Abstract

As has been frequently noted recently, the events of 9/11 have changed everything. Not the least of these changes are our attitudes towards how and when we should be identified in relation to what I will call "target services"--air travel, chemical/biological manufacture and distribution, access to sensitive and/or landmark structures, trucking, crop dusting, etc. Prior to 9/11, when new identification measures were proposed an emphasis had been on privacy and libertarian values such as the right/freedom to travel, associate, "re-invent" ourselves through aliases and new names/identities, or simply be anonymous. Any call for a mandatory national identification ("ID") card was usually an act of political suicide. Post 9/11, many new ID measures have been proposed: some have called for a mandatory national ID card, others for optional or service specific ID cards, and some for enhanced usage of existing types of ID cards. Most parties interested in a new ID card system would like it to contain biometric security features--a set of technologies, such as finger imaging, face recognition or DNA fingerprinting, that digitally maps certain characteristics of an individual and then relies on that "template" to compare with the relevant characteristic of an individual who presents himself to the system at a later time.

The paper argues that even before the events of 9/11 there were some compelling reasons to rethink our identification systems, one of the most pressing being the fraud and misrepresentation problems plaguing the development of e-commerce and the Internet generally. Yet, the single largest obstacle to strengthening our identification systems, both before 9/11 and even after, may be the belief that any such strengthening must be a trade off between freedom and privacy, on the one hand, and security and convenience, on the other.

The goal of the paper is threefold: first, to analyze the needs and objectives that lie behind the renewed interest in national ID cards; second, to sketch the kind of ID system that would be required to meet these needs and objectives; and third, to consider whether the proposed ID system could be ethically justified. An underlying theme of the paper is that the standard debate over national ID cards--a necessary tradeoff between freedom/privacy and security/convenience-- should be re-contextualized into a dialogue over where on the spectrum between communitarianism and libertarianism we would like to be as a society.

Bio

Professor O'Connor's teaching areas focus on the legal issues involved in the commercialization of science and high technology. Current classes include Biotechnology Law, International Intellectual Property and Licensing, and Business Organizations. From venture capital to intellectual property, his classes explore the most current law and policy that counsel for biotechnology and information technology companies need to know. An experienced counsel to high tech start-ups and Fortune 500 companies alike, Professor O'Connor has also studied the social and cultural context of scientific and technological innovation and has published articles at the intersection of law, policy, science and technology.

Prior to joining the Pitt Law faculty, Professor O'Connor was in private practice with Hale and Dorr LLP in Boston where he specialized in corporate and licensing representation of emerging and established biotechnology and information technology companies. Before that he was an associate at Weil, Gotshal & Manges LLP in New York, where he specialized in corporate and securities law representation of large multinational companies and partnerships. He holds a J.D. from Stanford Law School where he was executive editor of the Stanford Law Review and the Brown & Bain Fellow in Law & High Technology. While at Stanford he also co-founded the Stanford Technology Law Review. He received an M.A. in philosophy from Arizona State University where he was elected to Phi Kappa Phi. Prior to graduate school he was a professional musician, as well as a museum preparator and marketing representative. He is admitted to practice in New York and Massachusetts.