2002 UCLA J.L. & Tech. Notes 4

National Identification Systems and Privacy Rights
 by Richard Edwardson

Introduction

Proposals for a national identification card or national standards for the issuance of identification cards have been kicked around for quite a while now. They have been proposed for a number of purposes: track dead-beat dads;1 track undocumented workers;2 create a national database of registered voters;3 and monitor health insurance information.4 The push for national ID standards has been renewed in the wake of the terrorist attacks of September 11.5

Proposals

There are currently two proposals on the table. One proposal is from the American Association of Motor Vehicle Administrators (AAMVA).6 The AAMVA is pushing for nationally standardized driver's licenses. Under their proposal, the standards for the issuance of identification, in the form of a state driver's license or state ID card, would be uniform.7 The AAMVA asserts, in response to concerns about privacy, that their system would connect DMV's and their databases in order to positively identify people who come from out of state requesting identification. The standardized driver's license would not be used to track what people are doing, just make sure they are who they say they are. 8 The AAMVA has recognized that federal intervention would be necessary to implement the national standard, and envisions numerous federal agencies getting involved, such as the Secret Service, Immigration and Naturalization Service, Federal Bureau of Investigations, and, among others, the Bureau of Vital Statistics.9 President Bush recently rejected the AAMVA suggestion for nationally standardized driver's license system.10 Despite this rejection, suggestions of national ID standards do have considerable public support11, and for that reason merit discussion.

The other proposal is from Oracle CEO Larry Ellison.12 Ellison proposes the creation of IDs that cannot be forged.13 The identification would consist of a password, a card, and biometrics (like a fingerprint or retinal scan). It would be like an ATM card that requires a fingerprint. The Ellison proposal is not for a national ID, but, like the AAMVA proposal, a national standard for issuing IDs.

The Opposition

Opponents are concerned about privacy and civil liberties violations. The refrain being echoed by civil libertarians is, "Papers, please."14 They cite misuse of other identification schemes from the past. Identity cards (with name, address, age, religion) used as a tool in rounding up Jews in Nazi Germany.15 Identity cards in the old Soviet Union recorded sensitive data, including ethnicity, and were used as the basis for official discrimination against disfavored groups.16 And closer to home, the use of U.S. Census Bureau records used to identify Japanese-Americans for internment.17

Civil libertarians are so strongly opposed to national identification systems because of the fear that this would lead to easy access to vast amounts of private information, in addition to turning state motor vehicle offices into immigration checkpoints.18 Additionally, opponents claim that the national identifications will not be effective in preventing terrorism, the currently the principal proposed purpose.19

A brief overview of the two principal applicable legal privacy protections, statutory and constitutional:

Driver's Privacy Protection Act

The Driver's Privacy Protection Act bars state motor vehicle departments from disclosing certain personal information (SSN, photo, address, name, phone number, medical information, but not physical description20) about drivers.21 There are, however, fourteen listed exceptions to the protective provisions.22 These exceptions allow any legitimate business to obtain a driver's personal information to verify the accuracy the individual submitted to it.23

Right to Privacy in Personal Information.

The existence of a right to privacy in personal information is fairly well established. The main precedent establishing this right is Whalen v. Roe.24 The boundaries of that right, however, are not very clear.25 It appears that only information which is extremely personal or intimate will be protected.26 Where informational privacy rights are implicated, the Supreme Court has adopted a balancing test, weighing the governmental interest in collecting the information against the privacy expectations.27

As a threshold matter, the court will require proof that the individual seeks to protect information in which she has an expectation of confidentiality or privacy.28 Then, the content of the information contained in the record is examined. The court then weighs the privacy interest against the government interest in disclosure.29

Web links with further discussion

William Norman Grigg, A National ID, at http://www.thenewamerican.com/tna/1998/vo14no17/vol4no17_id.htm.

Testimony of ACLU Legislative Counsel Katie Corrigan for the Subcommittee on Government Efficiency, Financial Management andIntergovernmental Relations of the House Committee of Government Reform on the Establishment of a National ID Card System, November 16, 2001. http://www.aclu.org/congressl111601a.html.

R. Brian Black, Legislating U.S. Data Privacy in the Context of National Identification, Number: Models from South Africa and the United Kingdom, 34 Cornell Int'l L.J. 397 (2001).

David Banisar and Simon Davies, Global Trends In Privacy Protection: An International Survey Of Privacy, Data Protection, And Surveillance Laws And Developments, 18 J. Marshall J. Computer & Info. L. 1 (1999).

Will Rodger, Ex-Lawmakers Endorse National I.D. System, Security Focus Online, at http://online.securityfocus.com/news/286 (Nov. 16, 2001).

http://www.counterpane.com/crypto-gram-0112.html#1
http://www.cato.org/tech/tk/010928-tk.html
http://www.aclu.org/library/aaidcard.html
http://slate.msn.com/?id=2058321
http://www.cato.org/pubs/pas/pa237.html
http://members.aol.com/_ht_a/xowie/idcard.htm
http://www.counterpane.com/crypto-gram-0112.html#1
http://www.aamva.org/
http://www.eff.org/Privacy/
http://www.eff.org/privnow/
http://www.aclu.org/news/n051397a.html
http://www.epic.org/privacy/id_cards/
http://www.privacyinternational.org/issues/idcard/
 

Footnotes

1. See Gregory T. Nojeim, A National Id Card, National ID Systems and Their Impact on Civil Liberties, American Civil Liberties Union Freedom Network, at http://www.aclu.org/congress/t091798a.html (Sept. 17, 1998).
2. Supra.
3. Supra.
4. See Senate Vote on National ID Cards S. 1664, American Civil Liberties Union Freedom Network, http://www.aclu.org/vote-guide/Senate_S1664.html (1996).
5. Matt Drudge , Bush Contemplates National ID Card For All Citizens, Drudge Report, at http://www.drudgereport.com/id.htm (Sept. 23, 2001).
6. See Helping Secure a Safer America, Strengthening the driver license process and document, American Association of Motor Vehicle Administrators, http://www.connective.com/events/motorvehicles/ (Jan. 14, 2002).
7. Webcast, supra.
8. Webcast, supra.
9. Webcast, supra.
10. See Neil Munro, White House ambivalent toward national driver's license system, National Journal, Jan. 23, 2002, available at http://www.aamva.org/news/nwswhitehouseambivalenttowardnationaldl.asp?ct=all&qu=national%20driver%20license&action=search.
11. Profile: Developing conservatism in Jewish-American culture, National Public Radio, Feb. 9, 2002. 2002 WL 7818804 ("Mr. David Harris (American Jewish Committee): 'One example is a national ID card. I suspect that in years past had we asked the question, a clear majority of American Jews would have opposed a national ID card. This year we asked the question and 70 percent of American Jews said, 'Yes, we favor it.' That's because of 9/11.'")
12. See David Berlind, National IDs: One way or the other, ZDNet Tech Update ,at http://techupdate.zdnet.com/techupdate/stories/main/o,14179,2830138,00.html (Dec. 5, 2001).
13. Supra.
14. Paul Rogers & Elise Ackerman, National ID Prompts Feasibility Doubts in Technology Industry, San Jose Merc. News, Sept. 25, 2001 (California Representative Tom Campbell recently argued, "If you have an ID card, it is solely for the purpose of allowing the government to compel you to produce it. This would essentially give the government the power to demand that we show our papers. It is a very dangerous thing.")
15. See J.D. Tucille, Show your papers, Free-Market.Net, at http://www.free-market.net/sportlight/idcards/ (Sept. 26, 2001).
16. Supra.
17. Supra.
18. See Nojeim, supra.
19. See ALERT: National ID Cards from DMV? Protect Your Privacy!, Electronic Frontier Foundation, at http://www.eff.org/alerts/20020116_eff_dmv_natl_id_alert.html (Jan. 16, 2002).
20. See Nojeim , supra.
21. 18 U.S.C. ¤ 2721a. The constitutionality of the Driver's Privacy Protection Act was affirmed by the Supreme Court of the United States in Reno v. Condon, 628 U.S. 141 (2000).
22. 18 U.S.C. ¤ 2721b.
23. Id. ¤ 2721(b)(3).
24. 429 U.S. 589 (1977).
25. Paul P. v. Farmer, 92 F.Supp.2d 410, 415 (D.N.J. 2000).
26. Id. ("Information concerning the general area in which a person lives is not information of an extremely personal or private nature. Nor is this information generally within a person's reasonable expectations of confidentiality.")
27. Taylor v. Best, 746 F.2d 220, 225 (4th Cir. 1984).
28. Paul P. v. Verneiro, 170 F.3d 396, 401 (3rd Cir. 1999).
29. United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3rd Cir. 1980) (detailing a list of factors for consideration including the type of record and information, potential harm from disclosure, adequacy of safeguards preventing disclosure, public need for information, and public policy or other statutory mandates).

 

 

 

 

 

 

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