Here are two bipartisan efforts that boast some strange House, Senate and Executive Branch bedfellows as well as a bunch of critics that feel any changes to the programs – E-Verify and Real ID – would place the nation at risk to domestic and international terrorists. The controversies also – not surprisingly – have to do with money, expensive mandates for businesses that hire and states rights. For Real ID, more than a few states are squawking about the cost of implementing federal law without budget support.

Concerning E-Verify, hearings have been just held in the House and Senate; and they share a belief that the program needs immediate changes.

Rep. Diane Watson held a hearing on E-Verify for her House Committee on Oversight and Government Reform’s Subcommittee on Government Management, Organization, and Procurement as well as the Immigration, Refugees and Border Security Subcommittee of the Senate Judiciary Committee under its chairman, Senator Charles Schumer.

Sen. Schumer said, “In the past, our employment verification laws had placed employers between a rock and a hard place. Employers had been required to make subjective determinations about identity documents provided by employees in order to determine whether the employee is legally able to work in the United States.

“Employers who accept all credible documents in good faith may still be targeted by U.S. Immigration and Customs Enforcement for turning a blind eye towards illegal immigrants in their workplace. Furthermore, when employers have to make on-the-spot subjective decisions about who is qualified to work and who is not, they can face potential lawsuits from employees who are actually U.S. citizens but who were wrongfully profiled as illegal immigrants.”

In the House hearing, Rep. Watson commented that the program is designed to strengthen the employment verification process and protect against the use of fraudulent documents on the part of new hires. According to most recent figures at the House subcommittee's disposal as of January 2009, a little over 103,000 employers had registered with E-Verify. In FY 2008 the U.S. Citizenship and Immigration Service (USCIS) reported that E-Verify had handled about seven million requests.

Authorization and funding for E-Verify has been extended by Congress a number of times, most recently through September 30th, 2009. On July 8th, 2009, Department of Homeland Security, Janet Napolitano, announced the administration's support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.

Added Watson, “It is my understanding that the administration has mandated that the new regulations will go into effect by September 8th, while DHS continues to work on strengthening E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security.

“Critics of E-Verify claim that the system suffers from a number of major, perhaps irreconcilable, weaknesses. Among the weaknesses often cited by critics of E-Verify are: one, E-Verify's limited capability to detect certain types of identity fraud; number two, system inefficiencies and inaccuracies; third, the lack of sufficient system capacity; and fourth, privacy concerns and employer noncompliance that result in its use of E-Verify to the detriment of both current employees and new hires.

Schumer, in his hearing, added, “The committee and Congress are looking for a new system that relies upon non-forgeable identification. And many Senators, on both sides of the aisle, are not friendly with E-Verify. (See the March 2009 issue of Security Magazine for more on E-Verify or go to Charged Schumer, “It’s an example of a half-hearted and flawed system. Under the current E- Verify system, an employer merely verifies whether the name, date of birth, Social Security number, and citizenship status given by a potential employee match the exact same information contained in the Social Security Administration's database along with other government databases.” Instead, what’s needed is a specific and unique biometric identifier…a fingerprint, an enhanced biometric picture, or other mechanism.

The dustup relative to Real ID is an even more complex situation involving state driver’s licenses, cost of upgrading their license programs, the “Big Brother” image of a national citizen database and the federal government’s approaching insistence that citizens will not, one day, be allowed to go through airport security to board a plane without a Real ID.

Based on recommendations of the 9/11 Commission, legislation established the Real ID program to increase security and standardize state-issued IDs. Real ID, still to be implemented, is under attack in some states and by some members of Congress. But Stewart Baker, former assistant secretary in the Department of Homeland Security, supports Real ID and recently testified that "for terrorists, travel documents are as important as weapons. The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver's licenses."

But this week, the Senate Homeland Security and Governmental Affairs Committee, led by Chairman Joe Lieberman and Ranking Member Susan Collins, R-Me., reported out legislation to, according to the committee statement, “fix the unworkable Real ID Act of 2005, which sought to increase the security of driver’s licenses in order to deny terrorists the ability to board airplanes and enter federal buildings. The Providing for Additional Security in States' Identification (PASS ID) Act, S. 1261, would strengthen the security of driver’s licenses and other identification, as recommended by the 9/11 Commission, in a manner with which states can comply.”

The bill was approved by a unanimous voice vote after being amended to require that motor vehicle departments verify the authenticity of birth records prior to issuing a driver's license and to protect the current screening authority of the Transportation Security Administration.

"I thank my colleagues for their hard work pushing through an ambitious agenda of legislation and nominations," Lieberman said. "The Pass ID Act, in particular, is a critical piece of legislation that will make our country safer by keeping fraudulent identification documents out of the hands of terrorists. Secure identification is at the very heart of our homeland security. I believe we strengthened the security provisions in this bill today, and that is why I am pleased to support it.”

Collins, working with Senators George Voinovich, R-Ohio; Daniel Akaka, D-Hawaii; and Lieberman, brokered the compromise language that protects airport security officials from potential lawsuits should they prevent passengers without a compliant driver's license from boarding a plane. Language in the original bill could have had a chilling effect on these legitimate security activities, Collins said. Noting the importance of the compromise amendment, Collins said that "protecting TSA security officials from potential litigation when they exercise their skills, judgment and experience and refuse to permit a passenger without a compliant license to board a plane is absolutely critical. With this amendment, I believe the bill strikes the proper balance between the goal of improved security and the concerns about cost and privacy." The Pass ID Act improves the Real ID law by providing states with the flexibility they need, reducing the costs of implementation, and ensuring privacy within the system. The Committee accepted a Lieberman-Collins amendment that also requires the verification of birth records, helps states digitize their birth records so that those records can be easily verified by motor vehicle departments, and clarifies the privacy restrictions on the personal information stored on a license. An amendment by Sen. Jon Tester, that would require the Privacy Officer at the Department of Homeland Security to perform an annual report on privacy implications of Pass ID, was also accepted.

The U.S. Department of Homeland Security issued a statement on the Pass ID:

"On the same day that Secretary Napolitano highlighted the Department's efforts to combat terrorism and keep our country safe during a speech in New York City, Congress took a major step forward on the Pass ID secure identification legislation. Pass ID is critical national security legislation that will break a long-standing stalemate with state governments that has prevented the implementation of a critical 9/11 recommendation to establish national standards for driver's licenses. As the 9/11 Commission report noted, fraudulent identification documents are dangerous weapons for terrorists, but progress has stalled towards securing identification documents under the top-down, proscriptive approach of the Real ID Act - an approach that has led thirteen states to enact legislation prohibiting compliance with the Act. Rather than a continuing stalemate with the states, Pass ID provides crucial security gains now by establishing common security standards for driver's licenses and a path forward for ensuring that states can electronically verify source documents, including birth certificates.