By Paul Rosenzweig, The George Washington University Law School
Many interactions with the government or other people can be accomplished without requiring detailed personal information, though they would not be completely anonymous. While some people believe that liberty stems from anonymity, each person weighs the utility of their own privacy by a different metric. Why?
Biometrics
The growing use of biometrics is the one technology, above all others, that poses the greatest challenge to traditional concepts of anonymity. Put affirmatively, biometrics—by definition—is a means to decisively and irrevocably fix a physical identity.
That’s why some civil libertarians and privacy advocates oppose almost all forms of biometrics. They believe that liberty derives from anonymity. Supporters of biometrics pressing the alternative view are of the belief that proper security is dependent on identification.
Perhaps, instead of depending solely on anonymity or full identification, Americans would be better served by a range of authentication options—variable ways in which identity might be determined in whole or in part.
You must, for example, allow a photograph to be taken for your driver’s license. On the other hand, liberty could be put at risk if identifying biometrics were required for even the smallest interaction with the government, like using a government public website.
Learn more about the different forms of biometric screening.
Anonymity and Liberty
Anonymous political speech remains an important ideal for maintaining liberty. But outside of that specific realm, anonymity is a different, and possibly weaker, form of liberty.
The American understanding of liberty interests necessarily acknowledges that the identity of those who have not committed any criminal offense can be collected even then for legitimate governmental purposes through biometrics.
And so, we want to start asking whether between complete anonymity and full identity we can develop gradations appropriate to select circumstances.
Identity for Authentication
Sometimes, identity is only needed to authenticate something—that the transaction is what it purports to be. In that context, identity is not essential. The credit card transaction needs to know that money is available, but in most cases, who is paying is not really critical information. In other contexts, though, you must know who or what you are dealing with.
Thus, there’s a spectrum of authentication and personal identification solutions available to the government. Consider a transaction where no identifying information about the individual is necessary, but actual authentication is needed. This might be the circumstance when, for example, data is going to be used in an ongoing government research study.
Contrast that with the situation where the actual identity is not important but identifying information is essential. For example, in regulatory documents filed electronically by a company, who files it isn’t important as long as we can be sure it is the company that is filing.
These examples demonstrate that our concepts of identity are based not upon absolute privacy expectations, but rather that any government infringement of our liberty can only happen with good cause.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Authentication Choices
The right policy will allow citizens to voice controversial political viewpoints with the expectation that the government will investigate only those people who might truly be a threat to national interests. When a criminal or a terror investigation is under way, we must expect that the spotlight of scrutiny will not turn on us individually without a good reason.
Most interactions with the government fall somewhere in between these expectations of complete anonymity and a detailed investigation. We need to be able to continue to expect that the government will ensure that any possible infringement on liberty is commensurate to the interaction with the individual, and that the government has the technological tools to achieve this.
If there is no true spectrum of authentication choices—from anonymity, to pseudonymity, to full identity—all expectations of privacy will erode because the government will be forced to treat every interaction as investigative.
Learn more about how geolocation data is gathered.
New Laws and Practices
In many ways, the implementation of new laws and systems to enhance surveillance are not universally anti-privacy and anti-liberty.
Rather, new laws and practices can substitute one form of privacy intrusion—for example, the search of an electronic biometric data about an individual—for another privacy intrusion—the physical intrusion of body searches before entering an airport or a courtroom.
However, this means that legal analysts cannot make absolute value judgments—each person weighs the utility of their own privacy by a different metric.
For many Americans, the cost to liberty of a little less anonymity might not be too great if it resulted in a little more physical privacy in some circumstances. For others, the opposite result might be their choice. Reasonable people can disagree about when identification technology should be used.
But taking a position that any use of biometric identification technology is anonymity-destroying and privacy-invasive ignores the positive benefits that this surest form of identification presents.
It is not just that your DNA or your iris or your fingerprint are sometimes the surest proof of your innocence when wrongly suspected of a crime, they are also the greatest potential gatekeepers of your genetic legacy, and therefore of other privileges like security clearances or family identification.
The true policy challenge here is in finding the most effective uses of the identification technology for liberty and security, not in labeling any of them as universally good or evil.
Common Questions about Liberty between Complete Anonymity and Full Identity
Some civil libertarians and privacy advocates oppose almost all forms of biometrics. They believe that liberty derives from anonymity. On the other hand, supporters of biometrics are of the belief that proper security is dependent on identification.
Sometimes, identity is only needed to authenticate something—that the transaction is what it purports to be. In that context, identity is not essential.
People’s concepts of identity are based not upon absolute privacy expectations, but rather that any government infringement of their liberty can only happen with good cause.
