In November 2001, I testified against the national identification card proposal when it was first made in Congress. Below is the oral testimony from that hearing before the House Government Reform Committee, Financial Management and Intergovernmental Relations Subcommittee on Nov. 16, 2001:
We’ll go to the second panel now. Mr. Turley; Mr. Goodman (ph); Mr. Corrigan — Mrs. Corrigan; Mr. Veestaeten.
HORN: I’m going to tell you — OK. If you will stand and if there’s any of your assistants or anything that’s going to be whispering in your ear, let’s get them to take the oath also.
So, raise your right hand and do you solemnly swear that the testimony you will give before the subcommittee will be truth, the whole truth and nothing but the truth?
The clerk will note all of the individuals; the witnesses and I didn’t see any — to many other assistants.
So, let us start then with Mr. Turley and Shapiro Professor of Public Interest Law at the George Washington University Law School.
TURLEY: Thank you very much, Mr. Chairman. First of all, let me express my thanks for appearing again before this subcommittee and also to appear before you, perhaps for my last time. As chairman of this subcommittee, we all owe you a great debt and your retirement is a real loss to this institution and we — I want to be one that thanks you for it.
HORN: Remember, you’re under oath now.
TURLEY: Obviously, this is a subject we’re generally more heat than light is generated. And in a rare display of academic modesty, I will say that I will not resolve the questions surrounding this debate.
I would, however, like to offer a constitutional historical foundation perhaps to move the debate from what is often kinetic rhetoric to a more stable basis for discussion. It’s certainly not enough to dismiss national identification systems as opposed to a card as unprecedented.
The framers gave us a system that is — was certainly at the time unique because it is the most nimble and versatile system in the world. As in nature, nations that fail to evolve are least likely to survive. The world is not static and so our responses have to be as dynamic as the world around us.
So this is a hearing that is looking at a question that’s very much a question of our times, whether you consider the national identification system to be a necessary security measure, or big brother’s little helper, we need to reach some type of consensus and so it’s an honor to offer my views on those lines.
Now today’s debate is part of a long unbroken debate that has raged about the relationship between the government and the governed. We, as Americans, have a virtual hereditary suspicion of government. As Oliver Wendell Holmes said the life of the law has not been logic, it has been experience. And our experience with the government and systems of this kind has not been good. It’s been long and painful.
We have learned that authority operates along the same principles as a gas in a closed in a closed space. As you expand that space, government authority will expand as well to the full extent of the expansion. And from biblical times, and I’ve laid this out in my written testimony through the Ottoman Empire and Henry the VIII to the present time nations have tried to create national registries. Not for oppressive reasons, but for necessary reasons. But, those systems have, as we know, been used for great harm.
Now, we also need to get away from a habit of talking of a good game about national identification systems. We are very proud as Americans that we don’t have human license plates. But, the fact is, we have a national identification system, it just doesn’t happen to be a very good one. We have allowed the Social Security number to mutate into a national identifier. That is ironic, since as I mentioned in my testimony, the Congress was quite clear that the Social Security number was not to be used as a source of identification. This Congress has repeatedly said that it should not be used, that’s it opposed to a national identification card.
And so the question is why in my wallet do I have a driver’s license, a smart university card, an athletic card and credit cards that are all based on my SSN? Why do I have two kids, one who’s three, one who’s one and a half, who have their own cards, they’re already being tracked? Human serialization that we fear is here in some respects. But, the reason it’s here and the reason we failed in our efforts to control the SSN, is because the market had a need, it created a vacuum that in the absence of congressional involvement, it filled that vacuum. The SSN was inevitable because the market needed it.
I happen to have a great deal of problems with national identification systems. I tend to fear government quite frankly. I tend to like the least of it as I possible can have. But, we also have to be concerned that if we do not act that the market will act for us. We have to be concerned that if we remain passive there will be efforts to fill that vacuum and they’re happening right now. At this moment the heads of Department of Motor Vehicles have already moved towards a — what’s called a de facto national identification card.
The airlines are working on a fast track card of their own that will effectively have a national footprint. Now, I don’t know the heads of Departments of Motor Vehicles, quite frankly. Maybe I should. But, I don’t think they’re the ones that should make this decision.
I think that you’re the ones that should make this decision. And it’s important for you, I believe not to be repelled by the idea to the extent of being absent. I happen to believe, and this may disagree with the earlier panel, that we may want to discourage the development of those cards. We may want to try to exercise some degree of control as to what is happening in the country in terms of identification. If nothing else, to avoid the creation of redundant systems where we suddenly have a whole bunch of cards that become barriers to travel.
Now, in the review of identification cards around the world, you have over 100 nations with different cards. But, to use the term national identification system, let alone national identification cards, is virtually meaningless. These systems are unbelievably diverse. Some of them are really little better than our SSN system. Others are incredibly detailed and are attached to databanks that probably would make most Americans feel uneasy.
But, using the reference to the Nazi Germany and to the abuses, I think is a little bit over blown, but it is relevant. It’s overblown in a sense that we have a nation that has its own safeguards, constitutional safeguards, cultural safeguards that make those types of abuses of historical but not contemporary relevance.
Many of our friends around the world, like Belgium and France and Germany are great democracies and yet they have these cards. So I think we need to look at this with an appropriate amount of passion, but also with an open mind.
Now, the cards differ, of course, dramatically. Britain, of course, had a national identification system that was discontinued in the 1950’s when they had a negative ruling by the lower chief justice. They are now considering a new card. And they range, we can look at, for example, the Belgium identification card, which is one of the most developed of systems. And in Belgium you are required to have a card at age 12 and then you’re required to carry it by age 15. You are required to have it on you. It is not an internal passport system in the most negative sense.
But, it is a potential barrier in the sense that when you go to an airport, apparently in Belgium, you do have to show the card. Obviously, Belgium does not use that card for oppressive means, far from it. They have a large database that the police have access to.
Germany also requires the carrying of a card and it has a great deal of information. It’s incorporated into a database, which is accessed from multiple sources. Like Belgium, it’s a stand-alone system. Other countries like, for example, for the Dutch they have the SOPHI (ph) number which is a more developed system than our Social Security system. It’s sort of a hybrid between these various options.
And you can go through, as my testimony indicates from country to country to look at all of these options. Now, as we move towards a national identification system, if we are going to move towards that, then we need to look at the constitutional and legal parameters for that system because we’re all talking about, so far, a system more of a authentication. That it seems that we’re mainly talking here, and the members have already indicated they’re interested in authenticating people to make sure they are the people that they say they are.
So, we have to distinguish between what we’re trying to achieve, are we trying to get a ready identification that’s reliable for the cop on the beat so that he can take a look and a card is biometrics and other elements that make it hard to tamper with? If that’s the case, the card can be largely contentless. It simply requires those biometric elements to be reliable as authentication.
If we’re talking about, as has been discussed in the past, a smart card attached to a database, we’re talking about far more significant issues in terms of constitutional and legal questions. One of the most important constitutional questions that has to be dealt is the right of travel. The Supreme Court has said that the right of travel is virtually unconditional in the United States. And when we develop national identification systems we have to be concerned, not just in drift, but that those systems can create barriers to travel that will impinge upon that right. And I go into that in my testimony.
We also have to be concerned about creating a national identification system that will fall into the trap of the Brady Law. To some extent, any national identification system will require the integration of state and federal systems. To the extent that we commandeer the state agencies, we’re moving into a separate area in which constitutional concerns would be heightened.
Then, finally, there are privacy protections that I talk about in my testimony. What I would like to propose is that Congress considers one thing that I think is clear. And clarity in this matter is truly invaluable. It should not necessarily be clear how we should proceed, but it should be clear how we should not proceed. We need to look at the SSN experience and not repeat it. That’s now how we do national policy. We allowed the SSN to be propelled into a national identifier without any vote of this body. There were a couple of laws in which Congress embraced the SSN. Franklin Delano Roosevelt wanted to use the SSN, but for the most part, this has been done with little foresight and control.
And as we see these, quote “de facto identification cards” in the making, it seems that history’s repeating itself. So that’s the reason I’ve recommended the creation of a federal commission and God knows this town does not require another commission. I’ve been on a federal advisory group. I was on it for three years. And at the end I wanted to take a ballpoint hammer to my head.
They are frustrating. There’s too many of them. But, unfortunately, I think this is an area that deserves a commission, unlike the ones that we’ve seen in the past. Newt Gingrich is right, we have had commissions in this area but none have been given the specific task of looking at whether we are going to have a national identification system whether or not we act or not. That’s important. We need to have a commission that looks at the question of whether there’s inevitability. Whether in this information age, we’re going to have this cosine problem where the market is going to dictate those conditions unless you do something. So we have to deal with reality. And if that reality is that businesses and agencies need a national identifiers, I would rather have you involved in it then the hidden hand of market, which may take us away from privacy.
That commission can look at some questions I’ve laid out in my testimony. The first one is what the function utility of a national identifier card is. I’ve already mentioned that, but there are vast differences and when you look at what people have said about national identification systems they are as different as you can possibly be. Some of them are talking about massive databases. Some of them are talking about immediate authentication. I don’t know which one we need. But we need to look at that before we do anything.
Second, we have to look at the utility of the system. Part of the problem with a national identification card is that you can have a sleeper agent from Al Qaeda or an espionage agent in the United States. One of the most effective ways to penetrate a nation is to have a sleeper. And he or she comes into the agent — into the country. She has a wonderful life, is a wonderful neighbor, goes to PTL meetings and then about nine years down the road, Al Qaeda activates her. She’s got a wallet full of every possible card from the PTA to Fast Track Card to a national identification card.
TURLEY: Finally, we need to also — I’m sorry, second, we need to look at what technology would be used for the system. We have everything from iris recognition to DNA fingerprinting, to facial recognition systems. We need to look at those technologies. We need to, if we’re going to embrace a technology, embrace one that’s going to be good 10 years from now that is going to be accurate and reliable. We need to look at the system to prevent hacking, because if this is going to be a system like Belgium’s where you need it to get on a plane, then, frankly, it’s dangerous to have the usual government error rate with databanks and databases.
Finally, we need to look at what type of protections we need to put in place. As you know, the Census Bureau information is supposed to be private but it was used to round up Japanese Americans. We also know that information from states have been sold to private companies.
And, then, finally, I’ve suggested that we consider the need for a constitutional amendment. I have never supported a constitutional amendment until this year. But, there is a trend that needs to be arrested and that trend is the diminishment of privacy. It’s chilling to hear a person like Simpson, who I have a huge amount of respect for, say that privacy is dead, because if privacy is dead, we have allowed something that in uniquely American to die with it.
So, in conclusion, the test of the moment, I think, is to try to protect our society without changing it in a way that we lose the object of our defense. The framers never said this would be an easy road. They simply said it was the only road for a free people.
And, I suppose the charge of the framers is this, how to keep us safe from harm but to pass along our system to the next generation in the condition it was passed to us. I think that’s a subject that deserves some thought and circumspection.
I thank you very much for your time today.
HORN: We thank you very much for your presentation. I’ve had the opportunity last night to read all of them and we will first get all the presentations in and the members will have a question and answer with you and dialogue.