3/21/12 Hearing in House Judiciary Subcommittee on Terrorism, Technology, and Homeland Security

Prepared Testimony for Brian Zimmer
President, Coalition for a Secure Driver’s License
U.S. House of Representatives Committee on the Judiciary
Subcommittee on Terrorism, Technology and Homeland Security On
 

“Secure Identification: The REAL ID Act's Minimum Standards for
Driver's Licenses and Identification Cards”

Washington, DC
March 21, 2012

The Coalition for a Secure Driver’s (CSDL) is pleased to have the opportunity to provide the Subcommittee with comments for the record in connection with the Subcommittee’s hearing entitled, “Secure Identification: The REAL ID Act’s Minimum Standards for Driver’s Licenses and Identification Cards.”
 

CSDL would like to thank Subcommittee Chairman F. James Sensenbrenner and Judiciary Committee Chairman Lamar Smith for their leadership and for holding this hearing. Since the REAL ID Act’s enactment, Congressman Sensenbrenner and Chairman Smith have been true champions of the states. They have supported state funding for compliance with the REAL ID’s regulatory standards and ensured that the Department of Homeland Security (DHS) fulfills its mission to assist the states move towards securing the driver’s license adjudication and issuance processes. Letters and statements authored by Representatives Sensenbrenner and Smith regarding the REAL ID Act serve as strong examples that Congress has not forgotten the lessons learned from the September 11, 2001 attacks.
 

Leading up to the attacks, eighteen of the nineteen September 11th hijackers obtained a total of more than thirty (30) state driver’s licenses and ID cards from states including; Florida, Virginia, California and New Jersey. These IDs allowed the terrorists to move freely throughout the Eastern United States and facilitated their boarding of commercial airliners which they used as weapons against American citizens. In 2004, the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) recommended that, “[T]he federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.”
 

The REAL ID Act established these standards by statute. Title II of the REAL ID Act directed DHS to establish minimum security standards for state motor vehicle agencies. The Act was quite specific and proscriptive, because Congressional analysis had identified the areas in which the states’ rules were absent or weak with regard to preventing imposters, including foreign terrorists, from exploiting those vulnerabilities. In 2008, detailed regulations were issued setting standards and benchmarks for issuing driver’s licenses. The law is binding only on the federal government. However, states that issue driver’s licenses and IDs which do not meet REAL ID’s regulatory standards cannot be accepted by federal agencies after certain deadlines. Last year, the date on which the federal government can no longer accept for identification purposes driver’s licenses from non-compliant states was extended by Secretary of Homeland Security Janet Napolitano to January 15, 2013.

All states remain free to issue and to accept non-compliant IDs for state purposes, so long as they clearly marked “not for federal identification purposes.”

That’s an important distinction because if the state has not held all applicants to the REAL ID standard, there needs to be a “buyer beware” warning on the lower class of IDs. It is important to distinguish unreliable identity documents issued by the states or other credential issuing agencies from those that accurately and completely establish the bearer’s true identity. In an age of wide spread counterfeiting and fraud, this differentiation should be obvious to everyone, but unfortunately opposition to the REAL ID rules demonstrates it is not.
 

It is especially important that the Department of Homeland Security continue to make that distinction in its rules and regulations, in order to protect the nation’s transportation systems from terrorists and transnational criminal organizations.
 

The Coalition for a Secure Driver’s License strongly concurs with the Bipartisan Policy Center’s position on the deadline extension. In 2011, the Bipartisan Policy Center issued its Tenth Anniversary Report Card on the status of the 9/11 Commission’s recommendations. The report stated that “the deadlines for compliance have been pushed back twice to May 2011, and a recent announcement pushed back compliance again until January 2013. The delay in compliance creates vulnerabilities and makes us less safe. No further delay should be authorized; rather, compliance should be accelerated.”
 

The authorities placed with the Department of Homeland Security by PL 109-13 (REAL ID Act) regarding the states’ issuance of driver’s licenses are permanent and continuous. The Act established deadlines for state compliance with federal rules pertaining to confirming identity of applicants prior to issuance of driver’s licenses and state IDs. Because there is no national ID, and little interest in establishing a national ID, driver’s licenses and state issued IDs are the default alternative. Hence, improving the reliability of these documents remains a priority for the federal government for purposes of homeland security, national security, and fraud prevention. Enforcement of REAL ID deadlines pertaining to public use of commercial airlines, access to public building have significant security implications and economic effects bearing on all levels of government and the private sector.
 

For law enforcement, most members of Congress, and the public, the issuance of secure identification documents including driver’s licenses is important for highway safety, for homeland security, and for national security. To this end, CSDL believes several steps could be taken to achieve full compliance by a substantial majority of the states.
 

Establish an Operational Program Office.

The final rule promulgated by the Department of Homeland Security in 2008 specifically addresses the requirements for the states to report their compliance status every three years. However, there is no program office established within the department as a point of continuity and expertise for driver’s license security and communication with the states.
 

REAL ID is a program involving all but the three or four states that opted out three years ago, involving hundreds of millions of dollars in grants, with a complex set of security requirements that require interstate and interagency coordination, and the Secretary has never established a program office to audit state motor vehicle agency compliance. Surely out of the billions of dollars under the DHS’s discretionary control, a couple million can be found to manage this critical process.
 

The Congress has provided over $220 million in federal grants to the states to comply with REAL ID. These grants are supposed to be expended by the states to move toward compliance with REAL ID rules, yet the Department of Homeland has not established a program office to proactively guide the states with cost effective processes.
 

The lack of designated program office may have led to the Department’s lack of responsiveness. Despite at least five states that have certified their compliance with REAL ID rules, those states have received no response from the Department. Those five states have demonstrated that REAL ID is doable in the short term and affordable, yet there is little or no communication by Homeland Security officials to other states about what needs to be done.

It is reported that none of the letters sent by the governors in response to the last deadline, since extended, have received a response from Secretary Napolitano. States still lack written guidance from the department, four years after the final rule. The Department of Homeland Security should not continue to keep the states waiting for direction.
 

Given the scale of the responsibilities and project schedule, there should be a minimum of five Full Time Employees, including a designated office director. The program office costs, including travel, can operate for less than $2 million per fiscal year, or about 1% of the federal grants already expended for REAL ID compliance. With a committed staff and a modest budget, DHS could begin to address directly its responsibilities with the compliant states, which currently number over twenty, with another twenty plus to follow. This a fraction of the number of personnel at the Department of Transportation devoted to the other driver’s license related public safety programs.

Ideally, the REAL ID Program office would work closely with the Federal Motor Carrier Safety Administration (FMCSA). FMCSA already conducts audits of state Commercial Driver’s License (CDL) issuance and a partnership between FMCSA and the REAL ID program office would allow concurrent audits of CDLs and REAL ID compliant driver’s license rules.
 

The REAL ID program offices should be placed within the National Protection and Programs Directorate (NPPD), which contains DHS components who will be essential to the actual enforcement of the REAL ID rule. NPPD has a suitable governance culture because the agency components are comfortable working with state agencies and the private sector via persuasion versus regulatory authority. REAL ID authorities are tied to voluntary compliance by the states, which means the program office philosophy will align with “you should” versus “you must.” NPPD is highly specialized and is managed by an Under Secretary. It contains within it most support functions needed by the REAL ID program office going forward. NPPD has demonstrated competence managing large programs. REAL ID rules incorporate the need to secure large systems and personal information from hacking. This correlates well with the NPPD’s Office of Cybersecurity and Communications, as well as the Office of Infrastructure Protection. NPPD is also a logical agency component for the REAL ID enforcement for access to nuclear plants.
 

The goal of the National Protection and Programs Directorate is “to advance the Department's risk-reduction mission. Reducing risk requires an integrated approach that encompasses both physical and virtual threats and their associated human elements.” Similarly, REAL ID is a key component of the secure identification layer of homeland security.
 

Coordination with the Federal Protective Service and the Transportation Security Administration on procedures and policies for the deadline of federal enforcement
The Federal Protective Service would be one of the enforcement arms for the REAL ID mandate that access to federal buildings will eventually be restricted only to REAL ID compliant driver’s licenses and IDs. Clearly, the most important enforcement agency is the Transportation Security Administration.
 

The recommended REAL ID Program Office could assist with a coordinative outreach to the states, ensuring continuity of enforcement at federal facilities, airports, and nuclear power plants with the Federal Protective Service and the Transportation Security Administration. There are fifty-six (56) jurisdictions that issue driver’s licenses and identification cards, so an active and effective communication link needs to be established. The Program Office should establish a plan to differentiate states that issue compliant driver’s licenses and IDs. Transportation Security and Federal Protective Service personnel will need to be trained to recognize these IDs and take secondary inspection measures to holders of non-REAL ID compliant driver’s licenses. This would send a strong signal to states that choose not to comply or have not made substantial progress that the deadline is eminent. Noncompliant states could then give their residents ample notice to obtain alternative documentation such as a U.S. Passport.
 

Leverage New Technology at Airports to Facilitate Faster Inspection

The Transportation Security Administration (TSA) may be able to leverage the Credential Authentication Technology/Boarding Pass Scanning System (CAT-BPSS) machines that are currently being tested at twenty (20) airports across the country. These machines enable the Transportation Security Administration officers to electronically identify fraudulent identification documents and boarding passes. TSA and the Department should use this pilot phase to include software that distinguishes between compliant and noncompliant driver’s licenses. As new states begin issuing compliant driver’s licenses, the software should be flexible to incorporate these upgrades.

Conclusion

Compliance with the REAL ID driver’s license security standards will finally lead to realizing the goal of “one driver, one license”. This is the logical extension of the highly successful “one driver, one license” for commercial truck drivers that has improved safety on our highways. REAL ID promotes safety by denying people who have lost their driver’s license in one state from simply assuming another identity in another state to get a new driver’s license. These people are shopping for a new identity because of reckless driving or driving while intoxicated, or for vehicular manslaughter, and it’s important to stop them before they kill someone on the highway. REAL ID rules require that each applicant for a driver’s license or ID card must sign a declaration acknowledging that he understands any false statement in his application makes him subject to state and federal identity fraud statutes. Officials in states that have put this measure in place note that applicants will turn and walk out of DMV offices iwithout signing the form, when they are confronted with reality of potential criminal prosecution. REAL ID clearly has a deterrent effect on would be fraudsters. Thank you for the opportunity to submit this statement for the record.