Thinking About National ID Cards

Professor Alan Dershowitz of Harvard Law School has been described by Newsweek as "the nation's most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights." Time magazine, in addition to including him on the cover story on the "50 Faces for the Future," called him "the top lawyer of last resort in the country -- a sort of judicial St. Jude." Business Week characterized him as "a feisty civil libertarian and one of the nation's most prominent legal educators." He has been profiled by every major magazine ranging from Life ("iconoclast and self-appointed scourge of the criminal justice system"); to Esquire ("the country's most articulate and uncompromising protector of criminal defendants"); to Fortune ("impassioned civil libertarian" who has "put up the best defense for a Dickensian lineup of suspects"); to People ("defense attorney extraordinaire") and to New York Magazine ("One of the country's foremost appellate lawyers"). More than 50 of his articles have appeared in the New York Times Magazine Book Review, and Op- Ed Pages. He has also published more than 100 articles in magazines and journals such as The Washington Post, The New Republic, Saturday Review, The Harvard Law Review, and the Yale Law Journal. Most recently, Alan Dershowitz is the author of Shouting Fire: Civil Liberties in a Turbulent Age.

POINT • COUNTERPOINT

There are several distinct but somewhat overlapping issues raised by any system of national (or international) identification.

The first is: when should government officials (or private security guards) be empowered to require a citizen (or a non-citizen) to show identification? Put in its negative form, when should an individual have the right to refuse to show identification? None of us would want to live in a society in which the police were empowered to demand, “Your papers, please,” anytime they felt like doing so. Nor would we want to live in a society in which no citizen, regardless of how suspicious, could be required to identify himself. A proper balance must be struck, and that balance will vary over time and circumstances. Before 11 September 2001, ID was generally not required for entry into private commercial buildings. Now it is often required.

A second issue is: How can we ensure that when a citizen is required to show identification, the identification shown is accurate? Accuracy entails at least two factors: The first is whether the card is, in fact, the bearer’s or someone else’s. That problem can be easily solved by including a chip in the card that matches a unique characteristic of the bearer, such as a retinal print or fingerprint. The second factor is, even if the card belongs to the bearer, is he actually the person whose name is on the card? If John Smith gets a card saying he is John Jones, the John Jones card will match his print but the bearer will not be John Jones. This problem is more difficult to solve, since it requires more extensive background checks on all people applying for the card.

The next issue is whether the card will be voluntary or involuntary. Recently Attorney General John Ashcroft proposed the establishment of a “trusted flyer program” under which anyone who uses air travel can volunteer to submit to a background check. Passing the test would entitle that person to a card facilitating the boarding of airplanes. Anyone who did not have such a card would be subjected to more extensive airport searches.

A related issue is whether, even if the card is mandatory, everyone would be required to carry it at all times. The alternative would simply be to accept only this card as ID whenever ID is required, but to leave people free not to carry a card if they did not seek to enter places where ID is required. A driver’s license need not be carried unless one is driving, but no one can pass through airport security without one (or another acceptable form of ID).

The next issue relates to the source of the card—whether it should be local, federal, or even international. Today’s driver’s licenses are local, passports are national, and international drivers’ licenses are obviously international.

The next group of issues relates not to the card itself but to the database connected to the card. The most important question in this regard is what information the database should contain. Further still, should there be a single database or separate databases, each containing different kinds of information for different purposes. Related to this is the question of sharing information on any databases. Should government agencies be permitted to share information freely? What about the private sector? Should there be a presumption in favor of sharing or in favor of separation? Prior to 11 September 2001, these important issues were decided largely by happenstance, computer connections, and intragovernmental rivalries. Following 11 September2001 there has been greater sensitivity to the need to make principled decisions about when information should be shared and when it should be kept separate. Finally, there are the technical questions related to whether we can develop the capacity to limit access to data according to the need to know. Firewalls are not impenetrable, but they can provide limited protection against improper access to data.

Before 11 September 2001, I had not thought much about national identity cards. I had a knee-jerk opposition to any such intrusion, growing primarily out of the misuse of ID cards by the apartheid regime in South Africa and the totalitarian regimes in the Soviet Union and China. But the ease with which several of the 11 September hijackers managed to hide in open view and fall between the bureaucratic cracks made it clear to me that a foolproof national ID card had some real virtues. Then I started to think about its vices. I was hard pressed to come up with any compelling civil-libertarian arguments against a simple card, which would contain only five elements: the bearer’s name, address, Social Security number, photograph, and a finger or retinal print matching a chip in the card.

There are, of course, grave dangers inherent in any system of information gathering by government officials. Anyone who lived through J. Edgar Hoover’s tenure as the director of the Federal Bureau of Investigation understands this danger. That is why there should be a national debate over what kind of information is appropriate for the government to gather and place in its databases. But that is a different debate from the one about national ID cards. We already have the databases. Whenever you return from a trip abroad, you must show your passport, and the authorities can match it with an existing database. The national ID card would not add anything to the database except the finger or retinal print. There is the danger that a limited national ID card could expand into something far more invasive of privacy. Justice Benjamin Cardozo wrote of “the tendency of a principle to expand itself to the limit of its logic.” Once the government was empowered to require every person to have a card, the pressures would increase to expand the uses that could be made of the card and the information that could be accessed from it. That is why the debate about national ID cards should be a stimulus to the far more important debates about the content of government databases and the circumstances under which government authorities should be entitled to ask anyone to identify himself or herself. The understandable fear of the slippery slope is a reason for setting clear limits and drawing reasonable distinctions, not necessarily for inaction.

An alternative to a mandatory national ID card would be an optional one. Since the vast majority of Americans already carry several forms of identification, including at least one photo ID, I believe that most Americans would sign up for the national card, especially because its bearer would be able to pass through appropriate checkpoints—such as airports, high-rise buildings, government offices—more expeditiously than those who opted out of the national ID system.

Another virtue of the national ID card is that it would eliminate much of the justification now offered for racial or ethnic profiling. When African-American students first started to attend Harvard in significant numbers, many of them were routinely hassled by security officers and others, since to certain eyes they didn’t look as if they belonged on or around the Harvard campus. When ID cards were issued to all students, it became easier for African-American students to avoid harassment by simply showing their cards. To be sure, they were asked to show their cards more often than white students—and that clearly was inappropriate. But the net result of the student ID cards was to reduce the amount of inappropriate hassling of minority students. I think the same thing would be true for Arab-Americans. Under current conditions, Arab-American men would probably be asked for their national IDs more often, but by showing the card, they could avoid the kind of harassment that many have recently experienced on airplanes.

As a general proposition, I think it is far better for everybody to be deprived of a little bit of anonymity than for one specific ethnic group to bear a disproportionate part of the burden. I prefer “we-we” compromises over “we-they” compromises. “We-we” intrusions provide a more effective check on abuses, since those whose rights are being compromised have more political power than the “theys.” An optional national ID card is a “we-we” intrusion, since those who deliberately opt out of the national ID system have made a decision to endure more intrusive searches in exchange for not having to carry the card. In some respects, this is a little like the trade-off people make when they agree to have their automobile identified by a radio computer when crossing bridges and going through tunnels, rather than stopping and anonymously paying a toll.

I would certainly require foolproof ID cards for anyone visiting the United States. Today foreign visitors are required to have passports and other immigration documents, and the additional requirements of a card with a print would not be onerous and would reduce the opportunity for circumvention.

For reasons similar to those for which I favor a national ID card, I also favor limited use of face-recognition technology in public buildings, airports, or other places where identification is now required. Face-recognition machines—to the extent that they can be made to work more effectively—are certainly preferable to ethnic stereotyping, which is simply a primitive, human method of face identification. Civil libertarians need not fear technology, so long as we control it, rather than allowing it to control us.

An issue closely related to the national ID card debate is the authority to require a person to identify himself or herself and the criteria for when such a request for identification is proper. Again, there is a continuum. At the “Big Brother” end is the system of frequent checkpoints, random demands for “your papers, please,” and even electronic monitoring of movement. At the softer end would be a system in which no one was required to carry a national ID card—as no one today is required to carry a driver’s license when not driving—but if anyone wanted to go to a place where ID was properly required, such as an airport or a government building, the only acceptable ID would be the national card (or the only ID that would get you into the “quick” lane would be the national one).

Following 11 September, identification requests have moved from airports and government buildings into the private arena. An ID is now required to enter virtually any high-rise building. We have not reached the point of having to show an ID on the street, and I hope it will not come to that, but for anyone who does more than just stay at home or walk in the streets, identification requests are becoming routine. It feels somewhat uncomfortable and is sometimes inconvenient, but it does not feel tyrannical, perhaps because the requesters are not wearing government badges and carrying guns. The source of the request matters.

We should not institute checkpoints or authorize random ID checks. We should, however, consider a system under which visitors to this country are required to regularly check in telephonically (from a traceable land-line phone), say, every ten or fifteen days. We have the technology to do this, and it would help us track visitors who have overstayed their visas or are otherwise out of status. Recently many long-term illegal immigrants who had remained out of trouble and were productively employed were granted amnesty and may now apply to become lawful residents or citizens. That is a positive development for at least two reasons: First, it recognizes that even though some immigrants are descended from immigrants who came here under questionable circumstances, it recognizes that these citizens have contributed much to this country. Second, it moves us toward a system under which “illegal immigrant” status really means something. We can no longer accept a situation in which millions of people are de facto accepted as residents while de jure being illegally here. That twilight-zone status makes it nearly impossible to enforce our immigration laws in a way that protects us from potential terrorists. We must move toward a time when people who are in this country illegally are tracked down and detained or deported. If they have no right to be here, they should not be here. If we want them to be here, their status should be changed to that of lawful residents or visitors. The need for security in this age of terrorism demands that the legal status of everyone in this country be clear.

One place where virtually all Americans want more security is at our airports. The events of 11 Septemberwould—not might—have been prevented by decent airport security. Two of the hijacked planes originated at Logan Airport in Boston, out of which I have regularly flown for many years. Security there was notoriously lax, and those planning the hijacking obviously knew that.

The sad reality is that thousands of citizens died, partly because other citizens failed to do their jobs well. Unless the people who were at fault are quickly identified and fired and the procedures at fault are pinpointed and fixed, we risk repetition. Our understandable wish to present a united front against terrorism should not deter us from pointing an accusatory finger at those Americans who were responsible for allowing the terrorists to inflict so much damage on so many innocent people. To place some of the blame on our own citizens does not in any way diminish the moral culpability of the terrorists, who are the only criminals. But we may not be able to get at the terrorists. We can do something about our own failures.

The other sad reality is that too many of the people responsible for our security are simply not knowledgeable enough and not experienced enough to do the job. We must do better. Airport security should be the job of retired Federal Bureau of Investigation agents and others with extensive law enforcement experience.

Nor should we resist technological support for airport security. When tests began at Orlando International Airport for some cutting-edge devices capable of detecting explosives and other dangerous items, the American Civil Liberties Union immediately complained because one of the machines could see through clothing. Although this machine would be operated by guards of the same sex as the scanned person, prudish concerns were raised, comparing the intrusiveness of this electronic scan to a “virtual strip search.” The analogy is absurd as anyone who has been poked and groped during a strip search can attest. Such an unwillingness to distinguish between degrees and kinds of intrusion will make it far more difficult to strike the proper balance.

We must start thinking smartly about smart technology that can increase our security without unduly diminishing our liberty. We need not fear technology, so long as we control it, rather than allowing it to control us.