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  From: Harris Cohen <hlc2105@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sun, 19 Mar 2006 14:11:01 -0500

[CPC] Paper 1: How to Disappear Completely

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Paper 1: How to Disappear Completely

            A number of books and websites promise foolproof methods of
disappearance. These sources offer suggestions for effectively altering
one's identity and starting a "new life" in a new location. One book, for
example, touts six methods of personal reinvention, including one that can
reputedly be executed entirely on the Internet.[1] Another, *The Paper Trip
III,* recommends maintaining several identities concurrently in order to
avoid identity theft and excessive state surveillance.[2]

            One website, however, admits that the techniques most commonly
discussed could be thwarted by the use of data mining. "There is the
possibility that in the future people may be identifiable by their
purchasing habits," declares an organization called "The Skeptic Tank."
"When=97if ever=97that becomes a reality, you can be sure you won't know ab=
out
it until it's shown on cable television. By that time the technology will
have been in use for years and you may end up on a list of possible matchin=
g
a purchase profile [sic]."[3] As we have seen, the situation is a great dea=
l
more real than The Skeptic Tank lets on. Technology allowing state and
private organizations to track and predict individuals' behavior based on
their consumer histories is widely available and currently in use. Even wit=
h
a new name, new social security number, and new address, one cannot
necessarily hide from one's own record of food, drugs, books, etc. purchase=
d
over a lifetime.

            The proliferation of material on this topic provides some
indication that many Americans value the ability to "start over" and
maintain some level of invisibility from private and state scrutiny. In som=
e
cases=97parents shirking child support obligations, criminals running from =
law
enforcement, debtors evading creditors=97the appeal of disappearance is bot=
h
obvious and unsavory. Aside from such instances, however, do Americans have
a legitimate interest in maintaining the ability to disappear and construct
a new identity? To conceal their real (or, at least, older and better-known=
)
identity from the state? Does that interest rise to the level of a protecte=
d
right?

            One answer is that citizens' interests in concealing and/or
protecting their identities are attenuated when the opposing objective is
public safety. In *Hiis v. Sixth Judicial District Court of Nevada,* the U.=
S.
Supreme Court upheld a Nevada statute criminalizing a suspect's refusal to
identify himself by name to the police during a traffic stop, finding the
state interests in efficient police work and officer safety outweighed
whatever Fourth Amendment right Hiis had in his name.[4] The Nevada Supreme
Court had gone even further, linking the case (which stemmed from a traffic
stop in response to allegations Hiis had struck his wife, who was also in
the car) to the prevention of terrorism.[5] The dissenting justices on the
state level, however, hinted that Hiis had a right to anonymity that
encompassed a right to disappear=97to live "off the grid"=97and warned of t=
he
pitfalls of using homeland security to justify encroachments on fundamental
rights.[6]

            Whether conceptualized as inherent in a concept of "ordered
liberty" or implied by the "penumbras and emanations" of the Bill of Rights=
,
Americans' rights to unencumbered interstate travel, privacy, anonymity, an=
d
autonomy are fairly well-established. Professor James E. Fleming argues
these add up to a right to "deliberative autonomy," "the power to deliberat=
e
about and decide how to live [one's] own [life]" and to carry out one's own
conception of "the good."[7] Such fundamental rights not only secure for
each citizen the basic values of personhood, but also protect dissenters
from majoritarian oppression. Autonomy in this sense provides an opportunit=
y
to escape=97by moving to a new state or town, or by setting the standards f=
or
life in one's own home=97hegemonic ideas with which one disagrees. Even whe=
n
no geographic "frontier" exists, one retains the ability to create or move
to an environment that is more hospitable to one's values.

            Disappearance and identity change are dramatic and extreme, but
rational, ways of exercising this right to "opt out" of situations in which
one finds majority rule oppressive. By exerting the utmost control over
one's identity, one can leave situations in which the powerful influence of
certain social or religious institutions might be undesirable and
burdensome, and ensure the break is somewhat permanent. One can then resume
one's life in such a way as to pursue one's own ideals. Take as an extreme
example a town dominated by a religious cult. Dissenters who leave the town
are tracked down by family and cult leaders and harassed into returning.
Disappearing may be the dissenter's only way of escaping this lifelong
pursuit. For some families, the pervasive efforts of mass marketers may fee=
l
nearly as intrusive as the harassment of the cult members. For them, too,
some level of control over the use of personally identifying information
(likely something less extreme than a complete identity overhaul) is
necessary to effectuate the values that are thought to be protected by thei=
r
rights to mobility, privacy, anonymity, and autonomy.

            Certainly no one has the right to shirk valid legal obligations=
,
commit fraud, or use identity-concealing techniques to hide criminal
activity. Such a right would realize the worst nightmares of the Nevada
Supreme Court majority discussed above. There is no doubt an indefeasible
system of tracking Americans' identities would aid law enforcement. However=
,
there are legitimate values furthered by an ability to disappear=97the most
extreme exercise of control over one's own identity, utilized in extreme
cases. If and when data mining, whether in the hands of private or public
interests, becomes effective enough to completely obliterate this control,
Americans will=97at least, in theory=97have lost a significant aspect of th=
e
guarantees of autonomy and insulation from majority oppression thought to b=
e
inherent in the Constitution.





[1] Ariza Research, Change Your Identity=97Change to a New Identity Without
Fake ID, at http://www.ariza-research.com/new-id.

[2] Undercover Press, Books on New ID, at
http://www.undercoverpress.com/new_id.html.

[3] Fredric Rice, Vanishing Point: How to Disappear in America Without a
Trace, at http://www.skeptictank.org/hs/vanish.htm#Section4.

[4] 542 U.S. 177, 186 (2004).

[5] Hiis v. Sixth Judicial Dist. Ct. of Nev., 59 P.3d 1201, 1206 (Nev.2002)=
.

[6] Id. at 1209 (arguing protection extends to "[a] dedicated libertarian .
. . [who] might . . . engag[e] solely in cash transactions, in order to
jealously protect his individual rights").

[7] James E. Fleming, Securing Deliberative Autonomy, 48 Stan. L. Rev. 1,
9=9610 (1995).

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<p style=3D"text-align: center;" class=3D"MsoNormal">Paper 1: How to Disapp=
ear Completely</p>



<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>A number of
books and websites promise foolproof methods of disappearance. These source=
s
offer suggestions for effectively altering one's identity and starting a "n=
ew
life" in a new location. One book, for example, touts six methods of person=
al
reinvention, including one that can reputedly be executed entirely on the
Internet.[1] Another, <i style=3D"">The Paper Trip III,</i>
recommends maintaining several identities concurrently in order to avoid
identity theft and excessive state surveillance.[2]</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>One
website, however, admits that the techniques most commonly discussed could =
be
thwarted by the use of data mining. "<a name=3D"Section3">There is the poss=
ibility
that in the future people may be identifiable by their purchasing habits</a=
>,"
declares an organization called "The Skeptic Tank." "When=97if ever=97that =
becomes
a reality, you can be sure you won't know about it until it's shown on cabl=
e
television. By that time the technology will have been in use for years and=
 you
may end up on a list of possible matching a purchase profile [sic]."[3] As =
we
have seen, the situation is a great deal more real than The Skeptic Tank le=
ts
on. Technology allowing state and private organizations to track and predic=
t
individuals' behavior based on their consumer histories is widely available=
 and
currently in use. Even with a new name, new social security number, and new
address, one cannot necessarily hide from one's own record of food, drugs,
books, etc. purchased over a lifetime.</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>The
proliferation of material on this topic provides some indication that many
Americans value the ability to "start over" and maintain some level of
invisibility from private and state scrutiny. In some cases=97parents shirk=
ing
child support obligations, criminals running from law enforcement, debtors
evading creditors=97the appeal of disappearance is both obvious and unsavor=
y. Aside
from such instances, however, do Americans have a legitimate interest in
maintaining the ability to disappear and construct a new identity? To conce=
al
their real (or, at least, older and better-known) identity from the state? =
Does
that interest rise to the level of a protected right?</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>One answer
is that citizens' interests in concealing and/or protecting their identitie=
s
are attenuated when the opposing objective is public safety. In <i style=3D=
"">Hiis v. Sixth Judicial District Court of
Nevada,</i> the U.S. Supreme Court upheld a Nevada
statute criminalizing a suspect's refusal to identify himself by name to th=
e
police during a traffic stop, finding the state interests in efficient poli=
ce
work and officer safety outweighed whatever Fourth Amendment right Hiis had=
 in
his name.[4] The Nevada Supreme Court had gone even further, linking the ca=
se
(which stemmed from a traffic stop in response to allegations Hiis had stru=
ck
his wife, who was also in the car) to the prevention of terrorism.[5] The
dissenting justices on the state level, however, hinted that Hiis had a rig=
ht
to anonymity that encompassed a right to disappear=97to live "off the grid"=
=97and warned of the pitfalls of using homeland security to justify encroac=
hments on fundamental rights.[6]</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>Whether
conceptualized as inherent in a concept of "ordered liberty" or implied by =
the
"penumbras and emanations" of the Bill of Rights, Americans' rights to
unencumbered interstate travel, privacy, anonymity, and autonomy are fairly
well-established. Professor James E. Fleming argues these add up to a right=
 to
"deliberative autonomy," "the power to deliberate about and decide how to l=
ive
[one's] own [life]" and to carry out one's own conception of "the good."[7]
Such fundamental rights not only secure for each citizen the basic values o=
f
personhood, but also protect dissenters from majoritarian oppression. Auton=
omy
in this sense provides an opportunity to escape=97by moving to a new state =
or
town, or by setting the standards for life in one's own home=97hegemonic id=
eas
with which one disagrees. Even when no geographic "frontier" exists, one
retains the ability to create or move to an environment that is more hospit=
able
to one's values.</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>Disappearance
and identity change are dramatic and extreme, but rational, ways of exercis=
ing
this right to "opt out" of situations in which one finds majority rule
oppressive. By exerting the utmost control over one's identity, one can lea=
ve
situations in which the powerful influence of certain social or religious
institutions might be undesirable and burdensome, and ensure the break is
somewhat permanent. One can then resume one's life in such a way as to purs=
ue one's
own ideals. Take as an extreme example a town dominated by a religious cult=
.
Dissenters who leave the town are tracked down by family and cult leaders a=
nd
harassed into returning. Disappearing may be the dissenter's only way of
escaping this lifelong pursuit. For some families, the pervasive efforts of
mass marketers may feel nearly as intrusive as the harassment of the cult
members. For them, too, some level of control over the use of personally
identifying information (likely something less extreme than a complete iden=
tity
overhaul) is necessary to effectuate the values that are thought to be
protected by their rights to mobility, privacy, anonymity, and autonomy.</p=
>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span>Certainly
no one has the right to shirk valid legal obligations, commit fraud, or use
identity-concealing techniques to hide criminal activity. Such a right woul=
d
realize the worst nightmares of the Nevada Supreme Court majority discussed
above. There is no doubt an indefeasible system of tracking Americans'
identities would aid law enforcement. However, there are legitimate values
furthered by an ability to disappear=97the most extreme exercise of control=
 over
one's own identity, utilized in extreme cases. If and when data mining, whe=
ther
in the hands of private or public interests, becomes effective enough to
completely obliterate this control, Americans will=97at least, in theory=97=
have
lost a significant aspect of the guarantees of autonomy and insulation from
majority oppression thought to be inherent in the Constitution.</p>

<p class=3D"MsoNormal"><span style=3D"">      =
;      </span></p>

<p class=3D"MsoNormal"> </p>

<p class=3D"MsoNormal">[1] Ariza Research, Change Your Identity=97Change to=
 a New
Identity Without Fake ID, at <a href=3D"http://www.ariza-research.com/new-i=
d">http://www.ariza-research.com/new-id<;/a>.</p>

<p class=3D"MsoNormal">[2] Undercover Press, Books on New ID, at <a href=3D=
"http://www.undercoverpress.com/new_id.html">http://www.undercoverpress.com=
/new_id.html</a>.</p>

<p class=3D"MsoNormal">[3] Fredric Rice, Vanishing Point: How to Disappear =
in
America Without a Trace, at <a href=3D"http://www.skeptictank.org/hs/vanish=
.htm#Section4">http://www.skeptictank.org/hs/vanish.htm#Section4</a>.</p>

<p class=3D"MsoNormal">[4] 542 U.S.
177, 186 (2004).</p>

<p class=3D"MsoNormal">[5] Hiis v. Sixth Judicial Dist.
  Ct. of Nev.,
59 P.3d 1201, 1206 (Nev. 2002).</p>

<p class=3D"MsoNormal">[6] Id. at
1209 (arguing protection extends to "[a] dedicated libertarian . . . [who]
might . . . engag[e] solely in cash transactions, in order to jealously pro=
tect
his individual rights").</p>

<p class=3D"MsoNormal">[7] James E. Fleming, Securing Deliberative Autonomy=
, 48
Stan. L. Rev. 1, 9=9610 (1995).</p>


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