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GO SLOW ON NATIONAL IDENTIFICATION CARDS
Professor William G. Ross
University of Notre Dame Law School
Editor, JURIST Forum

Until September 11, Americans always had hooted down periodic proposals for a national identification card, which tended to conjure up images of Nazi Germany, Stalinist Russia, and an Orwellian Big Brother. As with so much else, attitudes toward a national ID card have rapidly changed since the terrorist tragedy.

A recent poll of United States citizens indicates that 68 percent favor a national identity card, at least some increase from the range of 39 to 63 percent who had expressed support for some type of I.D. card in other various surveys conducted during the 1980s and 1990s. Shifts in American opinion are also consistent with changes in opinion in other Western nations that have resisted identity cards. In Canada, 80 percent of persons polled in the wake of the September tragedy indicated that they were willing to submit to fingerprints for a national identity card. On November 2, the British Home Office confirmed that it had conducted a feasibility study for a high tech national identification system and secretly had created a prototype card.

Although President Bush has rather curtly dismissed the possibility of a national identity card, and the anti-terrorism legislation makes no provision for such a card, concerns about national security have at least stimulated widespread discussion about a subject that previously was almost taboo, at least among civil libertarians.

Advocates of a national card contend that, in addition to helping to prevent terrorism, a national I.D. card could be useful in apprehending illegal aliens and criminal fugitives and would ameliorate a wide array of abuses, including cheating on standardized examinations, illegal gun sales, and delinquency on child-support payments and other debts. Similarly, a national identity card could help to prevent fraud involving voting, welfare payments, credit card purchases, check-cashing, and securities transfers. Such cards also could incorporate such information as the names of persons to notify in case of an emergency, organ donor instructions, and warnings about medications to which one might be allergic.

Proponents of a national identification card argue that existing forms of identification are insecure because false birth certificates, social security numbers, drivers licenses, and even passports can be purchased for remarkably small sums of money. ID card advocates also point out that Americans already lack substantial privacy because sensitive personal information is so readily available from a wide array of data bases compiled by banks, insurance companies, health care providers and other agencies. Amitai Etzioni, the author of a thoughtful 1999 book on privacy, has argued that 鄭mericans now have a system in which citizens suffer the drawbacks of ID cards...but enjoy none of the communal benefits of a public-service universal identification system, which could significantly reduce crime, child abuse, tax cheating, and other such losses and costs. And although critics of a national identity card have long tried to stigmatize the concept as totalitarian, many Western democracies, including Denmark, Finland, Belgium, and France, are among the more than one hundred nations that presently have some type of identity card.

But while a national ID card clearly would have benefits, there is a significant danger that the resultant threat to civil liberties would substantially outweigh those benefits.

A national identity card痴 principal virtue its efficiency -- is also its primary vice. A card that is sophisticated enough to include comprehensive data about a citizen also could be used for all manner of snooping into private affairs for purposes that have no relation to the common good. As R. Brian Black wrote in a recent law review note, 吐or every hypothetical benevolent use, one can also imagine abuse of networked databases. Law enforcement officers could retrieve financial or medical information without a search warrant or consent. Airlines could refuse to carry individuals fitting a specific medical or travel profile. Furthermore, anyone with access to the databases could cull information about individuals in need of monetary, medical, or other assistance and utilize that information for financial gain.

The menace to privacy could be particularly potent because, in contrast to all existing identifications, including social security numbers, passports, and drivers licenses, a national identity card could be linked to a central data base. As the American Civil Liberties Union warned in its 1996 position statement opposing a national identification card, 鍍he system could not work without a national governmental database of every person in the U.S. ...The linkage of government data bases with corporate data bases increases the likelihood that intimate personal information credit histories, spending habits, unlisted telephone numbers, voting, medical and employment histories could be easily assessed without a person痴 knowledge.

At the very least, legislation creating an identity card would need to carefully define and limit the persons who would have access to such information and provide means of segregating information that otherwise authorized persons would not need to see. Even if access were carefully circumscribed, however, computer databases could still be vulnerable to hackers.

Moreover, there is a danger that the federal database would contain inaccurate information, as do so many public and private databases already. As Etzioni has pointed out, the creation of a national ID card would need to be accompanied by a broad right of public assess to files in order to correct inaccuracies. The logistics of such a right would be formidable, however, and there is a danger that unsophisticated or poor people would not have the time or resources to correct mistakes. On the other hand, correction of errors in a central database might be less difficult than correction of errors across the broad array of existing databases.

Critics of a national identification card also warn that there is no known identification technology that cannot be evaded by resourceful criminals. Fingerprints are not fool-proof, and even iris-scanning techniques might not offer complete security. Indeed, national identification cards could create a false sense of security since people might overestimate the extent to which ID cards could help to prevent crimes ranging from credit card theft to terrorism.

In addition to the possible perils of a national ID card, there is little evidence that such a card would help to prevent terrorism. Although the government obviously has a compelling need to develop better means of identifying and monitoring potential terrorists, there are numerous means by which to accomplish these goals without compromising the privacy of the overwhelming majority of Americans who present no security threat.

Mindful of previous times of national emergency in which authorities unduly infringed on the rights of Americans, Congress in preparing its anti-terrorism legislation was careful to respond to the nation痴 crisis with a scalpel rather than a cleaver, tightly tailoring the federal government痴 expanded powers to the closely-related evils of terrorism and illegal immigration.

Rather than imposing identification cards on citizens, the government should experiment with the use of ID cards for aliens. The need for better identification of aliens is evident because thirteen out of the nineteen September 11 terrorists are reported to have received valid visas, but three overstayed their visas and were not detected or removed from the United States.

There are encouraging signs that the federal government is heading in this direction.

The USA Patriot Act of 2001 urged the State and Justice Departments to consider the development of biometric technology to develop 鍍amper-resistant documents for aliens and develop visa standards that will help to better screen persons who enter the country. The Immigration and Naturalization Service already is instituting a system for more centralized integration of information and has begun using a laser identification system at the southern border, according to congressional testimony last month by INS Commissioner James Zigler. Similarly, Mary Ryan, a State Department official, explained at the same hearings that the Bureau of Consular Affairs is making its identification system more sophisticated and is testing the use of facial recognition technology for terrorist identification purposes. According to Ryan, the Bureau presently often lacks the information that it needs to identify dangerous persons. At the same hearings, Steven Camarota of the Center for Immigration Studies advocated a national computerized system to permit employers to instantly verify whether a person is legally entitled to work in the United States. Last month, Republican Senator Olympia Snowe of Maine and Democratic Senator Diane Feinstein of California introduced a bill (S. 1489) to require all U.S. law enforcement agencies and the intelligence community to share information about aliens with any federal department or agency responsible for receiving, processing, issuing, and admitting any person seeking a visa.

Last week, Feinstein and Republican Senator Jon Kyl of Arizona actually introduced legislation for a high-tech biometric 都mart visa that would permit the more careful monitoring the millions of aliens who enter the United States each year. In applying for visas, foreign nationals would be required to provide fingerprints or other biometric information such as retinal scans that would be accessible from a centralized database, and they would need to present their cards upon entering or leaving the United States.

The Kyl-Feinstein proposal also would provide a useful opportunity to experiment with a standardized identification system, thereby offering insights into the wisdom of implementing a more broad-based national identification system, and providing ideas for avoiding defects if such a system were introduced.

Better identification of persons entering the nation through student visas is also wise since some persons, including one of the hijackers, have failed to enroll in colleges after obtaining student visas. Last week, Bush announced the creation of a task force to improve the monitoring of foreign students in the United States, and the INS has already said that it will implement new technology for tracking foreign students. A bill introduced by Democratic Senator Edward M. Kennedy of Massachusetts and Republican Senator Sam Brownback of Kansas would direct the INS to notify schools when foreign students enter the country and require the school to notify the INS if the student did not arrive within fifteen days after the start of classes.

Meanwhile, the American Association of Motor Vehicle Administrators is trying to develop a plan to coordinate state drivers license data bases and perhaps create a license that includes high-tech features such as fingerprints or a computer chip. The need for a more sophisticated form of driver registration was poignantly demonstrated by the ease with which four of the hijackers who attacked the Pentagon may have been able to fraudulently obtain Virginia drivers licenses. There are also unconfirmed reports that other hijackers received drivers licences from Florida, which does not even require proof of residency for issuance of a drivers licence.

Before requiring a national ID card, the government also might try experimenting with a voluntary card that would help expedite transactions. The airport in Amsterdam is using an iris-detection identity device to permit travelers who submit to the system to move more rapidly through customs. Although terrorists and other criminals obviously would not submit to a voluntary identification system, such a system would afford more time for the authorities to scrutinize potential criminals at airports and other sensitive locations and would enable a more reasoned assessment of the strengths and weaknesses of a national identity card. An airline industry task force is discussing a national air transportation card containing a traveler痴 fingerprint, flight history, address, and phone number.

The development of a national identification card requires long and careful deliberation and experimentation. An ID card would have far-reaching consequences and could jeopardize some of the nation痴 most cherished concepts of personal autonomy and individual privacy. An ill-conceived card system would be much easier to implement than to revoke since governments rarely surrender power. Although the present crisis provides a needed reminder of the possible benefits of identity cards and has stimulated a provocative discussion of a previously taboo topic, we should not allow the passions of the present emergency to push the nation into the establishment of a major innovation that Americans might come to regret. Perhaps the mandatory implementation of high-tech cards for aliens and the voluntary use of better cards at airports would provide useful experimentation that could help to clarify thinking about the benefits and drawbacks of a instituting a national ID card in the long run.


William G. Ross, a professor at the Cumberland School of Law of Samford University, is currently a visiting professor at the University of Notre Dame Law School. He welcomes comments on this essay at JURIST@law.pitt.edu.

November 7, 2001

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EDITOR

JURIST Forum Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, and visiting professor at University of Notre Dame Law School for 2001-02. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979. He welcomes comments on his columns at JURIST@law.pitt.edu.