The ID Idea
Goodbye to privacy.

By Robert A. Levy, senior fellow in constitutional studies at the Cato Institute.
October 24, 2001 10:10 a.m.

artin Anderson, former aide to President Reagan, writes of a Cabinet meeting at which Attorney General William French Smith proposed a national ID card to curb illegal immigration. No ID, no job. Anderson caustically suggested an alternative that would be cheaper, lighter weight, impossible to lose, immune to counterfeiting or theft, even waterproof: Just "tattoo an ID number on the inside of everybody's arm." Naturally, Reagan understood the allusion, and the idea was never again taken seriously — until now.

In the wake of the calamitous events of September 11, Rep. Nancy L. Johnson (R., Conn.) suggested a national ID using fingerprints or retinal scans. Sen. Dianne Feinstein (D., Calif.) reportedly supports the idea. And in the hallowed halls of Harvard, self-described civil libertarian Alan Dershowitz proposed a "voluntary" card, with a chip that matches the holder's fingerprints. Dershowitz understands the incompatibility of national IDs and civil liberties, so he is promoting his card as "optional."

Optional indeed. Imagine Osama bin Laden's henchmen waiting to sign up for their IDs. That's about as likely as criminals volunteering to register their guns. Moreover, terrorists who are capable of destroying the World Trade Center are surely capable of obtaining forged IDs (even the high-tech variety), bribing officials who issue or check the cards, creating false identities that survive scrutiny, or using persons with legitimate cards to do their dirty work. Make no mistake: The predictable failure of a voluntary system will lead to compulsory IDs. Remember the elective tax check-off to finance political campaigns? Like clockwork, that fiasco spawned unrelenting calls for mandatory public funding.

Dershowitz disagrees. "It's a tradeoff between privacy and convenience," he says. Look at drivers who avoid long delays at tollbooths by acceding to electronic billing, triggered by a device on their dashboard. Well, yes, but terrorists, who plan their odious crimes years in advance, aren't likely to mind a few minutes of waiting in line to dodge electronic tracing. Furthermore, the dashboard device affords a real choice: Give up a little privacy, and save a lot of time. That's not what proponents of a national ID have up their sleeves. Their choice is: Give up some privacy by showing your card, or give up yet more privacy by subjecting yourself to surveillance, search, detention, or worse. If too few people go for the ID, the government will simply raise the ante — making its searches progressively more insufferable until the ID is less repellent by contrast.

True, we use identification cards every day — for, say, driving and check-cashing. But the primary purpose of a driver's license is to affirm that the holder is qualified to operate an automobile. And when you show an ID to cash a check, you're doing it to prove you are the payee. By comparison, neither specific skills nor a particular identity are required to engage in the majority of day-to-day transactions. Even our Social Security cards may be used only to track payroll taxes; federal law forbids their use for purposes of identification. We must not be compelled to "show our papers" every time we want to buy goods or services.

For security purposes, photo IDs are already required at airports. If the national ID were limited to name, address, photo — even fingerprints — and its use were confined to airports, few would object. After all, passports must now be exhibited for all international travel, despite the obvious implications for ethnic profiling. But the ID scheme is far more insidious.

First, the card will be effective only if scores of activities require its display. Terrorists are not stupid. They will select forums like theaters and sporting events, which are not as easily protected. Consequently, the number of ID-restricted activities will increase, and the card will become more burdensome and invasive. Constraining its use means limiting its effectiveness. Expanding its use means violating more privacy rights. And you can rest assured that the ID will remain with us long after the need for extraordinary security has receded.

Second, to target terrorists, a national ID must be linked to a central database of personal characteristics and private records and transactions. That data will be maintained by the federal government — unlike the information on car drivers, which is kept by 50 separate states. The pressure to include ethnicity as a factor will be irresistible, thereby exacerbating the profiling problem. No doubt, government officials will make the case that the ID and its linked database should not be limited to foiling terrorists. How about the drug war? Immigration? Gun registration? The potential for abuse is boundless. Keep in mind, it's been only four years since Congress rejected legislation to add photos, fingerprints, and retina scans to our Social Security cards; and only seven years since Hillary Clinton urged a national health card containing our lifetime medical records.

The keepers of the data will promise confidentiality, of course. But tell that to the Japanese-Americans who were interned after U.S. census data were compromised during the 1940s. Tell it to taxpayers whose personal records were illegally snooped by IRS agents in the mid-1990s. But none of that seems to concern Dershowitz, who asserts that no right to anonymity is "hinted at in the Constitution." Of course, that turns the Constitution on its head. The Ninth Amendment tells us we have an untold number of rights that are not enumerated in the Constitution. The question is not whether we have a right to anonymity, but whether government has the power to take it away.

When it comes to political writings, for example, the Supreme Court said in 1995 that "Anonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation." An extension of that doctrine to cover oral speech will be tested this coming term, when the Court decides whether door-to-door canvassers for Jehovah's Witnesses can be required to display a permit with their name on it.

To be sure, the right to anonymity is not absolute. But before stampeding toward a national ID, we should listen to Justice William O. Douglas, who cautioned a half-century ago: "To be let alone is indeed the beginning of all freedom."