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34–415 PDF 2008

S. Hrg. 110–291

UNDERSTANDING THE REALITIES OF REAL ID:

A REVIEW OF EFFORTS TO SECURE DRIVERS’

LICENSES AND IDENTIFICATION CARDS

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE, AND THE 

DISTRICT OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MARCH 26, 2007

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

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

JOHN E. SUNUNU, New Hampshire

MICHAEL L. ALEXANDER, Staff Director 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

DANIEL K. AKAKA, Hawaii, Chairman 

CARL LEVIN, Michigan 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

GEORGE V. VOINOVICH, Ohio 

TED STEVENS, Alaska 

TOM COBURN, Oklahoma 

JOHN WARNER, Virginia

RICHARD J. KESSLER, Staff Director 

JENNIFER TYREE, Chief Counsel 

JENNIFER A. HEMINGWAY, Minority Staff Director 

DAVID COLE, Minority Professional Staff Member 

EMILY MARTHALER, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Akaka .................................................................................................. 1

Senator Voinovich ............................................................................................. 3

Senator Collins ................................................................................................. 5

Senator Warner ................................................................................................ 6

Prepared statements: 

Senator Lieberman ........................................................................................... 45

Senator Sununu ................................................................................................ 47

WITNESSES 

MONDAY, MARCH 26, 2007

Hon. Richard C. Barth, Ph.D., Assistant Secretary, Office of Policy Development, U.S. Department of Homeland Security .................................................. 7

Hon. Leticia Van de Putte, Texas State Senator, and President, National 

Conference of State Legislatures ........................................................................ 22

Hon. Mufi Hannemann, Mayor, City and County of Honolulu, Hawaii; accompanied by Dennis Kamimura, Licensing Administrator, City and County 

of Honolulu, Hawaii ............................................................................................. 23

David Quam, Director, Federal Relations, National Governors Association ...... 25

Timothy Sparapani, Legislative Council, American Civil Liberties Union ......... 36

Jim Harper, Director, Information Policy Studies, The Cato Institute ............... 38

ALPHABETICAL LIST OF WITNESSES

Barth, Hon. Richard C., Ph.D.: 

Testimony .......................................................................................................... 7

Prepared statement with an attachment ....................................................... 48

Hannemann, Hon. Mufi: 

Testimony .......................................................................................................... 23

Prepared statement .......................................................................................... 65

Harper, Jim: 

Testimony .......................................................................................................... 38

Prepared statement with attachments ........................................................... 89

Quam, David: 

Testimony .......................................................................................................... 25

Prepared statement .......................................................................................... 69

Sparapani, Timothy D.: 

Testimony .......................................................................................................... 36

Prepared statement with an attachment ....................................................... 74

Van de Putte, Hon. Leticia: 

Testimony .......................................................................................................... 21

Prepared statement with an attachment ....................................................... 57

APPENDIX 

Background .............................................................................................................. 108

September 2006 Report, ‘‘The Real ID Act: National Impact Analysis,’’ presented by the National Governors Association, National Conference of State 

Legislatures, and the American Association of Motor Vehicle Administrators ........................................................................................................................ 119

‘‘New Federal Regulations Get an ‘F’ in Addressing Issues with the Real 

ID Act,’’ report submitted by the American Civil Liberties Union (ACLU) .... 179

Page

IV

Additional prepared statements submitted for the Record from: 

Jay Maxwell, President and CEO of Clerus Solutions .................................. 198

Wendy R. Weiser, Deputy Director of the Democracy Program and Myrna 

Pe ́rez, Counsel at the Brennan Center for Justice at NYU School of 

Law ................................................................................................................. 206

Melissa Ngo, Director of the Identification and Surveillance Project, Electronic Privacy Information Center .............................................................. 210

Sophia Cope, Staff Attorney/Ron Plesser Fellow, Center for Democracy 

and Technology ............................................................................................. 223

Hon. Mark Sanford, Governor, State of South Carolina ............................... 240

George Valverde, Director, Office of the Director, Department of Motor 

Vehicles, Sacramento, California, with an attachment ............................. 243

Questions and responses submitted for the Record: 

Mr. Barth .......................................................................................................... 246

Ms. Van de Putte .............................................................................................. 260

Mr. Hanneman and Mr. Kamimura ................................................................ 262

Mr. Quam .......................................................................................................... 267

(1)

UNDERSTANDING THE REALITIES OF REAL 

ID: A REVIEW OF EFFORTS TO SECURE 

DRIVERS’ LICENSES AND IDENTIFICATION 

CARDS 

MONDAY, MARCH 26, 2007

U.S. SENATE, SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT

MANAGEMENT, THE FEDERAL WORKFORCE, AND THE DISTRICT OF COLUMBIA, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

342, Dirksen Senate Office Building, Hon. Daniel Akaka, Chairman 

of the Subcommittee, presiding. 

Present: Senators Akaka, Voinovich, Collins, and Warner. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. I call the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia to order. 

I want to welcome Senator Collins here. It seems as though our 

border States are vitally interested in the issue before us today. 

Before we begin, I want to extend a warm welcome to all of our 

witnesses today and especially to Honolulu Mayor Mufi Hannemann, who presented me this lei, and who is accompanied by 

Dennis Kamimura, the Licensing Administrator for the City and 

County of Honolulu. I greatly appreciate you coming all the way 

from Hawaii, Mufi, and I look forward to discussing how REAL ID 

impacts the State of Hawaii and the County of Honolulu. 

Today’s hearing, ‘‘Understanding the Realities of REAL ID: A Review of Efforts to Secure Drivers’ Licenses and Identification 

Cards,’’ will review the REAL ID Act of 2005 and the proposed regulations implementing the Act recently issued by the Department 

of Homeland Security. 

In 2004, the 9/11 Commission reported that all but one of the 

September 11 hijackers acquired some form of U.S. identification, 

some by fraudulent means, which assisted them in boarding commercial flights, renting cars, and other activities. As a result, the 

Commission recommended the Federal Government set standards 

for issuing sources of identification such as drivers’ licenses. 

2

In December 2004, Congress passed the Intelligence Reform and 

Terrorism Prevention Act to establish a negotiated rulemaking 

process among the Federal Government, State, and local governments, privacy groups, and other stakeholders to develop standards 

for drivers’ licenses and identification cards. However, the Act provided States with flexibility for complying with Federal requirements and ensured privacy protections. 

Without the benefit of Congressional hearings and before the negotiated rulemaking committee held its second meeting, the REAL 

ID Act was included in the 2005 Emergency Supplemental Conference Report, thus replacing the collective effort to address the 9/

11 Commission’s recommendation. 

From its inception, REAL ID has been controversial and criticized by both ends of the political spectrum. The Act places a significant unfunded mandate on States and poses a real threat to privacy and civil liberties. 

In issuing the REAL ID regulations, DHS has acknowledged the 

implementation problems and the need to address the burdens 

placed on the States. Secretary Chertoff announced that States 

could easily apply for a waiver for the compliance deadline and 

could use up to 20 percent of the States’ Homeland Security Grant 

Program (SHSGP) funds to pay for REAL ID implementation. To 

me, this proposal does nothing to address the cost of REAL ID 

which DHS makes estimates to be anywhere from $17.2 billion to 

$23.1 billion. Moreover, the President’s fiscal year 2008 budget proposes to cut SHSGP by 52 percent. On top of this, States have already designated SHSGP funds for particular homeland security 

projects, such as interoperability equipment, physical security 

structures, training, and evacuation planning. 

My other concern is a serious threat by REAL ID to the privacy 

of Americans’ personal information. The massive amounts of personal information that would be stored in State databases that are 

to be shared electronically with other States, as well as 

unencrypted data on the card, could provide one-stop shopping for 

identity thieves. 

In addition, the DHS regulations failed to address redress mechanisms for individuals whose data is lost or stolen in another State 

or guidance on how States are to secure source documents. 

As a result, REAL ID may make us less secure by giving us a 

false sense of security. Unfunded mandates and the lack of privacy 

and security requirements are real problems that deserve serious 

consideration and workable solutions. 

Congress has a responsibility to ensure that drivers’ licenses and 

ID cards issued in the United States are affordable, practical, and 

secure, both from would-be terrorists and identity thieves. 

Over half of our Nation’s State Legislatures, 28, have acted to introduce or to pass legislation expressing concern or calling for repeal of REAL ID. Two States, Maine and Idaho, have passed legislation to opt out of complying with REAL ID. In Hawaii, a resolution passed the State Senate which calls for repeal of those provisions of REAL ID that violate the rights and liberties guaranteed 

under the Hawaii State Constitution and the Constitution of the 

United States and create unfunded mandates for the State without 

any plan for financial subsidization for implementation. 

3

To address these concerns, I reintroduced the Identity Security 

Enhancement Act, S. 717, with Senators Sununu, Leahy, and Tester, to repeal REAL ID and replace it with a negotiated rulemaking 

process and the more reasonable guidelines established in the Intelligence Reform and Terrorism Prevention Act of 2004. It is in 

the interest of Americans that this hearing shed light on the problems with REAL ID and provide a forum to discuss solutions that 

both protect the Nation and Americans’ privacy and civil liberties. 

I now turn to my good friend and partner on so many issues to 

improve government programs, Senator Voinovich, for any opening 

statement he may want to make. Senator Voinovich. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Thank you, Mr. Chairman, for holding this 

important hearing today to discuss the proposed regulations for implementation of REAL ID. The statutory requirement to issue 245 

million—245 million—secure drivers’ licenses in 5 years places a 

significant burden on our States, which bear the bulk of the responsibility for meeting the mandate. 

The long-awaited draft regulation to implement REAL ID was released earlier this month. I want to begin by commending the Department of Homeland Security for its outreach process. The draft 

regulation clearly reflects a number of common sense recommendations that have been made by the States. 

I had the opportunity to meet Secretary Chertoff last month to 

discuss REAL ID and was heartened by his sincere commitment to 

make full use of the flexibilities provided in the draft regulation. 

Secretary Chertoff is firmly committed to waiving the May 2008 

compliance deadline until the end of 2009 for any State that makes 

a reasonable request. 

However, I am concerned by the number of hurdles that stand 

in the way, including the cost to States and the lack of availability 

of electronic verification systems. It is important that we work together to find solutions to these challenges before us. The relationship between the Federal Government, State, and local governments should be one of partnership. Sadly, that is not always the 

case as the Federal Government has a tendency to force new responsibilities on State and local governments without providing 

adequate funding to cover the true cost. 

As Governor of Ohio, I became particularly concerned with the 

cost of Federal mandates. During my tenure, I worked tirelessly 

with State and local government groups to pass the Unfunded 

Mandates Reform Act. As a matter of fact, the first time in my life 

that I set foot on the floor of the U.S. Senate was when the unfunded mandates relief legislation passed. I was in the Rose Garden representing State and local governments when President Clinton signed the legislation in 1995 and that pen is proudly displayed 

in my office today. 

DHS estimates that the cost for States to comply with REAL ID 

will exceed $14 billion, and that most of these costs will be incurred in the first 5 years. Ohio, my State, estimates that it will 

need $45 million to comply and $11 million annually to run the 

program. As someone who has been responsible for balancing a 

4

public budget, I can assure you these are significant costs that require tough choices. 

This unfunded mandate poses a significant financial burden on 

States, many of whom are facing tight budgets. Though I am 

pleased the Department will allow States to use 20 percent of their 

State Homeland Security Grant Program funds to help implement 

REAL ID, I worry about the unmet homeland security needs that 

will be put on the back burner if States select this option. 

For example, last month, I was in Cuyahoga County, the largest 

county in Ohio, to discuss the cost of implementing their interoperability program, which is $114 million. It is ridiculous to ask States 

to use 20 percent of their State homeland grant programs, which 

in most cases have already been allocated, to implement REAL ID. 

I question whether Congress understands the huge cost burden 

we are placing on States, and I believe that the Federal Government should provide the necessary funding to aid States as they reconfigure their drivers’ license requirements to meet their new Federal responsibility. 

Technology will also be a key factor in the successful implementation of REAL ID. States will need functional access to a number 

of databases for verification of an individual’s identity. Given the 

limited time frame, our Federal Government must move quickly to 

ensure nationwide access to the required databases. As we ask 

States to do their part, we must be sure the Federal Government 

is also meeting its responsibility in a timely manner. 

The implementation of REAL ID comes at a time when the Federal Government is developing a number of new identification documents, including the Pass card, biometric passports, the TWIC 

card, and the Fast card. It seems to me that we ought to take a 

fresh look at the various identification requirements and consider 

whether or not some of these documents could be used for multiple 

purposes. For example, common sense would suggest that residents 

could use their REAL ID cards to cross our Northern land border 

instead of having to also apply for either a Pass card or a passport. 

My concern should not suggest that I am opposed to REAL ID. 

Rather, I want to be sure that as we move forward with implementation, we are honest about the true cost of compliance. DHS must 

also redouble its efforts to work closely with States to help ensure 

a seamless implementation. This partnership is essential to the 

success of REAL ID, and more importantly, to securing our homeland from another terrorist attack. 

Mr. Chairman, today’s hearing marks an important first step in 

our oversight of REAL ID. As implementation moves forward, I 

would suggest that we invite some of our witnesses today, including DHS, to report back to us in 3 months on their progress. 

Senator AKAKA. Thank you very much, Senator Voinovich. 

Now I will ask for the statement from the Senator from Maine, 

Senator Susan Collins, who has been a great leader in the Senate 

and especially with the Homeland Security Committee here. As I 

mentioned earlier, her State has already taken action on REAL ID, 

so, we are glad to have you here, Senator Collins. 

5

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you very much, Mr. Chairman. I must 

say, I am very envious of the gift that the Honolulu Mayor brought 

to you. You look quite festive decked out in your lei there. 

Mr. Chairman, I am very pleased to join today in the discussion 

of the REAL ID Act of 2005 and the draft regulations that the Department of Homeland Security has recently issued to implement 

this program and I very much appreciate the comments that both 

the Chairman and Senator Voinovich have been making on this 

issue. 

I first became involved in this issue back in 2004 when Senator 

Lieberman and I were working on legislation to implement the recommendations of the 9/11 Commission, which included recommendations for more secure identity documents, including drivers’ licenses. The Commission pointed to the fact that several of the 

hijackers used drivers’ licenses to gain access to airplanes and that 

they had obtained them in some cases through fraudulent documents. 

To respond to that legitimate concern, Senator Lieberman and I 

drafted negotiated rulemaking provisions that were put into the Intelligence Reform Act of 2004 that called upon the Department of 

Transportation to convene a group to work with State officials, privacy advocates, and technological experts to come up with a workable, practical solution to the problem identified by the 9/11 Commission. 

And indeed, this committee, this rulemaking committee, was appointed. Maine’s Secretary of State was one of the members and 

they were working along, making progress, doing exactly what they 

were charged with when, unfortunately, the House moved ahead 

and tacked on the REAL ID Act to an emergency war supplemental 

bill. This Act repealed the negotiated rulemaking provisions of the 

Intelligence Reform Act, and proceeded to direct the Department to 

unilaterally draft regulations. 

Well, now we find ourselves 2 years from the passage of the 

REAL ID Act, which repealed these 2004 provisions before they 

were given a chance to work, and only a year from the statutory 

deadline for compliance. I am very pleased that in response to concerns that many of us raised, the Department of Homeland Security has responded by extending the compliance deadline considerably and by trying to put back in place the negotiated rulemaking 

process, albeit as a response to the preliminary regulations rather 

than starting from scratch, and those provisions are similar to the 

bill that Senator Akaka and Senator Sununu have introduced to 

try to reintroduce negotiated rulemaking. I think that is going to 

greatly improve the process. 

We need to make sure that in the pursuit of more secure drivers’ 

licenses that we are not jeopardizing the fundamental liberties of 

our citizens and that we are not simply handing the bill, an enormous bill, over to the states that requires them to divert funds 

from other vital homeland security activities. In that regard, I 

want to associate myself with the comments made by the Senator 

from Ohio, who is both a former governor and a former mayor and 

has a special appreciation for unfunded mandates. 

6

The State of Maine has estimated that the cost of complying with 

the REAL ID Act would be six times the cost of the entire budget 

for the Bureau of Motor Vehicles. So the cost of this remains a concern, and while I appreciate the Department trying to introduce 

flexibility, the fact is that the need for Homeland Security grant 

monies for a host of other vital and urgent needs remains, and I 

think it is going to be very difficult for States to use 20 percent of 

those funds to pay for compliance with the REAL ID Act. 

So I think this is an issue that we are going to have to do more 

work on, on the cost issues, on the privacy issues, and on the technology issues. This is not an easy task to make sure that States 

can tap into databases of other States and it raises many security 

concerns. 

So, Mr. Chairman, I thank you for holding this hearing, a hearing that had the normal course been followed with the REAL ID 

Act, we would have held years ago and I think we would have 

ended up with more reasonable legislation. So thank you. 

Senator AKAKA. Thank you very much, Senator Collins. 

Now, before we move on, I would like to ask Senator Warner for 

any statement that he may have. 

OPENING STATEMENT OF SENATOR WARNER 

Senator WARNER. Thank you, Mr. Chairman. I am pleased to be 

here because I am quite interested in this whole concept. I really 

think America needs to explore this particular concept in the national security interest. This is where my primary concern arises. 

We have now learned that the duplication and the falsification 

of drivers’ licenses is quite feasible. Our security here at home is 

highly dependent in certain areas, like when boarding aircraft and 

otherwise, to have some sense of confidence that the individual 

that displays the card is, in fact, the rightful owner of it. And this 

card, because of technical advances, can be produced in such a way 

as to greatly increase the security as associated with any type of 

identification individual proffers, whether it is for the airlines or 

other purposes. 

So I approach this with an open mind, leaning hard towards seeing what we can do to help the States facilitate the law as it is now 

written, and if necessary, to change the law that is written to try 

to further help our States. But the bottom line is we have got to 

come to the recognition that the life before us is different than the 

life behind us and that we are faced with very serious threats from 

abroad and perhaps, regrettably, some internally, and this type of 

identification will go a long way to, I think, make us more secure 

here at home. 

I thank the Chairman. 

Senator AKAKA. Thank you very much, Senator Warner. 

Senator WARNER. I would ask to put the balance of my remarks 

in the record. 

Senator AKAKA. It will be included in the record. 

[The prepared statement of Senator Warner follows:]

PREPARED STATEMENT OF SENATOR WARNER 

Thank you for calling today’s hearing as I feel it is one that deserves greater attention in this Committee and indeed the entire Senate. Since the passage of the 

7

1The prepared statement of Mr. Barth with an attachment appears in the Appendix on page 

48. 

Real ID Act many have criticized the program for reasons of cost, inefficiency, and 

privacy. It is my hope that we may today explore these concerns and some potential 

solutions. 

I believe that standardized identification criteria among the States will make for 

a more secure country. We can eliminate fraud, provide a barrier to crime, and ultimately protect the American public better if we can rely on the authenticity of state 

issued drivers’ licenses and identification cards. I believe that the sooner we have 

Real ID in place, the better. However, I have one significant concern with the program as it has been proposed—the passing of an unfunded mandate onto the States. 

It is my firmly held belief that the primary responsibility of the Federal Government is to provide for the national defense. And I also believe that the Real ID program is a part of this responsibility. What I do not understand is why this federal 

responsibility is not being funded by the Federal Government. 

The National Governors Association has estimated that the cost of compliance to 

the States with Real ID will be approximately $11 billion. The Administration has 

argued that the costs should simply be passed on to the users in the form of increased fees for drivers licenses. Certainly larger states that issue millions of licenses can absorb these costs much easier than smaller states that may only issue 

a few hundred thousand. 

I am pleased that the Department of Homeland Security has recognized this issue 

and intends to help the States with some of the costs of compliance by paying for 

the network build-out but am concerned that this only represents a fraction of the 

costs to the States. 

I look forward to hearing more from our witnesses about their concerns and am 

hopeful that we may come together on some common ground on this important 

issue.

Senator AKAKA. I want to welcome the Hon. Richard Barth, Assistant Secretary for the Office of Policy Development at the Department of Homeland Security, to this Subcommittee hearing 

today. 

Mr. Barth, it is the custom of this Subcommittee to swear in all 

witnesses, so please stand and raise your right hand. 

Do you solemnly swear that the testimony you are about to give 

this Subcommittee is the truth, the whole truth, and nothing but 

the truth, so help you, God? 

Mr. BARTH. I do. 

Senator AKAKA. Let the record note that the witness answered 

in the affirmative. 

Thank you. While statements are limited to 5 minutes, I want 

all of our witnesses to know that their entire statements will be included in the record. 

Mr. Barth, will you please proceed with your statement. 

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

Mr. BARTH. Chairman Akaka, Senator Voinovich, and distinguished Members of the Committee, thank you for the opportunity 

to appear before you today to discuss REAL ID. 

I also want to take this opportunity to thank you for introducing 

S. Res. 94 earlier this month to honor the employees of the Department of Homeland Security on the Department’s fourth anniversary. It was gratifying to the employees to receive this recognition 

by the Senate. 

Your subject for this hearing, ‘‘Understanding the Realities of 

REAL ID,’’ is highly appropriate and timely. This is a very chalVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
8

1The chart submitted by Mr. Barth appears in the Appendix on page 56. 

lenging program for both the States and the Federal Government 

to implement, with many complexities ranging from cost to technically integrating various data links while imposing strong data 

security and privacy protections. 

Let me be clear at the outset. Effectively implementing a REAL 

ID program is a top priority for DHS. REAL ID is fundamental to 

our security as a Nation. We can debate the costs. We can fret 

about the time to implement and time waiting in line to obtain a 

REAL ID. But the inextricable link to ensuring that people are who 

they say they are when someone gets on an airplane and sits next 

to you is of paramount importance to preventing another September 11. 

All but one of the September 11 hijackers acquired some form of 

U.S. identification document. Eighteen hijackers fraudulently obtained 17 drivers’ licenses and 13 State-issued identifications and 

some even possessed duplicate licenses. The pilot who crashed 

American Airlines Flight 77 into the Pentagon, Hani Hanjour, had 

ID cards from three States. The drivers’ licenses and State IDs enabled the hijackers to maneuver throughout the United States in 

order to plan and execute critical elements of their mission. Using 

these documents, they were able to rent cars, take flying lessons, 

and board airplanes. The hijackers believed that holding drivers’ licenses and ID cards would allow them to operate freely in our 

country, and they were right. 

So again, as I will repeat over and over again today, our security 

as a people and collectively as a Nation relies on valid identification documents. 

Counsel to the 9/11 Commission, Janice Kephart, said the REAL 

ID recommendation was ‘‘perhaps the single most effective measure 

the United States can accomplish to lay the necessary framework 

for sustainable national and economic security and public safety.’’ 

Said another way, identity document security is a prerequisite for 

overall security in the United States. If we cannot verify that people are who they say they are and if we allow loopholes in obtaining drivers’ licenses and IDs to exist, DHS’s job and that of law enforcement becomes exponentially more difficult. Sadly, four of the 

hijackers had been stopped for traffic violations in various States 

while out of legal immigration status, a condition that should have 

resulted in their drivers’ licenses expiring. 

Key features of the proposed rule include the following. Individuals seeking drivers’ licenses or personal ID cards will need to establish their identity, U.S. nationality or lawful immigration status, date of birth, Social Security number, and principal residence. 

States would verify the issuance validity and completeness of the 

document presented. As you can see by the chart,1 which is also 

included in my testimony, electronic verification of these documents 

is a work in progress. But in some areas, we can quickly get the 

States online. For example, birth certificate information can be 

brought online for all States for about $4 million, and we hope to 

be able to use existing DHS grant money to facilitate that over the 

next year or so. 

9

Standard information will be required to appear on the cards, including full legal name, date of birth, gender, a unique identification number, a full facial digital photograph, address of principal 

residence, issuance and expiration dates, and signature. The cards 

would also have physical security features and a common machinereadable technology. 

Each State must prepare a comprehensive security plan for all 

State DMV offices, storage and production facilities, databases, and 

systems. Employee background checks would be required to decrease the probability of criminal collusion with DMV employees. 

Further details on the floor that we are establishing for more secure IDs is in my written testimony, and it is important to note 

that the States are not precluded from requiring additional security 

features. 

The September 11 attacks cost 3,000 lives and $64 billion in immediate losses followed by longer-term financial losses of $375 billion. The potential for further loss of life and property far outweighs the financial burdens to States and territories in implementing REAL ID. As the Secretary noted when he held his press 

conference when we published the rule, these new cards will cost 

less than $20 additional each time you renew your license. 

I personally believe that any further delay in implementing 

REAL ID would significantly increase our vulnerabilities as a Nation, and as long as I have responsibility for this program, I intend 

to do everything possible to make sure that fake IDs are not part 

of the scenario in the next terrorist plot successfully carried out in 

this country. 

To echo the words of the 9/11 Commission, for terrorists, travel 

documents are as important as weapons. Our security, as a Nation, 

is at stake, and I hope you will support the full implementation of 

REAL ID. It is a national problem and demands a national solution. 

Thank you, Mr. Chairman, for the opportunity to testify today 

and I look forward to your questions. 

Senator AKAKA. Thank you very much, Mr. Barth. 

Hawaii is an island State whose residents depend on air travel 

to travel within the State. If the State decides not to comply with 

the requirements of the REAL ID or if individuals in Hawaii cannot obtain a REAL ID-compliant driver’s license, will DHS grant a 

waiver for inter-island travel so that our residents will be able to 

travel within the State to visit family and friends on other islands? 

Mr. BARTH. That is a very good question, Mr. Chairman, and we 

are looking at various solutions for that question that would not 

prevent the residents of Hawaii from getting around the islands. 

One of the obvious solutions is that a passport, for those who hold 

a passport, is an easy alternative for getting on an airplane even 

if Hawaii decides to opt out of REAL ID. 

In addition, we are looking at alternative documentation like a 

Federal Government-issued ID out of the Department of Homeland 

Security to deal with citizens of States who want to be able to travel freely and easily on airplanes and provide an alternative to the 

REAL ID that would be equally validated and equally difficult to 

make fraudulent cards from. 

10

And finally, I would note that in virtually all cases where DHS 

has security, whether it is Customs coming into the country or TSA 

and airports for controlling security in airports, there is a secondary referral process that you can go to and present other kinds 

of documentation that will help inform the inspector to make a decision as to whether or not to let you onto the airplane without a 

REAL ID. So there are multiple scenarios that we think will effectively address your concern. Thank you. 

Senator AKAKA. As you know, Mr. Barth, many people are worried about the REAL ID’s impact on privacy and civil liberties. Because of this, did the White House Privacy and Civil Liberties 

Board review the regulations, and did DHS make any changes to 

the regulations based on their comments? If so, would you please 

describe those changes? 

Mr. BARTH. Thank you, sir. I am not aware that the White House 

Privacy Board looked at the regulation before it went out. There is 

a White House circulation process and I am not aware of all the 

details of it. However, we were very concerned with the privacy 

issue. I think the regulation and the preamble to it goes into it at 

great length about our concerns to make sure the databases are secure. Certainly the background checks on DMV employees are a big 

part of protecting privacy. 

But we also issued at the time that the regulation came out or 

shortly thereafter a 25-page privacy impact analysis that our own 

Privacy Office did for DHS and it clearly addresses a lot of the different concerns, even beyond the regulation itself. We are looking 

forward to receiving comments from the privacy civil rights and 

civil liberties communities on the regulation during this 60-day 

comment period and we will do everything within our ability to try 

to make sure that their concerns are fully taken care of. 

No one wants to be a subject of identity theft, and so we want 

this document to be as secure as possible to become an added advantage in a world where identity theft is becoming a multi-billiondollar problem for citizens across the country. 

Senator AKAKA. As you know, Mr. Barth, REAL ID is going to 

cost State and local governments billions of dollars. Although DHS 

has approximately $40 million in grant funding to provide States 

and has authorized the use of State Homeland Security Grants, 

this is not enough. What are DHS’s plans for helping States pay 

for REAL ID? 

Mr. BARTH. Mr. Chairman, I think that the $40 million is something that we are looking at to become a keystone of doing one particular factor or technology link that needs to be accomplished to 

make REAL ID work and we are working with our grants and 

training folks in the Department and consulting with States on trying to find a way of funding the interconnectivity of all of those 

databases that you see up there while paying close attention to privacy and data security issues. So we are working to try to get the 

most significant impact out of that $40 million that has already 

been appropriated. 

Beyond that, I have expressed to our friends at the National Governors Association, National Council of State Legislatures, that 

they have significant lobbying powers and that we will not in any 

way, shape, or form try to object to them acquiring other money 

11

through appropriations and authorization by the Congress, but we 

just don’t feel like that is necessarily our role at this time. 

The finalization of interoperable, interconnected networks of networks, which is what that chart represents, is something that we 

believe will cost probably more than $40 million and we are right 

now working with our various technology groups in the Department of Homeland Security, the CIO’s Office, for example, to identify the way to link up these databases securely and with due process for identity theft and other problems, and when we conclude 

the preliminary work-up of that, we will be submitting to Congress, 

hopefully for the 2009 fiscal year budget, a proposal to have the 

Federal Government take on the responsibility of networking those 

networks effectively and securely. 

Senator AKAKA. Mr. Barth, you have repeatedly said that the 

States will use a pointer system, which is based on the Commercial 

Driver’s License Information System, to verify information from 

other States. However, the regulations do not state this and instead leave open how States are to share information with each 

other. This may be one reason why Americans fear this is becoming 

a national ID card. Why didn’t DHS just require the use of CDLIS 

for REAL ID? 

Mr. BARTH. Mr. Chairman, that is a very good question and 

there is a ready answer for it. The CDLIS system handles in the 

tens of millions of commercial drivers’ licenses each year and it 

does so very effectively, and I might point out that to the Department of Transportation’s knowledge, which has been managing the 

funding and the establishment of the Commercial Driver’s License 

System since, I think, 1986 when they started the roll-out of that 

system, there have been no Privacy Act violations, so there is an 

additional reason, perhaps, to use that system, as you have suggested. 

At the time when we wanted to bring the regulation to closure 

and get it published, we were in intense dialogue with AAMVA, 

which manages the CDLIS system for the Transportation Department, as to their system and particularly whether it had the ability 

to scale up in time to handle the 240 million non-commercial drivers’ licenses that need to be renewed over a 5-year period as part 

of this program. 

So we are getting closer and closer to having the kind of assurance for that exact pointer system, which has not had privacy problems since 1986, might be exactly the solution that we want. We 

are not ready to say that yet. It may be several more months. But 

to the extent we can possibly put that in the final regulation as our 

pathway forward, I will certainly take your comments on board, 

also, because we are inclined towards that. 

Senator AKAKA. While the REAL ID Act requires States to verify 

information against certain databases, I understand that some 

databases do not exist and others are only in the pilot phase. Can 

you provide us specific data on the status of each database and 

their estimated time of availability on a national basis? 

Mr. BARTH. Yes, sir. Mr. Chairman, again, I will refer to the 

chart that we provided up here. If you look at the far right, it is 

a column that shows absolutely no check-marks for States being 

able to access the Passport Office records for your individual passVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
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port to confirm that you are who you say you are. Interestingly, 

that database exists, it is highly accurate and very robust, and the 

only thing that is missing is the interconnectivity between the 

State DMV offices and the State Department Passport Office. We, 

for example, query that passport database all the time as part of 

the DHS’s mission. 

So the chart, while it shows significant gaps, as you are suggesting, I think it also, when you dig deeper into explaining each 

of those links, it is not as bad as it looks. 

The next column over, which is the birth certificate confirmation, 

I am informed by the Department of Health and Human Services 

that 85 percent of all birth certificates dating back to 1935 have 

already been digitized. Those checks there show the pilot program 

that is effectively linking the birth records with DMV offices, and 

as I said in my oral testimony and the written testimony, for only 

$4 million, we can have that total column there have checks for 

that interconnectivity that we require. 

So each one is a different story and it would—perhaps in questions for the record we can give you all the details you wish. 

Senator AKAKA. Thank you so much for your responses. Let me 

now call on Senator Voinovich for his questions. 

Senator VOINOVICH. Thank you. 

Dr. Barth, the proposed regulations state that DHS will require 

the use of several databases to electronically verify lawful status 

and Social Security numbers of individuals. They include Social Security Online Verification. 

The Department of State’s Consolidated Consular Database, 

Electronic Verification and Vital Events System (EVVE), and the 

Systematic Alien Verification for Entitlement (SAVE), I understand, all 50 States have Memorandums of Understanding or access to SAVE. However, only 20 are currently using it to verify 

lawful status. States will also need to access U.S. Immigration and 

Customs Enforcement Student and Exchange Visitor Information 

(SEVIS). 

The question I have is how far in advance are you going to be 

able to have all these databases up and working? 

Mr. BARTH. Thank you, Senator, for the question. If I could answer with the precise date, I would be thrilled to do so. I can tell 

you that we have teams working very hard to provide all that 

connectivity and all that verification capability that we share with 

you in wanting to provide to the States. 

If, for example, the State Department for funding reasons or 

manpower reasons or priority reasons is unable to provide 50 

States plus 7 territories linkage to their passport database, we will 

look very closely at finding some waiver authority within the Secretary’s authority that would allow us to defer bringing the passports online until it is technologically feasible, funded, and has actually been accomplished by the State Department. In making sure 

that we don’t create a loophole for further fraudulent activity, we 

could significantly increase the training for DMV officials on spotting fraudulent passports. 

So we think that there are tradeoffs there between fraudulent 

document review and actual exceptional digital verification that we 

can make in the early years of the roll-out of REAL ID. 

13

Senator VOINOVICH. I think you have answered the second question that I was going to ask, and that is if the databases are not 

up and working by the May 2008 deadline, do you have the authority through regulation to extend that period beyond that date? 

Mr. BARTH. My understanding is that we will have the authority 

to extend beyond that date, yes, and we will be—our hard target, 

if you will, for filling in that entire chart with check-marks for all 

50 States and all five databases would be the December 31, 2009 

deadline for which the Secretary has indicated he will issue waivers. But for those states that have indicated to us they want to be 

early adopters, if you will, we believe we have the authority to give 

them alternatives to electronic verification of a passport. 

Senator VOINOVICH. Is there any effort being made to coordinate 

the technology that is going to be implemented by the various 

States? 

Mr. BARTH. Yes. We have considered that issue and have actually raised it in the regulation, and at this point in time, the proposed rule would not require the 50 States to use the connectivity 

that we provide. However, in order to ensure that data passes back 

and forth through the network efficiently, that is one of the reasons 

why we believe it should be a Federal responsibility to pay for the 

build-out of that network of networks to remove the incentive for 

a State to perhaps go down a different path. If it is paid for, built 

out faster than anything else, etc., we think that will be a powerful 

incentive to the States coming online, a single system rather than 

creating a panoply of systems, as you suggest. 

Senator VOINOVICH. You are developing technology that you will 

share with the States? 

Mr. BARTH. We would not develop technology. We would seek a 

technology solution funded by the Federal Government that the 

States would have a large stakehold in. We have not yet defined 

in a high level of granularity what that will look like, but I will 

draw an analogy to the Department of Transportation, which funds 

the development of this CDLIS system that the Chairman was referring to, but the States own the system and have funded 

AAMVA, the American Association of Motor Vehicle Administrators, to build out this CDLIS system. 

And if that system proves to be, as I certainly hope it does, the 

framework for a significantly scaled up civilian driver’s license 

verification network, it will have the advantages that the Chairman mentioned of being a pointer system, not a lot of data flowing. 

It won’t retain a lot of data in a central database, which poses its 

own risks. And it will give us a platform on which to build without 

having to invent new technology. 

Senator VOINOVICH. Are you going to be able to guarantee that 

information is going to remain private? 

Mr. BARTH. To the extent that we can provide the safeguards, we 

believe that this system will be vastly an improvement over the 

current 50-plus-7 territories systems that are built out now. 

Whether it is the documented cases last week in North Dakota of 

fraudulent driver’s license activity, whether it is the $4,000-per-license cost to collude with an internal DMV person in New Jersey, 

or some Connecticut similar fraud cases in the past, I think wherVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
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ever you have human beings involved and the capability to bribe 

them to do things that are wrong, you can’t say there is zero risk. 

Senator VOINOVICH. Could somebody break into the system and 

get the information? 

Mr. BARTH. They are likely to be under the age of 20, not to be 

glib, sir. But I think that we are going to provide the safeguards 

to do everything possible to prevent that from happening. 

Senator VOINOVICH. One concern of the NGA is that 24 States 

have a driver’s license renewal period that is longer than 5 years, 

many have 10 years. I understand that in the regulations you have 

ruled out 10 years and have said States have to do it in 5 years. 

I would like you to explain why DNS has chosen the 5-year renewal date? 

Mr. BARTH. In the consultation we did with the States, which 

have a very wide ranging number of years before renewals are required, we certainly didn’t arbitrarily choose, but in consultation 

with them chose about an 8-year period for renewals as the maximum that we would allow. States that currently have 4-year renewals, they can continue their 4-year renewals. states that have 

8-year renewals would have to—the individual applying for the 

driver’s license would have to reappear every 16 years, so every 

other cycle, in person to revalidate their data, their place of—their 

documentation——

Senator VOINOVICH. It is not 5 years? 

Mr. BARTH. It is not 5 years, sir. 

Senator VOINOVICH. I thought that was in the regulation. 

Mr. BARTH. I don’t believe so. Yes. You are referring to the 5-

year implementation period for the very first cycle of everyone in 

America who has a driver’s license who lives in a State that opts 

into REAL ID, they have to move through that first cycle in 5 

years. The second cycle is 8 years, and every cycle after that is a 

maximum of 8 years, but States can choose a shorter cycle. 

Senator VOINOVICH. Ambassador Wilson came in to see me last 

week and we talked about the Western Hemisphere Travel Initiative. As I mentioned in my opening statement, I want to ensure 

that DNS is taking into consideration the interoperability between 

the various screening tools and ID documents? 

Mr. BARTH. Yes, it is, sir. Governor Gregoire of Washington State 

approached us some months ago with a proposal that we partner 

with Washington State on a dual-use Western Hemisphere Travel 

Card, WHTC, we call it, and REAL ID, and we fairly quickly sent 

back from Secretary Chertoff to the governor a letter saying we 

would definitely like to explore this with you. The ‘‘too many cards 

out there’’ problem is something we would like to try to get under 

control. 

Senator VOINOVICH. I would suggest that you stay on top of it. 

DNS should work with what they are doing there and individuals 

so they don’t have to get multiple sources of ID in order to travel 

back and forth between Canada and the United States. There is 

real concern about moving people back and forth in the border 

States. 

I know in Ohio, we have many Canadian tourist visiting. We 

would like to make sure that they continue to visit our great State. 

15

Mr. BARTH. We are piloting this in Washington State, and we expect to roll it out January 1, 2008, which I think is a very efficient 

way forward, and in many ways, that will show us the way forward 

for a lot of the border States, but any State, Ohio included, or Florida, if they want a dual-use card for, say, a snowbird from Ontario 

or somewhere, we would be very happy to try to accommodate that. 

Senator VOINOVICH. That would be wonderful. Stay on top of it 

and do what you can to make sure they get it done on the date that 

they say they are going to get it done. 

Mr. BARTH. Thank you, sir. I will do that. 

Senator AKAKA. Thank you very much, Senator Voinovich. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Barth, in responding to a question from Senator Voinovich, 

you referred to states that choose to opt in to the REAL ID. But, 

in fact, States have very little choice but to participate in this new 

system. If they don’t participate, then their citizens cannot board 

airplanes, they cannot gain access to certain Federal buildings. 

There are all sorts of practical ramifications. So do you really think 

that there is an alternative for any State but to opt in? 

Mr. BARTH. Senator Collins, the 9/11 Commission was very clear 

as to the fundamental nature of clarifying this ID thing to prevent 

a future terrorist attack. I think that legislation reflects exactly 

what you just said, which was drafted by the Congress and we are 

trying to implement it. 

I think that with the alternative documentation, as I have already explained, a federally-issued other ID, for example, military 

ID, the military residents of Maine will be able to travel around 

without a REAL ID, we expect. Passport holders, which is some 30, 

and growing, percent of the American population, will be able to 

use that document. And if we, and I am expecting we will come up 

with a Federal alternative, a Maine farmer who never wants to 

leave the State or get on an airplane will be happy without his 

REAL ID and a Maine citizen who wants to travel will have multiple alternative documents to acquire to travel freely like anyone 

who has opted into the system. 

So I believe that there are strong incentives to come into the 

REAL ID program and opt in, but I believe that the disincentives 

are relatively low given the potential risk and vulnerability that it 

presents to the whole country. For states that continue to issue 

documents that are not as secure as other States—if you are a terrorist, you will very quickly find online that State X is where you 

go to get your fraudulent document to get on an airplane and drive 

it into a building. 

Senator COLLINS. I guess my point is that we need to face the 

practical reality that States almost certainly are going to have to 

participate in this program because of the practical consequences 

of not doing so for their citizens, which brings me back to the cost 

issue. The Department, when it issued its draft regulations, estimated that the cost to States of compliance with the REAL ID Act 

would be $14.6 billion over 10 years. The NGA has estimated $11 

billion over 5 years. Really, those are very similar estimates because a lot of the costs would be in the first 5 years, so I think it 

is fair to say that there is substantial agreement that we are talkVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
16

ing about billions of dollars over a 5- and 10-year period for compliance. 

If the Federal Government is imposing this mandate, shouldn’t 

we go beyond the $40 million that you have mentioned that could 

be used to set up a very useful interstate database that would 

allow for States to check each other’s databases? I mean, isn’t that 

just a drop in the bucket when you are talking about costs of this 

magnitude? 

Mr. BARTH. Yes, that is a drop in the bucket, and even if it costs 

a couple hundred million—and we don’t know the number yet—to 

fully integrate the databases securely and with data privacy protections installed, it is still a small portion of the cost compared to hiring people, in some cases, building additional lanes, bricks and 

mortar kinds of facilities, obtaining the equipment necessary. 

We are doing everything we can to mitigate those costs. For example, one of the things that we are going to do is work with GSA 

to have a single contract procurement activity for the cardstock and 

the card issuance equipment and allow GSA to put up on their procurement site enablement for all States to come in and buy, I presume, at lowest possible cost all the equipment and all the 

cardstock they need. This would save not only costs on the direct 

acquisition of those items with just a direct procurement from that 

list, but it would also save 50 different State procurements. We are 

seriously looking at the cost issue and doing everything we possibly 

can to reduce it. 

But I think you have to look at it in a way of also evaluating 

which ones have already made a substantial investment to become, 

if not REAL ID compliant, but to improve their security. The State 

of Virginia has put an enormous amount of money into getting 

there already. The State of Michigan told us that they have spent 

roughly $30 million and they are a few million dollars from becoming REAL ID compliant. That is a fairly sizeable State with a fairly 

large population. So the numbers, frankly, are all over the map and 

we have instructed the economists in DHS to very closely pick 

apart the numbers that were in our proposed rule economic analysis and see if those costs are really that high. Even with that, 

though, I agree with you the costs are substantial and I believe, 

unfortunately, it would be very difficult for us to determine on a 

State-by–State basis how much they really need for this purpose. 

So I would finally note that Alabama, maybe, has provided the 

ultimate solution. I was talking to their DMV a few weeks ago. 

They have a zero-cost to the State implementation of REAL ID, or 

very close to that, depending on a final regulation. They entered 

into a contract with a service, an equipment provider, whereby that 

service and equipment provider is tacking on a fee to the issuance 

of the driver’s license, and for no capital investment and I believe 

no operating investment by the State, they can and will be, when 

they rewrite the contract in light of REAL ID, compliant. 

So there are great models out there for mitigating the costs, for 

lowering the costs, and we are working with the States to——

Senator COLLINS. I would say to you that paying perhaps double 

for your driver’s license, most people would not consider to be no 

cost. But we will put that issue aside. 

17

I want to raise just one other issue in the brief time that I have 

remaining. State officials have repeatedly made the point to me 

that this system is only as good as the source documents and they 

are very concerned about training DMV personnel to evaluate the 

validity of a birth certificate, a baptismal certificate, a visa, or a 

passport. People working in the DMV offices are excellent public 

servants. They are very committed to the security of our country. 

But they are not trained to distinguish whether or not these source 

documents are valid and should be accepted. 

Are you going to assist States with training their personnel to 

different standards? There must be a huge degree of difference 

among the various States on birth certificates, for example. Someone coming into Maine who has moved from Virginia or Ohio or 

Hawaii, I am sure they have a birth certificate that looks different 

from Maine’s. How are you going to deal with this? How are you 

going to train, to help the States train DMV personnel so that they 

can accurately assess source documents, because if they can’t do 

that, the whole system on which REAL ID is based falls apart? 

Mr. BARTH. Senator, there are several answers to your question, 

actually, so if you will bear with me, I will try to identify them. 

First off, in your passport files, once that data link is connected, 

and depending on how it is connected, you might be able to pull 

up the digital photograph of the person and literally match it to the 

person sitting in front of you. That biometric confirmation of who 

you are and that you got a passport, maybe all using fraudulent 

documents, but I hope not, is a very powerful confirmation of who 

you are. 

But more to your point specifically of training for the DMV officials, we have taken that into account. We have forensic document 

labs in the Department of Homeland Security. We have already 

been working with them on various aspects of this rule and we expect, I would say, to develop a package, a training package that the 

States could build on. The rule itself and the $14 billion that we 

highlight as the cost factors in a $300 training cost for each and 

every DMV employee across the land. So that cost is factored in. 

It is not funded by the Federal Government, but it is factored in 

as one very important item, as you suggest. 

Senator COLLINS. Thank you, Mr. Chairman. 

Senator AKAKA. Thank you very much, Senator Collins. Senator 

Warner. 

Senator WARNER. Thank you, Mr. Chairman. 

This has been a good hearing and I am impressed with the 

amount of work that you individually and members of your Department have done to try and resolve this. I just hope Congress adopts 

an attitude that we have got to be a working partner and not get 

into an adversarial process and also that the States can be working 

partners. 

In the preparation of your regulations, to what extent did the 

several States participate and come forward with ideas and concepts to improve the regulations? 

Mr. BARTH. That is a very good question and the answer, I think, 

should be very comforting to you, which is that we ran an open 

phone call with at least four States every Thursday since, I believe, 

last August to consult with the States on various aspects of this 

18

regulation and the economic analysis. That, in part, is why, as Senator Collins suggested, our costs and their costs line up fairly well. 

We have been talking extensively. 

Four States in particular I want to commend for being on virtually every one of those calls. California, Iowa, New York, and 

Massachusetts sort of formed a core group that were extremely interested, had the capability within their DMV organizations, and 

participated weekly, came to Washington for a face-to-face meeting 

with Deputy Secretary Jackson, really doing everything possible to 

make exactly what you said, a partnership with the States for this 

important program. 

And I am very pleased to say that my project manager for this, 

Darrell Williams, just spent the entire last week on a 5-day, fourcity tour with the American Association of Motor Vehicle Administrators, pulling in regionally DMV administration people from 

many different States around the country. So not only has our consultation process been rigorous leading up to the issuance of the 

NPRM, it is going to continue to be rigorous as we move towards 

the final rule, and as we build out that network of networks, it is 

going to continue, sir. 

Senator WARNER. Was part of that dialogue to discuss costs to 

the individual States? 

Mr. BARTH. Yes. The States came in towards the end of developing their cost analysis, their $11 billion cost analysis. They came 

in jointly as the National Governors Association, the National 

Council of State Legislatures, and AAMVA, and they presented 

their document and they asked us to help them sort through the 

funding issue. 

Senator WARNER. Is there any standardization of the criteria by 

which several States did make their estimates? 

Mr. BARTH. No, sir, there was not. AAMVA, actually, I believe 

it was, developed the data from the States on which their figure 

and much of our figure is based. So each State had a different approach towards the funding and there is no standardization of that. 

Senator WARNER. Was the thought given to trying to standardize it, because these estimates which were thrown out here, $23 billion 

by OMB, that, I understand, even involved the transportation of an 

individual to and from their home or workplace to the DMV, which 

strikes me as an odd way to compute things, but anyway DHS was 

at $14 billion, and $11 billion from the NGA. There is quite a disparity here. And then I also, based on the fragments that I have 

been able to collect, see where some States came in with a cost estimate, but almost uniformly all of them are coming down in the estimates. Would that be a correct assumption? 

Mr. BARTH. Yes, sir, that is a correct assumption, I think in part 

because while we have been negotiating the regulation and getting 

it out, States have continued to make good, solid investments in 

many cases in their existing networks, and we hope that continues 

as we move toward a final rule, which we hope to announce in August. So I think that as we scrub the costs going forward, which 

as I have already said our economists are doing, I think that figure 

could be ultimately viewed as being very high. 

Senator WARNER. What figure? I threw three out here. I don’t 

know what figure you are talking about. 

19

Mr. BARTH. The three key ones are the $23 billion includes if you 

are a disorganized person and it takes you an hour and a half to 

find your birth certificate, driver’s license, passport, to go to the 

DMV. It even includes the cost of spending time at home finding 

your documents. That is the highest cost estimate——

Senator WARNER. I don’t know which government clerk figured 

that one out. 

Mr. BARTH. Well, required by OMB rules, sir. 

Senator WARNER. Oh, is that it? All right. That is extraordinary 

to me. I can’t believe that. Anyway, it took 2 years to put this set 

of regulations together? 

Mr. BARTH. It did, and I think in large part it was due to the 

extensive consultation, including, as I said, the Deputy Secretary, 

before he would sign off on the regulation, convened a meeting with 

AAMVA and the four states that I mentioned before that were our 

close partners in developing the regulation. So it is regrettable that 

it took so long, but the consultation process was at least as intense 

as it would have been under a negotiated rulemaking process. 

Senator WARNER. Well, Congress is faced with this and we are 

getting a lot of understandable pressure. I have always identified 

myself here in my years as being one who fought against the compulsory mandating of legislation—I mean that then in turn made 

the States required to come up with the funds. I have always sort 

of been on the side of protecting the States from being subjected 

to this by the Congress and I am more than likely to continue in 

that vein. On the other hand, I am really concerned about the security elements of this. 

Where are we, do you think, in this process? Suppose somebody 

goes out here on an appropriations bill or elsewhere and attaches 

an amendment to further modify the existing law on this issue? 

Now, we have got the extension period in there. That is safely 

ensconced, would that not be correct, Mr. Chairman? 

Senator AKAKA. Yes, the initial enrollment period has been extended but not the reenrollment deadline. 

Senator WARNER. But I am concerned that others may have reason for further attack, which I want to have a convergence of all 

the information that should be brought to bear and any further action by the Congress to impede the progress of this program. 

Where is another time when there is going to be a considerable 

amount of data out there to try and begin to show the States as 

to how to alleviate their cost projections today? 

Mr. BARTH. Yes. I think that the time frame of August-September is when we are targeting issuing the final regulation, and 

to the extent we can, renewing our evaluation of the costs. So that 

is when I think you will find all the stakeholders will have something hard to shoot at rather than something soft, which is a proposed rule. 

Senator WARNER. So it would be wise for the Congress now to 

withhold any further action until that time period? 

Mr. BARTH. Except for the funding issue, which the Congress will 

consider separately——

Senator WARNER. As to whether we are going to step up and 

fund——

20

Mr. BARTH. Correct. There is the $40 million that has been appropriated for the grants to the States, but there has been no funding for the DHS or any department of the government for this program, nor, of course, for all the other costs of the State. So to that 

extent, I think that the cost issue is just a significant one. But 

until then, we won’t be able to tell you even how much it is going 

to cost to build out that network of networks up there. So there is 

not a hard target to even fund, in my view, at this point in time. 

Senator WARNER. Well, that is, I guess, my point. You really 

can’t begin to ask Congress to give us so much money to try and 

defer some of the percentages of the State costs when each State 

is putting together their cost formula by different methods——

Mr. BARTH. And until, sir, they see the final regulation, they are 

not even——

Senator WARNER. That is correct. 

Mr. BARTH [continuing]. Going to be able to put a final-final cost 

figure per State on it, which I regret that is after some States even 

go out of legislative session. 

Senator WARNER. So it is in the best interest of Congress to ride 

through this thing until early fall? 

Mr. BARTH. With the amount of time and effort I and my team 

are putting into this, I would greatly appreciate that, sir. 

Senator WARNER. Well, I am only one. There are many here, but 

I certainly would hope that we would proceed on this on a partnership concept of States and the Federal Government working together and the Congress to try and achieve some type of identification that will help America feel a little more secure in our daily requirements to identify ourselves and to otherwise conduct our life 

here at home. I thank you. 

Mr. BARTH. Thank you for your support, Senator. 

Senator AKAKA. Thank you very much, Senator Warner. 

Just to follow up on Senator Warner’s questioning, Mr. Barth, 

you testified that we shouldn’t act to change REAL ID. The proposed regulations state that DHS sought to provide for privacy and 

security to ‘‘the extent of its authority.’’ However, the regulations 

ask for comments as to whether the privacy protections are adequate. Given that DHS has acted to the extent of its authority, 

what statutory changes to the REAL ID Act do you believe are necessary to protect privacy? 

Mr. BARTH. At some point, Mr. Chairman, I think that the Congress should take seriously a concern that I believe we share with 

the privacy community, and that is that probably the biggest significant risk for identity theft, for issuing fraudulent cards, for collusion with bad actors in the DMVs, the biggest risk is those bad 

actors in the DMVs. There is currently law on the books that identifies penalties at the Federal level, penalties for collusion of DMV 

workers with someone outside the DMV in acquiring a fraudulent 

document. I would invite the Congress to look carefully as to 

whether or not those penalties are high enough. 

If it only costs $4,000 to get a fake ID and lifetime employment 

in New Jersey, for example, not even committing bad acts, the penalty must not be stiff enough. If the cost goes up to about $50,000 

or $100,000 per fake ID, then you might be getting close. So I make 

21

that sort of in jest, but I think that the penalties there should be 

looked at closely. 

I also think that one of the threats to privacy that has been identified is the lack of encryption of the machine-readable technology 

that is used on the back of many cards issued today. I think that 

the technology issues and the encryption issues will be well vetted 

in the regulation, but the Congress could also consider coming up 

with substantially higher penalties for fraudulent use of information obtained from drivers’ licenses, REAL ID drivers’ licenses. 

That should be a real linchpin of the cost of making an error here, 

or intentionally stealing data and using it fraudulently from a license is so high that I don’t think I am going to do it. 

Those are two very specific things that won’t slow down our implementation of the rule, but will significantly enhance the effectiveness of whatever privacy protections we put into the rule. 

Senator AKAKA. If Congress holds off on legislation, Mr. Barth, 

until the end of 2007, States will commit more and more funding 

towards REAL ID only to have the requirements modified if Congress acts on it later. Well, I want to thank you very much, Mr. 

Barth, for your responses to this Subcommittee and I want to tell 

you that we may have further questions for you that we will place 

into the record. Again, I want to thank you so much for being here 

with us. 

Mr. BARTH. Thank you, Mr. Chairman. 

Senator AKAKA. Now, I would like to call the second panel forward and welcome you to this Subcommittee. 

Testifying on the second panel are: State Senator Leticia Van de 

Putte, who represents the 26th District of Texas in the State Legislature and is the President of the National Conference of State 

Legislatures. Welcome. 

The Hon. Mufi Hannemann, Mayor of the City and County of 

Honolulu, who is accompanied by Dennis Kamimura, the Licensing 

Administrator for the City and County of Honolulu. Aloha and welcome, Mufi. 

David Quam is the Director of Federal Relations for the National 

Governors Association. Welcome, Mr. Quam. 

As you know, the custom of this Subcommittee is to swear in all 

witnesses, so will you please stand and raise your right hand. 

Do you swear that the testimony you are about to give this Subcommittee is the truth, the whole truth, and nothing but the truth, 

so help you, God? 

Ms. VAN DE PUTTE. I do. 

Mr. HANNEMANN. I do. 

Mr. KAMIMURA. I do. 

Mr. QUAM. I do. 

Senator AKAKA. Thank you. Let the record note that all witnesses answered in the affirmative. 

I want to thank you again for your presence and we are looking 

forward to hearing from you. Senator Van de Putte please proceed 

with your statement. 

22

1The prepared statement of Ms. Van de Putte with an attachment appears in the Appendix 

on page 57. 2The Real ID Act: National Impact Analysis,’’ report submitted by Ms. Van de Putte appears 

in the Appendix on page 119. 3 ‘‘Funds in the Fiscal Year 2008 Budget Resoulution for Implementation of the REAL ID,’’ 

submitted by Ms. Van de Putte appears in the Appendix on page 63. 

TESTIMONY OF HON. LETICIA VAN DE PUTTE,1 TEXAS STATE 

SENATOR, AND PRESIDENT, NATIONAL CONFERENCE OF 

STATE LEGISLATURES 

Ms. VAN DE PUTTE. Thank you, Chairman Akaka, Ranking Member Voinovich. I am Leticia Van de Putte, President of the National 

Conference of State Legislatures and a member of the Texas State 

Senate. I appear before you today on behalf of the National Conference of State Legislatures (NCSL), a bipartisan organization 

representing the legislatures of our Nation’s 50 States, its Commonwealths, territories, possessions, and the District of Columbia. 

Mr. Chairman, thank you very much for your leadership on this 

important issue, not just today with this hearing, but with your introduction of legislation in both the 109th and 110th Congresses to 

fix the REAL ID Act. It is imperative that this hearing be the first 

step toward a successful, cost-effective implementation of the Act. 

Legislators across the country share the goal of improving the integrity and the security of drivers’ licenses and identification cards, 

but we want to make sure that it is done right. Mr. Chairman, as 

you know, NCSL will call for the repeal of the Act if the recommendations made in the September 2006 report,2 ‘‘The Real ID 

Act: National Impact Analysis,’’ issued by NCSL, the National Governors Association, and the American Association of Motor Vehicle 

Administrators, are not implemented and the mandate fully funded 

by December 31, 2007. 

Mr. Chairman, I respectfully request that a copy of this report 

and the NCSL policy,3 ‘‘Funds in the Fiscal Year 2008 Budget Resolution for Implementation of the REAL ID,’’ be submitted for the 

record with my full testimony. 

Senator AKAKA. It will be included in the record. 

Ms. VAN DE PUTTE. Thank you, Mr. Chairman. NCSL acknowledges that the draft regulations incorporate a number of our recommendations made in the September 2006 report. However, they 

do not address several major recommendations, or more accurately 

stated, solutions needed for the successful cost-effective implementation of the Act. These solutions would ensure that the verification 

systems are available nationally, allow States to adopt up to a 10-

year progressive re-enrollment process, exempt certain populations 

from the REAL ID process, and provide the necessary Federal 

funds. 

Successful implementation of the Act with such a limited time 

frame largely depends on the availability of certain electronic systems to verify the validity of the identification documents. It appears that a number of these systems are not likely to be available 

on May 11, 2008, and given this fact, it is critical that the May 11 

deadline be moved to a future date when the verification systems 

are available on a national level. Without this change, the States 

will spend billions of dollars to have a real pretty new card, but 

will have done nothing to actually improve security. 

23

1The prepared statement of Mr. Hannemann appears in the Appendix on page 65. 

States need to be able to adopt up to a 10-year progressive reenrollment process. This solution would provide States the ability 

to manage enrollment over a greater length of time, would meet 

the objectives of the Act, reduce the fiscal effect on States and, on 

the Federal Government, and minimize service disruptions for customers. Mr. Chairman, in my State alone, without the 10-year progressive, reenrollment even hiring 900 new FTEs, which we would 

be required to do, and running our 27 new offices and our offices 

that are in effect right now 24 hours a day, we could not re-enroll 

11.8 million drivers and ID holders. It is impossible to do. 

Certain populations should be exempt from the REAL ID process. 

This exemption could be based on characteristics related to applicable risk, such as the year of birth or duration of the continuous relationship with the State. For example, under our draft regulations, an 82-year-old person who has lived in Texas his or her entire life would still have to make a visit to his or her local DMV. 

Is this really necessary? The verification requirements should be 

waived for applicants who have completed an identity verification 

process conducted by the Federal Government. 

Finally, I would like to talk about funding. Whether one uses the 

NCSL, NGA, and AAMVA estimate for State implementation costs, 

of at least $11 billion over 5 years or the DHS figure of $10 billion 

to $14 billion over 10 years, the REAL ID is an enormous unfunded 

mandate. For Texas, our start-up costs will be $142.6 million for 

the first year with an ongoing operational expense of $67 million. 

It is critical that new Federal funds, and I emphasize new, be provided for State implementation of the REAL ID. States should not 

be required to use their diminishing State Homeland Security 

grants and should not be required to pay for access to the 

verification systems. 

NCSL also recommends instituting a legislative trigger that 

would automatically release States from complying in any fiscal 

year that Congress fails to appropriate these funds. 

Mr. Chairman, in closing, NCSL remains steadfast in its resolve 

to work with Federal policy makers to fix, fund, and implement the 

REAL ID Act before December 31, 2007, as stated in our policy, 

and I encourage you to consider legislative action to adopt the solutions I have proposed today. This will provide the States with the 

necessary certainty to move forward. 

Thank you very much for this opportunity to testify. 

Senator AKAKA. Thank you for your testimony. Mayor 

Hannemann. 

TESTIMONY OF HON. MUFI HANNEMANN,1 MAYOR, CITY AND 

COUNTY OF HONOLULU, HAWAII, ACCOMPANIED BY DENNIS 

KAMIMURA, LICENSING ADMINISTRATOR, CITY AND COUNTY 

OF HONOLULU, HAWAII 

Mr. HANNEMANN. Good afternoon, Chairman Akaka and Ranking 

Member Senator Voinovich. Thank you very much for this opportunity to testify on the impact of REAL ID on the City and County 

of Honolulu, the capital city of the State of Hawaii, where threefourths of our population resides. 

24

I am here, as you indicated earlier, with Dennis Kamimura, who 

has over 30 years’ experience of running our licensing program, 

and the City and County of Honolulu licenses 70 percent of the 

867,000 drivers in the State of Hawaii. Moreover, all of the State’s 

drivers’ computer records are stored in Honolulu’s computer system. 

We, wholeheartedly, agree that the tragic events of September 11 

require the strengthening of our security standards, procedures, 

and requirements for the issuance of drivers’ licenses and identification cards, but we have several major concerns with the implementation of this law and they basically fall in four areas, Mr. 

Chairman, with respect to funding, the verification process, re-enrollment, and waivers. 

It will cost us $25.55 million over a 5-year period if this law were 

implemented. About 90 percent of this $25.55 million will be incurred by the City and County of Honolulu, and although the Department of Homeland Security announced that 20 percent of the 

States’ Homeland Security Grant Program funds could be made 

available during the 2007 grant cycle, most of these funds have already been dedicated. 

I would also add that we have recently upgraded the status of 

our Civil Defense Agency now to a full-fledged cabinet-level department called the Department of Emergency Management. That Department will be charged with securing other types of Homeland 

Security grants into areas that Senator Voinovich had already indicated, like interoperability, the pandemic flu, and other areas there 

that we would like that department to focus in. So therefore, we 

would be hard-pressed to tap into this 20 percent for this particular 

program. 

With respect to the verification process, the Act requires that we 

refuse to issue a driver’s license or identification card to a person 

holding a license or card issued by another jurisdiction. This is 

similar to a provision of the Commercial Motor Vehicle Safety Act, 

which requires commercial drivers to have one and only one license 

at any given time. This requirement is supported by CDLIS. 

CDLIS consists of a central site and nodes in each jurisdiction. 

Access to CDLIS is provided through a secure private network operated by the American Association of Motor Vehicle Administrators and cannot be accessed through the public Internet. Each site 

connected to the private network has its access controlled by several security mechanisms. Neither the State of Hawaii or AAMVA 

is aware of any privacy breaches of CDLIS since it went into development in 1989. 

In 2005, Congress passed the transportation reauthorization bill, 

SAFETEA–LU, which authorized $28 million to modernize CDLIS. 

Our recommendation is that we leverage this project and its Federal funding to expand the scope of the CDLIS modernization effort 

to support an all-driver pointer system for non-commercial drivers’ 

licenses and identification cards, inasmuch as all jurisdictions are 

familiar with the CDLIS program, and the all-driver pointer system would use the same principles as CDLIS. Use of this technology would be more efficient than expending public money to create a new system. 

25

The Act would also require us to have access to five additional 

national databases, SSOLV for Social Security cards, Department 

of State for passport and consular report of birth abroads, EVVE 

for birth and marriage certificates, and SAVE for permanent resident status, employment authorization, or U.S. certificate of citizenship or naturalization, and SEVIS to verify the duration of lawful status for student aliens. Obviously, we have challenges with all 

the aforementioned. 

At present, almost all jurisdictions are using the SSOLV, which 

requires enhancements due to its unreliability. Several States are 

also using SAVE, but that system requires major improvements to 

ensure appropriate functionality to operate in real time with accessibility and reliability. Several States are testing EVVE. However, 

the system will not be fully operational until December 2009. There 

is no electronic accessibility to SEVIS and/or the Department of 

State database. 

We should not be required to use systems that are unreliable or 

under development. These systems should be developed and tested 

before placing the burden on local jurisdictions and the public that 

we serve. Additionally, we believe that Federal agencies operating 

these systems should be prohibited from charging jurisdictions 

transaction fees that only increase our operating cost. 

With respect to re-enrollment, the majority of our licensed drivers in the State of Hawaii are issued State identification cards over 

a 6-year expiration period, so therefore the 5-year re-enrollment as 

called for in the REAL ID Act will present some challenges there. 

We recommend that the period be at least 7 years. 

Finally, with respect to the waivers, to facilitate the processing 

of all applicants, we recommend that applicants who are 72 years 

old or older be granted waivers from the verification requirements 

of the Act. Similarly, individuals who are required to undergo the 

same or more stringent verification process for Federal identification be granted waivers. Last, if an applicant has undergone the 

verification process in one jurisdiction and has been issued a REAL 

ID-compliant driver’s license or identification card, the verification 

process by the gaining jurisdiction should be waived. 

In conclusion, we support the intent of the REAL ID Act, but 

practical considerations aside, Mr. Chairman, the City and County 

of Honolulu cannot afford to implement the requirements of the Act 

without initial and continuing Federal funding. If funding is provided, the time limits for implementation of the program without 

the required electronic verification systems will place an enormous 

burden on the driver’s licensing staff and be a tremendous inconvenience to the public. To ensure long-term success, a more realistic implementation plan should be developed with input from the 

jurisdictions who bear the burden of issuing drivers’ licenses and 

identification cards. 

Thank you for granting me the opportunity to provide our perspective on this issue, Mr. Chairman. 

Senator AKAKA. Thank you very much, Mr. Mayor. Mr. Quam. 

26

1The prepared statement of Mr. Quam appears in the Appendix on page 69. 

TESTIMONY OF DAVID QUAM,1 DIRECTOR, FEDERAL 

RELATIONS, NATIONAL GOVERNORS ASSOCIATION 

Mr. QUAM. Chairman Akaka, Senator Voinovich, thank you very 

much for holding this hearing. I note as you did in your opening 

statement this is one of the first real hearings on REAL ID and 

that may be the most important thing that is happening today: 

Congress is taking an honest look at what this law means both to 

the States and the Federal Government, and probably more importantly, to our citizens. 

I do not know of a single governor who is not a homeland security governor. Every one is very concerned about the security and 

integrity of their driver’s license systems. Most States after 9/11 

were already in the process of improving their systems when REAL 

ID came about. NGA supported the negotiated rulemaking process 

that was put together by this Subcommittee in the Intelligence Reform Act. It is both unfortunate and ironic to note that if that process had been allowed to continue, we probably would be done 

today. 

While several other folks here have noted some of the problems 

with REAL ID, I am going to focus really on solutions. I will note 

that NGA and governors have not called for the repeal of REAL ID. 

What we have done is try to work—governors have tried to work 

with their States, with motor vehicle association administrators, 

and also with legislators to find a fix, and that is going to require 

three things: More time, more flexibility, and additional funds. 

The most important message I can give to this Subcommittee 

and to Congress today is that REAL ID cannot be fixed without 

Congressional action. It cannot be fixed without legislative action 

by Congress. 

First and foremost, provide adequate time. Certainly, everyone 

recognized, including DHS, that May of next year was not enough 

time for States to prepare. NGA recommends that this Subcommittee adopt specific statutory deadlines. Alter the deadlines of 

REAL ID and set them to the later of December 31, 2009, which 

is the extension granted under the proposed regulations, or a date 

that is 2 years after the publication of final regulations, whichever 

is later. That deadline should be set to when States actually know 

the rules. 

Grant all States a 10-year window in which to re-enroll all of 

their citizens. Moving the deadline on the front end but not giving 

a corresponding extension on the back end only means that States 

have to enroll more people in a shorter amount of time. That maximizes cost, minimizes efficiencies, and hinders States’ ability to implement this Act. 

And finally, what several other witnesses here have cited, allow 

us to manage the line. Certain populations can be pushed to the 

end of the line while we give REAL ID to other folks up front. That 

allows States to keep some of the efficiencies that are so important 

to customer service. 

Second, the verification systems. I thought Secretary Barth did 

an excellent job of stating how critical electronic verification is. 

Without it, REAL ID doesn’t work. Until it is online, States should 

27

not have to comply. It is that simple. Congress should amend 

REAL ID to specifically allow States to use existing verification 

practices until all necessary Federal and State systems are fully 

operational and deployed. The States won’t hesitate to put them in 

place, but they can’t be expected to use them until they are in 

place. 

Next, encourage State innovation. I was happy to hear that the 

Secretary may be willing to use his waiver authority and extension 

authority if States are making progress towards implementing 

REAL ID. These are extraordinarily complex systems. It will take 

time to build these systems and to prepare them and fund them, 

especially considering some State legislatures are going out of session. Budgeting time and planning time needs to accommodate 

State schedules. 

I will note, however, that even with the extensions of time, the 

proposed regulations are going to require all States to submit a 

complete certification package by February 10, 2008. That is ahead 

of the original statutory deadline. That plan must include milestones, schedules, and estimated resources needed to meet all the 

requirements of the rule. If we don’t finish this rule until August, 

September, or October of this year, that is a very short turnaround 

for States to do complete planning and go to DHS and say, this is 

how we are going to implement. That deadline should be pushed 

at least 1 year by statute past the time of Federal regulations. 

That is adequate time for the States to plan. States aren’t asking 

to put it off indefinitely, just give them time to plan. 

Finally, sufficient funding, which it has been discussed here repeatedly. It cannot be underscored enough. Congress must provide 

specific authorization of funds to cover the cost of REAL ID over 

the next 10 years. Specifically, it should also appropriate at least 

$1 billion in fiscal year 2008 to fund the initial cost. 

One thing I would like to point out, the cost estimates that were 

done by States were very carefully done. Phone calls were made to 

make sure that all States were comparing apples to apples, oranges 

to oranges. Not to contradict the Secretary, but I am going to contradict him. That was a very careful study and the $11 billion that 

States came up with is a minimum and a hard minimum that it 

is going to cost States to implement. 

Governors are very concerned with REAL ID. Governors want to 

make it work. If DHS wants to give States the flexibility to run 

with it, then they should give it to us completely. States can get 

the job done, but we are going to need time. Thank you. 

Senator AKAKA. Thank you very much. 

I know Senator Voinovich, being a former governor and mayor, 

is very anxious to ask some questions here, so I will try to be brief. 

My first question is for the entire panel. If the final regulations 

for the REAL ID Act are issued this fall and remain substantially 

similar to the proposed regulations, when would your States or a 

majority of States and localities realistically be able to comply with 

the Act? 

Ms. VAN DE PUTTE. Thank you, Mr. Chairman. Our problem is 

not the wanting to comply, it is that we are going to have difficulty 

complying if the verification systems aren’t ready. We can’t set a 

date on which we can comply until the Federal Government itself 

28

has those verification systems operational. What we will have is a 

pretty card with no way to verify a person’s identity. So I think 

that we really need to look at the budget process and the Federal 

Government and how much it is willing to put into the verification 

systems because we can’t comply unless those systems are in place. 

Senator AKAKA. Mayor Hannemann. 

Mr. HANNEMANN. Mr. Chairman, as indicated earlier, counties 

and cities are at the mercy of many of these mandates that come 

from the Congress or the Federal Government or the State. Right 

now, our legislative session is due to end in May. There is no vehicle for any type of funding. They recently, as you pointed out in 

your opening statement, issued a resolution basically expressing 

their concerns. We will not be able to comply at all for the following 

reasons that I indicated in my testimony. So not only is the funding not there, but even if we had the funding, there still are some 

concerns with respect to the verification process, the re-enrollment, 

and obviously the waivers. So it is very unrealistic for us to even 

figure out a way in which to comply given the concerns we continue 

to have. 

Senator AKAKA. Mr. Quam. 

Mr. QUAM. Just to echo that, REAL ID cannot be solved by any 

single issue. Money alone will not do it. An extension will not do 

it. It has got to be a comprehensive solution using both Congressional power and regulatory power at DHS to give States what 

they need. Until we know that picture, we are basically being 

handed a Monopoly board without instructions and saying, go play. 

You have no idea what the objective of the game is or how to play. 

We need the final rules and then we need the time to implement 

them and understand them to move forward. So unfortunately, at 

this time, it is one of the reasons we say REAL ID is unrealistic 

as planned. 

My other concern, Senator, is that the regulations may not look 

as they currently do. I will give DHS its due. The first time we 

really understood how much DHS had listened to States was when 

the draft regulations came out. I was very pleased to hear they had 

been talking to four States, but there are 50 States and five territories that are going to be involved in this process and it is going 

to take time for us to move forward and understand exactly what 

is going to be required of States. 

Senator AKAKA. Thank you. As you know, the regulations do not 

address what someone can do if another State loses or mishandles 

their personal information. Could each of you address how different 

States would handle this situation? 

Mr. HANNEMANN. Let me defer to Dennis Kamimura, who, as I 

said, he has 30 years of running this operation for our State. He 

is also a very active member of AAMVA. And I just wanted to, if 

I may before I turn it to him, Mr. Chairman, just echo what was 

said earlier. We want to participate. We want to be able to give our 

input, and so far, we have been doing it through AAMVA, but we 

would like to see more of a reaching out process on the part of the 

Department of Homeland Security as opposed to cities or counties 

or States petitioning them for input and the like. We think it 

should be a two-way street. As I said, we have been able to do most 

of our input through AAMVA, but we really believe that this is 

29

part of our petition here today, is to get a little more of a reaching 

out process from them. 

Senator AKAKA. Mr. Kamimura. 

Mr. KAMIMURA. Mr. Chairman, essentially, the REAL ID Act 

does, in fact, provide for Federal penalties involved in misinformation or handling of information or release of data, personal data, 

that is not supposed to go out. Speaking for Hawaii, Hawaii does 

have penalties involved with release of personal information and I 

think what happens is that under the REAL ID, we would have to 

comply with whatever the Federal requirements are. But I don’t 

believe that Hawaii would, in fact, loosen its requirements on any 

penalties for stolen identity, for example. 

Senator AKAKA. Mr. Quam. 

Mr. QUAM. What we have heard on the privacy front is a great 

concern for how these databases will be managed, and now that we 

have a better sense with regard to the regulations, there is some 

additional comfort in the States. However, I would note that there 

are several States who have privacy laws that are probably stronger than anything that the Federal Government would actually impose. One of my fears is that the privacy regulations will come out 

and actually loosen State standards with regard to privacy. 

I think addressing privacy may be one of the real critical missing 

links in moving forward. The negotiated rulemaking would have 

addressed that. It would have brought a lot of different players to 

the table. It is unfortunate that was not allowed to finish, but I 

think addressing the different standards States have and not lessening those standards will be critical moving forward. 

Senator AKAKA. Senator Voinovich. 

Senator VOINOVICH. Thank you, Mr. Chairman. 

This is typical of the Federal Government, REAL ID was put into 

the emergency supplemental bill in 2005, with no hearings and no 

consideration about how it is to be implemented. Senator, you are 

from Texas, as you know first hand, we have a problem with the 

border, an immigration problem. If the Congress had given money 

to Customs and Border Patrol to do the job, we wouldn’t have the 

problem today, but we didn’t. Finally, Congress has recognized the 

problem and is funding CBP. This is typical of what we do here in 

the Congress. 

I would like your respective organizations, the National Council 

of State Legislatures, the NGA, to get back to this Subcommittee 

on what you are being asked to do with the State Homeland Security Grant Programs. I think it is ridiculous that they are saying 

to you, take the money and use up to 20 percent of it to offset the 

costs REAL ID. This money has already been spent or allocated by 

the States to pay for other programs like interoperability. 

I would like to get into some specifics about timing. Now, how 

much time after the final rule comes out, assuming that you feel 

that they are decent and proper, would you need to implement 

REAL ID? 

How much time would you think would be reasonable to give 

people in each State the ability to sign up? Much of the cost is 

going to happen during the intial phases of REAL ID as States 

bring people into the program. States are going to have to hire 

30

many more people to handle the registration. Ms. Van de Putte, 

how many new people did you say Texas would need to hire. 

Ms. VAN DE PUTTE. Minimally, our statistics say that we have 

to hire 741 new FTEs, but we are reshifting close to 200 that are 

already in the department. So we have achieved some cost savings 

in other areas, but new hires will be 741 FTES. Senator, that was 

a very conservative estimate. 

Senator VOINOVICH. So you are working harder and smarter and 

you shifted 200 people over that were doing something else, but 

you need 700 to get the job done? 

Ms. VAN DE PUTTE. Yes, sir. 

Senator VOINOVICH. Could I get your opinion on these milestones 

and how you would set the deadlines? 

Mr. QUAM. Senator, I would be happy to, if I may, and starting 

with final regulations as the key date, and why any of the deadlines were not set from there, I am not sure because that is the 

time when States know what is expected of them. That is when 

final regulations actually come out. So let us say that is August. 

Senator VOINOVICH. Why don’t we just say that it is December 

31. 

Mr. QUAM. December 31, excellent. DHS has said from a regulatory standpoint that it wants—it is going to use a certification 

process, which States are familiar with and States actually recommend it. That certification is to present the State plan. We 

would recommend that should be 1 year from the date of final regulations, that the State submits a plan. That will allow us time to 

start putting all the different pieces in place. 

Senator VOINOVICH. One year to submit a plan of how you are 

going to comply? 

Mr. QUAM. To DHS, correct. We would recommend 2 years from 

the date of final regulations before the first REAL ID has to be 

issued, the shorter of that date or the extension that was given 

under the regulations, which is to the end of 2009, whichever is 

later, and part of that is to defend against this regulation dragging 

on. I will note that we only got it this year. We needed this regulation the day the law passed, not 2 weeks ago. 

Senator VOINOVICH. So you are talking 3 years actually from, 

say, December 31 of this year? That is 1 year to submit it and then 

2 years thereafter to——

Mr. QUAM. I am actually talking 2 years from final regulations 

to begin. 

Senator VOINOVICH. OK. 

Mr. QUAM. I think the States could do that and should recognize 

the flexibility DHS has given. 

Senator VOINOVICH. What about if the verification isn’t there? 

Mr. QUAM. That goes to a different issue, which is what does it 

mean to be compliant, and I think a core question is, States can 

meet that in 2 years if they have the flexibility to use whatever is 

at their means to verify identities. If the systems are up, running, 

deployed, working, and populated—that means they have the data 

in them—then States might be in a position to use them. If they 

don’t exist, States have been verifying this information for several 

years using best practices. They should be allowed to continue to 

do that and use those verification processes as we transition. That 

31

way, 2 years from now, States could begin issuing REAL IDs. So 

you have to change the definition of what it means to comply, and 

I focus on the verification systems. If they are there, we will use 

them. If they are not, best practices. 

Finally, the end game. When will we finish this process? We 

have called for a 10-year window from that date, from beginning 

to end, to bring everybody in. Allowing the States to manage the 

line so that people can come in, you can use certain efficiencies—

there are populations, say, born before 1935, or folks who have 

been in the State for 20 years——

Senator VOINOVICH. In other words, what you would do as part 

of your application is you would do some kind of a risk assessment 

about how States are going to phase-in people based on your experience, like I think you mentioned somebody who is 83 years old. 

Give me a break. 

Ms. VAN DE PUTTE. If a resident had a driver’s license for more 

than 60 years, exempt some sort of population—sorry for the interruption, Mr. Quam. 

Mr. QUAM. No, please. 

Ms. VAN DE PUTTE. But those are the sort of things, Mr. Chairman, that we are looking at. But the timing issue—this couldn’t 

happen at a worse time because most States will be out of legislative session, and several States are biennial legislatures, like 

Texas. And so we will hopefully have left to go back to our home 

cities after Memorial Day, and so there is this time lag. So the 

quicker that we can get these types of rules and regulations, we 

want to do it, we want it done right, but our fear is that we are 

going to have a really pretty card that gives people a false sense 

of security, but if you don’t have the verification systems, if we are 

not able to have the flexibility, then it is really meaningless. 

And everyone wants to adhere to the goals. I think what you 

have heard from us today is no one doubts the goals and we are 

all in agreement with that. It is the ‘‘how to,’’ and we have had real 

problems with the ‘‘how to’’ and it is ironic, in fact, that had we 

continued with the negotiated rulemaking, we would have probably 

had this solved by now. 

Senator VOINOVICH. Thank you. 

Mr. HANNEMANN. Mr. Chairman, if I just might, just to add a 

few comments there. Normally, I would defer to our governor to 

make a statement on behalf of our State, but in this particular case 

there, as you know, Senator Akaka, in Hawaii, the counties issue 

the State drivers’ licenses, not only for the County of Honolulu, but 

for Maui, Kawaii, and the big island. We would like as much time 

as possible. I have heard what our representative of NGA said, and 

even at that, we would really be pushing it. So we need as much 

flexibility and time. 

I heard Senator Voinovich speak about some of the unique issues 

he faces with Canadian visitors that come to his State. Well, we 

are also particularly concerned with many of the foreign visitors. 

As you know, we are a State that is dominated by tourism. We depend on foreign visitors. Many of them invest in our economy. That 

would be another major concern, to get as much information out 

that this is all part of national security, but at the same time, we 

32

want to continue to maintain good relations with our international 

visitors and the like. 

Senator AKAKA. Thank you. We will have a second round. 

Senator Van de Putte and Mayor Hannemann, we have all heard 

of the enormous unfunded mandate and the impact this will have 

on the States. Could you both describe exactly how the costs will 

break down in your States or counties to describe what the average 

American will have to do to get a REAL ID driver’s license under 

the proposed regulations? 

Ms. VAN DE PUTTE. Thank you, Mr. Chairman. Our cost estimates were done very conservatively and we were using the same 

methodologies as all the States and the counties in Hawaii. Very 

conservatively, for my State, we have a population of about 24 million, about 18.5 million drivers’ and identification card holders. We 

would have to, under the timeline set by this guideline, fit about 

13.8 million in that shortened time frame. We just physically can’t 

do it. Our implementation total for first-year costs is $142.6 million 

and an annual cost of $67 million. 

But the real problem in our State, as in a lot of other jurisdictions, is that we wanted to utilize technology and to make it easier 

for our citizens, particularly those who have had drivers’ licenses 

and identification cards for a long time, and so we allowed the 

mechanisms of the Internet for Internet renewal and mail renewal, 

and so, in fact, for efficient government, we closed down lots of offices. We utilize technology. And we know now that because of 

these regulations, we will have to have about 741 new FTEs, and 

then we have shifted within the department some that would be 

able to do this. But we are going to have to open up 18 new offices 

and retrofit about 28 other new offices. 

Part of our cost that we don’t know will be what the security requirements are going to be for the physical locations. Under the 

draft rules and regulations, all of those physical requirements of 

security are for States and jurisdictions that issue over-the-counter. 

So, in other words, the application is made, all the verification is 

made, and then they receive the identification there. Some jurisdictions and States have a central location where they disperse, but 

Department of Homeland Security rules are going to require all of 

us to have every single office, and even in our rural areas, you 

might co-locate in a county clerk’s office or in a rural community 

in the township’s city offices. And so we have a lot of this sharing. 

We will not be able to service our rural citizens because of the security costs that have been mandated by the Department of Homeland Security for the integrity of the building itself. 

So our costs break out to the majority of FTE. The other ones are 

the software and the verification. But many States were going 

along that pathway anyway. We were putting in millions of dollars 

for enhancing our security. But I think that what we see is the 

cost, and with all due respect to our folks at Homeland Security, 

when we know it is going to be $11 billion, to offer $40 million was 

almost an insult. And then their action to us when we asked them 

about the funds is that, oh, it is not our job. Our job is to put out 

the rules and regulations and that is Congress’s job. So in other 

words, what they are telling you is that they are telling us to come 

talk to you about the funds. It doesn’t make sense that they are 

33

asking us, the Department is asking States and jurisdictions to try 

to put the heat on Congress to fund it. Their answer is, it is not 

our job. 

Senator AKAKA. Thank you. Mayor Hannemann. 

Mr. HANNEMANN. Yes. We give out about 867,000 drivers’ licenses, of which 70 percent of that is issued out of the City and 

County of Honolulu. We estimated that of the $25.55 million, and 

once again, it is just a very rough estimate given what we know 

at this time, to implement the program in the first year will be 

$7.67 million. Over a 5-year period, it would be $17.88 million. 

Mr. Kamimura runs his department with about 85 employees 

just to do drivers’ licenses. Obviously, we are going to have to ramp 

that up. Our satellite city halls and various distribution points 

throughout the City and County of Honolulu will be challenged 

enormously. I think we will be facing everything from challenges 

to over-the-counter type of application processes to the long lines 

that everyone will experience. But I would expect that this number 

could increase as we know more about the challenges that we face 

and the opportunity that we have to leverage what the other programs are. 

In fact, I talked about some of the databases that we need to access, the systems that need to be set up, and I know that my Director of the Department of Information Technology, Gordon Bruce, 

who works very closely with Mr. Kamimura’s department on this 

whole aspect of making sure that we are spending more time online 

than waiting in line, he has expressed several major concerns 

about the REAL ID. 

So these are just initial costs. It is obviously going to be very 

complicated, and therefore, if we are going to go forward, again, I 

hate to sound like a Johnny one-note, but we are going to need 

enormous Federal help, especially in the area of funding, to be able 

to even get to first base on this issue. 

Senator AKAKA. Thank you very much. Senator Voinovich. 

Senator VOINOVICH. Let us talk about Texas again so that everyone understands how difficult this is and how expensive it will be. 

First of all, you are going to have to get 700 more FTEs. 

Ms. VAN DE PUTTE. That is correct. 

Senator VOINOVICH. Then you are going to have to open up 18 

new offices. Finally you will have to comply with new databases in 

order to verify the individuals. 

So the real issue is how do we help you get the job done? I would 

be interested in your response to some kind of partnership. What 

if we paid for the initial, cost all of the software and other things 

that you would need to do to implement this? 

Ms. VAN DE PUTTE. Yes, sir. The cost estimates that I have are 

based on the verification of documents using those five different 

systems that were talked about. It is an implementation cost of 

$3.4 million and an annual cost of $1.5 million. And so I would 

imagine that is probably about $5 million when our overall costs 

to implement are $210 million. So I guess if you take a percentage 

of that, that is just the verification of documents. 

I think that what is a bigger cost for us is the minimum document requirements itself. The implementation cost of that, again, 

$15 million for my State with an annual cost of almost $17 million, 

34

and that is requirements for the document itself. So those two put 

together might be something that would be workable for us. 

But I think that each State is going to be different. There are 

some states that did not utilize technology in the 1990s, and particularly the late 1990s, and so they may have lots of physical 

spaces and offices out there and may not have done as some of our 

states that tried to be more efficient. 

Senator VOINOVICH. Could you do me a favor? I would like, and 

Mr. Chairman, I think that the Subcommittee would agree, I would 

like the NCSL and NGA to give me the details of the costs. I can 

tell you that there is no way that the Federal Government is going 

to pay for all of this. But I think if you came back with a proposal 

with some kind of partnership it would be easier for this Subcommittee to develop some kind of funding program for REAL ID. 

Senator AKAKA. Mayor Hannemann. 

Mr. HANNEMANN. Mr. Chairman and Senator Voinovich, I think 

that is an excellent idea, this idea of a partnership that you are 

talking about. We would wholeheartedly also recommend the 

American Association of Motor Vehicles Association that we work 

very closely with to tweak some of the numbers and so forth. 

My concern is always not only the implementation, but the ongoing maintenance costs, so we obviously would be very willing to 

participate in that, so we could——

Senator VOINOVICH. Mr. Chairman, one other thing, and I am 

sure this is how OMB works, they figure like even sewer and the 

water and the rest of it. Let them raise their rates locally and pay 

for it. 

Mr. HANNEMANN. Absolutely. I have risen my sewer rates twice. 

[Laughter.] 

Senator VOINOVICH. You are talking about annual cost. How 

much more will you have to charge for the new ID? I would like 

to get some idea of what those annual costs would be. 

Mr. QUAM. Senator, if I may, a couple of things that are in the 

cost impact study that was done by NGA, AAMVA, and NCSL. I 

am very happy to report when the negotiated rulemaking ended, 

the three groups came together as the key stakeholders and basically said, we have to continue this good work. We have to make 

sure that our voice is heard in this context. And so we have worked 

very cooperatively together and it has been an excellent partnership and we would love to extend it to the Federal Government and 

Congress. I will note in that report that $1 billion, the $1 billion I mentioned for an appropriation up front, is one-time cost. That was actually estimated by the States, one time, get the systems, buy 

them, man them, get the software, get everything up and running, 

one-time cost was $1 billion. The ongoing cost, then, over 5 years, 

you get to $11 billion over five years. 

You made a very excellent point and one that is often missed. It 

is not stated in the regulations, but it should be plain to everybody. 

The Department of Homeland Security sees this as a fee-based system. In other words, we are going to pass the cost along to folks 

getting a driver’s license or identification card. 

Senator VOINOVICH. And by the way, they will raise thunder 

with you——

35

Mr. QUAM. Absolutely. 

Senator VOINOVICH [continuing]. And the Members of Congress 

will walk away and say, we didn’t do it. [Laughter.] 

Mr. QUAM. That is exactly right. The number we use is the $11 

billion over 5 years divided by 245 million driver’s license holders, 

because we have to bring everybody back in in 5 years. That is 

pretty easy math. That is about $45 additional per card. Now, I am a Maryland resident. It costs me $30 to renew. An ad- ditional $45 on top of that for my REAL ID. I need to get a new 

certified copy of my birth certificate. I went online today to see 

what that would cost me. That is another $43 that it is going to 

cost me to get Colorado to send me a certified birth certificate. And 

just to be safe, so I can get on the airplane in the meantime, if I 

want a passport, well, the passport fee is $96 and you have got to 

wait 10 weeks to get it. If you want to expedite that, tack on another $60. You add that list up and you are at $274. 

Now, our citizens personally want to be secure and will stand in 

long lines to be secure, but if we don’t really add value to this card 

as we move forward and do it in a responsible way, their resolve 

is going to end at some point, and you are absolutely right—their 

patience will run out and it will run out with local officials first 

and then with Congress. 

Senator VOINOVICH. One last point and then I will finish up. I 

get weekly reports from my constituency office. The passport offices 

are being overwhelmed today because of WHTI. It is unbelievable, 

the demand for passports. The passport offices don’t have the people to take care of their customers. 

Senator AKAKA. I want to thank this panel very much. You have 

been very helpful and I want to thank you for being here and for 

your responses. I also want to extend my appreciation to those of 

you who traveled from out of town to be here today and I hope you 

have a safe trip back home. 

Ms. VAN DE PUTTE. Thank you, Mr. Chairman, and thank you 

very much for having us here. I did want to note with Senator 

Voinovich’s comments that part of our cost estimate is for new 

signage. In the Texas statute, we will have signage at each of the 

new offices that say that this is a Federal law that the State did 

not pass nor did the State fund and it will have the addresses and 

phone numbers of our two Senators and the local Member of Congress. [Laughter.] 

Senator AKAKA. Thank you very much. 

Ms. VAN DE PUTTE. Thank you, Mr. Chairman. 

Senator AKAKA. I now call the third panel to come forward. 

On our third panel we have Timothy Sparapani, Legislative 

Counsel for Privacy Rights at the American Civil Liberties Union, 

and Jim Harper, Director of Information Policy Studies at the Cato 

Institute. 

As you know, it is the custom of this Subcommittee to swear in 

all witnesses. I would ask for you to stand and raise your right 

hand. 

Do you solemnly swear that the testimony you are about to give 

this Subcommittee is the truth, the whole truth, and nothing but 

the truth, so help you, God? 

Mr. SPARAPANI. I do. 

36

1The prepared statement of Mr. Sparapani appears in the Appendix on page 74. 

Mr. HARPER. I do. 

Senator AKAKA. Thank you very much. Let the record note that 

the witnesses answered in the affirmative. 

Mr. Sparapani please proceed with your statement. 

TESTIMONY OF TIMOTHY D. SPARAPANI,1 LEGISLATIVE 

COUNSEL, AMERICAN CIVIL LIBERTIES UNION 

Mr. SPARAPANI. Thank you, Mr. Chairman. On behalf of the 

ACLU and its half-million members, we recommend that this Subcommittee mark up your legislation, S. 717, the Identification Security Enhancement Act, to replace Title II of the unworkable REAL 

ID Act. Because Senators never considered REAL ID on its merits, 

they should be free to vote to replace it with a licensing scheme 

that is both achievable and free of privacy and civil liberties concerns. 

As you can see from the map, the REAL ID rebellion is sweeping 

the country. As of today, 30 States are moving to reject REAL ID 

and calling for Congress to replace it. Maine and Idaho have enacted legislation to completely opt out. Driven equally by the extraordinary threat the Act poses to privacy and civil liberties and 

its prohibitively expensive cost, States are telling Congress that no 

matter the consequences, they will not participate. Drivers and 

DMV officials are telling Senators to expect lines at every DMV, 

not just out the door, but around the block, every day. Congress 

must respond to this outcry, and I believe your legislation does 

that. 

Therefore, the ACLU recommends three things. One, Congress 

should replace Title II of the REAL ID Act by enacting S. 717, 

which reestablishes a more workable process for improving drivers’ 

licenses. 

Two, members should submit comments calling on DHS to withdraw its Notice of Proposed Rulemaking. 

Three, Congress should refrain from appropriating any funds to 

implement the REAL ID Act. Quite simply, there is no point in 

throwing good money after bad. 

Because time is short, I will just mention that REAL ID raises 

intractable constitutional problems. It threatens First Amendment 

rights and arguably violates the constitutional principles of federalism by usurping State authority. 

Make no mistake, REAL ID will be the national ID card. Since 

the Act’s passage, legislators have proposed requiring everyone 

present a REAL ID to vote, get a job, obtain Medicaid, open a bank 

account, and travel on interstate busses, trains, and planes. In 

short, no person would be able to function in our society without 

providing a REAL ID. 

Additionally, REAL ID and DHS regulations pose unprecedented 

threats to privacy in four areas. Those four are data on the face 

of the ID card, data in the machine-readable zone on the card’s 

back, data in the interlinked national ID database supporting the 

cards. 

And four, regarding transmissions of data between users. I will 

just mention a few of these privacy problems. 

37

First, data on the face of the ID card. REAL ID wipes out in 

States what are called address confidentiality laws by requiring 

that an individual’s principal address be stated on the face of the 

license versus having a post office box. Consequently, police officers, elected officials, judges, and others will have their home address readily available to anyone who would want to see it. More 

importantly, an actual address endangers people like victims of domestic violence and sexual assault who are trying to flee their 

abusers. 

Unencrypted data in the machine-readable zone creates an enormous threat, a new threat, Senator, of private sector third-party 

skimming of data and resale of data contained in that machinereadable zone. DHS’s proposed regulations failed to close the loophole because they do not require encryption. 

Contrary to DHS’s assertions, it will become increasingly profitable for private sector retailers to skim each customer’s data because the format of data collected will be standardized nationwide. 

This creates a huge new threat. Retailers will demand that customers provide these licenses for anti-fraud or customer loyalty 

purposes and then they are going to retain all the data. And then, 

of course, these companies can then resell it in two different ways. 

One, they can sell it for highly targeted and highly invasive direct 

marketing back to the people, or two, they can sell it to what we 

call data brokers, companies like ChoicePoint or Axciom or Lexis–

Nexis, who in turn can sell it to other companies and to the Federal, State, and local governments. In short, Senator, everyone is 

going to know in the future what we bought and when we bought 

it, including books, magazines, medications, contraception, anything you can imagine. So, essentially, we have got some significant problems there. 

There are also problems with data in the National ID Database. 

And again, contrary to DHS’s assertions, this unprecedented data 

aggregation imposed by REAL ID will actually make America, I believe, more vulnerable to terrorism and crime, not less vulnerable, 

and that is because we are going to have, I think, massive identity 

theft and fraud. That is because the Act is going to require that, 

at a minimum, a huge new set of data along with biometric information and these documents, the source documents you have heard 

about, be aggregated in one place. And then, of course, we are 

going to make this data set available to hundreds of thousands if 

not millions of Federal, State, and local employees. 

In addition, the identity theft and document fraud are going to 

be far more serious. Instead of obtaining just one password, an ID 

thief is going to have a treasure trove of data, and that is because 

DHS failed to build in basic computer security and safeguards. 

I will mention one final data privacy problem, and that is that 

the REAL ID database, I believe, is going to lead to significant new 

data mining, and that is because, again, DHS refuses to prohibit 

data mining of this data set, not only by itself, but by any other 

Federal, State, or local agency. And prior to REAL ID, it was impractical to do this data mining. But when you aggregate and link 

the data sets, sir, you are going to end up with the easy kind of 

data mining that I think many of us would want to avoid. 

38

1The prepared statement of Mr. Harper with attachments appears in the Appendix on page 

89. 

So in closing, I just want to say, Senator, for this Subcommittee, 

it is your first opportunity to stop these abusive intrusions into 

America’s privacy by DHS, and again, we would like to call on Congress to replace Title II of the REAL ID Act with an achievable licensing plan that does not threaten personal privacy or civil liberties. 

Thank you, Senator. 

Senator AKAKA. Thank you very much. Mr. Harper. 

TESTIMONY OF JIM HARPER,1 DIRECTOR, INFORMATION 

POLICY STUDIES, THE CATO INSTITUTE 

Mr. HARPER. Thank you, Chairman Akaka. Thank you for inviting me to be here today, and congratulations to you on your leadership on this issue, along with Senator Sununu, introducing legislation to repeal REAL ID and restore the identity provisions in the 

Intelligence Reform Act that preceded it. 

I am Director of Information Policy Studies at the Cato Institute, 

which is a research foundation dedicated to preserving limited government, individual liberty, free markets, and peace. I also serve 

as an advisor to the Department of Homeland Security through the 

Data Privacy and Integrity Advisory Committee, which advises the 

Privacy Office and the Secretary of Homeland Security on privacy 

issues. Today, I speak only for myself, not for the committee or for 

my Institute. 

I have written a book on identification and identity issues that 

includes REAL ID. It is called, ‘‘Identity Crisis: How Identification 

is Overused and Misunderstood,’’ so I think I am well-studied on 

this issue and hope to share some of my knowledge with you today. 

I am going to be a little bit plainspoken at the outset here. We 

have done a lot of green-eyeshade stuff on previous panels about 

where the dollars come from and where they go. But I think the 

best conclusion is that the REAL ID Act is a dead letter and all 

that remains is for Congress to declare it so. 

Let me make three points and then offer one recommendation, if 

I can, regarding your legislation. 

First, on privacy, I think Tim Sparapani and the ACLU have 

done a great job of articulating the privacy concerns and I join 

them in their concerns. The Department of Homeland Security’s 

regulation punted on some of REAL ID’s most important technology, security, and privacy problems. 

I want to emphasize briefly why concerns with the card are so 

substantial. Economists know that standards create efficiencies 

and economies of scale. When railroads in the United States moved 

to a single track width, much more transportation occurred on the 

railroads because there was a single standard. 

I realize that is not a good example to use with a Senator from 

Hawaii, but understand that standards, a national standard in an 

ID card, means that ID cards will be used a lot more. You will have 

economies of scale in building the card readers, in the software and 

the databases to capture and use the information from the cards. 

Americans will inevitably be asked more and more often to produce 

39

their REAL ID and share the data from it when they engage in 

every kind of governmental and business transaction. 

Others will use the information collected in State databases and 

harvested from REAL ID cards. Ann Collins, who is the Registrar 

of Motor Vehicles in the State of Massachusetts, spoke to the DHS 

Privacy Committee last week and she said, ‘‘if you build it, they 

will come.’’ What she meant is that masses of personal information 

will be an irresistible attraction to the Department of Homeland 

Security and to others to dip into for an endless array of different 

purposes. 

For good or bad, an ID card system is a sort of surveillance system and it is becoming increasingly clear that REAL ID is a surveillance system focused on the law-abiding as much as the wrongdoer. 

I want to briefly talk about national security issues, because the 

privacy and dollar costs of REAL ID would be worth it if REAL ID 

got us any measure of security. If it improved the protections we 

have now, I think we would all be in favor of REAL ID, but it 

doesn’t. You have heard the cost figures, so I won’t belabor them. 

I was very concerned about the lack of risk management-oriented 

discussion I heard even today from Assistant Secretary Barth. Creating a national identification scheme does not just attach a known 

accurate identity to everyone in the country. It causes the wrongdoers to change their behavior. Sometimes this will control risk. 

Sometimes this shifts the risk from one place to another. And other 

times it can create even greater risks. 

I want to give you an illustration about how a system like this 

works from a report that was released just last week in the United 

Kingdom. The U.K. home secretary’s office released a report saying 

that about .5 percent of all U.K. passports are based on fraud. That 

means about 10,000 per year are issued based on fraud. Now, what 

kind of security do you get from that system, if you have a .5 percent fraudulent error rate? That is not a security system for purposes of national security. That is not a security system against 

committed terrorists. Perhaps the U.K. should have a national ID 

so we in America don’t have to. 

In my written testimony, I have submitted a better cost-benefit 

estimate than DHS did, and I am disappointed that they did not—

they have not done better risk analysis up to this point. But all the 

money that goes into REAL ID is, as Senator Voinovich emphasized, coming away from other programs that are just as important. 

Finally and briefly, I want to emphasize an issue that I think is 

very important that has not been considered yet, one that I realized was quite prominent when I went through the regulations and 

the specifications in the regulations. The specifications called for by 

DHS to go on REAL ID-compliant cards has race and ethnicity as 

one of its key data elements. DHS does not specifically require inclusion of this information, but States are likely to adopt the entire 

standard when they do get in compliance. Thus, in May 2008, 

many Americans may start carrying nationally uniform cards that 

include race or ethnicity in machine-readable formats. This will be 

available for scanning and collection by anyone with a bar code 

reader. Government agencies and corporations alike may affiliate 

40

1The ID card from Rwanda appears in the Appendix on page 107. 

racial and ethnic data more closely than ever before with information about our travels through the economy and society. 

On this poster, I have reproduced the design specifications, 

which indicate race and ethnicity, and here is how they would be 

indicated on a card. This is an example of what a card may look 

like, the two–D bar code. And I have included here, because this 

is such an important issue, an ID card from Rwanda.1 In Rwanda, 

a national identification system that included ethnicity was very 

useful in the unfortunate, horrible genocide that occurred there. I 

do not believe that this was intentional on the part of DHS or anyone in Congress to have this kind of system. It is a product of error 

and it is a product of this system and REAL ID not being carefully 

considered in Congress before the law was passed. 

With that, I have taken up quite a bit of your time. I have recommendations in my written testimony that I would refer you to. 

Thank you very much for hearing me out and taking my testimony. 

Senator AKAKA. Thank you very much for your testimony. 

Both of you have discussed how the REAL ID Act infringes on 

Americans’ privacy rights and civil liberties and have spoken in 

support of my legislation which would repeal REAL ID and replace 

it with the negotiated rulemaking process in the Intelligence Reform Act. Other than a straight repeal and replace, are there any 

changes that can be made to the REAL ID Act that would specifically address the concerns you both raised today? Mr. Sparapani. 

Mr. SPARAPANI. Yes, Senator, I think there are a couple that 

could be made. I mentioned one, or at least alluded to it in my testimony. I am really quite concerned, and the whole privacy world 

is concerned about this new threat about third-party skimming of 

data off the back of the card. Congress really needs to do what it 

did in part back in 1994 when it passed the Drivers’ Privacy Protection Act in closing down privacy loopholes involving this important data. Congress should specifically prohibit the resale of that 

data, or the sharing of data with an additional third party beyond 

the party that is collecting it. 

Additionally, I would just like to say on the constitutional standpoint, there are some intractable constitutional problems and I 

think you would have to rewrite large portions of the Act to get to 

that point and I think your legislation understands that. But clearly, we have got some First Amendment concerns here that won’t be 

addressed unless there is a specific statutory exception created for 

some of those well-respected Supreme Court-protected rights. 

Senator AKAKA. Mr. Harper. 

Mr. HARPER. I don’t believe that REAL ID can be fixed. I don’t 

believe it can be improved and made to work. The Chairman of the 

full Committee, Senator Lieberman, said when REAL ID passed 

that the law was unworkable. It remains unworkable today and the 

proof of it is borne out on the earlier panels. 

I don’t think that a national ID system of any stripe or character 

can provide the security that a lot of people assume it does. So it 

is important to have a conversation about this, to learn how ID actually works, how it breaks, what it is useful for, and what it is 

not useful for. 

41

In my written testimony, I have suggested considering some of 

the emerging digital identity management systems that are coming 

online. There are systems that exist today that can prove, for example, to the TSA that you are a member of the Registered Traveler Program but that don’t tell the TSA who you are, and that is 

an important, narrow anti-surveillance feature. Prove to the TSA 

that you have been secured by their processes, but don’t give them 

the opportunity to record where you have been and where you have 

gone and that kind of thing. 

These systems are coming online now. They are a little bit future-oriented. We should look down the horizon to these systems. 

But the last thing we want to do is build a government system, 

spend these millions and even maybe billions of dollars to build 

these government systems that ultimately are dead ends, very expensive dead ends. We need to integrate with the systems of the 

future, and so I think the whole thing needs to be reconsidered and 

this hearing is a good start. 

Senator AKAKA. Mr. Harper, in your testimony, you mentioned 

how by creating REAL ID the Federal Government and the private 

sector will find creative uses for the data outside of the reason for 

which REAL ID was intended. Can you discuss some of these other 

ways the information on a REAL ID card or in a REAL ID database can be used? 

Mr. HARPER. Well, it is interesting to travel in homeland security 

circles sometimes because you hear lots of talk about different 

plans that people have for REAL ID once it is in place. Let us do 

this with it. Let us do that with it. Frankly, the Department of 

Homeland Security itself has retreated somewhat from the idea 

that this provides security benefits. Secretary Stuart Baker came 

and spoke to the DHS Privacy Committee and suggested how 

strongly it would prevent against identity fraud. I proceeded to go 

to the regulatory docket and found that the estimate there is that 

it would prevent $1.6 billion worth of fraud. That is a $17 billion 

cost to save $1.6 billion. It doesn’t quite balance out. 

But other proposals, we would use this to prevent underage 

drinking. We would use it to prevent underage smoking and that 

kind of thing. A terrific regulatory system, a terrific police state 

system for controlling all of our personal behavior. But that is inconsistent with the way we are supposed to live in the United 

States. It is inconsistent with having a free country. We do indulge 

a little unlawfulness along the margins, and many people who 

went to college understand that in terms of ID. When you are 20 

years old, you really want to hang around with your 21-year-old 

friends. Do we want to make a $50,000 or $100,000 penalty come 

down on that kind of person? I think that is going the wrong direction. 

So there are lots of different ways to regulate and control the 

generally law-abiding populace and REAL ID would help with that, 

but I don’t think that is what we want to do. 

Senator AKAKA. Mr. Sparapani and Mr. Harper, as you know, the 

proposed regulations leave open the question of how States are to 

share drivers’ information with each other. However, DHS repeatedly claims that the system will resemble the Commercial Drivers’ 

42

License Information System. What is your opinion of CDLIS and 

the privacy protection that is in place? Mr. Sparapani. 

Mr. SPARAPANI. It is a good question, Senator. If you listen to Mr. 

Barth’s statement earlier today, and in your question and answer 

period with him afterwards, I think he went at great length to talk 

to you about interconnectivity between systems of systems and networks. I think we are talking about a maximal sharing of data, not 

a minimal sharing of data. And so, in fact, I am really quite concerned about the volume. I mean, he showed the chart with all of 

the systems that would come online and that they would all need 

to talk to each other. 

This isn’t going to look like CDLIS. This is going to look like 

CDLIS on steroids, if you will. So we are really talking about a 

plussed-up maximum sharing of all of our most sensitive personally 

identifiable information, and that is exactly the information that 

we don’t want to have get in the hands of terrorists, immigrant 

smugglers, sophisticated criminals, and it will be easy and ripe for 

the taking and we will put it all in one place and then we will 

transmit it widely for anyone to intercept. I think it is the worst 

choice we could have made. 

Mr. HARPER. Allow me to speak about CDLIS in terms of data 

security. Security turns out to be not a function of what you do to 

protect a thing, it turns out to be a function of how motivated your 

attacker is. I have got a shoebox at home that has never been 

breached. It has never been the subject of a breach. If I put information in there, a business card, no one would ever look at it. If 

I started to store bars of gold in that shoebox, it would be much 

more likely that that system would be breached. 

So if you take the CDLIS model and expand it out to records 

about politicians, law enforcement officials, Paris Hilton, if you 

make that system the security that terrorists want to break, well, 

that is a much more attractive system and it is much more likely 

to fail than the CDLIS of the past, which has information about 13 

million truck drivers. 

Senator AKAKA. I have another question for both of you. Although the REAL ID Act replaced the negotiated rulemaking under 

the Intelligence Reform and Terrorism Prevention Act of 2004, I 

understand that DHS has been working with the privacy community to protect personal information. Can you tell me how you have 

been working with DHS and what recommendations you made to 

the Department that you see reflected in the proposed regulations? 

Mr. HARPER. Well, Tim Sparapani was good enough to convene 

a couple of meetings with the regulators, and they were good to 

hear from us. It was welcome to have that input. So there is no 

fault in terms of the process or the people at DHS. 

I recommended that these databases, which are created subject 

to Federal law for Federal purposes, basically using a Federal mandate, should also be subjected to Federal laws like the Privacy Act. 

Condition compliance with REAL ID for States. Condition their certification of compliance on the fact that they have met Privacy Act 

standards. Condition that compliance on the fact that they have 

met FISMA, the information security law. 

DHS chose not to do that, citing federalism concerns that I think 

are a little stretched. Given the fact that the REAL ID Act was deVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
43

signed to eviscerate the distinction between the State and Federal 

Governments, and I think that is inappropriate, being especially 

carefully and following Marquise of Queensbury Rules when it 

comes to privacy and data security is a little bit off. 

Senator AKAKA. Thank you. 

Mr. SPARAPANI. Senator, if I could respond very briefly, indeed, 

we were invited in to come and meet with DHS, but what I have 

heard over and over again over the last 2 years, and it is a remarkably long period of time, is something that is baffling to me. Here 

is the justification DHS is using for having a minimal approach to 

privacy in these regulations. They say that because the word ‘‘privacy’’ does not appear in the statute, they don’t feel that they have 

sufficient authority to grant maximal protection to this information 

that we know, frankly, is more valuable than the gold in your bank 

account because it can be used for all sorts of other purposes besides just financial fraud. 

So with respect to the DHS Office, they have been good about 

meeting with us, but they have turned a deaf ear to the fact that 

in the information age, personal information is more valuable than 

gold and has to be protected at a much higher standard. We have 

to treat this like a bank vault. 

Senator AKAKA. Thank you for that. Mr. Sparapani, you mentioned several constitutional concerns with the REAL ID Act in 

your testimony. Would you please elaborate on those issues? 

Mr. SPARAPANI. Senator, they are really unprecedented, as I said, 

and as my written statement elaborates on. I see at least four different First Amendment concerns, a Second Amendment concern, 

a derivative Sixth Amendment concern, and probably a Tenth 

Amendment concern, as well as significant due process concerns. 

Let me just touch on one of the due process concerns very briefly. 

If the government begins to demand that people produce a REAL 

ID-compliant driver’s license to get all sorts of benefits, to enter a 

Social Security office, etc., many people in our society, lawful, lawabiding Americans, won’t be able to produce the documents they 

need to get a REAL ID. And then when they need to get certain 

benefits, whether they be Medicaid or Social Security disability, 

etc., they won’t even be able to get into the room to meet with the 

government officials to obtain those benefits. 

Similarly, if we begin to say that people who don’t have a REAL 

ID license can’t enter certain Federal buildings, they will not be 

able to exercise, I think, their First Amendment-protected right to 

petition their government for redress. Now, in Washington, everybody knows nothing is more important than having a face-to-face 

meeting with your elected official so you can actually ask to have 

your concerns addressed. Again, when ID becomes a barrier to people exercising their constitutionally-protected rights, we have extraordinary problems. 

I think it is these kind of constitutional weaknesses in the law 

which are going to require a complete rewriting of certain sections 

of the Act. I think that is why S. 717, the bill that you have introduced, is really the appropriate direction to head. 

Senator AKAKA. I want to thank you both so much for your responses. This has been a very interesting hearing and your testimony will help the Subcommittee with our work. 

44

Several of the problems with the regulations that have been 

identified are the direct result of the strict statutory language of 

the REAL ID Act. Based on our discussion today, it is evident that, 

at a minimum, Federal funding is needed to help State Governments enhance the security of drivers’ licenses and legislative action is required to ensure that Americans’ privacy and civil liberties are protected. I look forward to working with my colleagues 

and stakeholders to address these vital issues and look forward to 

working with you, also. 

The hearing record will be open for 1 week for additional statements or questions from other Members. 

Again, this has been an excellent hearing. This hearing is adjourned. 

[Whereupon, at 5:05 p.m., the Subcommittee was adjourned.] 

(45)

A P P E N D I X 

PREPARED STATEMENT OF SENATOR LIEBERMAN 

I want to thank Chairman Akaka for convening this hearing today which will provide the Committee an opportunity to finally shine much needed light on the REAL 

ID Act of 2005 by reviewing the rules that have been proposed for this program in 

an open forum. 

Earlier this month, the Department of Homeland Security (DHS) issued a Notice 

of Proposed Rulemaking (NPRM) implementing the REAL ID Act. The NPRM, 

which took the Department almost 2 years to issue, does little to alleviate the concerns that I, and many of my colleagues, expressed 2 years ago when the REAL ID 

Act was attached to an emergency spending bill and forced through Congress without debate or substantive consideration. 

The proposed regulations will cost approximately $23 billion according to the Office of Management and Budget, will bring Department of Motor Vehicle offices 

across the United States to a stand still, and may actually jeopardize security. We 

should not cause undue burden to the American public if security can be achieved 

in a more sensible way. 

I remain fully committed to increasing the security of drivers’ licenses and identification cards, which should be a top priority for this country. However, I am concerned, as I was 2 years ago, that the REAL ID Act impedes rather than facilitates 

the achievement of that goal. 

In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act 

to implement the recommendations of the 9/11 Commission. Senators McCain, Collins and I worked together closely to produce reasonable, bi-partisan solutions based 

on the Commissioners’ recommendations. One recommendation required the Federal 

Government to set national standards for the issuance of drivers’ licenses and identification cards. This was based on the Commission’s finding that many of the 9/

11 hijackers obtained U.S. identification documents, some by fraud. We took this 

recommendation seriously and carefully crafted provisions—with input from both 

sides of the aisle and all interested constituencies—to increase the security and reliability of drivers’ licenses and identification cards. Our provisions were endorsed by 

state and local governments, the Administration, and a range of immigration, privacy, and civil liberties advocacy groups. 

Regrettably, the REAL ID Act repealed those balanced provisions and replaced 

them with an unworkable, burdensome mandate. I opposed the REAL ID Act because I believed it imposed such unrealistic requirements that without substantial 

time and resources, it would not be implemented, making the Nation less safe as 

a result. If the original Intelligence Reform Act provisions had not been repealed, 

States would be well on their way to securing drivers’ licenses today. Instead, DHS 

was saddled with implementing such a controversial and complex law that the Department took 2 years to issue regulations. 

After reviewing the NPRM, I remain concerned about REAL ID implementation 

because it does not appear that DHS has addressed many of the problems and concerns identified 2 years ago. 

First, the REAL ID Act requires States to verify all documents used to obtain a 

REAL ID, such as a birth certificate. To do so, States must rely on a series of electronic systems and federal databases. Yet some of these databases don’t exist or are 

incomplete. Others are known to contain inaccurate data. One of the most egregious 

examples is the Electronic Verification of Vital Events (EVVE) system, which was 

developed by the National Association for Public Health Statistics and Information 

Systems (NAPHSIS) to provide a single interface for verification of birth and death 

records. EVVE is currently in pilot form, and only seven States have access. Even 

if all fifty States had access to the EVVE system, it would not allow for credible 

electronic verification of birth and death records because the database will not conVerDate 0ct 09 2002 12:09 Feb 25, 2008 Jkt 034415 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 P:\DOCS\34415.TXT SAFFAIRS PsN: PAT
46

tain records from all the States. NAPHSIS issued a report in January 2006 stating 

that the EVVE system could take as long as 7 years to be fully operational. The 

report specifically noted that the system must be implemented nationwide before it 

will be beneficial for REAL ID. A valid, verified birth certificate is at the heart of 

REAL ID, yet the timelines for these two programs are completely incompatible. 

In addition to the EVVE system, REAL ID relies upon a non-existent State Department system to verify U.S. passports and the DHS Systemic Alienation 

Verification for Entitlements (SAVE) system, which is notorious for containing erroneous, incomplete, or outdated information. Moreover, even though the success of 

REAL ID depends on these systems, there is no requirement in the REAL ID Act 

or in the NPRM that the federal agencies provide these systems in a timely or accurate manner. The States will be left holding the bag if the Federal Government fails 

to deliver. 

I am also troubled by the incomplete nature of the proposed regulations. There 

is virtually no guidance in the NPRM regarding what type of electronic system will 

be used to share information between States. This detail is critical to understanding 

the security and privacy vulnerabilities that may be created by REAL ID. Assistant 

Secretary Barth has said that the Department of Transportation’s Commercial Driver’s License Information System (CDLIS) will likely be the model used for REAL 

ID. CDLIS allows information on licensed commercial drivers to be shared between 

States on a limited basis—commonly referred to as a ‘‘pointer system.’’ However, the 

NPRM does not specify a pointer system will be used for REAL ID, leaving the realization of a de facto national database as a distinct possibility under the regulations. 

Given the inevitable incompleteness and inaccuracies of the REAL ID databases, 

it is shocking to me that the NPRM does not call for a redress system. This is not 

a function that can be left to the States because REAL ID and the information it 

relies upon are bigger than the individual States. What happens if one state passes 

erroneous information about an individual to another state? Chances are there will 

be cases where both States claim it’s the responsibility of the other state to adjudicate the complaint. Where does an individual turn if a state DMV and a federal 

agency cannot agree on who should correct an incomplete record? DHS needs to 

mandate a redress process and make it clear where that responsibility lies to ensure 

errors and oversights are resolved promptly. 

Also notably absent from the NPRM is a requirement to encrypt the data held 

electronically on the actual ID card. Without encryption it will be substantially easier to steal critical personal information, making all Americans more vulnerable to 

identity theft. Equipment capable of reading the Machine Readable Zone on the 

back of most drivers’ licenses is readily available. If we’re going to spend billions 

of dollars enhancing the security of the rest of the identification system, why leave 

this gaping hole? 

DHS has chosen to pass the responsibility for privacy protection to the States. 

This is inherently problematic because REAL ID requires States, and more importantly the individual citizen, to provide and share additional personal information 

in the name of security. Because REAL ID is a federal mandate, the Federal Government has an obligation to ensure the law is implemented appropriately and that 

information shared under REAL ID is secure. States deserve some flexibility in implementing REAL ID as they are the ones who understand the drivers’ licensing 

process. However, given the security implications of widespread identity theft, the 

Federal Government cannot remain silent on this issue. 

Most troubling is that DHS has elected to hide behind what is not said in the 

REAL ID Act as a means to avoid addressing privacy. The NPRM States, ‘‘DHS has 

sought to address these privacy concerns within the limits of its authority under the 

Act. The Act does not include language authorizing DHS to prescribe privacy requirements for state-controlled databases or data exchange necessary to implement 

the Act.’’ The concept that federal agencies need explicit Congressional authorization to protect Americans’ privacy is just plain wrong. In fact, our government is 

obligated to ensure that programs and regulations do not unduly jeopardize an individual’s right to privacy. 

Privacy is inherently tied to security. Secretary Chertoff made this argument earlier this month when he told the Northern Virginia Technology Council that ‘‘Security and privacy are very much the same type of value. I don’t think they’re mutually exclusive, they’re mutually reinforced.’’ As Secretary Chertoff argued, executed 

correctly, better standards for drivers’ license issuance will strengthen privacy safeguards and help prevent identity theft. However, we must remember that if this 

process is executed poorly, it will have the opposite effect. 

Finally, it should be noted that States across the country are moving to opt out 

of REAL ID. Because of the program’s structure, it is only as strong as its weakest 

47

member. If we create a system so onerous that it precludes full participation, any 

security benefit is lost. 

While I regret the repeal of the common sense provisions in the Intelligence Reform Act, which I believe has made identification security much more difficult, I am 

committed to ensuring this job is done right. We must find a way to make the driver’s license a trusted document, and the road the Department is now on is not the 

way. Secure identification is at the very heart of our homeland security. I strongly 

encourage the Department to consider the concerns expressed by Congress and others in formulation of the regulations. And I look forward to working with Chairman 

Akaka, Senator Collins, the Department of Homeland Security, and others to solve 

this critical and complex problem.

PREPARED STATEMENT OF SENATOR SUNUNU 

Nearly 2 years ago, the REAL ID Act was inserted into an emergency spending 

bill without holding a single hearing or a substantive debate on the Senate floor. 

At that time, a number of my Senate colleagues and I sent a letter to then Senate 

Majority Leader Bill Frist voicing strong opposition to its inclusion. It was and still 

is my position this legislation was too significant to be included as an extraneous 

‘‘rider’’ on a spending bill and it needed to be debated before the Senate over a period of several weeks. For that reason, I commend Senator Akaka for convening this 

Subcommittee hearing—albeit 2 years too late—to review the REAL ID Act and to 

carefully consider ways to improve the security and eligibility standards for drivers’ 

licenses in a manner that does not require a National ID or federal data base to 

track all drivers. 

This Committee appropriately and completely addressed the concerns first outlined by the 9/11 Commission’s report to Congress regarding terrorists use of falsely 

obtained forms of identification to access sensitive security areas. The Commission 

recommended, ‘‘The Federal Government should set standards for the issuance of 

sources of identification, such as drivers’ licenses.’’ (pg. 390) During the summer and 

fall of 2004, I worked with many of the current members of this committee to craft 

and pass legislation that included a collaborative process for developing minimum 

standards for drivers’ licenses, such as name, address, phone and signature. This 

bipartisan legislation—The Intelligence Reform and Terrorist Prevention Act of 

2004 (IRTPA)—subsequently passed both Houses of Congress and was signed into 

law by President Bush in December of 2004. 

The IRTPA was mindful of States’ rights through the inclusion of governors, State 

legislators and motor vehicle administrators in the negotiated rulemaking process. 

Equally important, it avoided the creation of a national ID, massive databases and 

billions of dollars in unfunded mandates. As we all know, this common-sense solution to a legitimate problem was eliminated and replaced by an unnecessary, unfunded, and unlikely to make you safer federal mandate: REAL ID. 

States understand this and have started to take action. Across the country, State 

Legislatures are introducing, debating and, in some cases, passing legislation outlawing the Federal Government implementing REAL ID. In this instance, the Senate needs to follow the example being set by the States. 

Most recently, the Department of Homeland Security (DHS) released a notice of 

proposed rulemaking. Included in these regulations is an agreement to give States 

a 2 year extension to implement new standards, as well as, the understanding that 

DHS will bring States, technology experts, and privacy advocates back to the table 

to ensure these standards are crafted in a way that respects States’ rights and minimizes costs. It is important to note this would not have been possible without the 

efforts of Senator Collins and others who recognize the unreasonable burden REAL 

ID places on the States. Although this agreement is far superior to immediate implementation of REAL ID, more must be done to protect taxpayers, States’ rights, 

and the privacy of all Americans. 

That is why Senator Akaka and I have reintroduced the ‘‘Identification Security 

Enhancement Act.’’ Our legislation would repeal Title II of the REAL ID Act and 

replace it with the negotiated rulemaking process originally passed as part of the 

Intelligence Reform and Terrorist Prevention Act of 2004. These provisions would 

enhance privacy protections by ensuring procedures and requirements are in place 

to protect civil liberties, as well as, privacy and constitutional rights. I look forward 

to continuing my efforts to combat this unnecessary, unfunded mandate with Senator Akaka and my fellow colleagues on the Homeland Security and Government 

Affairs Committee.

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