A National ID or an Electronic Tattoo

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This is a slightly edited version of an article that appeared in INTERPRETER RELEASES.
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Interpreter Releases

May 8, 1995

PAPERS, PAPERS . . . PLEASE: A NATIONAL ID OR AN ELECTRONIC TATTOO?

Andrew M. Strojny [FNa1]

Almost everyone has seen one of those 1940s movies, set somewhere in Europe, where a policeman, usually of Slavic or Germanic national origin, moves down the aisles of a train, asking ever so politely for "Papers, papers, please." Most people who have traveled abroad have memories of how closely they held their passports for fear of losing the one identification document that was necessary to enable them to return home.

Identification documents have evolved over time to enable the holder not only to return home from a trip abroad, but also to serve myriad other purposes. Today, many different documents are used to help establish the holder's eligibility for many types of societal benefits, foremost among these the eligibility to legally work in the United States.

Now under serious consideration by Congress and the Clinton administration is a proposal, not to create a set of papers or an internal passport, but to create a computerized national registry of every man, woman and child authorized to work in the U.S. The stated purpose of this proposal is to provide employers with a simple method of ensuring that the people they employ are legally authorized to work in the U.S.

Background

In 1986, the Immigration Reform and Control Act (IRCA) made it unlawful, for the first time, for all employers to knowingly employ an individual who was not authorized to work in the U.S. To address employer fears that they were being drafted into becoming junior INS officers, IRCA provided for what was to be a "simple" method of establishing one's right to work in the U.S. If the employer examined a document or documents showing that a new employee was who he said he was (an identity document), and showing authorization to work in the U.S. (a work authorization document), the employer had a defense against being sanctioned should a person unauthorized to work be unknowingly employed. It was hoped that this employer sanctions provision would make it difficult or impossible for undocumented aliens to find work in the U.S., thereby discouraging them from coming here.

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.

A second concern is whether "one size identity card can fit all." Not everyone is authorized to work in the U.S. in the same way. For example, aliens here on H-1 visas may only work for the employer that obtained the visa on their behalf. Their cards or computer registry data files will have to somehow reflect this fact so that the aliens cannot seek employment at other companies. Likewise, aliens on student visas may only work for specified numbers of hours or specified periods of time. Again, their cards or computer data files will have to reflect this.

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 is the cost of using the computerized registry. It has been suggested that if a cashier can determine whether a credit card is good merely by running it through a card reader, the U.S. government ought to be able to do the same thing. Ignoring for the moment that the credit card reader does not tell a store whether the credit card belongs to the user, who is going to pay for the card reader, maintenance of the database, and the telephone or other transmission time to access it? Is this to be a cost borne by the employer and ultimately passed on to the consumer? Are taxpayers or job applicants to pay it? In an era of cost-benefit analysis and scarce resources, these are not irrelevant questions.

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 tremendous amount of power to give to the government--power that it has already shown a propensity to use, at least in a limited immigration context. In May 1992, the INS limited the work authorization of certain classes of aliens to certain states. In hopes of spreading Haitian refugees and asylum seekers around the country, INS granted them documents limiting their authorization to work to specific states. [FN12] It was hoped by some that the attempt to spread "them" around would keep down any political outcry that the influx of Haitians might provoke. Since Haitians at the time were not a particularly politically popular group, there was no outcry. Few saw any potential dangers, and the limitations did help to convince the government to let the Haitians into the country. But what happens when, for example, unemployment is too high in California, it's an election year, and those electoral votes are crucial? A little limitation on the issuance of new authorizations to work in California couldn't hurt.

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.

There is certainly no shortage of countries and governments around the world where lists of various sorts have been used by a particular political entity to punish or otherwise move against its opponents. Computerized lists make that task much easier for such governments. A good illustration of this fear is the following news release, reporting on a new practice in 1986 in Uganda:

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."

Privacy Concerns

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 belief that a national identity card or national registry will be used for law enforcement purposes. For example, there is little doubt that if such a national system were in place today and could prove useful in catching the Oklahoma City bombers [or the 9/11 attackers], it would be used in that way. The temptation to utilize it to check work histories or to conduct credit checks in conjunction with such law enforcement efforts seems well-nigh irresistible. Whether these types of uses are desirable is beside the point. What is important is to consider the implications when making the policy decision as to whether such uses are going to be allowed.

Perhaps all this boils down to people just wanting to be left alone, to the idea that what we do is no one's business but our own and we don't want our ability to keep our own business to ourselves compromised. At a minimum, if the Jordan Commission proposal is implemented, every person who works will be traceable, at least more so than he or she currently is. It will be harder for one to be able to just "get lost." Undoubtedly, after the Oklahoma City tragedy, some will view this as a plus. Many instead prefer the sentiments expressed over a decade ago by columnist William Safire:

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]

Conclusion

What does all this mean? Where does it lead? No one is quite sure, but at a minimum we should realize that what is under consideration is something fundamental. If carried out to its full extent, the Jordan Commission's proposal has the potential to alter the relationship between the federal government and the people of the United States. It will give tremendous power to the federal government in an era when many think that the government already has too much power. Again, the desirability of this increased power has both its supporters and detractors. These policy issues need to be carefully considered, however, before we take that big step.

Editors' note:

The Clinton administration is moving ahead with limited pilot tests of additional employment verification methods, including some sort of registry and cross-linking of INS and SSA databases, in the states with the largest numbers of undocumented aliens.

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 Washington, D.C. with the federal government. He served as Acting Special Counsel for Immigration Related Unfair Employment Practices from 1989 to 1992. The views expressed in this paper are his own and do not purport to represent the views of any federal agency.

[FN1]. U.S. Commission on Immigration Reform, "U.S. Immigration Policy: Restoring Credibility, A Report to Congress," 1994 Executive Summary, at 12 (Sept. 1994) [hereinafter Commission Report]. See 71 Interpreter Releases 1345 (Oct. 7, 1994); 1023 (Aug. 8, 1994). For recent congressional hearings discussing the worker registry proposal, see 72 Interpreter Releases 522 (Apr. 17, 1995); 491 (Apr. 10, 1995).

[FN2]. Commission Report, Executive Summary at 12.

[FN3]. National Law Journal, Apr. 10, 1995, at A21.

[FN4]. See 71 Interpreter Releases 1345 (Oct. 7, 1994).

[FN5]. For more on the TVS, see 72 Interpreter Releases 524 (Apr. 17, 1995); 71 Interpreter Releases 791 (June 13, 1994); 69 Interpreter Releases 702 (June 8, 1992); 515 (Apr. 27, 1992).

[FN6]. 21 Immigration Review 5 (Spring 1995).

[FN7]. 9 Immigration Policy & Law 5 (May 3, 1990).

[FN8]. National Law Journal, Apr. 10, 1995, at A21.

[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 instance, according to a Department of Justice press release, the Office of Special Counsel for Immigration Related Unfair Employment Practices settled a charge against an employer where the company "insisted on seeing a document issued by the INS...in order to satisfy the employer sanctions provision of...IRCA." The alien "complied but still was not hired because the company then tried to doublecheck the validity of the document with the INS which, in turn, gave the employer erroneous information..." Department of Justice press release no. 94-446, "Justice Department Settles Discrimination Charge Against Northwest Fishing Company," Aug. 8, 1994.

[FN11]. National Law Journal, Apr. 10, 1995, at A21.

[FN12]. A May 1992 INS cable, reprinted in 69 Interpreter Releases 709 (June 8, 1992), stated: "The terms and conditions block on the face side of the EAD [employment authorization document] shall clearly restrict the employment to a geographic area (state in the United States)."

[FN13]. XINHUA Overseas New Service, Dec. 3, 1986.

[FN14]. It was discovered that there were in fact no embarrassing film rentals by Judge Bork.

[FN15]. New York Times, Aug. 28, 1993, at 7.

[FN16]. New York Times, Sept. 9, 1982, at A27.

[FN17]. For more on S. 269, see 72 Interpreter Releases 169 (Jan. 30, 1995).