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37–167 PDF 2007

S. HRG. 110–113

WILL REAL ID ACTUALLY MAKE US SAFER?

AN EXAMINATION OF PRIVACY AND CIVIL

LIBERTIES CONCERNS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 8, 2007

Serial No. J–110–33

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 229

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3

WITNESSES 

Carafano, James Jay, Assistant Director, Kathryn and Shelby Cullom Davis 

Institute for International Studies, and Senior Research Fellow, Douglas 

and Sarah Allison Center for Foreign Policy Studies, Heritage Foundation, 

Washington, D.C. ................................................................................................. 10

Gilbert, Allen, Executive Director, American Civil Liberties Union of 

Vermont, Montpelier, Vermont ........................................................................... 6

Harper, Jim, Director, Information Policy Studies, The Cato Institute, Washington, D.C. ........................................................................................................... 8

Kephart, Janice, President, 9/11 Security Solutions, LLC, Alexandria, Virginia ....................................................................................................................... 15

Schneier, Bruce, Founder and Chief Technology Officer, BT Counterpane, 

Minneapolis, Minnesota ....................................................................................... 12

QUESTIONS AND ANSWERS 

Responses of James Carafano to questions submitted by Senator Leahy .......... 31

Responses of Jim Harper to questions submitted by Senator Leahy .................. 33

Responses of Janice Kephar to questions submitted by Senator Leahy ............. 37

Responses of Bruce Schneier to questions submitted by Senator Leahy ............ 43

SUBMISSIONS FOR THE RECORD 

American Association of Motor Vehicle Administrators, Michael R. Calvin, 

Interim President & CEO, Washington, D.C., statement ................................. 46

Carafano, James Jay, Assistant Director, Kathryn and Shelby Cullom Davis 

Institute for International Studies, and Senior Research Fellow, Douglas 

and Sarah Allison Center for Foreign Policy Studies, Heritage Foundation, 

Washington, D.C., statement .............................................................................. 56

Center for Democracy and Technology, Ari Schwartz, Deputy Director, statement ...................................................................................................................... 63

Electronic Privacy Information Center, Washington, D.C., statement ............... 70

Gilbert, Allen, Executive Director, American Civil Liberties Union of 

Vermont, Montpelier, Vermont, statement and attachments ........................... 131

Harper, Jim, Director, Information Policy Studies, The Cato Institute, Washington, D.C., statment and attachments ............................................................ 167

Information Technology Association of America, Arlington, Virginia, statement ...................................................................................................................... 186

Kephart, Janice, President, 9/11 Security Solutions, LLC, Alexandria, Virginia ....................................................................................................................... 196

Minner, Hon. Ruth Ann, Governor, State of Delaware, Wilmington, Delaware, 

letter ...................................................................................................................... 231

Schneier, Bruce, Founder and Chief Technology Officer, BT Counterpane, 

Minneapolis, Minnesota, statement .................................................................... 234

Vermont Department of Motor Vehicles, Bonnie L. Rutledge, Commissioner, 

letter ...................................................................................................................... 238

Wall Street Journal: 

National ID Party, February 17, 2005 ............................................................ 241

Page

IV

Wall Street Journal—Continued

Immigration Reality Check, May 4, 2005 ....................................................... 243

Deputizing the DMV, July 25, 2005 ................................................................ 245

Real ID Revolt, May 8, 2007 ............................................................................ 246

(1)

WILL REAL ID ACTUALLY MAKE US SAFER? 

AN EXAMINATION OF PRIVACY AND CIVIL 

LIBERTIES CONCERNS 

TUESDAY, MAY 8, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:12 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, and Specter. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I apologize to Senator Specter 

and to the witnesses for being late. We sometimes, as the late Senator Moynihan used to say, act like a Third World nation around 

here, with closing off streets for motorcades, usually for somebody 

who, if they would simply drive up in an ordinary car, nobody 

would even know who they are or care, but we have to have motorcades to attract attention. Unfortunately, we do it with a lot of our 

own officials more and more. This one stopped traffic for about 20 

minutes. If I could have just left my car, I could have easily walked 

to the Capitol. 

I recall when I was a law student here at Georgetown, one time 

up in the Capitol, I got on an elevator and stopped, and there was 

then-Vice President Lyndon Johnson and one agent with him. I 

stopped. He said, ‘‘Boy, are you getting on or off?’’ I said, ‘‘Well, I 

was getting on, Mr. Vice President.’’ He grabbed me by the lapel 

and pulled me on, and he said, ‘‘Well, get on.’’ I watched as he 

drove off. He was in a car with a driver, one agent, and that was 

it. 

The other day I noticed the Vice President came up to lobby 

some of our colleagues, and between the motorcycles and all the 

others, I counted 38 vehicles. Somewhere we have gotten out of 

control. 

I also recall—well, that is another story. I won’t expand. 

[Laughter.] 

Chairman LEAHY. We are turning our attention to an issue of 

great concern to States and to those Americans who value their privacy in the face of the Federal Government’s expanding role in 

their daily lives, and I thank our witnesses for being here. I especially thank Allen Gilbert from Vermont, who told me he drove by 

2

early this morning the road to my own farm in Vermont and all 

looked peaceful. 

I look forward to gaining a better understanding of the impact 

of the so-called REAL ID Act. Actually, that is something we 

should have done, the Congress should have done before they 

passed the Act. But too often we will pass acts and then find out 

afterward whether or not they make any sense. I do not think this 

does. 

It was legislation forced through by the last Congress as an addon to an emergency supplemental bill. I do not recall hearing objections to this sweeping substantive legislation being jammed into an 

emergency supplemental from those who this year were so critical 

of the important aspects of the U.S. Troop Readiness, or Veterans’ 

Care, Katrina Recovery, or Iraq Accountability Appropriations Act. 

This bill would have provided for veterans care and Katrina relief 

and other needs in the emergency supplemental legislation that we 

passed last week and the President vetoed last week. 

The REAL ID Act was attached to an emergency supplemental, 

with no hearings, no votes, but what it is, the Federal Government 

will be dictating how the States go about the business of licensing 

residents to operate motor vehicles. State motor vehicle officials 

will be required to verify the legal status of applicants, adding to 

the responsibilities of already heavily burdened State offices. And 

if anybody thinks it is going to be a walk in the park standing in 

line at your local motor vehicle department, if you think you wait 

there a long time just for routine things, you can imagine what this 

is going to be like. 

While the Federal Government dictates responsibilities for what 

has traditionally been a State function—and adds layers of bureaucracy and regulation to effectively create a national ID card, 

and that is what it is—there is no help in footing these hefty bills. 

It is an unfunded mandate passed by the last Congress to add to 

the taxpayers of the States $23 billion in costs. 

The Wall Street Journal noted in an editorial—and I might note 

that the Wall Street Journal is not one of my biggest fans, but they 

noted in an approving editorial today that ‘‘REAL ID was always 

more about harassing Mexican illegals than stopping Islamic terrorists.’’ It was put in ‘‘in an effort to placate noisy anti-immigration conservatives amid the GOP’s poll-driven election panic.’’ And 

it was attached to a ‘‘must-pass military spending bill’’ without 

hearings or debates, and the President ‘‘made the mistake of signing it.’’

Given my own concerns, I have joined with Senators Akaka, 

Sununu, and Tester to introduce a bill that would repeal this law. 

We could have had negotiations, which would have been completed, 

and would have rested in stronger requirements for identification 

documents by now had the REAL ID Act not been forced through. 

You know, we were trying to actually work out something that 

made some sense. That all came to a halt when we did this, Oh, 

well, just pass $23 billion of extra taxes onto our States and let 

them do it. 

We all know the critical importance of national security. But security measures have to be smart as well as tough. Any one of us 

who flies often knows that there are some security measures taken 

3

that make sense, and others that look like window dressing for the 

sake of window dressing. 

The reaction to the unfunded mandates of the REAL ID Act is 

a pretty good example of what happens when the Federal Government imposes itself rather than creating a partnership with the 

States. 

In addition to the numerous stakeholders that I understand have 

made substantial comments, I hope that the DHS—a Department 

which has very real difficulties in just running itself and keeping 

itself secure—will pay close attention to the sentiments expressed 

by members of this Committee and by the Homeland Security and 

Governmental Affairs Committee, which held an oversight hearing 

on REAL ID in March. I think the days of Congress 

rubberstamping any and every idea cooked up by the administration are over. Let’s see real solutions with demonstrable results before we throw away billions of dollars—or more accurately, push 

those costs onto the States—in the name of some vague claims of 

enhanced security. 

I want to understand better the implications for individual privacy rights and national security of this law. I will put into the 

record the editorial from this morning’s Wall Street Journal, Review and Outlook, ‘‘REAL ID Revolt.’’

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator Specter, again, I apologize to you. You were here on 

time. I was not. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. This hearing is 

part of the continuing efforts of the Judiciary Committee to strike 

an appropriate balance between national security and individual 

liberty and privacy. We all know the terrorist threat, and it is important to be able to identify people, to know who is doing what, 

including flying on airplanes, which posed the 9/11 catastrophe. 

But even the 9/11 hijackers had multiple identifications, so the 

question is: How do we have identification which can be checked? 

REAL ID, for anybody who has not heard the expression, is real 

identification, that is, accurate identification. There have been tremendous objections raised already about this REAL ID from very 

diverse groups such as the American Conservative Union, at one 

end of the political spectrum; the American Civil Liberties Union, 

at the other end of the spectrum; and the National Organization 

for Women. These groups have a lot of people who are objecting to 

it. And it has quite a number of proponents in trying to deal with 

the issue of finding out who is who and what the problems may be. 

The Department of Homeland Security has asked for comments 

as part of the rulemaking process and got thousands of comments. 

The Department of Homeland Security estimates it will cost 23—

I want to be sure we have the zeros right, $23 billion. As I thought 

about it, I wanted to check my notes to see that this was accurate. 

It is going to cost a lot of money for the States. Eleven States have 

filed resolutions in opposition, two States have opted out, 33 States 

4

have moved ahead to comply. So there is a checkerboard of responses. 

We are wrestling with the issue of immigration legislation. A 

prodigious amount of work has been put into that by many Senators sitting down for hours on end. Hard to believe you can find 

as may as 10 or 12 Senators who will sit for 2 hours to work on 

immigration, and one of the issues that we are struggling with 

there is, beyond securing borders, to have employers know who is 

legal and who is not legal. And we are wrestling with the costs of 

foolproof identification. 

Then we have the issue about the citizens who are applying for 

a job. How can the employer be sure even citizens are what they 

claim to be—citizens? So that is a matter of enormous concern. 

You come on a very busy day. You only see customarily the 

Chairman and the Ranking here because there are so many collateral duties, and I am going to have to excuse myself in a few minutes. We are trying to put together an immigration bill because the 

Majority Leader has given notice that it is going to be on the floor 

next Monday, and he is going to employ what is called Rule XIV 

to bypass the Committee. I am not sure that, Mr. Chairman, Senator Leahy, has been wise, because we have been doing a lot of 

wheel spinning on the meetings we have had. Last year, when I 

was Chairman and Senator Leahy—this is role reversal—we had in 

this room elongated meetings, but we hammered out a bill without 

going into all the details. And we met the deadline which we had, 

and the bill which we produced in the Senate may be our starting 

point under this Rule XIV procedure where the Committee does not 

act. But that decision was made thinking we could craft a bill 

which would be agreeable to all parties, and that may turn out to 

be wishful thinking to find anything that is agreeable to all parties 

in the U.S. Senate. 

So we are wrestling with a tough issue with this REAL ID, and 

I appreciate the presence of the witnesses. We are going to try to 

find another Republican to come to participate in the hearing, but 

we will be watching your testimony very closely. We appreciate 

your inputs as we wrestle with this issue about how we identify 

people and still protect privacy. 

One item that I noted of special concern is that REAL ID does 

not respect the rights of the Amish and the Mennonites, who wish 

not to have their pictures taken. They have the right not to have 

their photographs taken, rights recognized by the U.S. Supreme 

Court precedent and State law. And we need to respect people’s 

rights, and that is another issue. Pennsylvania has quite a number, 

but we need to respect rights of Americans wherever they may reside. 

So we have got some weighty issues here, Mr. Chairman. Senator 

Leahy has just shown me some identification, but I am prepared 

to vouch for him without even seeing identification. 

[Laughter.] 

Senator SPECTER. I have known him for 27 years in the United 

States, and our friendship goes back to 1970 when we were prosecuting attorneys, when we had real jobs. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

5

I was showing Senator Specter my Vermont driver’s license, 

which does not have a picture on it. And I might say, which has 

nothing to do with this hearing—

Senator SPECTER. It is one of the few documents in the world 

which does not have Senator Leahy’s picture. 

[Laughter.] 

Chairman LEAHY. We will invite them to the Leahy Center in 

Burlington. But, you know, all these things—the Amish and the 

Mennonites—all that should have been thought about before. This 

was just rammed down with no hearings or anything else, actually 

by the other body. 

I may have mentioned what—Senator Specter spoke of immigration. He deserves the thanks of both Republicans and Democrats 

in the Senate for the enormous work he put into this in the past 

2 years. I was privileged to work with him on that and helped us 

keep our quorums and get things moving, and Senator Specter—

I am glad that the Democratic leader has made sure that he is involved in these meetings. I think we did get a good piece of legislation out here that can be our starting point, and I would hope that 

we would move forward on this. 

I agree with President Bush—this will stop the presses, but I 

agree with him when he says he wants a comprehensive immigration bill. But I think that is what Senator Specter, under his leadership, put through last year. Well, let us try again. 

Senator SPECTER. Thank you, Pat. 

Chairman LEAHY. Lady and gentlemen, would you please stand 

and raise your right hand? Do you solemnly swear that the testimony you will give in this matter will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. GILBERT. I do. 

Mr. HARPER. I do. 

Mr. CARAFANO. I do. 

Mr. SCHNEIER. I do. 

Ms. KEPHART. I do. 

Chairman LEAHY. We will hear from each of you. We will begin 

with Allen Gilbert from Vermont. He is the Executive Director of 

the American Civil Liberties Union of Vermont. He has been a 

leading voice in our State about the REAL ID’s impact on our State 

and our way of life. He also served as President of the Vermont 

School Board Association. He lives not far from me in Vermont and 

traverses the dirt roads that go near my home. 

Allen, you would be interested in knowing that years ago, when 

our oldest son, Kevin Leahy, who is now a lawyer in Montpelier, 

when he was in his early teens, he was asked by a reporter what 

kind of vehicle his father prefers during mud seasons on a dirt 

road. He said, ‘‘Dad prefers a rental vehicle for mud season.’’

He was a reporter, then city editor of the Vermont Herald, later 

served as assistant editor of the Sunday Rutland Herald Times, 

was a free-lance writer, taught writing at several Vermont colleges 

and American studies at a German university; a bachelor’s degree 

in history from Harvard, a master’s degree in education from the 

College of William and Mary. 

Thank you very much for coming down. Please go ahead with 

your testimony. 

6

STATEMENT OF ALLEN GILBERT, EXECUTIVE DIRECTOR, THE 

AMERICAN CIVIL LIBERTIES UNION OF VERMONT, MONTPELIER, VERMONT 

Mr. GILBERT. My name is Allen Gilbert. I live in Worcester, 

Vermont—which is the next town over from Senator Leahy’s town, 

Middlesex—and I want to thank Chairman Leahy for having us 

here to testify. 

People in Vermont have a lot of unanswered questions about 

REAL ID. Seldom have I encountered an issue that raises concerns 

among such a wide range of people. I can talk with a legislator 

about REAL ID, and she will point out that the National Conference of State Legislatures expresses misgivings about the program. I can talk with a member of the National Gun Owners in 

Vermont, and he will worry about Government intrusion. A member of an advocacy group for victims of domestic and sexual violence worries that REAL ID threatens protection programs for 

women and children. 

The Ancient Order of Hibernians does not like REAL ID, and 

neither does the American Friends Service Committee. Earlier this 

year, the Government Operations Committee of the Vermont House 

of Representatives passed, unanimously, a resolution opposing 

REAL ID. The resolution was subsequently approved, also unanimously, by the full Vermont House. The longest-serving member in 

the Vermont House sits on the Government Operations Committee. 

Rep. Cola Hudson was born when a fellow Vermont Republican, 

Calvin Coolidge, was in the White House. Representative Hudson 

simply shook his head ‘‘No’’ when REAL ID was described in his 

committee. 

Our Motor Vehicles Commissioner testified in another legislative 

committee about the ‘‘re-enrollment process’’ required by REAL ID. 

Everyone will have to visit a DMV office with proper documents. 

For some people in Vermont, that means a long trip. And when 

they get to the DMV office, our commissioner said, ‘‘The jokes 

about waiting in line at DMV are no longer going to be jokes but 

reality.’’

Long-time residents are going to feel like suspects when they are 

required to report and show their papers. Our commissioner noted 

that her father is 82 years old. He has had a driver’s license for 

years. It is going to be hard to tell him, she said, that he has to 

prove his identity before he can get his license renewed. People in 

Vermont pride themselves on being part of tightly knit communities. Questioning who someone is, is seen as a sign of unfriendliness. 

Birth records in Vermont are kept by town clerks. The clerks—

some of whom are part-time—are already in a frenzy over the 

thought of complying with the myriad requests for records they are 

going to get because of REAL ID. 

A State senator, who in his other life runs a construction company and races stock cars, said, ‘‘I am not sure if it is the budgetary concern or the privacy concern or the nightmare it is going 

to create that concerns me most about this.’’

A series of data breaches this winter in Vermont led people to 

wonder about the security of stored data anywhere. DMV officials 

acknowledge that there are hundreds of unauthorized attempts 

7

daily to get at the department’s information data base. Increasingly, Vermonters are worried that too much data is being collected 

about too many things. It is not just a sense that privacy is eroding. Vermonters are worried that their identities will be stolen by 

identity thieves. 

Vermonters are pretty responsible people. We generally step up 

to the plate when asked to do the right thing. But many people are 

not so sure that REAL ID is the right thing. It seems too big, too 

expensive, and too centralized. 

Mr. Bruce Schneier, who is going to speak a bit later, is here. I 

heard him speak last year, and one of the things that he said has 

really stuck with me. He said that security is an equation, with one 

side being what you are giving up and the other side what you are 

getting in return. I am afraid that with REAL ID we are giving up 

too much and not getting much, if anything, in return. 

REAL ID is going to cost the States a lot of money. The cost in Vermont is now estimated at around $8 million. That is a pretty 

substantial expenditure for us. Some of our State senators want to 

raise license fees and to call the increase a ‘‘congressional REAL 

ID tax.’’

The cost, the implementation, the risk of identity theft—these 

things worry Vermonters. Vermonters are not convinced that REAL 

ID is a program that will make Americans safer. 

On behalf of the ACLU, its 53 affiliates and half a million members, I urge you to mark up and move S. 717, the Akaka-SununuLeahy-Tester bill. That bill would replace REAL ID with sensible, 

cost-effective driver’s license standards. The problems with REAL 

ID would be fixed, and the standards could be achieved in a cooperative fashion with State officials, Federal Government agencies, 

and privacy and civil liberties experts. 

Thank you for the opportunity to testify this morning. 

[The prepared statement of Mr. Gilbert appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Mr. Gilbert describes the Vermont attitude. I know a couple of 

the people he referred to. I would consider them among our most 

conservative folks back home. But about the only thing I ever kept 

from the press written about me and actually framed was a sidebar 

to a profile in one of our major publications. And as I said, I live 

on a dirt road. This summer we will have had this old tree farm 

in the family for about 50 years, a great deal of acreage and fields 

that have to be hayed, and there is an adjoining farm family 

through successive generations who watch over the place. 

The whole thing went like this: It was a Saturday morning. A 

New York Times reporter in an out-of-State car sees a farmer sitting on the porch. He says, ‘‘Does Senator Leahy live up this road?’’ 

The farmer replied, ‘‘Are you a relative of his?’’ He said, ‘‘No.’’ 

‘‘Well, are you a friend of his?’’ ‘‘Well, not really.’’ ‘‘Is he expecting 

you?’’ ‘‘No.’’ ‘‘Never heard of him.’’

[Laughter.] 

Chairman LEAHY. That is the kind of attitude we have. 

Now, Jim Harper is the Director of Information Policy Studies at 

the Cato Institute. As Director of Information Policy Studies, he focuses on the unique problems of adapting law and policy to the 

8

problems of the Information Age. He is a member of the Department of Homeland Security’s Data Privacy and Integrity Advisory 

Committee. He is the editor of Privacilla.org, a web-based think 

tank devoted exclusively to privacy, and he maintains online Federal spending resource WashingtonWatch.com. He holds a J.D. 

from Hastings College of the Law. 

Mr. Harper, thank you for taking the time to be here today. 

STATEMENT OF JIM HARPER, DIRECTOR, INFORMATION 

POLICY STUDIES, THE CATO INSTITUTE, WASHINGTON, D.C. 

Mr. HARPER. Thank you, Mr. Chairman. Thank you for having 

this hearing, and thank you for having me here to testify on REAL 

ID. 

In my opinion, the REAL ID Act is a dead letter. All that remains is for Congress to declare it so. At this point, my understanding is that eight States will not implement REAL ID. That 

means that States that do will not even get the benefits alleged 

from REAL ID. States that implement it at this point will be 

throwing good money after bad. 

The proposed regulations issued by the Department of Homeland 

Security on March 9th, on which comments close today, help to reveal that REAL ID is a loser. It costs more to implement than it 

would add to our Nation’s security protections. 

In my written testimony, I have submitted a risk-based analysis 

of REAL ID, something DHS did not do, but I used DHS estimates 

to show that REAL ID’s returns, its security returns, at best are 

88 cents on the security dollar that we ask the States to spend on 

this. 

It is important to understand that an identity system does not 

apply a fixed identity to everyone. It causes our attackers, it causes 

opponents, to change their behavior, to engage in fraud, to avoid 

identity systems entirely. It is rather trivial, frankly, for a committed attacker of any kind to work around or to break an identity 

system like we are talking about in REAL ID. So the security benefits are not there. 

Because they are here to defend themselves, I will talk a little 

bit about the arguments made by proponents of REAL ID. I do so 

in the spirit of friendship, and I do not think anybody puts forward 

their arguments in bad faith. But the proponents of REAL ID essentially hew to two schools. 

One is the ‘‘just do it’’ school. It is a law. If we just spend a lot 

more money on it, we will have this thing, and we will get whatever we are supposed to get from it. In a paper issued last week, 

my colleague, Jim Carafano, said, ‘‘Identity is one of the cornerstones of a free society.’’ And I dropped my spoon into my Cheerios 

when I read that, because identity is also one of the cornerstones 

of a totalitarian society. The important question is who controls it, 

and I think it is much more important to decide whether Government should control identity or whether individuals in the United 

States should control identity. So I think it was an unthoughtful 

assertion in that case. 

It also caused me some regret to see that the Heritage Foundation is supporting the expenditure of $23 billion in a funded or unVerDate 0ct 09 2002 12:41 Aug 13, 2007 Jkt 037167 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37167.TXT SJUD1 PsN: CMORC
9

funded mandate on the States. It is an organization that I have an 

affinity for and a past affiliation with. 

The other school is the ‘‘do over’’ school: If we could just go back 

and do it over again, maybe we could have done something using 

REAL ID to stop the terrorists. I know I sound a little glib in calling this the ‘‘do over’’ school, and we would all like to be able to 

go back and change the outcome on that day. But the ‘‘do over’’ 

school, if we could just go back and do it again, is not serious security argumentation. We are trying to design systems to secure our 

country going forward in the future, and the ability to go back and 

change things so that everyone would like it we do not have. So 

we have to think in terms of identity systems and how future 

attackers would avoid them or break them. 

You have heard from Allen Gilbert the privacy and convenience 

and expenditure concerns that are shared throughout the country. 

The regulations issued by the Department of Homeland Security 

essentially punted on the most important technology, security, and 

privacy problems. Of utmost importance, in my opinion, the DHS 

proposal also lays the groundwork for systematic tracking of Americans, law—abiding Americans, based on their race. 

Though the Department of Homeland Security failed to fix it in 

the regs, I do not think this is the agency’s fault. And, again, people at DHS are working on these problems in good faith. Regulations cannot make this law work, and neither can delay. The real 

problem is the REAL ID law itself. 

As you mentioned, Mr. Chairman, there are meritorious bills 

pending in the Senate and House to repeal REAL ID and restore 

the identification security provisions that were passed in the 9/11 

Commission-inspired Intelligence Reform and Terrorism Prevention 

Act. Congratulations to you, Mr. Chairman, for being an original 

cosponsor of this legislation. 

These bills would be improved on the margin if they were to 

chart a path to Government use of emerging digital credentialing 

systems—systems that are diverse, competitive, and privacy protective. You can get security without surveillance. It is a couple generations down the road using very advanced technologies, but it is 

possible to do. We can have these identification and credentialing 

systems. Governments can be users of them. REAL ID is the ugly 

alternative to getting it right. 

Thank you very much. 

[The prepared statement of Mr. Harper appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you, and I could not help but 

think, in listening to your testimony on the costs, I could think of 

some ways we could spend that $22 billion that would actually improve our security. And I understand Dr. Carafano will disagree 

with me, although I must say that I consider it a privilege to have 

Dr. Carafano testify before us. He is the Assistant Director for the 

Kathryn and Shelby Cullom Davis Institute for International Studies and Senior Research Fellow at the Douglas and Sarah Allison 

Center for Foreign Policy Studies. Dr. Carafano is an accomplished 

and recognized historian and teacher. He is an assistant professor 

at the U.S. Military Academy at West Point. He also taught at 

Mount St. Mary College. He served as a fleet professor at the U.S. 

10

Naval War College. He is a visiting professor at the National Defense University, I would also note with pride, at Georgetown. He 

graduated from West Point, has a master’s degree and a doctorate 

from Georgetown, as well as a master’s degree in strategy from the 

U.S. Army War College. 

Doctor, as I mentioned to you privately, I appreciate you taking 

the time to be here, as you have every time we have asked you to 

come before this Committee. 

STATEMENT OF JAMES JAY CARAFANO, ASSISTANT DIRECTOR, KATHRYN AND SHELBY CULLOM DAVIS INSTITUTE FOR 

INTERNATIONAL STUDIES, AND SENIOR RESEARCH FELLOW, 

DOUGLAS AND SARAH ALLISON CENTER FOR FOREIGN POLICY STUDIES, HERITAGE FOUNDATION, WASHINGTON, D.C. 

Mr. CARAFANO. Thank you, Mr. Chairman. I appreciate this opportunity, and I have submitted a statement for the record. 

I just want to make three points very quickly: why this is an incredibly important issue, what are the options, and then what 

should be done. 

I do believe that identity is the cornerstone of a free society because we make a presumption in a free society that our citizens are 

acting lawfully and they should be left to go on their way. And we 

all know democracy works best in small communities because we 

have the trust and confidence of knowing each other. That is why 

Vermont is such an outstanding State. 

But we live in a large, diverse society, and a verified identity is 

critical to having that freedom of movement, and that is why criminals so assiduously go after these documents and try to undermine 

them. And that is why it is so important to retain the credibility 

of identity documents in a free society. So we have three options. 

One is we can do nothing. We can continue in the Wild West that 

we have had over the last decades where we have seen billions of 

dollars be lost every year to identity theft through fraud, theft, 

counterfeiting, and other types of criminal and malicious activities. 

The alternative is we can do a national ID. We could try to create a single document that everybody in the country has to have. 

I think that is a wildly impractical, a wildly unnecessary, and, 

quite frankly, a wildly unachievable goal. And I think it is a ridiculous notion to think that we want to take authority and power 

away from the States, that federalism is not the right solution to 

making this society safe, free, and prosperous. 

And the third alternative is we can do something reasonable, and 

I think what is implied by the REAL ID Act is something reasonable. It is voluntary programs for States that want to have their 

citizens have the privilege of presenting a credential for a Federal 

purpose. It is not a national identity card. It does not create new 

data bases. It does not give the Federal Government more information about our citizens than it has now. It does not put the Federal 

Government in charge of issuing or managing these programs. And 

it does not have to be an unfunded mandate and an unfair burden 

on the State. 

So what should we do? And just let me kind of briefly click off 

my to-do list. 

11

One is I do not think there is a legitimate constitutional issue 

here that needs to be adjudicated. 

Second is I do not think that there is any kind of congressional 

legislative remedy required to fix the law. 

Third is I think that rules can be fairly articulated and adjudicated under the system and that reasonable practices can be negotiated between the States and the Federal Government. 

Fourth is I certainly think that adequate privacy protections can 

be implemented in the system and to meet the national standards 

required under the REAL ID Act. 

And, fifth, I think we can fairly institute this system in a reasonable timeline. I think it is certainly appropriate that the Federal 

Government pay its fair share. I think it is a terrible idea that 

moneys to implement REAL ID come out of homeland security 

grants. It is simply robbing Peter to pay Paul. We have national 

requirements out there to raise our disaster and response preparedness systems in this country. If REAL ID is going to become 

a reality and a serious thing, it should have its own separate appropriations. And I think we should have a targeted strategy here. 

I think there are many States that are already virtually compliant 

with REAL ID, and I think we should focus our resources and our 

attention on the States that are closest to complying, also border 

States that want to use the REAL ID credential as a border-crossing card. Because I think once we have demonstrated the advantages of REAL ID, quite frankly, there will be a land rush for 

States to rush to implement this thing. 

We should be very clear, and I will just say this in conclusion. 

This is obviously not a panacea. There is no identity credentialing 

system in the universe that is going to provide you 100 percent security. Every identity system at some point is going to be undermined or compromised. It is not a silver-bullet solution to fraud, 

theft, or counterfeiting. But there obviously is some security value 

in having national standards to which credentials that are presented for a Federal purpose all meet. And I do think—and I would 

dispute the economic analysis. I do think at the end of the day the 

value of national standards, the economic benefits and the reduction in threat and common security threats justifies the costs, and 

I think, quite frankly, the implementation costs have been severely 

overinflated and are unrealistic. 

With that, Mr. Chairman, I thank you for the opportunity to be 

here today. 

[The prepared statement of Mr. Carafano appears as a submission for the record.] 

Chairman LEAHY. I would note that on the cost still it is an unfunded mandate to the States, and I think you would agree with 

that at this point. Yes or no? 

Mr. CARAFANO. Mr. Chairman, I would agree that at this point 

there is not a reasonable agreement between the States and the 

Federal Government as to what the Federal Government’s fair 

share is and how that should be implemented. So I do think that—

Chairman LEAHY. Well, no reasonable agreement insofar as the 

President has put zero in his budget for it. One would tend to think 

that, he being the decider, it is the position of the Federal Government that you are going to get zero. 

12

Mr. CARAFANO. I agree, and I think that is just flat wrong. There 

should be a separate appropriation to implement REAL ID, and the 

Federal Government should pay its fair share. 

Chairman LEAHY. We will go to Mr. Schneier in a second, but, 

you know, I worry. I see in the press today that Dulles Airport 

where I fly out almost every week to Vermont and go through the 

usual search—shoes off, belt off. I saw a woman who was berated 

for having a tiny little thing of hand purifier in her bag because 

she did not have it in a larger plastic bag, even though it was well 

within the amount, but she was berated for doing anything so foolish and threatening to the security of the United States. You see 

a 90-plus-year-old woman, having taken her shoes off, and then 

being told she can put them back on, and she explained she cannot 

put them on. The nurse usually does it at the home, and they say, 

‘‘Well, it is your problem.’’ On more than one occasion, I have gone 

over and put the shoes back on. I see TSA losing so much of our 

identity, and today in the paper they said you can buy for $100 a 

year some special ID to zip you through once you give them all 

kinds of background on yourself and fingerprints and everything 

else. 

I have no intention of buying one of those. I will stand in line, 

go through the same things that others do, because I cannot trust 

them to keep the information they get on me. DHS, which is a dysfunctional agency in many, many ways, at least some who are waiting for the recovery from Katrina a couple years later might say, 

‘‘Why should we trust you with it?’’ But I am going to give you 

plenty of time to answer that, and also, we will keep the record 

open for all the statements and also keep the record open, as you 

know, afterwards, if you have heard something somebody has said 

and you have not had a chance to respond to it, you will be given 

a chance for the record. 

Mr. Schneier is an American cryptographer, computer security 

specialist, and a writer. He is the author of several books on computer security and cryptography. He is the founding chief technology officer at BT Counterpane. He has a master’s degree in computer science from American University, a bachelor of science degree in physics from the University of Rochester. Before Counterpane, he worked at the United States Department of Defense and 

then AT&T Bell Labs. 

Mr. Schneier, thank you very much for taking the time to come 

here this morning. 

STATEMENT OF BRUCE SCHNEIER, FOUNDER AND CHIEF 

TECHNOLOGY OFFICER, BT COUNTERPANE, MINNEAPOLIS, 

MINNESOTA 

Mr. SCHNEIER. Thank you, Senator Leahy. I want to say that I 

am here as a security technologist and expert and not under the 

auspices of BT Counterpane. I have a statement from the Electronic Privacy Information Center for the rulemaking for the DHS, 

signed by 21 security experts. I would like to add that to the 

record. 

Chairman LEAHY. Without objection, it will be part of the record. 

Mr. SCHNEIER. My problem with REAL ID is it does not do what 

it claims to do. Most people think of ID cards basically as small, 

13

rectangular pieces of plastic that include our name and our picture. 

But an ID card is part of the very complex security system, and 

once you start looking at the entire system, you realize that REAL 

ID is much more complicated and much less secure and much less 

valuable than its proponents say. 

What really matters is not how it is used by the hundreds of millions of people who have it, but how it fails, how it can be abused 

by those who want to subvert it and want to get things that the 

ID should prevent. 

First off, REAL ID will be forged. Every ID card ever invented has been forged. The new $20 bill was forged even before it hit the 

streets. Money has a limit. You are not going to spend more than 

$20 to forge a $20 bill. A REAL ID card is an incredibly valuable 

piece of ID, so the value to forge it is much greater. And, paradoxically, by making a REAL ID, by making a single ID card, you increase the likelihood of forgery by making it more likely that the 

bad guys will spend more money to forge it. 

REAL ID has problems in the sign-up process. You can never 

produce an ID card that is more secure than the breeder documents needed to get one. So if you look at the ways you would get 

a REAL ID, if those documents are easier to forge than a REAL 

ID, people will do that. 

REAL ID will not prevent people from getting legitimate cards 

by bribing DMV clerks. This happens regularly. Some of the 9/11 

terrorists did that. A hard-to-forge REAL ID, more stringent standards to get one will not protect us from someone basically being 

bribed to erroneously issue one. 

But the biggest security risk is the data base. REAL ID requires 

a massive Government data base. DHS says that it is not one Government data base; it is 53 small ones. I think that is a red herring. Interconnected separate data bases are the same as one data 

base. You know this when you go on the Internet, when you look 

at Google. That is one data base. 

This is a grave security risk. Senator Leahy, you just mentioned 

that last week the TSA lost 100,000 identities—not of us—of TSA 

employees, and this demonstrates how difficult it is for us to secure 

data bases. This I think is a bigger deal than the press is making 

it out. The identities of sky marshals are on this list. I think there 

are some grave security concerns here. 

It was mentioned, I think by Mr. Gilbert, the problem of the 

identity requirements and address requirements for domestic abuse 

survivors. I think this is a big risk also for judges. My father is a 

judge in New York, and having his address on his ID is a security 

concern for him. 

REAL ID also increases the risk of identity theft. There is a lot 

of talk about how it will decrease the risk. It actually will increase 

the risk. 

First off, most identity theft is not based on people forging a 

piece of plastic. Identity theft is done electronically, and a single 

credential is a one-stop shop for identity thieves. We are more secure from identity thieves when we have multiple different credentials, when stealing one does not get you everything. The more 

things a single ID is used for, the greater at risk we are; the more 

value it is for someone to try to steal it and the more he can do 

14

with it once he steals it. And if you think it is no fun when some 

criminal impersonates you to your bank, wait until some terrorist 

impersonates you to the TSA. That is going to be so much less fun. 

Again, even if you can magically solve all these problems, even 

if you can make the ID work, REAL ID will not help us against 

terrorism. There is a myth in this country that if we could just 

identify people, we would know who they are, we know what they 

do. That is wrong. Identity does not map to intentionality. And if 

you want an idea of how identity-based security does not work, look 

at the no-fly list. The no-fly list is the one example of identitybased security that most of us come into contact with, and we know 

it does not work. It does not catch anybody, and it just harasses 

innocent people. 

I was on the Diane Rehm show a couple of years ago, and there 

was a DHS person and we were debating this. And he said, you 

know, ‘‘When you are sitting on a plane, you want to know the 

identity of the person sitting next to you.’’ And I said, ‘‘Well, that 

is not true. I want to know if he is going to blow up the aircraft. 

If he is not going to blow up the aircraft, I do not care who he is. 

And, honestly, if he is going to blow up the aircraft, I do not care 

who he is either.’’ It is not the identity. It is the intentionality. 

If you look at what we have done to help airport security, it is 

reinforcing the cockpit door, and it is teaching passengers how to 

fight back. It is not identifying who they are. So I think REAL ID is a waste. As a taxpayer, I think $23 billion 

is too much. 

Thank you. 

[The prepared statement of Mr. Schneier appears as a submission for the record.] 

Chairman LEAHY. Thank you. You were talking about TSA making mistakes. Normally, the most senior member of this Committee 

is Senator Kennedy, and he was stopped about nine or ten times 

getting on a flight he has been taking for 40 years back to Boston 

because he is on a no-fly list. 

Now, I have kidded Senator Kennedy about these Irish terrorists, 

they all look alike. 

[Laughter.] 

Chairman LEAHY. Dr. Carafano is chuckling because he knows of 

my Italian heritage. But, I mean, that is how ridiculous it is. He 

even had the President call him and apologize. He said, ‘‘Look, I 

do not want an apology. Just get me off the darn list.’’ We have 

had a year-old child have to get a passport to prove they are not 

a 40-year-old suspected terrorist. Catholic nuns. I have to be careful when I recount some of my days in Catholic grade schools and 

high schools about whether some of them probably qualified as terrorists, but I do not think that it would be fair to lump them into 

this terrorist thing. 

So, you know, you see mistakes being made there all the time. 

I do not feel any safer when I see Colin Powell in line in an airport 

and taking his shoes off and his belt off and being wanded and 

searched, especially when the person who is going to be cleaning 

the airplane while it is there is not getting anywhere near that 

kind of search, and the person who is alone in the airplane for 

about 20 minutes before you board and could put any kind of a 

15

bomb on board that plane does not get the kind of security that 

General Powell or former Vice President Mondale, former Vice 

President Quayle, former Vice President Gore, and others do. 

But I digress, and our next witness will be Janice Kephart. She 

is the President of 9/11 Security Solutions. She served as a counsel 

to the National Commission on Terrorist Attacks upon America, 

otherwise known as the 9/11 Commission. She is a key author of 

the 9/11 Commission staff report, ‘‘9/11 Terrorist Travel.’’ She continues to work with the Canadian Embassy, international organizations, and top administration officials in an effort to pursue the implementation recommendations sought by both the 9/11 Commission and born of her own work. 

Prior to her work on the Commission, she served as counsel to 

the Senate Judiciary Subcommittee on Terrorism, Technology, and 

Government Information, worked extremely hard on this Committee and knows the Committee well. And she is a graduate of 

Duke University and Villanova School of Law. 

Ms. Kephart, thank you for taking the time to be here. 

STATEMENT OF JANICE KEPHART, PRESIDENT, 9/11 SECURITY 

SOLUTIONS, LLC, ALEXANDRIA, VIRGINIA 

Ms. KEPHART. Thank you, Chairman Leahy. It is an honor to be 

before you as an alum of the Committee that prepared me so well 

for my work on the 9/11 Commission. I appreciate very much this 

Committee’s continued interest and effort in the 9/11 Commission 

recommendations, including the issue of identity document security 

that REAL ID addresses head-on. 

I am here in my own capacity today, but I would like to remind 

you that the 9/11 Commission gave high marks for passing REAL 

ID legislation, and former Commissioner and Secretary of the Navy 

John Lehman had an op-ed in this morning’s Washington Post in 

support of REAL ID. I am also happy to be one who speaks with 

the 70 percent of Americans who, in a very recent Zogby poll, are 

in favor of REAL ID driver’s licenses. 

To summarize where REAL ID stands today, every State DMV 

has taken at least a couple of steps toward REAL ID implementation. Forty-eight States and D.C. are checking Social Security numbers. Twenty check legal status. Three States are sharing vital 

events digitized records, and four 

more are about to come online. Alabama, New York, and Texas 

are considered innovators in REAL ID compliance. In addition, at 

least 23 State legislatures have bills supporting REAL ID in some 

manner. And there are passed bills in favor of REAL ID as well 

in States like Kansas and Michigan. 

The REAL ID law is based on the States’ own exceptionally detailed post 9/11 work in establishing best practices to fix the State 

driver’s license system that was known to generate neither secure 

IDs in content or production. 

The critical question of this hearing—Will REAL ID actually 

make us safer?—is absolutely the correct question to ask. And the 

answer, in my opinion, an unequivocal yes, by assuring greater national and economic security, public safety, and privacy. If REAL 

ID is implemented, individual Americans’ identities are less likely 

to be stolen, their children safer from underage drinking and drivVerDate 0ct 09 2002 12:41 Aug 13, 2007 Jkt 037167 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37167.TXT SJUD1 PsN: CMORC
16

ing, and as the Fraternal Order of Police has stated, a cop on the 

beat is more likely to know who is being encountered. 

Last Wednesday, Subcommittee Chairwoman Feinstein held an 

excellent hearing on terrorist travel in this room whose theme was 

that secure IDs are essential for assuring people are who they say 

they are at our borders. REAL ID helps us do this within our borders. By looking at all the ways yesterday, today, and in the future 

as to how terrorists, counterfeiters, and criminals do their work. 

The 9/11 hijackers, we need to remember, assimilated into the 

U.S. by attaining 17 driver’s licenses from Arizona, California, and 

Florida and 13 State-issued IDs, including the 7 they fraudulently 

acquired in Virginia. Like other criminals and terrorists, the 9/11 

hijackers then used those IDs for the purpose of renting cars, obtaining living quarters, and opening bank accounts. At least six hijackers total presented State-issued IDs on the morning of 9/11 to 

help look like Americans and board aircraft. The pilot who flew 

into the Pentagon had four IDs from four different States, and the 

Pennsylvania pilot had three IDs and an unverifiable ID when 

stopped for speeding 2 days prior to 9/11. The officer that stopped 

him needed an identity to associate with information, but he could 

not verify the ID, he could not verify the identity, and thus had no 

information to associate with it. 

The 9/11 final report terrorist travel recommendations called for 

‘‘setting standards for issuance of State IDs and designing a comprehensive screening system that sets common standards.’’ The 9/

11 Commissioners’ 2005 final report gave Congress a really good 

mark for passing REAL ID, but cautioned ‘‘States’ compliance 

needs to be closely monitored.’’

What has become unfortunate, in my opinion, is that myths and 

misinformation continue to abound about REAL ID, and let me address the most critical ones. 

First, REAL ID is not a mandate. It preserves States’ rights, letting States choose whether to comply or not. States are making 

that decision now. A mandate is a requirement, and REAL ID is 

not that. 

Chairman LEAHY. Ms. Kephart, I will give you added time for 

this. Would you add that if it says that you are not going to be able 

to go into Federal buildings, citizens of your State cannot go into 

Federal buildings or board airplanes without it, do you still feel 

that is not a mandate? 

Ms. KEPHART. It is not a mandate, sir, when you do not actually 

require the State to do it. 

Chairman LEAHY. You just cannot fly or go into Federal buildings. 

Ms. KEPHART. Well, what DHS has said is that they will just require—they will work with the States to provide another set of requirements. But DHS could answer that question. 

Chairman LEAHY. Which they have not done. 

Ms. KEPHART. I believe that will come out in the rules, sir. The 

ending date is today. 

Second, REAL ID does not create a national data base. It does 

actually just the opposite. It keeps data flows to defined fields of 

information regarding Social Security information, birth and drivVerDate 0ct 09 2002 12:41 Aug 13, 2007 Jkt 037167 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37167.TXT SJUD1 PsN: CMORC
17

ing records, and other checks, with only the originator of the data 

capable of holding it and keeping it. 

Third, REAL ID does not invade privacy. The current REAL ID 

Notice of Proposed Rulemaking makes recommendations for best 

practices States should employ to protect privacy, and they have 

put a lot of effort into that. These best practices are hefty. They 

build on the Commercial Driver’s License Information System and 

the National Driver Register—-data bases created in 1986 and 

serving 45 States. In 20 years of operations, there have been no 

complaints at all about intrusions on privacy or identity theft from 

either of those data bases. One reason why is the 1994 Driver’s Privacy Protection Act which protects driver data. Also worth mentioning is that the ITAA, the Information Technology Association 

of America, yesterday issued a report stating that REAL ID protects privacy beyond what exists now. They represent the folks who 

do this work for a living. 

Fourth, REAL ID does not create a national ID card. It avoids 

a national ID card. States use and control their own issuance processes, including meeting or exceeding REAL ID minimum standards. 

In conclusion, to make REAL ID a reality requires more than 

just the Federal Government or the States can do alone. It requires 

a partnership. It also requires recognition that securing U.S. physical and economic integrity is not just a Federal responsibility. It 

is everyone’s responsibility. Not implementing REAL ID simply 

keeps us right where we are, which is vulnerable. What we need 

now is to deal with what we have, make it work, and provide the 

real seed money necessary to help States comply with REAL ID. 

It is resolution of this issue that gets us closer to secure IDs sooner 

rather than perhaps never. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Kephart appears as a submission 

for the record.] 

Chairman LEAHY. Would you feel that he Federal Government 

should pick up the tab on this? 

Ms. KEPHART. The Federal Government needs to do its share, sir, 

absolutely. 

Chairman LEAHY. And what is its share? 

Ms. KEPHART. Its share is the seed money to get the States started. 

Chairman LEAHY. What is seed money-–5 percent, 2 percent of 

the total—

Ms. KEPHART. Sir, I am not an economist to figure that out, but 

it is whatever the combination of DHS and OMB says the States 

need to get started. States have to maintain their own DMVs anyway, so what REAL ID needs to do is help them do what they—

beyond what they would do anyway for achieving best practices to 

what REAL ID requires. And whatever that difference is is what 

the Federal Government should supply. 

Chairman LEAHY. What State do you live in? 

Ms. KEPHART. I am from Pennsylvania originally. I live in Virginia now. 

Chairman LEAHY. Good luck when you are standing in line. 

Ms. KEPHART. I would be happy to for my country, sir. 

18

Chairman LEAHY. All of us would, if it really made our country 

safer, just as I am sure I would feel that we were doing a great 

deal for the country when we watch former Vice Presidents and 

former Secretaries of State and former Chairmen of the Joint 

Chiefs of Staff having to take their shoes off and everything else, 

knowing that that is making us safer. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman, very much for 

your great courtesy in letting me go ahead of you in the questions, 

and thanks to all the witnesses for their testimony on this important topic. 

Mr. Harper and Mr. Gilbert, there has been a lot of discussion 

about the immense cost to State DMVs of implementing the REAL 

ID Act, but I have heard less about the burden on other types of 

record keepers which will be expected to verify identity documents 

as a part of the driver’s license issuance process. Take birth certificates, which for most Americans who do not have passports are 

going to be the only proof of identity they can provide under the 

DHS regulations. 

Birth certificates are issued by any of a number of local and 

State entities, and many birth certificate records are not electronic. 

Yet somehow all the State DMVs are going to have to verify with 

the issuing entity every birth certificate that is presented as proof 

of identity. I know this is going to be an issue in Wisconsin, where 

it is apparently going to cost approximately $25 million to digitize 

and match all the birth, marriage, and death records in the State. 

Can you expand on what vital records offices are going to need 

to do in order to comply with REAL ID and what sort of costs they 

can be expected to incur? And can you comment on whether this 

is a good idea to begin with? Mr. Gilbert? 

Mr. GILBERT. Senator, Vermont has no vital records office in the 

sense that most States do. Birth certificates are kept in town 

clerks’ offices, which are literally sometimes part of a person’s 

home. So there often is not even security for these kinds of documents, and the authenticity of a birth certificate, I have been told, 

from Vermont is being questioned by more and more States because of the lack of security. But that is the way it has been done 

in Vermont for many, many years. 

One of my sons was born in Vermont, and his birth certificate 

is kept by the town clerk of Berlin, Vermont. That is where the 

hospital where he was born is located. My other son was born in 

Germany. His birth certificate is on file with the U.S. Department 

of State. And for us to get a copy of his birth certificate, or for him 

to get a copy of it, I think he has to make application and wait—

I do not know how long—until he gets a copy of the birth certificate. 

But those are two examples of procedures that I think are going 

to be difficult for some people to be able to carry through on when 

they go to a DMV, and then the DMV is going to have to certify 

that the birth certificate from the Berlin, Vermont, town clerk’s office as well as the U.S. Department of State birth certificate are 

accurate. That is going to require a lot of verification. 

Senator FEINGOLD. Mr. Harper? 

19

Mr. HARPER. Well, it is a foresighted question that I do not think 

has a good answer yet, because the local public records offices have 

yet to really get together and figure out what this problem is. The 

first wave of debate about REAL ID has been when State legislators recognized the cost to them of doing this. The next wave comes 

when the local offices, like Mr. Gilbert talked about, are asked to 

digitize or put online records that they have kept in drawers in 

their basements and hidden away. 

In addition to the costs of doing that, the huge logistical problems with doing that, there are the security concerns with doing 

that. It is quite secure and quite private to have a paper document 

in a remote office somewhere. It is inefficient, but that inefficiency 

gives you security. 

When these documents are scanned, when they are put online, 

when the scanned images and the information from them are in 

data bases, that is much more efficient, but it is much less secure. 

And I think people have yet to think about that dimension of the 

problem. 

It is rather easy to put forward a pilot program and say, well, 

this pilot has suffered no breaches, there have been no complaints 

about this pilot program. The commercial driver’s license system is 

an example where there are approximately 13 million commercial 

driver’s licenses out there in the system. There is a difference in 

kind, not degree, from going to 13 million to going to 250 million, 

which include not just truck drivers but Senators, judges, officials 

of all kinds, and, for that matter, Paris Hilton. That is a system 

that is not secure the way a small system dealing with a relatively 

different class of people would be. 

I have a shoebox in my apartment with business cards in it. It 

has never been breached. But if I put gold in it, it might be 

breached, and that is the kind of difference we are talking about. 

Senator FEINGOLD. In that vein, REAL ID appears to be on its 

face simply a new system for issuing identification cards and driver’s licenses. But I, too, am concerned that REAL ID will ultimately 

create a system used for a variety of other purposes that many people would find troubling, such as tracking Americans’ movements 

and activities. And I see nothing in the proposed regulations limiting this type of use of the REAL ID cards and associated data 

bases. Am I right to be concerned about that? And what other potential consequences might arise? Mr. Harper? 

Mr. HARPER. I do serve on the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee. We had a 

meeting recently where Ann Collins, the Registrar of Motor Vehicles from the State of Massachusetts, spoke, and she said, ‘‘If you 

build it, they will come.’’ What she meant by that is that if you 

compile deep data bases of information about every driver, uses for 

it will be found. The Department of Homeland Security will find 

uses for it. Every agency that wants to control, manipulate, and affect people’s lives will say, ‘‘There is our easiest place to go. That 

is our path of least resistance.’’

So mission creep is the quick summary to this problem. If you 

build it, they will come. So I think it is very important to keep that 

in mind. 

20

I will note, by the way, that the Department of Homeland Security’s Privacy Committee is submitting comments to the DHS in its 

rulemaking, and the most important part of it to me—I think they 

took great care to offer helpful, constructive comments—but the 

most important part is at the outset the DHS Privacy Committee 

declined to endorse REAL ID as being an effective or appropriate 

program to put in place. 

Senator FEINGOLD. Mr. Schneier, I understand that there have 

been numerous incidents in recent years of DMVs being broken 

into or DMV employees taking bribes to issue fraudulent licenses. 

Do those kinds of incidents remain a problem? And what do they 

suggest about the success of the REAL ID Act in securing driver’s 

licenses? 

Mr. SCHNEIER. Well, what it says is that secure identity systems 

are much more complicated than REAL ID, and certainly when you 

look at the system, you have to look at the mechanisms to get the 

card, what happens when you lose a card. And, you know, it is the 

breeder documents. You talk about the expense and convenience, 

but it is also the security. That would look at the ethics and how 

well trusted the people who issue the licenses are. You also have 

to look at the verification procedures. We were talking about the 

data bases and who has access to them. You do not have to worry 

about the data base itself, which should be accessible from police 

cars, airline check-in stations, schools, from wherever it is being 

used. Also, you have to think about the shadow data bases. Whenever you build a credential like this that is so valuable and so useful, there will be a shadow data base collected by the data brokers, 

that when you present your card at a hotel or at a bar, it will be 

scanned, and that data will go in the shadow data bases. Suddenly, 

what starts out as a simple data base becomes even bigger. 

So, yes, I would worry about not only the clerks issuing them, 

I would worry about the clerks who are putting those birth certificates online. If it is cheaper to bribe them than it is to bribe a 

DMV clerk, you are going to do that. 

If you want to subvert the system, you have to look at the weakest link, and just REAL ID is so incredibly complicated. There are 

so many links. 

I put a diagram in my written testimony, which unfortunately I 

could not really put up on a screen, to try to lay out all the different ways there are security vulnerabilities in the system. And I 

think it is much more complicated than really a lot of people are 

thinking. 

Senator FEINGOLD. OK. Mr. Gilbert and Mr. Schneier, identity 

theft is obviously a growing problem. Many people are concerned 

about the many recent security breaches of private and Government data bases containing sensitive personal information. 

Wouldn’t the information gathered as part of REAL ID implementation also be vulnerable to these types of breaches? Mr. Gilbert? 

Mr. GILBERT. This has been a big concern to people in Vermont 

because there has been a series of data breaches of Government 

data bases in our State just this past winter, and there were some 

legislative hearings held on this. Our Department of Motor Vehicles commissioner was asked the same question in testimony before 

one of the legislative committees, and she acknowledged that there 

21

are over—there are several hundred attacks daily on their data 

base trying to get at the information in the DMV system. 

She feels that their system is secure, but I think what Mr. 

Schneier is pointing out is true, that when you up the ante of the 

value of the information, the people who want that information are 

going to try harder and harder and do more and more to try and 

get at it. And I have become convinced that building a secure system is just very, very difficult, that there has got to be another way 

to do this. And I do not think we have found that quite yet. 

Senator FEINGOLD. Mr. Schneier? 

Mr. SCHNEIER. Mr. Harper has already said that there is security 

in keeping records offline, that there is inherent security of making 

them hard to get to. They are hard to look at, and they are hard 

to change. 

Putting records online as part of REAL ID I think will make us 

less secure against identity theft because now data is more accessible, and it is also easier for someone to change. 

In a lot of ways, REAL ID does not affect identity theft because 

identity theft is not based on a piece of plastic. It is based on electronically impersonating you via a website to a bank. What it does 

affect is it centralized credentials, and we are safer because an 

identity thief can go after only one thing—one bank account, one 

broker age account—and attacking one does not get you the other. 

And if REAL ID moves to its logical conclusion, where it becomes 

the single ID used for all sorts of things, if you read the DHS rulemaking, that is what they are looking for. Then we are at increased 

risk of identity theft because now there is one document that can 

be stolen, which is the keys to everything. 

It is really paradoxical. We are more secure from criminals 

through distributed identity. The fact that you could open up your 

wallet and you have a dozen different cards and each one does one 

thing and not just one card, that is what makes us safer. 

Senator FEINGOLD. Thank you for your answers. I have to leave 

now, so I am just going to very briefly recess—I do not need to. The 

Chairman arrives. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Speaking of Vermont, we had a group of 

Vermonters who stopped by, and I stepped out for a moment for 

that. 

Mr. Gilbert, let us start with you. I have expressed—and I understand and I appreciate Dr. Carafano’s and Ms. Kephart’s views to 

the contrary, but I am concerned about the Federal Government 

basically taking over State DMVs. In fact, we have to protect our 

personal information. We also have to have national security. I am 

not sure they have to be exclusive by any means. 

We know from what we have seen that had there been better use 

of the information we had, 9/11 could have been avoided. But I 

worry that the steps, those things that could make us vulnerable, 

are steps that are not being taken. 

When you talk to other Vermonters about this, from your testimony—and I know you refer to the construction business. I know 

the others you are talking about. You have gone through a crosssection of Republicans, Democrats, across the political spectrum. Is 

there any one aspect more than others that people object to? 

22

Mr. GILBERT. I think it is the privacy aspect that people are most 

concerned about. The money aspect is important to a legislator who 

is trying to find a couple million dollars to fix a bridge in his or 

her town. But I think the privacy aspect is something that just 

simply rankles Vermonters. And I think it rankles people in many 

other States around the country. There have been numerous resolutions and some binding legislation passed opposing REAL ID, 

and a good deal of that is based on a sense that REAL ID is going 

to violate privacy in a way that is not going to give us the security 

that has been promised. 

And I think when people look at that kind of equation, they say 

it is simply not the way to go; we need another way to get at this 

problem of standards for driver’s licenses. 

Chairman LEAHY. You know, it is interesting on privacy. I have 

always had a listed home phone number. I had it when I was a 

prosecutor. I have it now. Most people will not call me at home. 

They figure that if I get a chance to be at home with my family, 

they are going to give me privacy, and it is kind of the way we are. 

But I worry more than just kind of the feelings we have in our 

State. I also worry that the information given can get lost. We have 

seen the VA in a colossal act of incompetence lose material with 

our personal information, the Department of Agriculture do the 

same thing. TSA has had material with backgrounds on people stolen out of their headquarters. Most recently, the Department of Agriculture posted people’s Social Security numbers online. It has 

been almost mind-boggling, the data losses in this administration. 

But a lot of big companies have done it, too. T.J. Maxx is an example. We had one major bank who just simply shipped by commercial airline all of the personal information of their customers to go 

off to a storage thing, and it got lost. They cannot find where it 

went. 

Now, I assume that their executives probably fly in private 

planes, and they are not used to having luggage lost. Any one of 

us who flies commercially, as I do and you do, knows that that actually happens. And it got lost, and they said, ‘‘Oops, sorry.’’

Let me ask also, you mentioned domestic violence groups. Tell 

me why the concern there. 

Mr. GILBERT. The concern is that the victim of domestic sexual 

violence often wants to protect her residence, her identity in the 

sense of where she lives. She has a fear of physical attack. And 

Vermont is one of, I think it is about 20 States that currently offers 

a program where victims can use a post office box that actually is 

run by our Secretary of State’s office, and mail, for example, 

can be delivered there, and the person can pick her mail up that 

way. 

One of the problems with even the Department of Homeland Security’s recognition of this problem is they have a fix in place for 

States like Vermont that already have a program, but for all the 

other States that do not have a program, it is not clear how identity could be protected in this way. And the victim advocates that 

I talk to in Vermont are really concerned about this. 

Chairman LEAHY. Thank you. Let me ask this—Dr. Carafano? 

Mr. CARAFANO. Sir, I think it is a perfect example of a fixable 

problem, why the rulemaking process is so important. Of course, 

23

the easiest fix on this is for someone that has been a victim of domestic violence abuse or a judge or a Federal prosecutor or anyone 

that does not want their legal residence on the front face of their 

identity credential is to have a post office box. And I think that 

within the rulemaking process, that is an easy fix. 

The law enforcement community does not need to see your address on the front of your identity credential. What they want to 

know is that you are you, that is primarily your full legal name, 

your date of birth, and your driver’s license number. If they need 

to get your legal address, they can obtain that from other means. 

So I do think that this is one that is not a show stopper in any 

way, shape, or form. It is an absolutely totally legitimate concern 

that can be addressed intelligently through the rulemaking process. 

Chairman LEAHY. Well, I do note that I have a listed home 

phone number, both here in the Washington area and in Vermont, 

and it does not have a street address on it. 

Mr. CARAFANO. And I do not think there is anything in REAL ID 

that should preclude people from wishing to have their post office 

box on the front of their credential. 

Chairman LEAHY. I do not want my post office box on there. 

After all, I received one of the two deadly anthrax letters that I 

was supposed to open. It was sent to me. It was so deadly that two 

people who touched the outside of the envelope I was supposed to 

open died. I am not too eager to have my post office box there, 

which I do have. I get all my mail in a post office box. I am not 

too eager to have that known. 

Mr. CARAFANO. There is no way it precludes somebody from getting your address and mailing you an evil thing, so that—

Chairman LEAHY. Nothing gets mailed to my home. Ever since 

they tried to kill me with a letter, it goes through a specialized 

screening area. 

Let me ask you this, and I am going to ask this of each one of 

you. The Washington Post ran an editorial this morning by former 

Navy Secretary John Lehman supporting the law. Mr. Lehman argued that the REAL ID law will not result in a Federal data base. 

A simple question of each of you: Do you agree with that? 

Mr. GILBERT. I do not agree with that for the same reason when 

I go online and type in something in Google, I am essentially tapping into one integrated data base made up of thousands of other 

data bases around the world. 

Chairman LEAHY. Mr. Harper? 

Mr. HARPER. I do not agree with that. 

Chairman LEAHY. Dr. Carafano? 

Mr. CARAFANO. I absolutely agree with that. There is a significant distinction between a single centralized data base that does 

not have any firewalls, any intrusion protections, any kind of protocols, and integrated data bases where you can put in firewalls, you 

can put in intrusion detection devices, you can set up screening and 

all kinds of protocols to make sure of that. That is what we do 

with—because we live in a world of integrated data bases. If your 

argument is let us not have any integrated data bases because that 

is an unacceptable privacy concern, then this economy and this society is simply going to cease to function. It is a distinction with 

a significant difference. 

24

Chairman LEAHY. So you agree this will not result in a Federal 

data base. 

Mr. CARAFANO. This simply does not create a new national data 

base. Absolutely. There is no question about that. 

Chairman LEAHY. Mr. Schneier? 

Mr. SCHNEIER. I think it is a semantic dodge. There are lots of 

single data bases that have firewalls and IDSs. There are lots of 

single data bases that look like distributed data bases. There are 

distributed data bases that look like single data bases. How you 

implement it and how it is presented are completely orthogonal. 

This will result in a large Government data base, Federal or State. 

It will be accessed by both, so I am not convinced that is a difference that makes a difference. 

What it does is it makes a single—it is a one-stop shop for the 

data, and that is what is important. And who writes the check I 

think is secondary, and exactly how the computer scientists build 

the computers and the networks is also secondary. 

Chairman LEAHY. Ms. Kephart? 

Ms. KEPHART. Well, I think it is a slam dunk, probably, what I 

will answer on that. Of course, I agree with former 9/11 Commissioner Lehman. In my testimony I have a chart. It is part of a 

paper that I released in April, and that chart shows the differentiated data bases that are checked. 

Chairman LEAHY. So you agree that this would not be—

Ms. KEPHART. This is not a Federal—

Chairman LEAHY. This would not result in—

Ms. KEPHART.—data base. The data—

Chairman LEAHY.—a Federal data base. That—

Ms. KEPHART. OK. The data goes through—

Chairman LEAHY. That is a question—let me ask this next question. He asserts that the law is an unfunded mandate and that 

Congress should step up and fully fund the real costs that this essential program will impose on the States. Now, that is assuming 

that we do not change the program and it goes through as it was 

slipped into this appropriations bill. 

I am going to ask each one of you: Do you agree with Mr. Lehman’s assertion that this is an unfunded mandate and that Congress should step up and fully fund the real costs that this essential program imposes on the States? Mr. Gilbert? 

Mr. GILBERT. I do not think Congress should fund any program 

that in the end is not going to be able to accomplish what the program is intended to do. If we could come up with a different program where we had cooperation with State and Federal officials, 

there was a chance for civil liberties and privacy experts to be involved, then I think it would be appropriate for the Federal Government to help the States pay for this. 

Chairman LEAHY. Mr. Harper? 

Mr. HARPER. It is an unfunded mandate, and it should not be 

funded because it should not be implemented. 

Mr. CARAFANO. I do believe Congress should pay its fair share of 

implementation of the system. I think people in States have a 

right—many of these States have antiquated systems which are 

providing no protections. We talked a lot about commercial data. 

There is more data on us in the commercial sector than the GovVerDate 0ct 09 2002 12:41 Aug 13, 2007 Jkt 037167 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37167.TXT SJUD1 PsN: CMORC
25

ernment has, and there are many best practices and excellent practices in the commercial sector to safeguard data, and the notion 

that we should expect—not hold our Government up to at least the 

standards of best practices in the commercial sector is just wrong. 

Chairman LEAHY. Did T.J. Maxx follow those best practices? 

Mr. CARAFANO. Again, sir, I did not say everybody in the commercial sector, but there are best practices out there that are in the 

commercial sector that are protecting data, and the notion that we 

should give our Governments a bye and not then at least safeguard 

our data as good as the people in the commercial sector is simply 

wrong. 

Chairman LEAHY. Did the United States Department of Veterans 

Affairs follow that best practice? 

Mr. CARAFANO. Again, sir, we should expect Government to do 

the right thing, and we should expect value for service. I mean, I 

think—I do not think—

Chairman LEAHY. We expected the Government to respond to 

Katrina and—

Mr. CARAFANO. I do not think that is a unreasonable requirement to expect our Government to do what the commercial sector 

can do in legitimately protecting data if they do the right thing. I 

mean, this is ridiculous to think—

Chairman LEAHY. Yes, I—

Mr. CARAFANO.—that we should have State that should be allowed—

Chairman LEAHY. I agree with—

Mr. CARAFANO.—to have 19th century systems that make their 

citizens incredibly vulnerable and that they do not provide a minimum level of protection. I think that is unreasonable. I think it 

is unconscionable. 

Chairman LEAHY. I was not aware that in the 19th century we 

were issuing too many driver’s licenses. But, Dr. Carafano, you 

know, we expect them to do that. But until they can prove they can 

do it, that worries me. When they—

Mr. CARAFANO. And—

Chairman LEAHY. May I finish, please? 

Mr. CARAFANO. Yes, sir. 

Chairman LEAHY. If it is OK with you. If the Department of Agriculture posts online people’s Social Security numbers, sure, we 

can say we expect that it is part of the administration—the administration is strong on security, applaud them for saying the right 

things. But when they start releasing that online, that is not doing 

the right thing. When you cannot even secure computers inside 

TSA, it kind of makes you wonder. That is what I am saying. 

We may well agree if we are going to have this, of course, there 

should be best practices. You and I agree on that. But so far, this 

administration, just like a lot of our major corporations and banks, 

has not demonstrated the best practices. We know it is best practices to be able to set up ATM machines where they cannot steal 

your ID. They are showing on television how easy it is because they 

have not set up such best practices to prevent the theft of your 

identification at ATM machines. 

Mr. CARAFANO. Senator, every one of the criticisms that was 

mentioned here today exists in the systems as they currently exist 

26

today. So if we do nothing, all the vulnerabilities that were mentioned here still exist there and persist. The notion is that if we 

do not create national standards, if we do not demand more from 

our Governments, they are never going to perform that. And I just 

think it is—the notion that somehow we are going to make 

progress by saying do nothing I think is just—it just does not make 

any sense. And that is why—

Chairman LEAHY. Just so we do not—

Mr. CARAFANO.—I think it is important for the Federal Government to pay its fair share to do the right thing. 

Chairman LEAHY. OK. Just so we do not forget my yes-or-no 

question 15 minutes ago, Mr. Schneier, do you agree with Mr. Lehman’s assertion that this is an unfunded mandate and that Congress should step up and fully fund the real costs? 

Mr. SCHNEIER. I definitely think this an unfunded mandate. As 

a taxpayer, though, I do not want you to step up and pay the real 

costs because I am not getting the real benefit. 

Now, I think you have been a little unfair to T.J. Maxx and the 

VA and the DHS because those are the ones that have made the 

news recently, but these breaches happen every single day. 

Chairman LEAHY. Oh, I understand that, and in mentioning that, 

I just mention that because I think people understand, having seen 

it, that breaches happen every day, absolutely. 

Mr. SCHNEIER. But the lesson in that is that this is hard to do. 

I mean, we can talk about best practices, but in reality, it is very, 

very hard to keep this data secure. And when you look at the system, the problem is not how do we make the IDs better, but the 

problem is we are relying on ID-based security. 

There was a notion in the beginning, privacy versus security. 

That is a false dichotomy. It is not a matter of identity. We need 

to get security. And you think of a door lock or a burglar alarm or 

a tall wall or a reinforced cockpit door. There are lot of security 

measures that have nothing to do with privacy. 

Chairman LEAHY. Well, but DHS and the other supporters of 

REAL ID keep saying that we must do all we can to protect ourselves and cost is no object. I would point out the Oklahoma City 

bomber had a valid driver’s license. Nothing would have—if he had 

been stopped while he was driving that truckload of explosive in 

a routine check, he had a valid driver’s license. The 9/11 hijackers 

had valid State driver’s licenses. 

Now, the REAL ID costs, I think DHS is the one that came up 

with the $23 billion cost estimate in its draft regulations. They also 

said they have to update their security standards in 3 to 5 years, 

adding billions more in administrative costs. 

Are we in a ‘‘security at any cost’’ situation? 

Mr. SCHNEIER. Clearly we are not. Security is always a tradeoff. 

Of course, there are always things we can do more. The question 

is: What has the value? 

Chairman LEAHY. Ms. Kephart? 

Ms. KEPHART. Well, I have to answer the 9/11 hijacker statement. The 9/11 hijackers had valid driver’s licenses and IDs that 

at least seven of them obtained fraudulently. So the rest of that 

sentence needs to be there. Also, the REAL ID—

27

Chairman LEAHY. Well, thank you for telling me what I should 

say, Ms. Kephart. That is an amazing help, and I cannot thank you 

enough because I do not have the experience that you have after 

32 years here in the Senate dealing with these matters. But let me 

add to this. They also could have not had to have any kind of an 

ID like that, and they had a passport. Is that correct? 

Ms. KEPHART. They had passports that had much fraud in them 

as well. That was not detected. 

Chairman LEAHY. And that is my point. We have a lot of people 

who come to this country that have passports, we look at them, and 

they appear totally valid on their face. You know and I know that 

both of us could within a matter of hours get passports that could 

pass scrutiny, and they would be fake passports—the point being 

if you are going to just rely on what ID you want, you can get fake 

IDs. Am I correct? 

Ms. KEPHART. Absolutely you are correct—

Chairman LEAHY. Could you go to—

Ms. KEPHART.—and REAL ID is set out to address that based on 

the States’ own best practices that they set out in a security document framework in AAMVA. And that is the basis of the REAL ID 

language. 

To answer your original question—

Chairman LEAHY. What in the REAL ID Act is superior to the 

driver’s license provisions in the 2004 Intelligence Reform Act, 

which was passed after actual negotiation and discussion in a bipartisan way? What is superior in this to the driver’s license provisions of the 2004 Intelligence Reform Act? 

Ms. KEPHART. It sets out a more detailed set of language that is 

based on the 13 task force work that was done in AAMVA through 

the States, and it specifically draws on language that had been 

done by the States on their own. So it is more specifically geared 

to what the States wanted to begin with. 

Chairman LEAHY. Does it bother you at all that this was passed 

with absolutely no input, debate, or anything else, just added in? 

Ms. KEPHART. Sir, I would have always appreciated that my old 

Committee that it had gone through, but from what I understand, 

when Tom Davis drafted this and it went through Mr. Sensenbrenner’s Committee, REAL ID was actually put on as a rider to 

get more votes because at the time it was very popular. 

Of course, the Senate should have had a chance to view it—

Chairman LEAHY. Would you—

Ms. KEPHART.—but that is kind of water under the bridge now—

Chairman LEAHY. Do you think this is what—

Ms. KEPHART.—and we are dealing with—

Chairman LEAHY. No, it is not water under the bridge. I mean, 

you have the Nation’s Governors, Republicans and Democrats, who 

are saying they want to have a voice in this. Should they just be 

ignored? 

Ms. KEPHART. They have a voice—

Chairman LEAHY. Or is this a case—

Ms. KEPHART.—in the proposed rules, sir. 

Chairman LEAHY. Is this a case where the Federal Government 

knows better than the States? 

Ms. KEPHART. Absolutely not, which is why—

28

Chairman LEAHY. Thank you. 

Ms. KEPHART.—the comment period has been what it is. Thank 

you. 

Chairman LEAHY. Thank you. 

I have other questions concerning what happens if these IDs are 

lost or stolen, whether they should be an acceptable credential for 

coming in from Canada. We are now talking about requiring passports to come in from Canada, an interesting thought when you 

have the largest unguarded frontier in the world. It will actually 

cut down very substantially the amount of traffic and commerce between two great nations. Any of us who live within a few miles of 

the U.S.-Canadian border know this will not stop somebody who 

wants to get across. And if you think it is easy in the eastern part 

of our country, go out in the western part. As somebody pointed out 

at one of the border crossings, one in the western part, the security 

is an orange cone sitting in the middle of the road. 

So do we look for substantive changes or do we accept what Ms. 

Kephart seems to be saying, that we have comment time and basically—and I do not want to put words in your mouth, Ms. Kephart, 

nor to finish your sentences for you, because I think now how offensive I would find that. But is this a case where we should just let 

DHS go forward with this? Or should we be seeking legislative 

changes? 

Ms. KEPHART. Sir, I think the appropriate thing to do at this 

point, because a lot of time, effort, and money has been put into 

the proposed rules—the comment period ends today—is to see 

where those comments are. I am sure that the States and many 

others, including the folks at this table, have issued incredibly 

helpful comments to DHS. They have taken the privacy aspect of 

this very seriously. And I think as the comments come in, at the 

end of that period when it is reviewed and they issue their final 

rules, I think then is the appropriate time to decide whether to go 

back to the Intel Reform Act language or to proceed with REAL ID. 

But I think it is premature at this point, sir. 

Chairman LEAHY. Thank you. 

Mr. Schneier? 

Mr. SCHNEIER. I think that DHS has showed very little respect 

for the States and the people here. The comments are due today 

on the draft regulations. DHS has testified that we will get the 

final regulations by August or September. It is just not possible for 

DHS to read, review, and consider the thousands of comments they 

are getting, which tells me they do not intend to make any changes 

at all. 

If I could add one thing about the orange cone, I think the orange cone is a very good analogy to what we are trying to do here. 

That orange cone works if the Canadian drives right into and fails 

if he drives around it. And that is what we are doing here with 

REAL ID. Yes, if the bad guys do the exact thing we want them 

not to do that the REAL ID will prevent, we will prevent bad 

things from happening. But it is so easy for the bad guys to drive 

around it. 

Chairman LEAHY. Dr. Carafano? 

Mr. CARAFANO. Mr. Chairman, I think there is a bigger problem 

for the Committee to focus on, and this is, I think, an incredibly 

29

unrealistic requirement in draft legislation for 100 percent electronic verification on everyone in the United States before they get 

a job. To me, that is truly a national system, unworkable, 

unachievable, impractical, and that is a much, much bigger drag on 

our economy and a much, much bigger threat to our privacies and 

to this country as a whole than REAL ID. 

Chairman LEAHY. Mr. Harper? 

Mr. HARPER. You have a range of options open to you, of course. 

Restoring the 9/11 Commission-inspired identity security provisions 

in the Intelligence Reform and Terrorism Prevention Act is one. I 

think just as important, part of what you started here, is to have 

a national discussion on whether identity-based security gets you 

anything. I think that is most important. It is my opinion that it 

gets you very little. 

There are going to be identification systems going forward, and 

we should talk about the kinds of systems that can get you maximal security within that area without the surveillance. We are nowhere near that with REAL ID. We are going in the wrong direction. But there are systems we can put together that will solve 

these problems to the extent they can be solved. Direct security 

like Bruce Schneier talked about: cockpit doors, tall walls, That is 

real security. It does not rely on identity, and it does not have any 

privacy consequences at all. 

Chairman LEAHY. Mr. Gilbert? 

Mr. GILBERT. If we do anything, I think we should go back to 

where we were in 2004 when the Intelligence Reform and Terrorism Prevention Act was being discussed. The ACLU and other 

groups were involved in the rulemaking. There was cooperation. 

There was discussion among officials on the State level and the 

Federal level, and then that sort of all got derailed with the REAL 

ID Act. And now we are sort of 2 years further along, and I think 

we might be further behind. 

But I want to underline what Mr. Harper just said. We in this 

country have really got to at some point face up to the fact that 

some things we think are making us safer and more secure might 

be having the opposite effect, and some things that we could be 

doing we are simply not doing because we are going for the jazzy 

things that sound as though they might be making us safer, and 

I am afraid they are really not. And I really worry that we as a 

country do not seem to have a level of awareness of the intrusion 

of electronic data and aggregated data bases in our lives. 

Chairman LEAHY. Thank you very much. With that, all of you 

feel free, if you did not think you had enough time to answer any 

question, of course, I will provide room in the transcript to note 

that you wanted to add to that. Or if you find that you wanted to 

correct something, we will have room for that, and also questions 

or statements from other Senators. I think this is an extremely important issue. We want to be secure, but we also want our privacy. 

One of the great things about democracy is that you can usually 

guarantee both security and privacy. And in this debate it has become almost a cliche, but to make reference to—and I will paraphrase—what Benjamin Franklin said about those who would give 

up their liberties for some security: You usually end up with neither. 

30

Thank you. 

[Whereupon, at 11:46 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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