[Congressional Record Volume 153, Number 34 (Wednesday, February 28, 2007)]
[Senate]
[Pages S2368-S2370]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself, Mr. Sununu, Mr. Leahy, and Mr. 
        Tester):
  S. 717. A bill to repeal title II of the REAL ID Act of 2005, to 
restore section 7212 of the Intelligence Reform and Terrorism 
Prevention Act of 2004, which provides States additional regulatory 
flexibility and funding authorization to more rapidly produce tamper- 
and counterfeit-resistant driver's licenses, and to protect privacy and 
civil liberties by providing interested stakeholders on a negotiated 
rulemaking with guidance to achieve improved 21st century licenses to 
improve national security; to the Committee on the Judiciary.
  Mr. AKAKA. Mr. President, I rise today with my colleagues from New 
Hampshire, Vermont, and Montana, Senators Sununu, Leahy and Tester, to 
reintroduce legislation to address problems with the REAL ID Act of 
2005.
  Last year, Senator Sununu and I introduced S. 4117, the Identity 
Security Enhancement Act, which would repeal the REAL ID Act and 
reinstitute the shared rulemaking process and more reasonable 
guidelines established in the Intelligence Reform and Terrorism 
Prevention Act of 2004. We joined together to convey our concerns with 
REAL ID to the Department of Homeland Security (DHS) and to urge the 
Department to ensure that the forthcoming regulations implementing REAL 
ID addressed our concerns. Now, on the eve of DHS releasing the 
proposed REAL ID regulations, we once again introduce our legislation 
as a placeholder as Congress and the American people review how DHS 
proposes to implement this costly and controversial law.
  I plan to hold a hearing on the REAL ID regulations in the Oversight 
of Government Management Subcommittee shortly, and I will develop 
comprehensive legislation to address any privacy and civil liberties 
issues arising under the Act and any unrealistic burdens placed on the 
states.
  From the time the REAL ID Act became law nearly two years ago, 
hundreds of organizations--ranging from the National Governor's 
Association (NGA) to the American Civil Liberties Union (ACLU)--have 
voice their strong opposition to REAL ID. None of these groups were 
heard by Congress before the bill was passed in May 2005 as there were 
no hearings to understand the repercussions of such sweeping 
legislation.
  Rather, the REAL ID Act was attached to the Emergency Supplemental 
Appropriations Act for Defense, the Global War on Terror, and Tsunami 
Relief Act (P.L. 109-13) in Conference. It was wrong to include the 
legislation that has such a massive impact on State and local 
governments without their input. Not having a full debate on the 
measure to determine its impact has led an increasing number of State 
legislatures to introduce and pass legislation to condemn REAL ID and, 
in some cases, prohibit the state from spending money to implement the 
Act.
  My two primary concerns with REAL ID are that the law places an 
unrealistic and unfunded burden on state governments and erodes 
Americans' civil liberties and privacy rights.
  There is nothing realistic about REAL ID. The extremely costly and 
complex set of electronic systems that will be required to connect the 
thousands of local Departments of Motor Vehicles (DMVs) to one another 
and to a host of Federal agencies as required under REAL ID may not be 
practical. This would cost $1.42 billion according to a September 2006 
report issued by the NGA, the National Conference of State Legislatures 
(NCSL), and the American Association of Motor Vehicle Administrators 
(AAMVA). In addition, the costs to re-issue every current driver's 
license under the new screening process is estimated to cost 
approximately $8 billion over five years. Combined with the other 
requirements imposed on states by REAL ID, such as new design 
requirements for the ID cards and on-site security, REAL ID will cost 
over $11 billion. Congress has appropriated only $40 million for REAL 
ID implementation, which leaves a hefty price tag for the states, 
especially for legislation that was passed with no review.
  In addition to the unrealistic burden REAL ID places on states, REAL 
ID is a serious threat to our privacy rights and civil liberties.
  As I said last year, the REAL ID Act will require every driver's 
licensing agency to collect and store substantial numbers of records 
containing licensees' most sensitive personally identifiable 
information, including one's social security number, proof of 
residence, and biometric identifiers such as a digital photograph and 
signature. If the state databases are compromised, they will provide 
one-stop access to virtually all information necessary to commit 
identity theft.
  Moreover, the sharing of the aggregated personally identifiable 
information of licensees between and amongst various government 
agencies and employees at the federal, state, and local level, as 
contemplated by the REAL ID Act, potentially allows millions of 
individuals access to that information without protections or 
safeguards.
  Despite these obvious threats to Americans' privacy, the REAL ID Act 
fails to mandate privacy protections for individuals' information nor 
does it provide states with the means to implement data security and 
anti-hacking protections that will be required to safeguard the new 
databases mandated by the Act.
  REAL ID exacerbates the threat of identity theft which threatens our 
security by giving us a false sense of security.
  Unfunded mandates and the lack of privacy and security requirements 
are real problems that deserve real consideration and real solutions. 
Congress

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has a responsibility to ensure that driver's licenses and ID cards 
issued in the United States are secure--both from would-be terrorists 
and identity thieves--affordable, and practical.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 717

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Identification Security 
     Enhancement Act of 2007''.

     SEC. 2. REPEAL.

       Title II of the REAL ID Act of 2005 (division B of Public 
     Law 109-13; 49 U.S.C. 30301 note) is repealed.

     SEC. 3. DRIVER'S LICENSES AND PERSONAL IDENTIFICATION CARDS.

       (a) Definitions.--In this section:
       (1) Driver's license.--The term ``driver's license'' means 
     a motor vehicle operator's license (as defined in section 
     30301(5) of title 49, United States Code).
       (2) Personal identification card.--The term ``personal 
     identification card'' means an identification document (as 
     defined in section 1028(d)(3) of title 18, United States 
     Code) issued by a State.
       (b) Standards for Acceptance by Federal Agencies.--
       (1) In general.--
       (A) Limitation on acceptance.--No Federal agency may 
     accept, for any official purpose, a driver's license or 
     personal identification card newly issued by a State more 
     than 2 years after the promulgation of the minimum standards 
     under paragraph (2) unless the driver's license or personal 
     identification card conforms to such minimum standards.
       (B) Date for full conformance.--
       (i) In general.--Except as provided under clause (ii), 
     beginning on the date that is 5 years after the promulgation 
     of minimum standards under paragraph (2), no Federal agency 
     may accept, for any official purpose, a driver's license or 
     personal identification card issued by a State unless such 
     driver's license or personal identification card conforms to 
     such minimum standards.
       (ii) Alternative date for full conformance.--If the 
     Secretary determines that it is impracticable for States to 
     replace all State-issued driver's licenses and personal 
     identification cards before the deadline set forth in clause 
     (i), the Secretary, in consultation with the Secretary of 
     Transportation, may set a later, alternative deadline to the 
     extent necessary for States to complete such replacement with 
     reasonable efforts.
       (C) State certification.--
       (i) In general.--Each State shall certify to the Secretary 
     that the State is in compliance with the requirements of this 
     section.
       (ii) Frequency.--Certifications under clause (i) shall be 
     made at such intervals and in such a manner as the Secretary, 
     with the concurrence of the Secretary of Transportation, may 
     prescribe by regulation.
       (iii) Audits.--The Secretary may conduct periodic audits of 
     each State's compliance with the requirements of this 
     section.
       (2) Minimum standards.--Not later than 12 months after the 
     date of the enactment of this Act, the Secretary, in 
     consultation with the Secretary of Transportation, shall by 
     regulation, establish by minimum standards for driver's 
     licenses or personal identification cards issued by a State 
     for use by Federal agencies for identification purposes that 
     shall include--
       (A) standards for documentation required as proof of 
     identity of an applicant for a driver's license or personal 
     identification card;
       (B) standards for the verifiability of documents used to 
     obtain a driver's license or personal identification card;
       (C) standards for the processing of applications for 
     driver's licenses and personal identification cards to 
     prevent fraud;
       (D) standards for information to be included on each 
     driver's license or personal identification card, including--
       (i) the person's full legal name;
       (ii) the person's date of birth;
       (iii) the person's gender;
       (iv) the person's driver's license or personal 
     identification card number;
       (v) a photograph of the person;
       (vi) the person's address of principal residence; and
       (vii) the person's signature;
       (E) standards for common machine-readable identity 
     information to be included on each driver's license or 
     personal identification card, including defined minimum data 
     elements;
       (F) security standards to ensure that driver's licenses and 
     personal identification cards are--
       (i) resistant to tampering, alteration, or counterfeiting; 
     and
       (ii) capable of accommodating and ensuring the security of 
     a photograph or other unique identifier; and
       (G) a requirement that a State confiscate a driver's 
     license or personal identification card if any component or 
     security feature of the license or identification card is 
     compromised.
       (c) Negotiated Rulemaking.--
       (1) In general.--Before publishing the proposed regulations 
     required by subsection (b)(2) to carry out this title, the 
     Secretary shall establish a negotiated rulemaking process 
     pursuant to subchapter IV of chapter 5 of title 5, United 
     States Code (5 U.S.C. 561 et seq.).
       (2) Time requirement.--The process described in paragraph 
     (1) shall be conducted in a timely manner to ensure that--
       (A) any recommendation for a proposed rule or report--
       (i) is provided to the Secretary not later than 9 months 
     after the date of the enactment of this Act; and
       (ii) includes an assessment of the benefits and costs of 
     the recommendation; and
       (B) a final rule is promulgated not later than 12 months 
     after the date of the enactment of this Act.
       (3) Representation on negotiated rulemaking committee.--Any 
     negotiated rulemaking committee established by the Secretary 
     pursuant to paragraph (1) shall include equal numbers of 
     representatives from--
       (A) among State offices that issue driver's licenses or 
     personal identification cards;
       (B) among State elected officials;
       (C) the Department of Transportation; and
       (D) among interested parties, including experts in privacy 
     protection, experts in civil liberties and protection of 
     constitutional rights, and experts in immigration law.
       (4) Content of regulations.--The regulations required by 
     subsection (b)(2)--
       (A) shall facilitate communication between the chief driver 
     licensing official of a State, an appropriate official of a 
     Federal agency and other relevant officials, to verify the 
     authenticity of documents, as appropriate, issued by such 
     Federal agency or entity and presented to prove the identity 
     of an individual;
       (B) may not infringe on a State's power to set criteria 
     concerning what categories of individuals are eligible to 
     obtain a driver's license or personal identification card 
     from that State;
       (C) may not require a State to comply with any such 
     regulation that conflicts with or otherwise interferes with 
     the full enforcement of State criteria concerning the 
     categories of individuals that are eligible to obtain a 
     driver's license or personal identification card from that 
     State;
       (D) may not require a single design to which driver's 
     licenses or personal identification cards issued by all 
     States must conform; and
       (E) shall include procedures and requirements to protect 
     the privacy rights of individuals who apply for and hold 
     driver's licenses and personal identification cards.
       (F) shall include procedures and requirements to protect 
     the federal and state constitutional rights and civil 
     liberties of individuals who apply for and hold driver's 
     licenses and personal identification cards;
       (G) shall not permit the transmission of any personally 
     identifiable information except for in encrypted format;
       (H) shall provide individuals with procedural and 
     substantive due process, including promulgating rules and 
     rights of appeal, to challenge errors in data records 
     contained within the databases created to implement this Act;
       (I) shall not permit private entities to scan the 
     information contained on the face of a license, or in the 
     machine readable component of the license, and resell, share 
     or trade that information with any other third parties, nor 
     shall private entities be permitted to store the information 
     collected for any other than fraud prevention purposes;
       (J) shall not preempt state privacy laws that are more 
     protective of personal privacy than the standards, or 
     regulations promulgated to implement this Act; and
       (K) shall neither permit nor require verification of birth 
     certificates until a nationwide system is designed to 
     facilitate such verification.
       (d) Grants to States.--
       (1) Assistance in meeting federal standards.--Beginning on 
     the date a final regulation is promulgated under subsection 
     (b)(2), the Secretary shall award grants to States to assist 
     them in conforming to the minimum standards for driver's 
     licenses and personal identification cards set forth in the 
     regulation.
       (2) Allocation of grants.--The Secretary shall award grants 
     to States under this subsection based on the proportion that 
     the estimated average annual number of driver's licenses and 
     personal identification cards issued by a State applying for 
     a grant bears to the average annual number of such documents 
     issued by all States.
       (3) Minimum allocation.--Notwithstanding paragraph (2), 
     each State shall receive not less than 0.5 percent of the 
     grant funds made available under this subsection.
       (4) Separate funding.--Funds appropriated for grants under 
     this section may not be commingled with other grant funds 
     administered by the Department and may not be used for any 
     purpose other than the purpose set forth in paragraph (1).
       (e) Extension of Effective Date.--The Secretary may extend 
     the date specified under subsection (b)(1)(A) for not more 
     than 2 years for driver's licenses issued by a State if the 
     Secretary determines that the State made reasonable efforts 
     to comply with the date under such subsection but was unable 
     to do so.

     SEC. 4. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Secretary 
     $300,000,000 for each of the fiscal years 2007 through 2013 
     to carry out this Act.

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