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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.
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.
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
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
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,
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. 53 Ibid., p. 618. 54 Ibid., p. 533.
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
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
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
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. ...
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:
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 sundocumented] 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
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 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.
for employer sanctions, employers are not required to screen employees to determine their immigration status. Although INS asks employers to screen employees voluntarily, it does not give them any guidelines under this program to ensure that screening techniques are not discriminatory. Secondly, the employer's consent may not be truly voluntary.62 If an employer refuses to consent, the memorandum suggests that such refusal will be grounds to stake out that business and to attempt to apprehend employees who may be undocumented.63 Examination of these employees would be expected to provide the necessary information to obtain a warrant to search the establishment.
The continuation of "Operation Cooperation" could result in employment discrimination.64 For example, certain preemployment inquiries attempting to verify the immigration status of prospective employees, particularly if they are directed only to selected ethnic or racial groups, may well violate Title VII or State fair employment practice laws.65 No attempt has been made by INS officials to ensure that “Operation Cooperation” protects job applicants from discrimination based on such unlawful employment practices. At the Los Angeles meeting, Joseph Sureck, then Los Angeles INS District Director, said, “We want. . .[employers). . .to go to FEPC (Fair Employment Practices Commission) to determine the proper questions to ask.”66 He also said that he was unsure what constituted permissible preemployment inquiry, testifying: "...I am not
really certain about this; because it is a little confusing to me. . .I cannot speak with absolute certainty.”67 These statements emphasize the absence of INS verification guidelines to safeguard the employment rights of individuals and point out the potential employment discrimination that could result from continued use of "Operation Cooperation" as an enforcement technique.
The voluntary nature of employer cooperation with INS is called into question by the testimony of George Lundquist, manager of the Edinburg Manufacturing Company plant in Pharr, Texas. He testified 68 that he had initially consented to participate in the “Denver Project," as "Operation Cooperation” is known in that area, but that subsequent withdrawal from the program resulted in an INS raid on the plant.
Before participation in the “Denver Project,” Mr. Lundquist said, relations between the company and INS had been friendly, and the company had cooperated with INS in the investigation of several employees. On those occasions the INS would call the employee into a private office for interrogation.69 After those investigations, INS officers returned and asked Mr. Lundquist to cooperate in the questioning of all plant employees, the “Denver Project." Mr. Lundquist testified that he agreed to cooperate because he did not want employees to be late for work or to be delayed in getting home after the working day and because he thought the questioning would not interrupt the smooth opera
62 On the issue of consent, the INS asserted:
As to the statement that an employer's consent may not be truly voluntary, in many cases INS is in possession of evidence establishing probable cause to support the issuance of a search warrant at the time voluntary cooperation of the company is solicited, thereby obviating
the necessity for such consent. Leonel Castillo, Commissioner, Immigration and Naturalization Service, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 28, 1979 (hereafter cited as Castillo Letter). The Commission does not agree that the possession of evidence allegedly establishing probable cause is sufficient tc obviate the necessity for consent unless, as prescribed by the fourth amendment, a neutral and detached magistrate has had an opportunity to weigh that evidence to determine whether probable cause exists and whether a search warrant should be issued. Probable cause is a determination that should be made by an impartial judicial officer, not by an INS law enforcement officer. (For a more detailed discussion of INS area control operations and the fourth amendment, see chapter 6 of this report.) * In commenting on this section of the report, the INS stated:
It follows, logically, that if a company does not participate in "Operation Cooperation," where appropriate arrangements are made to determine whether undocumented aliens are employed by the company, that routine area control operations may be used to make that determination pursuant to the Service's authority granted by
section 287 of the Immigration and Nationality Act, 8 U.S.C. 1357.
$1357(a)(1) (1976), or "to arrest any alien in the United States, if he has
** Ibid., p. 7.
tion of the plant. He stated that the INS officers agreed to verify the employees "a little bit at a time."70 Sixty employees were randomly selected for the first screening.
Mr. Lundquist said that the first attempt to verify the lawful status of employees, however, was:
really disruptive. . . . There...(were) fantastic anxiety levels. Where things were normally running smoothly at 10 minutes after 7, there was no flow. There was lots of discussing, lots of talking, lots of-just nervousness. It took about 20 minutes, 30 minutes for them to check these 60 people.71
people's rights."?? As a result, Mr. Lundquist al
" leged, the INS officers responded that they would "have to do it the hard way.'
Soon after this confrontation, the INS obtained a search warrant (as the Western Region memorandum indicated would be done under "Operation Cooperation” where consent was refused) and conducted a "factory survey"79 of the plant, arresting 14 of the 938 employees, all of whom were later released from detention at the INS office. None of the 14 employees, although aliens, was deportable.80
The voluntary nature of the cooperation was also called into question at the Los Angeles open meeting on immigration. Antonio Rodriguez, of the Immigration and Labor Action Center of Los Angeles and the Los Angeles Center for Law and Justice, testified:
With respect to the alleged cooperation by most employers, I think that we should on the other hand explain what happens if there is no cooperation and how employers are placed under the gun. If when INS shows up at a factory, demands entry—if the employer refuses to allow them in, agents block all exits while other agents go back and obtain a warrant.
Because the four INS officers did not "get to check people as they were coming through the timeclocks," they "went up and down this line checking documentation" after the factory began operation."
During this survey, INS agents brought one employee to the plant office and asked that she be fired." The employee, who had been with the company for "several years" and "had [a] vested interest in our profitsharing, vacation, holiday pay, etc.,"74 was lawfully entitled to work and remain in the United States under a Federal court order entered in a class action, Silva v. Levi. 75 She had in
a her possession a letter from her attorney stating that she was a member of the protected class in Silva v. Levi. Mr. Lundquist said that the INS officers insisted upon her termination “although it was not illegal for me to employ her and they could not deport her if I was to cooperate and terminate her."76 At this point he refused to fire the employee and withdrew the participation of the plant in the verification program after his Dallas office informed him that “[w]e don't have the right to give away
What that means is that, since all exits are blocked, no worker, no one from inside the factory, can go out of that factory, unless at the risk of having his fourth amendment rights violated and at the risk of being arrested; that is, in order to leave the factory, one is going to have to answer questions regarding citizenship, regarding manner of entry, etc.
No one can leave. We have seen cases where as much as 3 to 4 hours were taken in order to get a warrant, and during that time, no one from the factory was able to leave.81
10 Ibid., p. 8.
"Operation Cooperation" does not contemplate, and INS does not
person other than the removal of the deportable alien.
the policy of charging Cuban refugees who had received adjustment of
would otherwise be occupied by citizens or legal resident aliens.
The final step in “Operation Cooperation” procedures, as disclosed in the INS memorandum, is the notification of employers by mail “as to the names of the (undocumented] aliens who were found in his employ."82 These letters potentially could be used to establish the necessary "pattern or practice" for prosecuting employers for violations of an employer sanctions law that might later be enacted by Congress. As stated in the memorandum:
The purpose of notifying employers of the identity of these (undocumented) aliens is that in the event of the enactment of a law imposing sanctions against employers of (undocumented] aliens, this office will have evidence of such employment practices on the part of a large number of employers in this area.83
This point was reiterated by the INS Western Regional Counsel, who testified at the Los Angeles
, open meeting that: “If sanctions such as these letters (Operation Cooperation) were ever enacted into law, then this would be the first bite that the employer would get without getting the possibility of any proceedings against him.”84
Findings and Recommendations Summary Finding: Although the exact nature and degree of the impact of undocumented workers on the American economy is unknown, most immigration experts agree that it is an issue of serious national concern and that there is an adverse impact on domestic unemployment for some of our citizens and legal residents. They are, however, divided on the manner in which to address the issue. Sharp divisions occur over the need for and/or efficacy of employer sanctions legislation as a unilateral solution to the undocumented worker issue. There is greater agreement on the negotiation of bilateral agreements between the United States and the major source countries to reduce the number of undocumented workers entering this country and to address and help remedy some of the economic conditions and factors that encourage the migration of citizens from the source countries to the United States in search of employment opportunities as a more equitable and effective solution. Finding 5.1: The extent to which undocumented workers displace citizens and resident aliens from jobs will be increased if some employers are free to exploit them, for example, by paying them less than the minimum wage, because undocumented workers are afraid to assert their rights. Recommendation 5.1: The Department of Labor should vigorously enforce the Fair Labor Standards Act and other labor laws to ensure that neither citizens nor aliens are required to work under unfair working conditions and to minimize job displacement. Finding 5.2: The number of undocumented workers can be reduced by more effective immigration law enforcement, through the hiring of additional personnel and through the use of more modern law enforcement technology, such as computerized arrival-departure records. The Commission believes that such an improved law enforcement effort can be accomplished without the dilution of individual civil rights. Recommendation 5.2: The Congress should appropriate additional funds to the Department of Justice in
The foregoing discussion points up the fact that the flow of illegal migrants has resulted in proposals being advanced that are designed to reduce the flow but that, in the judgment of the Commission, raise serious questions about the undermining of civil liberties. The Commission does not believe that, serious as the adverse impact of the undocumented workers may be on the employment opportunities of some citizens and legal aliens, the Nation is warranted in traveling a path which could result in depriving all citizens of civil liberties. The Commission does not believe that the ends that would be achieved justify the proposed means.
This does not mean that the Commission believes that the Nation should settle for the status quo. As indicated earlier, the Commission believes that action can and should be taken on both domestic and foreign policy fronts designed to reduce the number of undocumented workers who are in jobs that
* Ibid. " Bernard Karmiol, testimony, Los Angeles Open Meeting Transcript, p. 567.
#3 Philip H. Smith, Assistant District Director for Investigations, Los Angeles INS District Office, memorandum to INS Western Regional Commissioner, Mar. 14, 1977, p. 2.