[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





                 U.S. GOVERNMENT PRINTING OFFICE

21-141                 WASHINGTON : 2005
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government 
Printing  Office Internet: bookstore.gpo.gov  Phone: toll free 
(866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail:
Stop SSOP, Washington, DC 20402-0001




                       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




                                 
