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  From: <alc2139@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sat, 15 Apr 2006 18:09:55 -0400

Paper 2: S for Surveillance Society

S for Surveillance Society

The recent political thriller movie “V for Vendetta” is a bizarre
yet fascinating take on near-future dystopian literature such as
Orwell’s book “1984”, and an intriguing look at the value of civil
liberties. The year is 2020, and after devastating biological
attacks on civilian targets in the UK, a fascist “Conservative”
government has won the elections, and imposed a totalitarian regime
of curfews and censorship on the country.
Main plot aside, what interested me most about the film were the
(real or imagined) hi-tech surveillance devices enabling the
government to keep control of public opinion and activity. Notably,
trucks equipped with radar and infrared sensors patrolled the
streets, listening to conversations inside homes and collaring
curfew-violating citizens, reporting their findings back to the
government for potential blacklisting and future policy targeting.
One notable invention in the film was a small portable fingerprint
scanner carried by a FedEx deliveryman, vitiating the need for the
addressee to sign and at the same time verifying his identity. This
led me to thinking about the recent uproar (ironically also in the
UK) over national identity cards and biometric databases, and more
specifically, the increase in police and state powers which are
necessarily incumbent.
In 2003, the then British Home Secretary David Blunkett announced
that the government intended to introduce a British National
Identity Card, linked to a national identity database (The National
Identity Register – “NIR”). The cards and database would record
biometric data, including fingerprints, digitized facial scans and
iris scans. It was expected that by 2013, up to 80% of the working
population would have some kind of biometric identity document,
which would thereafter become obligatory for all citizens.
Eventually, cards would not be essential to establish identity,
since all that would be required is the submission to a biometric
scan. On the 30th March 2006, the Identity Cards Bill received
Royal Assent and became the Identity Cards Act.
The basic upshot of the legislation is that everyone renewing a
passport or driver’s license from 2008 onwards will be issued with
an ID card and have their details placed on the NIR. The government
has said that until 2010, people can choose not to be issued a card
when they renew their documents, though they will still have to pay
for one and still be placed on the database.
On penalty of a fine of 2,500 GBP, citizens will need to make an
appointment to have their picture and fingerprints taken and their
irises scanned for NIR records, to which will be added personal
information (address, date of birth etc), residential status,
personal reference numbers (number of driving license, work permit,
national insurance number, UK and foreign passport numbers etc), ID
card history (previous applications and renewals) and security
information such as a PIN number and password as an extra
verification layer.
Although there is no requirement for disclosure of criminal records,
one worry is the potential for cross referencing NIR information
with other databases. The government has pointed out that the
already existing National Insurance Numbers (like US Social
Security Numbers) have so far not caused any such problems, and has
affirmed that privacy and civil liberties can be safeguarded
adequately by the UK’s Data Protection Act. However, the former
argument does not take into account the potential for “instant”
biometric identification in the community (gaining access to
buildings or paying for goods in supermarkets), and the latter
forgets that the 1998 version of the Data Protection Act
specifically excludes the Home Secretary from its provisions
against holding large amounts of data on innocent citizens.
Unique IRN numbers issued by the National Identity Registry could
make possible the creation of a huge virtual database, including
not only police records (making escape from a criminal past even if
you have served time almost impossible), but also DNA records (from
the DNA database) and the Government Communications Headquarters
electronic surveillance database, phone and internet surfing
records. All-inclusive files on each person would include
information on current and previous jobs and addresses, tax and
finances, family relationships, health and religious or political
affiliations. With information from CCTV cameras, facial
recognition systems and biometric scans (which might become an
integral part of daily life, replacing subway tickets and credit
cards for example), along with GPS positioning from mobile phones,
people could potentially be tracked in real time. This scenario
does not just belong to the realm of science fiction - even the
Home Office Benefits Overview document describes how the IRN number
will enable data sharing amongst police databases, legal databases
and even corporate databases including bank and travel operators.
Interestingly enough, the closest parallel to the National Identity
Register in Britain as yet is the requirement for convicted
offenders to register on the Violent and Sex Offenders Register,
though it could be argued that the UK National DNA Database (which
records the DNA of suspects arrested for (not even convicted of!)
an arrestable offence under the Serious Organized Crime and Police
Act 2005) is larger and expected to grow at a much faster rate than
the Sex Offenders Register.
So what would the British government argue are the pros of national
identity cards/biometric identification technology? Apart from the
obvious administrative efficiency argument, other supposed
advantages include the reduction of benefit fraud and health
tourism, the cutting of “bogus” asylum seekers, the prevention of
terrorist attacks (though note that Spain’s national identity cards
did not prevent the Madrid bombings) and the supposed ease of
catching criminals. Since fingerprint and retinal scans could
probably only be faked by sophisticated crime gangs, the
government’s view is that biometric i.d. would prove to be a pretty
solid method of keeping track of the population and any dangerous
residents. Although carrying an i.d. card everywhere is admittedly
a hassle, who really leaves the house anyway these days without a
credit card or driver’s license? So people would have to carry
another piece of plastic with them……big deal.
But, on reflection, do you know anyone who has been arrested and
imprisoned for failing to produce their mastercard on demand?
Doesn’t the dictation of what we must carry with us, or the forced
submission to random biometric scans by police smack of European
Human Rights Convention violations? What about our article 8 right
to respect for private life, or our article 14 right to non
discrimination?
Apart from the general concern about the increased power of the
state facilitated by the Identity Cards Act, other worries include
the fact that criminals will eventually be able to forge the cards
anyway, and that, if the NIR database is hacked (and it would be an
obvious hackers’ target), the leaking of biometric identification
would be a disaster – you can’t call up the Registry and “cancel”
your i.d. as you would a stolen credit card. Not only does it seem
the scheme would be enormously expensive, time consuming and
inconvenient, there is also the worry that registered information
could be incorrect, or that cards would malfunction, preventing
access to work, holiday destinations and welfare benefits
indiscriminately.
One big question on the lips of many UK citizens is “Why should we
trust our government?” Tying our hands in the present by devolving
more power to the state in the future assumes continued benevolent
governance. As numerous regimes around the world throughout the
course of history have proven, supposedly sophisticated western
societies can change tack politically in the blink of an eye,
oppressing their people and carrying out atrocities no one would
think them capable of. A file of information on every person in the
country with all their personal details could prove lethal in the
hands of a malevolent master. In a telling line from V for
Vendetta, the protagonist, when warned that his resistance
activities could result in his torture and death, comments darkly,
“People should not be afraid of their governments, governments
should be afraid of their people”.
Moral problems aside, how, in reality, would the Act’s provisions be
implemented? Many fear that the large civil penalties in place for
the failure to apply for an identity card or notify the registry of
a change of address could result not only in economic discrimination
(with rich people, especially those supported by criminal
organizations, refusing to register and opting to pay the fines),
but also in lifestyle discrimination. Asylum seekers and gypsies,
who tend towards itinerancy, would be unduly penalized for not
informing the registry of their updated whereabouts.
The system could also lead to racial discrimination, with the police
targeting ethnic minorities for i.d. card “spot checks”, resulting
in a two tiered structure in which white people do not bother to
register themselves within the optional time frame and ethnic
minorities feel they must do so because of fear of discrimination
and abuse.
Another factor for the government to bear in mind when contemplating
how to structure the implementation of the scheme is how to deal
with vulnerable members of society, such as battered women who do
not want their abusers to known their whereabouts, and escapees of
forced marriages who want to start afresh with a clean slate in a
new city or country. Presumably, these people would be afforded
some kind of protection, perhaps on a par with government protected
witnesses?
What could we, as the British public (or at least me, over here
across the Atlantic), do about the situation? One option is to sign
up to the NO2ID opposition group who have pledged to refuse
registration and donate 10 GBP to a legal defense fund now that the
Bill has become law. This could result in enough administrative
obstruction to force the UK government to drop the scheme, just as
the refusal to cooperate by individuals and organizations in
Australia in 1987 forced the government to abandon their identity
card plans. If this is not possible, as will most likely be the
case, one avenue to circumvent many of the problems listed above is
to have the identity records held regionally rather than centrally
in order to minimize cross referencing, and to regulate stringently
the access to these databases by other departments and government
employees.
A more sinister result of the Identity Cards Act is that it is yet
another step the UK has taken on a path towards a seemingly
totalitarian state. Examples include the Terrorism Act 2006 and the
Anti-terrorism, Crime and Security Act 2001 which attacked habeas
corpus through attempts to extend pre-charge detention,
restrictions on freedom of speech contained within the Racial and
Religious Hatred Act, the Terrorism Act 2006 and the Terrorism Act
2000 (which suppressed anti-war protests and demonstrations at arms
fairs), the extension of the power of arrest to anyone committing
any offence of any nature, as well as those suspected of being
about to commit such an offence under s110 of the Serious Organized
Crime and Police Act 2005, and lastly, the lengthening of the
duration of search warrants from one month to three, covering
multiple searches at multiples premises.
Not only does this suggest that Britain is edging towards becoming a
“Big Brother” state, but it could also seriously compromise the
avenues of protest for those disagreeing with the regime. With
biometric i.d. scanning systems becoming an inevitable part of our
daily lives, someone protesting the introduction of a new tax or
driving fine by refusing to pay it might find themselves blocked
from their office building or unable to pass subway ticket barriers
until the money is paid. The devolution of power and control to the
state necessitates a docking of power and control from the
individual. Each action has an equal and opposite reaction. If
we’re not very careful, we’ll cause Orwell to turn in his grave to
strains of ‘I told you so’.



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