The British Columbia Civil Liberties Association (BCCLA), Canada’s oldest and most active civil liberties organization, has been defending freedom since 1962. To further our mandate, we engage in law reform, complainant assistance, public education, and occasional litigation. For more information about the BCCLA, visit our website at www.bccla.org.
The BCCLA has made an initial written and oral submission to the House of Commons Standing Committee on Citizenship and Immigration (the “Committee”) in February 2003. This further submissions seeks to augment our initial comments and respond to further questions posed by this Committee in its Interim Report: “A National Identity Card for Canada?”, October 2003.
Since the Committee began considering this issue, there has been a plethora of organizations who have made submissions to the federal government that are highly critical of the proposal for a national ID card system. Most notable among these are the submissions from provincial privacy commissioners and the Privacy Commissioner of Canada. (1) These experts, appointed by governments across Canada to advise them on issues of privacy, have spoken forcefully and with one voice — a resounding NO — to the proposal for a national ID card. One wonders what else is left to say.
Nevertheless, the Minister of Citizenship and Immigration continues to float this idea and the Committee continues to be charged with the task of weighing such a concept.
What is the purpose of any identification card?
In its essence, an identity card, or any system of identification, confirms that the carrier of the card is the person who he or she says she is.
The more interesting question of course is who is doing the asking and for what purpose. In our modern lives, to access a range of public and private services and products, we need to be able to identify ourselves. Identity cards or other systems, satisfy these needs.
Yet, one hallmark of a free and democratic society is that citizens are, by and large, free to go about their daily lives unencumbered by the state or without need to identify to the state what they are up to. National ID cards, by their very nature, fundamentally threaten this state of affairs.
The comments that follow presume that a national identification card will be mandatory. While some, including Alan Dershowitz, have suggested that a card be voluntary, there is no reasonable basis to conclude that in practical terms it will be truly voluntary. Just as the Social Insurance Number has been used for ubiquitous purposes that are unauthorized, a national ID card will become a standard for identification. Those who do not possess a card will be refused access to services and entitlements. Thus, it is reasonable to conclude that a national ID card will either be legally required or will become a requirement for most services in the private sector which will in effect make it a mandatory requirement.
II. Organizing Principles
In the proper assessment of any proposed government law or policy, the BCCLA seeks to understand and articulate the negative impacts on Canadians’ civil liberties. As civil libertarians though, we acknowledge that there are times when a government may legitimately reduce Canadians’ freedom when there is adequate justification. Governments are under considerable obligation to make a case for justification knowing that a constitutional value like privacy will be compromised by a law, policy or program of government.
In assessing any government proposal, it would normally be important to first determine whether there are any negative privacy impacts regarding the proposal. The challenge for those responding to the Minister Coderre’s proposal to create a system for a National ID Card is that there is really no concrete proposal on the table to evaluate the impact on civil liberties, the government’s objectives or how those objectives would be achieved. Most interestingly, over the course of debate over the last year, it is notable that Mr. Coderre has floated that Canadians need a national ID card for a list of expanding purposes.
From the initial cry that we need national ID cards for fighting terrorism, these purposes now could include (2):
To combat terrorism
To combat identity theft
To facilitate international travel
To replace many documents with a single card
To access government services
To combat illegal immigration
For voting purposes
This is notable in part because it is obvious that Mr. Coderre and his ministry staff originally did not clearly consider exactly why a national ID card is needed nor how such a card would actually achieve any specified objective. This expanding list is also notable for demonstrating how, if such a system were to be created, many private and public sector actors will demand access to the database for new and necessary uses. The creation of a central database containing a basic personal information of all Canadians required for a national ID card is breathtaking. It would be a goldmine for many prospectors.
These shifting or expanding purposes makes a proper assessment of the proposal, both with respect to privacy and justification very difficult. Nevertheless, we will attempt to do so as follows.
III. Privacy Impacts
Given the lack of specificity of a government proposal, we can only speculate on the privacy impacts of a national ID card program. Nevertheless, negative privacy impacts may include:
Loss of Anonymity
A hallmark of a free and democratic society is the ability to go about one’s business without interference or interruption from the state. This is of course circumscribed by the reality that, in the legitimate public interest, when we engage in a regulated activity, the government may reasonably demand identification from us. But today, by and large, we are still very much free to do as we please unencumbered by the state. National ID cards threaten this precept. In the worst case scenario, they will allow the state to require citizens to produce ID on demand for no reason at all. At best, the state will seek to limit itself to specific uses (with ever new uses always demanding — and likely receiving — new access) and to curb inevitable abuses. But the threat of having one’s daily activities continually recorded is not posed just by state apparatus. As with the SIN card, the private sector will seek to use the card — and lobby hard — to have the legal right to do so. Thus, a national ID card, by its very nature will create tremendous incentives for its continual use by both the public and private sector.
One of the benefits of a prior era in which there was not the current capacity for electronic information management was that citizens had a series of discrete relationships with various agencies of the state. Various governmental authorities — health, tax, motor vehicle, employment insurance, etc. — each had their own discrete file and records regarding their particular responsibilities and the various citizens they serviced. Each of us had, if not a personal relationship, an individualized relationship with each agency. From an autonomy point of view, this was good. The state was not able to build super files on citizens that contained data respecting all aspects of their various relationships with different arms of the state. Technology and the impetus for information and cost control has altered this hydra to the detriment of citizen autonomy and independence. A national ID card prepares the infrastructure that makes data matching irresistible. And there will be many, many who want to know what we are each all about. Who said: “Build it and they will come”?
A national ID card is, at best, not the solution to identity theft and, at worse, could make identity theft all the more problematic.(3) Far from providing a full proof system against current identity theft, criminal organizations will thrive on counterfeiting capability and simple fraud to exploit weaknesses in the system. Given that a national ID card system will continue to depend on foundational documents, whose security is considerably weak, theft will continue to be a problem. Corruption within the system should not be discounted. Given the “value added” by a “beefed up” ID card system, there will be greater incentives to counterfeit and steal others’ identities. Indeed, the faith in a new system will mean that it will provide a false sense of security which may provide counterproductive. In addition, once identification is stolen it might be even more difficult to get it back causing immeasurable problems for those whose ID is stolen.
As with any proposal by government, though there may be negative civil liberties impacts, a government may justify overriding fundamental freedoms if there is a demonstrated public interest. But the government must be able to actively demonstrate that a particular measure, here national ID cards, will overcome a significant national problem. To this date, no comprehensive proposal has been made with details of a national ID card system nor has there been any justification for the need for a system.
Notwithstanding the lack of detail of a concrete proposal, we shall examine the possible purposes of a proposed national ID card system as outlined in the Committee’s Interim Report.
1. To Combat Terrorism
The Committee is now well aware of criticisms that a national ID card will prevent or stifle terrorism. Critics point to the fact that in prior cases, such as the September 11 attacks in the United States, the bombing of Air India Flight 182 and FLQ instigated terrorism, a system of national ID cards would not have prevented such attacks. Indeed, it appears that the September 11 terrorists were known to authorities and used their own identities to gain access to flights. The problem of “sleeper cells” as well as organized terrorists organizations to counterfeit smart technology poses serious challenges to the utility of a system of national ID cards as a means to combat terrorism. Interestingly, Mr. Coderre has recently emphasized this purpose less and less, perhaps as a tacit acknowledgment that this justification is unpersuasive.
2. To Combat Identity Theft
Again the Committee is well aware that much of commercial fraud involving identity theft often occurs in faceless situations (commercial transactions over the phone or via the Internet) where an ID card would be irrelevant. We again refer the Committee to the report by the Public Interest Advocacy Centre (4) for a more thorough analysis of the problem and more effective solutions.
3. To Facilitate International Travel
The simple and most obvious answer to the challenge posed by countries, i.e the United States, that demand more secure international travel documents, is to add biometric features to our current passports. However, as we note below, biometric features themselves are far from foolproof.
4. To Replace Many Documents with a Single Card
While achieving this purpose through the creation of a national ID card might make our wallets smaller for increased convenience, it hardly seems like a legitimate expenditure of billions of dollars to achieve this goal. More seriously, this purpose makes sense only in relation to the purpose in point 5 immediately below.
5. To Access Government Services Technocrats will always be eager to jump at the information management conveniences and imagined cost savings of a single entitlement card for all government — federal, provincial or local — services. They say Chinese walls between each type of service could be created to provide discrete mini-banks of information accessible only by the relevant service provider.
Possibly. However, the BCCLA is wary of this technocratic solution both in terms of practical effectiveness and cost savings. More fundamentally, the creation of such an uber-database and the inevitable access demands poses just as fundamental a danger to the autonomy of citizens vis-a- vis the state. Anyone giving more serious consideration to this purpose should stop to ponder whether Canadians would really endorse such a proposal after their overwhelmingly negative reaction to the Human Resource Department Canada’s Longitude Labour Force File in 2000 (5).
6. To Combat Illegal Immigration
The government of Canada is already addressing problems with respect to illegal immigration through the introduction of the Permanent Resident Card with smart card technology. The card is designed to prevent tampering and illegal duplication and to allow transportation officials to more effectively identify people with permanent resident status in Canada. The card’s security features include laser-engraved photograph and signature, micro-text printing, tactile lettering and ultra- violet images (6). Curiously, reports already indicate that the technology is not preventing continued counterfeiting of the ID nor the fraud that it was hoped the card would address. (7)
7. For Voting Purposes As an organization deeply committed to democracy, the B.C. Civil Liberties Association understands that the government has a major responsibility to ensure the integrity and security of our voting system. That said, a national ID card is simply not necessary to achieve such a purpose.
V. Other Problems
In addition to the concerns outlined above, there are other problems with a proposed national ID card. These include:
1. Foundation Documents
Building a system of national ID cards would require the registration of all individuals by relying on “foundational” documents. Thus, a birth certificate is required to obtain a passport for example. Yet, it is well known that the reliability of foundational documents themselves is suspect. Creating a foolproof identity card based on less than reliable base documents would be foolhardy.
2. Information Security The Committee is again aware of the concerns about the security of data given the ability of hackers to access supposedly high security government databases currently. Placing so much information in one database makes it all the more valuable and creates even greater incentives to steal such information.
3. Reliability of Biometric Technology Biometric technology is still in its infancy and is fallible. (8) The Committee itself has recognized this fact. Placing such great faith on such new technology.
Some have suggested that a national ID card proposal will cost up to $7 billion. (9) The Privacy Commissioner of Canada estimates that a national ID card infrastructure would cost between 3 and 5 billion dollars. (10) Given Canada’s recent experience with the costs associated with a national gun registry, neither of these estimates appear unrealistic. Indeed, one would wonder whether they are low. (11)
No one can possibly estimate with any accuracy the actual costs of such a system at this point in the debate. However, we can be certain that it would be very, very costly.
Governments do spend such quantities of money. However, the public can reasonably expect considerable value in expending such large public funds. To be blunt, there would little value in creating a national ID card system at present yet considerable cost in terms of privacy.
The BCCLA generally encourages the government to consult on proposed programs. It is good for democracy and therefore applauds the government in this instance of seeking the opinions of Canadians about a proposed national ID card.
However, such consultation is most effective when there are adequate details to properly assess a proposal. The proposed national ID card suffers from this defect.
Considering the merits of an ID card in the abstract is an imperfect exercise. Nevertheless, given the Minister’s continuing enthusiasm for an ID card, organizations concerned with privacy such as the BCCLA must comment. By any measure, a national ID card system for Canadians would be a bad
First, there would be various negative privacy problems posed by a national ID card. Second, the objectives for a national ID card are not clear, let alone pressing and substantial unless pitched at such an abstract level (“national security”) to be rendered meaningless. Third, it is far from clear how a national ID card would achieve such speculative objectives. Fourth and finally, there are other plausible alternatives to achieve the purported objectives of an ID card system.
It appears that some, including the Minister of Citizenship and Immigration, may have caught the national ID card fever. However, the BCCLA is certain that, upon further digging, a national ID card for all Canadians is nothing but fools’ gold. We urge the Standing Committee on Citizenship and Immigration to dispense a sober assessment of national ID cards and reject such a proposal.
1 A sampling of these include: Office of the Information and Privacy Commissioner for British Columbia, February 17, 2003, Privacy Commissioner of Canada, March 18, 2003 and September 18, 2003, Information and Privacy Commissioner/Ontario, February 10, 2003.
2 Source: “A National Identity Card for Canada? An Interim Report of the Standing Committee on Citizenship and Immigration, Joe Fontana, M.P., Chair, October 2003 at 26.
3 For a comprehensive report on identity theft, its causes and proposed solutions, see Identity Theft: The Need for Better Consumer Protection, a report by the Public Interest Advocacy Centre, P. Lawson, J Lawford, authors, Ottawa, 2003.
5 For more information concerning the problems about such a database see: Privacy Commissioner of Canada, Annual Report, 1999-2000 at
6 Source: Citizenship and Immigration Canada at http://www.cic.gc.ca/english/pr-card
7 Source: “Submission on National Identity Card Proposal”, Canadian Bar Association, October 2003 at 20-21, citing Minister Coderre’s comments (37th Parliament, 2nd Session, Hansard, Number 059, Thursday, February 13, 2003.)
8 See the Report of General Accounting Office on Using Biometrics for Border Security (http://www.gao.gov/new.items/d03174.pdf); also see the submission of La Ligue des Droits et Libertes: (http://www.liguedesdroits.ca/documents/surveillance/memoire_carteID_LDL_eng.pdf).
9 Submission of Privacy International to the Standing Committee on Citizenship and Immigration, October 4, 2003: http://www.privacyinternational.org/issues/idcard/pi-can-submission-10-03.htm).
10 Ibid, note 1.
11 In fact, the excessive cost of such a proposal was one of the contributing factors to the decision to stay plans for a national ID card in the UK. See “Blair Shelves ID Card Amid Fears of Public Outcry”, Marie Woolf, The Independent-UK at http://news.independent.co.uk/politics/story.jsp?story=452722.