There are elections today in  the USA. But we don’t need to know their outcome to predict many of the issues that the Identity Project and our supporters and allies will continue to face in the coming years. For what it’s worth, everything that was on our agenda for the first Obama Administration, following the 2008 elections, remains on our agenda today.

At least since September, 11, 2001, throughout both Republican and Democratic administrations in the White House, demands for “Your papers, please!” have been supported by (1) a bipartisan consensus in Congress, (2) the lobbying power of an ever-growing homeland security-industrial complex, and (3) the malign convergence of interest between governments that want to identify us in order to track, profile, and control us for political purposes and corporations that want to identify us (or get the government to force us to identify ourselves) in order to track and profile us for commercial purposes.

It was in the post-9/11 state of panic and trauma-impaired judgment that a de facto “airport exception” to the US Constitution was put in place. The societal trauma of 9/11  remains largely undiagnosed, unacknowledged, and untreated. To this day, it continues to interfere with rational policy-making on both air travel and ID requirements.

Airport exceptionalism, wrongly accepted at a moment of crisis, has yet to be seriously questioned in Congress. It has been normalized as part of the state of “forever war“. It has enabled lawless demands for airline passengers to show ID so that (1) travel by each individual can be logged in a permanant lifetime travel history file maintained and shared between governments and their private partners, and (2) secret, arbitrary, extrajudicial blocklists and algorithms can be used to decide who is, and who is not, allowed to exercise their fundamental Constititional and human right to freedom of movement.

These travel ID mandates and the travel tracking and control schemes they enable were first deployed in the US, largely without bothering to obtain Congressional approval (although also largely without Congressional objection). They have since been adopted by Canada, the European Union, and worldwide through the UN Security Council and the UN-affiliated International Civil Aviation Organization (ICAO). Similar ID mandates and travel tracking and control schemes have been implemented simultaneously but somewhat independently (although for similarly malign reasons) in China — integrated with the Chinese government’s “social credit” scheme of surveillance, profiling, and control — and in other countries.

Authoritarian regimes from across the spectrum have been happy to collaborate with the US on global standards — disregarding and/or purporting to override human rights treaties — for mandatory surveillance of individuals’ activities and movements worldwide.

Travel has been the cutting edge of the post-9/11 attack on anonymity. We will continue to support legislation and litigation to protect our right to travel. We will continue to expose, oppose, and encourage resistance to restrictions on our right to travel, including our right to travel without showing ID or obtaining permission from the goverment.

Key aspects of that struggle in the next few years — regardless of the outcome of today’s elections — are likely to be (1) the continued stalement between popular resistance to the REAL-ID Act of 2005, which created a new national ID database, and Congressional unwillingness to admit its mistake, or admit defeat, by repealing the REAL-ID Act, and (2) the government’s continuing attempt to misrepresent the REAL-ID Act as having included a new requirement for airline passengers to show ID, even while thousands of people continue to fly without ID every day. The TSA’s is still trying to evade or further postpone making any clear decision on this issue. But it could come to a head if and when the TSA tries to start blocking passage through checkpoints at airports to passengers without ID.

We will also continue to oppose attempts to exand ID requirements and ID-based tracking and control of travellers from airlines to other types of common carriers (Amtrak trains, long-distance buses, ferries, public transit, etc.) and access to public spaces and facilities.

But the physical world is not the only realm in which governments and their partners in surveillance want to identify us so that they can track and control our movements. The Internet is already the next frontier in the expansion of ID requirements so that our access, activities, and movements in virtual spaces can be monitored, logged, and controlled.

As we noted in our previous article, the TSA has just launched a large-scale, long-term effort to get states to issue standardized smartphone-based digital IDs and apps that will be usable  for non-travel-related purposes and virtual, not physical, interactions.

The intent, of course, is that these TSA-approved IDs and apps, while they are supposedly digital analogs of driver’s licenses, will become de facto Internet usage licenses. They will be granted, revoked, and/or restricted on an individual or group basis in the same arbitrary, secret, extrajudicial way that the government currently grants or denies permission to travel through its “no-fly” and “selectee” lists and algorithmic real-time no-fly decisions.

How will Internet ID requirements work, and where will they start? Issuing digital IDs won’t help the government or its partners pursue their shared surveillance and control agenda unless individuals can be compelled to use these identifiers.

The current leading edge of attempts to legislate ID requirements for Internet access takes the form of laws requiring “age verification” for access to “adult” Internet content.

Trying to use age-verification for adult Web content as the basis for Internet ID requrements is a national and international trend. Many US states have enacted or are considering laws like this.

Legislation like this was recently defeated in California (at least for this year), but the 5th Circuit Court of Appeals recently (and wrongly, we and many others think) upheld a Texas law like this. The Supreme Court has agreed to review that ruling, with oral argument scheduled for January 15, 2025. But the outcome of that case remains uncertain. Even if this Texas law is overturned by the Supreme Court, legislators are likley to keep trying to craft an age-verification law the courts will approve. Similar legislation, which has prompted similar objections, is pending in Parliament in Canada.

“Adult” content is a euphemism for “sex-related” content. This content isn’t necessarily obscene, pornographic, erotic, or inappropriate for minors. Teenagers need information about safe sex, reproductive health, menstruation, and birth control at least by puberty, which is typically  years before they reach 18 and are deemed “adult” for purposes of  these content-based attempts to restrict access to the Internet on the basis of age.

Nor are these laws really about age verification. Regardless of whether it would be possible to set up a system by which individuals could provide evidence of age without individually identifying themselves, that’s not how any of the schemes currently being legislated or implemented will work in practice. In order to verify their age, each Internet user will be required to provide a unique digital personal identifier.

Child pornographers are socially stigmatized, which makes them an ideal target for those seeking to move the boundaries of Constitutionally permissible restrictions on Internet access. It’s an adage among criminal defense lawyers that the government will always seek out the most unsympathetic defendants to set precedents that will later be used agaisnt a wider class of more mainstream individuals. We heard this years ago from the late Bill Kunstler, defender of pariahs and co-founder of the Center for Constitutional Rights.

The first explicit “pre-crime” legislation in the US, for example, was the Bail Reform Act of 1984. This law, for the first time, permitted a defendant not yet convicted of a crime to be detained, not in order to insure that they would appear for trial, but on the basis of predictions that they would be “likely” to commit some other new crime if released on bail.

This was and is an outrage. But the first test of this law brought before the Supreme Court involved a Mafia boss and contract killer — defendants who could easily be, and were, demonized as dangerous. Once the Surpeme  Court upheld the use of pre-crime preventive detention in this case, the government took to using it against all sorts of defendants in all sorts of cases. Today, defendants accused (but not yet convicted) of nonviolent political offenses are routinely subject to pre-trial detention without bail, in flagrant violation of their Constitutional right to reasonable bail.

Now “child pornography” and the lack of public sympathy for child abusers is being used as the wedge to open a crack in the First Amendment that can later be widened to encompass everyone and all Internet content. Age verification for adult content is a stalking horse for comprehensive content-based and personalized government control of Internet access.

We saw this with ID requirements for air travel. Once airline passengers were required (at least in practice, although not by law) to show ID, and once the mechanisms were put in place to enforce algorithmic rules for deciding whether or not to give an airline permission to issue a boarding pass, it was easy to add any number of list-based and/or profile-based rules to the algorithm, to apply it to all passengers not just those on a “no-fly” list, and to track and log each individual’s travel.

In the same way, once access to stigmatized “child pornography” is restricted, we can expect that the categories of content and of users to which these restrictions are applied will steadily if erratically expand. The explicit goal of some of the organizations developing and promoting standards for online age verification (i.e. ID requirements for Internet access) is to see them as widely used as possible.

If some category of user is forbidden to access a particular category of content, all users will have to identify themselves to show that they aren’t in the blocked category of would-be users. If the categories are vague, and platforms are held liable if they allow access by proihibited users to prohibited content, the safest course of action for platforms will be to require ID for access to all content, and to err on the side of denial of access.

The result will be a system of like those in China and Saudi Arabia, where you can’t get a SIM card without linking it to a passport or national ID, and all Internet access is linked to your ID, logged in your permanent file, and filtered through a government firewall. Thats[‘ not the regime we want to live under.

We believe that we should be as free to move around the Internet as to move around the country. As a nonpartisan organization, we will continue to oppose ID requirements in both the physical and virtual realms — no matter who wins in any of today’s elections.