The House Judiciary Committee is considering legislation that would require employers nationwide to query a federal database in order to check a potential worker's eligibility under immigration law. This "e-verify" system has been in operation for several years, but in most states using it has been optional.

Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, describes the e-verify system as "free, quick and easy to use," and he notes that the concept of an electronic system for verifying employment eligibility is broadly popular with the public. But the program has been heavily criticized by civil liberties groups. They warn that making the system mandatory will create headaches for hundreds of thousands of eligible workers who are erroneously flagged as ineligible.

Criticism intensified on Thursday when Chairman Smith introduced a new version of the legislation that removed a key privacy safeguard. Previous versions had required that the database only be used for checking employment eligibility. But the new version allows the database to be used much more widely. The Department of Homeland Security could make it available to anyone who is responsible for "granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure."

"Tentative non-confirmations"

The e-verify system has existed under various names since 1996, when it began as a small-scale trial program. Its use has expanded in recent years as a handful of mostly Southern states have mandated that employers use the system.

The Smith bill would make the system mandatory nationwide. Employers would be required to submit a new worker's identifying information to a national database, which would either confirm the worker's eligibility or respond with a "tentative non-confirmation." In the event of a non-confirmation, an eligible worker would be required to visit the Social Security Administration in an effort to correct the error. If the employee does not get the error corrected within a few days, the employer receives a "final non-confirmation" and the employee is likely to be terminated.

"Yes, E-Verify is a jobs killer, but only for illegal workers," Smith argued in a Thursday press release. "For Americans and legal workers, it's a jobs protector."

Not everyone agrees. Ars discussed the e-verify proposal with the ACLU's Chris Calabrese. He said that the accuracy of the system has improved over the years, but that independent government reports have suggested that it still has an error rate of around 0.8 percent. That's pretty good, but in a nation of 300 million people, that would mean approximately 1.2 million American citizens and documented immigrants would receive a "tentative non-confirmation" and be forced to spend a day at the Social Security Administration trying to get their paperwork straightened out. Even worse, 0.5 percent of authorized workers, or about 770,000 people, would be unable to correct their paperwork problems in time to save their jobs.

Calabrese cited the example of a Florida telecommunications worker who took a well-paying job, but was rejected by the e-verify system. She went to the Social Security Administration, who told her her records looked fine. But the employer continued to get non-confirmations from the system. After months of fighting with bureaucracy, she was finally forced to take a new, lower-paying job. Calabrese said she later learned that the problem was a data-entry error by her employer.

Calabrese argued that the story points to serious due-process problems with the system. "You essentially have no remedy" if a mistake is made, he said. "If everyone says 'it's not my fault,' you're basically out of luck." This can be especially hard on workers with limited skills and education; they often have neither the time nor the sophistication to navigate the federal bureaucracy and vindicate their right to work.

Expanded uses

The updated e-verify legislation that Rep. Smith introduced on Thursday made an important change to the rules regarding who may use the system. Previous iterations of the e-verify legislation made it illegal to use the e-verify database for any purpose other than verifying employment eligibility. The latest bill makes e-verify an all-purpose database for protecting "critical infrastructure."

The Secretary of Homeland Security would be allowed to give "any person or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure" access to the database. Obviously, that covers a lot of people, from TSA agents to private firms operating power plants.

Calabrese says Americans should be alarmed by the creation of this kind of all-purpose national database. That could transform it into "a system that you have to be right with before you can not just work, but travel or do a whole bunch of other things as well." He noted that Mississippi has begun putting state driver's license data into the system, and other states could follow suit.

Mandatory e-verify is strongly supported by anti-immigration activists and many Republicans. But it is opposed by many Democrats and immigration advocates. And it also faces significant opposition from Tea Party activists. In a Thursday letter to members of Congress, a coalition of conservative groups warned that the legislation would create a de facto national ID system and harm small businesses.

Hence, the legislation faces long odds this legislative session. To become law, it must pass Smith's committee and the full House. Then companion legislation must pass the Democrat-dominated Senate and be signed by President Obama.