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Give Them Your Name and Give Up Your Rights

March 09, 2004|Brian Doherty | Brian Doherty is a senior editor at Reason magazine.

One man parked on the side of the road in Humboldt County, Nevada, in May 2000 was brave enough to say no to a police officer when ordered to identify himself.

The officer "just walked up and started demanding my papers," Larry Hiibel told Associated Press. "I was there on that road minding my own business."

He refused and, as a result, was arrested. Now Hiibel may end up redefining our ability to move in public without having every aspect of our lives investigated at the whim of the police.

Such a redefinition is sorely needed. Under current precedent, being ordered to give your name to a police officer, if you are stopped under reasonable suspicion of being involved in a crime, is generally considered a reasonable and minimal intrusion on your privacy and dignity. When the Supreme Court hears the case of Hiibel vs. 6th Judicial District Court, it must consider how the practical consequences of identifying yourself to a police officer have changed given the rise of a seemingly endless number of computerized databases.

Police now potentially have at their disposal such databases as the National Criminal Information Center (which the Justice Department exempted from requirements that data in it be "timely, relevant, complete and accurate") and the Multistate Anti-Terrorism Information Exchange (which the American Civil Liberties Union thinks contains some of the data-mining aspects of the controversial and supposedly scuttled Total Information Awareness program).

Demands that you identify yourself are creeping into situations well beyond roadside encounters with police. The Department of Homeland Security is rolling out its Computer Assisted Passenger Prescreening System II program, which will check data on all airline passengers against existing government and private databases to establish what threat level a traveler presents.

This will potentially involve checking your credit records, gun ownership, magazine subscriptions, outstanding child-support obligations and any other information about you floating in the "datasphere." It will also serve as a means to capture anyone with an outstanding warrant for a violent crime; once the system is in place and the data are collected, its uses can easily expand. Overdue traffic ticket? Why don't we take care of that now?

As a recent General Accounting Office report on the program noted, the Department of Homeland Security has not yet worked out a means of redress for citizens detained or prevented from traveling based on the inevitable faulty data that might make them seem suspicious.

We are entering a world in which our day-to-day activities as private citizens leave us vulnerable to an officious police check on every bit of information that any source, public or private, has gathered about us.

Not only the guilty have reason to fear. As the Electronic Privacy Information Center wrote in its amicus brief in Hiibel's case, "a name is no longer a simple identifier: It is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual's life. If any person can be coerced by the state to hand over this key to the police, then the protections of the 4th and 5th Amendments have been rendered illusory."

Nevada claims that merely stating your name would suffice under its statute. But it also says in one of its court filings in the Hiibel case that "if the person provides a false name, the officer may continue to detain the person until the conflict is resolved." This certainly seems to imply an officially authorized state-issued ID is all that will ultimately satisfy authorities.

Technological realities have transformed our world into a fishbowl. If we are to live in that fishbowl, it's imperative that the government be constrained in the circumstances under which it can stick a hook in us.

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