Privacy, Identification, and Common Law Names

The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life. This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.