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Data Rape

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Americans have been so bombarded with fear-drenched messages about the need to shut out foreign terrorists that few consider whether they are also being shut in.

A 5-page biographical questionnaire, Form DS-5513, is being proposed as a new requirement for at least some Americans who seek a passport. The questionnaire is so intrusive as to constitute data rape. (To confirm that the form is not a sophisticated e-spoof, click here for the State Department’s official request for public comment; a 60-day period of comment is required before the proposal can be submitted to the Office of Management and Budget for approval. The period expired on April 25.)

Stated guidelines do not indicate who would be required to fill out the biographical questionnaire; nevertheless, the government estimates that approximately 74,000 people would initially “qualify.” One category of applicant is likely to be those without an original birth certificate. Two other likely categories are those born to American citizens on foreign soil and home births attended by midwives. Given the pervasive tendency of bureaucracy to expand over time, however, the questionnaire will almost certainly be required of an increasing number of Americans. Indeed, the requirement may well be invoked at the discretion of a bureaucrat in much the same manner as de facto strip searches are conducted in airports at the discretion of TSA agents. What if the passport is denied to a DS-5513 applicant? As with the TSA and no-fly blacklists, there will almost certainly be no transparency nor any real ability to appeal a denial of passport.

Some of the proposed form’s invasive questions seem designed to establish the mother’s citizenship and the applicant’s place of birth. Such questions include:

  • mother’s residence one year before, after and during your birth
  • mother’s place of employment at your birth
  • did she receive pre- or post-natal care at medical facility
  • the name of her doctor and dates of her appointments
  • names and contact info of those present at your birth
  • was a religious ceremony conducted at your birthAlmost all answers on the proposed form require addresses and/or phone numbers for verification. (It is not clear how those who were adopted can provide the information.)Other questions seem utterly irrelevant to establishing citizenship. For example, applicants are required to list the address of every place of residence since birth. They are required to list all schools attended and every instance of employment, including addresses, phone numbers, and names of supervisors. Presumably, if a 60-year-old applicant pumped gas at the age of 16, he would be required to track down the name of his “supervisor.” A question can always be left blank, of course, but the proposed form states, “Failure to provide the information requested on this form may result in the denial of a United States passport, related documents, or service to the individual seeking such passport, documents, or service.”The purpose of the employment information can be discerned by DS-5513’s declaration in a footer: “Your social security numbers will be provided to the U.S. Department of Treasury and failure to provide it may subject you to a penalty, as described in the Federal Tax Law provision.” Thus, even though the proposed form explicitly states that providing a social security number is voluntary, it also suggests that leaving a blank line may cause the Treasury Department to investigate and charge you with an offense.

    A particularly offensive section of DS-5513 requires information on family members, dead or living, including the applicant’s mother, father, stepmother, stepfather, siblings, and children. The information includes their citizenship. An applicant can always lie, of course, e.g., to protect a family member who may be an illegal immigrant. But the proposed form declares, “False statements made knowingly and willfully in passport applications or in affidavits or other supporting documents submitted therewith are punishable by fine and/or imprisonment under the provisions of 18 U.S.C. 1001 and/or 18 U.S.C. 1542.”

    18 U.S.C. 1001 punishes false statements to the government with a fine and up to 5 years imprisonment; if the offense involves terrorism, the imprisonment can be up to 8 years. 18 U.S.C. 1542 punishes false statements on passport applications with a fine and up to 25 years imprisonment.

    Why is the government so eager to have your data that it is willing to punish a false statement about where you went to school with a stiffer penalty than many murders receive?

    There are several reasons. One is the escalating fanaticism with which authorities and law enforcement demand obedience from “the people,” even in trivial matters. Another is pre-emptive; the sheer totalitarian arrogance of DS-5513 could create a backlash of protest but the dissidents may be preemptively silenced if the price of grumbling or sabotage is too high.

    DS-5513 is best understood, however, in the light of how important personal data is to the state. Data flow is the heart’s blood of government. Imagine a society in which that flow was staunched. How could the state tax or otherwise confiscate wealth if it could not access records like bank, employment, and credit-card statements? Who could it conscript to die in war if there were no central registry of births or accessible school records? How could state agents even find their targets without contact information? Arguably, the mining of data is the single most important tool through which the state imposes social and economic control on the citizenry.

    Thus DS-5513 explicitly states in a footer that, at the State Department’s sole discretion, an applicant’s data will be shared. Potential beneficiaries include “other government agencies and private contractors” working for those agencies, those in “law enforcement, fraud prevention, border security, counterterrorism” or those engaged in related “litigation activities,” and for “administrative purposes.” Private employers may receive the information for “employment verification”; information may also be used to further activities such as “debt collection.” Other beneficiaries may include “foreign government agencies, international organizations and … private persons and organizations to investigate, prosecute, or otherwise address potential violations of law.”

    The imposition of state data requirements also serve a related but more subtle purpose. It is a sleight-of-hand by which the state denies basic human rights. By upping the obstacles to exercising a right, the government can deny such rights without taking the controversial and, perhaps, unconstitutional step of outright prohibition. The state does not have to ban foreign travel; it can merely require an applicant to be “data raped” in much the same manner that the TSA requires flyers to be screened as though they were criminal suspects. Then, like the TSA, it can deny access to a “service” without explanation.

    Of course, the staggering increase in the steps necessary to exercise a basic right are portrayed as “reasonable and prudent.” Thus, DS-5513 states, “Public reporting burden for this collection of information is estimated to average 45 minutes per response, including the time required for searching existing data sources, gathering the necessary data, providing the information and/or documents required, and reviewing the final collection.” This estimate is absurd and obscene. It is “obscene” because the estimate is a clear attempt to bypass the Paperwork Reduction Act, which was intended to prevent government agencies from imposing an unreasonably heavy burden of paperwork on the public. (The State Department’s estimate that only 74,000 people would initially fill out the form may be an equally absurd and obscene attempt to bypass the law.) By the Paperwork Reduction Act, the Office of Management and Budget must approve new forms that collect federal information.

    A noose is tightening around the throat of America. Bureaucratic walls erected in the name of protecting Americans are now blatantly being used as a means to lock Americans in. The most ominous aspect is the blatant nature of official action; it suggests that the state no longer feels the need to be cautious enough to hide its motives. Why should it? The same public that lines up its children at airports to be molested by TSA agents is unlikely to object to data rape.

    The “right” to demand that a passport applicant to fill out a DS-5513 along with the ensuing “right” to turn down the application without explanation would give the State Department the ability to deny a passport to any American for any reason.

    Where did America go?

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).