<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21141.wais]
ILLEGAL IMMIGRATION ENFORCEMENT AND SOCIAL SECURITY PROTECTION ACT OF
2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 98
__________
MAY 12, 2005
__________
Serial No. 109-35
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Luke Bellocchi, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
MAY 12, 2005
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas................................................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan..................................... 3
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California................................... 3
WITNESSES
The Honorable David Dreier, a Representative in Congress from the
State of California
Oral Testimony................................................. 6
Prepared Statement............................................. 9
The Honorable Silvestre Reyes, a Representative in Congress from
the State of Texas
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Mr. T.J. Bonner, President, National Border Patrol Council
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Mr. Marc Rotenberg, Executive Director, Electronic Privacy
Information Center
Oral Testimony................................................. 25
Prepared Statement............................................. 26
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 45
Articles and letters submitted by the Honorable David Dreier, a
Representative in Congress from the State of California........ 47
Letter from the Chamber of Commerce of the United States of
America........................................................ 61
ILLEGAL IMMIGRATION ENFORCEMENT AND SOCIAL SECURITY PROTECTION ACT OF
2005
----------
THURSDAY, MAY 12, 2005
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:18 p.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Hostettler (Chairman of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Good afternoon. Today's hearing examines H.R. 98, the
``Illegal Immigration Enforcement and Social Security
Protection Act of 2005.'' Under this legislation introduced by
Congressman David Dreier, the Federal Government would issue
secure Social Security cards that employers would use to verify
the identity and work eligibility of newly hired employees. The
legislation is based upon the understanding that we will only
be able to assert control over illegal immigration when we can
turn off the ``job magnet'' that draws most illegal aliens to
our country. As almost half of all illegal aliens resident in
the U.S. came to the U.S. legally on temporary visas, border
controls alone will never be sufficient.
Congress recognized the power of the job magnet in 1986
when we passed the Immigration Reform and Control Act of 1986.
This legislation made it unlawful for employers to knowingly
hire or employ aliens not eligible to work, and required
employers to check the identity and work eligibility documents
of all new employees. If the documents provided by an employee
reasonably appear on their face to be genuine, the employer has
met its document review obligation.
Unfortunately, the easy availability of counterfeit
documents has made a mockery of IRCA. Fake documents are
produced by the millions and can be obtained cheaply. Thus, the
IRCA system both benefits unscrupulous employers who do not
mind hiring illegal aliens but want to show that they have met
legal requirements, and harms employers who don't want to hire
illegal aliens but have no choice but to accept documents they
know have a good likelihood of being counterfeit.
In response to the deficiencies of IRCA, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
instituted three employment eligibility confirmation pilot
programs for volunteer employers. Under the ``basic pilot
program,'' the proffered Social Security numbers and alien
identification numbers of new hires are checked against Social
Security Administration and Immigration and Naturalization
Service records in order to weed out fraudulent numbers, and
thus to ensure that new hires are genuinely eligible to work.
IIRIRA required the INS to submit a report on the basic
pilot program after the end of the third and fourth years the
program was in effect. The report found that, ``an overwhelming
majority of employers participating found the basic pilot
program to be an effective and reliable tool for employment
verification.'' Ninety-six percent of employers found it to be
an effective tool for employment verification, and 94 percent
of employers believed it to be more reliable than the IRCA-
required document check. In 2003, Congress extended operation
of the pilot programs for an additional 5 years, and required
that it be made available to employers nationwide no later than
December 1, 2004.
Under H.R. 98, DHS builds on the structure of the basic
pilot program by constructing a mandatory employment
eligibility verification program for employers nationwide. The
bill would establish a database including data on the
citizenship status of individuals and the work and residency
eligibility information of work-authorized aliens. The database
could be based on the information and procedures used by the
basic pilot program. The Social Security Administration would
issue Social Security cards with encrypted machine-readable
strips, security features designed to prevent tampering,
counterfeiting, or duplication, and a digitized photograph.
Once the program is operational, no person may begin employment
unless he has obtained such a secure card and displayed it to
his employer.
No employer may employ an individual unless the employer
verifies that the employee has such a card and that the
individual is authorized to work in the U.S. Verification
procedures shall include those of a phone verification system,
which has been used in the basic pilot program, or a card
reader verification system capable of reading the machine-
readable strip in the card. Through these procedures, the
employer will have access to the database established by DHS.
I look forward to today's testimony examining the
employment eligibility verification process proposed by Mr.
Dreier.
At this time, the Chair recognizes the gentleman from
Texas, Mr. Smith, for purposes of an opening statement.
Mr. Smith. Thank you, Mr. Chairman. I am going to be brief
for two reasons. One, I know you have to leave in a few
minutes, and the only non-full flight to Texas leaves in about
an hour. So I am going to try to rush things along.
But I just have to say it is a credit to you, Mr. Chairman,
that you have been able to persuade the front line of
immigration reform advocates to be here today. I have never
seen such a starring lineup, I think, in all my years of being
on the Immigration Subcommittee.
I know we are here in particular to have a hearing on H.R.
98, Representative Dreier's bill, which I have co-sponsored.
And I just want to thank David Dreier for his efforts on
immigration reform. He is always a thoughtful Member when it
comes to immigration. He always has good ideas, and this is one
of them.
It is absolutely essential, in my judgment, that we have a
tamper-proof Social Security card. We have needed one for
years, and if we are serious about enforcing immigration laws,
if we are serious about protecting our borders, and if we are
serious about homeland security, we need to pass legislation
like this.
In the case of the tamper-proof Social Security cards, Mr.
Chairman, you have already pointed out all the ways that they
are going to help employers and help legal workers in the
United States. I would only say that as important as the bill
is and as essential as it is that we implement it, it really
rests largely on the willingness of the Administration to
enforce it. We have a situation today where, for example, in
1994 the Administration did not fine a single employer for
violating employer sanctions. And when we are not willing to do
that, we are really not willing to reduce the attraction, the
huge magnet remains that understandably attracts and draws so
many people into the United States.
And David Dreier's bill is one of the many tools we need,
but this is certainly one of the most important. And I just
want to thank him for introducing it, and appreciate the
attendance again of everybody who is a member of this panel.
And I will yield back.
Mr. Hostettler. The Chair recognizes the gentleman from
Michigan, the Ranking Member of the full Committee, Mr. Conyers
for purposes of an opening statement.
Mr. Conyers. Thank you, Mr. Chairman. And I am glad to see
our distinguished colleagues here and our own witness, Mr.
Rotenberg.
Gentlemen, the one overriding civil liberties question is,
how much REAL ID do we find necessary here? We just passed the
REAL ID Act this week in which we are going to--if this becomes
the law of the land, will require every State to now follow
Federal determinations as to what should be on a driver's
license card, creating for the first time, whether we like it
or not, the potential for a national database with all kinds of
information. The Social Security number is just the beginning
of where this may go, because there is no Federal limitation on
it.
Now comes another idea that tops that, which suggests to us
that we need a better Social Security protection; we need to
revise the Social Security card. And it seems to me that--I
don't know how many other security measures on identification
cards we may end up talking about, but it seems to me that
Social Security wasn't intended to be a national identification
card; and that what we may be doing here may not outweigh the
harm that we may be doing in determining the effectiveness or
the objective that we seek under the Homeland Security
Department, which now includes much of the immigration
considerations.
So I ask unanimous consent to revise and extend my
statement, and I await the testimony of my colleagues.
Mr. Hostettler. Without objection.
And the Chair recognizes the gentleman from California, Mr.
Lungren, for an opening statement.
Mr. Lungren. Thank you very much, Mr. Chairman. And I note
in the Chairman's opening remarks, you referred to IRCA, the
Immigration Reform and Control Act of 1986. As the one who was
the Republican floor manager for that bill and one of the
authors of employer sanctions, I must say that at that point in
time we thought that we were responding to the tremendous
attraction, or magnet, of employment in this country as a
source of much of the illegal immigration we saw at that time.
Little did we know that subsequent Administrations, both
Democrat and Republican, would not enforce employer sanctions.
And now, as we look back, we need more than the will to enforce
employer sanctions, we need tools that will allow us to do
that.
In 1986 and also in 1984, I brought to the floor proposals
to present tamper-proof or counterfeit-proof Social Security
cards. At that time, the criticism was raised by many that what
we were attempting to do was to create a national
identification card. In responding to that, we pointed out that
this would not be used for purposes of being on one's person at
all times for which one would have to present it upon the
command of any officer of the government, State or Federal, but
rather would be used at the time of employment. In fact, we
even gave a grace period, I believe it was 18 hours or 36
hours, so that you could start your job so long as you brought
the card on the second day. And our purpose was, in fact, to
have a card that had some credibility, that actually would
identify the individual to their right to work in this country.
And, frankly, without that, Mr. Chairman and others, I would
suggest we would never have an effective employer sanction
program.
So the other problem we had was our lack of a capacity to
share information or to have a database that was, in fact,
accurate and which could be accessed on a timely basis. And one
of the complaints we heard from employers was that we were
putting them at risk as we were requiring them to make an
identification, so to speak, of individuals who were seeking
employment and at the same time, we were saying that they would
be subject to lawsuits based on discrimination if they inquired
further.
And now, we have the technical capacity to create those
databases and the access to those databases in a timely
fashion. And so the gentleman from California, Chairman
Dreier's bill is an attempt to take these two extremely
important tools, and marry them with what has already existed
in law for a serious period of time, that is employer
sanctions, and make employer sanctions work.
And I think, frankly, if we do not have these tools or do
not utilize these tools, it is difficult for those of us in
Congress to criticize Administrations for failing to enforce
the law. I think these are essential tools that will assist.
The gentleman from Michigan's concerns about privacy are to
be seriously considered. His concerns about us creating a
national ID card ought to be considered. But that burden is on
the Members of Congress to ensure that it doesn't become a
national ID card, but rather is utilized for the purposes we
articulate here. And if we need to write in protections to
ensure that happens, I would hope that we would do so, but it
ought not dissuade us from doing that which needs to be done to
make employer sanctions actually work.
I have looked in vain for another tool, that is a tool
other than employer sanctions that would get at the magnet that
we have. I happen to be one who believes that we need a guest
worker program, but we can only have a guest worker program if
we have these kinds of laws in force and in effect, and it
would be folly for us to do otherwise.
So I commend the Chairman of the Rules Committee for
bringing this forward. I commend the Chairman of this
Subcommittee for having these hearings. And I hope we can look
at it straightforwardly with concern about civil liberties, but
at the same time recognizing what is necessary to make the law
work, which I believe more and more American people are
insisting that we do.
Thank you very much, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
At this time, the Chair will introduce members of our
esteemed panel.
Congressman David Dreier has represented the 26th District
of California since his election to Congress in 1980. In
January 1999, Chairman Dreier joined the leadership of the
House when he was named Chairman of the House Rules Committee.
Congressman Dreier chairs the California Republican
Congressional Delegation and headed California Governor
Schwarzenegger's transition team. Congressman Dreier is a long-
time advocate of border security, and he is Chair of the U.S.-
Mexico Congressional Caucus. Chairman Dreier graduated cum
laude from Claremont McKenna College and also holds a master's
degree in American government from Claremont Graduate
University.
Congressman Silvestre Reyes was elected to Congress in 1996
to serve the 16th District of Texas. He represents the city of
El Paso, which, when combined with the Mexican city of Juarez,
constitutes the largest border community in the United States.
Congressman Reyes joined the U.S. Immigration and
Naturalization Service after serving in the Army. During his
INS career, he held several major posts including assistant
regional commissioner and Chief of U.S. Border Patrol for two
Texas sectors. He is credited with initiating innovative border
security initiatives such as ``Operation Hold the Line'' in the
El Paso sector, and the Border Patrol's Canine Program. Now, as
a Member of Congress, he serves on the House Armed Services
Committee and Permanent Select Committee on Intelligence.
Congressman Reyes holds an associate's degree in criminal
justice from El Paso Community College.
T.J. Bonner is president of the National Border Patrol
Council, an organization representing about 10,000 U.S. Border
Patrol employees. Mr. Bonner joined the Border Patrol in 1978
and was promoted to senior Border Patrol agent in 1987. As a
27-year veteran of the Border Patrol, Mr. Bonner has the
experience to discuss with first-hand knowledge major issues
affecting immigration and border security policy today. Mr.
Bonner has testified before Congress and this Committee,
Subcommittee several times. And I am beginning to memorize,
sir, your resume. And he is also a frequent contributor to
radio, television, and other media outlets regarding these
issues.
Marc Rotenberg is Executive Director of the Electronic
Privacy Information Center in Washington, D.C. Mr. Rotenberg
also teaches information privacy law at Georgetown University
Law Center and has been editor for several books on privacy
law. He has served on national and international advisory
panels, and has received several major awards for his work,
including the 2002 World Technology Award in Law. Mr. Rotenberg
is a graduate of Harvard College and Stanford Law School.
Gentlemen, you will have each 5 minutes to give an opening
statement. Without objection, your written statement is made a
part of the record, and we look forward to your testimony.
Chairman Dreier, you may proceed.
TESTIMONY OF THE HONORABLE DAVID DREIER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Dreier. Thank you very much, Mr. Chairman. As I
listened to your very thoughtful opening remarks, the kind
words, and knowing the history of our friend Mr. Smith, the
very thoughtful statement with which I concur raised by the
distinguished Ranking Minority Member of the full Committee,
our friend from Michigan, Mr. Conyers, and then my California
colleague, Dan Lungren, who referred to his now quarter-century
record in dealing with this issue, I almost feel as if I don't
need to testify because, frankly, in your opening statement you
went through an outline of what it is that we have done.
But let me express my appreciation to you, to your very
able counsel George Fishman, to the Chairman of the full
Committee who is a co-sponsor of the legislation along with Mr.
Smith, and I think Mr. King is a co-sponsor of it. I have yet
to get Mr. Conyers on board, but I will tell you that--and I
know Mr. Lungren is a co-sponsor. I will tell you that last
night I had the chance to go to a great dinner downtown that
was honoring former First Lady Nancy Reagan, and at that dinner
the opening speeches were made by Nancy Pelosi, Harry Reid,
Bill Frist, and Denny Hastert underscoring a very important
notion of bipartisanship and how we need to continue to pursue
that.
As I left dinner and went home, I had National Public Radio
on and heard a program with both Alan Simpson and Robert Reich
in which they talked about their bipartisan history together.
And Alan Simpson referred to the fact that his goal has always
been, throughout his career, in looking at public policy
questions, to try to be able to figure out a way in which we
can get things done. And we know that immigration reform,
border security issues have been among the most divisive that
we have faced in this institution and across this country, as
we know very well. And I know that today in both the Senate and
the House, bipartisan legislation is being introduced on
dealing with the issue of a guest worker program.
But I will tell you that I believe that the legislation
that we have introduced and that most of the people in this
room who are Members of Congress have co-sponsored is enjoying
broad bipartisanship because it is focused on the issue of
border security. And while we have had division in the area of
dealing with this focus on the supply of people who have been
coming in illegally, focusing on increasing the size of the
Border Patrol, or focusing on all of these issues that relate
to toughening up at the borders, we really have not expended a
great deal of effort on the demand side, which, to me, is so
key, and that is why this comes into play.
Now, my good friend Mr. Conyers just used the term ``revise
the Social Security card.'' Well, this is actually a Social
Security card. It belongs to Jo Maney, who is my press
secretary sitting behind me here. She gave it to me yesterday,
and I am going to give it back to her in just a moment and
don't plan to keep it. But this is a document which, as we all
know, can easily be duplicated. And if you just look at the
media over the past several weeks, we found that $1,300 is what
it costs to get one of these fraudulently made. One woman in
Chicago had her Social Security card used on 37 different
instances by people who were here illegally. And then, of
course, we recently saw the case where someone used a Social
Security card, and what did they do? They went to work for a
nuclear power plant in Florida.
And so it is not revising this Social Security card, it is
simply bringing it into the 21st century.
Now, I was privileged to be here when Dan Lungren was
working in 1984 and 1986 on this effort, and in 1996 I joined
with the gentleman from Florida, our former colleague Mr.
McCollum, in trying to bring about a counterfeit-proof Social
Security card. But the fact is the Social Security card that we
are proposing is a very simple one which is a 21st century
Social Security card. It says across here--and I would say to
my friend Mr. Conyers, emblazoned on this card, it says, ``This
is not a national ID card.''
Now, I know some would argue, if it looks and walks and
talks like a duck, it is a duck. The fact of the matter is this
is not going to be used for identification purposes; this will
only be used by people looking for a new job. And, as long as
everyone in this room is reelected, you won't need to have a
counterfeit-proof Social Security card because you won't be
looking for a new job. If you are a senior citizen and retired,
you won't need to have a counterfeit-proof Social Security
card. Of course, you will still have a Social Security number,
which is used for a lot of different purposes, but you won't
need a counterfeit-proof Social Security card. And all the
information that will be provided on this is information that
the Federal Government has today; no new information
whatsoever.
Now, I have read the testimony of Mr. Rotenberg, and I
share the concerns that he raises and the concerns that Mr.
Conyers raises. I consider myself to be a libertarian-leaning
Republican. I don't want more Government, and I don't want the
Government to have any more information than is necessary. No
new information would actually be provided by the Government or
required here.
I have been joined, Mr. Chairman, by a couple of great
patriots in this effort. And when I underscore the
bipartisanship, you have outlined this great career of
Silvestre Reyes' 26\1/2\ years as one of the top leaders in the
Border Patrol. He is leading this side on behalf of the
Democrats, and we are working closely together on it.
And, T.J. Bonner is really the progenitor for my most
recent incarnation on this issue, which, as I said, I have
supported for a long period of time. He talked about the fact
that in 19--in last fall's September 20th issue of Time
Magazine that we would not be able to get support in the
Congress for this kind of notion because people in the Congress
wouldn't want to stand up to the employers and the business
community. Well, the fact of the matter is I was outraged when
I heard of companies that were recruiting people illegally in
Mexico to come to work in the United States, and I said we have
to do something. So I have been very privileged, and I have
named this the Bonner Plan because T.J. has been such a great
proponent and a great help to me in this effort.
So I think we have got a great chance to have success here.
I do believe that this has to, as Mr. Lungren said, be part of
a comprehensive program which will include some kind of
temporary guest worker program because of the economic demand
that exists here. But this is H.R. 98, because T.J. is
convinced it can reduce by 98 percent the number of illegal
border crossings, because people who come here simply want to
feed their families. Without the magnet of jobs because of the
Social Security card, they won't be able to get them, they will
be inclined to go home. And also, with a worker program, we can
bring them out of the shadows and create a chance for them to
come forward and either go home or become part of this society.
That is in our national security interest, and after what we
went through yesterday, and in this post-September 11, 2001
world, I think that focusing on security and at the same time
dealing with this problem that we have in the immigration area,
this is the right thing to do.
And, again, I thank you very much for inviting me to be
here today, and I thank all of you for indulging me. And have a
nice trip back to Texas, Lamar.
Mr. Hostettler. Thank you, Chairman Dreier.
[The prepared statement of Mr. Dreier follows:]
Prepared Statement of the Honorable David Dreier, a Representative in
Congress from the State of California
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Mr. Hostettler. At this time the Chair will call on the
gentleman from Iowa, Mr. King, to assume the Chair, as I myself
will have to leave. I want to thank the panel for being here
today, but because of a family medical situation, I will have
to leave at this time.
Mr. King. [Presiding.] I thank the distinguished
Subcommittee Chairman, Mr. Hostettler, for yielding the Chair
to me today and regret the mission that he is on with his
family.
And I would at this point then recognize the Honorable Mr.
Reyes for his testimony.
TESTIMONY OF THE HONORABLE SILVESTRE REYES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Reyes. Thank you, Mr. Chairman and Members of the
Committee. I appreciate the opportunity to come before you to
testify on behalf of H.R. 98, the ``Illegal Immigration
Enforcement and Social Security Protection Act of 2005.'' I
also want to commend my good friend and colleague, Chairman
Dreier, for his leadership on this issue.
I can tell you from personal experience, when our
colleague, Mr. Lungren, talks about the passage of the
Immigration Reform and Control Act of 1986, I was Chief of the
Border Patrol down in McAllen in South Texas, and at that time
when that law was passed, it had, as you know, several
components. One was an amnesty legalization component; another
one very importantly was an employer sanctions component. The
one worked very well, although we never processed the millions
of undocumented people that were projected. I know at the time
there were projections of between 11 and 16 million
undocumented people in this country that would be eligible for
residency under--or amnesty under IRCA 1986. We wound up
processing about 3\1/2\ million and an additional half a
million that were subsequently processed because of errors by
INS.
The one remarkable thing that I want to share with you as
part of my experience of being the Chief back then is that,
when this law passed, and it received a significant amount of
publicity including the employer sanction provisions, some
parts of the border area reduced attempted entries into this
country by as much as 80 percent. The reason for that was that
the perception in Mexico and Latin America was that there was
no need to try to enter this country illegally because, once
you got here, you were going to have to produce documentation
to get a job. And, if you didn't have that documentation, you
were not going to be able to be employed.
That is important, because while we saw that from industry,
reduction in illegal entry attempts, we never got the resources
by Congress. Congress failed to fund positions to be able to
enforce employer sanctions in the interior of this country. So
within a 2- or 3-year period, it was not hard to figure out
that if undocumented entries or entrants could get through the
border area and into the interior of the country, there were no
investigators or Border Patrol agents to enforce employer
sanctions. So we saw the patterns gradually escalate again to
the same levels of pre-1986.
I mention that because employer sanctions--my experience
has been employer sanctions has worked very effectively where
we have had resources to enforce it, and primarily that is
along the U.S.-Mexico border. It has not worked in the interior
of the United States simply because no one has been there to
enforce it.
So this law is not going to do us any good if we pass a
counterfeit document and then we fail to provide the resources
to Homeland Security, some 10,000 positions that are included
in the bill, to be able to provide the kind of enforcement that
was supposed to be done with employer sanctions as well.
Today, ironically enough, the McCain, Kennedy, Kolbe Flake,
and Gutierrez bill was introduced on the Senate and the House
side. That is a comprehensive immigration reform proposal that
I think will work. It has got a security provision, and it has
got a guest worker provision, and it also has a legalization
component. So it has got all the ingredients to, I think--to be
able to be successful and address a proactive plan to stem the
flow of undocumented entries into this country.
But, again, it will not succeed, much like this act won't
succeed, much like the Immigration Reform and Control Act in
1986 did not succeed, if we don't fund the positions and we
don't give the agencies the resources to be able to enforce
that law. All the laws in the world won't make a difference if
we don't fund the enforcement capability. So it is important.
September 11 made a significant difference in the way we
look at border enforcement, the way we look at those that are
in this country in the shadows. And we need to find a vehicle
that will identify people, that will legalize them, that will
provide them work visas to be able to work in this country,
but, most importantly, to give the United States Border Patrol
under Homeland Security the ability to ferret out those that
would do this country damage like was done on September 11. So
it is important, it is critical, it is vital.
I have the same concerns that my colleague from Michigan
has, and that I want to associate myself with the comments of
my colleague, David Dreier, and tell you that this is not
something that we take lightly. But this is not an effort to
create a national ID card. In fact, it--as my colleague said,
it states so on the card itself here that this is not a
national ID card. But it is a way that we can solidly identify
the person that has it and the person that is applying for a
job at the time that he or she presents this card.
I think it is the right proposal at the right time for the
right reasons, and keeping in mind that we all are as concerned
about privacy and not creating a database that would somehow
identify Americans in the future for a reason that it was not
intended. So I am proud to be a co-sponsor of this legislation,
and I think it is important that this Committee consider it.
I want to thank you again for the opportunity, and I also
want to apologize because I am on Congressman Lamar Smith's
airplane, so I am going to have to leave to make that as well.
So thank you very much for giving me this opportunity.
Mr. King. I thank the gentleman for his testimony today,
and recognize the urgency of getting to the airport and not
missing Congressman Smith's airplane.
[The prepared statement of Mr. Reyes follows:]
Prepared Statement of the Honorable Silvestre Reyes, a Representative
in Congress from the State of Texas
Good afternoon. I would like to thank Chairman Hostettler and
Ranking Member Jackson Lee for giving me the opportunity to testify
before the Subcommittee today about H.R. 98, the Illegal Immigration
Enforcement and Social Security Protection Act of 2005. I have been
pleased to work on with my friend and colleague from California, Mr.
Dreier, on the bill and I appreciate his leadership on this issue.
I believe I come to this hearing with a somewhat unique perspective
on immigration and border security. My district of El Paso, Texas--long
with its sister city, Ciudad Juarez, Mexico--omprise the largest
metropolitan area on the United States-Mexico border. Also, prior to
coming to Congress, I was in the United States Border Patrol for 26\1/
2\ yrs. I served as Chief, first in the McAllen sector and subsequently
in the El Paso sector from 1984 until my retirement in 1995.
As the only Member of Congress with a background in immigration and
experience defending our nation's borders, I have firsthand knowledge
of what we need to do to reduce illegal immigration and help keep
America safe. I believe that H.R. 98 can be a critical part of that
effort, because I have witnessed the difference that tough employer
sanctions can make in discouraging attempted illegal entries into the
United States.
In 1986, Congress passed the Immigration Reform and Control Act,
which included new sanctions against employers who hire illegal
immigrants. After that law was enacted, in parts of the country such as
the border region where those of us in law enforcement had the
resources to enforce those sanctions, we saw a significant decrease in
the number of people trying to enter the country unlawfully. Clearly,
once word got out that employers would not hire illegal immigrants, the
incentive to enter the United States was gone and attempted entries
dropped off considerably.
H.R. 98 would substantially expand and improve on the 1986
provisions by enhancing the security of Social Security cards and
allowing employers to instantaneously verify a prospective employee's
eligibility to work in the United States. The bill would also increase
civil and criminal penalties for employers who hire illegal immigrants
or fail to verify their employment eligibility. Finally, H.R. 98 would
authorize 10,000 new Department of Homeland Security personnel to
enforce employer compliance.
If appropriately funded, H.R. 98 would be an important step toward
halting the flow of people seeking to enter the United States illegally
in order to find employment. By doing so, our immigration and border
security personnel will be able to focus more of their time, effort,
and resources on those who may be trying to enter the country to do us
harm.
If we are really serious about curbing illegal immigration and
keeping America safe, we will move this legislation forward. I hope to
continue to work with Mr. Dreier and the Subcommittee to do so. Thank
you.
Mr. King. And the Chair will recognize the gentleman Mr.
Bonner for his testimony for 5 minutes.
TESTIMONY OF T.J. BONNER, PRESIDENT,
NATIONAL BORDER PATROL COUNCIL
Mr. Bonner. Thank you very much, Congressman Reyes. Thank
you very much for your support of this very important plan,
Congressman Dreier.
The sponsor of this bill called me last September in my
office--at first I thought it was a practical joke--``Hi, this
is David Dreier, I would like to talk to you about your
comments in Time Magazine.'' And I said, ``Well, that voice
does sound familiar; I think I have heard that on C-SPAN, I
probably better return that call.'' And we struck up a
conversation. I went up to his office, and we exchanged ideas,
and I was surprised, and he probably was surprised also, at how
similar our views were on this issue. And I worked with his
office to craft language which I believe will largely solve the
illegal immigration problem.
There is no question that our borders are out of control
right now. Every year millions of people are crossing our
borders. Last year the United States Border Patrol apprehended
1.2 million of those people. But the front-line agents estimate
that two to three times that many slipped by us.
This is simply unacceptable in a post-9/11 world, because
we know that of the people who are crossing, not all of them
mean us no harm. In fact, when we married the two fingerprint
systems of the Border Patrol and the FBI together last
September, in the first 3 months alone, about 8 percent of all
the people that we apprehended turned out to be criminal
aliens. And we don't know how many terrorists have slipped by,
because it stands to reason that if there were 8 percent that
we caught, at least 8 percent of the ones that got by us were
also criminals. And it is not unreasonable to assume that there
are terrorists in that mix as well.
We need to do something about this problem. Ask any Border
Patrol agents out there, and they will tell you that their
number one priority, the person--the people that they really
want to catch are the criminals and the terrorists, because
those are the ones who are going to harm our country, harm
their families, harm your families. But as long as they are
overwhelmed with millions of people coming across, they simply
can't do that.
This piece of plastic here, a counterfeit-proof Social
Security card, which would double as an employment verification
document, would do more to secure our borders than millions of
metric tons of concrete poured to form walls around the border,
or millions of Border Patrol agents linked arm in arm, because
no matter how many barriers or how many agents you put out
there, the economic draw of jobs in this country is simply too
great. People in Mexico, for example, are making $4 a day on
average; people in China make less than $1 a day. There is a
huge incentive for people to come to our country and seek
employment, and, as long as they can find it, they will
continue to come across.
The only way to turn off the employment magnet is to come
up with a system that makes it simple for an employer to figure
out who has a right to work in this country, and it also makes
it easy for the enforcement agents to go in and fine that
person if they choose to disobey the law.
H.R. 98 does both of those things, and therefore the
National Border Patrol Council strongly supports it. For the
interest of our national security, we urge the Congress of the
United States to pass this bill. This is the single most
important piece of legislation that can be passed to secure our
borders.
In this era of terrorist threats, we need to secure our
borders. Nobody disagrees with that. So I urge this
Subcommittee and the entire Congress to do the right thing and
pass this bill. Thank you.
Mr. King. I thank the gentleman for his testimony.
[The prepared statement of Mr. Bonner follows:]
Prepared Statement of the T.J. Bonner
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Mr. King. And the Chair would recognize Mr. Rotenberg for 5
minutes.
TESTIMONY OF MARC ROTENBERG, EXECUTIVE DIRECTOR, ELECTRONIC
PRIVACY INFORMATION CENTER
Mr. Rotenberg. Thank you very much, Congressman King,
Congressman Lungren, other members of the panel. I would like
to thank you again for the opportunity to participate in this
hearing today. My name is Marc Rotenberg. I am Executive
Director of the Electronic Privacy Information Center. We are a
nonpartisan research organization, and we examine emerging
privacy and civil liberties issues. And I need to explain to
the panel this morning that one of the issues that we have
spent most of our time on this year has been the growing public
concern about identity theft.
As you know, there have been many hearings held in the
House and the Senate as well exploring how the misuse of
personal information in the United States is contributing to
fraud and theft and other types of crime. It has become clear
that one of the key factors that contributes to this problem is
the widespread use and misuse of the Social Security number.
And so a proposal that would expand the use of the Social
Security number for the purpose of determining employment
eligibility, we believe, raises significant privacy concerns.
Now, I would like to explain in response to points that
were made both by Congressman Lungren and Congressman Smith
that I think there are steps that could be taken to reduce the
likelihood that the Social Security card would be fraudulently
used to obtain employment in the United States, and we would
support that very much.
To the extent that you add techniques such as holograms to
make it tamper-proof, possibly to include the photo of the
correct cardholder, you will reduce the likelihood that that
card will be misused by others. And I think this would be an
appropriate step also because it would reduce the likelihood of
identity theft. But there is a particular provision in the bill
that we think does raise privacy concerns, and that is the
inclusion of the magnetic stripe which includes the data on the
card that then makes the card machine-readable to employers and
presumably to others.
And so the first question becomes in this effort to enhance
the Social Security card--is what will happen when private
merchants and others begin to try to use this card for check-
cashing, for building entry, or for other purposes? There is
currently no Federal law that would prohibit the use of that
card for this purpose, and we think this is a very serious
issue that should be considered if the bill were to go forward.
A second issue concerns the role of the Department of
Homeland Security in administering the new employment
eligibility database. We do quite a lot of work with the
Department of Homeland Security on privacy issues, and one of
the problems that has arisen with DHS is that oftentimes they
seek exemptions from the Federal Privacy Act for the management
of the data systems that they establish under their authority.
So, for example, records systems that might otherwise be
administered by the Social Security Administration are subject
to Federal law that prevents the misuse of the information on
American citizens that that Federal agency obtains. But when
DHS obtains information, including a Social Security number,
they may very well seek certain exemptions that will provide
less privacy protection than when the information is maintained
by the Social Security Administration.
In fact, we see this already in one of the provisions of
the bill that would give the Secretary of the Department of
Homeland Security the authority to designate other permissible
uses of this information apart from determining employment
eligibility. In effect, by bringing the Department of Homeland
Security into the role of determining employment eligibility in
the United States, it has also created the opportunity to use
Social Security records for purposes that were never intended.
We think a lot could be done to strengthen the privacy
safeguards if the bill were to go forward. We would like to see
restrictions, for example, on the improper use of this
information, and we would also like to see stronger technical
and security measures established to prevent any misuse of the
information that is obtained or the databases that have been
established.
As you know, the REAL ID Act went recently through the
Senate without even a hearing. For the 2 months prior to
passage of the act, it was interesting to see that several of
the State department of motor vehicles offices had become the
targets of identity thieves. These were the agencies that,
under the REAL ID Act, will actually be required to obtain the
birth certificates of all Americans when they seek to renew
their driver's licenses. The security in those State agencies
simply wasn't adequate to protect this sensitive personal
information. It is our view that there is not adequate security
in the collection of this sensitive personal information to
ensure privacy protection.
When the bill--if the bill goes forward, it is not simply
illegal immigrants that will face the question of whether to
obtain this card, it is all Americans who are seeking to work
who will be required to carry a card that contains a magnetic
stripe with their Social Security number and other personal
information encoded. These are significant concerns. I hope the
Committee will be able to address them.
Thank you again for the opportunity to testify.
Mr. King. I thank the gentleman for his testimony.
[The prepared statement of Mr. Rotenberg follows:]
Prepared Statement of Marc Rotenberg
introduction
Chairman Hostettler, Ranking Member Jackson Lee, and Members of the
Subcommittee, thank you for the opportunity to testify on H.R. 98, the
``Illegal Immigration Enforcement and Social Security Protection Act of
2005.'' My name is Marc Rotenberg and I am Executive Director of the
Electronic Privacy Information Center. EPIC is a non-partisan research
organization based in Washington, D.C. Founded in 1994, EPIC has
participated in cases involving the privacy of the Social Security
Number (SSN) before federal courts and has frequently testified in
Congress about the need to establish privacy safeguards for the Social
Security Number.\1\ EPIC maintains an archive of information about the
SSN online at http://www.epic.org/privacy/ssn/.
---------------------------------------------------------------------------
\1\ See, e.g., Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993)
(``Since the passage of the Privacy Act, an individual's concern over
his SSN's confidentiality and misuse has become significantly more
compelling''); Beacon Journal v. Akron, 70 Ohio St. 3d 605 (Ohio 1994)
(``the high potential for fraud and victimization caused by the
unchecked release of city employee SSNs outweighs the minimal
information about governmental processes gained through the release of
the SSNs''); Testimony of Marc Rotenberg, Executive Director,
Electronic Privacy Information Center, at a Joint Hearing on Social
Security Numbers and Identity Theft, Joint Hearing Before the House
Financial Services Subcommittee on Oversight and Investigations and the
House Ways and Means Subcommittee on Social Security (Nov. 8, 2001)
available at http://www.epic.org/privacy/ssn/testimony--11--08--
2001.html; Testimony of Chris Jay Hoofnagle, Legislative Counsel, EPIC,
at a Joint Hearing on Preserving the Integrity of Social Security
Numbers and Preventing Their Misuse by Terrorists and Identity Thieves
Before the House Ways and Means Subcommittee on Social Security and the
House Judiciary Subcommittee on Immigration, Border Security, and
Claims (Sept. 19, 2002) available at http://www.epic.org/privacy/ssn/
ssntestimony9.19.02.html.
---------------------------------------------------------------------------
Today, I will provide an analysis of H.R. 98, the ``Illegal
Immigration Enforcement and Social Security Protection Act of 2005,''
from a privacy and civil liberty rights perspective. The bill would
significantly increase the use of the Social Security Number. Further,
the bill would transfer SSN record information from the Social Security
Administration to the Department of Homeland Security, and would
dramatically expand the mission of DHS to include determining who is
eligible to work in the U.S. Finally, the bill does not include
adequate privacy and security safeguards.
i. h.r. 98 would turn the ssn into a national identifier and
increase the risk of identity theft
The United States Congress has a long-standing concern about the
misuse of the Social Security Number. In passing the Privacy Act of
1974, Congress specifically limited the use of the SSN and rejected the
establishment of a federal data center for personal information. A 1977
report issued as a result of the Privacy Act highlighted the dangers
and transfers of power from individuals to the government that occur
with centralization of personal information:
In a larger context, Americans must also be concerned about the
long-term effect record-keeping practices can have not only on
relationships between individuals and organizations, but also
on the balance of power between government and the rest of
society. Accumulations of information about individuals tend to
enhance authority by making it easier for authority to reach
individuals directly. Thus, growth in society's record-keeping
capability poses the risk that existing power balances will be
upset.\2\
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\2\ Privacy Prot. Study Comm'n, Personal Privacy in an Information
Society: The Report of the Privacy Protection Study Commission (1977),
available at http://www.epic.org/privacy/ppsc1977report/c1.htm.
Creation of a nationwide system of SSN verification across public
agencies and private businesses will upset balances of power described
in the 1977 report and reduce individuals' autonomy from both
government and commercial entities. The creation of a national ID runs
counter to public sentiment and recent congressional action.\3\
---------------------------------------------------------------------------
\3\ For instance, the Department of Homeland Security is expressly
prohibited from developing National ID systems. 6 USCS Sec. 554 (2004).
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This concern is not new; it was voiced at the creation of the SSN
and has since been raised repeatedly. The SSN was created in 1936 for
the sole purpose of accurately recording individual worker's
contributions to the social security fund. The public and legislators
were immediately suspicious and distrustful of this tracking system
fearing that the SSN would quickly become a system containing vast
amounts of personal information, such as race, religion and family
history that could be used by the government to track down and control
the action of citizens. Public concern over the potential for abuse
inherent in the SSN tracking system was so high, that in an effort to
dispel public concern the first regulation issued by the Social
Security Board declared that the SSN was for the exclusive use of the
Social Security system.
The use of the SSN as the means of tracking every employment
encounter will expand the amount of information accessible to the
unscrupulous individual who has obtained another's SSN. The development
of a machine-readable SSN will facilitate linkage between various
systems of governmental and private sector records further eroding
individual privacy and heightening surveillance of each American's
life.
Supporters of H.R. 98 have tried to address public concerns about
the creation of a national identification card by including a
disclaimer in the bill stating: ``This card shall not be used for the
purpose of identification.'' \4\ However, the bill would create a
national ID card in practice.
---------------------------------------------------------------------------
\4\ Illegal Immigration Enforcement and Social Security Protection
Act, H.R. 98, 109th Cong., Sec. 3(a)(3) (2005).
---------------------------------------------------------------------------
The bill, should it become law, would require each citizen and non-
citizen in the U.S. to provide this new national identify card to each
prospective employer. It also requires Homeland Security to create a
database containing information on employment eligibility, as well as
information on all citizens and non-citizens living in the country
legally. Section 9, the Integration of Fingerprinting Databases,
directs the Secretary of Homeland Security and the Attorney General of
the United States to integrate fingerprint databases maintained by the
both agencies. The two databases were created for specific purposes.
But essential privacy safeguards have been removed. In 2003 the Justice
Department's decision to lift the Privacy Act requirement that the FBI
ensure the accuracy and completeness of the over 39 million criminal
records it maintains in its National Crime Information Center (NCIC)
database. This action continues to pose significant risks to both
privacy and effective law enforcement.
The bill proposes that this new identification card would be swiped
through an electronic card reader or the employer would contact the
Department of Homeland Security to verify that the number is present in
their database in an attempt to verify the job applicant's identity.
Employers, facing stiff penalties for hiring ineligible workers, likely
would use the SSN card as a de facto identification card, no matter
what disclaimer was placed onto the card.
H.R. 98 also expands use of the new SSN card in another way. Under
the ``Confidentiality'' provision of the bill, it restricts the use of
the proposed DHS employment eligibility database to those required for
the administration of H.R. 98 or for ``any other purpose the Secretary
of Homeland Security deems to be in the national security interests of
the United States.'' \5\ This ``any other purpose'' clause in H.R. 98
raises the risk of mission creep. It is unknown what these other
purposes may be, but they will likely not be related to employment
eligibility, which is the stated reason for the establishment of the
database.
---------------------------------------------------------------------------
\5\ H.R. 98 at Sec. 4(c)(1)(B).
---------------------------------------------------------------------------
The Department of Homeland Security has already shown a proclivity
for using personal information for reasons other than the ones for
which the information was gathered. Documents about the CAPPS II
program collected by EPIC under the FOIA clearly showed that the
Transportation Security Administration had considered using personal
information gathered for the CAPPS II program for reasons beyond its
original purposes. For example, TSA stated that CAPPS II personal data
might be disclosed to federal, state, local, international or foreign
agencies for their investigations of statute, rule, regulation or order
violations.\6\
---------------------------------------------------------------------------
\6\ Department of Homeland Security TSA, Draft Privacy Impact
Statements (CAPPS II), April 17, 2003, July 29, 2003, and July 30,
2003, obtained by EPIC through FOIA litigation, available at http://
www.epic.org/privacy/airtravel/profiling.html.
---------------------------------------------------------------------------
ii. the bill dramatically expands the mission of dhs to
include employment eligibility verification
The new Department of Homeland Security (DHS) has three primary
missions: Prevent terrorist attacks within the United States, reduce
America's vulnerability to terrorism, and minimize the damage from
potential attacks and natural disasters. Adding to this short list of
critical responsibilities to our nation and its citizens would
jeopardize the core mission and impetus for the creation of this
agency. Further, the role of employment verification and use of the SSN
is not compatible to the make up or focus of the agency. The SSN is not
just about working in our nation, but provides the means of ensuring
retirement security to our nation's elderly. Changing how the SSN is
administered might have unintended consequences for our nation's
premier retirement security program.
H.R. 98 would shift SSN information records, and possibly the
management of the database itself, from the Social Security
Administration to the Department of Homeland Security. The bill would
create at least 10,000 positions in Homeland Security, which already
has 180,000 employees, for management of the SSN system.\7\ This is a
dramatic expansion of the mission of Homeland Security into the realm
of employment eligibility.
---------------------------------------------------------------------------
\7\ Id. at Sec. 8.
---------------------------------------------------------------------------
Divisions in the less than three-year-old Department of Homeland
Security already are suffering serious setbacks. Just a few days ago,
the New York Times reported that DHS will spend billions to alter or
replace antiterrorism equipment that it has already spent $4.5 billion
on.\8\ Also, the Transportation Security Administration's current
aviation program to screen passengers and their luggage for threatening
objects recently was found to be woefully inadequate by the Government
Accountability Office. The GAO found that there has been only modest
progress in how well screeners detect threat objects following a report
last year that documented gaps in screener security.\9\ The Department
of Homeland Security has significant responsibilities. Taking
management of the SSN away from the SSA, which has been administering
the system since its creation 70 years ago, and placing employment
eligibility verification and employer sanctions into the hands of
Homeland Security seems inefficient at best.
---------------------------------------------------------------------------
\8\ Eric Lipton, U.S. to Spend Billions More to Alter Security
Systems, New York Times, May 8, 2005.
\9\ Government Accountability Office, Transportation Security:
Systematic Planning Needed to Optimize Resources, Statement of Cathleen
A. Berrick, Director Homeland Security and Justice, GAO-05-357T (Feb.
15, 2005) (``GAO Report'')
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iii. h.r. 98 does not include adequate privacy and security safeguards
Privacy and security interests are protected best by identity
documents that serve limited purposes and by reliance upon multiple and
decentralized systems of identification in cases where there is a
genuine need to establish identity. Centralizing authority over
personal identity necessarily increases both the risk of identity theft
as well as the scope of harm when identity theft occurs.
An employment eligibility database containing SSNs and other
personal information would provide too attractive a target to identity
thieves seeking to create false identities for criminal endeavors. The
Government Accountability Office has stated in congressional testimony
concerning the need to protect the integrity of the SSN that:
[t]o the extent that personal information is aggregated in
public and private sector databases, it becomes vulnerable to
misuse. In addition, to the extent that public record
information becomes more available in an electronic format, it
becomes more vulnerable to misuse. In addition, to the extent
that public record information becomes more available in an
electronic format, it becomes more vulnerable to misuse.\10\
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\10\ General Accounting Office, Social Security Numbers: Ensuring
the Integrity of the SSN, Statement of Barbara D. Bovbjerg, Director,
Education, Workforce, and Income Security Issues, GAO-03-941T at 12
(July 10, 2003).
H.R. 98 does not once mention ``privacy.'' The bill has two
references to ``safeguard.'' \11\ There is vague language discussing
protection of the SSN and other sensitive personal information in the
employment eligibility database under the ``Confidentiality''
subsection.\12\ The bill states that database access will be restricted
to those employees whose ``duties or responsibilities require access
for the purposes described in paragraph (1).'' Paragraph (1) restricts
the use of the proposed DHS employment eligibility database to those
required for the administration of H.R. 98 or for ``any other purpose
the Secretary of Homeland Security deems to be in the national security
interests of the United States.'' \13\ It is conceivable that many
employees whose responsibilities do not remotely connect with
employment eligibility verification will have access to the database.
---------------------------------------------------------------------------
\11\ H.R. 98 at Sec. 4(c).
\12\ Id. at Sec. 4(c)(3).
\13\ Id. at Sec. 4(c)(1)(B).
---------------------------------------------------------------------------
Security is vital with any computerized system, which also includes
those containing personally identifiable information such as the one
proposed by H.R. 98. In any computer system, whether centralized or
distributed, there are security threats. There are also threats to a
decentralized computer systems, called distributed networks, which
require periodic connection to a centralized system. Computer security
should be approached as an end-to-end task that must include all parts
of the system's hardware, software, computer disks, tapes, personnel,
etc.
H.R. 98 does not afford the sensitive information in the database
any specific safeguard beyond the above access restriction. The bill
states that the ``Secretary [of Homeland Security] shall provide such
other safeguards as the Secretary determines to be necessary or
appropriate to protect the confidentiality of information contained in
the Database.'' \14\ The Department of Homeland Security has a history
of exempting many of its programs from the provisions of the Privacy
Act of 1974. and not conducting required Privacy Impact
Assessments.\15\ In this climate of heightened awareness of identity
theft, it is essential that such sensitive information have strong,
specific safeguards against misuse or abuse.
---------------------------------------------------------------------------
\14\ Id. at Sec. 4(c)(1)(C).
\15\ Examples include the CAPPS-II, Registered Traveler, Secure
Flight, and Transportation Worker Identity Credential programs. See
generally EPIC's Air Travel Privacy page at http://www.epic.org/
privacy/airtravel/. See, also, ``Homeland Security Information Network
Criticized,'' The Washington Post, May 10, 2005, at A08 (``A Department
of Homeland Security network that shares classified information with
intelligence and law enforcement agencies was put together too quickly
to ensure it can protect the information, according to the department's
acting inspector general.'')
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At the very least, the Subcommittee should prohibit the use of this
card for any purpose other than determining employment eligibility, and
should impose significant civil penalties for violations.
iv. conclusion and ongoing concerns about real id
Mr. Chairman, Members of the Subcommittee, this week the Senate
passed the supplemental appropriations for the troops in Iraq and for
tsunami relief. The bill also included the REAL ID Act. This was a
controversial measure and a controversial manner to pass legislation. I
will not go into all of the debate about the REAL ID Act, but it is
appropriate at this hearing on the SSN to explain why it is important
to fully assess the risks of new systems of identification.
In passing the REAL ID Act, the Congress mandated the collection of
sensitive personal information by the state DMVs at the same time that
the state DMV record systems have become the target of identity
thieves. In recent months, identity thieves have attacked three state
DMVs. In March, burglars rammed a vehicle through a back wall at a DMV
near Las Vegas and drove off with files, including Social Security
numbers, on about 9,000 people. Recently, Florida police arrested 52
people, including 3 DMV examiners, in a scheme that sold more than
2,000 fake driver's licenses. Two weeks ago, Maryland police arrested
three people, including a DMV worker, in a plot to sell about 150 fake
licenses.\16\ Instead of investigating this growing problem, Congress
passed legislation that will require us all to give state DMVs the very
documents that establish our identity.
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\16\ See EPIC, ``National ID Card and REAL ID Act'' http://
epic.org/privacy/id--cards/.
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With this legislation, H.R. 98, Congress would be mandating
increased dependence on the Social Security Number at a time when we
know that the SSN contributes to identity theft and undermines personal
privacy. What will happen, for example, when merchants routinely ask
individuals to present their SSN with the magnetic stripe to verify a
credit card or check purchase? What about entry to a bar, a federal
office building, or an amusement park? Has any thought been given to
the dramatic increase in the collection and use of the SSN that will
result if this bill is passed?
It is tempting to believe that technology and new systems of
identification can help solve long-running policy problems, such as
determining eligibility to work in the United States. But the reality
may be that new systems of identification will create new risks.
It is clear the SSN was never intended to be a national identifier,
and should not be used as such. H.R. 98 has substantial weaknesses. We
urge the Subcommittee to limit the use of the Social Security Number.
We also urge the Subcommittee to create strong safeguards for the
sensitive personal information of every American eligible to work.
Mr. King. And the Chair will recognize himself for 5
minutes. And recognizing that Mr. Dreier is very adept here, I
will pose this question, and that is that I can't recognize
that there has been a single employer sanctioned for hiring
illegals in the last year, and I believe that has been
recognized before this Committee. And so one might assume that
we have an Administration that has less than a full commitment
to enforcing employer sanctions. And we have over a million
unmatched Social Security numbers that go to no identifiable
person within the Social Security Administration or go to
multiple identities for a single Social Security number. And
so, keeping in mind that you do have biometrics into this
Social Security card, it is still a card that will be
recognized by the employer as a piece of identification, not a
lot different possibly than the identification that is in your
card versus your staff's card. If they want to hire somebody,
they have confidence that there is not going to be employer
sanctions, how can we then establish employer sanctions by
another piece of legislation when we have it already in place
now, Mr. Dreier?
Mr. Dreier. Well, thank you very much for that, Mr.
Chairman. Let me first say to the very specific question that
is one of the reasons, as Mr. Reyes pointed out, that we call
for the hiring of an additional 10,000 enforcement agents who
will be out there with the responsibility of enforcing that.
Number two, we increase by 400 percent the penalty from $10,000
to $50,000 per occurrence. Number three, for the first time we
actually call for a 5-year prison sentence for those who
violate.
Now, as my friend, Mr. Bonner, has said to me on several
occasions, think about it. All you need to have are two or
three or four or maybe five high-profile cases in which this
enforcement is insisted upon. And T.J. likes to say, speaking
for himself, I guess, that when it comes to paying one's income
taxes, it is not necessarily done out of patriotism, it is done
because of the existence of the Internal Revenue Service.
Similarly, if we were to have just a few of these high-
profile cases with this 10,000 increase in the number of
enforcement entities and the increased penalties, I believe
that we would see a dramatic diminution in the numbers of
people who are engaging in illegal hiring.
Let me say also that when it comes to this issue of looking
at documents, I have--this is the I-9 Employment Verification
form here. And if you take the combination--there are 94
combinations of documents that at this point are provided. And
I would say, Mr. Rotenberg, among them, is a U.S. Social
Security card issued by the Social Security Administration. So
that happens to be one of them right now that actually is
included.
And so I think that we are clearly on the right path toward
trying to make sure that we do increase enforcement, but at the
same time have a mechanism which is not going to have, again,
as I said in my opening remarks, information made available
that is not otherwise there.
Talk about--I would say to Mr. Rotenberg, you talk about
this whole notion of information in a database becoming
available to anyone else. Now, that is not what I believe would
happen here. All the response would be to the employer is yes
or no; either this person is an American citizen, is here on an
H-2A visa, whatever their status is, as long as it is legal, it
will have simply a yes. And that would be the only information
that would possibly get out there. And, again, that is
information that the Government already has today. So that
would not be used for banks or any other entities.
Mr. King. Mr. Dreier, it says on the card: ``This is not a
national ID card.'' And there is a guest worker component to
your bill, as I understand it.
Mr. Dreier. No, there is no guest worker component. But I
just said that I am supportive of a guest worker component,
because I believe that if you are going to reduce by 98 percent
the number of illegal border crossings, and you are, with the
existence of this card, going to bring the 11-plus million
people who are illegally here out of the shadows, you are going
to have to have some kind of worker program. So I believe that
this will have to be in concert with that.
Mr. King. Recognizing then that the card says, ``This is
not a national ID card,'' will the guest worker plan also say,
``this is not an amnesty plan,'' one that you might support?
Mr. Dreier. Absolutely. And the President of the United
States has said that he does not support an amnesty plan, and I
have said that time and time again. And so I don't know that
the guest worker program will absolutely say that, but I am
clearly on record, as is the President of the United States, in
opposition to a plan which does grant amnesty.
Mr. King. I thank the gentleman for his response.
And the Chair would recognize the Ranking Member, the
gentlelady from Texas.
Ms. Jackson Lee. I thank the distinguished Chair. And I
think I will thank the Chairman for holding this hearing on an
important initiative. Let me thank the witnesses for their
testimony as well, some of which I had the opportunity to
review, and thank them for their indulgence. When there are
overlapping meetings, I appreciate very much your indulgence.
I think none of us would disagree with the idea of a more
secure Social Security card. I am looking at the criminal
penalties in this bill, and I guess I would argue that the
measures that would be established to deter American employers
from hiring undocumented alien employees, this database gives
me great concern. And the question of privacy is one, but the
use of the database--and I will ask that my statement in its
entirety, Mr. Chairman, be included in the record. Ask
unanimous consent.
Mr. King. Without objection.
Ms. Jackson Lee. But I will highlight a few points that I
am concerned about. This bill, H.R. 98, would require Social
Security cards to be issued on plastic instead of on paper, and
it would require the placement of an electronic strip on the
card so the bearer's information can be encrypted and stored on
the card itself. Employers would be able to use the card to
access an employment eligibility database to confirm that a
prospective alien employee is authorized to work in the United
States. It also requires physical features to prevent
counterfeiting, tampering, and duplication of cards.
H.R. 98 directs the Department of Homeland Security to
establish a database that includes the citizenship or residence
status, work eligibility, and other data provided by the Social
Security Administration for all noncitizens who are authorized
to work in the United States. A database this large is likely
to contain many errors, any one of which could render someone
unemployable and possibly more, worse, much worse, until they
can get their file straightened out. It has been difficult to
establish systems to update and correct errors in other
immigration databases, and this one would be unusually large.
The act includes a confidentiality requirement and
restricts access to the database, but it may not be possible to
enforce these limitations. Moreover, once the database has been
created, its use would almost certainly expand. We need to know
what it would cost to establish, maintain, and secure such a
large database. I go on to note that it would increase the
sanctions, and, of course, it has a criminal penalty.
Mr. Rotenberg, we concede the fact that a secure Social
Security card is a very positive initiative. You noted concerns
as it relates to privacy. If we wanted to fix this legislation
and be as astute in our fixing as we possibly could, where
would you first start?
And before you answer the question, let me also say this. I
listened to the Chairman, and I appreciate, I believe I
understand Mr. Dreier has indicated that he is not for an
amnesty program, but I assume some form of allowing individuals
to access some form of legality while they are here in the
United States. And if I am incorrect, you can share that with
me, Mr. Dreier, after Mr. Rotenberg raises his concern. But in
that, it seems as if this bill is conflicted even if it refers
only to new hires, because the individuals who are looking to
be employed in some of these sectors are going to be by their
very nature undocumented. That means the employers, I assume,
in the agricultural industry and hotels and service industries
will then be barred, if you will, from an employment base that
most of us accept the fact is important.
Mr. Rotenberg, would you share with us how we might be able
to add some secure measures to this legislation?
Mr. Rotenberg. Congresswoman, thank you very much for that
question. I think the key point here is that all the sanctions
in the bill concern the unlawful hiring by the employer. There
are no sanctions in the bill for the misuse of the information
that is on the card or for the improper access to the data that
is collected by the Federal Government. And so first thing we
would recommend is imposing some sanctions to ensure that the
card is not improperly used.
Now, this is not a new problem. The States have been
wrestling with the misuse of the Social Security number, for
check cashing, for example, for many, many years. And you are
about to propose a document that will be more reliable to
establish identity, which will also, therefore, become
attractive to private businesses and others.
So I think the first thing that has to happen is to create
some sanctions to prevent misuse.
Ms. Jackson Lee. Mr. Dreier, would you welcome those
provisions being added? Welcome to the Committee.
Mr. Dreier. Well, thank you very much, Ms. Jackson Lee. I
appreciate your being here. And we are on opposite sides where
we usually are. I will say that I obviously want to do
everything that I can to work with our shared goal of
establishing a counterfeit-proof Social Security card. And this
is really the beginning of a process, and I am not going to
tell you that we have put together the absolutely perfect bill
that can't be amended, because I realize that it will have to
go through a process here in the Congress to make this happen.
So, sure, I welcome any kind of input at all.
To your other question that you raised of me, let me say
that on the issue of amnesty, that is a very troubling and
difficult one. But when I say amnesty, I am talking about
making people automatically American citizens. I do think it is
essential that we take whatever steps possible to get people
out of the shadows who are here. I think it is in our national
security interest to do that. But I don't want them to be able
to somehow move to the front of the line and preempt people who
are waiting to have an opportunity to become American citizens.
And I will say that it was difficult for me, but my friend
Mr. Lungren talked about the fact earlier that he was the floor
manager on the Republican side for the 1986 Immigration Reform
and Control Act. I ended up anguishing over that, but I ended
up voting against it because I was concerned at the prospect of
amnesty creating a magnet for people saying, gosh, they are
going to make you American citizens or LPR, legal permanent
residents, then it might create a draw for people to come in
illegally. I don't know whether or not the existence of the
1986 IRCA did, in fact, create that situation, but I will tell
you this: I do believe that the existence of what we are trying
to do under H.R. 98 would diminish that magnet even if we do
figure out some way to bring those 11 to 21 million people,
however many people there are here illegally, out of the
shadows.
Ms. Jackson Lee. I think, Mr. Chairman, I have additional
minutes, because it is added to----
Mr. King. Without objection, the gentlelady will be
recognized for an additional minute.
Ms. Jackson Lee. I think, Mr. Dreier, we have some common
ground. I think we should take the word ``amnesty'' out of our
vocabulary, but it always gets attributed to any of us who
believe there should be some way of accessing citizenship--I
use the terminology ``earned access,'' with a whole litany of
criteria. And I guess the very point of this legislation, one,
you have at least offered the suggestion that you would remain
open. My concern does deal with the security and the protection
of the database, and I would like to engage you on that. But I
also would say that I hope that, as this Committee meets, the
Rules Committee meets, the Homeland Security meets, and a
number of other jurisdictional Committees, that we can talk
about comprehensive immigration reform.
Mr. Dreier. Let me say, you all do it long before it gets
to the Rules Committee. We will be the last stop for you.
Ms. Jackson Lee. Well, your perspective as an individual
Member is important, but what I think is important is that all
initiatives be given consideration, whether it is a bill
introduced today or Save America, a comprehensive bill that I
have introduced. I think they all have elements.
So I would just offer, Mr. Chairman, that this Committee
really needs to look--in addition to issues that are isolated
around important points, they need to look at comprehensive
reform as well, and I hope we will be able to do that.
Mr. Dreier. Mr. Chairman, could I ask unanimous consent
along--I know that Chairman Hostettler asked unanimous consent
that our statements appear in the record, but I referred to a
couple of articles, and I have some letters in support of the
legislation that I would like to have included in the record.
Mr. King. Without objection, so ordered, Mr. Dreier.
Ms. Jackson Lee. And I would like to submit the Chamber of
Commerce United States of America letter dated May 12, 2005, to
both the Chairman and myself, the Ranking Member. I would like
to ask unanimous consent to submit it into the record signed by
Randall Johnson, vice president.
Mr. King. Without objection, also ordered.
Mr. Dreier. Mr. Chairman, if I could just respond to the
letter from the Chamber of Commerce. I would like to say that
we have been in touch with the United States Chamber of
Commerce and are working with them to see if we can find areas
of agreement. I know that they are generally supportive of the
notion of trying to establish some kind of counterfeit-proof
Social Security card. The letter to which Ms. Jackson Lee has
just referred and now has been entered into the record raises
concern about the penalties. And I think that we are going to
continue working with the Chamber of Commerce to try and see if
we can come together on that as well. Thank you.
Mr. King. I thank the----
Ms. Jackson Lee. We all work together. Thank you.
Mr. King. At this point in the hearing, duty calls me, and
I will yield the Chair to the gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. [Presiding.] Thank you.
And at this time we will hear from the gentleman from
California. You have questions? For 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Rotenberg, you seem to talk about the magnetic strip
being a problem. If I understand it correctly, the gravamen of
your concern is that some private parties could utilize the
information on the magnetic stripe for purposes other than just
identification?
Mr. Rotenberg. That, with the addition of the stripe, the
card becomes more useful for identification to other parties.
Yes.
Mr. Lungren. But I mean, are you saying they would try and
take information off that magnetic stripe other than just the
identity of the individual?
Mr. Rotenberg. No, I am not. I am saying that when you make
a card machine-readable, you create more opportunities to
collect the information that is contained on the card. For
example, let us imagine trying to board an airplane in the
United States a few years from now. You might decide to have an
identity document that is machine readable so that you can get
people on to the plane more quickly. The information that is
disclosed on the magnetic stripe is the same information that
would be displayed at the terminal to whoever would ask for the
card.
But by making it machine-readable, it becomes more
accessible. So this is a significant functional change in the
Social Security card that is being proposed. It is different
from the tamper-proof elements that are contained in a card,
for example, that is made of plastic or includes a hologram.
Mr. Lungren. So you would like, I assume, some penalties
attached to those who would misuse information that they could
access from the magnetic strip.
Mr. Rotenberg. Well, absolutely, or to the database.
Mr. Lungren. Mr. Dreier, you wouldn't have any objection to
that, if that were the concern? That is, somebody abusing the
use to which that was supposed to be made.
Mr. Dreier. Absolutely not. Of course not.
Mr. Lungren. Interestingly enough, Congressman Dreier, when
you talked about IIRIRA and wondering whether that caused more
people to come over the border, I thought that Congressman
Reyes' comments were instructive on that following the passage,
initially he saw a significant dip and it was only after there
was a failure to enforce that we saw that rise, which commends
itself to your attention, such that we ensure that that not
happen again and that the enforcement mechanism be timely but
continuous.
To that regard, let me address a question to both you and
Mr. Bonner, and that is, if we had sufficient money to add
100,000 people in terms of enforcement of our borders, interior
and borders, in terms of immigration, would that have an impact
on the enforcement level?
Mr. Dreier. Well, let me just say, again, as I did a few
minutes ago, that I believe that if we were to see just a few
high-profile arrests and convictions, there would be a great
diminution in the numbers of illegal hirings. And so, you know,
we have chosen a number of 10,000 enforcement agents here to be
hired. And that is--again, that came from the work that I did
with T.J. Bonner, and working in concert with our staff and
all.
I do not know that increasing to 100,000 enforcement agents
would somehow create a much better situation. We have got to
enforce it. I mean, we know that.
Mr. Lungren. Let me ask Mr. Bonner, if you had in the last
10 years 100,000 additional agents, enforcement, investigative
officers, attorneys, et cetera, or an additional number of
people--in excess of 10,000, but whatever number you thought--
and then the balance of that money used for increased detention
facilities, would that have made a difference?
Mr. Bonner. It would have made some difference, there is no
doubt about it. But the current law is flawed; that is the
problem. We put the burden on the employers to discern from
dozens of different types of documents, all of which can be
easily counterfeited, whether the person has a right to work.
So we would----
Mr. Lungren. So we need the laws and we need people to
enforce them.
Mr. Bonner. Well, we need a change in the law so it makes
it easy for the employer to figure who has the right to work.
And then, of course, we are going to need enforcement agents to
go around and keep people honest.
As Congressman Dreier says, you do not need to go out and
levy thousands of fines every year. The IRS does not audit
everybody every year. They do not fine that many people. The
ones they do make the front page of the paper, and people are
sufficiently intimidated to be honest on their taxes.
Mr. Lungren. See, what I get out of this testimony is that
it is a question of us establishing priorities at the Federal
level, and we are the primary, if not the exclusive, agent
under the Constitution for controlling our borders.
The reason I picked 100,000 is that happens to be the
number that was promised by an administration through the COPS
program of increasing cops on the street at the local
jurisdictions. And while we were busy trying to pretend that we
are the primary obligator of local law enforcement, we fail to
put the money into those things we are supposed to do. And that
is why I say 100,000.
What if, instead of having a, quote, unquote, COPS program,
we would have had over the last 5 years, or the last 10 years,
that money and that attention put into the enforcement of our
immigration laws. It seems to me we would have had a real
impact. And the problem is that we in Congress and many in
Government spend time trying to find other things that we
should do rather than things that we are obligated to do. It is
not a question that we don't have the money; we put the money
in to put 100,000 cops on the street, so we can talk about it
instead of doing this.
My point is, we have the ability to put the emphasis there
if we wish, and we need the tools that are suggested in this
bill.
I thank the Chairman for his indulgence.
Mr. Gohmert. [Presiding.] Thank the gentleman from
California.
At this time, the Chair yields to the gentleman from
Michigan, Mr. Conyers, for 5 minutes.
Mr. Conyers. Thank you, Mr. Acting Subcommittee Chairman
Gohmert from Texas. This has been quite a series of leadership
changes in Judiciary.
Gentlemen, we have got what constitutes to me some
ambiguity about this program. I am looking, first, at the
recognition that Social Security numbers and record information
is essentially a matter of keeping information on who is
working and is directed toward the Social Security
Administration. And what Mr. Dreier's well-intentioned
legislation would do now is to transfer this Social Security
number information to the Department of Homeland Security. That
would dramatically expand Homeland Security to include a
determination of who is eligible to work in this country and
what should happen to employers that may violate the law,
including up to 5 years imprisonment.
Now, the question that I raise with Mr. Rotenberg is this:
Can we pursue both of these goals and share this jurisdiction
and criminalize employer behavior and include, possibly,
biometric strips which could introduce other information and
move us toward this national identity card without creating
some serious problems about the integrity of the Social
Security card itself?
Mr. Rotenberg. Congressman, I think that is the critical
question, and you put it very well.
One of the key points about the history of the Social
Security number in this country is that the Social Security
Administration itself has always been very protective about the
use of the number. They understood, and the law makes clear,
that the reason for the number is to administer the Social
Security benefits program. And all the proposals that have come
forward over the years, including the expansion of the use of
the SSN for a tax identification number in 1961 was opposed by
the Administration because of the concern that the number would
become a de facto national identity number.
Now we are at a point in time when the Department of
Homeland Security is trying to use the Social Security number
to enforce a border control policy and determine who is
eligible to work in the United States. And they are looking to
the Social Security number as a way to enforce those
restrictions.
And you can see, as I tried to suggest in my testimony,
this will come at a cost to privacy both in the use of the SSN,
and also in the fact that this other agency, the Department of
Homeland Security, will now have other opportunities to use
these records for other purposes.
So this is a very difficult problem, and I do not think the
legislation, at least as it is currently drafted, solves it.
Mr. Conyers. Could I ask Chairman Dreier to weigh in on
this same question?
Mr. Dreier. Absolutely. I would like to.
It gets back to what I raised in my opening remarks. When
we have an instance, as we did in Chicago, where a woman who
had a Social Security card, an American citizen had a Social
Security card, and found 37 instances, 37 different people who
were here illegally utilizing that SSN of hers, I think that
raises the specter of concern here.
Now, I know full well that if you look at the problems that
we have of illegal immigration--I am from Los Angeles. If you
look at the problem, there has not been a single one, a single
terrorist from Latin America. We know that. There is no
terrorist threat that is posed by our very, very important
neighbors to the south.
But I will say this: Of those 37 instances of people who
are here illegally, who used that woman in Chicago's Social
Security number, we do not know where they came from. I do not
know where they came from; all I know is that there were 37 of
them.
So I think that what has happened here is--and, you know,
going back to 1961, going back to 1935 when the Social Security
law was signed by President Roosevelt, we didn't have a
Department of Homeland Security. We did not have what took
place on September 11, 2001. Our world has changed.
Now, that doesn't in any way diminish our commitment to
civil liberties or our commitment to the right to privacy. But
obviously, we have all sacrificed since September 11. And
Members of this Committee are going to airports, and every
single person who has traveled has had to pay a price because
of what happened on September 11.
I am not saying that we should in any way encroach beyond
what is necessary when it comes to the right to privacy and the
civil liberties of the American people, but I do think that
this instance that I just talked about does raise a justifiable
concern.
Mr. Conyers. How would you feel, Chairman Dreier, were this
to go--instead of going to the Homeland Security Department, it
would go to the Department of Labor, for example, which would
seem to have more concern about the authorized or unauthorized
employment of people within the United States?
Mr. Dreier. I understand that concern. But again, you heard
what I just said.
I mean, while most of the people who are in this country
illegally are here for one reason and one reason only, that is,
to feed their families, we do know--and we call this H.R. 98;
Mr. Bonner said it will reduce by 98 percent the number of
illegal border crossings. Why? Because the people who are
coming in are simply seeking economic opportunity. They are the
2 percent, those 2 percent who potentially pose a terrorist
threat or are criminals in other ways here.
Now, I do not want those people to--as potential terrorists
or criminals, to have an opportunity to slip through. And so I
certainly agree. But I do not know whether the Department of
Labor and the Social Security Administration are in a position
to deal with that other 2 percent.
Mr. Conyers. I get your point here. But wouldn't it--do we
have to take over a whole department just to protect us against
people who might come up with fraudulent Social Security cards?
And, by the way, we probably do not have a lot--we may not
have a lot of evidence, if this ever happens, that these cards
would sooner or later not be as vulnerable as the present cards
were. So what I am thinking is, I can think of other agencies
that might fit under Homeland Security, if it is the basis of
getting every last violator, based on the case that you
reiterated to us.
Mr. Dreier. I think it is a very fair point about what
potentially could happen to this counterfeit-proof Social
Security card. But remember, the flimsy little piece of paper
that is now in Jo's wallet, I presume, behind me, and I am no
longer holding, is what has existed since 1935. We haven't even
made an attempt since 1935 to update this; and we have
celebrated the anniversary of the Social Security system.
We are talking about reforms in this area, but we have done
nothing. And so I am just hoping that we can at least make a
step toward bringing the Social Security card itself into the
21st century.
Mr. Conyers. Thank you. I would rather us pass a law or
entertain some proposals, rather than turning this over to
Homeland Security.
Mr. Dreier. On the Homeland Security issue, you said, turn
it over because of the problem of, you know, employment. We
have a Department of Homeland Security for one reason and one
reason only; that is, we are faced with a terrorist threat that
we did not believe existed before September 11 of 2001, and
that is the reason this Department was put into place. That is
what has raised this concern that hadn't existed before that.
Mr. Gohmert. Well, at this time, I yield myself 5 minutes,
and I appreciate you all's testimony. These are difficult
issues, and as with so many of the things we deal with, it
requires a great deal of balancing.
Chairman Dreier, I have heard lots of people say over the
years and especially more so the last few years, that there is
absolutely no way to round up millions of people who are
illegally here and deport them, that we simply do not have the
resources in this country to do it. And it occurs to me that
this could be one of the answers.
Is that one of the considerations in coming to this?
Mr. Dreier. Absolutely. And my friend, Mr. Bonner, has
pointed this out on several occasions. If you have people, if
there are 11 to as high as 21 million people here illegally--
and this card can obviously be duplicated very, very easily.
But this one, the idea behind it, we hope won't be able to
be duplicated. If anyone who is here illegally is hoping to get
a job, they are looking for a new job, they won't be able to
get that job if they do not have one of these. And they cannot
have one of these unless they are here legally.
And so what does that say to someone who is here illegally?
I might as well go home, because I can't feed my family in the
United States without this.
So you are absolutely correct, Mr. Gohmert, the notion of--
again, as I said, that is why I am for a worker program,
bringing people forward, bringing them out of the shadows. I
mean, it is a security threat to us to have literally millions
of people here illegally because among them could be potential
terrorists.
And so to allow the Border Patrol, to allow the 10,000
people who work with T.J. Bonner to spend their time and energy
on the criminals, the potential terrorists, rather than on
people who are simply trying to feed their families is what
this card will allow those enforcement people to do.
Mr. Gohmert. Thank you.
Mr. Rotenberg, of course, you have heard the other
testimony as well. And I appreciate your insight, because you
bring up some very important issues.
And, of course, going back to 1935, as I understand it,
there were concerns back then that the number might be used as
a national identification number; and there were assurances it
would never be used for anything but identifying an account
that the Government would have.
But you made the comment that the Social Security
Administration has been so protective--words to that effect--of
this information, and yet I wonder, have you ever sent in your
income tax return without your Social Security number on that,
or tried to go to the White House without a Social Security
number?
It seems like it has been pretty well established and
accepted as it is; this is a number that you are going to have
to utilize to get anywhere. You surely have to acknowledge its
widespread use at this point, whether we change the card or
not.
Mr. Rotenberg. That is certainly true, Congressman. My
point was simply that the Social Security Administration has
typically opposed the expansion of its use, and I think for
good reason.
As I mentioned earlier, one of the things that we have seen
this year has been the dramatic explosion of identity theft in
the United States. And that is a final crime that is enabled by
having access to someone else's Social Security number. And all
of the advice that the banks and the consumer agencies and
everybody else is giving American consumers today is to limit
the disclosures of your Social Security number.
So when you propose to make that number machine-readable
and encourage employers and others to have access to it in
digitized form, I think you are creating new risks that that
number is going to be misused. That was simply my point.
Mr. Gohmert. Are you saying employers, up to the time of
this bill that we are considering, do not have Social Security
numbers already?
Mr. Rotenberg. No. Of course--the employer is required, in
fact, to collect this.
Mr. Gohmert. That is already out there.
Mr. Rotenberg. They use it for tax reporting purposes. But
we haven't yet in this country----
Mr. Gohmert. And it is generally on most of our--as part of
our paychecks and things like that. I mean, it is already out
there. It does not seem that this would change that at all.
Mr. Rotenberg. Right. Certainly, Congressman, it is out
there, and I am simply suggesting that there is a real effort
under way in this country right now to try to limit its
availability because we are beginning to see the consequences
in terms of a certain type of crime.
The other thing I would just like to mention briefly is
that in 1974, when Congress passed the Privacy Act, which was
very important legislation to make sure that our personal
information would not be misused by the Federal Government,
they also very clearly tried to limit the use of the Social
Security number. They did not want the Social Security number
to become a general record identifier across the Federal
agencies.
And I think this is another issue that we need to consider,
because with this bill, you are now giving the Department of
Homeland Security the opportunity to use that Social Security
number as an identifier for American citizens. I do not think
it is something that the Congress that passed the Privacy Act
would have supported.
Mr. Gohmert. Thank you.
Just in closing this out, I will give each of you a chance,
2 minutes, if you would like to make a final closing statement
for the record.
Mr. Dreier. I think I have talked longer than anybody here,
Mr. Chairman. You have been very kind.
I just will express my appreciation again to you, and Mr.
Fishman and all of your colleagues on the Committee for giving
us an opportunity to do this.
We want to work and put together a piece of legislation
which will help us secure our borders, deal with this great
challenge that we have of illegal immigration, and I hope we
will be able to welcome you all to the Rules Committee with
this legislation before too terribly long.
And I know that Mr. Bonner, who is--he is a very thoughtful
guy and has a lot to offer, so I hope he will offer some
closing remarks.
Mr. Bonner. Mr. Chairman, a couple of points I would like
to address:
The information on the back of that card would be readable
by the Federal Government. The employer would get a ``yes'' or
a ``no;'' they would not have access to the information on
there.
And also, Homeland Security, as we speak, has a role. The
former INS was folded into the Department of Homeland Security,
and they do have a role in working with Social Security when
foreigners come into the country applying for Social Security
cards; your resident aliens, they have to be cross-checked
through the INS. So this really is not some brand-new burden or
brand-new expansion of Government powers.
I would like to say that this piece of legislation, from
the standpoint of the frontline employees who are out there
enforcing our immigration laws, is the single most important
step that can be taken to allow us to secure our borders. And
we want to do that.
But we are just overwhelmed at this point. There are 10,700
uniformed Border Patrol agents to provide 24/7 coverage for
6,000 miles of land border between the United States and Mexico
and Canada. And figure at any given time, at best, you have 25
percent of that workforce out there, because you are running
three shifts a day, 7 days a week.
The odds are stacked against us. With millions of people
flooding across the borders every year in search of employment,
we simply cannot control the borders. We have no idea who is
getting by us. Our biggest fear is that terrorists and
criminals are getting by us.
This would enable us to reduce that number from millions
down to thousands, and would allow the United States Border
Patrol to actually secure our borders. So I urge the Congress
to pass this very important legislation.
Thank you.
Mr. Gohmert. Thank you.
Mr. Rotenberg.
Mr. Rotenberg. Mr. Chairman, I just want to thank you, of
course, for holding this hearing. I appreciate the opportunity
to be here.
You know, the American public feels very strongly about the
privacy issue, and the use, and the possible misuse, of the
Social Security number has always been a critical concern.
I appreciate what the Members are trying to do with the
legislation. We really have no views on the efforts that
Congressman Dreier is pursuing regarding illegal immigration.
But as to the privacy impact on American citizens, because
all of us will have this new Social Security card, it will be
very real. And I am hoping that as a result of the issues that
were raised during the course of the hearing, there will be an
opportunity to work with the Members of the Committee and
staff, and certainly Congressman Dreier, to see if there will
be ways to address these privacy concerns.
The decisions that you make about the establishment of
identification systems will be with us for a very long time to
come; and what you decide to do or not do about the collection
and use of the Social Security number is going to be the way it
is in this country for a generation or more. That has been our
experience with the current Social Security card.
Mr. Gohmert. Thank you. And we do appreciate each Member's
testimony.
The gentlelady from Texas.
Ms. Jackson Lee. Thank you, Mr. Chairman. Mr. Rotenberg, I
would like to take you up then.
Mr. Gohmert. Excuse me. Were you wanting to ask additional
questions?
Ms. Jackson Lee. Yes, sir.
Mr. Gohmert. We didn't end up having another round at this
point. They each just made final, closing statements.
Ms. Jackson Lee. Well then, let me ask unanimous consent to
pose a comment to Mr. Rotenberg, and he can respond to me in
writing.
Mr. Gohmert. That would be fine.
Seeing how it is you and me, the Chair will yield to you,
allow you to ask your question, and allow Mr. Rotenberg to
answer here.
Ms. Jackson Lee. That is very kind of you, sir. Thank you
very much.
Mr. Rotenberg, I want to take you up on your challenge and
accept Mr. Dreier's open-mindedness to find a way to add
provisions to the legislation, or to look at initiatives that
might deal with the privacy question. It may be larger than we
all might imagine.
But you indicated provisions. Do you have specifics that
you might be able to share with us very quickly at this point?
Mr. Rotenberg. I would be happy to, Congresswoman.
In addition to sanctions on misuse, I think there are
security techniques that could be added; I think there are
other limitations on access to the database and, frankly, the
role of the Secretary of the Department of Homeland Security.
And how that information might be used for our purposes, I
think, is something that the Committee should consider.
Ms. Jackson Lee. We will then take you up on that offer.
I would hope, Mr. Chairman, as I close, that this bill has
certainly--the hard work of Mr. Bonner, we thank you very much.
My colleagues, Mr. Reyes, Mr. Dreier, I think it is worthy
of our further consideration. I think there are elements of it
that are intended to be very strong, but I think we need to
look at the far-reaching impact, particularly the prison
sentencing, if you will.
I believe in employer sanctions. I believe we have to
address the question, but I think we need to find a way
comprehensively to make sure that it will actually work.
And I thank the Chair very much. I yield back.
Mr. Gohmert. Thank the gentlelady from Texas.
Thank you, witnesses. Each witness or each Member who
wishes to revise and extend their remarks may do so within the
next 3 legislative days.
I would like, in a final comment, though--Mr. Rotenberg,
you continue to raise a very important question about the use
or misuse of the Social Security number. And what occurs to me
is, it is so easily used and misused now with these cards that
are now 70 years old, that it seems that the efforts of
Chairman Dreier and Mr. Reyes and Mr. Bonner and those that
have worked on this may actually help to curb the misuse. And
that is my one thought.
Appreciate your comments. If you wish to revise and extend,
you have 3 legislative days. At this time, the hearing is
adjourned.
[Whereupon, at 3:45 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
The Illegal Immigration Enforcement and Social Security Protection
Act of 2005, H.R. 98, was introduced by Rep. David Dreier on January 4,
2005. H.R. 98 is intended to improve the security of social security
cards and make it more difficult for undocumented immigrants to work in
the United States. I agree that we need more secure social security
cards. I am opposed, however, to the extreme measures this bill would
establish to deter American employers from hiring undocumented alien
employees, and I have a number of concerns about the large database
that the bill would require to enable employers to confirm that a
prospective alien employee is authorized to work in the United States.
H.R. 98 would require social security cards to be issued on plastic
instead of on paper, and it would require the placement of an
electronic strip on the card so the bearer's information can be
encrypted and stored on the card itself. Employers would be able to use
the card to access an employment eligibility database to confirm that a
prospective alien employee is authorized to work in the United States.
It also requires physical features to prevent counterfeiting,
tampering, and duplication of the cards.
H.R. 98 directs the Department of Homeland Security (DHS) to
establish a database that includes the citizenship or residence status,
work eligibility, and other data provided by the Social Security
Administration (SSA), for all noncitizens who are authorized to work in
the United States. A database this large is likely to contain many
errors, any one of which could render someone unemployable and possibly
much worse until they get their ``file'' straightened out. It has been
difficult to establish systems to update and correct errors in other
immigration databases, and this one would be unusually large.
The Act includes a confidentiality requirement and restricts access
to the database, but it may not be possible to enforce these
limitations. Moreover, once the database has been created, its use
would almost certainly expand. We need to know what it would cost to
establish, maintain, and secure such a large database.
H.R. 98 would require prospective employees to obtain a new social
security card from the SSA and to present the card to a prospective
employer before employment commences. It would prohibit employers from
hiring any individual without verifying that the prospective hire
possesses a new social security card bearing a photo and is authorized
to work in the United States.
H.R. 98 would increase the sanctions available for hiring an
undocumented alien employee. It does offer some degree of protection
against the imposition of unjust or unwarranted sanctions. It provides
that employers who act in good faith will not be liable if the hiring
of someone who is not authorized to work was due to an error in the
verification system that was unknown to the employer, and the employer
terminates the employee upon being informed of the error. This is a
start, but we need better precautions against mistakes in imposing the
new sanctions.
H.R. 98 authorizes DHS to impose penalties on employers who hire an
alien known not to have work authorization or without using the
verification system. The amount can be as much as $50,000 per
violation, but it also permits DHS to require the employer to pay the
costs incurred by all levels of government for removing the alien. It
authorizes DHS to bring a civil suit in a district court if necessary
to secure payment of any penalties. Moreover, it establishes criminal
penalties, including imprisonment for up to five years for employers
who knowingly hire someone who is not authorized to work in the United
States or who fails to verify the work authorization of any new hire.
The employer sanctions are too harsh. It is not necessary to
authorize DHS to fine employers up to $50,000 for each violation, and
it is excessive to authorize up to five years of incarceration for
hiring undocumented employees. It is not apparent why we need harsher
sanctions in any event. The existing sanctions have not been widely
enforced yet. We do not know whether harsher ones are necessary.
Thank you.
Articles and letters submitted by the Honorable David Dreier, a
Representative in Congress from the State of California
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Letter from the Chamber of Commerce of the United States of America
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