The Brave New World of Identification

Margaret Hu, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.

The memory seems almost quaint.  While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones.  Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports.  Part of this talent came from the wisdom and judgment honed by experience.

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

The future is unfolding now, her article suggests.  Proposals such as a biometric national ID are just ideas now, she notes.  But in myriad ways, methods and modes of identification are developing toward such a future.  Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future.  Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.

There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power. 1 Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle.  Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.

What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges.  Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.

Hu’s work also is valuable in its special attention to the deployment of controversial identity tracking and verification methods in the immigration context.  The population at large might resist what Hu terms “biometric ID cybersurveillance” to encompass burgeoning government databases and more sophisticated modes of technology-aided identification.  So start with people designated as aliens.  Attentiveness to identity surveillance in the immigration context is thus helpful for understanding where and what controversial practices may take root more generally.

  1. For just a few great examples, see. e.g., Anita Allen, Unpopular Privacy: What Must We Hide? (2011); Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (2011); Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008); A. Michael Froomkin, The Death of Privacy?,52 Stan. L. Rev. 1462 (2000); Robert Mikos, Can the States Keep Secrets from the Federal Government?, U. Pa. L. Rev. 103 (2012); Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011); Paul Ohm, Probably Probable Cause: The Diminishing Importance of Justification Standards, 94 Minn. L. Rev. 1514 (2010). []
Cite as: Mary Fan, The Brave New World of Identification, JOTWELL (May 17, 2013) (reviewing Margaret Hu, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN),