Improving America's Security Act of 2007

IMPROVING AMERICA'S SECURITY ACT OF 2007 -- (Senate - February 28, 2007)

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Ms. COLLINS. Mr. President, I have only had a brief time to look at the amendment offered by the Senator from California, but it would, in my judgment, enhance certain provisions in the underlying bill on the visa waiver program. There are discussions going on with key Senators on our side of the aisle, such as Senator Kyl of Arizona, who has also a great interest in this area.

We are not prepared on this side to proceed with a full discussion of the amendment at this time or to dispose of it at this time, but I would inform my colleagues that I am optimistic that the discussions will produce a fruitful result. At this time, we cannot proceed to disposing of the amendment, however.

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Ms. COLLINS. Mr. President, I rise today to introduce an amendment to address the growing concern among States regarding the implementation of the REAL ID Act of 2005. This law requires States to meet minimum security standards before citizens can use their driver's licenses for Federal purposes, such as boarding an airplane. I am very pleased to have several cosponsors of this amendment, including Senator Alexander, Senator Carper, Senator Cantwell, Senator Snowe, and Senator Mikulski. All of them have expressed concerns about the impact on their States. I particularly wish to single out Senator Alexander, who has long been a leading voice in raising concerns about the costs imposed upon States by the REAL ID Act.

As the deadline for compliance for the REAL ID Act rapidly approaches, States are beginning to send a very clear message that they are deeply concerned they simply will not be able to meet these standards. The amendment I introduce today recognizes those concerns by allowing more time to devise a way to make driver's licenses more secure without unduly burdening State governments and without threatening privacy and civil liberties.

To begin with, perhaps some background information would be useful. The 9/11 Commission's investigation found that all but one of the 9/11 terrorists had acquired some form of U.S. identification--in most cases a State driver's licenses. The Commission recommended that the Federal Government should set standards for the issuance of driver's licenses to make them more secure, to ensure the person was, in fact, entitled to a driver's license, and to make certain the driver's license has certain security features to ensure the individual is who he or she claims to be.

To implement that recommendation, which was indeed in response to a very real concern identified by the 9/11 Commission, I worked with a bipartisan group of Senators, most notably my colleague, Senator Lieberman, to craft a provision in the 2004 Intelligence Reform Act that would accomplish the goal of the Commission. It called for the creation of a committee of experts from the Federal Government, from State governments, from privacy groups, from technology information organizations, to come together in a negotiated rulemaking process and to develop a means of providing secure identification, while protecting privacy and civil liberty rights, and also respecting the role of the States, which have always had the primary responsibility in this area.

The language we came up with also provided for some grants that would help the States bear this cost--not the whole cost but to help them out.

This committee was indeed appointed--indeed, at my recommendation, Maine's secretary of state was one of the members--and they began diligently working on this task. Unfortunately, before the committee could complete its work, the House of Representatives attached the REAL ID Act of 2005 to an emergency war supplemental, a bill that was truly urgent. There was not a lot of consideration in the Senate nor debate over this provision.

It was inserted into the emergency war appropriations bill.

The effect of that was to repeal the negotiated rulemaking provisions that we had worked so hard to craft and to put into the Intelligence Reform Act of 2004. The further effect, therefore, was to halt the very productive and worthwhile progress this committee was making in devising standards to improve security without imposing unnecessary burdens and costs on State governments.

Unlike our Intelligence Reform Act, the REAL ID Act of 2005 did not include States and other interested parties, whether privacy advocates or technological experts, in the rulemaking process. Instead, the REAL ID Act simply instructed the Department of Homeland Security to write its own regulations. It has been almost 2 years since the REAL ID Act was passed, and the Department has yet to issue the detailed guidance the States need to comply with the law. We expect these regulations are just about to be published, that they are about to be issued under the formal notice and comment period later this week.

The problem is, the States are facing this looming May of 2008 deadline for being in full compliance with the REAL ID Act. That is an enormously constricted period for the States to comply, when the regulations have not yet been issued.

As States begin work this year on their 2008 budgets, they still have no idea what the final regulations will require of them, but they do know that the costs are likely to be substantial based on a study released in 2006 by the National Governors Association. The NGA estimated that the costs to States to implement the REAL ID Act could total more than $11 billion over the next 5 years. This is a substantial amount. Perhaps the cost will be less than that, but the point is, we don't know because the regulations with the detailed guidance have still not been issued, even as we speak.

The State of Maine reports that the costs of implementation of the REAL ID Act could total $158 million. The Secretary of State tells me that is more than six times the normal operating budget of the Maine Bureau of Motor Vehicles.

The result has been an increasing rebellion by States over this unfunded, very difficult mandate. Some States, including my home State of Maine, have passed resolutions that have sent the message to Washington that they cannot and will not implement the REAL ID Act by the May 2008 deadline. So what do we do?

Here is what my amendment proposes. I have had extensive consultations with the National Governors Association, the National Council of State Legislatures, and other experts on this issue.

My amendment has two primary objectives. The first is to give the Federal Government and States the time and flexibility they need to come up with an effective but practical system to provide secure driver's licenses.

Second, my amendment would ensure the involvement of experts from the States, from the technology industry, and privacy and civil liberties advocates, by bringing them back to the table and giving them a chance to review these regulations and make them work.

There are three major provisions in the amendment we are offering. First, the amendment provides that States would not have to be in full compliance with the REAL ID Act until 2 years after the final regulations are promulgated. That is reasonable. This is a difficult task, and it is important that we get it right. It is important for our security, but it is also important for the States that have been burdened with the task. That means no matter how long it takes for the Department of Homeland Security to finish these regulations, States will have a full 2 years to implement them. Most likely, the impact of that is to delay from May of next year to May of 2010 the compliance date. That is the likely timeframe about which we are talking.

Second, the amendment would give the Secretary of Homeland Security more flexibility to waive certain requirements of REAL ID, if an aspect of the program proves to be technically difficult to implement. I have talked with some technology experts. Some of them say it can be done. Some of them say this is an enormous task because we are talking about having interlocking databases so that States can check with other States on whether an individual is licensed there. That is a very complex project because, not surprisingly, each State has its own system. So there are questions about the technology and the feasibility of all of the requirements of the REAL ID Act. We want to give the Secretary some flexibility in that area.

It is possible that some of the technological links necessary for REAL ID may not be fully in place at the time that compliance is required. On the other hand, if the technology is there and the systems are up and running, it will be easier for the States to proceed. That is another advantage of the extension in time. The technology is only going to get better and become more effective.

This also gives us more time to address privacy concerns

because there are a lot of questions, if you have people throughout the country working in motor vehicle bureaus who are now going to have access to databases and are going to need training in evaluating the underlying documents, whether they are birth certificates or visas, in determining their validity. So this is a complicated task.

Third, the amendment reconstitutes the committee that we created in 2004, and that was making such good progress in its deliberations before these provisions were repealed by the REAL ID Act. This committee would be required to look at the regulations published by the Department of Homeland Security and to make suggestions for modifications to meet the concerns of States, privacy advocates, and other interested parties. Within 120 days of convening, the committee would report its recommendations to the Department of Homeland Security and to Congress. So we are not throwing out the work that has already been done by the Department of Homeland Security. It doesn't make sense to go back to square one, to go back to scratch, as the 2004 bill had proposed. Instead, we create this committee, bringing all the stakeholders to the table. They would take a rigorous look at the regulations that are issued, and they would make recommendations to the Department and to us so that we could exercise our oversight.

The Department of Homeland Security would then either have to make the recommendations recommended by this committee or explain why it chose not to. So we would have much more transparency and accountability in the process.

In addition, the committee could recommend to Congress, if they believed that statutory changes are needed to mitigate concerns that could not be addressed by modifications to the regulations. That is an important safeguard as well.

The amendment we are offering would give us time, the information that Congress and the Department of Homeland Security need to better implement the recommendations of the Ð9/11 Commission in order to make our driver's licenses secure so that they cannot again be used to facilitate a plot to attack our country.

There is a real problem. The 9/11 Commission was correct in identifying the ease with which the hijackers were able to secure driver's licenses. But let's come up with not only an effective solution to the problem identified but also a practical one. We don't have to choose one versus the other. We can come up with a cost-effective, efficient, effective way to achieve this goal. This bill does so in a way that does not rewind the clock 3 years but instead keeps us moving to a more secure America.

I look forward to working with my colleagues on both sides of the aisle to address REAL ID and to put us back on the right track to protect our country, to protect our privacy, to protect our liberty, and to do so in a practical way.

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Ms. COLLINS. Madam President, I thank the Senator from Tennessee for his excellent statement. He outlined the issue very well.

I emphasize two points the Senator made. First is the cost. The National Governors Association has estimated that compliance with the requirements of the REAL ID card will impose $11 billion of costs on State governments over the next 5 years. Yet we have appropriated only $40 million to be used toward that cost, and of that amount the Department of Homeland Security has only allocated $6 million, so only a tiny fraction of the expected cost.

The second point I emphasize is the Department of Homeland Security has yet to issue the regulations detailing how States are to comply with the law.

So to expect the States to comply by May of next year with regulations that have yet to be issued is simply unfair and will add another layer of costs because of the short time for compliance. This 2 years will allow a more careful review. It will allow more input by the States when DHS does issue the regulations, and it will allow us to devise a cost-effective way of achieving a goal all of us have, and that is to make driver's licenses more secure.

I am very grateful for the insights of the Senator from Tennessee, for his support, and for his very early leadership on this issue.

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Ms. COLLINS. Mr. President, I thank the Senator from Georgia for his support and his excellent comments. This is a carefully drafted amendment. It doesn't rewind the clock in terms of throwing out the work that the Department has done, but it recognizes that it is simply unreasonable to expect States to comply by May of next year with complex and costly regulations that the Department has yet to issue. The Department has yet to issue the detailed guidance that the States need.

It also recognizes that the quality of the final regulations will be improved by the formation of a committee with State officials, privacy advocates, technological experts, and Federal officials sitting down, looking at the regulations, and providing input to the Department on their proposed regulations and also providing that input to us.

The third provision of the amendment would increase the waiver authority that the Secretary can have if it proves that there are technological barriers to complying with certain provisions of the law. I think this is a reasonable approach to a real problem.

Finally, let me say to my colleagues, the estimates for the cost of compliance with this law are as high as $11 billion over the next 5 years. This is a huge unfunded mandate on the States. My hope is through our approach we can come up with more practical, cost-effective means of achieving a goal that all of us share and that is improving the security of driver's licenses that are used for Federal identification purposes, such as boarding an airplane. There is a real need to have a secure driver's license, but let's do it in a practical, collaborative way, and let's make sure there is adequate time to comply.

I thank the Senator from Georgia for his support and for his excellent comments.

I ask unanimous consent that the Senator from Georgia, Mr. Chambliss, be added as a cosponsor of the Collins amendment, No. 277.

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Ms. COLLINS. Mr. President, knowing the Senator from California as I do, I am certain a lot of the issues she has raised are serious ones, deserving of scrutiny. They are, however, under the jurisdiction of the Judiciary Committee and not the Homeland Security Committee. As such, I don't feel that I, at this time, have the expertise or the knowledge to evaluate the amendment that has been filed by the Senator from California. That is why I am objecting to the amendment. It is not because of its merits but because it is not relevant to this debate. I have not had a chance to look at it, and it is not in the jurisdiction of the Homeland Security Committee.

I will say to my colleagues that the Senator from Connecticut and I have been working very hard in a bipartisan way to try to keep the focus of this bill on issues to improve our homeland security. We were very pleased that, despite the overwhelming importance of the debate on Iraq, there had been an agreement by our leaders to try to keep that debate for the next issue to come before the Senate, rather than having it tied in with this bill. Similarly, the families of the victims of 9/11 have made a plea to all of us to focus on this bill and to keep extraneous issues off this bill and rather focus on issues the 9/11 Commission raised. That is what we are attempting to do. I have no doubt this is an important issue, an issue that is worthy of debate, an issue that is worthy of scrutiny by the Judiciary Committee, based on the explanation of the Senator from California, for whom I have a great deal of respect. But it is an issue that is completely outside the jurisdiction of the Homeland Security Committee.

For that reason, my hope is the Senator from California will look at this as an opportunity to educate us on the issue but will not proceed with this amendment because it is not at all relevant to the bill before us.

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Ms. COLLINS. Madam President, speaking of the Collins amendment on REAL ID, cosponsored by Senators Alexander, Mikulski, Carper, Cantwell, Snowe, Chambliss, and Murkowski, I bring to my colleagues' attention the several groups representing Governors, State legislatures, and others who are now speaking in favor of passage of this amendment. In addition, as the Presiding Officer so ably represents the State of New York, there was a Newsday editorial today also endorsing the amendment with its 2-year delay.

The National Governors Association has also issued a statement that says:

Senator Collins' bipartisan amendment recognizes the need to give state officials and other interested parties the right to review regulations and suggest modifications.

It goes on to say:

This proposal would provide states a more workable time frame to comply with federal standards, ensure necessary systems are operational and enhance the input states and other stakeholders have in the implementation process.

We have also heard from the American Federation of State, County and Municipal Employees, a union that is affiliated with the AFL-CIO, which has written a letter as well. It says:

It is clear that the states do not have the capacity to comply with the REAL ID Act by the 2008 deadline and that a number of serious concerns related to privacy must be addressed. The Collins amendment provides the opportunity to address these matters.

Similarly, another group with whom we have worked closely is the National Conference of State Legislatures. In fact, it was a high-ranking official of the NCSL who sat next to me on a plane going to Maine some time ago and suggested that what States needed most was a delay in the compliance time. I worked very closely with the NCSL in drafting our amendment. I am very grateful for their advice.

I ask unanimous consent that the letters and editorials I have mentioned be printed in the Record so we may share them with our colleagues.

There being no objection, the material was ordered to be printed in the Record

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Ms. COLLINS. Mr. President, if the Senator from West Virginia is seeking an explanation of the amendment, I believe I can provide that.

The amendment offered by the Senator from South Carolina would give authority to the Secretary of the Department of Homeland Security to add certain advances to the list of disqualifying crimes that would prevent someone from working at our seaports.

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