Here’s the abstract:

This book chapter for “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009) — a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr — discusses the sources of hostility to National ID Cards in common law countries. It traces that hostility in the United States to a romantic vision of free movement and in England to an equally romantic vision of the ‘rights of Englishmen’.

Governments in the United Kingdom, United States, Australia, and other countries are responding to perceived security threats by introducing various forms of mandatory or nearly mandatory domestic civilian national identity documents. This chapter argues that these ID cards pose threats to privacy and freedom, especially in countries without strong data protection rules. The threats created by weak data protection in these new identification schemes differ significantly from previous threats, making the romantic vision a poor basis from which to critique (highly flawed) contemporary proposals.

Although the length limits for the book made me cut the paper in half from its original size, I enjoyed working on the project; there are some real issues here and I don’t think I’ve gotten to the bottom of them yet.

ID cards remain one of my main scholarly interests at present, and I expect to write much more about them. I would blog more about it, but I haven’t figured out how to blog about my works in progress without the blog time cutting into work time. I find if I blog about non-work stuff it feels like a break; it’s my hobby, it’s a conversation (or howling into the wind, as the case may be). If I blog about work stuff, I feel a greater need to be scholarly and precise, it takes a long time, and it ends up sucking energy from what I see as my main job.

I would like to thank Michael for inviting me to be a guest. It is an honor. His kind, generous and ridiculously positive introduction is much appreciated. It might have set expectations that will leave most readers surprised, disappointed, even disgusted with my posts. But this will not stop me.

True to this prediction, I will start with a confession. I am Belgian. (1) But do not worry. None of my posts will be about Belgium (except this one, too late now).

Most people think Belgium is pretty insignificant. The Daily show expressed this sentiment in a couple of episodes where John Stewart suddenly screamed that he “hates” Belgium.(2) The irony being that it is absurd to hate Belgium. Why would anyone hate something so small and harmless? (mind you, this is a cunning tactic that has been very effective for us)

To Belgium’s defense, a quick note on one of Belgium’s many wonderful accomplishments [drums rolling]: the Belgian identity card. This prestigious, much lauded project was introduced a few years ago (notice the Microsoft connection).

In fact, I was about to use my very own “electronic-Belgian-ID-card” to file Belgian taxes on line the other day. But I changed my mind upon discovering that I need to buy a card reader for my pc (or wait for a 24 code card to be mailed by snail mail). Also, recollection of the security and privacy issues did not help either. Yesterday, a new report was presented at the e-Identity conference in the Hague further detailing the huge security issues involved. Hey, at least its better for our government to fail than not to try at all. Or is it? Solutions for the card are in the works. So are the invoices by the various e-security companies. This brings me back to filing my taxes.

More about Belgium, European soccer, copyright law & the music industry, taxes and laments on the strong euro in future post.

(1) note by author: country still exists until further notice, June 13 2008.
(2) a link to the clip would of course be more effective but could not locate it on the Web

And WLF Chief Counsel Richard Samp’s analysis in More on Crawford: The Court Steps Back From Electoral Refereeing, which is published at SCOTUSblog, has a lot I agree with, especially this part, some of which is a more elegant version of what I said yesterday,

I disagree with those who suggest that the Crawford shuts the courthouse door entirely, even to discrete groups of voters who can demonstrate that a nondiscriminatory election regulation imposes a disproportion impact on their groups. While Justice Scalia’s opinion provides little comfort to such groups, Justice Stevens seems quite receptive - suggesting that there are as many as six justices who would allow such suits. Indeed, Justice Stevens virtually invites a follow-on lawsuit by one group of voters: those who have a religious objection to being photographed. He makes clear that while it may be an acceptable burden to require provisional voters to make a single trip to the county courthouse to validate their ballots, the burden becomes unreasonable if a voter is required to make the trip election after election, as Indiana law apparently would require of those with a religious objection to being photographed. Perhaps Justice Stevens calculated that such suits would be relatively uncommon and thus minimally intrusive. Political parties might well be less interested in financing a challenge to a voter ID law if the end result would be to ease ID requirements for a very small group of voters.

Justice Stevens also indicated that a voter ID law is likely unconstitutional if a State charges a fee to provide the mandated ID. Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law. Justice Stevens apparently took a stand against ID fees in order to remain consistent with Harper v. Virginia Board of Elections, the 1966 decision that struck down a $1.50 nondiscriminatory poll tax. But the distinction he makes between prohibited ID fees and the other financial burdens imposed by voting regulations is never made clear. It is not at all self-evident why a fee to obtain an ID is any more burdensome than is the cost of transporting oneself to the county courthouse to validate a provisional ballot.

Today’s Supreme Court opinion striking down the first set of challenges to Indian’s voter-ID law will probably create an electoral nightmare, and will probably disenfranchise many voters — although how many is disputed. It’s highly likely that those voters — maybe even tens or even conceivably hundreds of thousands of them — would mostly vote Democratic, at least if they voted their pocketbooks, since they are overwhelmingly likely to be poor. Voters without ID will only be allowed to cast provisional ballots, and will have to appear within 10 days with an ID or with an affidavit explaining why they don’t have one. In practice, few if any of these provisional ballots will ever be counted.

But while the opinion may be an electoral nightmare, three things keep it from being the doctrinal nightmare that it could have been: the procedural posture, some of the facts, and the fractured nature of the opinions. Unfortunately, this case is going be spun as holding that “Voter ID laws are constitutional” when in fact it holds only that they are not per se unconstitutional.

Procedurally, this was a facial challenge to the statute. A facial challenge is one where the plaintiffs argue the statute is invalid by its nature and should not be applied to anyone. Rejection of a facial challenge means that it is still open to individual plaintiffs or groups of plaintiffs to explain how the law discriminates unfairly against them given their particular circumstances and should not be applied to them. That’s why the three most conservative Justices wrote separately: they wanted to prevent future fact-based challenges. And on this, they failed.

Factually, the state of Indiana had a few good things going for it. The District Court made a number of factual findings that strengthened its case (although, for the reasons set out in Justice Souter’s opinion, still not to the point I would have swallowed it). For example, the District Court “found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Indiana Law] or who will have his or her right to vote unduly burdened by its requirements.” Furthermore, the District Court found that 99% of voting-age public had a driver’s license. So the number of potentially harmed people was low. (While opinions differ as to whether this fact should matter in a facial challenge — 1% of voters is still high — it won’t be an issue in an as-applied challenge.)

And, one key fact of future significance is that the state offers all citizens a free photo ID. That allowed the three Justices in the lead opinion to distinguish this case from a poll tax. Many other states charge for non-driver photo ID — such as Florida for example. I read this decision to suggest pretty strongly that there are six votes for the proposition that any state which charges for photo ID cannot constitutionally require that voters show a photo ID in order to vote, as this would in effect be a poll tax. (I hope this result doesn’t get lost in the lower court shuffle that is sure to follow.)

Third, this is a very fractured opinion: 3-3 to 2-1. There are some grave and important differences between the two sets of three Justices who joined to form the six-Justice majority. Give the three Justices in the lead opinion different facts, and they might well vote the other way.

Here’s a hurried summary of some key parts of the opinions:

The lead opinion is by Justice Stevens (for himself, Kennedy and the Chief Justice). The key point is at the start, the decision that, “the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute”.

This despite the observation that even though preventing vote fraud is obviously a legitimate goal for a state legislature to pursue, “The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.”

Even more troublingly, Stevens notes that, “It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification.”

Yet, even this repeat discrimination against religious objectors doesn’t make Stevens find that the statute imposes an undue burden on them. The reason is pretty legalistic, but not totally unreasonable:

Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity. Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.

As to charges that the law is the partisan hack job everyone knows it to be, Stevens writes that even if the law is partisan, there are neutral reasons for it, and that suffices to survive a facial challenge:

…if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.

That, like it or not, is pretty standard doctrine.

Scalia (writing for Thomas and Alito), isn’t happy that the door is left open to as-applied challenges. He’d close it now, even before the facts are in:

The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a special burden on” some voters, ante, at 16, but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, ante, at 18–19. That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified.

The good news is that this view gets only three votes. Not even Roberts would buy it.

Souter (for Ginsberg) shows us what a contrary opinion — one more attuned to equal protection and voter rights — looks like, with the key move being very reasonable hypotheses about the nature and extent of the burden on indigent voters (e.g. the cost of travel to get one of those free IDs for people who don’t drive). It’s a good opinion, and there’s a decent chance that some form of it may reappear in a narrower and more fact-rich challenge to voter ID laws.

Breyer (writing alone), suggests there were less restrictive alternatives to achieve the state’s legitimate ends.

Today’s New York Times has an article that encapsulates one of the major worries, what we sometimes call the “usual suspect bit”. Read Odyssey of State Capitols and State Suspicion. Now imagine someone informs on you…

A short description of the event is at On the Identity Trail in Bologna, Italy for International Workshop on Anonymity.

I’ve done something a bit scary for this conference: I’ve written a paper that showcases my ignorance about something that I care about in the hopes that the high-powered (and geographically diverse) participants will educate me.

The key question which motivates the paper is this: why are people in common law countries like the US and the UK so much more bothered about ID cards than the people in Western Europe? It’s a puzzle — we fear them, they domesticated them. They had abuses (Nazi Germany and occupied Europe), we had far fewer. Why the difference? Attitudes to authority? Different conceptions of liberty, or citizenship? Counter-balancing aspects of the legal system? None of the above?

[Incidentally, one of the many flaws of the current draft paper is that it pretends Eastern Europe doesn’t exist — mostly because I don’t know enough about contemporary attitudes to ID cards in post-communist Europe.]

The report details how a program that was originally designed to disrupt the finances of terrorists and other hostile foreign groups is now (due to name collisions) blocking the routine financial activities of innocent US persons with the misfortune to having similar names, or the bad luck to have one of the banned persons erroneously linked to them on a credit report.

The good news is that, unlike the no-fly list, the so-called no-buy list is public.

The bad news is that the criteria for getting on it are pretty vague, and there’s no clear way for a person who feels they don’t belong on it to get themselves off it. And for innocent people who happen to have the name “Michael Dooley” or any of the other names or aliases listed in the report, they are going to find that their lives get increasingly difficult as more and more employers, car dealers, mortgage brokers, and even retailers, start checking against this list.

PS. It’s possible I’ll be on Marketplace (NPR) this afternoon discussing this report. There are a ton of issues, and I doubt they’ll use more than a snippet.

Given I am currently doing work on ID cards, I was particularly struck by this transcript of the reaction of the Sea Ranch Lakes PD in Broward County, not all that far north of here:

cop; We don't give you -- we don't give you a form. Where do you live?
tester: I don't want to say.
officer: You don't want to say?
tester: Where are you going?
officer: You want to play hardball? We'll play hardball. I want ID.
tester: For what?
officer: I'm asking you for ID right now, that's why. Here, hand it to me. Hand it to me.
tester: Are you kidding me? Here.
officer: I said, hand me your ID. What are you doing here? This is --
tester: I came to ask you how to file a complaint.
officer: This is very suspicious.
tester: Asking how to file a complaint is suspicious?
officer: Why don't you shut up?
officer: I say this is very suspicious, that you pull in here at this time of night --
tester: Eight o'clock?
officer: You're constantly butting in.
tester: I'm constantly butting in?
Mike: Sir, I would like to leave.
officer: I would love it, but he's got your driver's license, so you're just going to have to stay.
Mike: Sir, are you detaining us?
officer: Okay, could I give you a ticket right now for improper backing.
Mike: You can do whatever you want, I suppose.
officer: Okay, that means yes, I guess you're saying, right? ANd for backing up, correct, yes?
Mike: I was backing up, sir, because I was leaving.
officer: But because I'm a nice guy, okay, I'm going to give you a warning. Is that fair?
Mike: Yes, sir.
officer: Okay.

The TV station that broke the story reports that "Remarkably, of 38 different police stations tested around South Florida, all but three had no police complaint forms" yet it nonetheless felt obligated to introduce its report by saying that "Most police officers are a credit to the badge, serving the community and the people who pay their salary, getting criminals off the street, making the community safer for everyone." Guess none of those guys happen to work the front desk, eh?

And much of the report is also devoted to quoting Miami police chief John Timoney saying that stuff like this can't and shouldn't happen, if it did it would surely have consequences. Not one suggestion that maybe Timoney himself might be a poster child for intimidatory policing.) To be fair, though, Timoney's department, the City of Miami was one of the few south Florida jurisdictions that actually had complaint form on hand, and trilingual ones at that. Could be due to the high demand?