13 May 2005

My Name Is Colin Samuels and I Don't Care Who Knows It

The relationships between our groups and ourselves tend to be symbiotic ones -- we need our groups and they need us. We form some beliefs and find groups which share and reinforce those beliefs; over time, our groups' norms become our own, and those norms tend to be especially powerful on issues where we have limited knowledge or personal experience.

Political affiliations are probably the best examples of this phenomenon. People identify with a particular party or movement based on a few major issues, and on peripheral or minor issues (to them), they generally adopt the party's position without much independent thought. The internet hasn't changed this phenomenon -- if anything, it's strengthened it and extended it to increasingly-minor areas of our lives, enabling us to find seemingly-unlimited numbers of like-minded souls without regard to geographical constraints. Now, we can bring the same degree of organization and group-reinforced passion to our love for "Desperate Housewives" as was previously reserved for core political or social beliefs.

Every so often, though, things happen which cause us to feel some disconnect in our relationships; this may be an active disagreement, a vague sense that one doesn't belong, or just a lack of interest in an issue of some importance to the group as a whole. This last one is always the most disorienting to me for some reason. If something's important to everyone else in the groups with which I normally feel right-at-home, why aren't I engaged enough to form some opinion about it?

With the recently-enacted "Real ID" law, I'm in the midst of one of these "unengaged" disconnects. (Wired has had a good overview of the bill's passage over the last couple of days -- see here and here.) The impassioned national ID debate -- e.g., at The Blog of M'Gath and The QandO Blog -- has been swirling around me for weeks, but I still just don't get it. I look around and it seems like we're already so identified that this debate is all but nonsense. Argue about those proverbial barn doors all you like -- anonymity is a horse that has not just left the barn, it's already been turned into glue and dog food.

I have a driver's license (and have had several others over the last several years), a social security number, and a passport. I have credit histories which I know about and other electronic records which I don't. I have a grocery store discount card which tells the store's faceless corporate overseers what I ate this week and frequent flier accounts which show another set of overseers where I've traveled. I've been recorded on several security cameras already today and I'll show photo ID if I need to write a check later. If I decide to knock over a liquor store on my way home, I'll be caught pretty quickly because my fingerprints are on file with the Oregon State Bar and because I just posted that last sentence on a blog for everyone to find. I can be googled and ZabaSearched. I'm also a greedy bastard; now everyone knows it.

The national ID debate is just the latest in a series of similar arguments. When the Patriot Act was enacted, privacy advocates lamented that the government could check your library records; if you're worried about that, why weren't you concerned that those personally-identifiable records are kept by the library in the first place? I know, I know -- if you're afraid to get and use your library card, the terrorists win, and why you checked-out that copy of How to Fly a Jetliner Without Knowing How to Take-Off or Land is your own business. My point is simply that data about us is everywhere and is accumulating in ways we don't necessarily comprehend or appreciate; anonymity is a functional impossibility.

What's more, official identity, whether on a national ID card, a "Real ID" state driver's license, or a compelled answer, is not optional. In Hiibel v. Sixth Judicial District Court of Nevada, decided last year, the Supreme Court considered so-called "stop-and-identify" statutes, which require a person stopped by the police (even without probable cause) to give his or her name. The Court determined that there is no right to remain anonymous under such circumstances under either the Fourth Amendment's protections against unreasonable searches and seizures or the Fifth Amendment's protections against compelled self-incrimination. This is not a good ruling by any means -- it's shot-through with self-contradictions and illogic -- but it is a pragmatic decision and it is, for the foreseeable future, the law.

As a result of all this unofficial and official identity-information gathering, for a person to remain anonymous, he would have to be a complete recluse. He cannot drive (driver's license required), travel (photo ID required), hold a job (social security number required), join any organization which keeps membership rolls, visit any entity which accumulates personally-identifiable information, use anything but cash or bartering for transactions, or frequent any area under police jurisdiction (thanks, Hiibel). Frankly, even if such a person exists outside the realm of the hypothetical, is our society best-served by catering to that fellow's peculiar aversion to identity?

Our collective focus should not be on preserving an already-lost concept of anonymity; rather, we should seek to define and protect that universe of private activities in which we should be left alone -- not necessarily anonymous, but alone. Take the right of assembly, for instance: We should protect your ability to congregate with others, in person or on-line, to contemplate the creation of a socialist workers' paradise in Middle America, the promotion of Adam Sandler to be the next James Bond, or the various and sundry uses for duct tape in both moral and immoral legal pursuits. For us to spend our efforts fighting for your right to do those things anonymously in the technological and legal climate of our modern society would be both futile and counterproductive. Anonymity is a pipe dream; let's concentrate on fighting the good fight for protecting privacy, not identity.


Gary McGath said...

Thanks for the link.

Two aspects of "Real ID" which you haven't discussed are critical. One is that the bill prohibits illegal aliens from getting driver's licenses or equivalent ID's, thus creating an anonymous underworld in which terrorists will be able to move freely -- an effect opposite of the stated intent of the bill. Second, and much worse, the Secretary of Homeland Security is authorized to ignore any law he doesn't like when fortifying the border. That is what terrifies me about the bill.

Colin Samuels said...

Both good points, Gary. Admittedly, having an entire class of population (ilegal immigrants) which is not captured in an otherwise-comprehensive identification scheme can be a weakness. Nevertheless, this potential weakness becomes a real problem only if immigration laws are not enforced assiduously. To steamroll the parallel debates over border enforcement, guest worker programs, immigration amnesty, and so on in the name of creating a national identity scheme which treats legal and illegal residents equally is not necessary, in my opinion.

The creation of a more secure state-level identification document or a nationally-managed identification scheme (or a hybrid of the two, as Real ID seems to be) creates a great opportunity to both enhance security and curb illegal immigration; this latter (and politically secondary) objective is only achievable, however, if the will exists to enforce immigration laws and policies once illegal entrants are identified through enhanced identification methodology. In other words, if the tighter, more comprehensive identification and verification practices contemplated in Real ID spotlight illegal immigration and entry by individuals or groups and these persons are then allowed to melt back into the "anonymous underworld", then we will have severe problems. What should be recognized is that these problems result not from the concept of national identification or the exclusion of illegal entrants therefrom, but from failing to enforce other related laws, namely immigration statutes. What this really comes down to is that the Real ID scheme can work only if both identification and immigration laws are enforced; as both of these are within the DHS' purview, there is at least some cause for hope that this will happen.

Your second point, which you've discussed in admirable depth at your site, focuses on Section I of the statute (Section II concerns the identification document standards). I think the separation of the two functions -- border control and national identification -- into separate sections highlights the arguments I made above. These are separate but related concerns, which both need to be addressed to achieve a comprehensive solution.

That a government official (here the Secretary of Homeland Security) is empowered by Congress with rule-making authority which overrides established laws is indeed troubling. However, what most distinguishes this DHS authority from past Executive Branch administrative authorizations is the explicit nature of the authorization, rather than the extent of it. Look at the broad rule-making authority of the FCC or pretty much any other of the "alphabet soup" commissions and agencies; what's different here is that the broad authority is granted by Congress, as opposed to being assumed by the agency with Congress' acquiesence. It doesn't give me warm fuzzies, but I take some measure of comfort in recognizing that this is for admirable goals -- national security and immigration enforcement -- rather than something frivolous like making South Park more prude-friendly.

I agree that there are a number of Constitutional concerns about Real ID which need to be resolved. It's been well-established that one branch of the federal government cannot delegate its own or another's constitutional authority to a different branch in a manner not authorized by the Constitution. I think that your question whether DHS could, under the auspices of Real ID Section I, override contrary state laws will be answered in the affirmative. When state law conflicts with federal law, the feds win. Here, border security and immigration are definite federal areas of authority and concern.

The larger issue is whether the Section I authority intends or could be interpreted to grant DHS authority to countermand other federal laws by administrative fiat. In this, I suspect that the invalidity of the line-item veto law will be instructive; there, Congress was found to have improperly delegated its legislative authority to the Executive Branch (in that instance, the President). If DHS seeks to overturn other Congress-enacted federal laws using the Section I Congress-granted authority (arguably) to do so, I think this would be an unconstitutional exercise of legislative authority by an executive branch agency.

I have two other concerns with Real ID: First, Real ID co-opts state licensing processes rather than establishing its own, independent process (which the feds certainly could do), needlessly entangling federal concerns and state agencies just for the sake of convenience and because it's the path of least resistance.

Second, whether I agree with the law itself or not, attaching this major legislation as a rider on an Iraq War funding bill is sleazy politics even by Washington's low standards. This identification plan is the subject of spirited, ongoing national debate. To foreclose that debate and the possibility that a broader consensus could be established around Real ID's provisions (or that those provisions could be improved) by slipping this should-be-standalone bill into another, more secure law is unconscionable. By avoiding this important public dialogue now, Congress has all but guaranteed more resistance later. While it certainly won't be dispositive, the courts will not be blind to the fact that this contentious issue was enacted despite reservations and spirited objections, under cover of legislative trickery.