Real ID Act

Professor Orin Kerr refutes one person's arguments against the Real ID Act; he also wonders why some people oppose it.  Although he is tentatively against it, his opposition is not due to the Real ID Act as such, but rather because he thinks states are doing a good enough job regulating IDs.  I, on the other hand, am against the Real ID Act because of first principles - privacy and federalism - and because it will stifle innovation.

A citizen should have the right to live anonymously.  She shouldn't be compelled to tell anyone where she lives; how much money she makes; or what her address is.  Those who want to learn details of her private life (including the government) should be forced to find it.

Because of our federalist system, some states will let a person get a driver's license without requiring him to give a fingerprint or provide his home address.  Perhaps he might move to one of those states because of his privacy ethos.  He should at least have the choice.  And states should have the autonomy to give him that choice.

The Real ID Act forces states to force Americans to volunteer private information, or else surrender the right to drive - which means the right to go work or travel.  An American shouldn't have to make that choice.  Or even if he should, a state should be allowed to accommodate his beliefs by limiting the information it collects.

Moreover, after Hiibel, police can require an American to produce her identification.  Maybe she doesn't want to give her name or other personal information to anyone, even police officers.  In my view, a person has a right to remain unmolested and anonymous until she breaks the law.

The Real ID Act will also likely lead us to Carry Your ID Act.  And then we'll have a Produce Your ID Act.  So not only will the Real ID Act block my quest for solitude and block state attempts to accommodate me and others, it will also lead us to a "Show me your papers" society.

As a kid, we used to mock apartheid South Africa for requiring people to show identification upon leaving their homes.  And we used to scream, "Show me your papers!" to mock Nazi soldiers.  Nowadays, some folks can't understand why one would prefer to keep his or her papers secret.  Maybe 9/11 changed all of this.

I don't think 9/11 should destroy America's privacy ethos.  After all, a tyrannical government would make 9/11 look like May Day.  Indeed, after Ruby Ridge and Waco, TX, I'm not sure we shouldn't remain fearful of the current administration.

Comments

[anonymous]

I like your argument. I think that we do need privacy and I think that states should allow citizens to live the way they want. I think if one state says our ID's will have every piece of information about you on it then that is a decision you take as a part of living in the state. The opposite is the same. Where I think you go off track is saying that people willing to sacrifice privacy for safety don't create news ideas or become captains or industry etc... I don't think your desire for privacy has much, if anything at all, to do with your success in your chosen field. I don't think that there is a correlation there. I also think that to be great doesn't mean you have to be eccentric. I think you have a much better argument if you don't let that slip into it.

[David Giacalone]

Mike, I'd like to know more about this declared right to anonymity. What are its historical roots? Does this mean parents shouldn't be required to register the birth of children -- in order to give the child a choice later in life to live anonymously? I don't think you're saying this is an absolute right. How can you describe or prescribe it in a way that allows citizens, states, courts to know its reach?

[law professor]

There's a lot here, but let me just make a minor legal point: Hiibel held only that a state can make it a crime not to answer your name during a Terry stop, not that the police can make you produce an ID. There's a Fifth Amendemnt difference, I think, and if ID's carry lots of information the Hiibel rationale may no longer apply to them.

[Mike]

I overstated Hiibel's holding only to the extent that a) some people (incorrectly) think that reasonable suspicion is a standard that actually contrains police conduct and b) that Hiibel won't readily be extended. If signing an IRS form doesn't violate the SI Clause, how does giving one's name?

Of course, I hope you're right and I'm wrong about Hiibel's future application. But it's not a gamble I'm willing to take, which is why Hiibel is one of many reasons I'm opposed to REAL ID.

[Mike]

David, I used "anonymously" very loosely. No one is ever anonymous; but that doesn't mean a person can't achieve a certain level of privacy.

My point is simply that when the government seeks to invade a person's privacy, it bears the burden of information collection. I have no problem with government databases. I do have a problem with requiring a person to supply information for those databases.

Whether and under what circumstances the government can condition my receipt of a government service upon my voluntarily providing information is a different issue. My point stands: Until a person breaks the law, he or she has the right to keep his personal information, well, personal.

[Norm Pattis]

Amen, Mike