[Senate Hearing 111-981]
[From the U.S. Government Printing Office]
S. Hrg. 111-981
IDENTIFICATION SECURITY: REEVALUATING THE REAL ID ACT
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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
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Committee on Homeland Security and Governmental Affairs
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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
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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
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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.
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\1\ The bill (S. 1261) referenced by Senator Akaka appears in the
Appendix on page 55.
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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\
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\1\ The statement referenced by Senator Akaka appears in the
Appendix on page 52.
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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.
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\1\ The prepared statement of Secretary Napolitano appears in the
Appendix on page 82.
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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.
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\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.
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\1\ The prepared statement of Mr. Baker with attachments appears in
the Appendix on page 98.
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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.
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\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.
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\1\ The prepared statement of Mr. Schwartz appears in the Appendix
on page 127.
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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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