Vermont Civil Liberties Leader Warns Leahy Panel
Of Drawbacks Of REAL ID Act On States, Citizens

… Law Mandating National ID Card System
Imposes Significant Unfunded Burdens On States, Raises Privacy Concerns

WASHINGTON (Tuesday, May 8) – One of Vermont’s foremost civil liberties leaders warned the Senate Judiciary Committee Tuesday of the broad privacy and fiscal implications of the REAL ID Act of 2005 on individual citizens and states across the country.

Allen Gilbert, the executive director of the American Civil Liberties Union of Vermont, testified before Chairman Patrick Leahy’s (D-Vt.) committee hearing, “Will REAL ID Actually Make Us Safer? An Examination of Privacy and Civil Liberties Concerns.”  Gilbert, a prominent advocate of civil liberties, has been a leading voice in the state about REAL ID’s impact on Vermont and Vermonters’ way of life.

“People in Vermont have a lot of unanswered questions about REAL ID.  Seldom have I encountered an issue that raises concerns among such a wide range of people.  I can talk with a legislator about REAL ID, and she’ll point out that the National Conference of State Legislatures expresses misgivings about the program.  I can talk with a member of the National Gun Owners, and he’ll worry about government intrusion,” Gilbert told Leahy’s panel on Tuesday.  

“The cost, the implementation, the risk of identity theft – these things worry Vermonters.  Vermonters are not convinced that REAL ID is a program that will make Americans safer.  It is a caution that I hope Congress will heed,” Gilbert added.

Gilbert testified as part of a panel of leading civil liberties and security experts, including Jim Harper, Director of Information Policy Studies at the CATO Institute; Dr. James Carafano, Assistant Director of the Kathryn and Shelby Collum Davis Institute for International Studies at the Heritage Foundation; Bruce Schneier, Founder and Chief Technology Officer of BT Counterpane; and Janice Kephart, President of 9/11 Security Solutions, LLC.

The REAL ID Act has generated significant controversy across the country because of the implications it holds for states that are forced to implement the unfunded mandate in the law that effectively creates a national identification card system through the licensing of residents to operate motor vehicles.  Some estimates suggest the law could cost more than $23 billion.

“Many States, including Vermont, have expressed their concern about the mandates of the REAL ID Act by enacting resolutions in opposition,” Leahy said at the hearing.  “All Americans recognize the critical importance of national security.  But for national security measures to be effective, they have to be smart as well as tough.  Forcing our states to bend to the federal will in this area may not be as effective a strategy as engaging in a cooperative process intended to serve a common goal.” 

Leahy has cosponsored legislation that would repeal the driver’s license provisions of the REAL ID Act, replacing those provisions with negotiated rulemaking between the states and the federal government to create minimum standards to improve the security of state-issued driver’s licenses.

 Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee
“Will REAL ID Actually Make Us Safer?
An Examination of Privacy And Civil Liberties Concerns”
Tuesday, May 8, 2007

Today the Committee turns its attention to an issue of great concern to many States, and to Americans who value their privacy in the face of the Federal government’s expanding role in their daily lives.  I thank our witnesses for being here today.  I am especially pleased to welcome Allen Gilbert from Vermont. 

I look forward to gaining a better understanding of the impact of the so-called REAL ID Act — an assessment that Congress should have done before this bill was passed.  As we approach the second anniversary of its enactment, it is time for the Congress to come to grips with this significant policy.

The REAL ID Act was legislation forced through by the Republican Congress as an add-on to the emergency supplemental bill passed in May 2005.  I do not recall hearing objection to this sweeping substantive legislation being jammed into an emergency supplemental from those who this year were so critical of the important aspects of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act.  This bill would have provided for veterans care and Katrina relief and other needs in the emergency supplemental legislation that Congress passed but the President vetoed last week.

The REAL ID Act was attached to a must-pass appropriations bill without Senate hearings or debate.  Yet the implications of the Act are enormous.  The Federal government will be dictating how the States go about the business of licensing residents to operate motor vehicle.  State motor vehicle officials will be required to verify the legal status of applicants, adding to the responsibilities of already heavily burdened State offices.  While the Federal government dictates responsibilities for what has traditionally been a State function – and adding layers of bureaucracy and regulation to effectively create a national identification card – there is no help in footing these hefty bills.  Thus, in addition to privacy and civil liberties concerns, this Act is an unfunded mandate that could cost the States in excess of $23 billion.  The REAL ID Act imposes costs and Federal responsibilities on State officers.  

Many States, including Vermont, have expressed their concern about the mandates of the REAL ID Act by enacting resolutions in opposition.  Maine and Montana have gone so far as to indicate that they intend to refuse compliance with it.  The National Conference of State Legislatures and the National Governors Association have expressed concerns about the costs imposed on the States.  Opposition spans the political spectrum, from the right to the left. 

The Wall Street Journal noted in an editorial that “Real Id was always more about harassing Mexican illegals than stopping Islamic terrorists” and continued to explain how “in an effort to placate noisy anti-immigration conservatives amid the GOP’s poll-driven election panic,” the Republican House in the last Congress attached this REAL ID bill onto a “must-pass military spending bill without hearings or much debate, and Mr. Bush made the mistake of signing it.”  That is from the Wall Street Journal.  

Given my own concerns, I have joined with Senators Akaka, Sununu, and Tester to introduce a bill that would repeal the driver’s license provisions of the REAL ID Act, and replace those provisions with the negotiated rulemaking provisions of the Intelligence Reform Act of 2004.  Senator Collins introduced a similar bill to direct the Secretary of Homeland Security to reconstitute the rulemaking committee established by the 9/11 Commission Implementation Act, a bill that she managed through Senate consideration when she chaired the Homeland Security Committee. 

In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act and set up a process of negotiated rulemaking between the States and the Federal government to create minimum standards to improve the security of State-issued driver’s licenses.  This process provided for the States to play an active and equal role in developing greater security measures, and to ensure that privacy concerns were addressed.  This process was underway at the time the REAL ID Act passed and halted progress.  Those negotiations would likely have been completed and we would already have stronger requirements for identification documents by now had the REAL ID Act not been forced through.   

All Americans recognize the critical importance of national security.  But for national security measures to be effective, they have to be smart as well as tough.  Forcing our States to bend to the Federal will in this area may not be as effective a strategy as engaging in a cooperative process intended to serve a common goal.  The reaction to the unfunded mandates of the REAL ID Act is a pretty good example of what happens when the Federal government imposes itself rather than working to create cooperation and partnership. 

There are also civil liberties concerns involving this hasty Act. Americans deeply value their privacy.  Americans have traditionally recognized the danger of an overreaching government.  When Americans put their trust in the Federal government to exercise the immense powers conferred by the PATRIOT Act, only to see that trust terribly abused, it shakes the confidence of all Americans in a government sworn to uphold the Constitution and the rule of law.  

I note, too, that today is the day that comments on the proposed REAL ID regulations are due to the Department of Homeland Security.  In addition to the numerous stakeholders that I understand have made substantial comments, I hope that the DHS will pay close attention to the sentiments expressed by members of this Committee and by the Homeland Security and Government Affairs Committee, which held an oversight hearing on REAL ID in March.  The days of Congress rubberstamping any and every idea cooked up by this Administration are over.  We need to see real solutions with demonstrable results before we just throw away billions of dollars – or more accurately push those costs onto the States – in the name of some vague claims of enhanced security.  

I look forward to hearing from our witnesses so the Committee can better understand the implications for individual privacy rights and national security of this law.

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Testimony Of Allen Gilbert
Executive Director
American Civil Liberties Union Of Vermont
On The Topic Of
Will REAL ID Actually Make Us Safer?
An Examination Of Privacy And Civil Liberties Concerns

U.S. Senate Committee on the Judiciary
May 8, 2007, 10 a.m.
Dirksen Senate Office Building, Room 226

My name is Allen Gilbert. I live in Worcester, Vermont. I’ve been a journalist, a teacher, and I ran a small business for 15 years. I’m currently the executive director of the American Civil Liberties Union of Vermont.

Thank you, Chairman Leahy, and Committee Members for this invitation to testify.

People in Vermont have a lot of unanswered questions about Real ID. Seldom have I encountered an issue that raises concerns among such a wide range of people. I can talk with a legislator about Real ID, and she’ll point out that the National Conference of State Legislatures expresses misgivings about the program. I can talk with a member of the National Gun Owners, and he’ll worry about government intrusion.

A member of an advocacy group for victims of domestic and sexual violence worries that Real ID threatens protection programs for women and children. The Ancient Order of Hibernians doesn’t like Real ID, and neither does the American Friends Service Committee.

Earlier this year, the Government Operations Committee of the Vermont House of Representatives passed, unanimously, a resolution opposing Real ID. The resolution was subsequently approved, also unanimously, by the full House. The longest-serving member in the Vermont House sits on the Government Operations committee. Rep. Cola Hudson was born when a fellow Vermont Republican, Calvin Coolidge, was president. Rep. Hudson just shook his head “no” when Real ID was described.

Our Motor Vehicles commissioner testified in another committee about the “re-enrollment process” required by Real ID. Everyone will have to visit a DMV office with proper documents. For some people in Vermont, that means a long trip. And when they get to the DMV office, our commissioner said, “The jokes about waiting in line at DMV are no longer going to be jokes but reality.”

Long-time residents will feel like suspects when they’re required to report and show their papers. Our commissioner noted that her father is 82 years old. He’s had a driver’s license for years. It’s going to be hard to tell him, she said, that he has to prove his identity before he can get his license renewed. People in Vermont pride themselves on being part of tightly knit communities. Questioning who someone is, is seen as a sign of unfriendliness.

Birth records are kept by town clerks in Vermont. The clerks – some of whom work part-time -- are already in a frenzy over the thought of complying with the myriad requests for records that they’ll get because of Real ID.

A state senator who in his other life runs a construction company and races stock cars, said, “I’m not sure if it’s the budgetary concern or the privacy concern or the nightmare it’s going to create that concerns me most about this.”

A series of data breaches this winter in Vermont led people to wonder about the security of stored data anywhere. DMV officials acknowledge that there are hundreds of unauthorized attempts daily to get at the department’s information database.

Increasingly, Vermonters are worried that too much data is being collected about too many things. It’s not just a sense that privacy is eroding. Vermonters are worried that their identities will be stolen by identity thieves.

Vermonters are pretty responsible people. They generally step up to the plate when asked to do the right thing. But many people aren’t so sure that Real ID is the right thing. It seems too big, too expensive, and too centralized. Real ID has hit a nerve with people.

Mr. Bruce Schneier will testify later this morning. I’ve heard him lecture, and one thing that he’s said has really stuck with me. He has said that security is an equation, with one side being what you’re giving up and the other side what you’re getting in return. I’m afraid that with Real ID, we’re giving up too much and not getting much, if anything, in return.

Real ID is also going to cost the states a lot of money. The cost in Vermont is now estimated at around $8 million. That is a substantial expenditure for us. Some of our state senators want to raise license fees and call the increase a congressional Real ID tax.  

The cost, the implementation, the risk of identity theft – these things worry Vermonters. Vermonters are not convinced that Real ID is a program that will make Americans safer. It is a caution that I hope Congress will heed.

People are saying that we need minimum licensing standards, and we agree. That's why the ACLU participated in the negotiated rulemaking created by the Intelligence Reform and Terrorism Prevention Act of 2004. If Rep. Sensenbrenner hadn't interfered, we would have had those standards by September 2005 and they would have been created in a cooperative fashion. But, what Janice Kephardt and Jim Carafano are proposing is to push forward with a system that the states are rejecting en masse and that -- because of its impracticality, extraordinary costs, and constitutional infirmities -- will be delayed years and years, if it’s ever built at all.

There’s a better way. On behalf of the ACLU, its 53 affiliates and hundreds of thousands of members nationwide, I urge you to mark up and move S. 717, the Akaka-Sununu-Leahy-Tester bill. That bill would replace Real ID with sensible, cost-effective driver’s license standards. The problems with Real ID would be fixed, and the standards could be achieved in a cooperative fashion with state officials, federal government agencies, and privacy and civil liberties experts. S. 717 paves the way for a better system, one that complies with the 9/11 Commission’s minimal statement.

And S. 717 will not threaten to change the quality of life of Vermonters, in all the ways that Real ID will.

The written testimony I am submitting includes the ACLU’s comments on the rules proposed by Homeland Security to implement Real ID, a map showing state-by-state actions regarding Real ID, and Vermont news articles on Real ID.

Again, thank you for this opportunity to testify before you.

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