Show Me Your Papers

Kevin the Political Animal muses about a national ID card, wondering a bit why some people are so adamantly against it. But, he has some reservations after reading this post by Mark Kleiman in which Mark wondered if it might be a good idea to curtail people’s ability to buy alcohol rather than their ability to drive by using the drivers license to designate that a person convicted of an alcohol related offense isn’t allowed to drink — just as minors’ drivers licenses do. Kevin then asks:

…when a driver’s license starts becoming overtly more than just a driver’s license, where does it end? Once people get the idea that it can be used to regulate more than just driving, why not use the same card to regulate and track sex offenders? Or resident aliens? Or handgun licensing? Or criminal records? It would be mighty handy to have all that stuff in one place, wouldn’t it?

Yes it would and that is just one of the reasons you can add me to the list of libertarian wackos who are horrified at the prospect of a national ID card. It’s not out of a knee jerk hatred of government, it’s out of a lifetime observing bureaucrats, cops and politicians. I don’t trust bureaucrats to handle information well; they screw it up a lot already and it’s only getting worse with more information about individuals that’s being collected.

This is one of the main arguments against the CAPPS II system, which is really a beta test of a national ID card database. Aside from a humongous error rate, and total unaccountability, you can see that the slippery slope has already had an effect. Here’s how Anita Ramasastry explains the problem in a column from last Wednesday on FindLaw:

CAPPS II is designed to use commercial and government data to verify passenger identity, and to decide whether individual fliers pose security risks. The Transportation Security Administration (TSA) is the agency tasked with implementing this program.

The program was initially intended to detect terrorists and keep them off airplanes. In August 2003, however, TSA announced that CAPPS II would also serve as a law enforcement tool to identify individuals wanted for violent crimes.

Based on privacy concerns that I have discussed in a previous column, Congress voted to block funding for CAPPS II unless the TSA could satisfy eight criteria relating to privacy, security, accuracy and oversight. (TSA may, at this time, move forward in testing CAPPS II, however.) In addition, Congress also asked the General Accounting Office (GAO) to conduct a review of CAPPS II to determine whether it met the relevant criteria.

This February, that report came in. And it concluded that CAPPS II has numerous problems, as I will explain.

Then today, March 17, a second report was released by the DHS. It confirmed that the TSA was involved in the transfer of JetBlue Airways passenger information to a Department of Defense subcontractor, Torch Concepts, for use in a data mining study (which I also discussed in an earlier column). Moreover, the DHS report found that, “The TSA employees involved acted without appropriate regard for individual privacy interests or the spirit of the Privacy Act of 1974.”

[…]

Readers may object that we can live with a few errors in order to get greater security. But the American Civil Liberties Union (ACLU) has pointed out that even a small error rate would create huge problems.

With CAPPS II checking an estimated billion transactions, the ACLU points out, “[e]ven if we assume an unrealistic accuracy rate of 99.9%, mistakes will be made on approximately one million transactions, and 100,000 separate individuals.” (Emphasis added.) So even a tiny error rate will lead to many, many errors.

She also note that the commercial information they included such as credit reports are notoriously subject to error (or criminal manipulation as with identity theft) and much government information is secret and unchallegeable. The slippery slope is already in force as the TSA — the Transportation Safety Administration is now in the business of helping law enforcement track down criminals. Why would they stop at that? How about IRS leins, bounced checks, or criminal convictions? And certainly there is no reason that they wouldn’t use political activity as a criteria. In fact, they seem to have done that already.

As for law enforcement, I believe we need to hold the line on the fourth amendment in general. If we require people to have a national ID card, then it stands to reason that we will also be required to show it to law enforcement. And it won’t be just another picture ID, it will likely be a hi-tech card with a magnetic strip that connects to a huge amount of information that I don’t think the police have a right to access without probable cause. Right now a case is before the Supreme Court challenging a Nevada law that makes it a crime for a person to refuse to identify himself to police.

Under Nevada law, a citizen must reveal his or her name to a police officer who has reasonable suspicion that the person might be involved in a crime. Even if the suspect is innocent, the mere act of refusing to identify oneself is – itself – a crime.

Analysts say the law creates a legal irony. If the police officer possessed enough evidence to place the suspect under arrest, the suspect would be given a Miranda warning that he or she had the right to remain silent. But if the police officer possessed only reasonable suspicion – not the higher standard of probable cause needed to justify an arrest – a suspect could be arrested and convicted merely for refusing to identify himself.

[…]

In urging the US Supreme Court to overturn his conviction, Hiibel and his lawyers argue that police are free to ask a suspect any questions they want, but the suspect does not have to answer.

A law that can send someone to jail for refusing to speak violates both Fourth Amendment privacy protections and Fifth Amendment guarantees against being compelled to make incriminating statements, they say. “It is inimical to a free society that mere silence can lead to imprisonment,” writes James Logan, a Nevada public defender and one of Hiibel’s lawyers, in his brief to the court.

The Nevada Attorney General’s Office counters that the state’s interest in investigating crimes outweighs Hiibel’s interest in keeping his identity private. “A person does not have a Fourth Amendment right to refuse to identify himself when detained on reasonable suspicion,” says Conrad Hafen, senior deputy attorney general, in his brief. Asking someone’s name is a minimal intrusion, Mr. Hafen says. Rather than forcing a suspect to make incriminating statements, repeating one’s name does not provide evidence of a crime but merely assists an investigation, he says.

“Though the name may link the person to an outstanding warrant, it does not compel the person to inform the officer that he has an outstanding warrant,” Hafen says. “A person’s name is more like a fingerprint, voice exemplar, or handwriting analysis. It is used by law enforcement to identify the person.”

Experts in electronic privacy disagree. “A name is now no longer a simple identifier: it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual’s life,” says Marc Rotenberg, in a friend-of-the-court brief filed by the Electronic Privacy Information Center.

A national ID card would make it simpler to access all that information that the government has no business knowing unless they have probable cause to believe you have committed a crime. It should not be simple. Law enforcement should have to make a case before a judge in order to get it.

I don’t trust politicians ever to do the right thing out of the goodness of their hearts. Privacy and freedom are so closely linked in my mind as to be the same thing and they must be protected in law with sufficient safeguards against political repression and government surveillance. Allowing the government to access commercial information and generate even more, while requiring citizens to carry and produce a card that has the means for any government representative to access it, is a recipe for a police state. I know that sounds hysterical, but these things do happen, even to free nations if they don’t remain vigilant against it.