DANIEL W. SUTHERLAND IS A LEGAL SCHOLAR WITH THE CENTER FOR EQUAL OPPORTUNITY. HE IS A GRADUATE OF THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW

The law requires a series of "pilot projects" to be in place by this month to test the workability of a national ID system. To that end, the federal government must create a list of people who are authorized to work in the United States (i.e. all citizens and legal permanent residents) and develop programs to prevent companies from hiring anybody who is not on that list. Supporters of the plan hope that it will pave the way toward requiring every private hiring decision made in the United States to face the approval of a federal bureaucracy. This represents a unique and unprecedented expansion of government authority into the lives of ordinary citizens.

Before Congress passed this law, there was a great deal of controversy about the "employment verification system." This report highlights significant new developments that may have swayed uncertain supporters of the national ID system, had they been known at the time. One example is the Clinton administration’s hypocrisy in arguing that it cannot effectively verify the eligibility of people who voted in the contested Dornan-Sanchez race, but that it can check the eligibility of every American who wants to work. In addition to outlining the problems created by the new immigration law, this CEO Policy Brief suggests the modest steps Congress can take to minimize its harm.

INTRODUCTION

Last fall Congress passed and President Bill Clinton approved the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. While the bill contains many useful initiatives, it also creates one of the most sweeping programs regulating private employment decisions ever implemented by government. Beginning in September 1997, the Justice Department must operate large-scale tests of an "employment verification system." The law mandates a computer database containing the names of all the people in the United States who are authorized to work (i.e. citizens and legal permanent residents), and encourages companies to make sure that prospective employees are on the government’s list before they begin work. The hope is that this system will decrease job opportunities for illegal immigrants and ultimately reduce illegal immigration.

This Policy Brief describes and analyzes the national identification system created by the new law. It examines new evidence that strongly suggests the employment verification project should be repealed immediately. Because a repeal is not likely at this stage, conservatives and civil libertarians should prepare now for the decisive vote in four years on whether the employment verification project will become a mandatory nationwide program. Therefore, this report also discusses proposals for implementing and monitoring the new national identification system.

THE NATIONAL IDENTIFICATION SYSTEM

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consumes 46 pages of the Congressional Record.1 Even its unwieldy acronym hints at its size and complexity: "IIRIRA." The massive law, sponsored by Sen. Alan Simpson (R-Wyo., ret.) and Rep. Lamar Smith (R-Texas), tries to address illegal immigration in a number of ways: Title I contains new initiatives to improve border controls; Title II enhances enforcement against alien smuggling rings; Title III makes the deportation system more efficient; Title V restricts public benefits for legal and illegal immigrants; and Title VI restricts people seeking political asylum.

Title IV establishes a national identification system designed to prevent illegal immigrants from obtaining employment. It orders the Attorney General to "conduct 3 pilot programs of employment eligibility confirmation."2 The Justice Department is therefore required to create programs to test the government’s ability to control illegal immigration through a two-step process:

• The federal government must create a list of people who are authorized to work in the United States; and
• It must develop programs to prevent companies from hiring anybody who is not on that list.

The three trials must be in place by September 1997, and they are supposed to operate until September 2001.3

The first trial project is referred to as the "basic pilot program," and is similar to a program already being tested by the Clinton administration’s Immigration and Naturalization Service (INS). The Clinton pilot has been operating in Southern California and selected cities elsewhere since 1995, building on a smaller-scale test involving nine companies in 1992. The primary difference between the basic pilot and the Clinton pilot is that the administration has been testing its program only on immigrants who are hired, while the basic pilot requires that both U.S. citizens and immigrants be verified.4

The basic pilot requires that, within the first three days after a person begins a new job, the company must have the new employee fill out a government form (the "I-9 form"). New employees must write their Social Security numbers on the form and, if they are immigrants, also provide INS identification numbers. The company must also note on the form that new employees have produced government-issued documents containing photographs proving their identity (such as a driver’s license or military ID card) as well as government-issued documents showing they are eligible to work in this country (such as a Social Security card or birth certificate).5

After completi-ng the form, the company will then check the information against a computer database run by the federal government, called the "confirmation system."6 Although the specific technology is yet to be developed, the law says that the company will be connected to the database "through a toll-free telephone line or other toll-free electronic media," such as a computer modem.7 The employer will enter certain information into the system--perhaps a code given to the company, followed by the new employee’s Social Security number. The employee will also enter a "PIN" code, a safety check to ensure that the person entering the data is authentic (the code will probably be his mother’s maiden name). If the information matches an entry in the government’s computer database, an "authorization code" will appear. The company will record the code on the I-9 form and the employee will be allowed to work.8

Experience shows that about one in every four times the computer will reply "nonconfirmation."9 Although this may be a signal that the new employee is an illegal immigrant, a nonconfirmation message may be sent for other reasons as well. It is possible that the company did not type in the numbers correctly. Another possibility is that a clerk working on the federal database made errors when he typed in the person’s name, number, and other information. Some Hispanics, for example, often have trouble with federal recordkeeping systems because they use both their father and mother’s surnames; a man named Julio Romero may refer to himself in formal documents as Julio Romero-Fernandez. Similarly, in some Asian cultures, the surname is written first, followed by the personal name. Other explanations for a nonconfirmation message include computer glitches and name changes through marriage or divorce. Many legal immigrants change their names when they naturalize.

Employees whose names do not turn up on the government’s official list of approved workers can contest a nonconfirmation.10 Even though such errors are likely to happen about 25 percent of the time, the new law is essentially silent on how an appeals process will work. Combining the few general provisions in the law with the experience of the Clinton test program, however, show the likely structure of the appeal. When the initial response is not positive, the employee can ask the employer to notify the government that he wishes to contest the finding. For the next 10 working days, the company must keep the employee on the payroll. During that time, the employee can try to convince the government that the database is wrong. It is most likely that the employee will travel to the closest Social Security Administration (SSA) or INS office and argue with clerks there about whether the computer database incorrectly lists him as ineligible to work. The agencies will look at his documents, search other computer files, and examine hard copies of its files before making a ruling on the person’s claim.

If he can convince the relevant agency within 10 days, the employer can enter the numbers in the computer again and receive an authorization code. If the government is not certain that the person is legally allowed to work, however, a "final nonconfirmation" code will be issued.11 If the government cannot reach a decision at all--if it cannot determine whether or not the person is authorized to work--he is considered "nonconfirmed" and the employer must fire him.12

Congress mandated that this "Basic Pilot Program" operate in five of the seven states with the highest estimated population of illegal immigrants.12 California, Florida, Texas, New York, and Illinois are likely to participate. Therefore, "[t]his ‘pilot project’ would cover 92.8 million people, a population greater than that of Mexico, indeed of all but the 10 largest nations in the world," according to Stuart Anderson of the Cato Institute.13 Any company in a participating state can choose to screen its employees through the computer database.14 The Attorney General may not require any company to participate (unless the company has been found in violation of immigration laws) and may not reject any company’s application to participate (unless the government has insufficient resources to accept all applications).15 Every year, approximately 65 million people enter the labor force for the first time or change jobs.16 By interpolation, in the five states with the largest immigrant populations, there are about 22 million new hires every year. It is therefore conservative to estimate that the database will be used millions of times between September 1997 and September 2001.

Congress mandated two other pilot programs. Both are variations on the basic program and neither is likely to be emphasized by the Clinton administration, which is most interested in continuing to operate its employment verification project. The first is titled the "citizen attestation pilot program." In it, if new employees can otherwise prove to their bosses that they are U.S. citizens, then their employers do not need to run it past the "confirmation system" before hiring.19 This program will be available only in states that implement new federal standards to make identification documents more secure (holograms or fingerprints will be required on driver’s licenses and other state ID cards). Even then, no more than 1,000 employers may participate in the program. The final pilot program is called the "machine-readable-document pilot program." This pilot will operate only in states where the driver’s license (or state ID card) "include[s] a machine-readable Social Security account number."18 The program will allow new employees to present ID documents that contain a Social Security account number and can be slid through a card-reading machine. The employer can hire the person if the government computer issues an authorization code.

NEW EVIDENCE REVEALS FLAWS

When Congress authorized the employment verification system, it was convinced that the SSA and INS would develop an accurate registry. Two recent developments, however, show that government records are hopelessly flawed. The first development concerns the SSA’s databases. The SSA district office in San Bernardino had been concerned because its clerks spend a great deal of time working on cases where an applicant’s name and wage reports are not recognized by the computer. Without approval from the agency’s headquarters, the district office wrote a report documenting the problem and released it in January 1997. According to the Washington Post, "the San Bernardino district has corrected about 100,000 mismatches nationwide over the past year. But with an estimated 200 million unmatched wage reports, the San Bernardino group has only skimmed the surface of the problem."19

Why is the SSA database experiencing so many problems? "[T]he Social Security computer system is confounded by names that do not conform to a traditional Anglo format," the Post reported. "The San Bernardino report ... details for the first time numerous cases in which individuals with Asian, Latino and Islamic names were mishandled by computers that did not know what to make of surnames with spaces (such as de la Rosa) or what to do with surnames that fall somewhere other than the end of a name (Park Chong Kyu and Carlos Romero Barcelo)." Moreover, the San Bernadino report charged that "the agency ... is failing to make an adequate effort to remedy the problem."20

New information about the INS’s databases is also alarming. When Robert Dornan lost his seat in Congress last November, he credited his opponent’s victory to non-citizen voting. The House asked the INS to provide a list of Orange County voters who also appear in the agency’s computer database as non-citizens. "Since INS data have been assembled in many places over many years in different formats, a simple electronic match will not produce completely reliable information," wrote INS Commissioner Doris Meissner in her reply to Congress. The administration claimed that developing a reliable list of ineligible voters would require that INS employees search both computer and paper files, a process that could take months to complete.21 It is hard to believe that Congress would have placed so much confidence in its own computer verification program last year if this information about unreliable data had been available then.

LACK OF COMPUTER SECURITY

In March 1997, the SSA began offering a new service: Consumers could easily get a copy of their own "Personal Earnings and Benefits Estimate Statement" through the SSA’s web site. People planning for retirement often need this information, and the Internet access would allow people to avoid the red tape of lines at SSA offices and long waits for a reply through the mail.

In April 1997, Congress forced the SSA to suspend its new on-line system. Media reports had caused a firestorm of criticism as consumers and members of Congress became convinced that this intensely personal information was now available to even unsophisticated computer hackers. To get access to the wage history of every participant in the Social Security system, an intruder would need to know only the person’s name, Social Security number, place and date of birth, and mother’s maiden name--all information that is available from other sources. As USA Today argued, the web site "gives nosy neighbors, ex-spouses, prying relatives and just about anyone else" access to highly sensitive information.22 The Washington Post explained, "Social Security numbers provide a key to obtaining exhaustive financial and personal information and can act as a building block for credit fraud."23 Until the SSA can assure Congress that it has extraordinary security precautions in place, the web site will be closed.

Ironically, the new immigration law makes the same SSA databases accessible to the public. Moreover, the system is premised on the very same security features--the person seeking information must type in information that should be secure, such as the mother’s maiden name. Long before the web site was created, the National Law Journal reported that the verification program posed the same threats: "Although the SSA boasts of computer security to guard these components, several computer experts say its controls, or ‘fire walls,’ may not withstand hacking from intruders ... The agency admits to worries about the unprecedented exposure a registry could bring and is studying new controls." The stakes are high: If the employment verification database allows unauthorized intrusion into SSA records, "a mother lode of personal information that includes prior and current addresses, past earnings, welfare status, even histories of drug addiction," will become publicly available.24

ERODING CIVIL LIBERTIES

To calm civil liberties concerns, proponents of the employment verification system insisted that it would simply allow employers to confirm information that the government already collects. No new information would be collected, they assured, and no new databases would be created. Harold Ezell, a member of the Commission on Immigration Reform that first proposed the worker registry, told a House committee, "We want to replace the ... paper chase that doesn’t do anybody any good, with a single electronic step to validate the information every worker must already provide."42

After analyzing the specifics of the new law, it is clear that the scope of the database is much more extensive than promised. New information that has never before been collected will now be stored in federal computers and new databases will be created. The end result will be unique and unprecedented: For the first time, the federal government will have a universal, comprehensive database of information on every person authorized to work in the United States.26

Although it is true that the government collects a great deal of information already, this database will be unique for several reasons. First, the system requires that two important government databases be linked for the first time. To develop a computer file on each person who is allowed by law to work in this country, there must be a record of every U.S. citizen as well as every immigrant authorized to work. The government must therefore link the databases maintained by the INS, which supposedly maintains computer records on every non-citizen in the United States, and SSA, which issues a number to every person who opens a Social Security account. For the first time, the databases including almost everyone who has government permission to be in this country — most immigrants and most citizens--will now be linked.

Second, the Social Security database will be so thoroughly overhauled that the final product will constitute essentially an entirely new database. Advocates of the worker registry repeatedly assert that employers will simply tap into the data already collected by the SSA. The current SSA database is not suitable for the employment verification system, however. As journalist Glenn Garvin reported, "Until 1972, the Social Security Administration would take an applicant’s word about his age and identity when issuing cards. In 1991, Gwendolyn King, the agency’s commissioner, testified to Congress that more than 60 percent of Social Security numbers were based on unverified statements. ‘That, of course, means that the Social Security number simply cannot be used effectively as a means of identification,’ she added."27 The new law thus requires the agency to change its computer files in several ways:

• SSA will collect more data. The worker registry will "require an overhaul and expansion of the information SSA currently keeps on registrants."28 Lawrence Thompson, deputy commissioner of the SSA, told a House subcommittee that "[t]he only thing SSA can verify is birth, gender, and Social Security number--not enough for a database that seeks to establish eligibility to work in the United States."29
  
• SSA will add people into its databases. "Everyone needs a Social Security number to work," one pro-registry lobbyist said during the debate.30 Despite this common misconception, SSA’s databases do not include workers such as state and local government employees who participate in retirement programs offered by their employers; certain farmers and farmworkers; some ministers and members of religious orders; adherents to religions that preclude participating in the Social Security system, such as some Amish and Mennonite believers; and young people whose only jobs have been for their school, as student nurses, or in delivering newspapers.49 In fact, the Equal Employment Opportunity Commission once sued a company that refused to hire an applicant because he did not have a Social Security number.32 A small but significant group of Americans do not participate in the Social Security system, and these people will now be required to register with SSA.
  
• SSA will subtract people from its databases. Until recent years, Social Security numbers were issued without any substantial application process. The General Accounting Office reported in 1988, "[A]bout 210 million [Social Security] numbers are considered active, according to SSA, and at least 75 percent were issued without proof of the individual’s identity or citizenship."33 Thus, tens of millions of names in the Social Security database have never been checked for employment eligibility. To be accurate and prevent fraud, many files will need to be culled.
  
• The SSA database will be reorganized. The SSA must organize the information it collects to allow companies to have access to information through a telephone link. The agency did not store its data with the employment verification system in mind, and it must reconfigure its system to fit that purpose. The agency will now store the information so that: A message can be sent to the computer system from individuals outside the agency; information is released only when an appropriate authorization code is typed in; a new field of data is created that includes only the limited data necessary; and a message can be sent back to the company.

The INS databases must similarly be rebuilt--new names must be added to the database, others must be subtracted from the files, the information currently included must be cleaned up, and the resulting database must be made accessible through a modem. As one trade journal put it, INS "databases on foreigners in the country also would require a costly overhaul if they are to be used to verify work eligibility of noncitizens."34

Finally, the Act’s employment verification system will be a catalyst for the development of a number of complementary databanks. A 1973 government report critical of a national worker registry concluded, "If use of the SSN as an identifier continues to expand, the incentives to link records and to broaden access to them are likely to increase."35 For example, to make it more efficient to deliver information for government birth records, private hospitals may create databases of the babies delivered over the past several decades. Local governments will be encouraged to develop computer files of people who were born, married, or died in their counties.36 The editors of Newsday argued that in response to a federal worker registry, "The states will probably have to create computerized verification systems with even more personal information about individuals."37

Rather than creating "a single electronic step to validate the information every worker must already provide," the employment verification system requires the government to create new databases of information about its residents, to add new people to the files it already keeps, and to collect additional information about people already in its files. The new law will give the federal government, for the first time, a universal and comprehensive computer database of information on every person authorized to work in this country. As the Miami Herald reported, the law "will require an unprecedented undertaking by the federal government--the creation of a database comprising information on every citizen and legal immigrant in the country."38 The New York Times noted that a worker registry would be a unique step for this country: "The United States has never had a central register or roll of all its people."39 A federal commission in the 1970s warned, "The real danger is the gradual erosion of individual liberties through the automation, integration and interconnection of many small, separate record-keeping systems, each of which alone may seem innocuous, even benevolent, and wholly justifiable."40

TOWARD A NATIONAL ID

House Majority leader Dick Armey (R-Texas) echoed the sentiments of many voters when he called a national identification card "an abomination and wholly at odds with the American tradition of individual freedom."41 Recognizing the unpopularity of the term "national ID card," Sen. Simpson took every opportunity to reassure the public: "A ‘national ID card’ is not necessary, and I have always opposed such an approach."42 Rep. Smith, Simpson’s ally in the House, took the same line: "I oppose a national ID card, and that is exactly why the legislation is written the way it is."43

Within moments after the Senate voted to approve the bill he wrote and co-sponsored, however, Simpson took to the floor of the Senate and for the first time candidly predicted where the worker registry will lead:

• There is a pilot program for verification of eligibility to work, and there will be much more of that in the future because no matter how vigorous you want to be on illegal immigration and all the abuses of the system, nothing will work until we have a more counterfeit-resistant type of verification system--whatever that may be, whether it would eventually be a Social Security card, a slide-through card like you use with a Visa when you make a purchase, perhaps some type of driver’s license photograph, retina examination like they have done in California. But at some point in time you are going to have to have a more secure identifier. ... That is what will come.44

If Simpson had stated during the floor debate that this bill would cause the federal government to issue an identification card with a "retina examination" on it, the provision would have failed by a landslide. And yet that is exactly where this legislation aims to go. The underlying premise of this bill is that the government should issue every American an identification number. Proponents of a national worker registry want to assign these unique and secure numbers so that the government can effectively verify that people are who they say they are. After assigning everybody a number, the government would logically want to issue a card or document with that number on it. To prevent counterfeiting, the card would likely include "biometric" data, such as fingerprints, blood samples, or a voice or retina pattern.

The new immigration law will hasten this scenario. Sen. Dianne Feinstein (D-Calif.), a cosponsor of the bill, proposed in 1995 that every American be issued an identity card with "a magnetic strip on which the bearer’s unique voice, retina pattern, or fingerprint is digitally encoded."45 Rep. Bill McCollum (R-Fla.) wants the government to issue every American a card that includes "a picture, a hardened card, a hologram. Perhaps there will be a biometric identifier."46

Prior to passage of the new law, Simpson and Smith assured their colleagues that a "national ID card" could not result from the worker registry because the law specifically prohibits it. But the specific language in the statute reveals that the assurances were misleading at best. Section 404(h)(2) of the bill states: "Nothing in this subtitle shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card." The law does not prohibit a national ID card--it just says that "nothing in this subtitle" authorizes one. In fact, in other sections of the law there are four pilot projects laying the groundwork for a national ID card or document:

• "Development of prototype of counterfeit-resistant Social Security card" (Section 657): This provision requires the SSA to study the feasibility of issuing to all Americans and authorized immigrants a "durable," "tamper-resistant" card. The study will include recommendations for charging a "user fee" for the card--in other words, passing the cost on to the public.
  
• "Improvement in border crossing identification card" (Section 104): People who live in Mexico and legally work in this country are issued a special visa called a border crossing card; they cross every day and therefore are not required to stand in long lines. The new law requires that each card must include "biometric data" that is "machine-readable."
  
• "Land border inspection and automated permit pilot projects" (Section 122): At remote land borders, primarily on the Canadian border, the INS will now issue local residents who come and go a biometrically-encoded pass. A card-reading machine will be set up at remote borders; when the resident inserts his card, the machine will verify his identity and then cause the border gate to open.
  
• "Improvements in identification-related documents" (Section 656): Driver’s licenses must be issued with federally-mandated security features on the card, including data that can be machine-readable. All driver’s licenses will be required to have the Social Security number on the card.

It is clear where the authors of this bill want to lead us: To complement the new universal database, in the near future all citizens and authorized aliens will be issued a document with an identification number that is unique to the person and made tamper-proof through the addition of biometrics.

A TEMPTING TOOL

Is the development of an ID system something we should fear? Some fear the cost. The SSA estimates that the cost of issuing a national identification card would be a minimum of between $3 and $6 billion.47

More profound concerns have been raised about how an ID would be used. An ID, either in the form of a database that includes information on all Americans or a card that all Americans are required to possess, would be a very tempting tool for the government. A comprehensive list of all people residing within our borders, supplemented by biometric information on each person, would help politicians and bureaucrats to implement many of their proposals more efficiently:

• Secure elections: Rep. Steve Horn (R-Calif.) aware of the allegations of voter fraud in the Dornan-Sanchez congressional race, introduced legislation that would allow state voting officials to verify the authenticity of voters through the immigration law’s worker registry.48
  
• Nationalized health care: In his 1994 State of the Union address, President Clinton held a prop: a "health security card." The President proposed that "everyone will carry ‘smart cards’ coded with his or her personal medical information." Ira Magaziner, the White House consultant who led the administration’s unsuccessful health care initiative, said that the administration wanted "to create an integrated system with a card that everyone will get at birth."49
  
• The nanny problem: In Senate hearings on an early version of the immigration bill, government officials seriously discussed using a national identifier for broad purposes. According to one witness, "Ten minutes into the hearing you had law enforcement people talking about how it was necessary to harness this biometric technology so as to catch white collar criminals, drug dealers, whomever. Sen. [Dianne] Feinstein was speculating as to how housewives might be able to check potential domestic help by means of digital voice biometrics on the telephone."50
  
• The war on drugs: Carroll O’Connor, a Hollywood actor and activist, proposed using a national ID system to control the spread of drugs and drug dealers.51
  
• Monitoring gun ownership: Dan Stein of the Federation for American Immigration Reform has proposed that a national identifier could be used to monitor the sale of guns.52

Eventually, the government will find less benevolent ways to use a national ID system. In Pakistan, the government is entertaining a proposal by AIDS activists that the national ID card "include a blood group column" to assist in AIDS screening.53 In Taiwan, fingerprints are included on all national ID cards so that the police can conduct criminal investigations more efficiently.54 In Kenya, the national identification card is used to regulate the movements of people who are not in the same tribe as the President.55 Britain is also considering a national ID card for law enforcement purposes and in an earlier draft of his bill, Simpson recommended that all Americans provide the SSA with a fingerprint that would be placed on the birth certificate.56

When the government collects an increasing amount of information on its citizens, abuses are inevitable. Robert Holland, a columnist with the Richmond Times-Dispatch, wrote, "Information is power--the power to harass, snoop, embarrass, fabricate, bully, even jail for political reasons. It is dangerous to put such all-inclusive informational power in the hands of government--no matter how much more ‘efficient’ immigration or other policy might become."57 Recent American history shows that when people in government--liberals and conservatives, Republicans and Democrats--are given power, they often misuse it. From Bush administration appointees allegedly searching passport files for politically damaging information on candidates Perot and Clinton to Clinton administration operatives repeating the incident in the first days of their new jobs; from Nixon’s enemies list to the Clinton administration’s FBI files search; the evidence overwhelmingly supports the old principle that power corrupts.58 If the federal government is allowed to take the unique step of compiling a universal database and preparing for biometrically-encoded identity cards, it is only a matter of time before the power is abused.

RECOMMENDATIONS

Congress certainly will want to look at the implementation of the 1996 Act. The following are actions that might be considered.

• Repeal the employment verification program: When Congress voted to create the worker registry, the margins were close: 17-15 in the House Judiciary Committee, 9-9 in the Senate Judiciary Committee, and 54-46 on the floor of the Senate. Since those votes were held, substantial new evidence cautioning against a national identification system has emerged. If Congress had been informed of the lack of security in government databases, of the compelling new reports describing the magnitude of errors in those databases, or of the dramatic new scope of the database, at least a few critical votes would likely have been swayed. The House and Senate committees responsible for immigration policy should bring this evidence before the Congress and allow for a more informed vote.
  
• Develop the evidence that there are alternatives for controlling illegal immigration. It may not be realistic to expect Congress to repeal a program it enacted only last year. Opponents of a national identification system must therefore prepare for the next vote, in four years. One of the cornerstones of the argument would be that there are less controversial alternatives that will effectively control illegal immigration. These alternatives might include dramatically restructuring the INS and improving the deportation system.59
  
• Mandate an additional report from the Social Security Administration: The 1996 law requires the SSA to prepare a report on the feasibility of using the Social Security card as the basis for a national ID system.60 The authors of the bill clearly were laying the foundation to introduce legislation later. For the sake of balance, Congress should ask the SSA to prepare a report on the feasibility of the opposite extreme: returning the Social Security number to its original purpose, where it served solely as an identification number for a retirement account. A Social Security official recently admitted that "If we had our druthers, we would not have wanted the situation to have evolved the way it has."61 The SSA should be asked to study the feasibility of prohibiting private entities from making use of the Social Security number, and prohibiting all government agencies other than the IRS and SSA from using it. The agency should also be asked to detail the additional costs it bears because Congress and the private sector have vastly expanded the use of the number. Only if Congress is presented with both possibilities--expanding the Social Security number into a national identifier or limiting it to its original purpose--can it make an informed decision about the proper course.
  
• Ensure computer security: The employment verification system will allow the public to access certain government computer files for the first time. Congress should hold hearings to ensure that security measures are in place to prevent unauthorized access to sensitive data. The hearings are likely to demonstrate that computer security is not even possible, and demonstrate that the worker registry is fundamentally flawed.
  
• Ensure the integrity of reports: The new law requires that Congress receive various reports analyzing the results of the pilot tests.62 These reports will be biased and at times even misleading, however. The INS consistently releases statistics that are favorable to its positions while burying unfavorable data, or releases statistics with such a spin that it is difficult to discern the true meaning of the numbers. Congress also cannot rely on the General Accounting Office to provide an unbiased assessment of the project. The GAO has already testified in favor of an employment verification system, and has advised that the federal government should issue a tamper-proof national identification card.63 There are two ways Congress can ensure that it receives accurate reports. First, it should specifically require that certain information be included in the reports. For example, it could demand that the GAO interview a large sample of people who were denied authorization to work by the system. Second, Congress should direct the INS and SSA to allow private research organizations to have access to the data and invite outside groups to assess the system.

CONCLUSION

Many members of Congress voted in favor of the illegal immigration bill last year simply because they did not want to get on the wrong side of a political issue during an election year. But now that the implications of the national identification provisions of the law have come into clearer perspective, Congress should revisit this subject as soon as possible. In the very least, it should take a series of modest steps to lead the country off the road to a national identification system in which a government bureaucrat must approve every hiring decision made in the country. Any Congress that claims to stand for limited government should do nothing less.

NOTES

1. CONGRESSIONAL RECORD, SEPT. 28, 1996, AT H11787-11833; INTERPRETER RELEASES, OCT. 7, 1996, AT 1360-1406.

2. SECTION 401(A).

3. SECTION 401(B).

4. THE CLINTON PILOT NOW OPERATES AT 174 COMPANIES IN SOUTHERN CALIFORNIA AND MORE THAN 1,000 NATIONWIDE. "FEDERAL AGENCY IS REVIEWING INS WORKPLACE SCREENING," LOS ANGELES TIMES, JULY 15, 1997 AT B4.

5. SECTION 403(A).

6. SECTION 403(A)(4).

7. SECTION 404(A)(1).

8. SECTION 403(A)(4)(A).

9. AUDITS CONSISTENTLY SHOW THAT INS COMPUTERS RECORDS ARE WRONG--CONTAINING NO INFORMATION ON A PERSON OR INCORRECT INFORMATION ON THAT PERSON--BETWEEN 20 AND 30 PERCENT OF THE TIME. INTERNAL SSA DOCUMENTS ESTIMATE THAT THE AGENCY’S COMPUTER WILL INCORRECTLY RESPOND TO EMPLOYMENT VERIFICATION INQUIRIES TWENTY PERCENT OF THE TIME IN THE SHORT RUN, AND 5 PERCENT OF THE TIME EVEN AFTER THE SYSTEM HAS BEEN IMPROVED TO ITS MAXIMUM LEVEL. SEE D. SUTHERLAND, COMPUTER REGISTRY TO FIGHT ILLEGAL IMMIGRATION: BAD NEWS FOR EMPLOYERS AND EMPLOYEES, ALEXIS DE TOCQUEVILLE INSTITUTION, APRIL 1995, AT 2-3; J. MILLER AND S. MOORE, A NATIONAL ID SYSTEM: BIG BROTHER’S SOLUTION TO ILLEGAL IMMIGRATION, CATO INSTITUTE, SEPTEMBER 7, 1995, AT 13-14; D. TELL, REPUBLICANS AND IMMIGRATION, THE WEEKLY STANDARD, FEB. 26, 1996, AT 11. SINCE AMERICANS CHANGE JOBS OR ENTER THE LABOR FORCE FOR THE FIRST TIME APPROXIMATELY 65 MILLION TIMES EVERY YEAR, A 5-20% ERROR RATE WOULD ENSNARL MILLIONS OF AMERICANS EVERY YEAR IN WHAT JOURNALIST GLEN GARVIN CALLS "THE NINTH CIRCLE OF BUREAUCRATIC HELL." "BRINGING THE BORDER WAR HOME," REASON, OCT. 1995 AT 18, 26. AS DAVID TELL OF WEEKLY STANDARD PUT IT, "THAT’S 3,250,000 GLITCHES EACH YEAR--OR, TO PUT IT INDELICATELY, ROUGHLY 600 PER CONGRESSIONAL DISTRICT EACH MONTH." "REPUBLICANS AND IMMIGRATION," WEEKLY STANDARD, FEB. 26, 1996, AT 11.

10. SECTION 403(A)(4)(B)(III).

11. SECTION 403(A)(4)(B)(IV).

12. SECTION 401(C)(1).

13. S. ANDERSON, "BIG BROTHER ‘PILOT PROJECT,’" INVESTOR’S BUSINESS DAILY, DECEMBER 13, 1995.

14. SECTION 402(A). INTERESTINGLY, THE LAW REQUIRES THAT EACH MEMBER OF CONGRESS AND EVERY FEDERAL AGENCY MUST PARTICIPATE IN THE SYSTEM. SECTION 402(E).

15. SECTION 402(A), (C)(3).

16. GENERAL ACCOUNTING OFFICE, IMMIGRATION REFORM: A NEW ROLE FOR THE SOCIAL SECURITY CARD, AT 3 (1988). THIS NUMBER IS SURE TO HAVE INCREASED SINCE 1988.

17. SECTION 403(B).

18. SECTION 403(C).

19. "WHAT’S IN A NAME? LOST BENEFITS, PERHAPS," WASHINGTON POST, JANUARY 17, 1997, AT A19.

20. ID.

21. "INS YIELDS DATA IN DORNAN ELECTION PROBE," WASHINGTON TIMES, MAY 22, 1997, AT A4.

22. SEE "SOCIAL SECURITY WEB SITE TAKES HIT OVER ACCESS," WASHINGTON POST, APRIL 8, 1997 AT A1.

23. "SEEKING ONLINE PRIVACY FOR A NINE-DIGIT NUMBER," WASHINGTON POST, APRIL 17, 1997, AT A21.

24. ANN DAVIS, "DIGITAL IDS FOR WORKERS IN THE CARDS," NATIONAL LAW JOURNAL, APRIL 10 1995, AT A21.

25. "IMMIGRATION: COMPUTERIZED REGISTRY ENDORSED AS MEANS OF FIGHTING EMPLOYMENT OF ILLEGAL ALIENS," DAILY LABOR REPORT, FEBRUARY 23, 1996.

26. EVEN THOUGH THE ACT CREATES ONLY A SERIES OF LARGE-STATE PILOT PROJECTS, IT MUST DEVELOP THE ENTIRE NATIONAL DATABASE TO OPERATE THE PILOT PROJECTS. THE GOVERNMENT COULD NOT PREPARE A DATABASE JUST ON EMPLOYEES IN CALIFORNIA, FLORIDA, TEXAS, ILLINOIS, AND NEW YORK SINCE PEOPLE FROM CONNECTICUT, MICHIGAN, AND GEORGIA OFTEN MOVE TO THOSE STATES TO ACCEPT EMPLOYMENT. THE DATABASE MUST INCLUDE EVERYONE IN THE COUNTRY, EVEN WHEN IT IS USED IN ONLY A FEW STATES.

27. GARVIN, SUPRA, AT 18, 25.

28. "OVERHAULING SOCIAL SECURITY CARDS WOULD COST UP TO $6 BILLION, SSA SAYS," DAILY LABOR REPORT, OCTOBER 4, 1994.

29. ID. TO OPERATE THE EMPLOYMENT ELIGIBILITY COMPUTER SYSTEM, THE SSA WILL ALSO NEED TO COLLECT, AT A MINIMUM, PLACE OF BIRTH, MOTHER’S MAIDEN NAME, DATE OF DEATH, AND PLACE OF DEATH. DEATH INFORMATION IS SUPPOSEDLY REQUIRED IN ORDER TO PREVENT FRAUD.

30. HARRIS MILLER, THEN A LOBBYIST FOR THE AMERICAN COUNCIL ON INTERNATIONAL PERSONNEL, QUOTED IN, "GOP WILL PUSH FOR OVERHAUL OF IMMIGRATION EMPLOYER SANCTIONS," DAILY LABOR REPORT, JANUARY 30, 1995.

31. "WHEN THE SOCIAL SECURITY PROGRAM WAS ENACTED IN 1935, STATE AND LOCAL GOVERNMENT EMPLOYEES WERE NOT INCLUDED ... BY 1989, AN ESTIMATED 10.8 MILLION STATE AND LOCAL WORKERS WERE COVERED BY THE [SOCIAL SECURITY] PROGRAM, ABOUT 72 PERCENT OF ALL WHOSE MAJOR JOB WAS IN STATE AND LOCAL GOVERNMENT AT THAT TIME." SOCIAL SECURITY BULLETIN, SEPT. 1991, AT 60. SEE ALSO SOCIAL SECURITY HANDBOOK 1993 AT 177-189 (1993). "MOST TYPES OF EMPLOYMENT IN THE U.S. ARE COVERED BY SOCIAL SECURITY. SOME WORK, HOWEVER, IS SPECIFICALLY EXCLUDED BY THE LAW, AND OTHER TYPES OF WORK ARE COVERED ONLY UNDER CERTAIN CONDITIONS." ID. AT 150.

32. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION V. INFORMATION SYSTEMS CONSULTING, NO. CA 3-92-0169 (N.D. TEX. 1992).

33. GENERAL ACCOUNTING OFFICE, IMMIGRATION REFORM: A NEW ROLE FOR THE SOCIAL SECURITY CARD, SUPRA, AT 3.

34. "GOP WILL PUSH FOR OVERHAUL OF IMMIGRATION EMPLOYER SANCTIONS," DAILY LABOR REPORT, JANUARY 30, 1995. SEE ALSO D. SUTHERLAND, THE FEDERAL IMMIGRATION BUREAUCRACY: THE ACHILLES HEEL OF IMMIGRATION REFORM, 10 GEORGETOWN IMMIGRATION LAW JOURNAL 109, 111-112 (1996)(HUNDREDS OF THOUSANDS OF NON-CITIZENS NOT INCLUDED IN INS’S COMPUTER FILES SHOULD HAVE BEEN).

35. RECORDS, COMPUTERS AND THE RIGHTS OF CITIZENS, REPORT OF THE SECRETARY’S ADVISORY COMMITTEE ON AUTOMATED PERSONAL DATA SYSTEMS, AT 121 (1973).

36. ATTORNEY PETER LARRABEE SAYS, "EVERY STATE REGISTERS BIRTHS DIFFERENTLY, AND NONE OF THEM HAS EVER MADE SECURITY A HIGH PRIORITY . . . . BIRTH CERTIFICATES IN TEXAS, FOR INSTANCE, WERE NOT EVEN CENTRALLY REGISTERED UNTIL 1948. AND EVEN THEN IT WAS DONE IN A PRETTY SLIPSHOD WAY. ANY BIRTH REPORTED TO THE STATES WAS JUST WRITTEN IN A BIG LEDGER BOOK, WITHOUT REQUIRING ANY DOCTOR’S SIGNATURE OR ANYTHING." GARVIN, SUPRA, AT 25.

37. "MEMBERS ONLY," CURRENTS, NEW YORK NEWSDAY’S SUNDAY JOURNAL OF POLICY, POLITICS AND IDEAS, AUGUST 14, 1994, AT A26.

38. "TOUGHER ERA IS AHEAD FOR IMMIGRATION," MIAMI HERALD, JANUARY 19, 1997, P. A1.

39. "FEDERAL PANEL PROPOSES REGISTER TO CURB HIRING OF ILLEGAL ALIENS," NEW YORK TIMES, AUG. 4, 1994, P. A1.

40. PRIVACY PROTECTION STUDY COMMISSION, "PERSONAL PRIVACY IN AN INFORMATION SOCIETY," AT 533 (1977), QUOTED IN THE TARNISHED GOLDEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION, A REPORT OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS, AT 69 (1980).

41. HOUSE MAJORITY LEADER DICK ARMEY, SPEECH TO THE CATO INSTITUTE, MAY 9, 1995, P. 4.

42. SEN. ALAN SIMPSON, "DON’T OPEN THE HUMAN FLOODGATES," WALL STREET JOURNAL, OCTOBER 13, 1995.

43. "JOB-STATUS VERIFICATION QUESTIONED," DALLAS MORNING NEWS, JULY 18, 1995.

44. 142 CONG. REC. S11711-01, SEPT. 28, 1996.

45. D. FEINSTEIN, "FEINSTEIN: STATE-OF-THE-ART ID SYSTEM IS NECESSARY TO HELP IDENTIFY ILLEGAL ALIENS," ROLL CALL, MAY 22, 1995 AT 8.

46. PAUL GIGOT, "UNCLE SAM WANTS YOUR PAPERS PLEASE," WALL STREET JOURNAL, SEPTEMBER 29, 1995. REP. MCCOLLUM RECENTLY INTRODUCED HR 231, LEGISLATION THAT WOULD REQUIRE THAT THE SOCIAL SECURITY CARD BECOME A COUNTERFEIT-PROOF IDENTIFICATION DOCUMENT, MAKING THE CARD A STANDARD UNIVERSAL IDENTIFIER.

47. SEE MILLER AND MOORE, AT 15.

48. "BILL WOULD GIVE VOTING OFFICIALS ACCESS TO INS INFO," LOS ANGELES TIMES, APRIL 25, 1997.

49. WASHINGTON TIMES, AUGUST 14, 1993, AT A1.

50. DIERDRE MULLIGAN, CENTER FOR TECHNOLOGY AND DEMOCRACY, QUOTED IN IMMIGRATION POLICY AND LAW, JUNE 1, 1995, AT 12.

51. "BEWARE THE SOFT CHAINS OF AN ID CARD," ROCKY MOUNTAIN NEWS, AUGUST 11, 1995 (RESPONDING TO MR. O’CONNOR’S PROPOSAL).

52. "CLINTON INITIATIVE TO KEEP FIRE ARMS OUT OF HANDS OF NON-U.S. RESIDENTS DOOMED TO FAILURE," FEDERATION FOR AMERICAN IMMIGRATION REFORM PRESS RELEASE, MARCH 5, 1997.

53. "PAKISTAN GOV’T URGED TO ACT AGAINST SPREAD OF AIDS," XINHUA ENGLISH NEWSWIRE, APRIL 1, 1996.

54. "HOUSEHOLD LAW AMENDMENT CALLS FOR FINGERPRINTS ON IDS," THE FREE CHINA JOURNAL, JANUARY 26, 1996.

55. "KENYA-POLITICS: NEW IDS CREATE FEAR OF ELECTION RIGGING," INTER PRESS SERVICE, FEBRUARY 21, 1996.

56. "TORIES COOL ON ID CARDS," THE GUARDIAN, JANUARY 25, 1996; SEN. FEINGOLD, 142 CONG. REC. S4475, MAY 1, 1996.

57. ROBERT HOLLAND, "GOVERNMENT TRACKING IMPERILS LIBERTY," RICHMOND TIMES DISPATCH, AUG. 23, 1995.

58. "POLITICS AND THE IRS," WALL STREET JOURNAL, JANUARY 9, 1997 AT A12; "POLITICS AND THE IRS - III," WALL STREET JOURNAL, JANUARY 18, 1997, AT A22.

59. FOR FURTHER DETAILS, SEE D. SUTHERLAND, ABOLISH THE INS: HOW FEDERAL BUREAUCRACY DOOMS IMMIGRATION REFORM, CEO POLICY BRIEF (FEBRUARY 1996); D. SUTHERLAND, THE FEDERAL IMMIGRATION BUREAUCRACY: THE ACHILLES HEEL OF IMMIGRATION REFORM, 10 GEORGETOWN IMMIGRATION LAW JOURNAL 109 (1996).

60. SECTION 657, "DEVELOPMENT OF A PROTOTYPE OF A COUNTERFEIT RESISTANT SOCIAL SECURITY CARD."

61. "SEEKING ON-LINE PRIVACY FOR A NINE-DIGIT NUMBER," WASHINGTON POST, APRIL 17, 1997 AT A21.

62. SECTION 405 REQUIRES THE ATTORNEY GENERAL TO SUBMIT A PROGRESS REPORT AT THE CONCLUSION OF THE THIRD YEAR OF THE PILOT (IN THE YEAR 2000) AND THE 4TH YEAR OF THE PILOT (2001). SECTION 656 DIRECTS THE SECRETARY OF HHS TO SUBMIT A REPORT ON WAYS TO REDUCE THE FRAUDULENT USE OF BIRTH CERTIFICATES, SOCIAL SECURITY ACCOUNT NUMBERS AND OTHER IDENTITY DOCUMENTS. SECTION 657 DIRECTS THE COMMISSIONER OF THE SSA AND THE COMPTROLLER GENERAL TO DEVELOP A REPORT ON THE FEASIBILITY OF DEVELOPING A COUNTERFEIT-RESISTANT SOCIAL SECURITY CARD. NO DOUBT THE GENERAL ACCOUNTING OFFICE WILL ALSO SUBMIT STUDIES ON THE PROGRESS AND FEASIBILITY OF THE WORKER REGISTRY.