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Home > Past Releases and Reports > Remarks on National IDs to the American Legislative Exchange Councilís Trade and Transportation Task Force


Remarks of Jim Harper, Editor of Privacilla.org, on National IDs to the American Legislative Exchange Councilís Trade and Transportation Task Force

December 4, 2004

Iím grateful for the chance to speak to you today about national ID issues. I always learn as much from attending meetings like this one as I teach. I learned a great deal from Tomís presentation [Tom Gann; Digimarc] and from your questions to him. He is dealing, of course, with a narrow but important piece of the identification chain: assuring the integrity and security of the card.

As I get started here, first, Iím going to give you a rundown of the lay of the land on federal ID legislation, then talk about the bigger picture.

As to whatís happening right now: If you can wait until the early part of next week, Iíll give you a straight answer about the national ID proposals pending in Congress right now. They are coming back in on Monday to correct a problem with the omnibus spending bill, and intelligence reform legislation containing national ID provisions could arise from the dead in the next few days.

The 9/11 Commission did recommend that Congress set federal standards for driversí licenses and IDs. I have called that a ďthrowawayĒ recommendation because it occupied about three-quarters of a page in a multi-hundred page document. They could certainly create a National Intelligence Director and reorganize our intelligence bureaucracy without doing national ID at the same time, but the issues are linked in both the House and Senate bills.

The bills come at it from different directions, but both would mandate how state IDs are issued. The House bill is fairly prescriptive in the legislative language. The Senate bill would leave it to the Department of Homeland Security and the Department of Transportation to decide how IDs should be done in regulations.

So, again, weíll find out in the next few days what is going to happen.

I think there is general agreement here with this group, and across the land, that we donít want to have a national ID system. We all want to protect against terrorist attacks and control the countryís borders, for example, but people have a lot of reservations about a national ID. It harkens to the worst governments of the last century, the Soviet Union and Nazi Germany, that we should all be required to have official papers.

Now, Iíve only begun my study of these questions, and Iím trying to figure out whether we donít already have a national ID. Unfortunately, thereís no horn that sounds when you have a national ID, and thereís no bell that rings when you donít. It seems to be that, as a practical matter, we already have a creeping national ID system with the Social Security Number and the driverís license.

I challenge you all to try going for a week without an ID. Put your driversí license in the glove compartment of your car, and you may quickly find out how often you have to show ID. ID is commonly called for when you enter office buildings, check into hotels, open bank accounts, and dozens of other common activities. It seems like more and more ordinary activities require ID all the time.

Unfortunately, a lot of the arguments about national IDs go on peoplesí gut instincts. Many people argue for IDs based on a gut sense that if people are identified theyíll be safer. I think thatís sometimes true and other times not. A lot of the arguments against national ID go on gut, too.

Iíve started to articulate out the separate harms from having a national ID system. They tend to be a little ďsoftĒ in the sense of being about intangibles like ďfreedom,Ē but theyíre awfully important, I think, and I hope you agree.

First, there is the specter of living in a ďpapers pleaseĒ society. That is, where law enforcement personnel, bureaucrats, and all variety of private actors can stop you in the course of your daily life and ask you to prove who you are.

Another is that the unified ID system is a natural structure on which to build a dossier system. There are plenty of reasons to collect information at times, but we need always to hew to making that a consumer decision. Required ID means displaying personal information when you donít want to.

Similarly, weíve always been a society that believes in the ďfresh start.Ē Plenty of people, for good reason, pull up stakes, move, and start a new life. A national ID will degrade peopleís ability to be who they want to be Ė if that person is someone new. Our bankruptcy law is one of the best in the world because we say to people and businesses ďOK, you failed. Weíre going to let you start fresh,Ē even though there's some risk that they will fail again. We often accept people leaving their pasts in the past, so long as they are not leaving a solid propensity to criminal behavior or somesuch.

Because it creates centralized control, a national ID threatens the danger of confiscation by authorities. Think of it: by taking away a personís ID, you take away their access to all kinds of goods and services. We have a great tradition of freedom and the rule of law in this country but we have made some dreadfully serious errors in our history, and things like that could happen again. A national ID would make government control and enforcement of deeply wrong decisions far too easy.

Similarly, "confiscation" of ID by private actors is just as bad. Identity fraud is made easier and more damaging if there is only one pathway taken to co-opting another person's financial life. Uniform ID simplifies things for criminal actors.

So there are some reasons why we reject national IDs.

To understand what to do about ID issues, Iíve been digging into what an ID is and what it does. To deal with other people, we need to know things about them. An ID is part of this process.

Letís think this through: You own an ice cream shop. What do you need to know about the people who come in? They need to have taste buds and a wallet, right? Now, how about if youíre a commercial building? You need to know that people there have a lawful business purpose, or something along those lines. Now, what if youíre a police officer on a common vehicle stop? You need to know if a person is a licensed driver. Now, what if youíre an airline? You need to know if someone is a threat to your airplane and to the survival of other passengers.

Thatís a wide range of different interactions, yet Ė other than the ice cream shop Ė weíve pushed them all onto the driverís license.

But what is the ID and what does it do? Iím coming to the conclusion that itís best talked about as a communications device. It conveys facts about a person, usually with some sort of third party validation. So the line of analysis is roughly: What facts go into an ID? How do they get through? And, finally: What do they say?

Iím not going to talk much about the middle question there. That is about the security of the ID issuer and the methods used to prevent counterfeiting which Tom talked about. But what are the facts that go in and what do they say?

Now, invariably when you talk about ID, youíve got to go to your wallet, so letís do that . . . .

Hereís my driverís license. What does it represent? That I went into a DMV in California sometime in the 90s and presented the right documents to get it issued. I donít think I had to repeat the driverís test in the 90s. It also is some assurance that I am at the address on the card, because it was mailed to me. Now, thatís actually a pretty thin file of information about me, but itís good enough for most purposes.

There are a lot of other cards in my wallet, and the thing that you start to discover is that there are more privately issued ID cards in the average wallet then publicly issued IDs, and they represent a tailored variety that is useful. Here, for example, is a health insurance card: it is mostly just informational as I donít think it independently gives me access to health care.

This key card is interesting to me. It has a chip in it that communicates with the door lock system and opens it when the card is present. The card doesnít have any information printed on it except a serial number. It gives the bearer access to Catoís building. No one has to know my address or date of birth before I get into that building, and thatís a protection of my privacy, in a small way. Itís also built on only a small amount of highly relevant information: the fact that I am employed at Cato.

Here is the card that is most interesting to me, because it is issued based on a substantial factual background and a risk analysis. Not a terrorism risk analysis, of course, but a financial risk analysis. My credit card indicates that I have a solid history of bill payment which allows for rational prediction that I will pay bills in the future. Thatís several steps ahead of the factual basis and risk analysis that goes into the driversí license.

So which card do you think is better converted to terrorism prevention based on solid risk analysis? I think there's probably a substantial connection between the depth of peoples' roots in our communities and their friendliness to our society and way of life. That is, someone with deeper roots is less likely to try to destroy our society.

Which card is positioned to be an indicator of a personís depth in the community, through such things as parental status, employment, homeownership, and longevity in such roles? Itís this privately issued card.

I think there are a lot of protections in having a diversity of cards, including privately issued cards, playing diverse roles. Privately issued IDs may be of better quality along important vectors, and they certainly offer more variety and more choice. With a variety of cards available for different purposes, we may get away from the assumption that everyone carries the standard ID. This would prevent the uniformity, dossier-building, and other threats from a national ID.

To increase the diversity of IDs, state legislators like yourselves should consider adding a secure ID to the driverís license as an offering of your DMVs. We should remember that the driverís license is first and foremost a license to drive a car. By converting it to a national security card, you risk making it too difficult to obtain for ordinary citizens trying to go about their ordinary lives.

You should also consider having the institutions of government in your state accept privately issued cards that meet their respective security and information needs. This would be a tremendous advance for convenience and it would slow the creep of the national ID.

So, I have a lot more study to do on this issue, but I think you should bring some substantial skepticism to calls for uniform driverís licenses and IDs.


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