Letter to Gov. Tim Kaine on VA's Lack of Compliance Act

March 26, 2009

Governor Timothy M. Kaine

Commonwealth of Virginia
Dear Governor Kaine:
I am writing to request that you veto House Bill No. 1587 and Senate Bill No. 1431, “An Act to authorize the Commonwealth’s lack of compliance with certain provisions of the REAL ID Act.”

If enacted into law, Virginia will be substantially blocked from compliance with the Department of Homeland Security regulations implementing Federal Law 109-13. Virginia is the state that made international headlines by providing thirteen of the 9/11 terrorists with either driver’s licenses or state issued ID cards – each of them through fraudulently claiming to be Virginia state residents. As the chief executive of the Commonwealth responsible for protecting the public safety, you should appreciate the consequences of signing into law poorly drafted legislation that deliberately mandates on-compliance with any federal law. For Virginia, flaunting a federal law that implements a recommendation of the 9/11 Commission has long term risks.

What is of most concern to me is that the legislation will provide a legal rationalization for frivolous law suits that will delay needed security improvements now planned by the Virginia DMV. This is a consequence that may not be obvious at this point, but I assure you that some of the interest groups that backed this legislation have that intent.

HB 1587 and SB 1431 reference measures which would compromise the economic privacy, biometric data, or biometric samples of any resident of the Commonwealth.” The ambiguity of the language would most certainly result in many questions by the legislature and advocacy groups should Virginia implement any additional upgrade despite the merits of the policy being implemented.

You know, and Virginia’s law enforcement community knows that secure identification documents improve the safety of Virginia residents and reduce their vulnerability to identity related crimes, such as identity theft and fraud. Identity thefts and other related crimes continue to evolve in both practice and method at an alarming rate. As Virginia and other states upgrade the security of their respective state’s identification credentials, the methods and practices of those individuals seeking to obtain counterfeit and fraudulent identification increases at an even greater rate.

To that end,more than twenty motor vehicle agencies now employ facial recognition technology and other biometric identifiers in the application process for drivers’ licenses and identification cards. Some states employ this technology to validate that the applicant does not have more than one driver's license or identification card already issued under a different identity. This practice allows DMVs to partner with federal, state and local law enforcement to combat fraud, identity theft and other related crimes, adding the integrity and security of the state’s drivers’ licenses and identification cards.

Additionally, HB 1587 and SB 1431 would prevent the U.S. Department of Homeland Security from being able to certify Virginia as “materially compliant” under 6 CFR 37.51. According to the REAL ID federal regulation, “States must be in material compliance by January 1, 2010 to receive an additional extension…” HB 1587 and SB 1431 state that, “…neither the Governor nor the Department of Motor Vehicles nor any other agency of the Commonwealth shall comply with any provision of the REAL ID Act of 2005…” The REAL ID final regulation requires that states provide information to DHS for the purposes of being materially compliant. For example, the states are required to transmit to DHS a “security plan” that addresses a whole host of issues ranging from the physical security of facilities used to produce drivers’ licenses and identification cards to internal audit controls. Such a transmission may be prohibited under HB 1581 and SB 1431.

Virginia has made significant progress since the terrorist attacks of September 11, 2001, in closing some of the weaknesses in its driver’s licensing and identification card issuance process that the hijackers exploited to carry out their attacks. The REAL ID Act is a common sense standard that should be implemented as soon as possible. Virginia has taken many significant steps towards complying with the REAL ID Act and should remain consistent in that commitment.

Sincerely,
Brian Zimmer
President
Coalition for a Secure Driver’s License