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No.

612 March 5, 2008


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Electronic Employment Eligibility Verification


Franz Kafka’s Solution to Illegal Immigration
by Jim Harper

Executive Summary

In last summer’s debate over immigration work legally. Deemed ineligible by a database,
reform, Congress treated a national electronic millions each year would go pleading to the
employment eligibility verification (EEV) system Department of Homeland Security and the
as a matter of near consensus. Intended to Social Security Administration for the right to
strengthen internal enforcement of the immigra- work. By increasing the value of committing
tion laws, electronic EEV is an Internet-based identity fraud, EEV would cause that crime’s rates
employee vetting system that the federal govern- to rise.
ment would require every employer to use. Creating an accurate EEV system would re-
Broad immigration reform failed before Con- quire a national identification (ID) system, cost-
gress thoroughly considered national EEV, but the ing about $20 billion to create and hundreds of
lines of debate have been drawn. Advocates in millions more per year to operate. Even if it were
Congress will try to attach a nationwide worker reg- free, the country should reject a national ID sys-
istration system to any immigration bill Congress tem. It would cause law-abiding American citi-
considers, and the Bush administration recently zens to lose more of their privacy as government
announced steps to promote such a system. records about them grew and were converted to
A mandatory national EEV system would have untold new purposes. “Mission creep” all but
substantial costs yet still fail to prevent illegal guarantees that the federal government would
immigration. It would deny a sizable percentage use an EEV system to extend federal regulatory
of law-abiding American citizens the ability to control over Americans’ lives even further.

_____________________________________________________________________________________________________
Jim Harper is director of information policy studies at the Cato Institute and author of the book Identity Crisis:
How Identification Is Overused and Misunderstood.
Legislation administration announced a number of steps
requiring Introduction in mid-August 2007 to promote registration
and tracking of American workers.
national worker More than a decade ago, a Cato Institute About 10 years before Miller and Moore
registration and a study opened with an urgent alert: sounded the alarm in their Cato study, the
Immigration Reform and Control Act of 19863
national ID Republicans in the House and Senate introduced the concept of “internal enforce-
system could are moving quickly forward with Or- ment” into U.S. immigration law. IRCA condi-
advance with any wellian legislation that would create a tioned Americans’ ability to work on proving
national computerized registration sys- their legal presence and status in the country.
immigration- tem for all American workers. The new This requirement was supposed to suppress
related legislation federal computer worker registry, which illegal immigration by reducing the magnet of
moving through is intended to reduce illegal immigra- relatively high-paying work that brought such
tion, is the crucial first step toward the immigrants into the country.
Congress. implementation of a national identifica- But internal enforcement did not work.
tion card system for all 120 million With employment in the United States still
American workers.1 very attractive and legal opportunities for
immigration restricted, people continued to
In their paper, “A National ID System: Big come to the United States illegally.
Brother’s Solution to Illegal Immigration,” Policymakers conveniently chalked up the
John J. Miller from the Center for Equal failure of internal enforcement to weakness in
Opportunity and Stephen Moore of the Cato implementation rather than to theory or
Institute called this system “an ill-conceived design. They quickly set to strengthening inter-
idea that would grant the government vast nal enforcement rather than scrapping it. The
new police-state powers, require citizens to creation of an electronic employment eligibili-
surrender basic freedoms and privacy rights, ty system called “Basic Pilot” in 1996 was one
and fail to halt illegal immigration.” The lead- such measure. As Miller and Moore had point-
ers of virtually every libertarian, conservative, ed out, making it work would require a nation-
and civil liberties organization in America, al ID card and massive databases of informa-
they reported, had denounced the computer tion about all American workers. Nevertheless,
registry as “misguided and dangerous.”2 Basic Pilot went ahead, and it may soon move
Miller and Moore’s study evidently educat- further forward.
ed policymakers and helped stave off such a Along with its Orwellian features, today we
system. Nevertheless, a pilot program begun know that administering a system of electron-
then now threatens to resurrect the national ic EEV would conjure Franz Kafka as well. A
computerized registration system they warned sizable percentage of workers—foreign- and
of, with all the big-government ills that sur- native-born alike—would be denied the ability
round it. A dozen years later, it is time to to work legally by a faceless federal database
sound the alarm again. system. Deemed ineligible by the database, mil-
In last summer’s congressional debate on lions of American workers each year would
immigration reform, a worker registration and have to present themselves at the Department
national identification (national ID) system of Homeland Security and the Social Security
was treated almost as a matter of consensus Administration, clutching their identity papers
agreement. It remains a viable—even promi- and pleading for the right to work.
nent—policy option in the immigration area, Such a system would make working in the
and legislation requiring national worker reg- United States more difficult, of course, but it
istration and a national ID system could would not eliminate the United States’ attrac-
advance with any immigration-related legisla- tion to immigrants. Some potential illegal
tion moving through Congress. The Bush immigrants would change their plans, but

2
others would respond quite differently. Some Partisan control of Congress and the presi-
workers and employers would collude to avoid dency has reversed since Miller and Moore
this immigration enforcement system. Work attacked the Republican plan to register all
“under the table” would increase and, along American workers in 1995, but national-ID-
with it, other forms of illegality. based worker surveillance seems alive and well
The value of committing identity fraud under a Democratic Congress. More clear than
would rise, and more illegal immigrants would ever are the sound reasons why electronic
commit this crime or deepen the minor frauds employment eligibility verification (EEV) and
they are now involved in. Criminals and crimi- “internal enforcement” should be rejected.
nal rings would use the Social Security number
(SSN) data from stolen laptops and hacked
databases much more often in identity fraud Dysfunctional Immigration
as a robust black market for Americans’ per- Law Begets EEV
sonal information emerged.
The use of these data to fabricate mock The nation’s immigration policy is at a
identities would compound the problem for crossroads. According to Labor Department
victims in a diabolical way. Seeking to prove projections, the U.S. economy, which is
their right to simple employment, American already near full employment,4 will continue
Both employers
workers would have to appeal to bureaucrats to create 400,000 or more low-skilled jobs and the govern-
who assume they are identity thieves. annually in the service sector—tasks like food ment would have
Miller and Moore were correct: creating an preparation, cleaning, construction, landscap-
accurate federal EEV system would require a ing, and retail sales. Yet from 1996 to 2004, the to collect and
national ID system. Such a system would have number of adult Americans without a high store personal
extraordinary costs. About $20 billion would school education—the demographic that typi-
be the tally for implementing a national ID cally fills those jobs—fell by 4.6 million.5
information
system, some of that cost hidden in taxes, These demographic facts create very pow- about American
some of it paid directly by each national-ID- erful economic forces. Demand in the United workers that is
carrying worker. Operating the verification States for both low- and high-skilled workers
program would cost at least $300 million to is high, and workers in many nearby countries not necessary for
$400 million per year. badly need the work offered in the United employment.
The cost in lost privacy to all Americans States. The economic gradient is steep.
would be high. Both employers and the gov- Just as water follows the laws of gravity,
ernment would have to collect and store per- workers continually move to the United
sonal information about American workers States. Unlike water, however, which simple
that is not necessary for employment—only barriers can stop, people on both sides of the
for administration of employment laws and border dedicate their ingenuity to getting
regulations. Kept in digital form for long what they want and need. The self-interest of
periods, this personal information could be employers and workers is a powerful (and
readily converted to untold new purposes. almost always beneficial) force that is hard to
Even if this system were workable and cost- quell or conquer. Thus, migration into the
effective, we should not want it. “Mission United States has persisted over the last sev-
creep” all but guarantees that the federal gov- eral decades.
ernment would use a worker registration and Today, however, the political consensus
surveillance system to capture greater regula- holds that the country has too many immi-
tory control over Americans’ lives. Ultimately, grants and that something must be done
all kinds of transactions that are now person- about it.6 A part of that consensus is that inter-
al and private, or matters of state or local law, nal enforcement of immigration law should
would become subjects of federal government be strengthened, including by electronic em-
authority. ployment eligibility verification. EEV requires

3
employers to run background checks with the By the 1980s, the United States was seeing
government on new or existing employees to a strong flow of immigrants from Mexico and
see whether they are eligible to work under the Central America. This paralleled earlier flows
immigration laws. from Germany, Ireland, Italy, and elsewhere,
A full-fledged EEV system has many prac- but these immigrants could enter through
tical and technical problems, to say nothing uncontrolled parts of a land border without
of the question of whether it is appropriate documentation. In 1986 Congress determined
for a free country. But the human forces that that illegal immigration rates were too high,
a policy would channel or counteract are the but in passing the Immigration Reform and
most important influences on how the sup- Control Act,8 Congress failed to recognize
porting technical system must be designed. either the power of the economic forces under-
Those forces determine where the challenges lying such immigration or its benefits.
the system will come from and what the While legalizing the illegal aliens in the
human and monetary costs will be if it is to country, Congress declined to expand legal
work for its intended purpose. Immigration channels for immigration. Instead, it changed
law—today deeply at odds with Americans’ the long-standing natural rule that working in
interests—is the source of the problem and the United States depended simply on willing-
the starting point for analysis. ness and ability. Americans’ right to earn an
honest living by trading their labor would now
America’s Original Open Borders Close have to wait for proof of compliance with fed-
At the time of the founding and during the eral immigration laws.
early part of U.S. history, the country’s immi-
gration policy was one of open borders. Nat- “Internal Enforcement” and “Basic
uralization rules fluctuated, and the law Pilot”
authorized the president to expel dangerous IRCA made unlawful the knowing hire of
foreign nationals, but immigrants were wel- workers who are not eligible to work in the
come. United States under the immigration laws.9
Indeed, in 1864, because of a labor short- By requiring employers to check employees’
age caused by the Civil War, Congress passed documentation, the law conscripted employ-
legislation to encourage immigration. It ers into immigration law enforcement. All
allowed enforcement in U.S. courts of the employers today are required to verify
agreements immigrants had made in their employees’ work eligibility by collecting com-
home countries to repay their travel costs pleted I-9 forms and by checking employees’
from wages earned in America. The law also documentation.10
established a federal government office in The logic behind this idea was simple:
New York City to help immigrants reach their making it illegal to hire an illegal immigrant
Americans’ right interior U.S. destinations.7 could reduce the strength of this country’s
to earn an honest In 1875 Congress passed the first law to economic “magnet.” But the policy of “inter-
exclude people, aimed at convicts and prosti- nal enforcement” built on this simple logic
living by trading tutes. The practice of exclusion was promptly failed. Just as a magnet’s attraction passes
their labor would adapted to racial and ethnic prejudice by 1882’s through paper, the attraction of the United
now have to Chinese Exclusion Acts, and, in the 1920s, a States to immigrants surpasses this paper-
national-origin quota system greatly restricted work.
wait for proof immigration from countries outside northern The I-9 process and employer sanctions
of compliance and western Europe. National-origin quotas undoubtedly had some effect on illegal immi-
persisted until 1965 when the Immigration and gration and working, but not very much.
with federal Nationality Act Amendments initiated a seven- Between 1986 and 1996, illegal immigration
immigration category system for family reunification and rates appear to have remained steady.11 Docu-
laws. employment-based categories. ment fraud undermined the I-9 system, and

4
the law prompted some employers to discrim- Machine-Readable Document Pilot Program When a worker
inate wrongly against citizens and legal immi- in 2003 as well. does not contest
grants because of their Hispanic surnames, Basic Pilot—first renamed the “employment
poor English-language skills, or appearance. eligibility verification” program, or EEV, and his or her
Ten years later, with illegal immigration then renamed again, “E-Verify”—is the remain- tentative noncon-
continuing apace, the Illegal Immigration ing effort to verify work eligibility electronically.
Reform and Immigrant Responsibility Act of As of May 2007, about 9,000 of the 17,000
firmation within
199612 sought to “improve on” the failing pol- employers registered for the system were active the allotted time,
icy of internal enforcement. It required the users.14 Currently, about 52,000 of the coun- the employer is
Immigration and Naturalization Service to try’s 5.9 million employers have registered for
commence three pilot programs to test elec- it—about .88 percent.15 Congress extended the required to either
tronic verification of employees’ work eligibili- Basic Pilot program in January 200216 and immediately
ty. These were the Citizen Attestation Verifi- again in December 2003.17 It is currently set to terminate the
cation Pilot Program, the Machine-Readable expire in late 2008.
Document Pilot Program, and the Basic Pilot worker or notify
Program. These three programs were intended How Electronic Employment Verification DHS that it
to test whether verification procedures could Works
make the existing Form I-9 process better by (1) After collecting I-9 forms, participating
continues to
reducing document fraud and false claims of employers enter the information supplied by employ the
U.S. citizenship, (2) discouraging discrimina- workers into a government website. The sys- worker—
tion against employees, (3) avoiding violations tem compares these data with information
of civil liberties and privacy, and (4) minimiz- held by the Social Security Administration confessing to a
ing the burden on employers to verify employ- and with DHS databases. If the name and SSN law violation.
ees’ work eligibility.13 pairs match to citizen data at the SSA, a work-
The Citizen Attestation Verification Pilot er is approved. The system compares informa-
Program allowed workers to attest to their citi- tion from noncitizens with DHS data to deter-
zenship status. The status of new hires attest- mine whether the employee is eligible to work.
ing to being work-authorized noncitizens was E-Verify electronically notifies employers
electronically checked against information in whether their employees’ work authorization
INS databases. Unsurprisingly, ineligible work- is confirmed. Submissions that the automat-
ers simply attested to being citizens. Employers ed check cannot confirm are referred to U.S.
did not ferret out this kind of fraud. Many did Citizenship and Immigration Service staff in
discriminate against work-authorized nonciti- the Department of Homeland Security, who
zens, however, likely because of the paperwork take further steps to verify eligibility or who
and liability risks such workers presented. The find the worker ineligible.
Department of Homeland Security terminated When E-Verify cannot confirm a worker’s
the Citizen Attestation Verification Pilot eligibility, it issues the employer a “tentative
Program in 2003. nonconfirmation.” The employer must noti-
DHS initiated the Machine-Readable Doc- fy the affected worker of the finding, and the
ument Pilot Program in Iowa because that worker has the right to contest his or her ten-
state issued driver’s licenses and ID cards car- tative nonconfirmation within eight working
rying the information required for the I-9 in days by contacting the SSA or DHS.
machine-readable form. Nevertheless, the pro- When a worker does not contest his or her
gram had technical difficulties in reading the tentative nonconfirmation within the allotted
driver’s licenses and IDs, and it was under- time, the E-Verify program issues a final non-
mined by the state’s transition away from confirmation for the worker. The employer is re-
using SSNs on driver’s licenses, which was quired to either immediately terminate the
done in the interest of protecting Iowans’ pri- worker or notify DHS that it continues to em-
vacy and data security. DHS terminated the ploy the worker—confessing to a law violation.

5
The Administration Pushes EEV states have declined to implement. Debate on
The administration recently began to ex- the immigration bill collapsed when the
pand the federal government’s use of E-Verify Senate appeared willing to strip REAL ID
and instituted measures to increase private from the bill24 and an amendment calling for
employers’ verification of workers’ immigration $300 million in spending on REAL ID failed.25
status. On August 10, 2007, Homeland Security Seeking to revive this moribund national ID
secretary Michael Chertoff and Commerce sec- law, however, the administration may try to do
retary Carlos Gutierrez announced a number of by regulation what Congress would not do in
steps to tighten and expand employment eligi- legislation.
bility verification.18 Among other things, they Along with promoting EEV and worker
proclaimed the commencement of a rulemak- registration by any means, the administration
ing to require all federal contractors and vendors has worked to wear down resistance in various
to use E-Verify. Full compliance would expand ways. Administration officials have lobbied
participation in the program by some 200,000 state officials to go along with the national ID
companies, a more than 20-fold increase to law.26 And in late September 2007, the U.S.
about 3.5 percent of all U.S. employers. Numer- government sued the state of Illinois, seeking
ous bills have been introduced in Congress to to nullify an impediment that state had placed
Creating a nation- promote EEV in various ways,19 and the admin- in the way of the administration’s EEV plans.27
wide system for istration will attempt to convince states to do In an entry on the DHS’s new “Leadership
checking identity the same thing.20 Journal” blog, Secretary Chertoff announced
Secretaries Chertoff and Gutierrez also the lawsuit, asking: “Could it be that the
and eligibility is announced DHS’s issuance of a “no-match” Illinois state legislature wants to prevent busi-
much more easily regulation increasing employers’ liability if nesses from using the best available tools to
their workers’ names and SSNs do not corre- determine whether new employees are illegal
said than done. spond to SSA records.21 Plans to “update” the aliens? I certainly hope not, but that’s precise-
civil fines for hiring illegal immigrants would ly what a new state law is poised to do.”28
raise penalties by 25 percent and expand crim- In fact, the Illinois Right to Privacy in the
inal investigations of the country’s employers. Workplace Act bars Illinois employers from
Secretaries Chertoff and Gutierrez further enrolling in E-Verify or any similar system
declared that the administration would seek until the SSA and DHS can make final deter-
to expand the data sources E-Verify can check, minations on 99 percent of their tentative
including visa and passport information. They nonconfirmation notices within three days.
will seek access to state motor vehicle depart- In other words, if the system will prevent
ment records and photographs to “lay the Illinois workers from working, the state wants
groundwork for further expansion” of the nothing to do with it.
electronic employment eligibility verification Difficulty of administration is one of sev-
system.22 eral formidable problems with trying to
Finally, they announced that the adminis- build an EEV system for federal immigration
tration would publish a regulation to reduce law enforcement. Creating a nationwide sys-
the number of documents that employers tem for checking identity and eligibility is
could accept for I-9 forms or E-Verify. The reg- much more easily said than done.
ulation could reduce the number all the way
down to a single, nationally uniform ID.
The major immigration reform bill debat- Franz Kafka’s Solution to
ed in Congress last summer would have Illegal Immigration
required new hires to have a REAL ID Act–
compliant card for employment eligibility A nationwide EEV system would send a
purposes within three years.23 REAL ID is the substantial number of workers—native-born
troubled 2005 national ID law that many and legal immigrant alike—into labyrinthine

6
bureaucratic processes, preventing them from data errors would carry with it formidable
working until the federal government deemed problems.
their papers to be in order. It would be more Consider this hypothetical scenario that
like something out of a Franz Kafka novel illustrates the trouble an ordinary worker
than a sound U.S. federal policy. EEV would might have with the EEV program: Peggy
delay or deny the employment of American Smith is a single mother of two, born and
workers in numerous ways. raised in the Midwest town where a new Big
Store recently opened. On Tuesday afternoon,
Screening Workers Screens Out Workers retail chain the Big Store calls Peggy to tell her
Think of electronic employment verifica- it has accepted her application to work as a
tion as a screen through which all workers sales clerk trainee.
would have to pass before they could earn a The new job is a coup for Peggy because she
living. The problem is to get eligible workers has struggled diligently to get her high school
through the screen quickly and to keep ineli- equivalency degree while making ends meet
gible workers from passing through. It is since her husband was killed in a car crash. She
hard to do both at the same time. The feder- will start work the following Monday with a
al government currently has only fragments two-week (paid!) training course that is given
of the infrastructure for accomplishing this at the store once a quarter.
goal, and the processes for doing so are rife On Thursday afternoon, she comes in to
with flaws. the human resources office, her two middle-
For example, simple errors in transcription school-age children in tow, with the documen-
and data entry by employees and employers tation necessary for her Form I-9. Human
will create a baseline wrongful tentative non- resources enters the data into the EEV system
confirmation rate. According to a recent sur- just before the close of business Thursday, A nationwide
vey of employers participating in Basic Pilot, finding that Peggy is a tentative nonconfirma-
52 percent had received at least one tentative tion. Human resources calls her to tell her EEV system
nonconfirmation for a new employee caused about the problem Friday morning, but she would send a
by data entry mistakes.29 cannot make it back to the store to collect the substantial
Then we must consider the error rate in written instructions on how to appeal her
federal government databases. In December nonconfirmation before the weekend. number of
2006, the SSA’s Office of the Inspector On Monday, arriving early for training, workers—
General estimated that the agency’s “Numi- Peggy is presented with instructions for appeal-
dent” file—the data against which Basic Pilot ing her nonconfirmation. The instructions tell
native-born and
checks worker information—has an error rate her to visit a Social Security Administration legal immigrant
of 4.1 percent. Every error resulted in Basic office that is 30 minutes away. The SSA office is alike—into
Pilot’s providing incorrect results.30 At that open Monday through Friday from 8:30 a.m. to
rate, 1 in every 25 new hires would receive a 5:00 p.m. Her usual shift and the training ses- labyrinthine
tentative nonconfirmation. At 55 million new sions are from 8:00 a.m. to 4:30 p.m., and she bureaucratic
hires each year,31 this rate produces about must pick up her kids from their after-school
11,000 tentative nonconfirmations per work- activities most days of the week.
processes,
day in the United States—a little more than 25 The EEV program’s requirements do not preventing them
people per congressional district, each day of permit employers to delay training or an from working
the working week, all year long. actual start date based upon a tentative non-
confirmation.32 Even if Big Store could delay until the federal
Knocking Rungs off the Ladder her start date, Peggy does not want to forgo a government
No illusions should be harbored about the quarter’s work by missing the training that deemed their
impediments to working that this system each new clerk trainee gets. Hoping that the
would create if expanded to a national scale. problem will go away, Peggy attends the Big papers to be
Even the “simple” process of clearing up basic Store training sessions each day. Because she in order.

7
The experience has not appeared at a government office to State Department offices. The bill for the
of American contest her nonconfirmation within eight increased demand for passports has been
days, the EEV system issues a final noncon- estimated at $1 billion for just three years.35
workers when firmation to the Big Store, and Peggy is fired. The passport issuance process is a loose
they sought parallel to the probable system for contesting
Welcome to the Jungle tentative nonconfirmations. Although the
permission to Even if Peggy were somehow confident number of tentative nonconfirmations may
work would be enough with her employment situation to not be as high, the EEV system would be
like their trips to get time away from training, and even if this expected to handle about a million transac-
recent recipient of her GED were familiar tions each week, with more than 2 million of
the nation’s enough with the procedure for contesting a those getting further review as tentative non-
departments of tentative nonconfirmation (while juggling confirmations each year.
motor vehicles, childcare), the unwelcoming and inefficient It gets worse. For a significant number of
processes she would encounter at the federal American workers, challenging tentative non-
post offices, and government’s offices should not be lightly confirmations would not be just a matter of
dentists—long dismissed. Disputes of tentative nonconfir- presenting their documents and cleaning up
mations would not happen in lushly carpet- the data in government systems. Counterat-
lines, unfriendly ed offices with marble columns, hot coffee, tacks on the system would complicate things.
service, and and friendly, attentive staff. The experience Many law-abiding American citizens would
painful of American workers when they sought per- enter SSA and DHS offices as criminal sus-
mission to work would be much more like pects and potential candidates for deportation.
procedures. their trips to the nation’s departments of
motor vehicles, post offices, and dentists—
long lines, unfriendly service, and painful Counterattacks and
procedures. Complications
Some evidence indicates what American
workers would experience when they went to Immigrants and employers dedicate their
clear up their tentative nonconfirmations. At ingenuity to getting what they want and
the beginning of 2007, a new travel restriction need. Although a national EEV system would
was imposed on all persons traveling by air reduce the growth in illegal immigration by
between the United States and Western Hemi- some measure, it would also prompt illegal
sphere countries. Americans visiting these immigrants and some employers to under-
nearby neighbors are now required to present take a variety of countermeasures.
a passport to reenter the United States, for- For example, more people would work
merly not required if other proof of a right to “under the table.” Workers and employers
reenter was available. This requirement was an would collude—even more often than they do
opening step in the implementation of a pro- now36—to avoid the already substantial regula-
gram called the Western Hemisphere Travel tory hassles and costs of working on the
Initiative, which—for little security benefit— books. With the increased liability for employ-
will eventually require all Americans visiting ers who did comply with the Form I-9 process
local neighboring countries to carry a pass- (the updated penalties noted earlier), follow-
port.33 ing the letter of the law would be riskier, and
The new rule drove a crush of Americans violating the law by going underground
to passport offices seeking travel documents would be relatively more attractive.
and caused delays in processing of up to a Avoidance of EEV would be one result of
month and a half, even though the State strengthened internal enforcement. But a
Department had augmented its staff.34 variety of counterattacks on the EEV system
Travelers across the country had their plans would be part of the response as well. They
thrown into doubt, and they angrily besieged would create extraordinary new costs and

8
complexities that would burden U.S. workers Illegal immigrants would counterattack
while weakening EEV’s deterrence to illegal in response to the tracking of name-SSN
employment and immigration. pairs by using original name-SSN pairs with
each new hire. EEV would cause illegal aliens
Counterattack, Response, and Counter- to seek out name-SSN pairs that have not
Counterattack been used recently in employment. It would
One counterattack on the EEV system that create a bigger criminal market for American
illegal immigrants would adopt is a mere shift citizens’ personal information.
in strategy. Today, many submit false docu- Since 2005, the Privacy Rights Clearing-
mentation of plausible names and SSNs for house has been collecting information about
the Form I-9 process. This technique would data breaches that could expose individuals to
not pass EEV, of course: the name and SSN identity theft.37 Not all of the breaches it
must match in the SSA’s records. includes in its study concern both name and
In response, illegal immigrants would SSN—some have financial account numbers,
adjust their frauds so that they use name and driver’s license numbers, and other key identi-
SSN pairs that match. It is slightly more dif- fiers—but by late 2007, more than 200 million
ficult to do but easily worthwhile to procure records had been breached.
“legal” work. Currently, data breaches rarely result in
Today, identity
To respond to this attack, the EEV system identity fraud. A June 2007 Government fraud creates
would monitor the use of name and SSN Accountability Office report found evidence financial
pairs. When a name and SSN were used too of identity fraud resulting from relatively few
often in succession, or in different parts of breaches.38 Today, victims’ family members difficulties for
the country, the system would “flag” the and friends, household employees, and finan- innocent victims
name and SSN pair. Its users would be sus- cial services personnel with access to sensitive
pected of fraud, and they would be tentative- personal information are often the perpetra-
when they find
ly nonconfirmed. tors of identity fraud. By creating new demand that their finan-
However, this response would have costs. for name and SSN pairs, EEV would increase cial reputations
One, of course, is that it requires a federal data- the value of breached identity data and the
base that records every new hire in the coun- rate of identity fraud. The casual criminals have been sullied.
try—yet another of many incremental increases who now produce fake IDs for illegal immi- EEV would also
in the tracking of law-abiding Americans. grants would organize information networks make them
None of them are terribly objectionable by to meet the demand for “fresh” names and
themselves, but the totality is quite concerning. SSNs. unemployable.
A more immediate cost is that law-abiding These networks might steal legitimate
citizens would regularly stand accused of companies’ logins and human resources
identity fraud. The SSA and DHS would not data, enrolling shell companies in EEV to
know which user of a name-SSN pair was the ping the database for usable sets of identi-
genuine person and which was using a false fiers. Using the photo-screening tool (dis-
identity. EEV would tentatively nonconfirm cussed below), they might collect thousands
all users of that name-SSN pair. The “true” of photos from which each illegal immigrant
individuals attached to fraudulently used could select the citizen he or she most resem-
identities would learn of identity fraud in bles to impersonate with forged documents.
their names when they were refused work by Yet another attack on the EEV system
EEV and plunged into a bureaucratic morass. would be to corrupt the federal employees
Today, identity fraud creates financial dif- who handle tentative nonconfirmations. As
ficulties for innocent victims when they find so often happens in departments of motor
that their financial reputations have been vehicles (DMVs) across the country,39 crimi-
sullied. EEV would also make them unem- nals would find federal workers willing to use
ployable. their access—or fellow workers’ logins—to

9
“confirm” people operating under false iden- connected or not connected to the Internet,
tities. Doing so may well exclude from work because of remoteness, cost, or lack of busi-
the people whose identities are being used. ness necessity. The compliance and accuracy
Consider also how employers would pro- rates experienced in an expanded program
tect themselves. With illegal immigrants would be lower than what exists now, and dis-
today coming predominantly from Spanish- crimination rates would be higher.
speaking countries south of the U.S. border, Known or unknown today, the infirmities
identity fraud and corruption attacks on the in EEV and the counterattacks on a full-scale
EEV system would focus largely on Hispanic system would weaken it as a tool for reducing
surnames and given names. Recognizing that illegal immigration. They would promote
Hispanic employees—even native-born citi- wrongful discrimination. Moreover, they
zens—are more often caught up in identity would plunge a significant number of native-
fraud and tentative nonconfirmation hassles, born American citizens into Kafkaesque feder-
employers would select against Hispanics in al bureaucratic procedures, denying them
their hiring decisions. New hires from other work and money to feed their families until a
ethnic groups would be less likely to bring federal government database says they are
employers such trouble—to say nothing of allowed to do so.
the updated penalties previously discussed.
The wrongful discrimination that the Basic
Pilot program was supposed to suppress EEV, National ID, and
would increase under EEV because of coun- Worker Surveillance
terattacks on the system.
Shockingly, the current E-Verify program People angered by illegal immigration are
has no process for appealing final nonconfir- undoubtedly frustrated that internal enforce-
mations. The DHS Web page with informa- ment works so poorly and that our systems
tion “for employees” provides no advice to provide so little security against people enter-
workers who believe they have been wrongly ing the country illegally. This is simply because
refused the right to work by DHS.40 A nation- big, uniform identity systems do not work
wide EEV system would wrongly give thou- well. As Phillip J. Windley, the former chief
sands of eligible American workers final non- information officer of Utah, observes in his
confirmations each year, with no apparent book Digital Identity:
appeal process, blatantly depriving them of
due process and, of course, their livelihoods. Visions that a centralized approach
Not all the ills that EEV would cause will promote security, cost savings, or
American citizens are easy to predict. Along management simplicity are a mirage.
with those discussed here, others would Centralized digital identity systems do
appear in any full-scale implementation. The not scale. Identity relationships are
consequences of scaling up a small program inherently web-like in structure, while
like Basic Pilot/E-Verify should not be under- centralized technologies like directo-
estimated. It has many flaws at its current size, ries are hierarchical.41
Shockingly, but taking the program national would be a
the current change in kind, not in degree. It would create In other words, identity works well in one-
new and different problems. on-one transactions, in groups, and in volun-
E-Verify program The employers in Basic Pilot/E-Verify now tary organizations. People and businesses nat-
has no process are relatively well equipped and motivated urally collect the identifiers and other infor-
compared to the variety of employers that an mation they need for meetings, contracts,
for appealing expanded EEV system would encounter. Most dates, employment, friendship, and so on. But
final nonconfir- small businesses have no personnel dedicated people do not have a single identity that can be
mations. to compliance. Many businesspeople are rarely captured and applied to all their relation-

10
ships.42 As Windley points out, relationships one each for identity and eligibility, such as a A successful EEV
define the many different identities people driver’s license and Social Security card. The system—indeed,
have.43 Identities do not define relationships— employer must attest, under penalty of per-
at least not in a modern, free country. jury, that it has examined the documents and successful
Bringing Americans into a uniform govern- found they appear to be genuine and that the internal enforce-
ment identity system—for controlling illegal employee appears eligible to work in the
immigration or any other purpose—would United States.
ment of federal
make people’s relationship with government The conversion of every small businessper- immigration
one of the foremost in their lives. It would be son and human resources director into an law—requires an
an attempt to force a relationship on them that immigration agent surely hides the cost of the
many do not want. But a successful EEV sys- enforcement regime, but it does not necessari- overweening,
tem—indeed, successful internal enforcement ly work well to combat illegal employment. unworkable, and
of federal immigration law—requires this kind For example, employers often fail to accurate- unacceptable
of overweening, unworkable, and unacceptable ly identify their workers, hiring unauthorized
identity system. workers despite faithfully carrying out their identity system.
Several bills introduced in recent Congresses duties under the law.
have proposed establishing federal EEV systems The opening of the employment relation-
but have denied creating a national ID card, say- ship is not like ongoing personal relationships.
ing things like, “Nothing in this Act shall be Particularly in low-skill jobs, the new employee
construed to authorize, directly or indirectly, proffers his or her identity for the first time as
the issuance or use of national identification the relationship begins. The employer has little
cards or the establishment of a national identi- reason, and takes little time, to examine the
fication card.” Establishing a national EEV sys- applicant’s identity bona fides.
tem without a national ID card is nearly impos- At this early point in the relationship,
sible, and the national-ID denials in these bills however, the law requires the employer to
have been false.44 All proposals and plans to examine and report on the new employee’s
improve the Form I-9 process—whether or not identity information. It is not a natural, per-
by going electronic—show that internal enforce- sonal interaction of the kind that works so
ment of federal immigration law requires a well in families. Employers identify their new
national ID. employees using ID cards.

I-9s and Identity Identification by Card


In personal interactions, people use iden- The process of identifying someone by card
tification constantly. When they have met is important and valuable, allowing people to
before, people are very adept at recognizing be treated as “known,” to a degree, from the
each other again using their sight, hearing, first encounter. But the identification-by-card
and other senses. This facility enables people process is also fraught with weaknesses that
to pick up where they left off when they see can undermine the process when it does not
each other a second, third, and fourth time. benefit both parties. Figure 1 illustrates the
The success and familiarity people have with three steps by which a card transfers identity
in-person identification may give policymak- information from the ID subject (the card-
ers excessive confidence in identification’s holder) to the ID verifier (or relying party).
power in other contexts. First, the subject applies to a card issuer
Currently, U.S. employers must collect (such as a DMV) for a card, typically supply-
and examine identity and eligibility informa- ing nearly all the personal information the
tion from all employees at the time of hire. card will contain. Next, the card issuer creates
They can do so through a single document, a card, supplying information to any later
such as a passport or certificate of U.S. citi- verifier. Finally, the verifier compares the
zenship, or through two separate documents, card to the person presenting it. Having veri-

11
Figure 1
Identification by Card

Source: Jim Harper, Identity Crisis: How Identification Is Overused and Misunderstood (Washington: Cato Institute,
2006).

The process of fied that the card is about the subject, the ver- pare the photograph on the card to a copy of
ifier accepts the information on the card. the photograph appearing on the employer’s
identifying Each of these three steps is a point of computer screen via the EEV system. If the
someone by card weakness and an opportunity for false infor- photographs do not match, the employee is
is important and mation to creep in. In the first step, the sub- issued a tentative nonconfirmation.
ject may supply the card issuer with false This crosscheck does not solve the hard
valuable. But the information (including false documents), or problem—people entering the ID system
identification-by- the subject may corrupt employees within through fraud or corruption—but it does pro-
the card issuer, causing them to issue a gen- vide security against one type of forgery attack
card process is uine, but inaccurate, card. A fraudulently or on the EEV system. DHS desires to collect pass-
also fraught with corruptly acquired genuine card will almost port photos from the State Department and
weaknesses. certainly deceive any later employer. driver’s license photos from DMVs around the
At issue in the second step is the security of country to expand this program from DHS-
the card against forgery or tampering. Although issued documents to all Americans’ passports
many government-issued ID documents are and driver’s licenses. This expansion, of course,
quite resistant to forgery and tampering, the involves creating a national photo-ID database.
broadened use of these documents (including The photo verification tool may cause
for immigration control) has increased the value employers to spend a little more time consid-
of forging and altering them. Employers, who ering the appearance of the new hire, but just
would be acting against their interests to discov- as likely, employers will believe that comparing
er such things, cannot be expected to discover the images on the card and computer is all
forgery or tampering of any decent quality. they need to do. That procedure does nothing
A photo-screening tool pilot program to establish whether the person presenting the
recently initiated by DHS is intended to detect card is the person it was issued to. What mat-
certain forgeries.45 When a noncitizen new hire ters is that the picture on the card is a picture
presents a DHS-issued permanent resident of the person presenting it.
card or employment authorization document, This is the third step in the identification-
employers in this program are required to com- by-card process, comparing the identifiers on

12
a card to the subject. Here, as in the second encryption. Printing or embedding informa-
step, employers will not be terribly eager to dis- tion in a card using cryptographic techniques
cover deception, such as someone presenting can establish with a high degree of certainty
the card of a person similar in appearance. A that the information was placed there by a
number of factors explain why the verifier particular agency and that it has not been
check is weak in the employment context. altered since it was placed there. This tech-
People are better at recognizing faces of their nique can, however, conceal from the ID sub-
own race and familiar races than faces that jects themselves what is on the cards they
look different. Strong social pressures exist— must carry and display. The photo-screening
from the fear of rudeness to the appearance of tool pilot program is a very crude, noncryp-
racism—not to second-guess the picture on tographic version of this kind of security,
the card a person has presented. The third step showing that the photo on a card has not
in the identification-by-card process is anoth- been replaced or altered.
er weakness. The veracity of the information that makes
it onto a card may be the most challenging ele-
The Ideal Fix? Cradle-to-Grave Biometric ment to improve. After all, the information on
Tracking identity cards is a collection of biographical
Each of the steps can be shored up, of data—name, date of birth, address, height,
course, and some of them would be strength- weight, and such—that is not easily verifiable.
ened in small ways by elements of EEV. But Names change or hyphenate, for example, as
the things necessary to make a system like people marry, divorce, and remarry.
this really impervious to forgery and fraud The way to ensure that accurate data are
would convert it from an identity system into found on a card is to abandon the current
a cradle-to-grave biometric tracking system. practice of allowing applicants for identity
Almost no way exists to do national EEV that cards to submit information about them-
is not a step down that road. selves. Rather, identity information and
Let us take the identification-by-card records of important life events could be cat-
process and assess what is necessary to make aloged from birth (or a person’s first entry
it hold up against the frauds, forgeries, and into the country) using powerful machine-
other weaknesses that undermine EEV: readable biometrics, all the way up to DNA, as
Verification of identifiers, the verifier “index card” identifiers. The photo-screening
check that ties the card to the bearer, can be tool is a step in this direction: it begins to
strengthened and improved. Rather than make the dossier as important as the card.
relying on the fallible human perception Applicants for cards could submit some The things
used in verifying photo-ID cards, an “im- of the information, but the core identity necessary to
proved” EEV system would use modern bio- information on each card would have to be
metric measuring of each American, such as tied to a central biometric identity reposito-
make a system
by fingerprint readers or iris scanners. Were ry—probably run by the government. Reliable like this
every American biometrically registered, the biographical information would have to be impervious to
biometric information embedded in their collected and stored by this repository. This
cards—retrieved from the card, retrieved from system would deny potential fraudsters the forgery and fraud
the human, and compared by machine— ability to submit false information to ID would convert it
could provide much stronger assurance to issuers, and it would suppress their frauds. from an identity
verifiers that cards are about the people pre- This excursion into an “ideal” employment
senting them. eligibility system shows where internal enforce- system into a
The security of cards against forgery and ment of immigration law almost invariably cradle-to-grave
tampering (the concern raised in the second leads: to a national, cradle-to-grave, biometric
ID-by-card step) can be improved vastly with tracking system—a national ID and surveil-
biometric
a variety of techniques, especially by using lance system. IRCA could be administered tracking system.

13
Governments without these things, but the chances of that majority of people, however, employment eligi-
have strong being done are very, very slim. bility under IRCA is not such a program. Most
workers in the United States who are citizens
interests in A Narrow, Nonidentifying Alternative will be eligible to work under IRCA for their
tracking people, A credential such as eligibility for employ- entire lives. Maintaining data about them after
ment under IRCA can be proved without cre- a biometric work-eligibility card has issued
for both ating a nationwide biometric tracking scheme. would not serve any administrative purpose.
legitimate and In fact, templates already exist. But it is unlike- Nevertheless, the government would not
not-so-legitimate ly to see adoption. accept a tracking-free system for two reasons.
The Transportation Security Administra- First, a system like EEV “requires” identifica-
reasons. tion’s Registered Traveler program currently tion and tracking to shift the risk of error in
accepts privately issued documents like the the card-issuance process from the govern-
Clear card46 from Verified Identity Pass, Inc., to ment to the citizen. A wrongly issued work-
prove a person’s membership in RT. The Clear eligibility card that does not also publicly
system is designed so that it does not create identify the bearer could not be cancelled or
records of travelers’ use of the system, even as it recalled if it were issued because of mistake,
provides biometric proof of their membership fraud, or corruption. All cards would have to
in RT using iris and fingerprint scanning. be replaced if the government had failed to
A similar system could verify employment administer its system well.
eligibility without surveillance and tracking. Second, tracking preserves government
The government agency or other credential power. A work-eligibility and tracking system
provider would have to examine applicants’ such as EEV makes the individual’s employ-
proof of citizenship (and noncitizens’ proof ment eligibility subject to revision at a later
of eligibility) and, without making copies of these time, if the government wants to change the
documents or of the person’s biometrics, issue a rules or adapt the system to new purposes,
biometric card or token that indicates to ver- for example. A nonidentifying work-autho-
ifiers only work eligibility and any time limits rization card or token denies government the
on that eligibility. When a person was hired, power to change its policies without the
a biometric tie to records securely stored on expense and effort of reissuing all cards or
the card or token would indicate his or her tokens.
eligibility for employment. Governments are averse to accepting the
As simple as such a system would be, risk of error, and they rarely exhibit the disci-
strong government resistance makes it very pline needed to avoid tracking of people who
unlikely that it will see the light of day. The interact with their programs.48 Unless the fed-
TSA currently requires that Clear card users eral government can accept the risk of error
present government-issued ID at airports, for and is willing to commit to lasting employ-
example, even though the Clear system pre- ment eligibility rules, it will require any inter-
sents biometric proof of RT membership nal enforcement program to use databases
based on a government-issued ID that the and tracking rather than just issuing cards
Clear user previously presented. (Verified that prove eligibility to work and nothing
Identity Pass CEO Steven Brill has charitably more. It will push Americans toward a nation-
characterized the TSA’s defenses of this dou- al ID and worker surveillance system.
ble-ID rule as “plainly absurd.”)47 Some people claim that they would prefer
Governments have strong interests in track- a national ID and this kind of surveillance to
ing people, for both legitimate and not-so-legit- attack the scourge of illegal immigration. But
imate reasons. Many government programs the costs of such a system—in American citi-
accord rights and benefits based on biographi- zens’ dollars, in privacy, and in lost American
cal information that must be recorded, main- values—would be substantial, even as it failed
tained, and periodically checked. For the vast to curtail illegal immigration.

14
dates in the bill would exceed the thresholds
An EEV Tax, Privacy set by the Unfunded Mandates Reform Act of
Undone, and Mission Creep 1995.
The national ID system required to do
Unleashed EEV at all well would be even more expensive.
Were the national ID system necessary for The REAL ID Act—our moribund national
effective EEV put in place, employers could do ID law—is a first step toward the comprehen-
somewhat reliable verification of employment sive national ID system that would be needed
eligibility, but the system would impose many to do EEV successfully. In proposed regula-
costs on the country and society. The dollar tions for the REAL ID law, DHS estimated
costs of a nationwide EEV system would be $17 billion in costs to implement REAL ID.50
high. EEV would have far greater privacy con- About $11 billion of those implementa-
sequences than the current system—conse- tions costs would fall directly on state gov-
quences that would fall on American citizens, ernments. Because states already have func-
not on illegal immigrants. And, once in place, tioning DMVs, this increment is the low end
an EEV system would be used for everything of the spectrum. Were the SSA or some other
from health care to gun control. Expanded federal entity to create an identity infrastruc-
EEV would invert our federal system and ture from scratch, the costs would be tens of
The national ID
explode limited government. Final employ- billions more. system necessary
ment decisions would no longer be made by The public would bear the other $6 billion for effective EEV
employers and workers, but by a federal gov- of REAL ID implementation costs in navigat-
ernment bureaucracy—indeed, by a federal ing the new bureaucracy and red tape needed would impose
database system. just to get a driver’s license. Individuals would many costs on
have to dig up birth certificates or get copies
Costs in Taxpayer Dollars from public records offices (some of which
the country and
In December 2005, the Congressional may not exist any more, such as in New society.
Budget Office estimated the costs of the elec- Orleans). Native-born American citizens who
tronic employment verification system in HR may never have traveled overseas would need
4437, an immigration reform bill in the 109th to search for proof of “legal presence” in the
Congress.49 Those costs were substantial. country. Americans would stand in very long
Under the Basic Pilot expansion in that lines at DMV offices. A DHS analysis detailed
bill, CBO found that 50 million to 55 million the 10-year time-costs of REAL ID to citizens,
new hires would have to be verified each year. estimating 161.9 million hours preparing
A total of 145 million currently employed applications, 26.5 million hours obtaining
workers would have to have been screened birth certificates, 15.8 million hours obtaining
using the expanded system by 2012. CBO’s Social Security cards, and 64.7 million hours
estimate was conservative; it excluded agri- on DMV visits.51
cultural workers. The smallest movement in the direction of
Given the massiveness of the undertaking, a national ID has revealed the kinds of prob-
CBO estimated $100 million in short-run lems that would arise from attempting to herd
costs for upgrading software, hardware, data- Americans into the identity system needed for
bases, and other technology. To handle queries EEV and internal enforcement. Alabama is a
about tentative nonconfirmations, DHS and state that tried to get ahead of the REAL ID
the SSA would have had to spend approxi- Act’s mandates in 2006. Attempting simply to
mately another $100 million per year on new match up the names in SSA databases with
personnel. The federal government, states, motor vehicle bureau records, Alabama sent
localities, and private businesses would all letters to individuals whose records were mis-
have to spend more for screening their work- matched, asking them to correct the “erro-
ers. Accordingly, CBO found that the man- neous” information on their driver’s licenses.

15
Thousands of panicked Alabama residents further privacy costs and threats. The privacy
jammed Department of Public Safety offices and data security consequences arising from
thinking they would lose their licenses.52 Such the necessary national ID, for example, are
problems would multiply dramatically should immense, increasingly well understood, and
the national identity infrastructure needed for probably insurmountable.
EEV ever be created. The REAL ID Act requires states to main-
tain databases of foundational identity docu-
American Citizens’ Privacy ments, creating an incredibly attractive target
The American-citizen taxpayer would incur for criminal organizations, hackers, and other
not only pocketbook costs and increased wrongdoers. They would have more motiva-
bureaucracy but lost privacy as well. An elec- tion than ever to collect identity information
tronic system is not just a faster paper system. should a nationwide EEV system control
It has dramatically different effects on privacy access to employment.
and the security of personal data. The breach of a state’s entire database—or
When an employer collects a form like the the whole country’s—containing copies of birth
I-9 and puts it in a file, the information on certificates and various other documents and
the I-9 remains practically obscure. It is not information could topple the identity system
very easy to access, copy, or use. This protects we use in the United States today. This is the
privacy, and it protects against the digital risk posed by the recent colossal data breach in
data breaches that so regularly come to light. Britain, in which essential data about 25 mil-
When an organization enters I-9 informa- lion U.K. citizens were copied to discs, placed in
tion into a Web form and sends it to the SSA the post, and lost.53 The best data security is
and DHS, that information is very easy for achieved by avoiding the creation of large data-
those entities to access, copy, share, and use. bases of sensitive and valuable information in
It is likely combined with “meta-data”—infor- the first place. EEV would put Americans’ sen-
mation about when the data were collected, sitive personal information at risk.
from whom, and so on. The security of back-end systems is far from
The EEV process would give these agencies the only problem. Creation of a nationally uni-
access to a wealth of new data about every form identity system as required for EEV
American’s working situation. Because it uses would bring a major change in how American
the SSN, EEV data would easily be correlated society would use identity. It is not just anoth-
with tax records at the Internal Revenue Service, er in a series of small steps. The national ID
Unless a clear, education loan records in the Department of required by EEV would promote tracking of,
strong, and Education, health records at the Department of and data collection about, all citizens.
verifiable data Health and Human Services, and so on. Ameri- Economists know well that standards cre-
cans living with EEV should not expect that they ate efficiencies and economies of scale. When
destruction policy could get work if they were in arrears on any all the railroad tracks in the United States were
were in place, any debt to the U.S. government, for example. converted to the same gauge, for example, rail
Unless a clear, strong, and verifiable data became a more efficient method of trans-
EEV system, destruction policy were in place, any EEV sys- portation. The same train car could travel on
however benign tem, however benign in its inception, would be tracks anywhere in the country, so more goods
in its inception, a surveillance system that tracked all American and people traveled by rail. Uniform ID cards
workers. The system would add to the data would have the same influence on the uses of
would be a stores throughout the federal government that ID cards.
surveillance continually amass information about the lives, Most driver’s licenses today have machine-
system that tracks livelihoods, activities, and interests of every- readable components like magnetic stripes and
one—especially law-abiding citizens. bar codes. Their types, locations, and designs—
all American Beyond EEV’s direct costs, the identity sys- and the information they carry—differ from
workers. tem required to do EEV successfully entails state to state. For this reason, they are not used

16
very often. But if all identification cards and in adapting it to new uses. In the immigration Many things
licenses were the same, as under REAL ID, or if area alone, proposals have been made to regu- could be
a national EEV card were used, economies of late housing in the same way as employment.
scale would exist in producing card readers, In Hazelton, Pennsylvania, for example, the brought within
software, and databases to capture and use this demagogic mayor sought and passed a law in the purview of
information. Americans would inevitably be 2006 making it illegal for landlords to “har-
asked more and more often to produce an ID bor” illegal aliens.54 In another 10 years, the
federal authori-
card and to share the data from that card when failure of EEV to weaken the economic mag- ties if a national
they engaged in various governmental and net of the United States might convince feder- system for
commercial transactions. al lawmakers that they must take this same
Others would capitalize in turn on the step. tracking and
information harvested using national ID The right to necessities other than housing controlling
cards and collected in state databases. Massed could be conditioned on legal status. Given individuals were
personal information—publicly and privately the failure of employment restriction to deter
held—would be an irresistible attraction to illegal immigration, financial services could be in place.
DHS and many other governmental entities, denied to all those who cannot prove their law-
which would dip into deep wells of data about ful presence through an adapted EEV system.
American citizens for an endless variety of pur- Federal legislation proposed in the 110th
poses. Congress would regulate the documentation
Many people believe they have nothing to that non-U.S. persons may use to open finan-
hide and feel willing to have their employ- cial accounts in the name of terrorism and
ment tracked if it will stop illegal immigra- immigration control.55 Legislation has also
tion. Unfortunately, it will not. Moreover, been proposed to encourage public colleges
most people who make the nothing-to-hide and universities to verify the immigration sta-
claim balk when they are actually confronted tus of students.56
with stark choices about privacy. Enforcement of immigration law is just
People have things to hide. Maintaining a one of many uses EEV would be put to once
private life is normal and natural. Indeed, established. Many things could be brought
many people object on principle to compila- within the purview of federal authorities if a
tions of information about themselves, no national system for tracking and controlling
matter who is doing it and no matter what the individuals were in place.
purpose. This is consistent with life in a free Health care is an area that would be ripe for
country, where law-abiding citizens can pro- electronic tracking. Whether to enforce immi-
tect their privacy for any reason or no reason. gration law, implement a health insurance
Any electronic employment verification mandate, create a national health records
system will be a target for hackers, a data database, or carry out any other health policy
breach waiting to happen, a threat to the iden- vogue, the national tracking system created
tity system we rely on today, and a surveillance for EEV could be adapted to federal govern-
system for both corporate and government ment priorities in the health arena. A DHS
use. Even if many of these flaws in a national official recently suggested that a national ID
EEV system could be mitigated, it is not a sys- be required for purchasing cold medicine.57
tem that Americans should want. A successful An EEV system could take that policy a step
EEV system would see mission creep from its further and deny medicines and other pur-
first day. chases to Americans without proper docu-
mentation.
Mission Creep The federal government might apply a
If an EEV system reliably identified people national EEV system to gun control. When
and determined their legal status under feder- an EEV system exists, having purchasers of
al law, federal authorities would waste no time guns prove they are citizens or legally entitled

17
U.S. residents would not be asking too much. ing enormous negative effects on American
Counting individuals’ gun purchases would workers and employers. EEV would wrongly
be easy with this database system, and it screen out lawful American workers. Probable
could record the number of guns and quan- counterattacks on the EEV system mean that
tity of ammunition bought by any one per- it will plunge law-abiding American citizens
son. Indeed, statistical analysis could show into Kafkaesque bureaucracy, preventing
where an excess of weaponry was sold in any them from working until they can negotiate
one area. Authorities might use the system to their way through unwelcoming federal gov-
search for purchasers of too many guns, ernment offices. Unfathomably, today E-
believing they are feeding the black market or Verify has no appeals process. Any national
perhaps caching weapons in a homegrown EEV program would be an intrusive, expensive
terrorism plot. Never mind that the same incursion on the American workplace and the
analysis would turn up law-abiding gun col- rights of American workers.
lectors and avid sportsmen.
Speaking of terrorism, the biometric card
required for EEV would be readily adapted to Conclusion
the identity-based security programs that
A national EEV have grown up at airports since the Septem- Bad policies are like cancer. They metasta-
system would be ber 11, 2001, attacks. Experienced travelers, size and occupy other parts of the body politic.
an avenue along having had time in line to think about it, Our country’s immigration law has held an
know well that showing ID is very weak secu- unnatural cap on new American workers’ com-
which regulatory rity against committed threats—people will- ing to the United States for decades now, and
power over ing to kill themselves bombing an airliner are attempts to make a success of that bad policy
willing to identify themselves beforehand. have produced circumlocutions like “internal
American citizens But identification checks at airports make enforcement” and “electronic employment eli-
would flow to uninformed people feel safer, and having peo- gibility verification.” These are additional can-
the federal ple show a nationally uniform biometric card cerous nodes that threaten American workers
would augment that exercise in security the- with Kafkaesque bureaucracy, denied employ-
government. ater. It might also allow expansion of identity ment, a national ID system, and broad surveil-
checking to malls, subway stations, office lance.
buildings, and other publicly accessible infra- The “problem” most illegal immigrants
structure.58 present is their eagerness to enter our labor
A national EEV system would be an avenue markets, provide goods and services for
along which regulatory power over American Americans’ consumption, and grow the U.S.
citizens would flow to the federal government. economic pie. Millions of otherwise honest,
It would draw vastly more information about hard-working, and law-abiding people have
Americans’ lives into federal government data- come to the United States without documen-
bases, and it would expose their sensitive data tation. Many want very badly to follow the
to more security threats. The information-age same path our forefathers did, and they would
crime of identity fraud would blossom under be a credit to this country if we made it legal
EEV because the value of breaking the uni- for them to come. In a deep irony, Congress
form government identity system it requires may soon expand EEV, increasing government
would grow higher. Building the EEV system spending and bureaucracy so that our malad-
would cost billions and billions of taxpayer justed immigration law can continue to stifle
dollars, while saddling American workers and U.S. economic growth.
employers with regulatory burdens and crimi- Proponents of internal enforcement and
nal liability. electronic employment verification surely
As an administrative tool, an EEV system stand on a sound principle—the rule-of-law
would have to be nearly perfect to avoid hav- ideal that people should enter the country

18
legally. But current immigration law is a
greater threat to the rule of law than any of Notes
the people crossing the border to come here 1. John J. Miller and Stephen Moore, “A National
and work. Our immigration policies have fos- ID System: Big Brother’s Solution to Illegal Immi-
tered the illegality so common in the employ- gration,” Cato Institute Policy Analysis no. 237,
ment area. September 7, 1995, http://www.cato.org/pubs/pas
/pa237.html.
Heavier internal enforcement would not
reduce the illegality—it would promote it. 2. Ibid.
Faced with the alternative of living in poverty
and failing to remit wealth to their families, 3. Public Law 99-603, codified at U.S. Code 8 §
1324a et seq.
illegal immigrants would deepen the modest
identity frauds they are involved in today. 4. “Fed’s Poole Says U.S. Economy Near Full Em-
Their actions would draw American citizens, ployment, Trade Not Destroying Jobs,” Forbes.
unfortunately, into a federal bureaucratic com, September 6, 2007, http://www.forbes.com
/markets/feeds/afx/2007/09/06/afx4089152.html.
identity vortex.
For minimal gains in illegal immigration 5. Daniel T. Griswold, “Immigration Reform Must
control, national EEV would sacrifice more- Include a Temporary Worker Program,” Orange
important founding principles: the liberty County Register, March 7, 2007, http://www.freetr
ade.org/node/600.
and personal freedom of American citizens;
constitutionally mandated limits on federal 6. The consensus is mistaken. See Daniel Griswold,
power; low taxes, minimal regulation, and “A Boon Rather Than a Burden,” Politic.org,
competition; and privacy. August 27, 2007, http://www.freetrade.org/node/
741.
Instead of moving to electronic eligibility
verification, the policy of internal enforce- 7. Act to Encourage Immigration, 38th Cong., 1st
ment should be eliminated, root and branch. sess. (July 4, 1864), U.S. Statutes at Large 13 (1864):
The need for it can be dissipated, and legality 385–87.
fostered anew, by aligning immigration poli- 8. Public Law 99-603, codified at U.S. Code 8 §
cy with the economic interests of the Ameri- 1324a et seq.
can people. Legal immigration levels should
be increased. 9. Ibid., § 101(a)(1), codified at U.S. Code 8 §
1324a(a)(1).
Up to this point in our nation’s history,
employers and workers have decided who 10. Ibid., §101(a)(1)(B), 101(b), codified at U.S.
should work for whom. Even under the IRCA Code 8 § 1324a(a)(1)(B), 1324a(b).
regime as it stands now, employers select
11. Because it is clandestine, illegal immigration is
whom they will hire, perhaps accepting some difficult to measure, but the Center for Immigra-
potential liability if they hire someone who is tion Studies estimated in 1997 that about 420,000
“ineligible.” illegal aliens joined the long-term population each
Letting workers and employers get togeth- year during the previous 10-year period (offset by
deaths, emigration, and adjustment to legal status
er on their own terms makes eminent sense, that resulted in an increase of 275,000 annually).
just like people deciding for themselves what Steven A. Camarota, “5 Million Illegal Immigrants:
food they should eat and how to school their An Analysis of New INS Numbers,” Center for Im-
children. With nationwide electronic employ- migration Studies, Immigration Review 28 (Spring
1997), http://www.cis.org/articles/1997/IR28/5mi
ment verification, however, the United States llion.html.
would move to a regime where the last word
on employment decisions would not be with 12. Public Law 104-208, U.S. Statutes at Large 110
the worker and employer but with bureau- (1996): p. 309.
crats in the federal government. This result 13. See generally, Richard M. Stana, director,
would extend federal government power into Homeland Security and Justice Issues, U.S.
an area where it has no business being. Government Accountability Office, Testimony

19
before the Subcommittee on Social Security, Agencies Appropriations Act, 2008, HR 3093, 110th
Committee on Ways and Means, House of Rep- Cong., 1st sess. (requiring Basic Pilot for Depart-
resentatives, Employment Verification: Challenges Exist ment of Justice, Department of Commerce, and
in Implementing a Mandatory Electronic Verification other agency contractors).
System, GAO-07-924T, 110th Cong., 1st sess., June
7, 2007, http://www.gao.gov/new.items/d07924t. 20. A law requiring the use of E-Verify took effect in
pdf. Arizona January 1, 2008. Fair and Legal Employ-
ment Act, HB 2779, 48th Ariz. Legislature, 1st Reg.
14. Ibid. Session.

15. U.S. Citizenship and Immigration Services, De- 21. Department of Homeland Security, “Safe-
partment of Homeland Security, “Press Release: E- Harbor Procedures for Employers Who Receive a
Verify Program Surpasses 52,000 Employers,” No-Match Letter,” Federal Register 72 (August 15,
February 12, 2008, http://www.uscis.gov/files/ 2007): 45,611.
pressrelease/everify12022008.pdf.
22. See White House, “Fact Sheet: Improving
16. Basic Pilot Extension Act of 2001, Public Law Border Security and Immigration within Existing
107-128, U.S. Statutes at Large 115 (2002): p. 2407. Law,” August 10, 2007, http://www.whitehouse.
gov/news/releases/2007/08/20070810.html.
17. Basic Pilot Program Extension and Expansion
Act of 2003, Public Law 108-156, U.S. Statutes at 23. Secure Borders, Economic Opportunity and
Large 117 (2003): p. 1944. Immigration Reform Act of 2007, May 18, 2007,
bill draft at Title III, http://kennedy.senate.gov/
18. See White House, “Fact Sheet: Improving imo/media/doc/Senator%20Kennedy’s%20Immi
Border Security and Immigration within Existing gration%20Bill.pdf.
Law,” August 10, 2007, http://www.whitehouse.
gov/news/releases/2007/08/20070810.html. 24. See Nate Anderson, “Did REAL ID Help De-
rail the Immigration Bill?” Ars Technica, June 29,
19. See HR 2508, 110th Cong., 1st sess. (requiring all 2007, http://arstechnica.com/news.ars/post/200
federal contractors to use Basic Pilot); Border 70629-did-real-id-help-derail-immigration-bill.
Control and Contractor Accountability Act of 2007, html.
HR 3496, 110th Cong., 1st sess. (requiring all DHS
contractors to use Basic Pilot); Employment 25. Anne Broache, “Senate Rejects Extra $300
Eligibility Verification and Anti-Identity Theft Act, Million for REAL ID,” CNetNews.com, July 27,
HR 138, 110th Cong., 1st sess. (requiring employers 2007, http://www.news.com/Senate-rejects-extra-
to join Basic Pilot after receiving SSA “no-match” let- 300-million-for-Real-ID/2100-7348_3-6199
ter); Airport Security Enhancement Act of 2007, HR 220.html.
4177, 110th Cong., 1st sess. (requiring Basic Pilot/
EEV for airport employees); Department of Home- 26. See Anne Broache, “Is Real ID Plan on Its
land Security Appropriations Act, 2008, HR 2638, Deathbed?” CNet News Blog, November 2, 2007,
110th Cong., 1st sess. (requiring EEV for DHS and http://www.news.com/8301-10784_3-9809992-
for state programs receiving DHS grants); Agricul- 7.html.
ture, Rural Development, Food and Drug Admin-
istration, and Related Agencies Appropriations Act, 27. Illinois Public Law 095-0138, § 12(a), codified
2008, HR 3161, 110th Cong., 1st sess. (requiring at 820 Illinois Compiled Statutes 55/12.
Basic Pilot for recipients of agriculture subsidies);
Border Enforcement, Employment Verification, and 28. Michael Chertoff, “A Tool We Need,” Leadership
Illegal Immigration Control Act, HR 4065, 110th Journal blog, September 24, 2007, http://www.
Cong., 1st sess. (requiring EEV for government dhs.gov/journal/leadership/2007/09/tool-we-
workers and “critical” employers within 2 years); need.html.
Transportation, Housing and Urban Development,
and Related Agencies Appropriations Act, 2008, HR 29. Westat, “Interim Findings of the Web-Based
3074, 110th Cong., 1st sess. (requiring Basic Pilot for Basic Pilot Evaluation,” Report submitted to U.S.
Department of Housing and Urban Development Department of Homeland Security, Washington,
contractors); Departments of Labor, Health and DC, December 2006, p. III-15, http://www.uscis.
Human Services, and Education, and Related gov/files/nativedocuments/WestatInterimReport
Agencies Appropriations Act, 2008, HR 3043, 110th .pdf.
Cong., 1st sess. (requiring Basic Pilot for Depart-
ment of Labor, Department of Health and Human 30. Office of the Inspector General, Social Security
Services, and Department of Education contrac- Administration, “Accuracy of the Social Security
tors); Commerce, Justice, Science, and Related Administration’s Numident File,” Congressional

20
Response Report A-08-06-26100, December 2006, /?vgnextoid=d6f988e60a405110VgnVCM100000
http://www.socialsecurity.gov/oig/ADOBEPDF/a 4718190aRCRD&vgnextchannel=d6f988e60a40
udittxt/A-08-06-26100.htm. 5110VgnVCM1000004718190aRCRD.

31. See Congressional Budget Office, Cost Estimate: 41. Phillip J. Windley, Digital Identity (Sebastopol,
H.R. 4437, Border Protection, Antiterrorism, and CA: O’Reilly, 2005), p. 119.
Illegal Immigration Control Act of 2005, December
13, 2005, pp. 3–4 (citing Bureau of Labor Statistics 42. Jim Harper, Identity Crisis: How Identification Is
figures), http://www.cbo.gov/ftpdocs/69xx/doc69 Overused and Misunderstood (Washington: Cato
54/hr4437.pdf. Institute, 2006), p. 15. (“Your ‘identities’ . . . are
collections of information that other people and
32. U.S. Citizen and Immigration Services, “I Am institutions have about you, collections that they
an Employer . . . How Do I . . . Use E-Verify?” use to distinguish you from other people in their
September 2007, p. 2, http://www.uscis.gov/files minds or records.”)
/nativedocuments/E4_english.pdf.
43. Windley, Digital Identity, pp. 12–13.
33. See Department of State, Western Hemisphere
Travel Initiative Web page, http://travel.state.gov/ 44. See, for example, Illegal Immigration Enforce-
travel/cbpmc/cbpmc_2223.html. ment and Social Security Protection Act of 2007,
HR 98, 110th Cong., 1st sess.; Employment
34. Matthew Lee, “Passport Requests Flood State Eligibility Verification and Anti-Identity Theft Act,
Department,” Associated Press, March 16, 2007, HR 138, 110th Cong., 1st sess.; Border Security and
http://news.yahoo.com/s/ap_travel/20070316/a Immigration Reform Act of 2007, HR 2413, 110th
p_tr_ge/travel_brief_us_passports;_ylt=AuGCNy Cong., 1st sess.; Secure Borders FIRST (For
3Tw0Z6491HO86wucjMWM0F. Integrity, Reform, Safety, and Anti-Terrorism) Act
of 2007, HR 2954, 110th Cong., 1st sess.; STRIVE
35. “Increased Demand in Passports Predicted,” Act of 2007, HR 1645, 110th Cong., 1st sess.; and
Associated Press, August 17, 2007, http://www. Comprehensive Immigration Reform Act of 2007,
cbsnews.com/stories/2007/08/17/travel/main31 S 1348, 110th Cong., 1st sess.
79514.shtml.
45. U.S. Department of Homeland Security, U.S.
36. In mid-2006, former Treasury Department offi- Citizenship and Immigration Services, “News
cial Bruce Bartlett said that the underground econ- Release: USCIS Launches Photo Screening Tool
omy is about 10 percent of gross domestic product, for E-Verify Program,” September 25, 2007, http:
or $1.3 trillion. Bruce Bartlett, “The Illegal Immi- //www.uscis.gov/files/pressrelease/EVerifyReleas
grant Taxpayer,” Wall Street Journal, May 19, 2006, e25Sep07.pdf.
http://online.wsj.com/article/SB11480025749215
7398.html?mod=todays_us_opinion. 46. See http://www.flyclear.com.

37. See Privacy Rights Clearinghouse, “A Chronol- 47. Steven Brill, chairman and chief executive officer,
ogy of Data Breaches,” http://www.privacyrights. Clear/Verified Identity Pass, Inc., testimony before
org/ar/ChronDataBreaches.htm. the House Committee on Homeland Security,
Subcommittee on Transportation Security and
38. U.S. Government Accountability Office, Per- Infrastructure Protection, Hearing on “Managing
sonal Information: Data Breaches Are Frequent, but Risk and Increasing Efficiency: An Examination of
Evidence of Resulting Identity Theft Is Limited; the Implementation of the Registered Traveler Pro-
However, the Full Extent Is Unknown, GAO 07-737, gram,” July 31, 2007, http://homeland.house.gov/
Washington, DC, June 2007, http://www.gao. SiteDocuments/20070731145944-83679.pdf.
gov/new.items/d07737.pdf.
48. The city of San Francisco’s medical marijuana
39. See Center for Democracy and Technology, program is a rare example of a government
“Unlicensed Fraud: How Bribery and Lax Security administrative system that is designed not to be
at State Motor Vehicle Offices Nationwide Lead suitable for surveillance. See Harper, Identity Crisis,
to Identity Theft and Illegal Driver’s Licenses,” pp. 225–30.
January 2004, http://www.cdt.org/privacy/2004
0200dmv.pdf. 49. Congressional Budget Office, “Cost Estimate:
HR 4437,” http://www.cbo.gov/ftpdocs/69xx/
40. Department of Homeland Security, U.S. doc6954/hr4437.pdf.
Citizenship and Immigration Services, “For Em-
ployees,” http://www.uscis.gov/portal/site/uscis/ 50. Department of Homeland Security, “Minimum
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a Standards for Driver’s Licenses and Identification

21
Cards Acceptable by Federal Agencies for Official 55. S 2393, 110th Cong., 1st sess. (November 16,
Purposes; Proposed Rule,” Federal Register 72, no. 46 2007).
(March 9, 2007): 10,819, http://a257.g.akamai tech.
net/7/257/2422/01jan20071800/edocket.access.gpo 56. HR 4459, 110th Cong, 1st sess. (December 12,
.gov/2007/07-1009.htm. 2007).

51. Department of Homeland Security, “Regulatory 57. Anne Broache, “DHS: Real ID Could Help
Evaluation, Notice of Proposed Rulemaking, REAL Shut Down Meth Labs,” CNet NewsBlog, January
ID,” Code of Federal Regulations, title 6, part 37, RIN: 16, 2008, http://www.news.com/8301-10784_3-9
1601-AA37, Docket Number DHS-2006-0030 (Feb- 851813-7.html.
ruary 28, 2007), p. 3.
58. Alas, this expansion would not protect the
52. “Alabama Puts Brakes on License Notification,” country from terrorism. Assuming terrorists aim
Decatur Daily News, October7, 2005, http://legacy. to sap the economy and vitality of the United
decaturdaily.com/decaturdaily/news/051007/lice States, they could do very well by serially attacking
nse.shtml. non-ID-controlled targets, even with backpack
bombings. If the United States were induced to
53. Philip Webster, “25 Million Exposed to Risk of further “secure” infrastructure through ID checks,
ID Fraud,” Times (London), November 21, 2007, inconveniencing each of the 240 million licensed
http://www.timesonline.co.uk/tol/news/uk/arti drivers in the United States to show ID by just one
cle2910705.ece. minute per week would cost society over $4 billion
per year in lost time alone (assumed value: $20/
54. Hazelton, Pennsylvania, Ordinance 2006-18: hour)—a net present cost of $57 billion (assuming
Illegal Immigration Relief Act Ordinance § 5. 7 percent interest).

22
OTHER STUDIES IN THE POLICY ANALYSIS SERIES

611. Parting with Illusions: Developing a Realistic Approach to Relations


with Russia by Nikolas Gvosdev (February 29, 2008)

610. Learning the Right Lessons from Iraq by Benjamin H. Friedman,


Harvey M. Sapolsky, and Christopher Preble (February 13, 2008)

609. What to Do about Climate Change by Indur M. Goklany (February 5, 2008)

608. Cracks in the Foundation: NATO’s New Troubles by Stanley Kober


(January 15, 2008)

607. The Connection between Wage Growth and Social Security’s Financial
Condition by Jagadeesh Gokhale (December 10, 2007)

606. The Planning Tax: The Case against Regional Growth-Management


Planning by Randal O’Toole (December 6, 2007)

605. The Public Education Tax Credit by Adam B. Schaeffer (December 5, 2007)

604. A Gift of Life Deserves Compensation: How to Increase Living Kidney


Donation with Realistic Incentives by Arthur J. Matas (November 7, 2007)

603. What Can the United States Learn from the Nordic Model? by Daniel J.
Mitchell (November 5, 2007)

602. Do You Know the Way to L.A.? San Jose Shows How to Turn an Urban
Area into Los Angeles in Three Stressful Decades by Randal O’Toole
(October 17, 2007)

601. The Freedom to Spend Your Own Money on Medical Care: A Common
Casualty of Universal Coverage by Kent Masterson Brown (October 15,
2007)

600. Taiwan’s Defense Budget: How Taipei’s Free Riding Risks War by Justin
Logan and Ted Galen Carpenter (September 13, 2007)

599. End It, Don’t Mend It: What to Do with No Child Left Behind by Neal
McCluskey and Andrew J. Coulson (September 5, 2007)

598. Don’t Increase Federal Gasoline Taxes—Abolish Them by Jerry Taylor and
Peter Van Doren (August 7, 2007)
597. Medicaid’s Soaring Cost: Time to Step on the Brakes by Jagadeesh
Gokhale (July 19, 2007)

596. Debunking Portland: The City That Doesn’t Work by Randal O’Toole
(July 9, 2007)

595. The Massachusetts Health Plan: The Good, the Bad, and the Ugly by
David A. Hyman (June 28, 2007)

594. The Myth of the Rational Voter: Why Democracies Choose Bad Policies
by Bryan Caplan (May 29, 2007)

593. Federal Aid to the States: Historical Cause of Government Growth and
Bureaucracy by Chris Edwards (May 22, 2007)

592. The Corporate Welfare State: How the Federal Government Subsidizes
U.S. Businesses by Stephen Slivinski (May 14, 2007)

591. The Perfect Firestorm: Bringing Forest Service Wildfire Costs under
Control by Randal O’Toole (April 30, 2007)

590. In Pursuit of Happiness Research: Is It Reliable? What Does It Imply for


Policy? by Will Wilkinson (April 11, 2007)

589. Energy Alarmism: The Myths That Make Americans Worry about Oil by
Eugene Gholz and Daryl G. Press (April 5, 2007)

588. Escaping the Trap: Why the United States Must Leave Iraq by Ted Galen
Carpenter (February 14, 2007)

587. Why We Fight: How Public Schools Cause Social Conflict by Neal
McCluskey (January 23, 2007)

586. Has U.S. Income Inequality Really Increased? by Alan Reynolds (January 8,
2007)

585. The Cato Education Market Index by Andrew J. Coulson with advisers
James Gwartney, Neal McCluskey, John Merrifield, David Salisbury, and
Richard Vedder (December 14, 2006)

584. Effective Counterterrorism and the Limited Role of Predictive Data


Mining by Jeff Jonas and Jim Harper (December 11, 2006)