Intentional Mis-Identifications

Better IT technologies do not seem to mean that mis-identifications, whether intentional or unintentional, can be avoided.

The concept of identity continues to facinate me in its various dimensions.

The collection of biometric data has become a part of modern society.

Often the interpretation (and mis-interpertation) of such data (whether well or ill gotten) has been used to determine how we are treated.

Simson Garfinkel writes, in his book Database Nation, about the history of the concept of identity as biometrics, starting with efforts by the Paris police to catalogue and identify criminals through various physical measures (e.g. the distance between the eyes, the length of the nose, and various other proportions) and then through fingerprinting.

Garfinkel notes that all these biometric measures of identity can still lead to mistaken identifications due to what may amount to innocent mistakes by case workers or even by computer programs.

The movie Brazil (a humerous and quirky film directed by TerryGilliam, starring Jonathan Pryce and Robert De Niro) bases its entire saga on a mis-identification caused by a fly caught in a typewriter. There, too, the case worker can be argued to be largely innocent.

More significant are cases of intentional mis-"identification" particularly when carried out by the stassi, i.e. the state police. This is not just some paranoid hypothesis regarding the remotely possible in some remote land.

In a recent report in The Washington Post, which I found reprinted in today's European edition of The Wall Street Journal (November 17, 2004), we read the case of the Oregon-area lawyer Brandon Mayfield.

Mayfield's case appears to be an example of intentional mis-identification of an innocent man for purposes of punishing him. FBI agents not only detained the 38-year-old Mr. Mayfield for two weeks in connection with train bombings in Madrid but went through his belongings.

In describing the case, David Sarasohn of the Oregonian writes that agents seized what they called "miscellaneous Spanish documents." Sarasohn points to a New York Times report that Mayfield's family had later identified the documents as his children's Spanish homework.

"[Once] a supervisor in the agency's fingerprint unit had wrongly identified a print from the bombing investigation in Spain, 'it became increasingly difficult for others in the agency to tell him he had made a mistake'," reports Blaine Harden of The Washington Post. "An indictment seemed likely to follow," according to an earlier Washington Post report. In the meantime, Mr. Mayfield has sued the U.S. government, alleging his rights were violated because of his faith. (Mr. Mayfield is a convert to Islam.) "The civil suit alleges the FBI had access to biograhical information on Mr. Mayfield before its erroneous finding of a fingerprint match."

The FBI statement about the case can be found here. It ends with "The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused." The case and those similar to it deserve further study. I'm left to wonder whether one needs to be a lawyer to be able to defend one's rights while innocent but incarcerated and about to be indicted and sent to the gulags, never to be heard from again.

A panel of forensic experts have looked into the case and published a report in the November-December issue of the Journal of Forensic Identification. The report concludes that lower-level fingerprint examiners were afraid to disagree with their supervisor's mis-identification, and that they should not have been permitted to know what a supervisor had concluded. "The examiners should be encouraged to step forward, without fear of reprisal, if they disagree," the report concludes.

How many of us would be satisfied if our basic civil rights depended on the existence of brave lower-level bureaucrats and examiners who will stand up to their supervisors when it comes to cases of erroneous, possibly intentional mis-identifications put together by the same supervisors?

This is where pursuing a legal case could have some significant merit. I wonder if constitutional lawyers such as Lawerence Lessig, who once offered a course at Stanford on the Architecture of Identity, will show some interest in following cases such as this, more closely than they have so far.

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