    [House Hearing, 109 Congress]
    [From the U.S. Government Publishing Office]

     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

        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

        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\
    ---------------------------------------------------------------------------
        \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).
    ---------------------------------------------------------------------------
        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'')
    ---------------------------------------------------------------------------
     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\
    ---------------------------------------------------------------------------
        \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.'')
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        \16\ See EPIC, ``National ID Card and REAL ID Act'' http://
    epic.org/privacy/id--cards/.
    ---------------------------------------------------------------------------
        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

      Letter from the Chamber of Commerce of the United States of America