder are not. I do not know the schedule for or 
the ability of the full implementation of birth certificate 
validation at HHS beyond what EVVE provides.
    Senator Voinovich. I would hope that maybe somebody in your 
shop would kind of keep track of where they are in regard to 
that because that certainly helps to achieve the goal that we 
have, and that is the best drivers' license that we can 
possibly have from a security point of view.
    And, Governor, as these databases come onboard, I am sure 
that you and other governors are going to take advantage of 
them.
    Governor Douglas. I am sure we will, Senator. I was talking 
with the folks in our vital records office yesterday before 
coming here, and it is quite a process to get all of those data 
entered in a form that can be accessed in a consistent way. 
Some of our vital records prior to 1950 are in different media 
from those between 1950 and 1980 and then there have been 
different systems since then. So we are working at it.
    I indicated earlier that we are doing everything we can to 
comply with REAL ID, and it is so onerous, frankly, that we are 
not going to meet the benchmarks that have been established. So 
we will certainly take advantage of what is available when it 
is.
    Senator Voinovich. Thank you.
    Chairman Lieberman. Thanks very much, Senator Voinovich--a 
good exchange.
    Senator Burris, welcome.

              OPENING STATEMENT OF SENATOR BURRIS

    Senator Burris. Thank you, Mr. Chairman.
    I am just trying to figure out where to start on this issue 
for our distinguished panel.
    I am holding up here an Illinois drivers' license and an 
Illinois ID card. Illinois issues an ID card if you go in and 
request it in addition to your drivers' license, which I use to 
go through the airport securities.
    I am just wondering if a person does not drive. What we did 
was issue this card for ID purposes, and even PASS ID and even 
REAL ID I understand that we are seeking to do it based on a 
drivers' license. Is that correct?
    Secretary Napolitano. Senator, under both bills, when they 
use the word, drivers' licenses, they also include within that 
any identification issued by a motor vehicle division in lieu 
of a drivers' license for nondrivers.
    Senator Burris. OK, because what I am hearing is if a 
person does not drive or if a person is 14 or 15 years old they 
will not have a drivers' license, but they should have some ID 
to get on the vehicle. So the PASS ID would also encompass some 
identification from the State.
    Rather than a State ID, why cannot we have a national ID 
where this burden would not be placed on the States? The States 
do not have the burden of trying to process this cost.
    Have you ever been to O'Hare Airport? I just left Midway 
Airport.
    And I am hearing, Madam Secretary, that you say that if 
they do not have the REAL ID after December, O'Hare Airport 
will probably shut down. If you do what you are talking about 
doing, where there is extra screening, you will probably have 
to be at the airport not 2 hours earlier but 3 or 4 hours 
earlier. And so, I just see the biggest mess coming in a city 
like Chicago that would just hamper even air travel.
    So I am just wondering, is there something that we are 
talking about where the verification can be done where there 
would be a national ID rather than a State ID?
    Secretary Napolitano. Well, Senator, I do not know about 
the possibility of a national ID. There is obviously a lot of 
pros and cons on that approach.
    Senator Burris. I am sure there would be.
    Secretary Napolitano. We are not taking that kind of a bite 
nor are we seeking that right now. What we are seeking is a fix 
to REAL ID so that come December 31, 2009, I, as the Secretary 
of the Department of Homeland Security, do not have to make the 
choice between enforcing the law that Congress has passed and 
creating what could be, at the minimum, a lot of confusion at 
our Nation's airports.
    Senator Burris. Madam Secretary, we are hoping that we can 
have PASS ID.
    And I do not know, Mr. Chairman, whether or not we can get 
PASS ID which is a lot better than REAL ID, but we might even 
want to take it to another step further because I look at what 
TSA is doing now and to put that burden on a TSA worker, what 
they go through now at the airport. It is unconscionable, 
listening to all of the screening in process, which is pretty 
acceptable to the traveling public.
    But I still see, for example, I left home the other day and 
did not have my ID with me. Even as a U.S. Senator, there was a 
process that I had to go through to get on an airplane, and 
everybody knew me in Chicago. I am no stranger.
    And I just wonder what would have happened to old John Doe 
out there who showed up to the airport, had to get to work, had 
to get to this meeting, with no ID. I am sure there is a 
process, and they took me through a process.
    I had to verify addresses. I had to show two or three 
places where I lived, and they knew me. So the TSA staff is 
doing their job, Madam Secretary. I want you to know that. And 
they put me through every rigor, and I did not complain either 
because I do not want anybody else getting on that plane that 
has not been properly identified. OK? So that is not the 
argument here.
    But I am just wondering, what burden are we going to put on 
that poor TSA screener, that is looking for a raise by the way, 
and may have to make that judgment, even with the REAL ID or 
the PASS ID? Are we taking those into consideration?
    Secretary Napolitano. Senator, I would say yes, and I would 
say with PASS ID which will indicate that a license or 
identification card is compliant that we start now to make more 
straightforward and simplify for the public the identification 
necessary while helping us meet our security goals.
    I always retreat to the 9/11 Commission Report. I think my 
job as the Secretary of Homeland Security is to take those 
recommendations and to move us toward implementation which will 
give us greater safety and security in our country.
    And, as we move forward, we reach some of these pragmatic, 
practical problems. It is not a surprise that the first stab at 
identification like this REAL ID needs to be fixed and the 
pragmatic problems addressed. But for a worker at an airport, 
say a TSA worker, making more straightforward what kind of ID 
is acceptable, the indicators for that kind of ID and the like 
should help us overall reach our 9/11 Commission goals.
    Senator Burris. Well, Madam Secretary, I know that I just 
had a couple grandchildren born, and they got issued Social 
Security numbers. So Roland II and Ian are in the database here 
in the Federal Government somewhere. I am just wondering, have 
we looked at and should we not look at a national database that 
would give the identification of the Americans and the 
individuals in this country?
    Has anyone done any studies in reference to that or it was 
just actually in the REAL ID legislation to put it on the 
States? I am sorry I was not here at the time, and probably you 
were not here either, I would assume.
    Secretary Napolitano. I was a governor.
    Senator Burris. And I think I was enjoying life. 
[Laughter.]
    But I just wondered, do you have any knowledge as to how 
that or you do not know?
    Secretary Napolitano. I do not.
    Senator Burris. Governor, did your State look at that at 
all in terms of the past actions?
    Governor Douglas. We have not considered a national 
approach other than the approach that we are discussing this 
morning which is PASS ID.
    I think the urgency of getting something done before the 
end of this calendar year is such that we ought to all work 
together, find some consensus as this process has done without 
getting into an area that might be more difficult.
    Senator Burris. I am thinking about the long run, Governor, 
down the line because I just see this PASS ID even itself is 
not going to be as secure as we think it is because the 
documentation in the databases are the same databases you use 
for REAL ID. The question is just how secure is that going to 
be?
    I think we ought to look at, if we get this in place, 
certainly so we can get a little bit more security with our 
travel or the identification, but I hope and pray that we will 
look at even taking it to a higher level without the invasion 
of privacy. We still have the privacy issue here that we must 
deal with.
    And the transfer--I mean I do not see how you are going to 
deal with Illinois, Ohio, and Michigan. When I go to Ohio and I 
am traveling out of Ohio, it is a different issue in how they 
issue there.
    I am looking at the start on this. Is this what they are 
planning, this process here where they have the REAL ID 
process? Is this what would be the new PASS ID document?
    Secretary Napolitano. It would be something like that to 
indicate that something is compliant--very simple, very easy 
for somebody to observe and note, like a TSA worker.
    Senator Burris. Which would mean that, too, could be 
counterfeited as well as any of the other documents. So I do 
not know whether that is going to be really the solution with 
this type of a special identification because after you get the 
documentation the person can produce false documents or be in 
the database with false documents and still get a star on his 
drivers' license.
    Secretary Napolitano. Senator, I think we would be more 
than happy to brief you and your staff on other protections 
that are built in the documents to inhibit forgery, false ID, 
and the other things that are built now into drivers' licenses 
that make them more difficult to manufacture in a fraudulent 
way.
    Senator Burris. I appreciate that.
    Secretary Napolitano. It is never 100 percent, but it is 
much more difficult than years past.
    Senator Burris. Thanks so much.
    I am sorry about my time, Mr. Chairman. Thank you.
    Chairman Lieberman. No. Thank you, Senator Burris. We are 
glad you are not enjoying life as much as you used to because 
you contribute to the work of our Committee. I thank you.
    I think we better move on to the second panel. I thank you, 
Madam Secretary and Governor Douglas. It has been a very 
helpful exchange.
    We understand the urgency of this matter, and the next 
markup of this Committee is actually 2 weeks from today. So I 
want to challenge each of us to work together urgently because 
my goal, and I know Senator Collins' would be, is to get this 
PASS ID before that markup on July 29.
    Thank you both very much.
    We will now call the second panel: Stewart Baker, Sheriff 
Leroy Baca, David Quam, and Ari Schwartz.
    Thank you, gentlemen, for your patience. We appreciate very 
much that you are here. Some come a long way, as Sheriff Baca 
has. We welcome you back again. It is great to see you.
    We will begin with Stewart Baker, former Assistant 
Secretary for Policy at the Department of Homeland Security. 
Secretary Baker has occupied a role, which is new because this 
is a new department. But in the Armed Services Committee, we 
are quite regularly hearing from former executives of the 
Department of Defense who really have the experience and 
continue the interest and, based on that experience, really 
have a lot to offer.
    So I think you are doing this as well or better than any of 
this first generation of executives, now former executives, of 
the Department of Homeland Security. Whether one agrees with 
you or disagrees with you on a particular matter, I really 
thank you for your continuing interest in our homeland 
security, and I welcome your testimony.

    STATEMENT OF HON. STEWART A. BAKER,\1\ FORMER ASSISTANT 
                 SECRETARY OF HOMELAND SECURITY

    Mr. Baker. Thank you, Senator. I feel very strongly about 
making DHS a success and anything I can do in my current 
capacity to contribute to that I am delighted to do.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Baker with attachments appears in 
the Appendix on page 98.
---------------------------------------------------------------------------
    Mr. Chairman, Ranking Member Collins, and Members of the 
Committee, it is a pleasure to be here.
    I have raised four concerns in my prepared testimony. I am 
going to talk principally about one of them today, and that is 
the source document problem.
    I think it is easiest to understand that if you have heard 
the story, as I heard from his relatives, of Kevin Wehner. 
Kevin Wehner was a carpenter. He had three kids. He took a 
vacation in the Virgin Islands around 2002 or so, and in the 
course of that his wallet was stolen. About 2 years later, he 
started hearing that he was wanted for speeding tickets, for 
other abuses of a license in Florida.
    It turned out that someone had walked into the Florida 
Department of Motor Vehicles, presented his Social Security 
card and a birth certificate, almost certainly just made up, 
from the Virgin Islands in his name. On the strength of that, 
Florida gave this imposter a drivers' license in Kevin Wehner's 
name.
    Kevin Wehner tried to cure that problem long distance from 
New York, was unable to do that, finally moved to Florida, and 
in the course of living in Florida asked for a drivers' 
license. And the State said, ``no, you cannot have a drivers' 
license. You already have one.'' He said, ``no, that is not 
me.''
    They asked for more paperwork. He provided the paperwork.
    A year later, Kevin Wehner was still wanted by the police 
for numerous speeding tickets and unregistered vehicle 
violations. He was at risk every time he drove his car of being 
pulled over and sent to jail because of the bad birth 
certificate that had been accepted by the Florida Department of 
Motor Vehicles.
    That is quite aggravating and dangerous, but it was only 
the beginning of the nightmare for him. Because on September 
13, 2007, the guy that the police knew as Kevin Wehner was 
stopped, pulled over. He got out and pulled out a semiautomatic 
weapon that he had bought in Kevin Wehner's name, and he shot 
down four police officers, killed one of them, and fled.
    The police immediately put out an all points bulletin for 
him, for Kevin Wehner. They went to the Florida Department of 
Motor Vehicles and said, do you have a photograph for this guy?
    And they said, yes, actually, we just got a photograph from 
a guy who said he was Kevin Wehner.
    They took the real Kevin Wehner's photo, spread it all over 
the States, put it in an all points bulletin to the police. So, 
now, if he is stopped while driving, he does not risk just 
going to jail.
    You can imagine what the reaction of the police force of 
Jacksonville would be if they pulled over somebody that they 
believe was a wanted killer of police officers, he is driving 
Kevin Wehner's car, he looks like Kevin Wehner, they ask him, 
are you Kevin Wehner, and he says, yes, I have my license right 
here.
    I do not think that his chances of surviving that encounter 
are very high. In fact, when they finally did straighten this 
out, the police went looking for the guy who they really 
wanted, and he was killed in a gun battle with the police that 
evening.
    The risk to Kevin Wehner from that bad birth certificate is 
astonishing. What is difficult to credit is that Florida is 
still accepting birth certificates without doing anything to 
check the validity of those birth certificates. That is 
something that REAL ID would have fixed. It is something that 
PASS ID allows to continue permanently.
    PASS ID deserves some credit. PASS ID has worked hard to 
make sure that the documents are not easily forged, and I think 
we should acknowledge the value of that.
    But, given a choice between having a license that is hard 
to forge and birth certificates and other source documents that 
are hard to forge, we really should be choosing to make the 
birth certificates more checkable than the drivers' licenses 
because drivers' licenses, if you are stopped by the police, 
they are going to check a database to see if that drivers' 
license was really issued to you in that name with that 
identity. And so, a fake drivers' license will not get you past 
a traffic stop, whereas if you bring in a birth certificate 
there is simply no check at all.
    What we should be working toward is having exactly the same 
capability with respect to birth certificates that we have with 
respect to drivers' licenses today. It ought to be possible to 
say to the issuing authority, did you issue this birth 
certificate? That is one of the requirements of REAL ID that is 
lost here that ought to be fixed.
    Just very briefly, the other three items that I talked 
about in my testimony:
    The 9 months to get a regulation out, I do not believe that 
is possible. It would take 10 months even if the Department of 
Homeland Security could do its job instantaneously, which it 
cannot. I appreciate the confidence that the Secretary has, but 
I do not believe that she can do it. And, at a minimum, this 
Committee should try to make sure that there is a form of 
insurance that if that deadline is missed the provisions of 
REAL ID that are really equivalent to PASS ID remain in effect. 
There ought to be a way to fix that problem.
    The other two issues, very quickly: I agree entirely with 
Senator Collins. We are creating a litigation magnet by 
creating a statutory right to fly without ID. There is no need 
to do that, given the current policy.
    And making the expenditure of State Homeland Security Grant 
Program funds for drivers' licenses something that is a 
priority is something that is particularly valuable. State 
Homeland Security funds come from all taxpayers. They should be 
used for things that benefit all taxpayers and make all 
taxpayers more secure. Drivers' license security does that. 
That should be the highest priority for the use of State 
Homeland Security grants, and I urge that you enact a priority 
for that use of the funds.
    Thank you.
    Chairman Lieberman. Thanks, Mr. Baker. That was a 
compelling story about the birth certificate.
    Am I correct, just briefly, that what you are saying is 
that we ought to be investing money, perhaps Federal money, in 
setting up this national database system? In other words, the 
so-called EVVE system is just beginning to come together, and 
the States are obviously not willing to contribute.
    Mr. Baker. I agree that we should spend our money on that. 
I do not think it is a central database. Each State is going to 
put together its own database on its own residents.
    Chairman Lieberman. Yes.
    Mr. Baker. But it ought to be possible for a State to 
inquire whether that birth certificate was really issued. That 
is all that is really necessary, not a centralized database. 
The cost of that, just setting up the connectivity is a few 
million dollars, and then it is probably a couple of million 
dollars per State to clean up the databases, roughly. So our 
guess is that this could be done for a total of $75 million 
spread over 2 or 3 years.
    Chairman Lieberman. That is very practical and helpful. 
Thank you. As you know, I am concerned about that omission in 
the PASS ID legislation.
    Sheriff Baca, thanks for being here. Leroy Baca is the 
Sheriff of Los Angeles County, testifying today on behalf of 
the National Sheriffs Association which has endorsed PASS ID, 
also a member of the Major Cities Chiefs Association. Sheriff 
Baca leads the largest sheriff's department in the Nation which 
has over 18,000 officers and staff.
    It is an honor for you to be here. I thank you for going to 
the trouble of coming across the country, and we welcome your 
testimony now.

   STATEMENT OF HON. LEROY D. BACA,\1\ SHERIFF, LOS ANGELES 
                       COUNTY, CALIFORNIA

    Mr. Baca. Thank you. Good morning, Chairman Lieberman, 
Ranking Member Collins, Senator Akaka, Senator Voinovich, and 
Senator Burris. I am pleased to have this opportunity to appear 
to express the associations that were identified by Lieberman 
that I represent in support of S. 1261.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Baca appears in the Appendix on 
page 113.
---------------------------------------------------------------------------
    As the witnesses before me have addressed the problems and 
challenges associated with the implementation of REAL ID, my 
testimony will focus on the critical need for a national 
standard for identification security from a local law 
enforcement perspective, so that we can effectively integrate 
what we are doing here to ensure that the homeland security is, 
in fact, secure.
    Hopefully, my testimony will strengthen the core message of 
Secretary Napolitano and Governor Douglas. Together, we 
recognize that the proposal to issue a national standard for 
identification security has been a contentious one. However, we 
believe that PASS ID adequately addresses the cost, policy, and 
privacy concerns so as to protect the citizens that we serve. 
Nothing will ever be perfect, however.
    From a law enforcement perspective, it gives us that much 
more confidence that the identification we are looking at is 
authentic. That really is the core reality of the 9/11 
Commission request and recommendation, that if someone is 
saying this is who I am and they provide an identification card 
or drivers' license, that in fact that is who they are. That is 
the ultimate goal.
    It provides one more tool to ensure public safety. It is 
designed to make it much more difficult for terrorists, 
criminals, and illegal aliens to tamper with official 
identification.
    And so, I would like to just close with two or three points 
here, and that is, as you have stated well, the 9/11 Commission 
was concerned that varying State standards created security 
gaps that were exploited by the September 11, 2001, terrorists 
in obtaining State identification documents. As such, the 9/11 
Commission recommended a national standard, not national ID 
cards, and PASS ID provides a cost-effective, common-sense 
solution that balances critical security requirements with 
input and practical needs of individual States.
    My second point is that PASS ID provides flexibility to the 
States for implementing the security requirements. It also 
provides flexibility for validating source identification 
documents and eliminates fees associated with the use of 
Federal databases.
    The next point is that PASS ID requires the States to 
develop procedures to prevent the unauthorized access or 
sharing personally identifiable information. It mandates public 
notice of privacy policies and the establishment of a redress 
process for individuals who believe their personal information 
should be amended. It restricts the use of personal information 
contained in the drivers' license or an ID bar code to purposes 
in support of Federal, State, or local laws and prohibits 
States from including Social Security numbers in the bar code.
    Finally, PASS ID removes the blanket requirement to 
electronically verify applicant documents and protects against 
the creation of a national identity database containing all 
drivers' license and ID information. I think that really is a 
key point.
    Finally, only citizens and non-U.S. citizens who are 
lawfully present in the United States are eligible to receive a 
PASS ID.
    And so, what we are talking about here is simply, in 
conclusion, that millions of contacts a day are made with 
people in the United States who are here legitimately, lawfully 
in every way possible are here to do the right thing as our 
citizens. An ID system such as a drivers' license or an 
identification card will come into the hands millions of times 
a day for a variety of reasons. The authenticity of these 
documents is what PASS ID will ensure.
    Thank you very much.
    Chairman Lieberman. Thank you, Sheriff, very much--very 
helpful testimony.
    David Quam is next, Director of Federal Relations at the 
National Governors Association. We thank you for working 
closely with our staff and with the staff of the Department of 
Homeland Security to put together the PASS ID, and we welcome 
your testimony now.

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

    Mr. Quam. Thank you, Chairman Lieberman, Senator Collins, 
Senator Akaka, and Senator Voinovich. Happy birthday to you, 
sir.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Quam with attachments appears in 
the Appendix on page 118.
---------------------------------------------------------------------------
    Since my boss, Governor Douglas, or soon to be boss as 
Chair of NGA, has already spoken, and my former boss, Secretary 
Napolitano, also spoke so eloquently on this issue, I will be 
brief. I will reiterate some of the instructions that were 
given to NGA by governors.
    Governor Douglas talked about governors coming together and 
talking through this issue. It is remarkable when governors 
come together without staff, person to person, because they are 
able to talk just as governors. They discuss how to make a 
State run and their unique position in having to actually make 
everything work.
    REAL ID was a source of great frustration for governors and 
remains one. We now have 13 States who have said they are not 
going to participate. Governors are very concerned about making 
investments into their drivers' licenses to increase security 
and integrity, while also making investments that make sense. 
What were the rules going to be? Can we create certainty? And, 
what does the future look like?
    REAL ID, unfortunately, with some of the baggage it 
created, has never created certainty. PASS ID is designed to 
try to create certainty and allow States to move forward.
    When the governors got together, they said, let's try to 
find a fix and let's be guided by four things:
    First and foremost, fulfill the 9/11 Commission 
recommendation. That is the starting point and is the 
commonality for everybody involved in this issue.
    Second, facilitate and encourage participation by all 
jurisdictions. Allow the 13 States who have said no a way to 
come back in and participate because security standards only 
work if people are willing and able to use them. When you have 
one-fourth of the States not participating, it is hard to put 
verification systems together when, for instance, the entire 
Northwest is not participating. How are you going to verify 
that person's information if they are from Seattle and you are 
sitting in Atlanta trying to assess whether that person should 
get a drivers' license?
    Third, enhance the security integrity of all licenses and 
ID cards while retaining State flexibility to innovate. I think 
you said REAL ID was too prescriptive. That was a big fear. 
States actually want to do more. They are happy to have the 
Federal Government set a floor of standards because they want 
to innovate beyond it. I think the experience States have had 
with the Enhanced Driver's License show the commitment of 
States and governors to actually take security standards and 
move beyond what is required because they share your interest 
in security and integrity.
    The last guideline address critical privacy concerns and 
reduce unnecessary costs. Let me focus on privacy just for a 
minute because I think it is important to view some of the 
systems that PASS ID does not include in this context. Privacy 
was a key driver in a lot of the States that ultimately have 
said no. Privacy was a concern because there were databases 
being set up that actually threatened personal identity and 
encouraged identity theft by providing databases that could 
ultimately be hacked. That was a concern, a political concern, 
in several States.
    The privacy concern was followed by one of implementation, 
questions about whether this could actually be done. And then 
of course there was cost, that this was an unfunded mandate.
    This was Washington, once again setting the rules and, as 
Senator Lamar Alexander loves to say, sending the bill to the 
States.
    These issues combined to have 13 States and then 11 others 
pass resolutions saying: You know what? This was a bad idea. We 
are not going to comply.
    What PASS ID does and is designed to do is to stop kicking 
the can down the road. Let's solve the problem. Let's create 
certainty. Let's do what we can now.
    Verification is increased under PASS ID because all States 
will conduct verification through SAVE and SSOLV. It should be 
noted that right now I believe 49 States use SSOLV and 30 use 
SAVE. PASS ID would require everybody to come in. That is a 
level of verification that did not exist pre-September 11, 
2001, does not exist now, but would exist after PASS ID.
    The three systems that the Governor talked about that are 
questionable or that would not be required right away--the 
drivers' database, passports and even vital records--are very 
difficult to implement, but PASS ID does not say get rid of 
them. It says pilot them. Let's spend the time and money and 
make the investment to see if we can make these things work.
    And, if we can make them, if we can get them funded and 
they are cost-effective, governors and DMVs will use them. But, 
as one governor said to me, he said, ``David, can you tell me 
today how any of these systems are governed, who owns them, how 
they are paid for, or how you are protecting my citizens' 
identity?''
    The answer for all of his questions was ``no.''
    He said: ``In that case, how can I sign up for this law and 
put my folks on the line? Until those questions are answered, I 
cannot move forward.''
    I think that is a good standard, and PASS ID represents a 
solution to this problem.
    I will add that many of the advocates who have participated 
in this process, to a degree, are not completely satisfied. In 
Washington, that probably means we found the right solution.
    Thank you, sir.
    Chairman Lieberman. Thank you.
    The final witness is Ari Schwartz. We welcome you back to 
the Committee where you have testified to our benefit before.
    Mr. Schwartz is the Vice President and Chief Operating 
Officer of the Center for Democracy and Technology.

    STATEMENT OF ARI SCHWARTZ,\1\ VICE PRESIDENT AND CHIEF 
     OPERATING OFFICER, CENTER FOR DEMOCRACY AND TECHNOLOGY

    Mr. Schwartz. Thank you very much, Mr. Chairman, Senator 
Collins, and Members of the Committee. Thank you for having 
this hearing and for inviting me to testify today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Schwartz appears in the Appendix 
on page 127.
---------------------------------------------------------------------------
    I would particularly like to thank Senators Akaka and 
Voinovich for their leadership on PASS ID and moving this 
forward, and also our colleagues at the National Governors 
Association for trying to bring this back to a nonpartisan 
place where we can have this discussion.
    I was actually on the Intelligence Reform Committee that 
worked on a negotiated rulemaking, and I think that Senator 
Collins has very eloquently laid out what that Committee's 
charge was in trying to come up with rules that protected 
privacy while still meeting the 9/11 Commission's goals of 
flexibility, of standards for issuance and for getting the 
information on the card.
    That is really what the folks on the 9/11 Commission 
wanted, to make sure that we had this ability to improve the 
drivers' licensing system, to be able to use it, to be able to 
rely on it for purposes of national security but then also that 
we had privacy and we had the flexibility built in as we went 
forward. If you go back and read the 9/11 Commission Report, it 
is very clear that civil liberties issues in particular are of 
great concern to the Commission.
    Unfortunately, REAL ID really pushed this discussion to the 
edges. We really had a discussion at the extremes where now we 
have one side that is committed to this kind of rigid 
standardized discussion that represents REAL ID, where privacy 
has been removed from the discussion. Remember, the 
Intelligence Reform Act specifically said that we needed to 
have privacy standards in place. Those were taken out in REAL 
ID, and DHS noted that in their notice of proposed rulemaking 
originally under REAL ID, that they could not put in the same 
kind of privacy standards that they would have been able to 
under the Intelligence Reform Bill, and that seemed to be 
Congress's intent. So we have taken a step back from that.
    On the other side, you have groups and other public policy 
officials that would prefer to do nothing, that feel the 
problems could come from tinkering with the current situation 
might be worse than where we end up down the road.
    We do not think that either of those possibilities are the 
right solution. The truth is probably somewhere in the middle 
and that we need to be moving down in the direction to get at 
that answer. We think PASS ID does that.
    PASS ID addresses the issues with REAL ID by retaining the 
current federated system but protecting information in the 
machine-readable zone while keeping REAL ID's minimum standards 
for obtaining a license and the standardization of information 
on the card.
    Importantly, PASS ID would require States and law to create 
privacy and security safeguards including internal fraud and 
physical security. We have seen time and time again that the 
greatest weakness of the drivers' license system actually is of 
internal fraud and of physical security within the DMVs. From 
California to Washington, DC, even in the past 2 years, we have 
seen cases of workers at DMVs selling real licenses for $1,000 
to $2,000 to individuals that should not be able to get them 
under the current law.
    We have also seen several cases where employees have sold 
the entire DMV database of information to identity thieves who 
are using it for identity theft.
    Before we can rely more heavily on the drivers' license for 
authorized purposes, we should ensure that these problems are 
being addressed by the States has PASS ID would require in law.
    We ask the Committee to ensure that these important privacy 
and security protections are not weakened as we move forward.
    We also urge you to consider other changes in this 
direction: In particular, Congress repeal the mandate for 
standardized machine-readable zone, limit the data elements 
that may be contained in the machine-readable zone and limit 
access to the machine-readable zone to only what is necessary 
for legitimate law enforcement and administrative purposes.
    Congress should reject the use of the vicinity read 
technologies that can be easily cloned and are not secure for 
human identification purposes.
    And, finally, Congress should require States to minimize 
storage of copies of source documents to prevent fraud and 
theft of the source documents.
    We look forward to working with the Committee as you move 
forward, and I look forward to your questions.
    Chairman Lieberman. Thanks very much, Mr. Schwartz. As 
always, you have been helpful.
    I am going to ask just one question, and then unfortunately 
I have to leave to go to a meeting at noon. But I thank the 
witnesses very much. Senator Collins and Senator Akaka will go 
on in my absence.
    Mr. Schwartz, I want to ask you because, as you heard in 
the first panel, I am concerned--and you referred to it--about 
the importance of the States validating source documents, the 
kind of documents that people use when they come in and apply 
for a drivers' license.
    Secretary Napolitano and Governor Douglas basically gave 
two reasons why they were either opposed or skeptical. One was 
that with the privacy concerns, and the other was the cost for 
the States, particularly to input birth certificate 
information. Mr. Baker obviously spoke at some length with that 
anecdote about that.
    I wanted to ask you whether your privacy concerns about 
that kind of system, about the mandating that States cooperate 
and provide data to one another about the source information, 
particularly birth certificates, whether you have great privacy 
concerns, whether they can be taken care of, how you feel about 
it.
    Mr. Schwartz. Yes. Thank you, Mr. Chairman.
    We support the idea of the pilot and moving forward with 
the pilot exactly as Mr. Quam put forward.
    The main reason of the concerns is that the quality of the 
information in these databases is just of a very poor quality. 
I know this from my personal life. Actually, my wife's date of 
birth was wrong on my son's birth certificate, and when I went 
in to go to change it they appended it at the bottom of the 
form. They do not change the field itself. Every State, every 
locality has had differing standards for how they go about 
making these changes and what they do with this information for 
hundreds of years.
    So, if you say we are all going to connect this information 
together, which I agree just connecting the information 
together is fine, I think that the cost of correcting the 
information, of getting it linked so that they are 
standardized--you are talking about standardized forms--it's 
incredibly expensive. And then the ability to put security 
protections on top of that is questionable as well.
    So we know there are a lot of problems with the quality of 
the data. Then you have people going in, correcting it, saying, 
as you would, as identity thieves often do, pretending to be 
these people.
    We know that there have been problems in the past when 
people have gone through and said, oh, I need to correct my 
record. And they go in, and they pretend to be someone else 
when correcting it. How do we deal with that kind of situation 
where we can correct this?
    Now we may be able to do it. I do not think we are going to 
be able to do it in 6 months.
    Chairman Lieberman. Mr. Baker, would you give me a quick 
response to Mr. Schwartz's comments just now?
    Mr. Baker. Sure. He is correct that there will be problems 
at the margin with respect to errors in the database. But for 
90 or 95 percent of the records you will get a quick check, and 
this means that you will eliminate entirely a massive amount of 
fraud today which consists of making up birth certificates that 
did not exist as in the Kevin Wehner case.
    So we ought to solve the big problem first. The secondary 
problems can be addressed by simply picking up the phone when 
you have a problem and saying to the State, can you tell us 
whether this birth certificate is a good birth certificate?
    This is what the Social Security Administration does today, 
and that allows you to take care of notations on the birth 
certificate and other things.
    It does mean that you then have to find a way to make those 
adjustments to the database, but we would be so lucky to have 
that problem. Today, we have Kevin Wehner's problem.
    Chairman Lieberman. Thank you. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Sheriff, we have talked a lot today about the issue of 
terrorists using drivers' licenses, but more secure drivers' 
licenses also have applications for prohibiting or making it 
more difficult for counterfeiting to take place, and you 
address some of that in your written statement. Could you talk 
more about the benefits of more secure, authentic drivers' 
licenses to you as someone who is involved in law enforcement?
    Mr. Baca. Yes. Thank you, Senator.
    The key point of authenticity of identification tools, in 
this case, drivers' licenses or ID cards: Identity theft is a 
tremendously large problem, and right now a lot of people are 
vulnerable within databases out there in the internet world 
that are tapped into by people who have the skills to access 
that information. The key then is that there has to be some 
point where there is a reliable identification source which 
would be the drivers' license under a PASS ID system or the ID 
card.
    The volume of what people are fearful of in America is that 
their ID will be stolen from them as was given in the example 
by Mr. Baker. And so, we in local law enforcement, along with 
our Federal partners, are very wrapped up in a huge amount of 
identity theft with not enough resources to chase down all the 
offenders involved. This is an international problem as well as 
a national problem.
    So part of the reason, I think, in the discussions with the 
major city chiefs along with the National Sheriffs' Association 
members on this issue is to see the value of this not purely 
from a prevention tool for terrorism but for a purpose of 
preventing all forms of crime where people's IDs are so easily 
acquired, even if they lose a drivers' license.
    And everyone has their anecdote here. My drivers' license 
and one of my credit cards were taken, and within an hour they 
were trying to purchase some products from a department store. 
Fortunately, the clerk was alert and said, show me your 
drivers' license. Well, the person had my drivers' license, but 
they were not going to produce it because they did not quite 
look like me.
    But you get the drift that this is a far more reaching 
solution to an ongoing problem before September 11, 2001, and 
September 11, 2001, accentuates the need now.
    Senator Collins. Thank you. I think that is a very 
important point, and it is the point that Mr. Baker made as 
well that we should not overlook in this debate.
    Mr. Schwartz, I appreciate the very constructive approach 
that you have taken to these negotiations. There is a provision 
of the bill that I would like to get your thoughts on, and it 
is the provision that criminalizes the act of scanning 
information contained on the drivers' license machine-readable 
zone and using that information to track the use of the card, 
to store information that is collected or resell it to a third 
party.
    I certainly understand what this provision is trying to get 
at, and I support the desire to curb the unauthorized use of 
this private information.
    Some business organizations, however, have expressed the 
concern that this language is over-board, and they point to an 
earlier version of the bill that would have allowed the use of 
the language to prevent illegal activity or fraud. They have 
given us an example of a business that uses that information to 
identify someone who is repeatedly returning merchandise at 
different locations in order to commit a fraud.
    What is the concern about adding an exception if the 
information is used to prevent fraud, misrepresentation or 
other illegal activity? As I indicated, that was in one of the 
earlier versions.
    Mr. Schwartz. Yes. Well, first of all, thank you, Senator 
Collins. This is an extremely important provision for us and I 
think for privacy advocates and for a lot of citizens that feel 
that when they give their license to someone they want to 
understand what is happening to it behind the scenes.
    The issue there with the fraud exception really is to look 
at how broad that fraud exception is. We have seen a lot of 
fraud exceptions that are created for one purpose and used for 
many purposes down the road, and I think there is a lot of 
concern over that issue.
    In fact, it is my understanding that actually the 
Department of Justice had concerns over this fraud provision as 
well as groups like ours did, which tells you about the concern 
about how this may be used down the road. In fact, we have seen 
cases where bars say that they are swiping information to get 
the age of individuals but then use that same information to 
give to tobacco companies, to market information to tobacco 
companies about students at local colleges who come into the 
bar.
    Senator Collins. That is indeed troubling.
    Mr. Schwartz. Yes.
    Senator Collins. Very troubling.
    Mr. Schwartz. That happened in Oklahoma last year.
    So we know for a fact that it is taken, and people think 
that it is being used for one purpose, but then it gets used 
for many other purposes. How do we stop that and where do we 
put that in?
    We are OK with the swipe and saying: This is the same 
person. This is the same card that we saw over here when we 
looked at this person.
    So if all they do is type in the information in the case of 
your example, type in basic information about the individual. 
Then when they come back and swipe the card somewhere else, it 
can populate itself at that point. So we are not talking about 
a major ban--swiping of the card is OK to check the 
authenticity of the card and that the information on the card 
is real. The question is really about using it to populate 
information that then can be used for many multiple other 
purposes.
    Senator Collins. Thank you.
    Actually, Senator Akaka, I am not sure which one of us is 
Chairman right now. So perhaps I should be saying, thank you, 
Mr. Chairman, instead of recognizing you for your questions.
    Senator Akaka [presiding]. Thank you very much, Madam 
Chairman.
    Mr. Baker, as you may have heard in the first panel, I 
asked Governor Douglas about the States' use of grant funds. 
You expressed concern in your testimony about the 
prioritization of identification security and recommended that 
PASS ID include language ensuring that grants to improve 
drivers' licenses are a higher priority than other State 
projects.
    Would you recommend that the Federal Government require 
States to comply with secure identification standards before 
they can use funds for priorities such as first responders or 
disaster preparedness?
    Mr. Baker. Let me start by saying I think we all recognize 
that one of the biggest concerns on the part of the States has 
been a sense that they are being asked to spend money that they 
do not have. There has never been a good cost estimate, but it 
is clearly not free to come into compliance with the improved 
security for drivers' licenses.
    At the same time, of course, the Federal Government is 
sending hundreds of millions, nearly a billion dollars, to 
States specifically to improve homeland security. It is both a 
Federal responsibility since we want them to improve their 
drivers' license security, and a State responsibility to use 
taxpayer money that comes from taxpayers all over the country, 
to use that many first for things that will benefit people all 
over the country.
    Since a drivers' license and, as we saw, a birth 
certificate issued in the Virgin Islands is good in Florida, we 
need to have a national system and we need to encourage people 
to spend their Homeland Security funds first on things that 
will help improve the security of all Americans.
    I do not think it is necessary to say you cannot spend 
money on anything until you have fixed everything about your 
drivers' license security, but I do think that it should be one 
of the top three priorities and States should have to spend 
some of their money improving drivers' license security until 
they are at the point where they say, we think we are there, 
and the Homeland Security Department agrees.
    Senator Akaka. Thank you.
    Mr. Quam, I have a question relating to some of the 
electronic databases that are required by REAL ID and are 
slowly being implemented by a handful of States. In particular, 
I am interested in the Electronic Verification of Vital Events 
records.
    As I understand it, some States are using the system to 
help electronically verify birth certificate information. 
However, only a few States currently have scanned birth records 
included in the system. Can you speak to the current status of 
this, of States' use of EVVE and whether it is feasible for 
DMVs to use EVVE on a widespread basis to verify birth 
certificates in the near term?
    Mr. Quam. Thank you for the question, Senator, and also 
thank you for your leadership on this issue and for the help of 
your staff who has been just tremendous in trying to pull 
together so many different interest groups to find a solution.
    With regard to EVVE, I know that the National Association 
for Public Health Statistics and Information Systems (NAPHSIS), 
which is the organization that runs that particular system, 
has, I believe, submitted a statement.\1\ About 15 States 
currently participate in EVVE. Only three DMVs currently use 
that system. We have 56 jurisdictions--only 3 currently use it.
---------------------------------------------------------------------------
    \1\ The statement referenced by Mr. Quam appears in the Appendix on 
page 164.
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    NAPHSIS, the organization, according to their testimony, 
believes that about 85 percent of birth records dating back to 
1935 are in electronic form. I would like to see verification 
of that number. Certainly, I have no reason not to believe 
that.
    I do know that several States have had great difficulty in 
actually transferring especially old records into electronic 
form, and making them consistent, accurate, and usable. That is 
not an easy task to do at the end of the day.
    For example, there is one State that just recently moved 
its licenses to a legal presence standard, which means people 
had to prove legal presence in the United States. That State 
had to set up a war room just for issues related to birth 
certificates because for all those people coming in, those who 
are in the United States legally who are, say, foreign-born or 
foreign residents had no problem showing that they were legally 
present. The person who had the problem showing that they are a 
citizen of the United States happened to be the grandmother who 
is over 60 years old whose birth record was in the family Bible 
that was in the house that burned down. That person had a 
problem proving that they were in the United States lawfully. 
And so, the State spent more of its time with those citizens 
than it ever did with other people who could easily show their 
legal status.
    Transferring birth certificates into electronic form and 
creating electronic databases is not an easy task. I think it 
has to be done slowly. It has to be done in a meaningful way.
    Again, the questions I heard from governors were not about 
should we do it. A lot of them said: If it is there, that is 
great. Maybe we will use it. But we want to know about the 
governance. We want to know about the privacy protections and 
the accuracy.
    Even for EVVE, they estimate that they will have about 90 
or 95 percent accuracy. The way that translates into a line at 
the DMV is that one of every 10 people is going to get a false 
reading. That means delays. That means additional time, perhaps 
another trip to the DMV. You can be one of those citizens who 
has been in the same house, the same county, the same city all 
your life, but you are going to be rejected if this system does 
not work well and is not 100 percent reliable.
    The pilot project is aspirational. Let's see if we can get 
it up and running. Let's see if we can solve those questions. 
It is somewhat of an ``if you build it, we will come'' 
situation.
    I would add to that, if you build it right, I think the 
States will come along. But we need to do that on a cooperative 
basis. We do not need to rush it just to meet REAL ID 
standards.
    Senator Akaka. Thank you, Mr. Quam.
    Mr. Baker, you testified that all birth certificates which 
generally are in paper form in county vital records offices 
throughout the country probably could be digitized and made 
searchable through EVVE for $100 million or just $2 million per 
State, not counting Washington, DC, and the territories, in 
addition to a total of $4 million to get EVVE activated in all 
States. What is the basis of that estimate?
    Mr. Baker. That estimate is derived in part from the 
estimates that we received when I was in government based on 
the experience of the States that actually had to digitize 
their records and, as well, from NAPHSIS which administers the 
program or administers the database.
    Senator Akaka. Thank you for that.
    Senator Collins, do you have further questions?
    Senator Collins. Thank you, I do.
    Mr. Quam, there are some States that have vigorously 
protested REAL ID and have passed legislation forbidding 
compliance with it. There are other States that have invested a 
great deal of money and effort and have taken steps towards 
compliance. Vermont is one of those States.
    If PASS ID was to pass and we have new implementing 
regulations, is there concern that the investments made by 
States who are seeking to comply with the law would be for 
naught or do you consider the PASS ID bill sufficiently similar 
to current law that those investments would still be put to 
good use?
    Mr. Quam. It is an excellent question, Senator, and I think 
it is the latter. PASS ID builds on the strengths of REAL ID 
and because so many of the 18 benchmarks that States have to 
meet at the end of this year are still part of PASS ID you are 
going to see security increased across the board. That also 
happens to be where most of the State investments have been 
made. Therefore, those investments are not lost. They are 
actually used. So you are going to keep the value for those who 
have invested.
    It is interesting, that even in some of those States who 
have been such vocal opponents, some of those very same 
governors have gone on their own and said: You know what? I 
want to invest in a secure license. I hate REAL ID, but I am 
going to invest.
    Their licenses and their systems are actually fairly close 
to meeting those 18 benchmarks. PASS ID gives them an 
opportunity--legislators, governors, all those who protested a 
law that they do not like--to reevaluate and to see if this 
makes more sense and their investments can actually have value 
down the road.
    Senator Collins. That is an excellent point. I had noticed 
that as well when I have looked at individual States, the fact 
that some of the States that have protested the loudest are in 
fact close to compliance, or at least have reached material 
compliance with the law, but understandably they did not like 
Washington telling them how without consultation. They also, in 
some cases, were resentful of the financial burden.
    Does every State currently have a requirement for legal 
presence?
    Mr. Quam. I will look to some of the other panelists. I 
believe we are almost there. When REAL ID first went into 
place, I think about 10 States did not have it.
    Senator Collins. Correct.
    Mr. Quam. I think most of the States have moved. There may 
be one left who does not have that requirement, but everybody 
else now has legal presence as a requirement.
    Senator Collins. Do any of the other panelists know the 
answer to that question? Mr. Baker.
    Mr. Baker. I am under the impression that New Mexico and 
perhaps Hawaii still have not gone to that.
    Senator Collins. That is something that we will check with 
the Department for the record.
    I know my State of Maine was one of the last. The governor 
recently vetoed a bill that would have repealed the requirement 
for showing of legal presence, and I salute the governor for 
doing so because I think that is a fundamental reform.
    I am, however, sympathetic to the situation Mr. Quam 
described because we have had situations in Maine because of 
our close association with Canada where the great grandmother 
came over from Canada many years ago, decades ago, married an 
America, thought that made her a citizen and does not have 
proof of her being born just across the border in New 
Brunswick. So it can be a difficult issue.
    I still think a requirement for legal presence is extremely 
important and that we should not be giving drivers' licenses to 
people who are here illegally, but it does get more complex 
when one tries to comply with the law.
    Let me ask one final question, and that is to Mr. Baker, 
and I want to go back to the commercial aircraft boarding issue 
because I am truly troubled by creating that loophole and how 
it would work in real-life application.
    In addition to creating the possibility for endless 
litigation, my concern is that security officials are 
increasingly being trained in behavioral recognition techniques 
like those that the Israeli Government has used for airport 
security for decades and very successfully. So an individual 
may present himself at the airport without a compliant ID, go 
through secondary screening, and there are no obvious red 
flags. He is not on the terrorist watch list. He is not 
carrying anything that a wand picks up as contraband. Yet, 
through the training the security guard has in behavioral 
recognition techniques, the guard may believe that this 
individual poses a risk.
    Under the provisions of the PASS ID legislation with the 
prohibition against denying the individual to the plane solely 
because he does not have a compliant ID, are you concerned that 
the guard would not have grounds to deny the individual access 
to the airplane, Mr. Baker?
    Mr. Baker. I am. As we know, there is a good chance that 
the Capitol Building is still standing precisely because the 
20th hijacker was turned away in Orlando by a border official 
who said he just gave me a creepy feeling, and I was not going 
to let him in.
    We really need to be able to let people use their judgment, 
their discretion. It is critical, as the Israelis say, that we 
look for terrorists, not just for weapons.
    I predict that once we write this into law the courts will 
be asked to enforce it. People who don't bring IDs will say: I 
missed my flight. I was denied boarding because I was sitting 
there, cooling my heels and answering your questions. So I have 
been denied boarding, and I was cooling my heels because I did 
not have an ID.
    By the same token, I think the courts will say: Well, OK, 
we have to make sure that this is not a pretext, that they are 
not just making up a creepy feeling to deny him boarding 
because he did not have ID. So we are going to have to do a 
searching inquiry into what the reasons are, and some reasons 
are good enough, and some reasons are not.
    I think you cannot overestimate the impact that it has on a 
relatively low paid employee to have a Federal judge 
questioning his motives and telling him he did his job wrong. 
No one wants to go through that. And all of those things are 
going to be a real damper on doing the kinds of searching 
inquiry we want TSA to do.
    Senator Collins. I want to make clear that I am not talking 
about irrational prejudices. I am not talking about profiling. 
I am talking about a trained security guard using this specific 
technique that has been used in Israel for many years and which 
is being used today in some of our airports. I believe Logan in 
Boston is one of those airports that is using the technique. So 
this is a trained guard's assessment.
    And my concern is, I think, the burden of proof is shifting 
from the individual presenting himself at the airport who has 
to prove that he is who he says he is to the security guard to 
prove that he is not the person he says he is. That really 
concerns me.
    So I hope that all the members of this panel will work 
further with us to help us sort this issue out. It is the 
reason that I did not join as a co-sponsor of this bill, 
because I felt so strongly that this undermines the security 
and the purpose of having a secure identification.
    So I do look forward to working with our panels, to working 
with the sponsor of the bill, and I want to thank you, Senator 
Akaka, for your leadership, and I want to thank the panel.
    Senator Akaka, I know that if Senator Lieberman were here 
he would say that the hearing record is going to remain open 
for another 15 days for the submission of any questions or 
additional materials, and I am going to turn it over to you and 
thank you for your leadership.
    I want to thank all of our witnesses today. Thank you.
    Senator Akaka. Thank you very much. I want to thank our 
Ranking Member who has provided great leadership in this area 
and thinking into some of the issues that we have been facing 
and has been so helpful in doing that.
    Mr. Schwartz, Mr. Baker's testimony suggests that the REAL 
ID Act increased privacy protections and that the repeal of the 
REAL ID would lead to significantly more cases of identity 
theft. Over the years, as we have worked on oversight of REAL 
ID, the Center for Democracy and Technology has been an 
advocate for additional privacy protections both in REAL ID and 
on other government issues.
    Would you address the contention that REAL ID adequately 
protects privacy and why you believe that additional 
protections included in PASS ID are needed?
    Mr. Schwartz. Thank you, Senator Akaka.
    The issue in terms of whether REAL ID improves privacy, I 
think you can look it up in the record. You can look at it in 
the notice for proposed rulemaking that DHS put out while Mr. 
Baker was there, and you can look at the footnote that 
specifically says that they cannot add privacy controls into 
the regulations because the law removed the words, privacy and 
privacy and security protection of personal information, 
specifically that were in the Intelligence Reform Act.
    So, while I do think that DHS did take steps to say we are 
supposed to protect security and therefore we are going to 
build in some privacy protections about personal information, 
they did not go as far as they would have, even according to 
DHS, as if they had these privacy protections built in.
    I think that it was clear, when I served on the negotiated 
rulemaking, that we were moving in the direction of coming to 
the right balance there. But when REAL ID came and overturned 
that committee from its work and that committee's work, it took 
us many steps back from privacy protections that would have 
been in place.
    So I do think that while you can say that license reform 
would protect privacy, I do think that is true, and that is why 
we support license reform. And there are some privacy groups 
that are more skeptical of license reform than the Center for 
Democracy and Technology is.
    We still feel that the move toward license reform is 
important, that even if we were going to repeal it, it should 
be replaced with another process of negotiated rulemaking, 
Senator, as you had in your last bill or put the privacy 
protections into law as you do in PASS ID. So that is why we 
support those provisions, but this idea that REAL ID would be 
better than those other two solutions, PASS ID or the original 
negotiated rulemaking, I think is just demonstratably false 
just based on what DHS has written about it directly.
    Senator Akaka. Mr. Schwartz, I would like to ask you about 
an especially important issue that was magnified by the 
enactment of REAL ID. This is the issue of how to protect the 
personally identifiable information on the machine-readable 
zone of drivers' licenses and identification cards.
    The Center for Democracy and Technology has been a longtime 
advocate for additional protection for this information which 
was put into a common machine-readable format through REAL ID. 
I understand that there were concerns that eliminating the 
ability to store electronic data from licenses could be 
detrimental to fraud and identity theft prevention. Would you 
please address this issue?
    Mr. Schwartz. Sure. I discussed this a little bit with 
Senator Collins earlier in response to her question about the 
fraud exemption, but just taking this a step further I think 
that we should look at what is allowed under PASS ID.
    Under PASS ID, any retailer is allowed to take the license 
and swipe it and to do a comparison to check to make sure this 
is a real drivers' license that was issued by a State. So they 
can do that.
    They can check and make sure that the information in the 
machine-readable zone that they have in their database and to 
do a check immediately on that, that it is the same person.
    The only thing they cannot do is take it and swipe that 
information and store it in the database. It is the ease of 
aggregation of that data that represents the concern, 
especially as we know that we are getting the ability to put 
more and more information into the machine-readable zone.
    Today, it is one thing to say, well, most States only have 
the information that is on the front of the card in the 
machine-readable zone. In the future, that is not going to be 
the case. So the real concern is in making sure that while we 
have this opportunity to discuss security on the card and 
standards for security on the card, that we are also looking 
into the future and saying that as we put more and more 
information into the machine-readable zone we are going to make 
sure that information is secure.
    That information to cardholders is of more concern because 
you can see what is on the front of the card. You cannot see 
what is in the machine-readable zone. So, when you give it to 
someone and you know that they can only use the front of the 
card to type in information or to scan that, you know that they 
are only using that information. It is a technological 
protection to say that if the person swipes the card they can 
only read the same information that is on the front of the 
card, and that is what we should be focused on.
    There is also the security threat of turning over more and 
more information from swiping the card to many individuals. I 
had a conversation recently with Vivek Kundra who is now the 
Federal Chief Information Oficer (CIO), who used to be the CIO 
of Washington, DC. He was telling me that while he was in 
Washington he put out a number of fraud-prevention measures 
where to ensure that DMV workers could only do a check against 
the database, and so they could only verify the information in 
the database. That was the security and the privacy protections 
put in place to limit the amount of information that a DMV 
worker could find out about the information.
    Those same types of rules should go into effect for other 
people that have to use the drivers' license and when they want 
to use that machine-readable zone.
    Senator Akaka. Thank you.
    Mr. Baker, your testimony asserts that PASS ID would return 
us to pre-September 11, 2001, standards for the issuance of 
identification documents. However, the PASS ID Act actually 
contains many of the same security requirements as REAL ID 
including requirements to provide a photo identity document, 
documentation showing the person's date of birth, proof of the 
person's Social Security number, documentation showing the 
person's name and address of principal residence and proof that 
an individual is in the country lawfully.
    Under PASS ID, Social Security numbers and lawful presence 
would be checked electronically. As with the U.S. passports, 
identification documents would be validated or authenticated 
rather than verified with the issuing agency. None of these 
Federal standards were in place pre-September 11, 2001.
    What is the basis for your claim that PASS ID would move 
States back to pre-September 11, 2001, standards?
    Mr. Baker. I certainly do not mean to suggest that the 
items that PASS ID requires are not useful. I think they are 
very useful. By and large, they are the 18 elements that we 
thought should be done as part of material compliance.
    One of the big deadline problems is that under REAL ID, 
material compliance (meaning those 18 items) is due to be 
completed at the end of this year. You might have to give 
States some additional time because of the crisis that they 
find themselves in, but States knew that was the deadline. They 
were working toward it, and there were no States that told us 
they could not do it. Even the ones who said, ``we reject REAL 
ID,'' nonetheless, also said they expected to be able to do the 
substance of those 18 items.
    What PASS ID does is, it says: You know those 18 items? Do 
them in 2016, and maybe not even then if there is some 
litigation or delay over delivering the regs.
    Well, that is a terribly long delay for something that most 
States are close to being able to do now. We should not accept 
what I think will be much more than 5 years of delay, and that 
does mean that for the next 5 or 6 years we are getting nothing 
that we did not have.
    You talked about the electronic checks that are done. I 
think those are useful, but again the lack of ambition is 
astonishing. We have an E-Verify program for employers that the 
two Administrations have now embraced. They said people who get 
money, who are contractors should follow E-Verify. They should 
check the Social Security number to make sure it matches the 
name. Then if they do not match, you do not get the job.
    Well, there is nothing in here that says you do not get 
your license if your name and your Social Security number do 
not match. We have to at least have the same standards that we 
have for E-Verify. People should be required to produce the DHS 
ID if they are not American citizens but they are authorized to 
work. If they produce a passport, the States should check just 
as every employer is going to check to see if the photos on the 
passport match.
    Those are systems that are available now or about to be 
rolled out. There is no need to say, I am not sure it will 
work. It is working today for 150,000 employers, and the States 
should go through that same process. This bill does not require 
them to do as much as employers are doing today.
    So, in those respects, I think we have stepped 
substantially back from REAL ID. I do not mean to say that 
there is nothing here.
    We did not, however, because we did not deal with source 
documents, address the problem that the 9/11 Commission was 
most concerned about, which was the hijackers getting 
legitimate IDs by using fake documents. Thank you.
    Senator Akaka. Well, thank you very much for your response.
    I would like to ask Mr. Quam whether he has any comments 
about this.
    Mr. Quam. Thank you, Senator.
    I think Mr. Baker grossly underestimates the States.
    One, to say that somehow all this will not be done until 
2016 makes absolutely no sense. States are going to need every 
single minute of a 5-year window to bring 245 million drivers 
back in to get PASS IDs. They are not waiting until the end. 
They want a system in place that creates the certainty, so they 
can make the investments and they can start the process, and 
they want to do it as soon as they possibly can. No one is 
waiting.
    SAVE and SSOLV are verification systems that are not used 
today. Well, they are used by several States, but this would 
require all of them to use SAVE and SSOLV.
    The fact of the matter is that PASS ID took the best parts 
and most workable parts of REAL ID and brought them over. He is 
exactly right about that. And it is because governors were 
interested in finding the solution, not starting at zero, but 
starting at where we are, take what works and then actually get 
the job done.
    I actually believe that States are going to aspire to do 
better than PASS ID. PASS ID will set a floor that States will 
go beyond. I think States will participate vigorously in the 
pilot program. I think they want to find solutions. They would 
like nothing more than to have these systems that protect the 
privacy, that can add to the verification, that are robust, 
reliable, and push-button, so that you can actually get 
citizens through that line quickly, and they know that the ID 
that they are given represents exactly who they are.
    We all share that common goal. To say that we do not is 
misleading.
    I think States are on a page where PASS ID offers 
solutions. It offers more verification. And, because it can be 
done, PASS ID meets the 9/11 Commission recommendations where 
REAL ID actually fails.
    Senator Akaka. Well, thank you very much.
    Are there any other comments from our other two panelists?
    If not, I want to thank you so much. This has been helpful. 
Thank you for your support and all that you have done. I want 
to especially thank you for working with our staff to put this 
hearing together, and I want to thank you again for moving us 
this far.
    Without question, we are going to have to move on this as 
quickly as we can, and we will try to do that.
    So the hearing record will be open for 15 days until July 
30 for the submission of statements and questions for the 
record.
    Again, thank you very much. The hearing is now adjourned.
    [Whereupon, at 12:40 p.m., the Committee was adjourned.]
                            A P P E N D I X

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