E-Verify: De Facto National ID and the End of Privacy

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Rev. John Whitehead

By John W. Whitehead

As technology grows more sophisticated and the American government and its corporate allies further refine their methods of keeping tabs on citizens, those of us who treasure privacy increasingly find ourselves engaged in a struggle to maintain our freedoms in the midst of the modern surveillance state.

The latest attack on our right to anonymity and privacy comes stealthily packaged in the form of so-called job protection legislation. Introduced by House Judiciary Committee Chairman Lamar Smith (R-Texas) in June 2011, H.R. 2885 (formerly H.R. 2164), the “Legal Workforce Act,” is being marketed as a way to fight illegal immigration and “open up millions of jobs for unemployed Americans and legal immigrants.” However, this proposed federal law is really little more than a Trojan horse, a backdoor attempt by the powers-that-be to inflict a de facto National ID card on the American people.

Created under the auspices of securing the borders and preventing illegal immigrants from being hired for “American” jobs, E-Verify challenges the rights of the individual, the rights of labor and the rights of industry. As such, this is not a left or right issue. Anyone who values civil liberties should be alarmed. In fact, E-Verify is being opposed by various civil liberties groups such as the ACLU, American Library Association, The Rutherford Institute, Liberty Coalition and others.

If approved by Congress, this legislation would make the federal government the final authority on who gets hired by American businesses and in the process create a bureaucratic nightmare for already over-burdened and over-regulated small business owners. In a nutshell, H.R. 2885 requires all employers to submit potential employees’ names, Social Security numbers and other data to the Department of Homeland Security (DHS) for authorization before the employees can start work. The data would then be run through E-Verify, a government-run database and employment identification verification system.

In other words, the E-Verify system would require all those wanting to be employed by American companies to register the credentials of their citizenship in a government database. What this means, of course, is that in order to be able to verify an applicant’s legitimacy, the government would first have to build a massive database to store the biographical information of the entire working population in the United States—a huge undertaking with numerous pitfalls and security flaws, as we have seen with many other government databases. If you think unemployment is a problem now, just wait until your employment hinges on getting government clearance. Under this legislation, if a worker’s information is incorrect in E-Verify, he or she can’t work until the problem is resolved.

Furthermore, due to the sensitive information contained in the database, it would be a huge target for hackers and identity thieves, while doing little to curb the flow of illegal immigration or illegal immigrants getting jobs. Indeed, with a stolen or faked identity, anyone could bypass the system and secure employment.

This legislation poses even greater threats to privacy, free speech and free association and potentially hinders Americans’ ability to travel freely. Because the E-Verify system would apply to everyone eligible to work in the United States and will grow to include biometrics such as fingerprints, DNA and iris scans, it will be used for a host of other purposes by the intelligence community, law enforcement and corporate America.

Private employers will become extensions of the government in that they will eventually be required to verify whether employees are delinquent in the payment of federal, state or local taxes, in compliance with child support or alimony decrees, on a terrorist watch list or convicted or even accused of a crime. Employers, thus, would be enlisted as de facto law enforcement officers for the federal government. Furthermore, errors in the verification process would be practically immune from timely legal redress in violation of constitutional tenets of due process.

Recently, the prohibition in H.R. 2885 on using the E-Verify database for purposes other than employment verification was replaced with a new section that allows the system to be used to “protect critical infrastructure.” That term is broadly defined and it’s not clear what this would mean in practice—whether screening air travelers or controlling access to federal facilities—but it clearly signals a huge expansion of the program. In one paragraph in the legislation the government states that E-Verify will not be used just for employment but also can be used for verifying identify for national security. What this means is that American citizens would have to have their information correct in E-Verify not just to get a job but also potentially if they need to access “critical infrastructure”—i.e., any kind of public transportation. Ironically, this language comes right after the paragraph saying there will be no National ID card.

Despite assurances to the contrary, E-Verify will become a de facto National ID system. Such a database with vast pools of personal information directly tied to individuals shared across a multitude of government agencies would give the government an alarming amount of control over the average citizen. If government officials so chose, they could easily track any person who had registered in the E-Verify system for whatever reason.

Not only will government agencies know everything about American citizens, but private corporations will become policemen for this system. The E-Verify system—part of a broader trend in American politics, namely, the collusion of government and corporate interests—will allow government and corporate officials to repress dissidents and suspects simply by restricting their access to basic services. Once all of your information is tied together and placed in one grand database, any government or corporate agency can wreak havoc on your life. You might try to buy groceries only to find that your credit card has been denied. You might apply for a job, at ten, twenty, fifty corporations only to find that, despite your being very qualified, there just isn’t any room for you at the company. Without a job, you might be forced to tap into the welfare system, only to find that your application was denied. Your property might be confiscated. When you try to move somewhere else and start anew, you might find you can’t board the plane because you’re on a no-fly list. Make no mistake, these are the tactics of a totalitarian society.

However, the idea of singling out and “identifying” individuals for the sake of national security is nothing new. National identity cards also carry with them a historic risk of oppression and persecution, as they have been used to identify and track ethnic, racial and religious groups and have facilitated oppression and persecution against these groups. And as recently as the 1990s, identity cards played an instrumental role in one of the worst genocides of the twentieth century, second only perhaps to the Holocaust.

With the introduction of an identity card that contains information such as ethnic origin, government agencies will be able to identify people on the basis of race or religion with considerable ease. For example, in the months following the 9/11 attacks, Muslim men from Arab or South Asian countries were rounded up on the basis of religion and ethnicity and detained indefinitely in the United States, often without access to an attorney or a judge. Imagine how much more far-reaching that government detention program might have been with a National ID in place.

Various laws have been enacted over time to guard against unreasonable intrusions by the government into our private lives. One such law is the Privacy Act, which was passed by Congress in 1974 and prohibits the government from forming a database. However, although the fear was that such a database could constitute an invasion of privacy, the law only prevents the government from creating a database, not accessing an already existing database.

At the time the Privacy Act was passed, Congress had no reason to suspect that private corporations would ever have the desire or means to create such databases. The emergence of data collection corporations, however, has enabled government intelligence and police agencies to circumvent the law and gain information on private citizens with the click of a button. Although such tactics clearly contradict the spirit of privacy laws intended to guard against government abuse, it is technically legal for the government to gain access to these databases. Government officials have taken full advantage of this loophole. Due to the fact that these databases are owned and operated by private corporations, they are relatively unregulated and fall outside the scrutiny of privacy watchdog groups. Reports of security breaches at numerous data brokerage companies only serve to fan concerns about the lack of oversight and regulation.

Rest assured that were Congress to approve this E-Verify legislation, it would constitute the ultimate end-run around the Privacy Act and open the door to a National ID. Thus, we have reached a crossroads. Either we limit the reach and power of the government (often in collusion with corporate power) or privacy as we have known it will become extinct.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org


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