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S. Hrg. 111–981 

IDENTIFICATION SECURITY: REEVALUATING THE 

REAL ID ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 15, 2009 

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

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(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 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

MICHAEL F. BENNET, Colorado 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

DEBORAH P. PARKINSON, Professional Staff Member 

SEAMUS A. HUGHES, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

JOHN K. GRANT, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 3 

Senator Akaka .................................................................................................. 5 

Senator Voinovich ............................................................................................. 7 

Senator Burris .................................................................................................. 20 

Prepared statements: 

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

Senator Collins ................................................................................................. 47 

Senator Akaka with attachments ................................................................... 50 

Senator Voinovich ............................................................................................. 79 

Senator Burris .................................................................................................. 81 

WITNESSES 

WEDNESDAY, JULY 15, 2009 

Hon. Janet A. Napolitano, Secretary, U.S. Department of Homeland Security . 7 

Hon. Jim Douglas, Governor, State of Vermont; Vice Chair, National Governors Association ................................................................................................ 10 

Hon. Stewart A. Baker, Former Assistant Secretary of Homeland Security ...... 24 

Hon. Leroy D. Baca, Sheriff, Los Angeles County, California ............................. 26 

David Quam, Director of Federal Relations, National Governors Association ... 28 

Ari Schwartz, Vice President and Chief Operating Officer, Center for Democracy and Technology ............................................................................................ 30 

ALPHABETICAL LIST OF WITNESSES

Baca, Hon. Leroy D.: 

Testimony .......................................................................................................... 26 

Prepared statement .......................................................................................... 113 

Baker, Hon. Stewart A.: 

Testimony .......................................................................................................... 24 

Prepared statement with attachments ........................................................... 98 

Douglas, Hon. Jim: 

Testimony .......................................................................................................... 10 

Prepared statement .......................................................................................... 91 

Napolitano, Hon. Janet A.: 

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

Prepared statement .......................................................................................... 82 

Quam, David: 

Testimony .......................................................................................................... 28 

Prepared statement with attachments ........................................................... 118 

Schwartz, Ari: 

Testimony .......................................................................................................... 30 

Prepared statement .......................................................................................... 127 

APPENDIX 

Prepared statements submitted for the Record from: 

Sheila Dean, The 5-11 Campaign .................................................................... 139 

Janice L. Kephart, National Security Policy Director, Center for Immigration Studies, and Jena Baker McNeill, Policy Analyst, Homeland Security, Heritage Foundation ............................................................................ 147 

Dr. Nelson Ludlow, Director and Chief Executive Officer, Intellicheck 

Mobilisa, Inc. ................................................................................................. 158 

Page

IV 

Prepared statements submitted for the Record from—Continued 

National Association for Public Health Statistics and Information Systems (NAPHSIS) ........................................................................................... 164 

Paul E. Opsommer, State Representative, Michigan House of Representatives ................................................................................................................ 169 

(1) 

IDENTIFICATION SECURITY: REEVALUATING 

THE REAL ID ACT 

WEDNESDAY, JULY 15, 2009 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENT AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:09 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Akaka, Tester, Burris, Bennet, 

Collins, and Voinovich. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. Good morning and welcome to this hearing where we will review the steps that the U.S. Government has 

taken and State governments have responded to and those steps 

that we may ultimately take to achieve the important national goal 

of keeping fraudulent State identification cards and drivers’ licenses out of the hands of terrorists and criminals. 

I want to welcome Secretary Napolitano, Governor Douglas of 

Vermont, and our witnesses on the second panel, and to thank you 

for all the work that you have done on this very important matter. 

I always kick myself when I say I told you so, but I regret to say 

that I am not surprised we are here today. When Congress adopted 

the so-called REAL ID Act of 2005 as an amendment to a supplemental appropriations bill without hearings of any kind or any formal public vetting, we replaced a process for developing Federal 

identification requirements that Senator Collins and I had made 

part of the Intelligence Reform and Terrorism Prevention Act of 

2004, the so-called 9/11 Commission legislation. 

In our work, Senator Collins and I took very seriously the finding 

of the 9/11 Commission that ‘‘All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud. 

Acquisition of these forms of identification would have assisted 

them in boarding commercial flights, renting cars and other necessary activities.’’ 

And the 9/11 Commission went on to appeal to the Federal Government to ‘‘set standards for the issuance of birth certificates and 

sources of identification on such as drivers’ licenses.’’ 

With that in mind, we therefore included in the 9/11 legislation 

of 2004 a requirement that the Federal Government establish a negotiated rulemaking committee composed of subject matter experts 

2 

and stakeholders including, of course, representatives of the State 

governments to propose workable identification security standards. 

Then came the REAL ID Act of 2005, which, as I said, was submitted as an amendment to supplemental appropriations legislation. Though I thought some of the parts of the Act and the intention of the Act were good, I opposed the REAL ID Act because I 

thought ultimately it laid out a very prescriptive, unworkable, and 

expensive process. And, unfortunately, history has borne this out, 

and that is why we are here today, if I may rub it in a little bit. 

I really believe that if our original 9/11 Commission legislation 

had been left intact and a rulemaking process had begun negotiations with the States and the Federal Government, and it had not 

been repealed by REAL ID, we would have millions more secure 

IDs instead of being involved in a continuing debate and, really, a 

joust between the States and the Federal Government. 

Some States, including Connecticut, are working to implement 

REAL ID, but the fact is that the legislatures of 13 States have 

passed laws prohibiting their States from complying with REAL ID 

as it presently stands, and several other States are right now considering some other legislation, and that is at the risk that their 

State identification documents will not be accepted by the Federal 

Government, for instance, for boarding a plane. 

So that is the dilemma and the crisis really that brings us here 

today as we try to answer the question of what kinds of changes 

to REAL ID are necessary to achieve a workable solution here. 

As always in the Congress, we cannot let the perfect be the 

enemy of the good, but, of course, we want to ensure that what we 

consider to be good is not diluted so that we in any way compromise our homeland security. I, personally, think we can achieve 

both goals. 

Today, we are going to discuss bipartisan legislation sponsored 

by a number of Members of this Committee—Senators Akaka, 

Voinovich, Carper, Tester, and Burris—which is called the PASS 

ID Act that reforms REAL ID in an attempt to make it work as 

intended while trying to ease the strain on our overburdened and 

underfunded State governments. 

The plan retains parts of REAL ID such as the requirement of 

a digital photograph, signature, and machine-readable coding on 

State-issued ID cards. States will also need to verify an applicant’s 

Social Security number and legal status by checking Federal immigration and Social Security databases. 

But the States would be given more flexibility in issuing the new 

identification cards while staying, I am pleased to say, within the 

REAL ID time table. In fact, if the Providing for Additional Security in States’ Identification (PASS ID) Act becomes law this year, 

States must be fully compliant with it before the current REAL ID 

deadline of 2017, and that is important, I am sure, to all of us because any acceptable solution must really work within existing 

timetables and not delay increased personal identification security. 

PASS ID does eliminate a requirement that motor vehicle departments electronically check the validity of some identity documents 

such as birth certificates with the originating agency. I know this 

change has been a major source of concern, and this morning I 

3 

want to discuss it with our witnesses and see if those concerns are 

justified. 

PASS ID also strengthens privacy protections by requiring procedures be put in place to prevent the unauthorized access or sharing 

of information, to require a public notice of privacy policy and a 

process for individuals to correct their records. 

So let me thank Senators Akaka, Voinovich, and others who join 

them, as well as Secretary Napolitano, for the efforts that you have 

made to come up with a plan that can work while not losing sight 

of the very direct statement of the 9/11 Commission warning us 

that ‘‘For terrorists, travel documents are as important as weapons.’’ 

I still do have some concerns about PASS ID that I want to explore with our witnesses today, but, bottom line, in an age of terrorism, reliable personal identification is an important and urgent 

matter critical to our homeland security. I hope that this hearing 

will enable us to move forward and mark up legislation in this 

Committee on this matter in the very near future. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank, Mr. Chairman. 

One week from today, we mark the 5th Anniversary of the release of the bipartisan 9/11 Commission Report. In examining how 

terrorists were able to attack our country the Commission found 

that all but one of the 19 terrorists used drivers’ licenses to board 

the planes that were then used as weapons in the attacks that 

killed nearly 3,000 people. 

The commissioners recognized that easily-obtained drivers’ licenses were a security vulnerability. As the Chairman has said, the 

words that I, too, remember are the Commission’s words saying 

that ‘‘For terrorists, travel documents are as important as weapons.’’ And to address this vulnerability, the Commission recommended that the Federal Government set standards for the 

issuance of birth certificates and other sources of identification, 

particularly drivers’ licenses which had proven to be so vital to the 

hijackers’ ability to carry out their deadly plot. 

To call the effort to implement this recommendation ‘‘difficult’’ 

would be an understatement. As Senator Lieberman has recounted, 

he and I authored very well thought-out provisions in the Intelligence Reform Act of 2004 that established a collaborative committee comprised of Federal and State officials, technology experts 

and privacy advocates to develop these secure identification standards, and the work of this Committee was well underway in 2005 

when, regrettably, the House of Representatives repealed our provisions by slipping the REAL ID Act into an urgent war-funding bill. 

I use the word, slipping it into the urgent war-funding bill advisedly because in the Senate there were no hearings, there was no 

debate, there was no vote. This was a take it or leave it vote on 

the entire war supplemental. 

Then, for more than 2 years, States were left to contemplate the 

enormity of the task of reissuing new licenses to all drivers by May 

2008, while they waited for the Department of Homeland Security 

(DHS) to issue the regulations that would tell them how to achieve 

4 

that requirement. And the States waited and waited and waited 

until January 29, 2008, when a final rule was issued, leaving the 

States just 103 days until the May 11, 2008, compliance deadline. 

Complicating the problem, State budgets had little room for the 

hundreds of millions of dollars that it would cost to implement the 

new regulations, and, of course, a faltering economy only worsened 

the financial strain. 

Another problem was that the key information technology systems necessary to implement the law efficiently were not readily 

available. 

And, although identity theft costs the economy billions of dollars 

and causes much distress to its victims, the Department’s regulations failed to address critical privacy issues created by the interconnected systems of databases mandated by the law. 

With these problems unresolved and numerous States protesting 

REAL ID or even outright refusing to implement the law, I worked 

to persuade the Department to provide States with an additional 

18 months to meet the REAL ID deadline, giving us all time to revisit the issues. 

The PASS ID Act that we are discussing today is one attempt to 

resolve these problems. It refines rather than repeals the law, and 

it targets areas where the law imposed unreasonable and costly 

burdens, failed to protect the privacy interests of our citizens and 

mandated technological solutions that may not be practical. 

One example of these refinements is in the bill’s approach to ensuring that each person possess only one valid license, from any 

one State, at any one time. To meet this goal, REAL ID would have 

mandated an information sharing system that may not be technically feasible or governed by basic privacy protections. Instead of 

scrapping the system altogether, PASS ID would preserve and fund 

a pilot program to test the necessary technology and to permit a 

careful examination of privacy concerns. This makes a great deal 

of sense. 

Nonetheless, I recognize the concerns of those who fear that this 

bill, in addressing the problems of REAL ID, may have unintended 

consequences. Drivers’ licenses can be the keys to the kingdom for 

terrorists bent on death and destruction. States have a responsibility to ensure that licenses are tamper-proof and issued only to 

people whose identity and legal status can be verified. 

Certain language in the PASS ID Act may undermine that goal 

because it would not allow the Transportation Security Administration (TSA) to prevent a passenger from boarding a plane based 

solely on the fact that he or she did not have a compliant license. 

This provision would eliminate an important incentive for States to 

adopt Federal standards and could impose worrisome restrictions 

on the discretion of security officials who believe a passenger without a compliant license should not be permitted to board a plane. 

As we examine this legislation today, my primary concerns are 

whether these provisions are moving us toward the security goal 

set by the 9/11 Commission 5 years ago while accommodating the 

legitimate concerns of States and privacy experts. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

5 

1The bill (S. 1261) referenced by Senator Akaka appears in the Appendix on page 55. 

It seems appropriate to move slightly away from normal Committee procedures and to invite Senator Akaka and Senator 

Voinovich to make an opening statement, if they would like, based 

on the extensive work that they have done in preparing and introducing PASS ID. 

Senator Akaka. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. I want to 

thank you for holding this hearing to further explore the ramifications REAL ID on States, on security, and on privacy as well as 

the proposal that I, along with Senators Voinovich, Carper, Tester, 

Burris and other Members, have put forward to fix REAL ID. 

At this point, Mr. Chairman, may I add happy birthday to our 

friend here, Senator Voinovich. 

Chairman LIEBERMAN. Happy birthday. 

Senator COLLINS. Happy birthday. 

Senator AKAKA. I have been a longtime opponent of REAL ID 

due to concerns about protecting individuals’ privacy as well as the 

States’ inability to implement the burdensome program. REAL ID 

calls on the States to collect and electronically store individuals’ 

personal records when issuing licenses and to share that information with every department of motor vehicles (DMV) nationwide. 

This effectively would create a national database containing massive amounts of personal information. 

During the last Congress, I chaired two hearings on REAL ID 

where it became clear that it was simply not workable. Some of the 

data systems do not yet exist because so many States have balked 

at the high costs and privacy implications of creating such a system. If REAL ID is implemented, these databases could provide 

one-stop shopping for identity thieves and become the backbone for 

a national identification card. 

We must act to fix REAL ID. States simply still cannot afford the 

$4 billion it would take to implement REAL ID. Over a dozen 

States have already refused to comply, and several more, like Hawaii, have expressed serious concerns with the program. Without 

the participation of all States, there will be only a patchwork system for identification security, which means no real security at all. 

The bill I am proposing, S. 1261,1 the Providing for Additional 

Security in States’ Identification Act of 2009, or PASS ID Act, represents a pragmatic approach to resolving many of the most troubling aspects of the REAL ID Act. I worked closely with the stakeholders, many of whom are here today, representing a broad range 

of views, to develop this practical alternative to REAL ID. 

The PASS ID Act does exactly what the 9/11 Commission recommended: It sets strong security standards for the issuance of 

identification cards and drivers’ licenses. 

What it does not do is go far beyond that recommendation by requiring the collection of Americans’ personal information and storing it in a centralized repository accessible by any State DMV. 

Perhaps the most important change in our bill is the removal of 

the mandate that States share all of their drivers’ license data with 

6 

1The statement referenced by Senator Akaka appears in the Appendix on page 52. 

each of the other States. This provision created a clear threat to 

the privacy of all Americans’ personal information, posed a great 

risk for identity theft and fraud, and raised the specter of a national database of all Americans’ personal information. 

The bill requires States to protect electronic information and, for 

the first time, any machine readable data stored on identification 

cards and drivers’ licenses themselves, ensuring it is only used for 

its intended purposes. 

Another change I want to highlight is the clarification of Americans’ right to travel on commercial aircraft and to enter Federal 

buildings. The current law restricts these rights by requiring a 

REAL ID-compliant ID to board commercial aircraft and to enter 

Federal buildings. 

In this country, we cherish the right to travel and the right to 

petition the government. Americans should not be denied boarding 

an aircraft or denied entry to most Federal buildings solely because 

they have lost or do not have their identification. Instead, such situations should be resolved through additional security screening or 

other inquiries as needed, as is currently TSA policy and is the 

case with every other type of security risk. 

As important as what would change with PASS ID is what would 

not change: Individuals would still need to prove that they are lawfully present in the United States; individuals would only be allowed one compliant identification to be used for official purposes; 

and individuals would need to present the same sources of identifying documents to obtain a compliant license. 

This compromise bill does not address all of my concerns with 

REAL ID. I know that others are disappointed that it does not address all of their concerns. However, the reality we face right now 

is that in less than a year States will be required to comply with 

a law that is overly burdensome and unworkable. We cannot let 

the perfect be the enemy of the good, especially when we are working to address a seriously flawed law already on the books. 

To date, the Department of Homeland Security, the National 

Governors Association, National Conference of State Legislatures, 

the Center for Democracy and Technology, and several law enforcement organizations have endorsed PASS ID. I hope we will move 

swiftly to ensure its enactment and provide some clarity to States 

facing REAL ID implementation deadlines. 

As always, my goal remains to protect both the security needs 

and the privacy rights of all Americans, and I will continue to work 

closely with the Department of Homeland Security to ensure that 

individual rights and liberties are fully protected during the implementation of PASS ID. 

I thank you again, Chairman Lieberman and Ranking Member 

Collins, for agreeing to hold this hearing. 

I ask that my full statement from the introduction of PASS ID 

be included in this hearing’s record.1

Chairman LIEBERMAN. Thanks, Senator Akaka. Without objection, so ordered. 

Happy birthday, Senator Voinovich. I do not know your age, but 

I am prepared to say that you look younger than you are. 

7 

1The prepared statement of Secretary Napolitano appears in the Appendix on page 82. 

Senator VOINOVICH. I will hire you for public relations. [Laughter.] 

Chairman LIEBERMAN. I bet I am right, but you do not have to 

disclose anything here. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. I have a problem because I have to do an 

amendment in a committee, and I have just been told I have to get 

up there for it. So I will make this really brief. 

First of all, Senator Akaka, thank you very much for all the work 

that you have put in on this bill. We have some great co-sponsors 

of this legislation. You have spoken eloquently to this, but what everyone ought to understand is that REAL ID, 5 years later after 

enactment has not been implemented. It is not implemented. 

Why did it not get implemented? It is because Congress did not 

sit down with the people that were impacted by the legislation and 

get their thoughts on how we could go about making these requirements possible. 

And I will never forget when we had the hearing last year and 

Senator Akaka said we have to stop, throw it all out, begin again, 

get everybody involved, and do it right. And that is exactly what 

we have done. 

Madam Secretary, thank you very much, and the National Governors Association too. You have come together, figured out how we 

can get this done and set Federal requirements working together. 

We have a symbiotic relationship. We want to secure America. But 

the way we do that is by working together, and that is exactly 

what this legislation, I think, accomplishes. 

Now there may be some things yet that need to be added to it. 

But it is a good lesson for this Committee and for Congress. It is 

that when you go out and you do not dot the I’s, cross the T’s, and 

spend the time with the people that are really involved with an 

issue, what happens is it does not work. 

And then what happens? You have to start all over again. So 

why not do it right the first time? 

So we are going to do it right the second time. Thank you. 

Chairman LIEBERMAN. Hear, hear. Thank you. 

Thanks, Secretary Napolitano and Governor Douglas for being 

here, for your patience while we did the opening statements. Now 

I am happy to call on our Secretary of Homeland Security, Janet 

Napolitano. 

STATEMENT OF HON. JANET A. NAPOLITANO,1 SECRETARY, 

U.S. DEPARTMENT OF HOMELAND SECURITY 

Secretary NAPOLITANO. Thank you, Mr. Chairman, Senator Collins, Members of the Committee, for the opportunity to testify on 

PASS ID. I have a longer statement that I ask be included in the 

record. 

Chairman LIEBERMAN. Without objection. 

Secretary NAPOLITANO. PASS ID is a bill that I support. The Department of Homeland Security (DHS) worked with governors and 

other stakeholders to provide technical assistance in its drafting, 

8 

and so the approach that PASS ID takes to fix REAL ID is one that 

I support, and I think it makes sense. 

This is an important piece of national security legislation that is 

designed to help fulfill the 9/11 Commission’s recommendation that 

the Federal Government set security standards for drivers’ licenses. 

As has already been commented upon, the first attempt to do this, 

the REAL ID Act, was a start that badly needs to be fixed. PASS 

ID is a fix for REAL ID. 

The States agree that REAL ID is too rigid and needlessly expensive in mandating how States meet their security goals. As you 

noted, Chairman Lieberman, 13 States—I think Missouri being the 

most recent last night—have actually enacted legislation barring 

themselves from implementing REAL ID, and 13 other States have 

passed resolutions opposing REAL ID. We cannot have national 

standards for drivers’ licenses when the States themselves refuse 

to participate. 

Now the practical problem with REAL ID is one of timeliness, 

and that sets the urgency for PASS ID because under REAL ID, 

as of December 31 of this year, States are required to attest that 

they are implementing REAL ID for their drivers’ licenses so that 

they can be accepted for things like boarding a plane. By December 

31 of this year, no State will have issued a REAL ID-compliant 

identification document. No State will have a REAL ID-compliant 

document. 

Chairman LIEBERMAN. So, if I may interrupt you, that means 

that assuming nothing else happens in between, that it is under 

the law the drivers’ licenses issued by the States would not be accepted by TSA to gain passage onto airplanes? 

Secretary NAPOLITANO. That is correct, Mr. Chairman, not without additional screening by TSA, and one can only contemplate just 

the inconvenience in airline travel that could occur if everyone has 

to undergo additional screening because they do not have a REAL 

ID-compliant drivers’ license. 

Chairman LIEBERMAN. In other words, the kind of secondary 

screening that goes on now, if for some reason you forget your license or something of that kind, that would have to happen to everybody? 

Secretary NAPOLITANO. That is right, Senator. 

Chairman LIEBERMAN. Interesting. 

Secretary NAPOLITANO. So that sets the urgency for REAL ID 

and why I am so appreciative of PASS ID, why I am so appreciative that the Committee scheduled this hearing today and is 

moving forward. 

I am very pleased to be sitting next to Jim Douglas, my good 

friend, the Republican Governor of Vermont. He is the incoming 

Chair of the National Governors Association. 

Later, you will hear from Sheriff Leroy Baca of Los Angeles on 

why law enforcement supports PASS ID. 

Now we get to the fundamental reason why we have these laws 

in the first place. We go back to the 9/11 Commission Report. We 

need secure identification to thwart potential terrorists. Law enforcement needs to have confidence that an ID holder is who he or 

she claims to be. As the 9/11 Commission Report said, to terrorists, 

travel documents are just as important as weapons. 

9 

States vary widely in the standards they employ. Now the system is too open to fraud. National standards are necessary, but national standards are embodied both in REAL ID and in PASS ID. 

Secure identification certainly will not thwart every planned terrorist attack, but it can present an obstacle and given another 

counterterrorism tool to law enforcement that we need. 

Now, as has been mentioned, there are many similarities between REAL ID and PASS ID. The main similarities between the 

two are the requirements for physical security of drivers’ license 

production. The premises must be secure. A background check on 

employees must be conducted. There must be fraudulent document 

training given to all employees involved in the process. 

A requirement to show PASS ID: At the end of the implementation period, noncompliant identifications would no longer be automatically accepted to board planes, enter nuclear plants, government buildings, and the like. 

Document validation: Both laws would require States to validate 

the legitimacy of the underlying source documents such as birth 

certificates or licenses from other States. Further, under PASS ID, 

the requirement for electronic verification of Social Security numbers and lawful status remains. 

Now the differences: Why is this easier to implement from the 

State perspective? 

First, PASS ID eliminates the blanket requirement to use untested technologies for electronic verification of any and all source documents. States still have to validate documents, but they can pursue different ways to reach that standard. 

Second, they are required to electronically verify the Social Security and lawful presence through the Social Security Online Verification (SSOLV) and Systematic Alien Verification for Entitlements 

(SAVE) databases. But unlike REAL ID, under PASS ID, they are 

exempted from paying the fee for doing those checks. 

Third, there is greater flexibility under PASS ID in terms of how 

you re-enroll existing drivers’ license holders because under REAL 

ID you have to re-enroll everybody under the age of 50, 3 years earlier than everybody else. Under PASS ID, we give the States flexibility on how to do the re-enrollment so long as everything is complete by 2016, which actually is one year earlier than the final completion date for REAL ID. 

And, last, in terms of differences, as has been noted by Senator 

Akaka, unlike REAL ID, PASS ID actually contains within it specific assurance that States and privacy advocates have sought for 

the protection of the information that is garnered in the process. 

So these differences which are designed to make the goal of 

REAL ID a reachable goal and designed to move us toward reaching the goal of the 9/11 Commission Report, these differences contained within PASS ID make it a bill that, if passed and implemented before the December 31 deadline of this year, will fix a bill 

that was flawed from the outset. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Madam Secretary. That was very 

helpful testimony. 

Governor Douglas, we are honored to have you. You are here obviously not only in your capacity as the Governor of Vermont but 

10 

1The prepared statement of Governor Douglas appears in the Appendix on page 91. 

as the incoming Chairman of the National Governors Association 

(NGA) which has endorsed PASS ID. Good morning. 

STATEMENT OF HON. JIM DOUGLAS,1 GOVERNOR, STATE OF 

VERMONT; VICE CHAIR, NATIONAL GOVERNORS ASSOCIATION 

Governor DOUGLAS. Well, thank you, Mr. Chairman, very much 

for your time today. It is great to be here, and I want to thank you 

for scheduling the hearing and for choosing the appropriate title, 

which is Reevaluating the REAL ID Act, because that is certainly 

what we need to do. We need to reevaluate it because it is not 

working. We have to come up with some solutions that will help 

us accomplish its goals. 

For the past several years, at our NGA meetings, as the Secretary knows well, we have been talking about this, and all of the 

conversations seem to end the same way, with a great deal of frustration. Governors are frustrated because every governor is a security governor. 

Every governor wants his or her State to issue licenses that are 

accurate and secure. Every governor wants government to work. 

Every governor is vividly aware of what happened on September 

11, 2001, and wants to do what he or she can to make sure that 

it does not happen again. 

As you noted, Mr. Chairman, in your opening comments and Senator Collins did as well, the two of you crafted a negotiated rulemaking process as part of the Intelligence Reform Act that was designed to bring all the parties to the table to craft meaningful national standards for drivers’ licenses. Ironically, if that agreement 

had been left in place, we probably would not be having this discussion today. But, instead, the negotiated rulemaking was replaced, 

as you have noted, by REAL ID. 

As of yesterday, 13 States have enacted laws prohibiting its implementation, and a number of others have adopted joint resolutions opposing the law. Well, it seems to me that security systems 

only work if people are willing to use them. REAL ID does not 

work because a lot of States have just said no. 

So I am committed to providing Vermonters with a driver’s license that is accurate and secure, and I know my colleagues are 

in their State as well. But, while the objectives of REAL ID are 

laudable, the law represents an unworkable and unfunded mandate that fails to make us more secure. I really believe we need a 

better mousetrap. 

PASS ID provides a solution and a path forward, and I want to 

thank Senator Akaka and Senator Voinovich and their colleagues 

for introducing it. 

PASS ID builds on the strengths of REAL ID. It solves its weaknesses and delivers more cost-effective common-sense solutions 

that can enhance the security and integrity of all licenses and 

State identification cards. 

PASS ID is consistent with the 9/11 Commission recommendation that has been cited. It increased security. It facilitates participation by all jurisdictions. And it addresses one of the largest conVerDate Nov 24 2008 09:40 Jun 06, 2011 Jkt 51792 PO 00000 Frm 000014 Fmt 06633 Sfmt 06633 P:\DOCS\51792.TXT SAFFAIRS PsN: PAT
11 

cerns with REAL ID: how to allow States with anti-REAL ID laws 

to come into compliance with a workable national standard. 

The PASS ID Act was written as the original act should have 

been, with States, the Homeland Security Department, and other 

interested groups at the table. That is why NGA supports this proposal. That is why I am happy to join my former colleague, herself 

a former Chair of NGA, Secretary Napolitano, and offer my endorsement of the bill. 

We fully understand the need to ensure the integrity of security 

and security of the process by which we issue drivers’ licenses and 

ID cards in my State. We are working toward compliance with the 

law. I want to assure the Committee that we are one of the states 

that is not resisting. We are doing everything we can to comply, 

but, as enacted, REAL ID poses significant challenges for implementation. 

Now PASS ID will also present some real challenges, some 

changes at least in the way we issue licenses, but its elimination 

of unnecessary requirements and its cost-effectiveness make it a 

much better alternative. 

There are significant challenges in developing the electronic systems that REAL ID requires as some of you have noted and, frankly, a great deal of doubt about whether they are going to be ready 

on time, whether they will be reliable, and whether they will be nationally deployed so that we can begin issuing fully compliant licenses by the deadline. 

In contrast, our State’s processes for validating documents like 

birth certificates and ensuring only one license per driver are rigorous and reliable. In Vermont, we feel we can achieve the same 

level of security called for in REAL ID and do it sooner under 

PASS ID. 

It is most cost-effective—the key consideration, especially in 

these difficult fiscal times. The present cost estimate for States to 

implement REAL ID nationally is $3.9 billion. In Vermont, we estimate it will cost us at least $20 million, which is a lot for a State 

our size and a real roadblock to its implementation. 

Vermont has not completed a detailed cost analysis of PASS ID, 

but it is clear that it eliminates unnecessary costs and authorizes 

some of the funding necessary for States to implement the program, and that is an important first step toward covering the cost 

of compliance. 

PASS ID eliminates unnecessary costs like the transaction 

charges for linking to and using the Federal system. It authorizes 

some of the funding necessary to implement the program. These 

are big steps toward covering those costs. In fact, the NGA, with 

the assistance of State stakeholders, estimates that PASS ID would 

cost States about $2 billion, approximately half of REAL ID. 

In addition, PASS ID strengthens privacy protections. It requires 

privacy and security protections for the personal identification that 

is collected and stored in databases for the program. It requires 

States to establish safeguards against unauthorized access and use 

of such information as well as to create a process for cardholders 

to access and correct their own information if they find an error. 

One aspect of PASS ID that we particularly appreciate is the 

bill’s explicit recognition of the Enhanced Driver’s Licenses. Since 

12 

we are so close to the Canadian province of Quebec, we very much 

value the importance of having an open but secure border. 

I have my Enhanced Driver’s License, Mr. Chairman, and I have 

already used it in returning to Vermont from across the Canadian 

border. It is convenient. It is faster, and I appreciate the work of 

the Homeland Security Department in facilitating our approval of 

this document. 

Just do not look at the weight, Secretary Napolitano. I am not 

under oath on that. [Laughter.] 

Vermont businesses retain jobs and grow because of opportunities to sell products and services to our neighbors to the north. The 

United States and Canada enjoy the largest bilateral trading relationship in the world with more than $1.3 billion in goods and services crossing the border every day. 

Thousands of people in my State cross the border with Quebec 

every day. Our border station at Derby Line is one of the busiest 

on the Canadian border for commercial truck traffic. In today’s economic climate, a free and open border for Vermont manufacturers 

and retail businesses is more crucial than ever. 

The importance of our Enhanced Driver’s License (EDL) being 

recognized as compliant with Federal driver’s license standards 

cannot be understated. Our economic, environmental, and cultural 

relationship with Quebec is of paramount importance. The EDL 

costs us about a million dollars to implement, but, more importantly, the ease of border travel that it allows is key to our economy and our relationship with Canada, our largest trading partner. 

Now since the passage of REAL ID, governors have consistently 

offered constructive suggestions for implementing it. We have encourage DHS and Congress to fix the Act by implementing statutory or regulatory changes to make it feasible and cost-effective. 

We have called on the Federal Government to fund it by providing 

support to offset our State expenditures for meeting Federal standards. 

I really believe that PASS ID represents the kind of commonsense solution that governors have long sought. PASS ID represents, in contrast with REAL ID, a workable, cost-effective solution that can increase the security and integrity of all license and 

identification systems. 

I want to highlight the critical deadline that is facing us at the 

end of this year. By December 31, all States must meet 18 specific 

requirements to be deemed materially compliant with REAL ID. 

With a quarter of States legally prohibited from meeting these requirements and almost every State, if not literally every State, as 

the Secretary noted, unlikely to achieve compliance by year-end, we 

really need to address these challenges if we are going to continue 

to have the kind of access to our borders and to our transportation 

infrastructure that we all seek. So I urge your support for passage 

of this legislation. 

I want to thank you for the opportunity to appear on behalf of 

the Nation’s governors, and I look forward to continuing to work 

with the Committee to address any issues that may remain. 

Chairman LIEBERMAN. Thanks very much, Governor Douglas. 

We will start with a 7-minute round of questions for the Senators. 

13 

While we are on that subject of Enhanced Driver’s License, for 

those who do not live in States that have them, how do you use 

them? Just give us a quick report on how you get across the border 

and back? 

Governor DOUGLAS. As you pull up to the border, roll down the 

window, and there is a screen that is very close to the driver’s side 

of the vehicle, similar to ordering something at a fast food restaurant. 

Chairman LIEBERMAN. Yes. 

Governor DOUGLAS. And you hold the card right up to the screen, 

and then the information goes to the border agent in the border 

station so that he or she has that readily available without having 

to take it off the document manually which is what happens now. 

There have been some concerns about the security of these documents, and we provide little security envelopes that make sure that 

they cannot be read if people are concerned about it. But it is that 

easy. 

Chairman LIEBERMAN. And it is quick? 

Governor DOUGLAS. Absolutely. 

Chairman LIEBERMAN. Thanks. 

I mentioned in my opening statement that I was grateful for the 

work that has been done by the two of you and a lot of others including Senators Akaka, Voinovich, and their co-sponsors here, but 

that I had some continuing concerns, and I want to ask you a question or two about those. 

I worry that the identity verification procedures may have been 

weakened—I know I have heard that from some critics of the PASS 

ID—and that we will wind up where none of us want to be, which 

is back where we were before September 11, 2001, when State authorities could accept an identity document without checking the 

validity. In other words, the license itself would be valid, but the 

identity documents on which it was based were not. And, as we 

know, a number of the September 11, 2001, terrorists used falsified 

source documents to get valid State IDs that allowed them to travel 

in and out of the United States. 

So the question is if PASS ID becomes law, will the next group 

of terrorists planning an attack on the United States be able to 

evade our laws in that same way, Secretary? 

Secretary NAPOLITANO. Mr. Chairman, let me respond at several 

levels. One is because the States by and large are not implementing REAL ID you cannot assume that it sets a higher security 

standard for breeder documents than PASS ID because REAL ID, 

in a way, is dead on arrival. I mean it is just not being done, as 

Governor Douglas said, by so many States. 

I do want to clarify a statement I made earlier in our colloquy, 

which is to say it is absolutely true that no State by December 31 

will have a REAL ID-compliant document. 

Chairman LIEBERMAN. Right. 

Secretary NAPOLITANO. The only exception will be if a State 

comes to me and certifies that they are ready or willing to comply 

with REAL ID and are making material progress to comply. 

Chairman LIEBERMAN. Such as Vermont? 

Secretary NAPOLITANO. Perhaps. 

Chairman LIEBERMAN. Maybe. You retain discretion. [Laughter.] 

14 

Secretary NAPOLITANO. Nonetheless, they still would not have a 

REAL ID-compliant document. They would just be able to get an 

extension. 

Chairman LIEBERMAN. Yes. 

Secretary NAPOLITANO. You have 12 States covering 40 million 

people plus now Missouri, which is another 6 million, that are actually barred from even seeking such an extension. So it gives you 

a sense of the problem. 

Chairman LIEBERMAN. Right. 

Secretary NAPOLITANO. Going back to your question, States are 

still required to validate the breeder document. There are a variety 

of ways that States can do that, and we can give you greater detail 

on that, but they still must validate the underlying documents. 

Chairman LIEBERMAN. Under PASS ID, if PASS ID should pass. 

Secretary NAPOLITANO. Under PASS ID, yes, Mr. Chairman. 

Second, they are required to electronically verify the Social Security number and lawful status with the Federal databases we have 

for those. 

Chairman LIEBERMAN. Excuse me for interrupting. That would 

be with the Social Security Administration and with Immigration? 

Secretary NAPOLITANO. Immigration, correct. So that is added. 

The difference is that we do not charge the States a fee for requiring that they do that verification. 

The third thing is, and this is a difference from the pre-September 11, 2001, world, your drivers’ license can only be issued for 

a time period that is consistent with your immigration status. 

In other words, let’s say you have a visa that will permit you to 

be in the United States for 4 years. A normal drivers’ license period 

is 7 years. Your drivers’ license can only be issued for the period 

that your lawful status is established. That difference would have 

picked up some of the September 11, 2001, hijackers. 

Chairman LIEBERMAN. OK. That is helpful. 

Let me ask you the second part of this, and then I will ask Governor Douglas to get into this. There is also concern about eliminating the provision in REAL ID that mandates information-sharing among States and transfers it through the PASS ID legislation 

to a voluntary pilot program. 

As you know, the September 11, 2001, hijackers held multiple 

drivers’ licenses and IDs from multiple States. Of course, it is not 

just terrorists but drug runners, counterfeiters, other criminals, 

even bad drivers with multiple offenses, like DUIs, can exploit this 

lack of information-sharing between States. In other words, they 

have a license in one or more States—that may be a problem—and 

they exploit the failure to share information between the States to 

help them hide from law enforcement. 

So tell us about why this change was made and why not compel 

information-sharing among the States just to avoid this loophole? 

Governor, do you want to start? 

Governor DOUGLAS. Well, I think, as some of you said in your 

opening statements, there is a great deal of concern about the protection of personal privacy as we consider these issues and a lot of 

concern in the REAL ID legislation about this national sharing 

database among all of the States. And so, with so many States declining to comply and with concerns about the flow of information 

15 

around the country, the proposal under PASS ID to have a pilot 

program, I think, makes some sense. 

Chairman LIEBERMAN. Is the privacy concern just expressed explicitly that the more people who have access to more data, the 

more possibility there is of violations of privacy rights? 

Governor DOUGLAS. I think that is exactly right. 

There are a lot of concerns that come up in various contexts, as 

you certainly know, with respect to privacy. I did not believe, for 

example, that there was really a need for a privacy sleeve on our 

Enhanced Driver’s License, but to satisfy the concerns of those who 

wonder if somehow information can be electronically captured, we 

make them available. And I think there are some concerns that 

may not be well founded but are there. So what we are trying to 

find is that right middle ground between access to information that 

is necessary and respecting the rights of privacy of the American 

people. 

Chairman LIEBERMAN. This is a classic example in this post-September 11, 2001, world of our responsibility to weigh those privacy 

concerns against what I would assume was the advantage to our 

national security from mandating information-sharing among the 

States about whether the individual coming in for a drivers’ license 

has had a license in another State that has been compromised. 

I presume there is also a cost concern here or is there not, Secretary? 

Secretary NAPOLITANO. Mr. Chairman, yes, there is a significant 

cost concern. This is where the concept that there would actually 

be some big centralized hub that would have to be created that 

somehow the States would have to pay arose, and the issues with 

privacy and the ease of infiltration of a hub if there is one place 

where all the information is gathered. 

The technical feasibility of some of these systems also needs to 

be explored. From what you watch on television, you would assume 

that all these things can happen with a snap of a finger, but in fact 

technically some of these things are very difficult. 

That is why under PASS ID, we continue with what I call the 

Mississippi Pilot Project, which has several States participating, 

because as we move forward there may indeed be cost-effective solutions to some of those issues that have been raised by the States. 

But, as we stand right now, we really do not have the capacity to 

say that we are going to have in one place easy electronic 

verification of every type of license and document. 

Chairman LIEBERMAN. I thank you. My time is up. 

I would like to work with you and my colleagues on the Committee to see if there is some way we can strengthen this section 

of the PASS ID without going over the tipping point where we continue to encourage the States not to comply because we obviously 

need them to comply. 

Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. Governor, all of us 

are concerned about the looming deadline under the current law 

and the ability of States to comply with the law. 

Under the previous Administration and, indeed, in the current 

regulations, there is a material compliance standard that the Department of Homeland Security uses to assess whether or not a 

16 

State is complying with REAL ID. I remember very distinctly Secretary Chertoff telling me that Vermont was an example of a State 

that is in material compliance with REAL ID, and he pointed to 

your Enhanced Driver’s License as an example of a compliant drivers’ license. He also cited Washington State, New York, and Michigan as being in material compliance. 

So, therefore, I am very surprised to hear Secretary Napolitano 

assert this morning that no State is in compliance with REAL ID. 

So I first want to ask you, Governor, do you consider Vermont to 

be in material compliance with REAL ID? 

Governor DOUGLAS. I do at this point, but on December 31, there 

are 18 benchmarks that States have to meet, and even a State like 

mine that is doing its best to comply is not going to be able to meet 

all of these 18 benchmarks on that date because of the requirement 

for the national databases that are not yet up and running. So, 

now we are, but we are going to find it virtually impossible to meet 

all these 18 benchmarks by the end of the year. So that is why the 

urgency that the Secretary noted is critical. 

Senator COLLINS. Which is an excellent point, and it is the reason that we have gathered here today, but I do not want to leave 

the impression that there has been no progress in this area, that 

States are completely unable to make improvements in their security when virtually every State has taken steps, including my State 

of Maine, to make sure that we are giving licenses only to people 

who are lawfully in this country. 

My State was one that did not have that requirement. We had, 

for example, some people who were here illegally, coming to Maine, 

renting a post office box and being able to get a drivers’ license, 

and that obviously is fraught with problems. 

Secretary Napolitano, I want to ask you about a provision in 

PASS ID that you and I have discussed that I find troubling, and 

that is the provision that says that an individual cannot be prohibited from boarding an airplane solely because of the lack of a compliant drivers’ license. A strong incentive for States to comply with 

the law has been the fact that they want to avoid problems for 

their residents in boarding airplanes, yet this bill would appear to 

undermine that incentive by including specific language that prohibits Federal security officials at airports from denying a passenger access to a plane solely on that basis. 

Now I want to make clear that the Transportation Security Administration (TSA) has always had the discretion to exercise judgment if an individual shows up at the airport without sufficient 

identification. They do that every day now. But that is very different from putting specific language in the law that tells States 

that they are not going to be inconveniencing their residents as 

much, at least if they do not have a compliant ID, and I find that 

troubling. 

Do you support that provision? 

Secretary NAPOLITANO. Senator, I think what would happen 

under that provision is basically the same as what would happen 

without that provision. In other words, TSA’s operating procedure 

would be that if someone appeared without a REAL ID-compliant 

document they would be subjected to additional screening, so that 

it would not be an automatic you cannot board. It is just the same 

17 

as you described it, but they would have to be looked at or other 

things would have to be evaluated by the TSA employee to ascertain whether they should be allowed to board. 

Senator COLLINS. Do you think that language should be in the 

bill? 

Secretary NAPOLITANO. We would be happy to work with you on 

that language. 

Senator COLLINS. Are you concerned that the provision could become the basis of lawsuits challenging the decisions of security officials under that standard? 

Here is the issue. Let’s say the individual does not have the compliant ID. There is a law that says that this cannot be the basis 

for keeping the individual off the airplane. Secondary screening is 

done. It finds nothing, but the security official still believes that individual should not board the plane. 

I think you are creating a situation where that security official 

is going to feel he or she has no choice but to let the individual 

board the plane because you have now put that specific language 

in the bill, in the law. 

Secretary NAPOLITANO. Senator, yes, I think there may be a 

point there that we can explore with you between now and markup 

of the bill, but I want to go back to the fact that with the language 

or without the language, the guidance from TSA is going to be if 

you appear without a REAL ID-compliant document some additional exploration is going to be needed to be done before you are 

allowed to board a plane. 

Senator COLLINS. Mr. Chairman, I hope this is an issue at which 

we will look further. I support many of the provisions of PASS ID, 

and I commend all of those, including my own staff, who have 

worked so hard to come up with a system that is less expensive, 

less burdensome to the States, and more protective of privacy concerns. But I do want to make sure that we are not creating unintended consequences that get us back to the terrible situation that 

we had prior to September 11, 2001. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins. I share your 

concerns, and we will make sure they are reflected in our markup. 

Senator Akaka. 

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

Secretary Napolitano, as you well know through your previous 

role as the Governor of Arizona, in 2007, DHS issued all States an 

extension for complying to the REAL ID Act. As you testified, DHS 

also announced that it would grant States another extension but 

only if they proved they meet 18 REAL ID benchmarks by December 31, 2009, and this was raised by the Governor. 

Many States, home to millions of people, may not meet this deadline. What will DHS do if Congress does not act this year? Would 

you expect to begin enforcing your travel and facilities restrictions 

next year or to issue another extension for compliance? 

Secretary NAPOLITANO. Senator Akaka, you have just described 

the paradigm of being between a rock in a hard place because we 

will be faced with either not enforcing a law that Congress has 

passed so that millions of Americans are not prevented from traveling, entering courthouses, or the like, or at least highly inconvenVerDate Nov 24 2008 09:40 Jun 06, 2011 Jkt 51792 PO 00000 Frm 000021 Fmt 06633 Sfmt 06633 P:\DOCS\51792.TXT SAFFAIRS PsN: PAT
18 

ienced before they can do that, versus enforcing it and causing all 

of those effects. 

In my view, that is why we need PASS ID but more than that. 

If all I do is basically enact another universal extension, we are not 

getting to where we need to be because the whole goal here is to 

begin reaching the goal of the 9/11 Commission, which is to have 

a secure form of ID. So, if the law on the books is one that for all 

the reasons described earlier just has to be continually extended, 

we are not actually getting to a system that reaches the security 

goal that we are striving for. 

So, with a better law, we will be better able to enforce and get 

to the standard that we want to reach. 

Senator AKAKA. Thank you. I know it is difficult, but thank you 

for your response. 

Governor Douglas, as you know, one of the biggest problems for 

States implementing the REAL ID Act has been inadequate funding. States simply cannot afford to foot the bill for a $4 billion unfunded mandate in this economic climate. DHS has issued grants 

to States to offset some of these costs and has allowed States to use 

part of their State Homeland Security Grant Program funds which 

are required for other pressing security needs. 

Mr. Baker’s written testimony for the next panel states that the 

Federal Government should insist that States give highest priority 

to drivers’ license security rather than State-level homeland security priorities. 

Would you like to address from your experience, as a governor, 

the financial burdens REAL ID, in its current form, imposes on 

States and whether States are properly prioritizing their Homeland 

Security Grant funds? 

Governor DOUGLAS. Well, I feel good about the prioritization in 

Vermont. You may want to ask other States to respond to that. 

There obviously is a great deal of accountability when we receive 

those Homeland Security resources. We believe we have deployed 

them responsibly. We are audited by the Federal Government. So 

I think we have done a good job. 

You have identified one of the key concerns, Senator, that all 

States have, especially in this challenging fiscal climate. We are 

facing tremendous pressure to balance our budgets to meet the legitimate needs of the people we serve, and I am sure you have 

heard stories from around the country about dramatic service curtailments that States are now facing because of this fiscal and economic crisis. So to impose an additional responsibility through 

REAL ID obviously means that something has to give in terms of 

State finances. 

For most of the last century, when drivers’ licenses were first 

issued, it has been exclusively a State responsibility, a State discretion. States have decided how to do it. But now the Federal Government has imposed some requirements. And I do not object to 

them, but I think it is fair that it not be an unfunded mandate. 

So I really do appreciate the resources that have been proposed, 

the more cost-effective approach that your bill recommends. We believe about half as costly as what it is in the REAL ID law, and 

I think especially in this climate that is a critically important feature. 

19 

Senator AKAKA. Thank you very much for your response. 

Secretary Napolitano, the PASS ID Act requires that DHS issue 

regulations to implement it within 9 months after the bill is enacted. Some have expressed concern that DHS could not meet the 

deadline, although substantial portions of the REAL ID regulations 

could be used to craft PASS ID regulations. 

Do you believe that DHS will be able to meet this deadline? 

Secretary NAPOLITANO. Senator, yes. It will be tight, and it will 

be tough, but we believe that we can. As you yourself noted, we are 

not starting from scratch here because really PASS ID is a REAL 

ID fix, so that we have good building blocks from which to work. 

So, yes, we believe 9 months can be met. 

And, indeed, even if there were to be some slippage, we still 

could get regulations out prior to the effective date of what REAL 

ID would have provided because the PASS ID time line would actually end with full implementation 1 year before REAL ID would 

have. 

Senator AKAKA. Thank you very much for your response. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Akaka, very much. 

Senator Voinovich, welcome back. 

Senator VOINOVICH. I apologize if any of these questions have 

been asked already, but, Governor Douglas, it has been said that 

PASS ID allows States to rubberstamp applicant source documents 

like birth certificates and Social Security numbers. I want to point 

out that PASS ID does in fact require confirmation of Social Security numbers using the Social Security Online Verification database. 

But can you speak to any concerns you have with the other 

REAL ID verification requirements such as the requirement that 

birth certificates be verified using the Electronic Verification 

Events database? 

Governor DOUGLAS. Well, as you noted, Senator, some of the requirements in PASS ID are the same as they are in REAL ID in 

terms of verification of those source documents. So that should give 

all of us a sense of belief that those verifications will be as strong 

as they were under the current law. 

The problem is these national databases, such as vital records or 

the passport verification database or the drivers’ license information-sharing one that was referred to earlier, are not available. 

They are not up and running, and so I think to have a requirement 

as we do in the REAL ID law that is not there does not give anyone a sense of security. 

So I think PASS ID is equally strong in these areas of document 

verification, and the pilot project that the Secretary mentioned in 

terms of drivers’ license verification will give us a sense of whether 

that can be done on a more universal basis. 

Senator VOINOVICH. Madam Secretary, can you speak to the status of efforts to develop the systems, the databases that we need 

to verify passports and birth certificates? 

Secretary NAPOLITANO. I can, although those questions are more 

appropriately I think probably for Departments of State and 

Health and Human Services (HHS) which has, of course, the birth 

certificate registry. 

20 

But it is known as the Electronic Verification of Vital Events 

(EVVE). I believe that something like 13 States now are participating in EVVE, which is the birth certificate database, but the remainder are not. I do not know the schedule for or the ability of 

the full implementation of birth certificate validation at HHS beyond what EVVE provides. 

Senator VOINOVICH. I would hope that maybe somebody in your 

shop would kind of keep track of where they are in regard to that 

because that certainly helps to achieve the goal that we have, and 

that is the best drivers’ license that we can possibly have from a 

security point of view. 

And, Governor, as these databases come onboard, I am sure that 

you and other governors are going to take advantage of them. 

Governor DOUGLAS. I am sure we will, Senator. I was talking 

with the folks in our vital records office yesterday before coming 

here, and it is quite a process to get all of those data entered in 

a form that can be accessed in a consistent way. Some of our vital 

records prior to 1950 are in different media from those between 

1950 and 1980 and then there have been different systems since 

then. So we are working at it. 

I indicated earlier that we are doing everything we can to comply 

with REAL ID, and it is so onerous, frankly, that we are not going 

to meet the benchmarks that have been established. So we will certainly take advantage of what is available when it is. 

Senator VOINOVICH. Thank you. 

Chairman LIEBERMAN. Thanks very much, Senator Voinovich—a 

good exchange. 

Senator Burris, welcome. 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. Thank you, Mr. Chairman. 

I am just trying to figure out where to start on this issue for our 

distinguished panel. 

I am holding up here an Illinois drivers’ license and an Illinois 

ID card. Illinois issues an ID card if you go in and request it in 

addition to your drivers’ license, which I use to go through the airport securities. 

I am just wondering if a person does not drive. What we did was 

issue this card for ID purposes, and even PASS ID and even REAL 

ID I understand that we are seeking to do it based on a drivers’ 

license. Is that correct? 

Secretary NAPOLITANO. Senator, under both bills, when they use 

the word, drivers’ licenses, they also include within that any identification issued by a motor vehicle division in lieu of a drivers’ license for nondrivers. 

Senator BURRIS. OK, because what I am hearing is if a person 

does not drive or if a person is 14 or 15 years old they will not have 

a drivers’ license, but they should have some ID to get on the vehicle. So the PASS ID would also encompass some identification from 

the State. 

Rather than a State ID, why cannot we have a national ID where 

this burden would not be placed on the States? The States do not 

have the burden of trying to process this cost. 

21 

Have you ever been to O’Hare Airport? I just left Midway Airport. 

And I am hearing, Madam Secretary, that you say that if they 

do not have the REAL ID after December, O’Hare Airport will 

probably shut down. If you do what you are talking about doing, 

where there is extra screening, you will probably have to be at the 

airport not 2 hours earlier but 3 or 4 hours earlier. And so, I just 

see the biggest mess coming in a city like Chicago that would just 

hamper even air travel. 

So I am just wondering, is there something that we are talking 

about where the verification can be done where there would be a 

national ID rather than a State ID? 

Secretary NAPOLITANO. Well, Senator, I do not know about the 

possibility of a national ID. There is obviously a lot of pros and 

cons on that approach. 

Senator BURRIS. I am sure there would be. 

Secretary NAPOLITANO. We are not taking that kind of a bite nor 

are we seeking that right now. What we are seeking is a fix to 

REAL ID so that come December 31, 2009, I, as the Secretary of 

the Department of Homeland Security, do not have to make the 

choice between enforcing the law that Congress has passed and creating what could be, at the minimum, a lot of confusion at our Nation’s airports. 

Senator BURRIS. Madam Secretary, we are hoping that we can 

have PASS ID. 

And I do not know, Mr. Chairman, whether or not we can get 

PASS ID which is a lot better than REAL ID, but we might even 

want to take it to another step further because I look at what TSA 

is doing now and to put that burden on a TSA worker, what they 

go through now at the airport. It is unconscionable, listening to all 

of the screening in process, which is pretty acceptable to the traveling public. 

But I still see, for example, I left home the other day and did not 

have my ID with me. Even as a U.S. Senator, there was a process 

that I had to go through to get on an airplane, and everybody knew 

me in Chicago. I am no stranger. 

And I just wonder what would have happened to old John Doe 

out there who showed up to the airport, had to get to work, had 

to get to this meeting, with no ID. I am sure there is a process, 

and they took me through a process. 

I had to verify addresses. I had to show two or three places 

where I lived, and they knew me. So the TSA staff is doing their 

job, Madam Secretary. I want you to know that. And they put me 

through every rigor, and I did not complain either because I do not 

want anybody else getting on that plane that has not been properly 

identified. OK? So that is not the argument here. 

But I am just wondering, what burden are we going to put on 

that poor TSA screener, that is looking for a raise by the way, and 

may have to make that judgment, even with the REAL ID or the 

PASS ID? Are we taking those into consideration? 

Secretary NAPOLITANO. Senator, I would say yes, and I would say 

with PASS ID which will indicate that a license or identification 

card is compliant that we start now to make more straightforward 

22 

and simplify for the public the identification necessary while helping us meet our security goals. 

I always retreat to the 9/11 Commission Report. I think my job 

as the Secretary of Homeland Security is to take those recommendations and to move us toward implementation which will 

give us greater safety and security in our country. 

And, as we move forward, we reach some of these pragmatic, 

practical problems. It is not a surprise that the first stab at identification like this REAL ID needs to be fixed and the pragmatic 

problems addressed. But for a worker at an airport, say a TSA 

worker, making more straightforward what kind of ID is acceptable, the indicators for that kind of ID and the like should help us 

overall reach our 9/11 Commission goals. 

Senator BURRIS. Well, Madam Secretary, I know that I just had 

a couple grandchildren born, and they got issued Social Security 

numbers. So Roland II and Ian are in the database here in the 

Federal Government somewhere. I am just wondering, have we 

looked at and should we not look at a national database that would 

give the identification of the Americans and the individuals in this 

country? 

Has anyone done any studies in reference to that or it was just 

actually in the REAL ID legislation to put it on the States? I am 

sorry I was not here at the time, and probably you were not here 

either, I would assume. 

Secretary NAPOLITANO. I was a governor. 

Senator BURRIS. And I think I was enjoying life. [Laughter.] 

But I just wondered, do you have any knowledge as to how that 

or you do not know? 

Secretary NAPOLITANO. I do not. 

Senator BURRIS. Governor, did your State look at that at all in 

terms of the past actions? 

Governor DOUGLAS. We have not considered a national approach 

other than the approach that we are discussing this morning which 

is PASS ID. 

I think the urgency of getting something done before the end of 

this calendar year is such that we ought to all work together, find 

some consensus as this process has done without getting into an 

area that might be more difficult. 

Senator BURRIS. I am thinking about the long run, Governor, 

down the line because I just see this PASS ID even itself is not 

going to be as secure as we think it is because the documentation 

in the databases are the same databases you use for REAL ID. The 

question is just how secure is that going to be? 

I think we ought to look at, if we get this in place, certainly so 

we can get a little bit more security with our travel or the identification, but I hope and pray that we will look at even taking it 

to a higher level without the invasion of privacy. We still have the 

privacy issue here that we must deal with. 

And the transfer—I mean I do not see how you are going to deal 

with Illinois, Ohio, and Michigan. When I go to Ohio and I am 

traveling out of Ohio, it is a different issue in how they issue there. 

I am looking at the start on this. Is this what they are planning, 

this process here where they have the REAL ID process? Is this 

what would be the new PASS ID document? 

23 

Secretary NAPOLITANO. It would be something like that to indicate that something is compliant—very simple, very easy for somebody to observe and note, like a TSA worker. 

Senator BURRIS. Which would mean that, too, could be counterfeited as well as any of the other documents. So I do not know 

whether that is going to be really the solution with this type of a 

special identification because after you get the documentation the 

person can produce false documents or be in the database with 

false documents and still get a star on his drivers’ license. 

Secretary NAPOLITANO. Senator, I think we would be more than 

happy to brief you and your staff on other protections that are built 

in the documents to inhibit forgery, false ID, and the other things 

that are built now into drivers’ licenses that make them more difficult to manufacture in a fraudulent way. 

Senator BURRIS. I appreciate that. 

Secretary NAPOLITANO. It is never 100 percent, but it is much 

more difficult than years past. 

Senator BURRIS. Thanks so much. 

I am sorry about my time, Mr. Chairman. Thank you. 

Chairman LIEBERMAN. No. Thank you, Senator Burris. We are 

glad you are not enjoying life as much as you used to because you 

contribute to the work of our Committee. I thank you. 

I think we better move on to the second panel. I thank you, 

Madam Secretary and Governor Douglas. It has been a very helpful 

exchange. 

We understand the urgency of this matter, and the next markup 

of this Committee is actually 2 weeks from today. So I want to 

challenge each of us to work together urgently because my goal, 

and I know Senator Collins’ would be, is to get this PASS ID before 

that markup on July 29. 

Thank you both very much. 

We will now call the second panel: Stewart Baker, Sheriff Leroy 

Baca, David Quam, and Ari Schwartz. 

Thank you, gentlemen, for your patience. We appreciate very 

much that you are here. Some come a long way, as Sheriff Baca 

has. We welcome you back again. It is great to see you. 

We will begin with Stewart Baker, former Assistant Secretary for 

Policy at the Department of Homeland Security. Secretary Baker 

has occupied a role, which is new because this is a new department. But in the Armed Services Committee, we are quite regularly hearing from former executives of the Department of Defense 

who really have the experience and continue the interest and, 

based on that experience, really have a lot to offer. 

So I think you are doing this as well or better than any of this 

first generation of executives, now former executives, of the Department of Homeland Security. Whether one agrees with you or disagrees with you on a particular matter, I really thank you for your 

continuing interest in our homeland security, and I welcome your 

testimony. 

24 

1The prepared statement of Mr. Baker with attachments appears in the Appendix on page 

98. 

STATEMENT OF HON. STEWART A. BAKER,1 FORMER 

ASSISTANT SECRETARY OF HOMELAND SECURITY 

Mr. BAKER. Thank you, Senator. I feel very strongly about making DHS a success and anything I can do in my current capacity 

to contribute to that I am delighted to do. 

Mr. Chairman, Ranking Member Collins, and Members of the 

Committee, it is a pleasure to be here. 

I have raised four concerns in my prepared testimony. I am going 

to talk principally about one of them today, and that is the source 

document problem. 

I think it is easiest to understand that if you have heard the 

story, as I heard from his relatives, of Kevin Wehner. Kevin 

Wehner was a carpenter. He had three kids. He took a vacation in 

the Virgin Islands around 2002 or so, and in the course of that his 

wallet was stolen. About 2 years later, he started hearing that he 

was wanted for speeding tickets, for other abuses of a license in 

Florida. 

It turned out that someone had walked into the Florida Department of Motor Vehicles, presented his Social Security card and a 

birth certificate, almost certainly just made up, from the Virgin Islands in his name. On the strength of that, Florida gave this imposter a drivers’ license in Kevin Wehner’s name. 

Kevin Wehner tried to cure that problem long distance from New 

York, was unable to do that, finally moved to Florida, and in the 

course of living in Florida asked for a drivers’ license. And the 

State said, ‘‘no, you cannot have a drivers’ license. You already 

have one.’’ He said, ‘‘no, that is not me.’’ 

They asked for more paperwork. He provided the paperwork. 

A year later, Kevin Wehner was still wanted by the police for numerous speeding tickets and unregistered vehicle violations. He 

was at risk every time he drove his car of being pulled over and 

sent to jail because of the bad birth certificate that had been accepted by the Florida Department of Motor Vehicles. 

That is quite aggravating and dangerous, but it was only the beginning of the nightmare for him. Because on September 13, 2007, 

the guy that the police knew as Kevin Wehner was stopped, pulled 

over. He got out and pulled out a semiautomatic weapon that he 

had bought in Kevin Wehner’s name, and he shot down four police 

officers, killed one of them, and fled. 

The police immediately put out an all points bulletin for him, for 

Kevin Wehner. They went to the Florida Department of Motor Vehicles and said, do you have a photograph for this guy? 

And they said, yes, actually, we just got a photograph from a guy 

who said he was Kevin Wehner. 

They took the real Kevin Wehner’s photo, spread it all over the 

States, put it in an all points bulletin to the police. So, now, if he 

is stopped while driving, he does not risk just going to jail. 

You can imagine what the reaction of the police force of Jacksonville would be if they pulled over somebody that they believe was 

a wanted killer of police officers, he is driving Kevin Wehner’s car, 

25 

he looks like Kevin Wehner, they ask him, are you Kevin Wehner, 

and he says, yes, I have my license right here. 

I do not think that his chances of surviving that encounter are 

very high. In fact, when they finally did straighten this out, the police went looking for the guy who they really wanted, and he was 

killed in a gun battle with the police that evening. 

The risk to Kevin Wehner from that bad birth certificate is astonishing. What is difficult to credit is that Florida is still accepting 

birth certificates without doing anything to check the validity of 

those birth certificates. That is something that REAL ID would 

have fixed. It is something that PASS ID allows to continue permanently. 

PASS ID deserves some credit. PASS ID has worked hard to 

make sure that the documents are not easily forged, and I think 

we should acknowledge the value of that. 

But, given a choice between having a license that is hard to forge 

and birth certificates and other source documents that are hard to 

forge, we really should be choosing to make the birth certificates 

more checkable than the drivers’ licenses because drivers’ licenses, 

if you are stopped by the police, they are going to check a database 

to see if that drivers’ license was really issued to you in that name 

with that identity. And so, a fake drivers’ license will not get you 

past a traffic stop, whereas if you bring in a birth certificate there 

is simply no check at all. 

What we should be working toward is having exactly the same 

capability with respect to birth certificates that we have with respect to drivers’ licenses today. It ought to be possible to say to the 

issuing authority, did you issue this birth certificate? That is one 

of the requirements of REAL ID that is lost here that ought to be 

fixed. 

Just very briefly, the other three items that I talked about in my 

testimony: 

The 9 months to get a regulation out, I do not believe that is possible. It would take 10 months even if the Department of Homeland 

Security could do its job instantaneously, which it cannot. I appreciate the confidence that the Secretary has, but I do not believe 

that she can do it. And, at a minimum, this Committee should try 

to make sure that there is a form of insurance that if that deadline 

is missed the provisions of REAL ID that are really equivalent to 

PASS ID remain in effect. There ought to be a way to fix that problem. 

The other two issues, very quickly: I agree entirely with Senator 

Collins. We are creating a litigation magnet by creating a statutory 

right to fly without ID. There is no need to do that, given the current policy. 

And making the expenditure of State Homeland Security Grant 

Program funds for drivers’ licenses something that is a priority is 

something that is particularly valuable. State Homeland Security 

funds come from all taxpayers. They should be used for things that 

benefit all taxpayers and make all taxpayers more secure. Drivers’ 

license security does that. That should be the highest priority for 

the use of State Homeland Security grants, and I urge that you 

enact a priority for that use of the funds. 

Thank you. 

26 

1The prepared statement of Mr. Baca appears in the Appendix on page 113. 

Chairman LIEBERMAN. Thanks, Mr. Baker. That was a compelling story about the birth certificate. 

Am I correct, just briefly, that what you are saying is that we 

ought to be investing money, perhaps Federal money, in setting up 

this national database system? In other words, the so-called EVVE 

system is just beginning to come together, and the States are obviously not willing to contribute. 

Mr. BAKER. I agree that we should spend our money on that. I 

do not think it is a central database. Each State is going to put together its own database on its own residents. 

Chairman LIEBERMAN. Yes. 

Mr. BAKER. But it ought to be possible for a State to inquire 

whether that birth certificate was really issued. That is all that is 

really necessary, not a centralized database. The cost of that, just 

setting up the connectivity is a few million dollars, and then it is 

probably a couple of million dollars per State to clean up the databases, roughly. So our guess is that this could be done for a total 

of $75 million spread over 2 or 3 years. 

Chairman LIEBERMAN. That is very practical and helpful. Thank 

you. As you know, I am concerned about that omission in the PASS 

ID legislation. 

Sheriff Baca, thanks for being here. Leroy Baca is the Sheriff of 

Los Angeles County, testifying today on behalf of the National 

Sheriffs Association which has endorsed PASS ID, also a member 

of the Major Cities Chiefs Association. Sheriff Baca leads the largest sheriff’s department in the Nation which has over 18,000 officers and staff. 

It is an honor for you to be here. I thank you for going to the 

trouble of coming across the country, and we welcome your testimony now. 

STATEMENT OF HON. LEROY D. BACA,1 SHERIFF, LOS 

ANGELES COUNTY, CALIFORNIA 

Mr. BACA. Thank you. Good morning, Chairman Lieberman, 

Ranking Member Collins, Senator Akaka, Senator Voinovich, and 

Senator Burris. I am pleased to have this opportunity to appear to 

express the associations that were identified by Lieberman that I 

represent in support of S. 1261. 

As the witnesses before me have addressed the problems and 

challenges associated with the implementation of REAL ID, my testimony will focus on the critical need for a national standard for 

identification security from a local law enforcement perspective, so 

that we can effectively integrate what we are doing here to ensure 

that the homeland security is, in fact, secure. 

Hopefully, my testimony will strengthen the core message of Secretary Napolitano and Governor Douglas. Together, we recognize 

that the proposal to issue a national standard for identification security has been a contentious one. However, we believe that PASS 

ID adequately addresses the cost, policy, and privacy concerns so 

as to protect the citizens that we serve. Nothing will ever be perfect, however. 

27 

From a law enforcement perspective, it gives us that much more 

confidence that the identification we are looking at is authentic. 

That really is the core reality of the 9/11 Commission request and 

recommendation, that if someone is saying this is who I am and 

they provide an identification card or drivers’ license, that in fact 

that is who they are. That is the ultimate goal. 

It provides one more tool to ensure public safety. It is designed 

to make it much more difficult for terrorists, criminals, and illegal 

aliens to tamper with official identification. 

And so, I would like to just close with two or three points here, 

and that is, as you have stated well, the 9/11 Commission was concerned that varying State standards created security gaps that 

were exploited by the September 11, 2001, terrorists in obtaining 

State identification documents. As such, the 9/11 Commission recommended a national standard, not national ID cards, and PASS 

ID provides a cost-effective, common-sense solution that balances 

critical security requirements with input and practical needs of individual States. 

My second point is that PASS ID provides flexibility to the States 

for implementing the security requirements. It also provides flexibility for validating source identification documents and eliminates 

fees associated with the use of Federal databases. 

The next point is that PASS ID requires the States to develop 

procedures to prevent the unauthorized access or sharing personally identifiable information. It mandates public notice of privacy 

policies and the establishment of a redress process for individuals 

who believe their personal information should be amended. It restricts the use of personal information contained in the drivers’ license or an ID bar code to purposes in support of Federal, State, 

or local laws and prohibits States from including Social Security 

numbers in the bar code. 

Finally, PASS ID removes the blanket requirement to electronically verify applicant documents and protects against the creation 

of a national identity database containing all drivers’ license and 

ID information. I think that really is a key point. 

Finally, only citizens and non-U.S. citizens who are lawfully 

present in the United States are eligible to receive a PASS ID. 

And so, what we are talking about here is simply, in conclusion, 

that millions of contacts a day are made with people in the United 

States who are here legitimately, lawfully in every way possible are 

here to do the right thing as our citizens. An ID system such as 

a drivers’ license or an identification card will come into the hands 

millions of times a day for a variety of reasons. The authenticity 

of these documents is what PASS ID will ensure. 

Thank you very much. 

Chairman LIEBERMAN. Thank you, Sheriff, very much—very 

helpful testimony. 

David Quam is next, Director of Federal Relations at the National Governors Association. We thank you for working closely 

with our staff and with the staff of the Department of Homeland 

Security to put together the PASS ID, and we welcome your testimony now. 

28 

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

118. 

STATEMENT OF DAVID QUAM,1 DIRECTOR OF FEDERAL 

RELATIONS, NATIONAL GOVERNORS ASSOCIATION 

Mr. QUAM. Thank you, Chairman Lieberman, Senator Collins, 

Senator Akaka, and Senator Voinovich. Happy birthday to you, sir. 

Since my boss, Governor Douglas, or soon to be boss as Chair of 

NGA, has already spoken, and my former boss, Secretary 

Napolitano, also spoke so eloquently on this issue, I will be brief. 

I will reiterate some of the instructions that were given to NGA by 

governors. 

Governor Douglas talked about governors coming together and 

talking through this issue. It is remarkable when governors come 

together without staff, person to person, because they are able to 

talk just as governors. They discuss how to make a State run and 

their unique position in having to actually make everything work. 

REAL ID was a source of great frustration for governors and remains one. We now have 13 States who have said they are not 

going to participate. Governors are very concerned about making 

investments into their drivers’ licenses to increase security and integrity, while also making investments that make sense. What 

were the rules going to be? Can we create certainty? And, what 

does the future look like? 

REAL ID, unfortunately, with some of the baggage it created, 

has never created certainty. PASS ID is designed to try to create 

certainty and allow States to move forward. 

When the governors got together, they said, let’s try to find a fix 

and let’s be guided by four things: 

First and foremost, fulfill the 9/11 Commission recommendation. 

That is the starting point and is the commonality for everybody involved in this issue. 

Second, facilitate and encourage participation by all jurisdictions. 

Allow the 13 States who have said no a way to come back in and 

participate because security standards only work if people are willing and able to use them. When you have one-fourth of the States 

not participating, it is hard to put verification systems together 

when, for instance, the entire Northwest is not participating. How 

are you going to verify that person’s information if they are from 

Seattle and you are sitting in Atlanta trying to assess whether that 

person should get a drivers’ license? 

Third, enhance the security integrity of all licenses and ID cards 

while retaining State flexibility to innovate. I think you said REAL 

ID was too prescriptive. That was a big fear. States actually want 

to do more. They are happy to have the Federal Government set 

a floor of standards because they want to innovate beyond it. I 

think the experience States have had with the Enhanced Driver’s 

License show the commitment of States and governors to actually 

take security standards and move beyond what is required because 

they share your interest in security and integrity. 

The last guideline address critical privacy concerns and reduce 

unnecessary costs. Let me focus on privacy just for a minute because I think it is important to view some of the systems that 

PASS ID does not include in this context. Privacy was a key driver 

29 

in a lot of the States that ultimately have said no. Privacy was a 

concern because there were databases being set up that actually 

threatened personal identity and encouraged identity theft by providing databases that could ultimately be hacked. That was a concern, a political concern, in several States. 

The privacy concern was followed by one of implementation, 

questions about whether this could actually be done. And then of 

course there was cost, that this was an unfunded mandate. 

This was Washington, once again setting the rules and, as Senator Lamar Alexander loves to say, sending the bill to the States. 

These issues combined to have 13 States and then 11 others pass 

resolutions saying: You know what? This was a bad idea. We are 

not going to comply. 

What PASS ID does and is designed to do is to stop kicking the 

can down the road. Let’s solve the problem. Let’s create certainty. 

Let’s do what we can now. 

Verification is increased under PASS ID because all States will 

conduct verification through SAVE and SSOLV. It should be noted 

that right now I believe 49 States use SSOLV and 30 use SAVE. 

PASS ID would require everybody to come in. That is a level of 

verification that did not exist pre-September 11, 2001, does not 

exist now, but would exist after PASS ID. 

The three systems that the Governor talked about that are questionable or that would not be required right away—the drivers’ 

database, passports and even vital records—are very difficult to implement, but PASS ID does not say get rid of them. It says pilot 

them. Let’s spend the time and money and make the investment 

to see if we can make these things work. 

And, if we can make them, if we can get them funded and they 

are cost-effective, governors and DMVs will use them. But, as one 

governor said to me, he said, ‘‘David, can you tell me today how 

any of these systems are governed, who owns them, how they are 

paid for, or how you are protecting my citizens’ identity?’’ 

The answer for all of his questions was ‘‘no.’’ 

He said: ‘‘In that case, how can I sign up for this law and put 

my folks on the line? Until those questions are answered, I cannot 

move forward.’’ 

I think that is a good standard, and PASS ID represents a solution to this problem. 

I will add that many of the advocates who have participated in 

this process, to a degree, are not completely satisfied. In Washington, that probably means we found the right solution. 

Thank you, sir. 

Chairman LIEBERMAN. Thank you. 

The final witness is Ari Schwartz. We welcome you back to the 

Committee where you have testified to our benefit before. 

Mr. Schwartz is the Vice President and Chief Operating Officer 

of the Center for Democracy and Technology. 

30 

1The prepared statement of Mr. Schwartz appears in the Appendix on page 127. 

STATEMENT OF ARI SCHWARTZ,1 VICE PRESIDENT AND CHIEF 

OPERATING OFFICER, CENTER FOR DEMOCRACY AND TECHNOLOGY 

Mr. SCHWARTZ. Thank you very much, Mr. Chairman, Senator 

Collins, and Members of the Committee. Thank you for having this 

hearing and for inviting me to testify today. 

I would particularly like to thank Senators Akaka and Voinovich 

for their leadership on PASS ID and moving this forward, and also 

our colleagues at the National Governors Association for trying to 

bring this back to a nonpartisan place where we can have this discussion. 

I was actually on the Intelligence Reform Committee that worked 

on a negotiated rulemaking, and I think that Senator Collins has 

very eloquently laid out what that Committee’s charge was in trying to come up with rules that protected privacy while still meeting 

the 9/11 Commission’s goals of flexibility, of standards for issuance 

and for getting the information on the card. 

That is really what the folks on the 9/11 Commission wanted, to 

make sure that we had this ability to improve the drivers’ licensing 

system, to be able to use it, to be able to rely on it for purposes 

of national security but then also that we had privacy and we had 

the flexibility built in as we went forward. If you go back and read 

the 9/11 Commission Report, it is very clear that civil liberties 

issues in particular are of great concern to the Commission. 

Unfortunately, REAL ID really pushed this discussion to the 

edges. We really had a discussion at the extremes where now we 

have one side that is committed to this kind of rigid standardized 

discussion that represents REAL ID, where privacy has been removed from the discussion. Remember, the Intelligence Reform Act 

specifically said that we needed to have privacy standards in place. 

Those were taken out in REAL ID, and DHS noted that in their 

notice of proposed rulemaking originally under REAL ID, that they 

could not put in the same kind of privacy standards that they 

would have been able to under the Intelligence Reform Bill, and 

that seemed to be Congress’s intent. So we have taken a step back 

from that. 

On the other side, you have groups and other public policy officials that would prefer to do nothing, that feel the problems could 

come from tinkering with the current situation might be worse 

than where we end up down the road. 

We do not think that either of those possibilities are the right solution. The truth is probably somewhere in the middle and that we 

need to be moving down in the direction to get at that answer. We 

think PASS ID does that. 

PASS ID addresses the issues with REAL ID by retaining the 

current federated system but protecting information in the machine-readable zone while keeping REAL ID’s minimum standards 

for obtaining a license and the standardization of information on 

the card. 

Importantly, PASS ID would require States and law to create 

privacy and security safeguards including internal fraud and physical security. We have seen time and time again that the greatest 

31 

weakness of the drivers’ license system actually is of internal fraud 

and of physical security within the DMVs. From California to 

Washington, DC, even in the past 2 years, we have seen cases of 

workers at DMVs selling real licenses for $1,000 to $2,000 to individuals that should not be able to get them under the current law. 

We have also seen several cases where employees have sold the 

entire DMV database of information to identity thieves who are 

using it for identity theft. 

Before we can rely more heavily on the drivers’ license for authorized purposes, we should ensure that these problems are being 

addressed by the States has PASS ID would require in law. 

We ask the Committee to ensure that these important privacy 

and security protections are not weakened as we move forward. 

We also urge you to consider other changes in this direction: In 

particular, Congress repeal the mandate for standardized machinereadable zone, limit the data elements that may be contained in 

the machine-readable zone and limit access to the machine-readable zone to only what is necessary for legitimate law enforcement 

and administrative purposes. 

Congress should reject the use of the vicinity read technologies 

that can be easily cloned and are not secure for human identification purposes. 

And, finally, Congress should require States to minimize storage 

of copies of source documents to prevent fraud and theft of the 

source documents. 

We look forward to working with the Committee as you move forward, and I look forward to your questions. 

Chairman LIEBERMAN. Thanks very much, Mr. Schwartz. As always, you have been helpful. 

I am going to ask just one question, and then unfortunately I 

have to leave to go to a meeting at noon. But I thank the witnesses 

very much. Senator Collins and Senator Akaka will go on in my absence. 

Mr. Schwartz, I want to ask you because, as you heard in the 

first panel, I am concerned—and you referred to it—about the importance of the States validating source documents, the kind of documents that people use when they come in and apply for a drivers’ 

license. 

Secretary Napolitano and Governor Douglas basically gave two 

reasons why they were either opposed or skeptical. One was that 

with the privacy concerns, and the other was the cost for the 

States, particularly to input birth certificate information. Mr. 

Baker obviously spoke at some length with that anecdote about 

that. 

I wanted to ask you whether your privacy concerns about that 

kind of system, about the mandating that States cooperate and provide data to one another about the source information, particularly 

birth certificates, whether you have great privacy concerns, whether they can be taken care of, how you feel about it. 

Mr. SCHWARTZ. Yes. Thank you, Mr. Chairman. 

We support the idea of the pilot and moving forward with the 

pilot exactly as Mr. Quam put forward. 

The main reason of the concerns is that the quality of the information in these databases is just of a very poor quality. I know this 

32 

from my personal life. Actually, my wife’s date of birth was wrong 

on my son’s birth certificate, and when I went in to go to change 

it they appended it at the bottom of the form. They do not change 

the field itself. Every State, every locality has had differing standards for how they go about making these changes and what they 

do with this information for hundreds of years. 

So, if you say we are all going to connect this information together, which I agree just connecting the information together is 

fine, I think that the cost of correcting the information, of getting 

it linked so that they are standardized—you are talking about 

standardized forms—it’s incredibly expensive. And then the ability 

to put security protections on top of that is questionable as well. 

So we know there are a lot of problems with the quality of the 

data. Then you have people going in, correcting it, saying, as you 

would, as identity thieves often do, pretending to be these people. 

We know that there have been problems in the past when people 

have gone through and said, oh, I need to correct my record. And 

they go in, and they pretend to be someone else when correcting 

it. How do we deal with that kind of situation where we can correct 

this? 

Now we may be able to do it. I do not think we are going to be 

able to do it in 6 months. 

Chairman LIEBERMAN. Mr. Baker, would you give me a quick response to Mr. Schwartz’s comments just now? 

Mr. BAKER. Sure. He is correct that there will be problems at the 

margin with respect to errors in the database. But for 90 or 95 percent of the records you will get a quick check, and this means that 

you will eliminate entirely a massive amount of fraud today which 

consists of making up birth certificates that did not exist as in the 

Kevin Wehner case. 

So we ought to solve the big problem first. The secondary problems can be addressed by simply picking up the phone when you 

have a problem and saying to the State, can you tell us whether 

this birth certificate is a good birth certificate? 

This is what the Social Security Administration does today, and 

that allows you to take care of notations on the birth certificate 

and other things. 

It does mean that you then have to find a way to make those adjustments to the database, but we would be so lucky to have that 

problem. Today, we have Kevin Wehner’s problem. 

Chairman LIEBERMAN. Thank you. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Sheriff, we have talked a lot today about the issue of terrorists 

using drivers’ licenses, but more secure drivers’ licenses also have 

applications for prohibiting or making it more difficult for counterfeiting to take place, and you address some of that in your written 

statement. Could you talk more about the benefits of more secure, 

authentic drivers’ licenses to you as someone who is involved in law 

enforcement? 

Mr. BACA. Yes. Thank you, Senator. 

The key point of authenticity of identification tools, in this case, 

drivers’ licenses or ID cards: Identity theft is a tremendously large 

problem, and right now a lot of people are vulnerable within databases out there in the internet world that are tapped into by people 

33 

who have the skills to access that information. The key then is that 

there has to be some point where there is a reliable identification 

source which would be the drivers’ license under a PASS ID system 

or the ID card. 

The volume of what people are fearful of in America is that their 

ID will be stolen from them as was given in the example by Mr. 

Baker. And so, we in local law enforcement, along with our Federal 

partners, are very wrapped up in a huge amount of identity theft 

with not enough resources to chase down all the offenders involved. 

This is an international problem as well as a national problem. 

So part of the reason, I think, in the discussions with the major 

city chiefs along with the National Sheriffs’ Association members 

on this issue is to see the value of this not purely from a prevention 

tool for terrorism but for a purpose of preventing all forms of crime 

where people’s IDs are so easily acquired, even if they lose a drivers’ license. 

And everyone has their anecdote here. My drivers’ license and 

one of my credit cards were taken, and within an hour they were 

trying to purchase some products from a department store. Fortunately, the clerk was alert and said, show me your drivers’ license. 

Well, the person had my drivers’ license, but they were not going 

to produce it because they did not quite look like me. 

But you get the drift that this is a far more reaching solution to 

an ongoing problem before September 11, 2001, and September 11, 

2001, accentuates the need now. 

Senator COLLINS. Thank you. I think that is a very important 

point, and it is the point that Mr. Baker made as well that we 

should not overlook in this debate. 

Mr. Schwartz, I appreciate the very constructive approach that 

you have taken to these negotiations. There is a provision of the 

bill that I would like to get your thoughts on, and it is the provision that criminalizes the act of scanning information contained on 

the drivers’ license machine-readable zone and using that information to track the use of the card, to store information that is collected or resell it to a third party. 

I certainly understand what this provision is trying to get at, and 

I support the desire to curb the unauthorized use of this private 

information. 

Some business organizations, however, have expressed the concern that this language is over-board, and they point to an earlier 

version of the bill that would have allowed the use of the language 

to prevent illegal activity or fraud. They have given us an example 

of a business that uses that information to identify someone who 

is repeatedly returning merchandise at different locations in order 

to commit a fraud. 

What is the concern about adding an exception if the information 

is used to prevent fraud, misrepresentation or other illegal activity? 

As I indicated, that was in one of the earlier versions. 

Mr. SCHWARTZ. Yes. Well, first of all, thank you, Senator Collins. 

This is an extremely important provision for us and I think for privacy advocates and for a lot of citizens that feel that when they 

give their license to someone they want to understand what is happening to it behind the scenes. 

34 

The issue there with the fraud exception really is to look at how 

broad that fraud exception is. We have seen a lot of fraud exceptions that are created for one purpose and used for many purposes 

down the road, and I think there is a lot of concern over that issue. 

In fact, it is my understanding that actually the Department of 

Justice had concerns over this fraud provision as well as groups 

like ours did, which tells you about the concern about how this may 

be used down the road. In fact, we have seen cases where bars say 

that they are swiping information to get the age of individuals but 

then use that same information to give to tobacco companies, to 

market information to tobacco companies about students at local 

colleges who come into the bar. 

Senator COLLINS. That is indeed troubling. 

Mr. SCHWARTZ. Yes. 

Senator COLLINS. Very troubling. 

Mr. SCHWARTZ. That happened in Oklahoma last year. 

So we know for a fact that it is taken, and people think that it 

is being used for one purpose, but then it gets used for many other 

purposes. How do we stop that and where do we put that in? 

We are OK with the swipe and saying: This is the same person. 

This is the same card that we saw over here when we looked at 

this person. 

So if all they do is type in the information in the case of your 

example, type in basic information about the individual. Then 

when they come back and swipe the card somewhere else, it can 

populate itself at that point. So we are not talking about a major 

ban—swiping of the card is OK to check the authenticity of the 

card and that the information on the card is real. The question is 

really about using it to populate information that then can be used 

for many multiple other purposes. 

Senator COLLINS. Thank you. 

Actually, Senator Akaka, I am not sure which one of us is Chairman right now. So perhaps I should be saying, thank you, Mr. 

Chairman, instead of recognizing you for your questions. 

Senator AKAKA [presiding]. Thank you very much, Madam Chairman. 

Mr. Baker, as you may have heard in the first panel, I asked 

Governor Douglas about the States’ use of grant funds. You expressed concern in your testimony about the prioritization of identification security and recommended that PASS ID include language 

ensuring that grants to improve drivers’ licenses are a higher priority than other State projects. 

Would you recommend that the Federal Government require 

States to comply with secure identification standards before they 

can use funds for priorities such as first responders or disaster preparedness? 

Mr. BAKER. Let me start by saying I think we all recognize that 

one of the biggest concerns on the part of the States has been a 

sense that they are being asked to spend money that they do not 

have. There has never been a good cost estimate, but it is clearly 

not free to come into compliance with the improved security for 

drivers’ licenses. 

At the same time, of course, the Federal Government is sending 

hundreds of millions, nearly a billion dollars, to States specifically 

35 

1The statement referenced by Mr. Quam appears in the Appendix on page 164. 

to improve homeland security. It is both a Federal responsibility 

since we want them to improve their drivers’ license security, and 

a State responsibility to use taxpayer money that comes from taxpayers all over the country, to use that many first for things that 

will benefit people all over the country. 

Since a drivers’ license and, as we saw, a birth certificate issued 

in the Virgin Islands is good in Florida, we need to have a national 

system and we need to encourage people to spend their Homeland 

Security funds first on things that will help improve the security 

of all Americans. 

I do not think it is necessary to say you cannot spend money on 

anything until you have fixed everything about your drivers’ license 

security, but I do think that it should be one of the top three priorities and States should have to spend some of their money improving drivers’ license security until they are at the point where they 

say, we think we are there, and the Homeland Security Department agrees. 

Senator AKAKA. Thank you. 

Mr. Quam, I have a question relating to some of the electronic 

databases that are required by REAL ID and are slowly being implemented by a handful of States. In particular, I am interested in 

the Electronic Verification of Vital Events records. 

As I understand it, some States are using the system to help 

electronically verify birth certificate information. However, only a 

few States currently have scanned birth records included in the 

system. Can you speak to the current status of this, of States’ use 

of EVVE and whether it is feasible for DMVs to use EVVE on a 

widespread basis to verify birth certificates in the near term? 

Mr. QUAM. Thank you for the question, Senator, and also thank 

you for your leadership on this issue and for the help of your staff 

who has been just tremendous in trying to pull together so many 

different interest groups to find a solution. 

With regard to EVVE, I know that the National Association for 

Public Health Statistics and Information Systems (NAPHSIS), 

which is the organization that runs that particular system, has, I 

believe, submitted a statement.1 About 15 States currently participate in EVVE. Only three DMVs currently use that system. We 

have 56 jurisdictions—only 3 currently use it. 

NAPHSIS, the organization, according to their testimony, believes that about 85 percent of birth records dating back to 1935 

are in electronic form. I would like to see verification of that number. Certainly, I have no reason not to believe that. 

I do know that several States have had great difficulty in actually transferring especially old records into electronic form, and 

making them consistent, accurate, and usable. That is not an easy 

task to do at the end of the day. 

For example, there is one State that just recently moved its licenses to a legal presence standard, which means people had to 

prove legal presence in the United States. That State had to set up 

a war room just for issues related to birth certificates because for 

all those people coming in, those who are in the United States legally who are, say, foreign-born or foreign residents had no probVerDate Nov 24 2008 09:40 Jun 06, 2011 Jkt 51792 PO 00000 Frm 000039 Fmt 06633 Sfmt 06633 P:\DOCS\51792.TXT SAFFAIRS PsN: PAT
36 

lem showing that they were legally present. The person who had 

the problem showing that they are a citizen of the United States 

happened to be the grandmother who is over 60 years old whose 

birth record was in the family Bible that was in the house that 

burned down. That person had a problem proving that they were 

in the United States lawfully. And so, the State spent more of its 

time with those citizens than it ever did with other people who 

could easily show their legal status. 

Transferring birth certificates into electronic form and creating 

electronic databases is not an easy task. I think it has to be done 

slowly. It has to be done in a meaningful way. 

Again, the questions I heard from governors were not about 

should we do it. A lot of them said: If it is there, that is great. 

Maybe we will use it. But we want to know about the governance. 

We want to know about the privacy protections and the accuracy. 

Even for EVVE, they estimate that they will have about 90 or 

95 percent accuracy. The way that translates into a line at the 

DMV is that one of every 10 people is going to get a false reading. 

That means delays. That means additional time, perhaps another 

trip to the DMV. You can be one of those citizens who has been 

in the same house, the same county, the same city all your life, but 

you are going to be rejected if this system does not work well and 

is not 100 percent reliable. 

The pilot project is aspirational. Let’s see if we can get it up and 

running. Let’s see if we can solve those questions. It is somewhat 

of an ‘‘if you build it, we will come’’ situation. 

I would add to that, if you build it right, I think the States will 

come along. But we need to do that on a cooperative basis. We do 

not need to rush it just to meet REAL ID standards. 

Senator AKAKA. Thank you, Mr. Quam. 

Mr. Baker, you testified that all birth certificates which generally 

are in paper form in county vital records offices throughout the 

country probably could be digitized and made searchable through 

EVVE for $100 million or just $2 million per State, not counting 

Washington, DC, and the territories, in addition to a total of $4 

million to get EVVE activated in all States. What is the basis of 

that estimate? 

Mr. BAKER. That estimate is derived in part from the estimates 

that we received when I was in government based on the experience of the States that actually had to digitize their records and, 

as well, from NAPHSIS which administers the program or administers the database. 

Senator AKAKA. Thank you for that. 

Senator Collins, do you have further questions? 

Senator COLLINS. Thank you, I do. 

Mr. Quam, there are some States that have vigorously protested 

REAL ID and have passed legislation forbidding compliance with 

it. There are other States that have invested a great deal of money 

and effort and have taken steps towards compliance. Vermont is 

one of those States. 

If PASS ID was to pass and we have new implementing regulations, is there concern that the investments made by States who 

are seeking to comply with the law would be for naught or do you 

37 

consider the PASS ID bill sufficiently similar to current law that 

those investments would still be put to good use? 

Mr. QUAM. It is an excellent question, Senator, and I think it is 

the latter. PASS ID builds on the strengths of REAL ID and because so many of the 18 benchmarks that States have to meet at 

the end of this year are still part of PASS ID you are going to see 

security increased across the board. That also happens to be where 

most of the State investments have been made. Therefore, those investments are not lost. They are actually used. So you are going 

to keep the value for those who have invested. 

It is interesting, that even in some of those States who have been 

such vocal opponents, some of those very same governors have gone 

on their own and said: You know what? I want to invest in a secure 

license. I hate REAL ID, but I am going to invest. 

Their licenses and their systems are actually fairly close to meeting those 18 benchmarks. PASS ID gives them an opportunity— 

legislators, governors, all those who protested a law that they do 

not like—to reevaluate and to see if this makes more sense and 

their investments can actually have value down the road. 

Senator COLLINS. That is an excellent point. I had noticed that 

as well when I have looked at individual States, the fact that some 

of the States that have protested the loudest are in fact close to 

compliance, or at least have reached material compliance with the 

law, but understandably they did not like Washington telling them 

how without consultation. They also, in some cases, were resentful 

of the financial burden. 

Does every State currently have a requirement for legal presence? 

Mr. QUAM. I will look to some of the other panelists. I believe we 

are almost there. When REAL ID first went into place, I think 

about 10 States did not have it. 

Senator COLLINS. Correct. 

Mr. QUAM. I think most of the States have moved. There may be 

one left who does not have that requirement, but everybody else 

now has legal presence as a requirement. 

Senator COLLINS. Do any of the other panelists know the answer 

to that question? Mr. Baker. 

Mr. BAKER. I am under the impression that New Mexico and perhaps Hawaii still have not gone to that. 

Senator COLLINS. That is something that we will check with the 

Department for the record. 

I know my State of Maine was one of the last. The governor recently vetoed a bill that would have repealed the requirement for 

showing of legal presence, and I salute the governor for doing so 

because I think that is a fundamental reform. 

I am, however, sympathetic to the situation Mr. Quam described 

because we have had situations in Maine because of our close association with Canada where the great grandmother came over from 

Canada many years ago, decades ago, married an America, thought 

that made her a citizen and does not have proof of her being born 

just across the border in New Brunswick. So it can be a difficult 

issue. 

I still think a requirement for legal presence is extremely important and that we should not be giving drivers’ licenses to people 

38 

who are here illegally, but it does get more complex when one tries 

to comply with the law. 

Let me ask one final question, and that is to Mr. Baker, and I 

want to go back to the commercial aircraft boarding issue because 

I am truly troubled by creating that loophole and how it would 

work in real-life application. 

In addition to creating the possibility for endless litigation, my 

concern is that security officials are increasingly being trained in 

behavioral recognition techniques like those that the Israeli Government has used for airport security for decades and very successfully. So an individual may present himself at the airport without 

a compliant ID, go through secondary screening, and there are no 

obvious red flags. He is not on the terrorist watch list. He is not 

carrying anything that a wand picks up as contraband. Yet, 

through the training the security guard has in behavioral recognition techniques, the guard may believe that this individual poses 

a risk. 

Under the provisions of the PASS ID legislation with the prohibition against denying the individual to the plane solely because he 

does not have a compliant ID, are you concerned that the guard 

would not have grounds to deny the individual access to the airplane, Mr. Baker? 

Mr. BAKER. I am. As we know, there is a good chance that the 

Capitol Building is still standing precisely because the 20th hijacker was turned away in Orlando by a border official who said 

he just gave me a creepy feeling, and I was not going to let him 

in. 

We really need to be able to let people use their judgment, their 

discretion. It is critical, as the Israelis say, that we look for terrorists, not just for weapons. 

I predict that once we write this into law the courts will be asked 

to enforce it. People who don’t bring IDs will say: I missed my 

flight. I was denied boarding because I was sitting there, cooling 

my heels and answering your questions. So I have been denied 

boarding, and I was cooling my heels because I did not have an ID. 

By the same token, I think the courts will say: Well, OK, we 

have to make sure that this is not a pretext, that they are not just 

making up a creepy feeling to deny him boarding because he did 

not have ID. So we are going to have to do a searching inquiry into 

what the reasons are, and some reasons are good enough, and some 

reasons are not. 

I think you cannot overestimate the impact that it has on a relatively low paid employee to have a Federal judge questioning his 

motives and telling him he did his job wrong. No one wants to go 

through that. And all of those things are going to be a real damper 

on doing the kinds of searching inquiry we want TSA to do. 

Senator COLLINS. I want to make clear that I am not talking 

about irrational prejudices. I am not talking about profiling. I am 

talking about a trained security guard using this specific technique 

that has been used in Israel for many years and which is being 

used today in some of our airports. I believe Logan in Boston is one 

of those airports that is using the technique. So this is a trained 

guard’s assessment. 

39 

And my concern is, I think, the burden of proof is shifting from 

the individual presenting himself at the airport who has to prove 

that he is who he says he is to the security guard to prove that 

he is not the person he says he is. That really concerns me. 

So I hope that all the members of this panel will work further 

with us to help us sort this issue out. It is the reason that I did 

not join as a co-sponsor of this bill, because I felt so strongly that 

this undermines the security and the purpose of having a secure 

identification. 

So I do look forward to working with our panels, to working with 

the sponsor of the bill, and I want to thank you, Senator Akaka, 

for your leadership, and I want to thank the panel. 

Senator Akaka, I know that if Senator Lieberman were here he 

would say that the hearing record is going to remain open for another 15 days for the submission of any questions or additional materials, and I am going to turn it over to you and thank you for 

your leadership. 

I want to thank all of our witnesses today. Thank you. 

Senator AKAKA. Thank you very much. I want to thank our 

Ranking Member who has provided great leadership in this area 

and thinking into some of the issues that we have been facing and 

has been so helpful in doing that. 

Mr. Schwartz, Mr. Baker’s testimony suggests that the REAL ID 

Act increased privacy protections and that the repeal of the REAL 

ID would lead to significantly more cases of identity theft. Over the 

years, as we have worked on oversight of REAL ID, the Center for 

Democracy and Technology has been an advocate for additional privacy protections both in REAL ID and on other government issues. 

Would you address the contention that REAL ID adequately protects privacy and why you believe that additional protections included in PASS ID are needed? 

Mr. SCHWARTZ. Thank you, Senator Akaka. 

The issue in terms of whether REAL ID improves privacy, I 

think you can look it up in the record. You can look at it in the 

notice for proposed rulemaking that DHS put out while Mr. Baker 

was there, and you can look at the footnote that specifically says 

that they cannot add privacy controls into the regulations because 

the law removed the words, privacy and privacy and security protection of personal information, specifically that were in the Intelligence Reform Act. 

So, while I do think that DHS did take steps to say we are supposed to protect security and therefore we are going to build in 

some privacy protections about personal information, they did not 

go as far as they would have, even according to DHS, as if they 

had these privacy protections built in. 

I think that it was clear, when I served on the negotiated rulemaking, that we were moving in the direction of coming to the 

right balance there. But when REAL ID came and overturned that 

committee from its work and that committee’s work, it took us 

many steps back from privacy protections that would have been in 

place. 

So I do think that while you can say that license reform would 

protect privacy, I do think that is true, and that is why we support 

license reform. And there are some privacy groups that are more 

40 

skeptical of license reform than the Center for Democracy and 

Technology is. 

We still feel that the move toward license reform is important, 

that even if we were going to repeal it, it should be replaced with 

another process of negotiated rulemaking, Senator, as you had in 

your last bill or put the privacy protections into law as you do in 

PASS ID. So that is why we support those provisions, but this idea 

that REAL ID would be better than those other two solutions, 

PASS ID or the original negotiated rulemaking, I think is just 

demonstratably false just based on what DHS has written about it 

directly. 

Senator AKAKA. Mr. Schwartz, I would like to ask you about an 

especially important issue that was magnified by the enactment of 

REAL ID. This is the issue of how to protect the personally identifiable information on the machine-readable zone of drivers’ licenses 

and identification cards. 

The Center for Democracy and Technology has been a longtime 

advocate for additional protection for this information which was 

put into a common machine-readable format through REAL ID. I 

understand that there were concerns that eliminating the ability to 

store electronic data from licenses could be detrimental to fraud 

and identity theft prevention. Would you please address this issue? 

Mr. SCHWARTZ. Sure. I discussed this a little bit with Senator 

Collins earlier in response to her question about the fraud exemption, but just taking this a step further I think that we should look 

at what is allowed under PASS ID. 

Under PASS ID, any retailer is allowed to take the license and 

swipe it and to do a comparison to check to make sure this is a 

real drivers’ license that was issued by a State. So they can do 

that. 

They can check and make sure that the information in the machine-readable zone that they have in their database and to do a 

check immediately on that, that it is the same person. 

The only thing they cannot do is take it and swipe that information and store it in the database. It is the ease of aggregation of 

that data that represents the concern, especially as we know that 

we are getting the ability to put more and more information into 

the machine-readable zone. 

Today, it is one thing to say, well, most States only have the information that is on the front of the card in the machine-readable 

zone. In the future, that is not going to be the case. So the real 

concern is in making sure that while we have this opportunity to 

discuss security on the card and standards for security on the card, 

that we are also looking into the future and saying that as we put 

more and more information into the machine-readable zone we are 

going to make sure that information is secure. 

That information to cardholders is of more concern because you 

can see what is on the front of the card. You cannot see what is 

in the machine-readable zone. So, when you give it to someone and 

you know that they can only use the front of the card to type in 

information or to scan that, you know that they are only using that 

information. It is a technological protection to say that if the person swipes the card they can only read the same information that 

41 

is on the front of the card, and that is what we should be focused 

on. 

There is also the security threat of turning over more and more 

information from swiping the card to many individuals. I had a 

conversation recently with Vivek Kundra who is now the Federal 

Chief Information Oficer (CIO), who used to be the CIO of Washington, DC. He was telling me that while he was in Washington 

he put out a number of fraud-prevention measures where to ensure 

that DMV workers could only do a check against the database, and 

so they could only verify the information in the database. That was 

the security and the privacy protections put in place to limit the 

amount of information that a DMV worker could find out about the 

information. 

Those same types of rules should go into effect for other people 

that have to use the drivers’ license and when they want to use 

that machine-readable zone. 

Senator AKAKA. Thank you. 

Mr. Baker, your testimony asserts that PASS ID would return us 

to pre-September 11, 2001, standards for the issuance of identification documents. However, the PASS ID Act actually contains many 

of the same security requirements as REAL ID including requirements to provide a photo identity document, documentation showing the person’s date of birth, proof of the person’s Social Security 

number, documentation showing the person’s name and address of 

principal residence and proof that an individual is in the country 

lawfully. 

Under PASS ID, Social Security numbers and lawful presence 

would be checked electronically. As with the U.S. passports, identification documents would be validated or authenticated rather than 

verified with the issuing agency. None of these Federal standards 

were in place pre-September 11, 2001. 

What is the basis for your claim that PASS ID would move 

States back to pre-September 11, 2001, standards? 

Mr. BAKER. I certainly do not mean to suggest that the items 

that PASS ID requires are not useful. I think they are very useful. 

By and large, they are the 18 elements that we thought should be 

done as part of material compliance. 

One of the big deadline problems is that under REAL ID, material compliance (meaning those 18 items) is due to be completed at 

the end of this year. You might have to give States some additional 

time because of the crisis that they find themselves in, but States 

knew that was the deadline. They were working toward it, and 

there were no States that told us they could not do it. Even the 

ones who said, ‘‘we reject REAL ID,’’ nonetheless, also said they expected to be able to do the substance of those 18 items. 

What PASS ID does is, it says: You know those 18 items? Do 

them in 2016, and maybe not even then if there is some litigation 

or delay over delivering the regs. 

Well, that is a terribly long delay for something that most States 

are close to being able to do now. We should not accept what I 

think will be much more than 5 years of delay, and that does mean 

that for the next 5 or 6 years we are getting nothing that we did 

not have. 

42 

You talked about the electronic checks that are done. I think 

those are useful, but again the lack of ambition is astonishing. We 

have an E-Verify program for employers that the two Administrations have now embraced. They said people who get money, who 

are contractors should follow E-Verify. They should check the Social Security number to make sure it matches the name. Then if 

they do not match, you do not get the job. 

Well, there is nothing in here that says you do not get your license if your name and your Social Security number do not match. 

We have to at least have the same standards that we have for EVerify. People should be required to produce the DHS ID if they 

are not American citizens but they are authorized to work. If they 

produce a passport, the States should check just as every employer 

is going to check to see if the photos on the passport match. 

Those are systems that are available now or about to be rolled 

out. There is no need to say, I am not sure it will work. It is working today for 150,000 employers, and the States should go through 

that same process. This bill does not require them to do as much 

as employers are doing today. 

So, in those respects, I think we have stepped substantially back 

from REAL ID. I do not mean to say that there is nothing here. 

We did not, however, because we did not deal with source documents, address the problem that the 9/11 Commission was most 

concerned about, which was the hijackers getting legitimate IDs by 

using fake documents. Thank you. 

Senator AKAKA. Well, thank you very much for your response. 

I would like to ask Mr. Quam whether he has any comments 

about this. 

Mr. QUAM. Thank you, Senator. 

I think Mr. Baker grossly underestimates the States. 

One, to say that somehow all this will not be done until 2016 

makes absolutely no sense. States are going to need every single 

minute of a 5-year window to bring 245 million drivers back in to 

get PASS IDs. They are not waiting until the end. They want a 

system in place that creates the certainty, so they can make the 

investments and they can start the process, and they want to do 

it as soon as they possibly can. No one is waiting. 

SAVE and SSOLV are verification systems that are not used 

today. Well, they are used by several States, but this would require 

all of them to use SAVE and SSOLV. 

The fact of the matter is that PASS ID took the best parts and 

most workable parts of REAL ID and brought them over. He is exactly right about that. And it is because governors were interested 

in finding the solution, not starting at zero, but starting at where 

we are, take what works and then actually get the job done. 

I actually believe that States are going to aspire to do better 

than PASS ID. PASS ID will set a floor that States will go beyond. 

I think States will participate vigorously in the pilot program. I 

think they want to find solutions. They would like nothing more 

than to have these systems that protect the privacy, that can add 

to the verification, that are robust, reliable, and push-button, so 

that you can actually get citizens through that line quickly, and 

they know that the ID that they are given represents exactly who 

they are. 

43 

We all share that common goal. To say that we do not is misleading. 

I think States are on a page where PASS ID offers solutions. It 

offers more verification. And, because it can be done, PASS ID 

meets the 9/11 Commission recommendations where REAL ID actually fails. 

Senator AKAKA. Well, thank you very much. 

Are there any other comments from our other two panelists? 

If not, I want to thank you so much. This has been helpful. 

Thank you for your support and all that you have done. I want to 

especially thank you for working with our staff to put this hearing 

together, and I want to thank you again for moving us this far. 

Without question, we are going to have to move on this as quickly as we can, and we will try to do that. 

So the hearing record will be open for 15 days until July 30 for 

the submission of statements and questions for the record. 

Again, thank you very much. The hearing is now adjourned. 

[Whereupon, at 12:40 p.m., the Committee was adjourned.] 

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