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PAPERS, PAPERS . .
PLEASE: A NATIONAL ID OR AN ELECTRONIC TATTOO?
Andrew M. Strojny [FNa1]
Copyright © 1995 Federal Publications Inc.; Andrew M. Strojny
seen one of
those 1940s movies, set somewhere in
evolved over time to enable the holder not only to return home
abroad, but also to serve myriad other purposes. Today, many
documents are used to help establish the holder's eligibility
societal benefits, foremost among these the eligibility to
by Congress and the Clinton administration is a proposal, not
of papers or an internal passport, but to create a
registry of every man, woman and child authorized to work in
In 1986, the
and Control Act (IRCA) made it unlawful, for the first time,
to knowingly employ an individual who was not authorized to
work in the
The U.S. Commission on Immigration Reform, chaired by former Congresswoman Barbara Jordan, and created by the Immigration Act of 1990, recently examined how employer sanctions were working. In its 1994 report to Congress, it stated, "The ineffectiveness of employer sanctions, prevalence of fraudulent documents, and continued high numbers of unauthorized workers, combined with confusion for employers and reported discrimination against employees, have challenged the credibility of current worksite enforcement efforts." [FN1] In plain English, employer sanctions are not working.
To solve the problem, the Jordan Commission concluded "that the most promising option for secure, nondiscriminatory verification is a computerized registry using data provided by the Social Security Administration (SSA) and the INS." [FN2] The nation's 5.5 million employers would then have access to the registry for verification purposes. [FN3]
The employer sanctions provisions require a worker to produce an identity document if he or she uses a social security card to prove work authorization--a document combination the Jordan Commission says is too easily counterfeited. Commission representatives recognized that as an option, a uniform national card showing that the holder was in fact issued the social security number (SSN) being used might be required to prevent fraudulent use of the number.
This proposal, however, was immediately attacked as a call for a national identification card. On the same day that Ms. Jordan announced the Commission's registry proposal, a coalition of organizations ranging from the American Civil Liberties Union to the conservative Cato Institute denounced the worker registry proposal as unworkable, a threat to privacy rights, and at least a short step away from a national ID. [FN4] Since then, the Commission has been busy defending its proposal, and countering claims that the Commission is endorsing a national ID.
The political controversy surrounding such a card is best illustrated by the Jordan Commission's response to the national ID charge. It denied that it had proposed any such thing, and instead argued that it was merely going to propose requiring that a worker provide an employer his or her social security number, something that has been required for years for tax purposes. According to the Commission, the computer would do the rest.
The Commission, however, was silent on how a worker was to prove that the social security number he or she provided was in fact the number issued to him or her. In various forums, Commission representatives suggested that such methods as a mother's maiden name or a "PIN" [personal identification number] could be used to verify a SSN.
Over time it became clear that mothers' maiden names and "PIN" numbers could be easily passed around with legitimate SSNs, thereby rendering that method ineffective. Thus, it has subsequently been suggested that perhaps even a card with a photo, fingerprint, or DNA encoding could be an option. Because this again raises the specter of a national ID, the Jordan Commission appeared to many to have wound up right back where it started.
While the charge of creating a national identifier packs an emotional wallop, there has been little real discussion as to why it does so. Rather than engaging in hyperbole, it may be useful to examine the concerns such a national identity card or computerized registry raises. An initial examination yields three sets of concerns, some of which overlap. There are practical implementation concerns, governmental abuse concerns, and privacy concerns. While there may be others, only these three will be discussed in this article.
Practical Implementation Concerns
In this new era of examining what the federal government should be doing, it makes sense to examine or at least raise the practical problems inherent in implementing the Jordan Commission's solution. There appear to be at least six.
The first concern is the cost of issuing identity documents. According to some Social Security estimates, it could cost upwards of $2 billion to issue counterfeit-resistant photo identity cards to the entire population. This does not include the cost of issuing replacement cards to people who lose them or of issuing replacement cards as people age.
If our political leaders are to be believed, the Social Security trust fund may go broke early in the next century unless something is done. Adding at least $2 billion to the SSA's expenditures does not seem likely to help fix the solvency problem.
"one size identity card can fit all." Not everyone is
work in the
Thus, the belief that the Jordan Commission proposal will lead to a simple: "the computer says you can work" or "the computer says you cannot work," is false. In many instances, as today's employers have already learned, the answer will have to be "it depends."
A third concern
using the computerized registry. It has been suggested that if
determine whether a credit card is good merely by running it
A related concern is that the government may not be as effective as MasterCard and Visa in maintaining or correcting databases. For example, in an ongoing INS pilot telephone verification system (TVS), 28 percent of the individuals checked were not in the INS central database. [FN5] The majority of these individuals proved to be work authorized. [FN6] This inaccuracy rate was 11 percentage points higher than that found by a Justice Department audit in 1989. At that time the information in the INS database was incorrect or missing only 17 percent of the time. [FN7]
While inaccuracies in INS computer databases are legendary, the INS is not the only agency with such problems. Some tests have found error rates of between five and 20 percent in some SSA databases. [FN8]
What happens when the government makes a mistake? For example, who will bear the burden of lost pay, if the government erroneously states to an employer that someone is not authorized to work, when he or she in fact is? Given the number of employment decisions made in any given year, it seems likely that there will be a large number of times when the computerized registry or any manual verification system will wrongly state that someone is not authorized to work. [FN9] Given current federal deficit problems, it seems unlikely that the government will bear the burden, much less easily admit that it made the mistake in the first place. Yet simple justice would seem to require that the job applicant not bear the burden, if he or she ends up without a job merely because of government error. [FN10]
More importantly, what procedures will be put in place for an individual to correct erroneous information in a database? Anyone who has ever tried to correct erroneous information in a credit report is aware of how important such procedures are and of the kinds of problems inherent in utilizing them to correct wrong information. The current problems of correcting entries in INS databases are well-known to many immigration law practitioners.
This leads to the perhaps even greater concern of what will be done to ensure that the government and employers do not disclose unauthorized information about identity number holders. When the stakes are high enough (and even if they are not), the government has not done a very good job at safeguarding such information. Safeguards concerning disclosure of State Department records did not prevent disclosure of information about then-candidate Bill Clinton during the 1992 presidential campaign. Also, newspapers have recently reported instances where Internal Revenue Service (IRS) employees were caught checking the tax returns of famous taxpayers. It has also been reported that Social Security employees have sold access to SSA information to private detectives and credit bureaus. [FN11]
If the government is serious about preventing unauthorized disclosure of information, it could require that individual government and corporate employees be held personally liable for such disclosure. The government could provide for criminal sanctions, civil penalties, and punitive and compensatory damages.
A related question is how such safeguards are to be enforced, if they are created. One of the secrets students are taught in law school is that without a remedy, there is no right. If the government says something shall be done, but does not provide a remedy when it is not done, the right is worthless. In addition, who will bear the cost of the attorneys necessary to utilize any remedies that are created?
A final practical implementation concern is the Jordan Commission's proposal to tie its national registry to the SSN. In the past there has been little incentive for individuals to lie about such numbers. Originally the SSN was the equivalent of a bank account number, into which deposits were made for an individual's retirement. A rational person would no more falsify an SSN so their retirement deposits would go to another person's account than intentionally make a savings deposit into a stranger's savings account. If SSNs are to be used as the only way to establish permission to work, however, the incentive to falsify the number greatly increases. Retirement is a long way off; a pay check is at the end of the week.
Governmental Abuse Concerns
As weighty as the practical concerns of a national registry or identifier are, they are not what frighten people most. Rather, it is the potential for governmental abuse that most scares opponents of the Jordan Commission's proposal, and that engenders the most vehement feelings. That is what provokes the vague allusions to Nazi Germany and identity number tattoos. It is why some have dubbed the national registry proposal as analogous to an electronic tattoo.
The biggest fear about the Jordan Commission's proposal is a conceptual one. It changes the relationship between the citizenry and the government. Our Constitution declares that "We the people" give certain powers to the government. Some argue that the Jordan Commission proposal stands that declaration on its head. It in effect says that permission to work is another government benefit program with the government deciding who is eligible. It creates a country of "no card, no work" or, an even more frightening prospect, "if you're not in the computer, no work."
This is a
power to give to the government--power that it has already
to use, at least in a limited immigration context. In May
1992, the INS
the work authorization of certain classes of aliens to certain
of spreading Haitian refugees and asylum seekers around the
granted them documents limiting their authorization to work to
[FN12] It was hoped by some that the attempt to spread "them"
would keep down any political outcry that the influx of
Since Haitians at the time were not a particularly politically
there was no outcry. Few saw any potential dangers, and the
help to convince the government to let the Haitians into the
happens when, for example, unemployment is too high in
The government's propensity to use the limited power it already possesses in this area raises "foot in the door" fears that a national identity card or a national registry will be used to satisfy popular political purposes. The fear is that the government could use this power to punish political opponents, as tax audits have allegedly been used in the past. For example, relatives of a third party candidate, a primary opponent, or a key Senate staffer might suddenly find that the computer has "lost" their records and is reporting that they no longer exist.
of countries and governments around the world where lists of
been used by a particular political entity to punish or
its opponents. Computerized lists make that task much easier
A good illustration of this fear is the following news
reporting on a
new practice in 1986 in
The Ugandan Minister of Internal Affairs announced that his ministry will soon start a national registration exercise. He said, “introduction of the national identity card will not only facilitate police and immigration work but also will be very useful for other government agencies In Uganda there are still many anti-government elements; the new measure of the ministry of internal affairs may limit free movement of those elements.” [FN13]
Any identity card and associated databases may be encoded with a variety of information to achieve benign or perhaps even laudatory results. For example, one could encode a card or computer file to show whether an individual had any drunk driving convictions, thereby helping ensure that drunks do not become school bus drivers or oil tanker captains. This method raises legitimate fears, however. Once this encoding starts, it will be very hard to resist, and it could not only be used for positive goals, but also for other purposes. One can easily envision encoding race, gender, religion, age, and disability, to help achieve affirmative action goals, or to target inappropriately particular classes of persons. It is equally plausible to envision encoding health data, such as blood types and drug allergies to achieve health goals. It only takes a small additional step, however, to add HIV status to the card.
Finally, there is a fear that a national identity card or computer registry check will be required only of those who do not fit some employer's stereotype of what an American worker looks and sounds like. In practical terms, this means primarily members of minority groups that look or sound "foreign." The anger and fear this engenders was recently illustrated to the author by a third-generation American of Hispanic heritage: "I'm a citizen and I don't need a damned card to prove it."
Once we get past practical implementation concerns and government abuse concerns, we are left with privacy concerns. The Jordan Commission's proposal envisions that there will be on one database an individual's entire work history, and the system will be able to spell out the employment history of any individual at a moment's notice.
This makes many people nervous. The fear is analogous, for example, to that of anyone having access to a list of videos that you rented, and all that could imply (it's embarrassing to have it known that you rented Debby Does Dallas when you're running for PTA president). It has happened before. In 1986, some news organizations obtained lists of videos rented by Judge Robert Bork, who was in the middle of a tough Senate confirmation battle for the U.S. Supreme Court. [FN14] There is a similar concern about anyone knowing your entire work history.
Inevitably, there is a fear that a national identity card or national computer registry will be used for purposes other than merely verifying that an individual is authorized to work in the U.S. During last year's debate on President Clinton's health care proposal, for example, one of the proposals was to have every individual carry a national health care card, which was to have the individual's entire health history encoded on it. It wasn't long before many began speculating that such a health card could double as a national ID card. [FN15] Could not the same be said about a card whose purpose is ostensibly only to verify work eligibility?
There is also a
national identity card or national registry will be used for
purposes. For example, there is little doubt that if such a
were in place today and could prove useful in catching the
people just wanting to be left alone, to the idea that what we
do is no
business but our own and we don't want our ability to keep our
ourselves compromised. At a minimum, if the Jordan Commission
implemented, every person who works will be traceable, at
least more so
or she currently is. It will be harder for one to be able to
lost." Undoubtedly, after the
One of the great differences between free and enslaved societies is the right of the individual to live and work without the government knowing his every move. There can sometimes be privacy without freedom, as those in solitary confinement know, but there can be no freedom without privacy. [FN16]
What does all this mean?
lead? No one is quite sure, but at a minimum we should realize
under consideration is something fundamental. If carried out
extent, the Jordan Commission's proposal has the potential to
relationship between the federal government and the people of
In addition, legislative proposals in Congress contain verification methods similar to the Jordan Commission's proposal. The bill most likely to move in the near future, S. 269, a comprehensive immigration bill proposed by Sen. Alan. K. Simpson (R-Wyo.), contains a mandate to test verification systems, along the lines of the Commission's proposal. [FN17]
[FNa1]. Andrew M. Strojny
practices law in
[FN1]. U.S. Commission on
"U.S. Immigration Policy: Restoring Credibility, A Report to
Congress," 1994 Executive Summary, at 12 (Sept. 1994)
Commission Report]. See 71 Interpreter Releases 1345 (
[FN2]. Commission Report, Executive Summary at 12.
[FN4]. See 71 Interpreter Releases
[FN5]. For more on the TVS, see 72
Releases 524 (Apr. 17, 1995); 71 Interpreter Releases 791
Interpreter Releases 702 (June 8, 1992); 515 (
[FN6]. 21 Immigration Review 5 (Spring 1995).
[FN7]. 9 Immigration Policy &
Law 5 (
[FN9]. A one percent error rate in a universe of over 100 million hiring decisions a year would affect over one million people.
[FN10]. Under IRCA in at least one
according to a Department of Justice press release, the Office
Counsel for Immigration Related Unfair Employment Practices
against an employer where the company "insisted on seeing a
issued by the INS...in order to
sanctions provision of...IRCA." The alien "complied but still
hired because the company then tried to doublecheck
the validity of the document with the INS which, in turn, gave
erroneous information..." Department of
release no. 94-446, "Justice Department Settles
Against Northwest Fishing Company,"
[FN12]. A May 1992 INS cable,
Interpreter Releases 709 (
[FN13]. XINHUA Overseas New
[FN14]. It was discovered that there were in fact no embarrassing film rentals by Judge Bork.
[FN17]. For more on S. 269, see 72 Interpreter Releases 169 (Jan. 30, 1995).