Civil Liberties

Your Papers Please!

Fighting the Total Surveillance Society


On Monday afternoon, the ACLU member's conference offered a number of panels on various assaults on civil liberties. I decided to listen in on a panel entitled "Your Papers Please—National I.D. Cards for America." The panel was moderated by Barry Steinhardt, the head of the ACLU's Technology and Liberty Program. Another participant was Tim Sparapani who is spearheading the ACLU's opposition to the REAL ID program that would require every state to adopt uniform driver's licenses which would be tied into a national database. And David Fahti who works on the ACLU's national prison project spoke about his travails as someone who somehow got on the government's "no fly" list of possible terrorists.

Steinhardt noted that today Americans are asked for I.D. at virtually every turn. He outlined the various ways in which Federal government has tried and continues to spy on Americans including the Pentagon's Total Information Awareness program to create electronic dossiers on every American. Steinhardt also mentioned the National Security Agency's (NSA) warrantless wiretapping program, and the recently revealed SWIFT arrangement between the NSA and the world's leading banks to allow the agency to monitor private financial transactions. Earlier this year, the ACLU has also launched its "Don't Spy on Me" campaign in which it has filed petitions at 20 state public utility commissions and the Federal Communications Commission asking them to investigate telephone companies that handed over private phone records to the NSA.

Steinhardt went on to describe how "policy laundering" works. The Feds want every American to carry electronic I.D. cards, but the proposal fails domestically. So U.S. officials prod an international agency to adopt the new standards for machine readable travel documents, aka biometric passports. In this case the feds went to an obscure agency known as the International Civil Aviation Organization (ICAO). The feds then return saying, "We understand the concerns that American citizens have about I.D. cards, but it's out of our hands now. We are just complying with international standards." The new biometric passports will contain a radio frequency identification (RFID) chip that can display various information including a digitized photo. The Denver passport office has now begun issuing the new e-passports. In a debate with a State Department official, Steinhardt dummied up his passport with an RFID chip. When the official denied that such chips could be read from a distance, he had confederate scan it and then display his information on a screen behind the official. The official dismissed it as a "parlor trick," but Steinhardt argues that current versions of the RFID chips in passports could be the equivalent of a sign saying, "I'm an American, kidnap me."

Steinhardt did note that the RFID chips are very fragile and could suffer damage. It is against the law to deliberately disable the chips, but how could the State Department tell. One audience member wondered what would happen to the chips if one's passport somehow got it inside one's microwave oven?

Next the ACLU's David Fathi then briefly described the hassles he endured for 18 months or so when airline officials and Transportation Safety Administration officials offered him an "enhanced level" of security services. His worst experience occurred at Dulles Airport when returning from a trip abroad. He was pulled out of line by immigration and customs agents and asked for his social security number. Fathi asked the agent if other people were being asked for their social security numbers and was told no, it was just him. The agent said, "We need to make sure that you're not a bad guy." Fathi then asked why a valid U.S. passport and a valid DC driver's license was not enough to get back into his own country. The agent said it wasn't in his case. So how long can you keep me here, Fathi asked. The agent replied that they could keep Fathi for days, weeks, months, however long it took to make sure that he was not a bad guy. Then the agent demanded that Fathi hand over his wallet—Fathi asked, "Am I required to hand over my wallet?" The agent didn't reply and Fathi didn't turn over his wallet.

Fathi was traveling with his girlfriend who overheard another agent say, "Just hand cuff him and get him out of here." Fathi admitted that he finally caved and gave them his social security number. The agents immediately became very friendly saying, "Welcome home sir." Fathi noted that he was scared and he is an ACLU lawyer, a native born English speaker-what must non-citizen visitors, green card holders, and naturalized citizens experience? He noted that he was not alone on the no fly list—even Sen. Ted Kennedy (D-Mass.) has had trouble boarding airliners.

While relatively few Americans actually have passports, it turns out the new federal law that attempts to impose standardized electronic driver's licenses—Real I.D.–is modeled on the biometric passport program. Every driver's license would contain an electronic chip containing the licensee's face and fingerprints Real I.D. would tie every driver's license into a national database to which all sorts of local, state, and federal officials will have immediate electronic access. Real I.D. has real bite because without the new federally mandated electronic I.D.s Americans could be denied access to government buildings and to public transportation including buses, trains, and airplanes.

Tim Sparapani argued that the deployment of Real I.D. would make America a checkpoint society in which we must prove our identities in order to be authorized to do almost anything. No I.D., no permission granted. Sparapani argued that the Real I.D. violates the First Amendment because it interferes with the right of assembly and the right to travel unhindered. Real I.D. essentially becomes an internal passport. He pointed out that Real I.D. had Second Amendment implications in that state databases on gun ownership could be easily linked to the Real I.D. databases letting officials know what guns you own. The right to anonymity would be eviscerated by Real I.D.

In addition, Sparapani pointed out that the statute offers no privacy protections at all. So naturally, private companies would insist Real I.D.s for any transactions. CVS, Target, would record where you bought, what you bought, how much you paid, how often you visit and so forth. These retailers could then resell this information to private identification and credential verification companies like Choicepoint. Such companies already compile electronic dossiers on nearly all Americans. As Sparapani noted few doubt that one of the biggest buyers of this privately compiled information would be U.S. spy and law enforcement agencies.

Fortunately, resistance to Real I.D. seems to be growing. In New Hampshire legislators proposed to opt out the program (since stalled) and the New York City Council has passed a resolution opposing Real I.D. If we want to avoid the creation of the Total Surveillance Society, Sparapani warned, "We have to take action now against Real I.D. This is an important moment in our history."