What Will the E‐Verify Program Be Used to Surveil Next?
E‐Verify is the federal government’s attempt to create an electronic national identification system. It is capable of checking government databases to verify information—often including a photo—on every U.S. resident. Right now, the system monitors only employment and is only mandatory in some states, ostensibly to deter illegal immigration, but nothing would prevent lawmakers from expanding E‐Verify to monitor identity or legal status in any other domain and restrict access based on other criteria they want.
Numerous federal, state, and local laws already require people to identify themselves or prove their immigration status, and lawmakers continue to propose many additional laws. The more areas that E‐Verify is used to monitor, the more it will create a digital record of Americans’ lives—a record that lawmakers can draw upon to add further requirements for access to jobs, health care, banks, gun sales, housing, and much else.
Once E‐Verify becomes fully mandatory for employment nationwide, proponents will seek to use it to enforce other laws. In 2015, the GOP‐controlled House Judiciary Committee even voted down an amendment to a mandatory E‐Verify bill that would have banned using E‐Verify for purposes other than employment. This is a harbinger that the E‐Verify system, if mandated federally, could be used to monitor much more than just American’s employment choices. Congress would need only make a few tweaks to the system to make it serviceable for other goals beyond jobs.
Here are a few likely targets:
1. Gun sales: The Brady Handgun Violence Prevention Act (18 U.S. Code § 922(d)(5) and (g)(5)) explicitly makes it unlawful for:
any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person … who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa.
Unlike the criminal background check system for guns which destroys the electronic record of the sale daily, E‐Verify maintains records for 10 years. Once E‐Verify screens gun purchases, the federal government would have a full electronic registry of all gun purchases. To do this, a future Congress would only need to enact a statute requiring the Department of Homeland Security to make the system available to verify legal status information (rather than just employment authorization) for gun sales.
2. Transportation: Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(A)(ii)) criminalizes anyone who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States.” While courts have not enforced this requirement against routine transportation activities, requiring airlines, buses, trains, or other transportation businesses to use E‐Verify would be a logical (while burdensome) means to enforce this provision.
3. Driver’s licenses: Section 202(c)(2) REAL ID Act of 2005 requires that states verify that the applicant has some form of legal status. State IDs not meeting this requirement will not be valid for any federal purposes, including air travel. In addition, 38 states separately ban illegal immigrants from receiving driver’s licenses and even those who do permit driver’s licenses specifically identify the license as not valid for federal identification purposes.
4. Bank accounts: Federal law doesn’t require banks to verify someone’s immigration status to open an account, but the USA Patriot Act does require them to “verify the identity of each customer, to the extent reasonable and practicable, within a reasonable time before or after account opening” and “making and maintaining a record of all information obtained relating to customer identity and verification.” Again, E‐Verify already purports to verify identity before confirming someone’s employment authorization, so this use would be a fairly straightforward application of the E‐Verify system.
5. Apartment rentals: Though courts prevented their implementation on the grounds that federal law “preempted” them, the state of Alabama as well as the cities of Hazleton, Pennsylvania, Fremont, Nebraska, and Farmers Branch, Texas enacted laws that would have made it explicitly illegal for landlords to rent to illegal immigrants. Tennessee is currently considering a similar state‐wide statute. Congress has already enacted a statute (8 U.S.C. 1324(a)(1)(iii)) that criminalizes anyone who “attempts to conceal, harbor, or shield from detection, [an illegal] alien in any place, including any building.” However, courts have interpreted this narrowly to require more than simply renting an apartment, but a future Congress would simply need to clarify that someone who failed to use E‐Verify to verify legal status would be guilty of harboring.
6. Access to certain buildings: The Legal Workforce Act, which House Republicans have repeatedly passed out of the Judiciary Committee, would authorize owners or operators of “critical infrastructure” to use E‐Verify “to the extent the Secretary determines that such use will assist in the protection of the critical infrastructure.” Federal law defines critical infrastructure to include “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security…”
Ultimately, E‐Verify doesn’t identify illegal immigrants very well at all, and its errors already harmed hundreds of thousands of legal workers attempting to obtain jobs. But the problem with E‐Verify is more fundamental. It is the first‐step toward a permission‐slip society. Creating the infrastructure that is capable of not only monitoring but instantly restricting access to all manner of private activities will hand the government power to control the lives of Americans in ways otherwise unimaginable.
Once E‐Verify use becomes ubiquitous, the federal government (and perhaps state and local governments as well) would have the power to shut down people’s lives overnight for almost any reason. A flip of switch could stop their access to jobs, housing, bank accounts, driver’s licenses, and transportation. No free society should stand for such control.
