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Jim Harper

In my 2008 paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I wrote about where “internal enforcement” of immigration law leads: “to a national, cradle-to-grave, biometric tracking system.” More recently, I wrote “Internal Enforcement, E-Verify, and the Road to a National ID” in the Cato Journal. The “Gang of Eight” immigration proposal includes a large step on that path to national identification.

National ID provisions in the 2007 immigration bill were arguably its downfall. Scrapping the national ID provisions in the current bill would improve it, allowing our country to adopt more sensible immigration policies without suffering a costly attack on American citizens’ liberties.

Title III of the “Gang of Eight” bill is entitled “Interior Enforcement.” It begins by reiterating the current prohibition on hiring unauthorized aliens. (What seems to many a natural duty of employers was an invention that dates back only as far as 1986, when Congress passed the Immigration Reform and Control Act. Prior to that time, employers were free to hire workers based on the skills and willingness they presented, and not their documents. But since that time, Congress has treated the nation’s employers as deputy immigration agents.)

The bill details the circumstances under which employers may be both civilly and criminally liable under the law and provides for a “good faith defense” and “good faith compliance” that employers may hope to use as shelter. The bill restates (with modifications) the existing requirements for checking workers’ papers, saying that employers must “attest, under penalty of perjury” that they have “verified the identity and employment authorization status” of the people they employ, using prescribed documents or combination of documents. Cards that meet the requirements of the REAL ID Act are specifically cited as proof of identity and authorization to work.

In addition, the bill would create a new “identity authentication mechanism,” requiring employers to use that as well. It would take one of two forms. One is a “photo tool” that enables employers to match photos on covered identity documents to photos “maintained by a U.S. Citizenship and Immigration Services database.” If the photo tool is not available, employers must use a system the bill would instruct the Department of Homeland Security develop. The system would “provide a means of identity authentication in a manner that provides a high level of certainty as to the identity of such individual, using immigration and identifying information that may include review of identity documents or background screening verification techniques using publicly available information.”

The bill next turns to expanding the E-Verify system, requiring its use by various employers on various schedules. The federal government and federal contractors would have to use E-Verify as required already or within 90 days. A year after the DHS publishes implementing regulations, the Secretary of Homeland Security could require anyone touching “critical infrastructure” (defined here) to use E-Verify. She could require immigration law violators to use E-Verify anytime she likes.

Employers with more than 5,000 employers would have to use E-Verify within two years for all newly hired employees and employees with expiring temporary employment authorizations. Employers with more 500 or more employees would have an additional year, but the application of these requirements as to agricultural workers could take four years. Essentially all employers would have to use E-Verify within four years to check the employment status of new hires.

The bill elaborately details how it intends the E-Verify system to work, presaging thousands of pages of regulatory documents that employers will have to obey.

Knitting Together a National ID System

The American public detests the idea of a national ID, so no bill is going to straightforwardly create one. The authors of national ID systems continually deny the real import of what they are doing, and this bill is no exception.

Under the bill, section 274A(c)(8) of the revised immigration laws would say, “Nothing in this section may be construed to directly or indirectly authorize the issuance, use, or establishment of a national identification card.”

You can try, Congress. You can require government agencies to watch their language, and they will. But there is no honest denying that this is a national ID system.

Over years of work on this issue, I’ve recited the defining characteristics of a national ID in a way that is relatively simple but worth reviewing.

First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements.

Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying a card or using the system, this presses it into the national ID category.

The final “element” of a national ID is that it is used for identification. A national ID card or system shows that a physical person identified previously is the one presenting him- or herself on later occasions. (A Social Security Number is a national identifier, but it is not a national identifiction system because there is no biometric tie between the number and a person.)

So what do we have in the “photo tool” backed by a USCIS database of images, and in E-Verify’s mandated use for every new hire in the country?

Why does the bill set aside a quarter billion dollars for grants to states in order to get access to “driver’s license information as needed to confirm that a driver’s license … confirms the identity of the subject of the System check”?

Why does the bill exempt state shaing of driver’s license photos from the Driver’s Privacy Protection Act?

And why does the bill spend a cool $1 billion on “fraud-resistant, tamper-resistant, wear-resistant, and identity theft-resistant social security cards,” exempting that spending from Pay-Go and other spending limits?

The photo tool and E-Verify are a national system, uniform in their key elements (1). By using them to control access to employment, the government makes it practically required to be a part of this identity system (2). And there is no question that the photo tool and E-Verify are for identification (3).

Title III of the Gang of Eight immigration is the path to a national ID.

There are many reasons to avoid a national ID, including their propensity to increase surveillance, the transfer of power they produce by giving governments and corporations a tool for tracking and control, and the experience of history. National ID systems’ administrative efficiencies have been applied to the awful things governments can do right along with the good things.

The bill tries to provide protections against that. It says that no agency or other entity may “utilize any information, database, or other records assembled under this subsection for any purpose other than for employment verification or to ensure secure, appropriate and nondiscriminatory use of the System.” But is that protection?

If you’ve ever seen a Social Security card that says “NOT FOR IDENTIFICATION,” you must understand mission creep. The Social Security number was meant to be solely for use in administering retirment benefits, and now it is our national identifier. If the national ID system created by the “Gang of Eight” immigration bill is not put to uses beyond employment control illegally, Congress can authorize that mission creep at any time simply by saying, “Section 274A(d)(9) is repealed.”

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