The Federal Advisory Committee on False Identification,37 in rejecting in a November 1976 report the proposal for a national identification document, said:

Ifsuch a system were implemented despite these difficulties, it would be subject to defeat by imposters or counterfeiters taking advantage of careless inspection of documents or through corruption of officials. 38

Moreover, attempts to make the identity card. secure would increase its social and economic costs. As the Department of Health, Education, and Welfare concluded in a study which evaluated the use of the social security card as a standard universal identifier (SUI), "the bureaucratic apparatus needed to assign and administer an SUI would represent another imposition of government control on an already heavily burdened citizenry."39 The necessity of preparing such a card for every lawful resident of the United States (or even of every lawful resident in the labor force), and of updating the photograph frequently enough for it to be a reliable means of identification, would make the system an expensive and burdensome one. And while affixing a fingerprint to such a card would enhance the reliability of the identity card to a greater degree, it would only be truly effective if the machinery and personnel necessary for verifying fingerprints were maintained by the employer and/or the central data bank of the government agency responsible for administering the compulsory national identity card system. Of course, that would increase even more significantly the cost of the system. A recent study evaluating the expense of establishing a work permit system estimated that such a program, based conservatively on "The Federal Advisory Committee on False Identification was established by the Attorney General of the United States in November of 1974. That committee examined the criminal use of false identification and published a report which contained its findings on the problem and its proposed solution to effectively reduce the growing use of false identification.

The membership of the Federal Advisory Committee on False Identification included: Chairman David J. Muchow, Criminal Divison, Department of Justice (DOJ); Co-Chairman Douglas H. Westbrook, Criminal Division, DOJ; Secretary Emil L. Schroeder, Federal Bureau of Investigation; bureau chiefs, office heads, and other staff of the Departments of Health, Education, and Welfare (now Health and Human Services), State, Treasury, Commerce, Agriculture, Defense, Transportation, and Justice, and representatives of State and local governments, private corporations, professional associations, and trade associations. U.S., Department of Justice, Federal Advisory Committee on False Identification, The Criminal Use of False Identification (November 1976), pp. xxxii-xlvii (hereafter cited as The Criminal Use of False Identification).

38 Ibid., p. 75.

39 U.S., Department of Health, Education, and Welfare (now Health and Human Services), Secretary's Advisory Committee on on Automated Personal Data Systems, Records, Computers, and the Rights of Citizens (July 1973), p. 111 (hereafter cited as HEW Report). The members of the

While agreement is lacking on the efficacy of compulsory national identity cards in curbing the employment of undocumented workers and decreasing unemployment among citizens and resident aliens, the greatest controversy involves the invasion of privacy and the resulting effect this invasion. could have on the erosion of other rights, such as the rights to speech, assembly, and association. Proponents of identity cards say that a de facto system already exists and that the invasion of privacy and other rights would be minimal.

Current usage of the social security card and the driver's license lends support to the argument that a de facto system exists. Many businessess request the inspection of either of those documents before finalizing commercial credit transactions or payments made through personal checks. Other entities often ask for those documents as well for proof of identity. In fact, some States, though not all, use the social security account number as the driver's license number. Thus, it is argued that the creation of a national identity card or the conversion of the social security card into such an identifier would be merely the acceptance of current usage and the modern-day demands of society.

It is further argued that the creation of a national identity card or a social security card used as an standard universal identifier would have many beneficial aspects. Among those benefits would be the facilitation of easier and more accurate recordkeepSecretary's Advisory Committee on Automated Personal Data Systems were: Willis H. Ware, Rand Corporation, chairman; Lyman E. Allen, University of Michigan Law School; Juan A. Anglero, Commonwealth of Puerto Rico Department of Social Services; Stanley J. Aronoff, Ohio State Senator; William T. Bagley, California State Assemblyman; Philip M. Burgess, Ohio State University; Gertrude M. Cox, statistical consultant; K. Patricia Cross, Educational Testing Service; Gerald L. Davey, Medlab Computer Services, Inc.,; J. Taylor DeWeese, Philadelphia; Guy H. Dobbs, Xerox Computer Services; Robert R.J. Gallati, New York State Identification and Intelligence System; Florence R. Gaynor, Martland Hospital; John L. Gentile, Illinois Department of Finance; Frances Grommers, M.D., Harvard School of Public Health; Jane L. Hardaway, Tennessee Department of Personnel; James C. Impara, Florida Department of Education; Patricia J. Lanphere, Oklahoma Department of Institutions, Social and Rehabilitative Services; Arthur R. Miller, Harvard Law School; Don M. Muchmore, California Federal Savings and Loan Association; Jane V. Noreen, St. Paul, Minn.; Roy Siemiller, National Alliance of Bussinessmen; Mrs. Harold Silver, Denver, Colo.; Sheila M. Smythe, Associated Hospital Service of New York; Joseph Weizenbaum, Massachusetts Institute of Technology. Ibid., pp. xii-xiii.

40 David S. North, "Keeping Undocumented Workers Out of the Workforce: Costs of Alternative Work Permit Systems" (May 1979).

ing, the reduction of the duplication of information, and the elimination or reduction of multiple identification numbers. It is argued that there would only be a minimal invasion of privacy and the only information divulged to employers would be the individual card number and the possession of legal residency in this country."1

However, the presentation of social security cards or other documents to support credit or other privileges is wholly voluntary and, therefore, is not a reliable index of popular acceptance of a compulsory registration and identification system. Opponents of the use of the social security card as a national identifier further point out that, although it appears to have some de facto acceptance as a universal personal identifier, that was not the purpose for its development. Generally speaking, the social security system was developed to provide retirement income and other governmental assistance to ensure the economic security and personal welfare of American workers. The social security card was devised under that program to establish an account in which payroll tax contributions should be made and later to evidence the eligibility of that employee for participation in social security benefit programs.

The concerns over expanded usage of the social security card led the Congress to enact legislation curbing that abuse. 42 During the Senate floor debates on that provision of the Privacy Act of 1974, Senator Charles H. Percy noted the problems that have been created by the use of the social security card beyond its intended purpose:

if you look at your own social security card, at the bottom, it reads:

For social security and tax purposes-not for identification.

The social security number was clearly not intended by its creators to become the universal identifier. But in the race to computerize every known fact stored by the Government about its citizens, the warning on our cards has been ignored. It is not so much that the social security number had to be used by the computer programmers and data collectors. It was there and it was convenient. Apparently no one gave thought 15 or 20 years ago to the possibility that massive computerization of personal data files

"Proof of eligibility for a social security card currently consists of proof of age, citizenship or alien status, and true identity. 20 C.F.R. §422.107 (1979).

on the basis of a single unprotected number could someday pose a problem.

That lack of foresight was unfortunate-for now hundreds of Government computer systems and thousands of private computer systems use the social security number in the indexing and identification of individuals. The possibility is growing that anyone with access to the proper computer terminal could type in a social security number and thereby order the computer to print out details concerning what cars we own, and what our driving record is like, how we spend our money and how we pay our bills, how we did in school, what we tell our doctor and what he tells us in return.43

Compulsory national identity cards, whether they evolve from the extension of the use of the social security card or the creation of a new document, also present potentially grave problems, as alluded. to by Senator Percy, of the infringement of individual civil liberties and the right to privacy. The establishment of a compulsory nationwide system of identification would mean the imposition of another substantial government program of data collection and information gathering on individual Americans. The concerns over the already significant amount of such data collection by the Federal Government were perhaps most aptly expressed by Professor Arthur Miller of the Harvard Law School:

Americans today are scrutinized, measured, watched, counted, and interrogated by more government agencies, law enforcement officials, social scientists, and poll takers than at any other time in our history. . . .The information gathering and surveillance activities of the Federal Government have expanded to such an extent that they are becoming a threat to several of every American's basic rights, the rights of privacy, speech, assembly, association, and petition of the Government.

I think if one reads Orwell and Huxley carefully, one realizes that "1984" is a state of mind. In the past, dictatorships always have come with hobnailed boots and tanks and machineguns, but a dictatorship of dossiers, a dictatorship of data banks can be just as repressive, just as chilling

42 Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896, 1909 (codified at 5 U.S.C. §552a note).

43 120 Cong. Rec. 36905 (1974) (remarks of Senator Percy).

and just as debilitating on our constitutional protections.44

The problems posed by a universal identification system are not limited, however, to the creation of information files on individual Americans or the types and amount of data collected by the Federal Government. There are also problems with respect to who has access to the data and their use of that information. Although the institution of a compulsory national identity card system raises some serious questions as to the potential access of employers to information which would be contained in an individual's file, the more obvious and greater concern would be the improper use of information collected by the government agency. This would not be a new problem for government data gathering. Congress has recognized this as a serious problem in its deliberations. And in enacting the Privacy Act of 1974, 45 Congress stated that such legislation was necessary due to the

illegal, unwise, overbroad investigation and record surveillance of law-abiding citizens produced in recent years from actions of some over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies.46

The heightened concern of Americans over governmental intrusions into the right to privacy of individuals is reflected in decisions of the Supreme Court of the United States over the last decade. The Court has recognized that a right to privacy does exist." Although "[t]he Constitution does not explicitly mention any right of privacy," the Court has stated that it flows from the zones of privacy created by many constitutional guarantees.48 In an earlier era, Justice Louis Brandeis referred to this right as "the right to be let alone-the most comprehensive of rights and the right most valued by civilized men"49 and stated:

"S. Rep. No. 93-1183, 93d Cong., 2d sess. 7 (1974). 45 5 U.S.C. §552a(1976).

46 S. Rep. No. 93-1183, 93d Cong., 2d sess. 1 (1974).

47 Carey v. Population Services Intl. 431 U.S. 678, 684 (1977); Roe v. Wade, 410 U.S. 113, 152 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-84 (1965).

As the Court stated in Roe v. Wade, 410 U.S. at 152:

The Constitution does not explicitly mention any right of privacy. In a line of decision, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Courts or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding, 50

The development and implementation of a compulsory national identity card system would provide law enforcement officers and other governmental officials with a potentially "powerful weapon of intimidation" which could result from "the mere threat of official confiscation."51 The utility of a standard universal identifier or a compulsory national identity card would be in its presentation upon official request. Creating a compulsory national identity card system or elevating the social security card to the status of a national identifier would make it all the more likely that a variety of governmental officials (not involved in the administration of social security programs or employment programs) would demand inspection of that document and thus provide the potential for violations of individual rights.

These dangers have been noted in several studies. In July 1977 the Privacy Protection Study Commission, established by the Congress, in a report to President Carter, dealt with these fundamental issues in depth. In a chapter on the social security number, it reached this conclusion:

That the Federal Government not consider taking any action that would foster the development of a standard, universal label for individuals, or a central population register, until such time as significant steps have been taken to implement safeguards and policies regarding permissible uses and disclosures of records about individuals in the spirit of those recommended by the [Privacy Protection Study]

U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1,8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

49 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

so Id. at 479.

51 HEW Report, p. 111.

Commission and those safeguards and policies have been demonstrated to be effective.52

In support of this recommendation, the Privacy Protection Study Commission included the following comments:

[T]here is currently much debate about the need to develop foolproof methods of identification in order to deter fraudulent uses of standard documents widely used for identification and authentication purposes, such as drivers' licenses and Social Security cards. The [Privacy Protection Study] Commission recognizes that such use of identification documents imposes a heavy loss on industry, government, and society as a whole, but also recognizes that the development of improved identity documents is often viewed as inconsistent with America's tradition of civil liberties. . . .

Because of this potential conflict, the [Privacy Protection Study] Commission believes that any consideration of a standard universal label and of a record system approximating a central population register, should be postponed until society, through its legislatures, has made significant progress in establishing policies to regulate the use and disclosure of information about individuals collected by both private organizations and government agencies, and until such policies are shown to be effective.

Therefore, Recommendation (4), above, means that the Federal Government should act positively to halt the incremental drift toward creation of a standard universal label and central population register until laws and policies regarding the use of records about individuals are developed and shown to be effective.53 It is significant that this recommendation is the final recommendation in the Privacy Protection Study Commission's report and in effect gives expression to a central concern of that Commission which a reading of the entire report makes very clear.

This central concern is reflected in the following excerpts from its discussion of the Privacy Act:

52 Privacy Protection Study Commission, Personal Privacy in an Information Society (1977), p. 617.

The members of the Privacy Protection Study Commission were: Chairman David F. Linowes, certified public accountant, N.Y.C., and Boeschenstein professor of political economy and public policy, University of Illinois; Vice Chairman Willis H. Ware, Rand Corporation, Santa Monica, Calif.; William O. Bailey, president of Aetna Life & Casualty Company,

The Privacy Act grew out of nearly a decade of congressional examination of information systems in the Executive branch, and it followed closely on the heels of the record-keeping abuses and invasions of personal privacy associated with the Watergate affair. It was passed partially as a protection against premeditated abuses of Federal agency records but, more importantly, in recognition of the fact that even normal uses of a record about an individual can have harmful consequences for him and that this potential harm can be greatly magnified by the use of emerging computer and telecommunications technology. Despite these antecedents, however, there is little in the Privacy Act to prevent premeditated abuses of power through the misuse of recorded information, particularly where internal agency uses are concerned. Although the individual's position in relation to an agency is much stronger as a result of the Act, the safeguard provisions have not been implemented in a way that adequately deters abuse by agency personnel, especially in view of the lack of internal agency compliance monitoring or auditing.

Moreover, the problems perceived by the Congress at the time of the Act's passage have turned out to be more complex than anticipated, and by and large they are independent of the problem of premeditated abuse. Actual or potential information abuses are much more likely to result from continuing growth in the government's appetite for information about individuals and in the use of that information for growing numbers and types of purposes. The real danger is the gradual erosion of individual liberties through the automation, integration, and interconnection of many small, separate recordkeeping systems, each of which alone may seem innocuous, even benevolent, and wholly justifiable. Dramatic developments in computer and communications technology, which both facilitate record-keeping functions previously performed manually and provide the impetus and means to devise new ones, can only exacerbate this problem. [emphasis in original]54

Hartford, Conn.; William B. Dickinson, retired managing editor, Philadelphia Evening Bulletin; Congressman Barry M. Goldwater, Jr., California; Congressman Edward I. Koch, New York; and State Senator Robert J. Tennessen, Esq., Grose, Von Holtum, Von Holtum, Sieben & Schmidt, Minneapolis, Minn. Ibid., p. ix.

As previously indicated, the Federal Advisory Committee on False Identification has opposed the development of a national identity card.55 An HEW study also opposed the use of the social security card as a standard universal identifier.56 In that HEW study, the Secretary's Advisory Committee on Automated Personal Data Systems noted:

The national population register that an SUI implies could serve as the skeleton for a national dossier system to maintain information on every citizen [and resident] from cradle to grave.57

That study further stated that this type of information gathering is at odds with American traditions:

A permanent SUI issued at birth could create an incentive for institutions to pool or link their records, thereby making it possible to bring a lifetime of information to bear on any decision about a given individual. American culture is rich in the belief that an individual can pull up stakes and make a fresh start, but a universally identified [person] might become a prisoner of his recorded past.58

The great potential for infringement of privacy rights and the impact this could have on the infringement of other rights strongly suggests that the national identity card proposal, if adopted, will merely exchange one problem for a different and more serious problem.

In introducing the bill which eventually became the Privacy Act of 1974, former Senator Sam J. Ervin, Jr., may have offered the most eloquent statement of that concern over further governmental intrusion into individual privacy:

55

there must be limits upon what the Government can know about each of its citizens. Each time we give up a bit of information about ourselves to the Government, we give up some of our freedom. For the more the Government or any institution knows about us, the more power it has over us. When the Government knows all of our secrets, we stand naked before official power. Stripped of our privacy, we lose our rights and privileges. The Bill of Rights then becomes just so many words. 59

The Criminal Use of False Identification, p. 76.

se HEW Report, p. 112.

57 Ibid., p. 111. Similar concerns were expressed by the Privacy Protection Study Commission on p. 618 of its report.

58 HEW Report, pp. 111-12.

59 120 Cong. Rec. 12646 (1974) (remarks of Sen. Ervin).

60 In April 1980 the INS informed the Commission that:

The "Operation Cooperation" program has been suspended until July

"Operation Cooperation"

Although there is growing public debate over the employment of undocumented workers, the issue remains unresolved, as all attempts at enacting a Federal law to prohibit their employment have failed. The uncertain status of such legislation notwithstanding, the INS in some regions of the country has instituted a program to dissuade employers from hiring undocumented workers. This program, known in some areas as "Operation Cooperation" or the "Denver Project," is not specifically authorized by statute or regulation and may subject persons to the same types of employment discrimination as might result from an employer sanctions law.

According to an internal memorandum of the INS Western Region, "Operation Cooperation" is conducted in the following manner.60 An INS investigator initially contacts the employer and

seeks his consent to conduct a survey. . . .If the employer agrees to the proposed survey he is then advised that the survey will be conducted in the near future but he is not apprised of the exact date. ...

If the owner of the business refuses to give consent to conduct a survey, an attempt is then made to apprehend several [undocumented] alien employees and obtain the necessary probable cause to support the issuance of a search warrant by a Federal Magistrate.

Upon completion of the survey [whether conducted with consent or with a search warrant] the employer is then notified by mail as to the names of the [undocumented] aliens who were found in his employ. He is requested to employ only persons who are in the United States legally and is also advised that this Service will assist him in determining if aliens who are seeking employment have a legal right to be in the United States.61

The Western Region memorandum raises several issues that challenge the propriety of such a program in the absence of legislation prohibiting the employment of undocumented workers. First, because the Immigration and Nationality Act does not provide

1, 1980, due to Service policy during the 1980 Census. It is anticipated that the program will resume on July 1, 1980.

David Crosland, Acting Commissioner, Immigration and Naturalization Service, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Apr. 28, 1980.

61 Philip H. Smith, Assistant District Director for Investigations, Los Angeles INS District Office, memorandum to INS Western Regional Commissioner, Mar. 14, 1977.