Legislature(2007 - 2008)BELTZ 211
02/27/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB182 | |
| SB202 | |
| SB185 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 185 | TELECONFERENCED | |
| + | SB 202 | TELECONFERENCED | |
| *+ | SB 273 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 182 | ||
SB 202-PROHIBIT STATE SPENDING FOR REAL ID ACT
1:36:20 PM
CHAIR FRENCH announced the consideration of SB 202.
SENATOR WIELECHOWSKI, sponsor of SB 202, noted that two
committee members heard this bill in a prior committee. He
explained that the federal Real ID law was put into effect in
2005 as part of an emergency appropriation bill. It's been
described as the first attempt to implement a national ID card.
SB 202 simply says that state money cannot be used to implement
Real ID.
SENATOR WIELECHOWSKI said that the federal legislation requires
this ID card to be carried and shown to enter a federal facility
including IRS offices, courthouses, congressional buildings, and
national parks. About 70 percent of the land in Alaska is under
federal control so theoretically going anyplace within that
federal territory could require carrying a Real ID card. That in
itself is a concern, but more onerous yet is the provision that
allows the secretary of Homeland Security unilateral authority
to extend when and where a Real ID card must be shown. It's not
a stretch to envision a scenario where people have to show their
ID cards to get on Amtrak or to conduct private banking
business. "There will be a common machine-readable technology on
the back of your card, which enables any official to swipe your
card and store all of your data onto a database, which will then
be shared with every other state in the country and potentially
with foreign nations."
1:40:21 PM
SENATOR McGUIRE joined the meeting.
SENATOR WIELECHOWSKI highlighted that the federal Act initially
required radio-frequency ID (RFID), which would make the ID
cards a tracking device. Although that provision was removed,
the final rule says that individual states are welcome to have
RFID. Other information that potentially could be on a person's
ID card include DNA information, biometric information,
fingerprint information, and retinal scan information. The
information that is placed on an ID card is then shared with
other states so all DMV officials would have access to every
American's identification in one centralized database. It's
likely that Canadian and Mexican officials eventually will have
access to every American's personal data as well.
1:41:33 PM
SENATOR WIELECHOWSKI said the cost to Alaska is unknown but the
Real ID law requires keeping paper and electronic copies for
many years. That mandate carries a cost. Also, states must
ensure the physical security of locations where driver's
licenses are produced. It's unclear how the federal government
will monitor that but comparing this to the Transportation
Security Act, it might include armed guards, heavy security, and
metal detectors. The State of Alaska has estimated that it will
be several million dollars. The Real ID law requires extensive
changes to hiring and retention practices for DMV. Alaska is
uniquely challenged because many residents have no easy access
to DMV. Since it's difficult or impossible to fly without an ID
card, Bush residents may be in a catch-22 situation. They can't
get on the plane without an ID card and they can't get an ID
card without flying to a larger community to make an in-person
visit to the DMV. "This is an unresolved problem," he said.
SENATOR WIELECHOWSKI said that a number of gun owners have
expressed concern and the Gun Owners of America has opposed Real
ID. Currently anyone who buys a gun shows their federal ID and
fills out form 4473. But it's not unreasonable to assume that a
future president may, as a matter of national security, require
more information. By simply swiping a person's ID card the
federal government will know who is purchasing guns and
ammunition.
1:44:28 PM
SENATOR THERRIAULT joined the meeting.
SENATOR WIELECHOWSKI said that Real ID does nothing to secure
Alaska's borders. Unlike some other states, illegal immigrants
cannot get driver's licenses in Alaska. Opposition to Real ID is
mixed. At least 600 organizations from both ends of the
political spectrum have opposed it and a number of presidential
candidates have opposed it as well. 18 states have passed
legislation opposing Real ID and 18 more have legislation
pending. This bill says that if the federal government wishes to
implement this program, it must pay for it. When he's talked to
people who support the concept of Real ID to explain exactly
what it does, their support tends to wane. "Alaska has typically
been at the forefront in privacy rights and liberty rights and
freedom rights and I think we need to take a stand on this
issue," he said.
1:47:08 PM
CHAIR FRENCH informed the committee that Kevin Brooks with the
Department of Administration and Krista Stearns with the
Department of Law are available to answer questions.
SENATOR HUGGINS asked if the administration supports the bill.
1:47:44 PM
KEVIN BROOKS, Deputy Commissioner, Department of Administration
said the administration is concerned with the broad language of
the bill. Currently the state is complying with many of the
requirements of the Real ID Act. For example, the Department of
Motor Vehicles (DMV) is using digital photos on driver's
licenses and it's doing fraud training, all of which are good
business practices. Clearly more public debate needs to occur
and there certainly are common concerns about data sharing and
making sure that databases are secure. During the recent
National Governors Association meeting members overwhelmingly
agreed that the federal government ought to pay for anything it
mandates in this area. Some of the things contemplated under the
Real ID Act are cause for concern with respect to cost and the
policy implications of whether or not they should be done at
all.
1:49:47 PM
SENATOR THERRIAULT said he supports the bill but if it were to
pass, he wonders if the state would be able to continue doing
some of the things it's already doing in this area. "Not in
lockstep or necessarily in conjunction with the federal Act, but
just as the State of Alaska."
SENATOR WIELECHOWSKI said one of the issues he didn't touch on
is state sovereignty. Alaska has never had the federal
government direct how to deal with driver's licenses. This gets
to the issue of state's rights and the Tenth Amendment. States
have the fundamental right to secure their driver's licenses.
Alaskans should be concerned about that because no one supports
issuing counterfeit licenses.
SENATOR WIELECHOWSKI said his primary concern with the issue
relates to creating a large federal database that exposes
Alaskans to the weaknesses of any other database in the country.
Also, the imposition of the cost is a concern. The fact that
this data potentially will be shared with foreign governments is
a concern. The wholesale collection of very personal information
is a concern. The fact that people's movements will be tracked
is a concern. "Where do we go with the surveillance and the
potential for the invasion of privacy?" Every year 10 million
Americans lose their identity and Alaskan's are very concerned
about that issue. "This is opening that wide up for identity
theft," he said.
1:52:20 PM
SENATOR THERRIAULT asked if this particular language would
preclude the state from exercising its sovereignty if what it
wanted to do happened to coincide with a directive of the
federal law.
SENATOR WIELECHOWSKI said he doesn't believe it would.
SENATOR THERRIAULT asked if he discussed with the drafters or in
a previous committee ways to clarify that the state can exercise
its sovereignty and not be limited by federal directives.
SENATOR WIELECHOWSKI replied the previous committee looked at
that thoroughly. He heard those members say it's possible to
tell things that are headed towards Real ID. For example, tying
into other databases relates to Real ID. He said he'd be happy
to work with DMV on this.
SENATOR THERRIAULT noted that the sponsor talked about the
expenditure of state funds but the language in the bill says
"expend funds." He asked if the state agency could spend funds
that aren't from a state source.
SENATOR WIELECHOWSKI said he's heard many people say that the
bill doesn't go far enough because they don't want Real ID at
all. "The intent is to interpret that that no funds be expended
period." The federal government will have a hard time forcing
the issue if enough states take that position.
1:55:12 PM
SENATOR THERRIAULT suggested the committee consider the
circumstance where the federal government pays 100 percent of
the program and asks the state to implement it. "Would we be any
less bothered by that? I would think not," he said.
CHAIR FRENCH asked if the administration has established the
cost to implement the federal Real ID Act.
MR. BROOKS replied the state's been looking at the potential
costs since the final rules were published in January. Some
aren't known. Clearly there will be some cost attached to
conducting background checks on DMV employees because that isn't
done now. Also there will a cost associated with additional
fraud training, but that's a good business practice and ought to
be done whether there's a Real ID Act or not. A big unknown is
what it will cost to secure the facilities. The rules aren't
entirely clear with respect to whether an armed guard or metal
detector is contemplated. "We don't have clear direction so it
is difficult to cost, but we're trying to put those costs
together," he said.
CHAIR FRENCH asked if he could give a ballpark number.
MR. BROOKS suggested that the DMV director might be able to give
an estimate.
1:57:12 PM
WHITNEY BREWSTER, Director, Division of Motor Vehicles,
Department of Administration, said it will cost the DMV
approximately $2 million to implement the federal Real ID Act.
CHAIR FRENCH asked if that would be an ongoing cost of operation
or a capital expenditure.
MS. BREWSTER replied the $2 million would be a capital
expenditure, but ongoing funds would be needed as well. The
latter amount isn't known.
MR. BROOKS relayed that he told the previous committee that the
$13 million DMV budget is not sufficient to fully comply with
Real ID. Although DMV is already compliant in a number of areas,
complying with things like data sharing will require additional
funding. Coming to terms with how much will be needed and
whether the state should be doing certain things at all will be
the topic for ongoing debate.
1:59:33 PM
CHAIR FRENCH questioned whether the language in the bill gives
clear work direction to a judge who would ultimately try and
decide whether some commissioner had essentially broken the law.
If this bill passes it's fairly easy to foresee a circumstance
where someone will challenge a step DMV takes to strengthen the
integrity of the driver's license as an effort to comply with
Real ID. It's the legislature's job to give the judge the
statutory sort of command as to how to decide a case like that.
That was articulated in the last committee, Senator Therriault
brought it up and it's on his mind as well. He asked Ms.
Brewster if she had other matters to bring before the committee.
MS. BREWSTER said she wants the committee to know where DMV is
with respect to complying with Real ID. Effective May 11, 2008
federal agencies can not accept driver's licenses or ID cards
for official purposes unless the state has requested an
extension of compliance through the Department of Homeland
Security. Only three states have not sought an extension.
Although Alaska applied for and received an extension, that does
not mean that the state intends to comply with the Act. It buys
more time; the initial extension expires on December 31, 2009.
CHAIR FRENCH asked if the states that haven't sought extensions
are in open defiance or going toward cooperation.
MS. BREWSTER replied Montana, Maine, and South Carolina haven't
sought extensions and she knows that Montana has objected to
complying with the Real ID Act. Other states have passed
legislation with similar intent as this bill, but they sought
extensions as well.
MS. BREWSTER said that if the state were to seek a second
extension, by October 11, 2009 it would have to show that it is
materially compliant with the Real ID Act. There are 18
benchmarks and DMV currently meets 5. At the recent National
Governors Conference the attendees unanimously voted to ask
Congress to provide full federal funding for the Real ID Act by
appropriating $4 billion over the next 10 years. A substantial
chunk of that would go toward FY09 formula grants to the states.
Currently just $80 million is available and Alaska has requested
no federal grant funds. "We want to be able to improve and do
the things to secure our driver's licenses, but we have some
concerns that we may not be able to do that if this legislation
passes as it is currently written," she said.
2:04:58 PM
MS. BREWSTER said she has reviewed the Real ID Act and the final
rule and she could discuss what she understands the DMV would be
required to do. She could also talk about what DMV is currently
doing if it would be useful to the committee.
SENATOR THERRIAULT asked if she said that Alaska currently meets
5 of 18 requirements of Real ID.
MS. BREWSTER replied that's correct.
CHAIR FRENCH asked, absent Real ID, which of those requirements
DMV would work to comply with in the course of keeping driver's
licenses up to date.
MS. BREWSTER said that two legal presence bills are working
through the Alaska legislative process now and that is one of
the requirements of Real ID. If those bills were to pass, DMV
would be required to make programming changes and that entails a
cost. She understands that the way SB 202 is written the DMV
would not be able to change its database to be able to have a
driver's license expire when someone is no longer legally in the
country. Another requirement of Real ID is that a physical
residence address must be printed on a driver's license.
Currently DMV collects that information but it prints a mailing
address on the license. She understands that having a physical
residence address on a driver's license is beneficial to law
enforcement and DMV might look at that.
CHAIR FRENCH opened public testimony.
2:08:11 PM
JIM HARRISON, Attorney at Law, said he's familiar with Real ID
and the 18 benchmarks Ms. Brewster referenced are found on pages
283 and 284 of the final rule. He explained that Alaska has a 5-
year cycle of driver's license renewals so regardless of the
extension, the DMV will have to be ready to issue compliant
licenses and IDs by the end of 2009. If it doesn't, it won't
meet the December 2014 deadline for when everyone under the age
of 50 is required to have a compliant driver's license or ID in
hand to do things like get on a plane or enter a federal
facility. He also noted that this isn't the first attempt at a
national driver's license. "They've tried to do it before with
debate and it failed, and here they did it without debate and it
got snuck through," he said.
2:11:13 PM
BILL SCANNELL said he has testified against Real ID in a number
of state legislatures and he strongly favors SB 202. Referring
to previous testimony from the administration, he pointed out
that both are political appointees and from his perspective
they're in favor of Real ID despite the fact that the governor
has made it clear that she has problems with it. His second
point is that digital photos aren't as secure as the Polaroid
photos that were used previously. Real ID would compound
security issues for Alaskans by facilitating free transfer of
digital photos and original documents, such as birth
certificates, to DMV workers in other jurisdictions.
CHAIR FRENCH asked if he would oppose language that would allow
DMV to continue to make driver's licenses more secure while
maintaining a wall with regard to complying with aspects of Real
ID that many find troubling.
MR. SCANNELL replied, "If they're really our own decisions as
Alaskans then that's okay." He's not sure that the committee is
hearing from good-faith partners, but what he truly opposes is a
mandate from outside.
CHAIR FRENCH explained that the committee is wrestling with what
happens when a mandate from outside happens to coincide with
what Alaskans believe is a good idea. When that happens there's
going to be legal trouble distinguishing whether it's complying
with Real ID or if it's just a good idea with respect to
driver's licenses.
MR. SCANNELL replied some Real ID requirements would make no
sense in terms of any security decisions that Alaskans would
want to make with respect to driver's licenses. For example, if
DMV were to require photographs to be taken first that would be
a clear sign that it was trying to be Real ID compliant. "Under
Homeland Security's final rules it states…that the first thing
that happens when you walk into the DMV is that they take a
picture of you."
2:17:20 PM
FRANK TURNEY, Fairbanks, expressed the view that Alaskans and
the rest of the citizens in the U.S. were hoodwinked by the Real
ID Act passed in 2005. It's a vicious attack on Fourth Amendment
rights. He supports SB 202 but he would suggest amending it to
halt any funding from the federal government or any other source
to implement the Real ID Act. Montana has done this and
encourages other states to do the same. He has asked Governor
Palin to take a stand on the Fourth Amendment right and exercise
the Tenth Amendment right versus the federal government and just
say no. Privacy and technology experts have submitted detailed
comments explaining the privacy and security threats related to
the Real ID Act. Three elected bodies in the Interior have
passed resolutions against the Real ID Act. [Copies are in the
bill file.] He said that if this is passed it is the "mark of
the beast."
2:20:28 PM
JOHN BRADING, Fairbanks, said he supports SB 202 with an
amendment that says that Alaska completely rejects the Real ID
Act because it violates the U.S. Constitution as well as the
Alaska Constitution. Implementation will create a vicious
government vehicle that will rob and abuse citizen freedoms.
It's an instrument of totalitarianism that will manipulate
people into servitude and control freedom. Without the freedom
to travel uninhibited by whatever conveyance, liberty is lost.
It's an illegal invasion of privacy to collect a database of
information on every citizen and it violates the Fourth
Amendment. Furthermore, it will become an identity theft free
for all. This sort of continual surveillance leads to the next
step, which is a police state. Take a stand, he said.
2:22:03 PM
BRENT RICHEY, Fairbanks, echoed things said previously. He
supports SB 202 because the state shouldn't pay for federal
mandates. In fact, he doesn't agree with the Real ID Act period,
regardless of which government pays for it. It's an infringement
on Fourth Amendment rights and citizen privacy. Whether SB 202
passes or not, he doesn't think Real ID should be implemented in
Alaska.
2:23:29 PM
LARRY SMITH, Fairbanks, said he too is concerned with the "mark
of the beast" because of the talk about DNA. He believes there
will be identity theft "and once identity theft starts then
they're going to try to put this chip inside you somehow so that
they can say well we'll do away with all of this if you just do
this." It's ridiculous to do this in Homeland Security because
if "we ever get invaded and somebody ever gets a hold of this
information they're going to know where every single gun is in
this country." To date that's the only reason we've never been
invaded, he said. Letting other countries have information on
U.S. citizens is crazy. We might as well give them bank account
numbers and everything else because they'll end up with them
anyway, he said.
2:24:50 PM
MARTI COX, Fairbanks, representing herself, said she supports SB
202 and all other opposition to the Real ID Act. Any benefit to
security would be minimal and easily eclipsed by the almost
certain abuses this system would facilitate. This nation was
built on freedom and its prosperity is the result of freedom;
she doesn't want it eroded by unconstitutional intrusions such
as the Real ID Act. As a Republican who believes that the
founding fathers were wise to write the Fourth Amendment, she
asked her fellow Republicans on the committee to defer to the
founding fathers when voting. "America is the last ditch for
freedom and you five are in that ditch," she concluded.
2:26:25 PM
CHAIR FRENCH closed public testimony.
SENATOR WIELECHOWSKI commented that the testimony he's heard
indicates that SB 202 doesn't go far enough. Others have
expressed the same concern saying that, even if the federal
government does pay for this, they don't want it. Senator
Therriault highlighted that the bill talks about all funds so
perhaps federal funds could be excluded as well. We should get a
legal opinion about saying flat out that we're not accepting
Real ID, he said. "I would be open to…at least a discussion on
that," he said. With respect to DMV, he emphasized that there is
no intention to get in the way of its best business practices.
No one opposes DMV wanting to change some aspect of our own
sovereign driver's licenses. Although there may be differences
of opinion, as a state we should be able to decide that on our
own.
2:28:28 PM
CHAIR FRENCH set SB 202 aside.
SENATOR THERRIAULT asked if he intends to ask the drafter to
prepare a memorandum speaking to the issue of how broadly the
court would interpret the current language. Senator Wielechowski
referred to prohibiting the use of state funds, but he reads the
language to say that the use of any funds would be prohibited.
The drafter could clarify that and perhaps suggest language to
make it clear that the state can make its own sovereign
decisions, and if those decisions happen to coincide with
something in the federal act it wouldn't specifically be
precluded.
CHAIR FRENCH added that he's thinking about something along the
lines of a but-for test--Would you take this step but for the
federal Real ID Act? It seems reasonable for DMV to be able to
make a decision to put some different insignia on a driver's
license to make it more secure. But if DMV is taking steps to
conform to the Real ID Act, it sounds as though everyone is
saying not to spend our money on that.
SB 202 was held in committee.
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