The makers ... of the Constitution conferred, against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." -- Justice Louis D. Brandeis, 1928

INTRODUCTION

The Cyberstate Awareness Project explores the philosophical, political and constitutional issues surrounding the development of a National Identification System (nids) potentially composed of interconnected governmental databanks and identity documents (nidsnet). The project explores the philosophical and constitutional implications of such a system of government surveillance for free expression, freedom from unreasonable search, due process, and the freedom to travel. It questions the need for and use of such databank systems, "registries," and related identity documents and procedures against standards of privacy, due process, federalism and freedom from governmental scrutiny of constitutionally protected activities.

The project focuses on issues of governmental data surveillance (dataveillance) and its potential for creating a "cyberstate" of government computer monitoring and identification schemes. But it also considers private database issues as they increasingly affect the public and interact with public policy. It recognizes safety and security as important issues that need to be addressed through proportioned and effective public policies that respect the rights of all persons. It holds that in free societies, there is a "buffer" around both individuals as persons and their information: within that sphere they should be "let alone." The burden of proof regarding any proposed intrusions into this private sphere falls on the government or other institutions, and requires appropriate procedures of due process. The project aims to contribute to the development of a constitutional right of informational privacy.

INTERNET AND SOCIETY: TECHNOLOGY AND LAW

The project ties in with several aspects of Internet and Society. First, experiences with some of the possibilities and perils of access to government databases were foreshadowed by the problems with having the social security database and drivers licenses information on line. The accessibility of, for instance, salary information in the Social Security Administration Personal Earnings and Benefits Statements (PEBES) database (the only one using social security numbers for their original purpose) created protest about the violations of privacy (NYT, 4/8/98). Similarly, data on drivers licenses, some of which had previously been public, raised protests because of the increased availability of, for instance, home addresses or physical descriptions. These raise the issue of whether greater accessibility facilitated by internet access in itself constitutes potential problems for privacy.

Second, the five major databanks potentially constituting Nids, could be accessible with passwords on the existing internet. Alternatively, another, restricted governmental inter-net might provide the infrastructral basis for nidsnet. Features of the internet such as hyperlinking make it possible for information on individuals in one database to be linked to information in another. That increased accessibility raises serious questions about inappropriate use of information and the creation of "mosaics" about individuals from previously separate bits of information. These set the bases for a cyberstate of government data collections and activities management.

The project also takes advantage of Internet technology in the creation of this Website and its linkage to other websites concerned with privacy mentioned below.

PRINCIPLES AND STANDARDS

The project evaluates databanks and national identification systems against principles of privacy, federalism and constitutional standards. These begin with constitutional provisions in the Preamble and First, Fourth, Fifth, Ninth and Fourteenth Amendments. They include the principles of federalism and separation of powers against centralizing tendencies. They encompass the HEW,1973 Code of Fair Information Practices in HEW, "Data Protection Principles and Practices for Government Personal Information Systems." Pertinent court cases include Kolender v. Lawson 461 US 944 (1983), Kent v. Dulles, 357 US 116 (1958), Shapiro v. Thompson 394 US 618 (1969), Jackson v. Metro Edison, 419 US 345 (1974), Jensen v. Quaring 472 US 478 (1983), Wallace v. Palm Beach 624 F. Supp. 864. Marchetti v. US, 390 US 39 (1967). Camara v. Municipal Court, 387 US 523 (1967). Reid v. Georgia 448 US 438 1979. White v. Davis 13 Cal. 3rd 757 (1975). White v. State, 17 Cal. App. 3rd 621 (1971). Olmstead v. US (Dissent) 277 US 438 (1928), Ybarra v. Illinois 444 US 85 (1979), Chandler v. Miller 117 S.Ct. 1295 (1997). Whalen v. Roe, 429 U.S. 589 (1977), Katz v. U.S., 389 U.S. 347 (1967), Greidinger v. Davis (1993), Printz v. U.S., (1997).

CYBERSTATE DATABASES AND DOCUMENTS

The project focuses on five major government databanks and related identification systems and documents tied to recent legislation or administrative actions:

(1) The Immigration Reform and Control Act (IRCA) of 1986 (PL 99-603) requires identification documents in order to get government permission to work (Form I-9). The followup "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" (PL 104-208, Sec. 656) mandates by October 2000 federal standards and inclusion of Social Security Numbers (SSN) for drivers licenses (including magnetic strips or chips) and birth certificates to be valid as identity documents. It also requires the development of a counterfeit-resistant Social Security Card for proof of citizenship or right to employment, and establishes an employment verification system tied to SSN checked conducted by the Social Security Administration and the Immigration and Naturalization Service.

(2) The Welfare Reform Act of 1996 ("The Personal Responsibility and Work Opportunity Reconciliation Act of 1996") (PL 104-193)establishes databank requirements for Social Security Numbers for commericial drivers licenses, welfare benefits, professional and occupation licenses, marriage licenses, divorce proceedings, and child support determinations (Privacy Journal, 6/95).

(3) The Welfare Reform Act (Personal Responsibility and Work Opportunity Reconciliation Act of 1996) also develops a worker registry of all "new hires" for searches of those parents owing child support (Sec. 513) (Privacy Journal, 6/95; NYT 9/22/97 p. 1). The National Directory of New Hires tied to the Federal Parent Locator Service (Sec. 316) records names, Social Security Numbers and wages for anyone hired after October 1997. In some states, it may include addresses, telephone numbers, dates of birth, drivers license numbers and health insurance coverage. Welfare agencies, Social Security, the IRS and Justice Dept. have access to the database. It also authorizes a counterfeit-resistant Social Security Card (Sec. 111).

(4) The Kennedy-Kassebaum health care law (Health Insurance Portability and Accountablity Act of 1996) (HIPAA, PL 104-199) providing limited portability protection (CJR, July/August 1997) establishes a databank recording all public and privately paid for health care by diagnostic codes and under a national health care identification number. Law enforcement and intelligence agencies may have access without the need for search warrants or audit trails (NYT, 9/10/97, p. 1). The Department of Health and Human Services is also establishing a National Vacination Registry to cover all children (Privacy Journal, May 1998).

(5) The FAA/Airline Computer Assisted Passenger Screening System (CAPS) establishes a profiling system, with access to passenger travel patterns and tied to the requirement to provide governmental photo identification in order to travel by air. Implemented 1/1/98, the authorization for this is classified and secret (Washington Post, 1/27/97, A19).

Besides examining the implications of governmental databanks, the project scruntizes steps movements toward national identity numbers and cards. For instance, HIPAA requires a unique health identification number for all Americans. In addition, the IRCA and the FAA requirements mandating the use of governmental photo identification as well as the WRA and IILIRA acts requirements for a tamper-proof Social Security card contribute to pressures toward a single identity document.

ORGANIZATIONS AND WEBSITES ADDRESSING PRIVACY ISSUES

American Civil Liberties Union
Americans for Computer Privacy
ACLU Take Back Your Data Project
Berkman Center on Internet and Society
Center for Democracy and Technology (CDT)
CNET
Constitution Challenged
Consumer Project on Technology (CPT/Nader)
Computer Professionals for Social Responsibility (CPSR)
Electronic Frontier Foundation (EFF)
Electronic Privacy Information Center (EPIC)
eTrust
Executive Orders
Full Disclosure-
Fund for Constitutoinal Government
Harvard Information Infrastructure Project
Internet Privacy Coalition
Italian Privacy Sites
Larrysworld
Network USA
Privacy Forum
Privacy in Cyberspace
Privacy International
Privacy Newsletter
Privacy Rights Clearing House
Privacy Times
Privacy Journal
Private Citizen
Privacy Council
Statewatch
US Privacy Council
Yahoo Privacy Resources
You Own Your Own Web
Zdnet, Net=Politics:Privacy

EPIC
Privacy Rights Clearinghouse
Larryworld
NetworkUSA
Private Citizen

ACLU Cyber-Liberties Update
Constitutional Law
Global Internet Liberty Coalition
Internet Privacy Coalition
Citizens Internet Empowerment Coalition
Cyberlaw
EFF
Cypherpunks
EPIC Privacy Tools
etrust
European Privacy Directive
JOLT
Lost & Found in Cyberspace
NetworkUSA
Privacy in Cyberspace cybercourse
UCLA Institute for Cyberlaw and Policy

Airline ID and Profiling

ACLU Launches
ACLU Profiling complaint form
ACLU Protect Rights
ACLU Testimony
Epic:Air Travel Privacy
Privacy Times
Samuel Weiler, FAA correspondence1 re identification
Samuel Weiler, FAA correspondence2
Samuel Weiler, FAA correspondence3
Gonna Fly Now?
Fly Without ID

CPR
Mass Medical Society
National Coalition for Patient Rights
Privacy Times

ACLU opposed
ACLU urges stop
ACLU opposed
Jubilee
Green card stir
ID Cards
Repeal Fingerprint Law
Privacy International
UK
US Privacy Council
ID cards
National ID Legislation
Standard Drivers License
Don't Leave Home Without It

National ID plan
SSN
No Fed SSN
ID Schemes
No Enumeration
SSN Chronology
SSN Privacy
Privacy & SSN
CPSR SSN
ACLU: Social Security Numbers:
SSN Challenges

Coalition to Repeal Fingerprint Law
IDs, SSN, Databases
Networkusa

This project is part of the Berkman Center for Internet and Society Program at Harvard Law School. Background on a recent panel discussion of "Privacy in Cyber/Spaces: Government Databanks and Identification" is available at Privacy in Cyber/Spaces. Information on related projects and websites are welcome by email to Berkman Center fellow, Richard Sobel (RSobel@law.harvard.edu).

SOURCES

Important articles and books that address Cyberstate issues include:

• Arthur Miller, The Assault on Privacy: Computers, Data Banks and Dossiers, 1971.
• Arthur Miller, "Computer, Data Banks and Individual Privacy: An Overview." 4 Colum. Hum. Rights L.Rev 1 (1972).
• Rosalind Resnick, "The Outer Limits," Natl Law J., 9/16/91.
• Steven Bercu, Toward Universal Surveillance in an Information Age Economy, 34 Jurimetrics J. (1994).
• John Lautsch, Computers, Communications and the Wealth of Nations, 4 Computer LJ 101 (1983).
• Ithiel de Sola Pool, Technologies of Freedom, 1983.
• Arthur Landever, "Electronic Surveillance, Computers, and the Fourth Amendment," 15 U. Tol. L. Rev. 597, 1984.
• David Burnham, The Rise of the Computer State, 1980.
• Susan E. Gindin, "Lost and Found in Cyberspace, Informational Privacy in the Age of the Internet," 34 Sand Diego Law Review 1153 (1997).
• Computer Constitutional Amendment Proposed. Newsbytes News Network, 4/1/91.
• James Beniger, The Control Revolution; Technology and the Economic Origins of the Information Society, 1986.
• John Soma and Richard Wehmhoefer, "A Legal and Technical Assessment of the Effect of Computers on Privacy," 60 Den L.J. 449 (1983).
• David Linowes, Privacy in America, 1989.
• Robert Peck, "The Right to Be Left Alone," 15 Hum Rts 26 (1987).
• Joseph Eaton, Card Carrying Americans: Privacy, Security, and the National ID Card Debate, 1986. Rochelle Dreyfuss and David Leebron, "Forward: Privacy and Information Technology," 1986 Annual Survey of American Law.
• Jed Rubenfeld, "The Right of Privacy," 102 Harv. Law Rev. 737 (1989).
• Joel Feinberg, "Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?" 58 Notre Dame L. Rev. 445 (1983).
• Dennis Southard, "Individual Privacy and Governmental Efficiency: Technology's Effects on Government's Ability to Gather, Store and Distribute Information." 9 Computer L. J. 359 (1989).
• Lawrence Tribe, American Constitutional Law, 1988.
• Alan Westin, Privacy and Freedom, 1967. Kenneth Laudon, Dossier Society, 1986.
• Bruce Goldstein, Comment, "Confidentiality and Dissemination of Personal Information." 41 Emory L.J. 1185 (1992).
• Jeffrey Rothfeder, "What Happened to Privacy," NYT, 4/13/93, A21.
• John Shattuck, "In the Shadow of 1984: National Computer Identification Systems, Computer-Matching, and Privacy in the United States," 35 Hastings L.J. 99 (1984).
• Donald Katz, "We Know All About You." Esquire, July 1990.
• Privacy Protection Study Commission. Personal Privacy in an Information Society, 1977.
• Office of Technology Assessment, Federal Government Information Technology, Electronic Surveillance and Civil Liberties, 1985.
• Tracey Maclin, "Justice Thurgood Marshall: Taking the Fourth Amendment Seriously," 77 Cornell L.R. 723, 1992.
• Vern Countryman, "The Diminishing Right of Privacy: The Personal Dossier and the Computer," 49 Texas Law R. 837, 1971.
• Sam J. Ervin, "The First Amendment: A Living Thought in the Computer Age," 4 Col. Hum. Rts. L.R. 13, 1972.
• Vicki Quade, "Privacy in Peril: Technology and Government Erode Protections." 69 Law Scope, 565, 1983.
• Gary Clouse, "The Constitutional Right to Withhold Private Information," 77 NW UL Rev. 536, 1982.
• David Flaherty, Protecting Privacy in Surveillance Society, 1989.
• Michael Plishner, "It's None of Your Business, Or is it? California Addresses the Computer Age, " 8 Rutgers Comp. and Techn. L. Review, 235 1981.
• Elizabeth Friedheim, "The National ID Card, Privacy Threat or Protection? 21 J. Marshall L.R. 831 1988.
• Lisa Albinger, "Personal Information in Government Agency Records: Toward and Informational Right to Privacy," 1986 Ann. Surv. of Am. L. 625.
• Todd Coles, "Does the Privacy Act of 1974 Protect Your Right to Privacy? An Examination of Routine Use Exemption, 40 Am. UL Rev. 957 1991.
• US HEW, Records, Computers and the Rights of Citizens: Report of the Secretary's Advisory Commission on Automated Personal Data Systems 1973.
• Columbia Human Rights Law Review, Surveillance, Dataveillance, and Personal Freedom: Use and Abuse of Information Technology, 1973.
• Kent Greenfield, "Cameras in Teddy Bears: Electronic Visual Surveillance and the 4th Amendment," 58 UChicago Law Review, 1045 (1991).
• Nathan Brown, "Reining in the National Drug Testing Epidemic," Harvard Civil Rights-Civil Liberties LR, Winter 1993.
• Thomas Clancy, "The Role of Individualized Suspicion in Assessing the Reasonableness of Search and Seizure," 25 U. Mem. L.R. 483 (1995)
• Andrew Shapiro, "Privacy for Sale: Peddling Data on the Internet." The Nation, 6/23/97.
• Robert Ellis Smith, Privacy: Protecting What's Left of It, 1979.
• Akhil Reed Amer, "Fourth Amendment Principles," 107 Harvard Law Review, 757 (1994).
• Silas Wasserstrom, The Incredible Shrinking Fourth Amendment," 21 American Criminal Law Review, 257 (1984)
• Jennifer Buffaloe, Note: Special Needs and the Fourth Amendment. 32 Harvard Civil Rights-Civil Liberties Law Review, 529 (1997).