Free to Be... Anonymously

The New York Civil Liberties Union is battling the NYPD on "Stop, Question, and Frisk," in court, but right now we can celebrate a different civil rights victory. On Thursday, a federal court struck down a New York City Transit Authority rule that permitted police officers to ask anyone on Transit Authority property for their identification, and arrest people who don't produce it. This regulation made not having an ID with you (or refusing to produce it) into an arrestable offense. There are lots of reasons that people don't have ID with them: many elderly and indigent people do not have any form of ID-cards are expensive and time consuming to get; New Yorkers often don't have drivers' licenses; there is no standard ID card for children. I sometimes jog without my wallet, and don't like the idea that I could have been arrested for leaving home without a license.

The story of this legal victory began on a sunny afternoon in August of 2010. Steve Barry, editor of Railfan magazine and professional train enthusiast, was taking photos of the A train from the platform of the Broad Channel station in Queens. Steve and his friend were waiting for the old-time "Nostalgia Train" to pull into the station so they could photograph it. A police officer told the friends (erroneously) that photography was prohibited on MTA property. When Mr. Barry challenged the officer's understanding of the Transit Rules -- which explicitly permit photography -- the officer demanded Mr. Barry's ID. When Barry told the officer that he didn't have to show ID if he wasn't doing anything wrong, the officer handcuffed him. Barry was interrogated by four officers and received a Notice of Violation for taking photos and refusing to produce ID, neither of which are crimes.

Government agencies have understandable concerns about the need to identify people. Mass transit and infrastructure have been terrorist targets at least since 9/11. Knowing who is using mass transit could conceivably help the government to enforce the laws and ensure that people are using the right farecards. But law-abiding citizens also have valid concerns about the government's ability to identify them at any time, in any place, for any reason. Would we want the police to be able to go to a political protest, ask everyone for ID, and arrest those who refuse to provide it? That would be a great way for the government to catalogue or arrest every political dissident in New York.

We don't live in a country where the government can approach a citizen, demand "Your papers, please" and arrest anyone who doesn't comply. The NYCLU had an uphill battle to prove that people have a constitutional right not to carry IDs with them. I know because I worked on this case in the NYCLU's Civil Rights Clinic when I was a law student.

Eventually, Mr. Barry's violations were dismissed. Last week's ruling voided the Transit Authorities ID rule, declaring it "unconstitutionally vague." The court did not create a new constitutional right, but its decision recognized that a policeman's power to arrest anyone without an ID infringes on other rights that we all enjoy. For example, if you can be arrested for not having an ID with you, you can't move freely from place to place, and the government has impinged your well-established right to travel within the United States. The right to anonymity is not mentioned in the Constitution, but it fits with established American ideals of privacy.

Thanks to one courageous man who chose to prove his rights, we can more easily maintain our anonymity from the government without getting arrested. But criminals beware: if you commit an actual crime, you still have to identify yourself.

Some countries have mandatory national ID cards. The United States does not. Some groups have tried to create a national ID in the U.S., but American ideals of independence and freedom from government surveillance always won out. ID issues come up in several other debates, from facial recognition technology to illegal immigration to national security to voter ID; but for now, people can lawfully appear in public without having to identify themselves. Thanks to Mr. Barry and the NYCLU, New Yorkers no longer live under a law that requires them to carry ID in public; we have gained the right to be strangers on the train. As the weather warms up, and we spend more time outside enjoying public places, we can breathe a little easier knowing that we can't be arrested for the crime of anonymity.