In the 117th Congress, legislation to “improve” digital identity made headway in both the House and Senate. “Improvement” is a question-begging concept, of course. One important question is, “Improve for whom?” Are we improving things for the organs of surveillance and control in our once-free society? Or are we improving things for an evermore free and prosperous people?

Pinch me.

The Improving Digital Identity Acts of 2022 were less bad on privacy (and thus freedom) than one might expect. If identity improvement legislation reemerges in 2023, of course, I can see ways to—ahem—improve it.

At least two pieces of legislation carried the name “Improving Digital Identity Act” in 2022. And they both made some headway. S. 4528, the offering of Sen. Kyrsten Sinema (I-AZ), was reported out of committee—that is, prepared for floor consideration in the Senate. In the House, H.R. 4258 was introduced by Rep. Bill Foster (D-IL) and reported by the House Oversight Committee. It had multiple committee referrals, so it had a little further to go to match the Senate bill’s progress.

Both bills emerged from committee with substitute amendments. A substitute is an amendment that strips out all the text and replaces it with new language. (If you’re still reading, you are past Schoolhouse Rock in your legislative sophistication!) Lacking firsthand information, I take that treatment as a signal of coordination and interest among folks higher up in the food chain, such as committee chairs and leadership. The House substitute wasn’t published through official or easy channels but is probably this amendment.

The bills both create a task force, creatively known as the “Improving Digital Identity Task Force.” They specify membership, require consultations and reports, and so on. One version provides for “Digital Identity Innovation Grants” to nonfederal governments, and one version doesn’t. Putting privacy experts on such panels is often analogous to setting up bowling pins at the far end of a highly polished lane.

But here’s a fascinating thing they both do: They specifically try to head off a national identity system.

Prohibition.—The Task Force may not implicitly or explicitly recommend the creation of—

(1) a single identity credential provided or mandated by the Federal Government for the purposes of verifying identity or associated attributes;

(2) a unilateral central national identification registry relating to digital identity verification; or

(3) a requirement that any individual be forced to use digital identity verification for a given public purpose.

That prohibition has bits in common with a definition of a national identity system that I developed when Congress was considering reviving the REAL ID Act, our zombie US national ID project. Seeking to move “national ID” from a vague concept most people oppose to something we can recognize and guard against, I produced a three-part definition.

First, a national identification system is national. It is intended to be used throughout the country and to be nationally uniform in its key elements—data fields, biometrics and biometric standards, machine-readability, and symbols, for example.

Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using the thing—think of driver’s licenses—this presses it into the national ID category.

The final element of a national ID is that it is used for identification. A national ID card or system shows that a physical person identified previously is the one presenting themself on later occasions. A Social Security Number is a national identifier, but it is not used for identification because there is no biometric tie between the number and a person. (It’s a building block of a national ID system, though!)

My conclusion when I was a student of identity systems was that government bodies should produce standards for identification relating to accuracy and fixity to individuals that their many purposes require. Then they should pay identity providers meeting those standards for the service they provide. That could produce a diverse and competitive identification and credentialing marketplace with less tendency to a national ID than other options.

Future legislation seeking to improve identity could push in that direction, and it could explicitly ban funding for, or use of, any system that meets the above definition of a national ID.

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