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E-Verify and Privacy

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  • Senate Adopts Immigration Bill with E-Verify Requirement: The Senate has passed an expansive immigration bill that includes employment verification by the federal government for all U.S. employees -- "E-Verify" -- within five years. In testimony before Congress, EPIC warned of inaccurate employment determinations in the E-Verify system and said that Privacy Act safeguards must be strengthened to ensure fairness and accountability. In June 2011, EPIC filed comments with the Department of Homeland Security in opposition to the expansion of E-Verify. For more information, see EPIC: E-Verify and Privacy and EPIC: Spotlight on Surveillance - E-verify System. (Jul. 5, 2013)
  • Coalition of Organizations Call for Greater Accountability for E-Verify: Numerous organizations across the political spectrum have urged Congress to reduce the error rate for the employment verification system "E-Verify". A bill now pending in Congress will mandate employer verification of an all employees’ eligibility to work in the United States. In testimony before Congress in 2007, EPIC warned of inaccurate employment determinations in the E-Verify system. EPIC also cautioned against straining the resources of the Social Security Administration and the aggregation of employment data into a central location. In June 2011, EPIC filed comments with the Department of Homeland Security in opposition of the proposed expansion of E-Verify. For more information, see EPIC: E-Verify and Privacy and EPIC: Spotlight on Surveillance - E-verify System. (May. 9, 2013)
  • Department of Homeland Security Limits E-Verify Data and Disclosures: The Department of Homeland Security has issued a Privacy Act system of records notice for the E-Verify Program. E-Verify is a government records system that informs employers about the citizenship status of current and prospective employees. The database contains detailed personal information including names, dates of birth, Social Security numbers, and citizenship status for all individuals subject to review. This Privacy Act notice minimizes the information that the agency will collect, and also limits the agency's ability to disclose personal information to outside entities. Last year EPIC, along with a coalition of privacy, consumer rights, and civil rights organizations, encouraged DHS to strengthen privacy and security safeguards for E-Verify. For more information, see EPIC: E-Verify and Privacy. (Aug. 9, 2012)

Background

The Immigration Reform and Control Act of 1986 ("IRCA") made it illegal for employers to "knowingly" hire non-citizens who were not authorized to work in the United States. Most employers began to require all new hires to complete the I-9 Form initial provided by the Internal Revenue Service (IRS), established identity and work eligibility. Employers are required to maintain each employees I-9 Form and copies of identity documents among business records should they be required by the Immigration and Naturalization Service officials. The law also created a voluntary "Basic Pilot" program, which provide pre-employment eligibility screening to employers who wished to participated in the federal program. Basic Pilot, was a joint project of U.S. Customs and Immigration Services and the Social Security Administration. In 1997, the pilot worker screening program began to use an electronic employment eligibility verification system.

On November 22, 2002, the Homeland Security Act of 2002, became Public law 107-296. The law abolished the Immigration and Naturalization Service and moved all of its functions including the I-9 Form dissemination and the Basic Pilot project to the Department of Homeland Security. The Department of Homeland Security transitioned the Basic Pilot Project into the E-Verify Program.

E-Verify is a national internet-based computer records system that effectively requires employers to verify the citizenship status of their current and prospective employees. The Department uses the system to retain names, dates of birth, Social Security numbers ("SSNs"), and citizenship status for all individuals subject to review. The Department retains all of this information for ten years. Employers who use the system require their employees to provide Social Security numbers, which employees are otherwise not required to provide. In fact, despite the Social Security Administration's ("SSA") participation in the E-Verify system, the SSA has previously stated that "[r]epetitive use and disclosure of SSNs in organizational record keeping systems . . . multiplies the susceptibility of persons to potential identity theft." Employers submit their employees' SSNs to the Department of Homeland Security, as well as other personal information the employee provides through a "Form I-9" questionnaire.

The Department matches the information it receives against E-Verify's databases, populated with records from the SSA's "Numident" System. The Numident master file is a record of personally identifying information (“PII”) including name, date of birth, and SSN. The information is provided to the government by SSN applicants on Form SS-5 "Application for a Social Security Number." The Department also uses the E-Verify system to match employee information against any number of the twenty-one databases maintained by DHS and other federal agencies. These additional databases contain signatures, fingerprints, photo images, immigration statuses, addresses, changes of address, prior visa issuances or refusals, and government benefit eligibility data. In its System of Records Notice, the Department provides an example of database verification. An employee who provides an "Alien Number" would trigger an agency search into the USCIS Central Index System (“CIS”) and a photo match with an Employment Authorization Document (“EAD”) image. If DHS concludes that its search through these databases "verif[ies] the employee's employment eligibility," the agency sends the employer an "Employment Authorized" notification. If not, the employer receives a "Verification in Process" response, and the Department undertakes further review.

The Department of Homeland Security has introduced several changes and proposed additional changes in a May 9, 2011 Federal Register System of Records Notice for E-verify. In the notice DHS proposes to add a new E-Verify database of employee information. The new database would merge federal background check records with state driver license data sets. The agency proposes to use AAMVAnet, described in the SORN as a "secure framework." In 2006, the Department of Transportation stated that AAMVAnet is "based on outdated, 1980’s-vintage technology." If employees present their employers with state drivers' licenses or permits, or state identification cards for those who do not drive, the Department proposes to check the identification document against the new database of state motor vehicle records, which the agency proposes to aggregate through "voluntary" state participation.

Only one state, Mississippi in 2009, has voluntarily granted E-Verify access to its residents' information with forty nine states having refused the agency access to records on their citizens. Although DHS describes state participation as voluntary there are questions regarding the agency's definition of voluntary. The Department's previous conduct in securing "voluntary" state participation raises serious questions. For example, after stating that the REAL ID Act is not a mandate, former DHS Secretary Chertoff elaborated that if a state did not comply “then the state cannot expect that those licenses will be accepted for federal purposes.” Non-complying states were warned that individuals would not be able to use the state-issued identification to board a commercial aircraft, for example. Utah State Legislature’s resolution opposing the Real ID Act recognized the mandatory nature in criticizing that the law “coerces states into doing the federal government's bidding by threatening to refuse noncomplying states' citizens the privileges and immunities enjoyed by other states' citizens.”

E-Verify Risks to Privacy

The Department of Homeland Security in its request for comments on its proposed rule to government the collection of data, retention and use regarding E-Verify made it clear that it would not limit the use of the data to employment verification purposes. The first rule for privacy protection is that the purpose of the data collection would dictate how the data can be used. This principle of privacy protection is called use limitation. The agency's position regarding how it will use E-Verify data is contrary to Congress' tailored design of the original Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) pilot program, which E-Verify is based upon.IIRIRA Pilot program.

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