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How many times do you pull out your driver’s license a week? Maybe two to four times to purchase age restricted items, pick up prescriptions, or go to a bar. If you get a mobile driver’s license (mDL) or other forms of digital identification (ID) being offered in Google and Apple wallets, you may have to share this information much more often than before, because this new technology may expand the scope of scenarios demanding your ID.

These mDLs and digital IDs are being deployed faster than states can draft privacy protections, including for presenting your ID to more third parties than ever before. While proponents of these digital schemes emphasize a convenience factor, these IDs can easily expand into new territories like controversial age verification bills that censor everyone. Moreover, digital ID is simultaneously being tested in sensitive situations, and expanded into a potential regime of unprecedented data tracking.

In the digital ID space, the question of “how can we do this right?” often usurps the more pertinent question of “should we do this at all?” While there are highly recommended safeguards for these new technologies, we must always support each person’s right to choose to continue using physical documentation instead of going digital. Also, we must do more to bring understanding and decision power over these technologies to all, overzealously promoting them as a potential equalizer.

What’s in Your Wallet?

With modern hardware, phones can now safely store more sensitive data and credentials with higher levels of security. This enables functionalities like Google and Apple Pay exchanging transaction data online with e-commerce sites. While there’s platform-specific terminology, the general term to know is “Trusted Platform Module” (TPM). This hardware enables “Trusted Execution Environments” (TEEs) for sensitive data to be processed within this environment. Most modern phones, tablets, and laptops come with TPMs.

Digital IDs are considered at a higher level of security within the Google and Apple wallets (as they should be). So if you have an mDL provisioned with this device, the contents of the mDL is not “synced to the cloud.” Instead, it stays on that device, and you have the option to remotely wipe the credential if the device is stolen or lost.

Moving away from digital wallets already common on most phones, some states have their own wallet app for mDLs that would require downloading from an app store. The security on these applications can vary, along with the data they can and can’t see. Different private partners have been making wallet/ID apps for different states. These include IDEMIA, Thales, and Spruce ID, to name a few. Digital identity frameworks, like Europe’s (eIDAS), have been creating language and provisions for “open wallets,” where you don’t have to necessarily rely on big tech for a safe and secure wallet. 

However, privacy and security need to be paramount. If privacy is an afterthought, digital IDs can quickly become yet another gold mine of breaches for data brokers and bad actors.

New Announcements, New Scope

Digital ID has been moving fast this summer.

• More states are contracting with mDL providers.
• Federal agencies are looking at digital IDs to prevent fraud.
• A new API enables websites to ask for your mDL.
• TSA accepts “Digital passport IDs” in Android.

Proponents of digital ID frequently present the “over 21” example, which is often described like this:

You go to the bar, you present a claim from your phone that you are over 21, and a bouncer confirms the claim with a reader device for a QR code or a tap via NFC. Very private. Very secure. Said bouncer will never know your address or other information. Not even your name. This is called an “abstract claim”, where more-sensitive information is not exchanged, but instead just a less-sensitive attestation to the verifier. Like an age threshold rather than your date of birth and name.

But there is a high privacy price to pay for this marginal privacy benefit. mDLs will not just swap in as a 1-on-1 representation of your physical ID. Rather, they are likely to expand the scenarios where businesses and government agencies demand that you prove your identity before entering physical and digital spaces or accessing goods and services. Our personal data will be passed at more frequent rates than ever, via frequent online verification of identity per day or week with multiple parties. This privacy menace far surpasses the minor danger of a bar bouncer collecting, storing, and using your name and address after glancing at your birth-date on your plastic ID for 5 seconds in passing. In cases where bars do scan ID, we’re still being asked to consider one potential privacy risk for an even more expanded privacy risk through digital ID presentation across the internet.

While there are efforts to enable private businesses to read mDLs, these credentials today are mainly being used with the TSA. In contracts and agreements we have seen with Apple, the company largely controls the marketing and visibility of mDLs.

In another push to boost adoption, Android allows you to create a digital passport ID for domestic travel. This development must be seen through the lens of the federal government’s 20-year effort to impose “REAL ID” on state-issued identification systems. REAL ID is an objective failure of a program that pushes for regimes that strip privacy from everyone and further marginalize undocumented people. While federal-level use of digital identity so far is limited to TSA, this use can easily expand. TSA wants to propose rules for mDLs in an attempt (the agency says) to “allow innovation” by states, while they contemplate uniform rules for everyone. This is concerning, as the scope of TSA —and its parent agency, the Department of Homeland Security—is very wide. Whatever they decide now for digital ID will have implications way beyond the airport.

Equity First > Digital First

We are seeing new digital ID plans being discussed for the most vulnerable of us. Digital ID must be designed for equity (as well as for privacy).

With Google’s Digital Credential API and Apple’s IP&V Platform (as named from the agreement with California), these two major companies are going to be in direct competition with current age verification platforms. This alarmingly sets up the capacity for anyone to ask for your ID online. This can spread beyond content that is commonly age-gated today. Different states and countries may try to label additional content as harmful to children (such as LGBTQIA content or abortion resources), and require online platforms to conduct age verification to access that content.

For many of us, opening a bank account is routine, and digital ID sounds like a way to make this more convenient. Millions of working class people are currently unbanked. Digital IDs won’t solve their problems. Many people can’t get simple services and documentation for a variety of reasons that come with having low-income. Millions of people in our country don’t have identification. We shouldn’t apply regimes that utilize age verification technology against people who often face barriers to compliance, such as license suspension for unpaid, non-traffic safety related fines. A new technical system with far less friction to attempt to verify age will, without regulation to account for nuanced lives, lead to an expedited, automated “NO” from digital verification.

Another issue is that many lack a smartphone or an up-to-date smartphone, or may share a smartphone with their family. Many proponents of “digital first” solutions assume a fixed ratio of one smartphone for each person. While this assumption may work for some, others will need humans to talk to on a phone or face-to-face to access vital services. In the case of an mDL, you still need to upload your physical ID to even obtain an mDL, and need to carry a physical ID on your person. Digital ID cannot bypass the problem that some people don’t have physical ID. Failure to account for this is a rush to perceived solutions over real problems.

Inevitable?

No, digital identity shouldn’t be inevitable for everyone: many people don’t want it or lack resources to get it. The dangers posed by digital identity don’t have to be inevitable, either—if states legislate protections for people. It would also be great (for the nth time) to have a comprehensive federal privacy law. Illinois recently passed a law that at least attempts to address mDL scenarios with law enforcement. At the very minimum, law enforcement should be prohibited from using consent for mDL scans to conduct illegal searches. Florida completely removed their mDL app from app stores and asked residents who had it, to delete it; it is good they did not simply keep the app around for the sake of pushing digital ID without addressing a clear issue.

State and federal embrace of digital ID is based on claims of faster access, fraud prevention, and convenience. But with digital ID being proposed as a means of online verification, it is just as likely to block claims of public assistance as facilitate them. That’s why legal protections are at least as important as the digital IDs themselves.

Lawmakers should ensure better access for people with or without a digital ID.

 

「地方自治法施行規則の一部を改正する省令（案）」に対する意見募集の結果

情報通信審議会　電気通信事業政策部会　電話網移行円滑化委員会（第43回）配布資料・議事録

電気通信事業法施行規則等の一部を改正する省令案に関する意見募集の結果及び再意見募集（接続に関する事項）

第209回統計委員会・第42回企画部会（合同開催）

9月20日からの大雨に関する被害状況等について（第13報）

臨時災害放送局の開設等の協力に関する協定の締結

ふるさと納税指定制度に係る総務大臣の指定

地方公務員等共済組合法施行令及び被用者年金制度の一元化等を図るための厚生年金保険法等の一部を改正する法律及び地方公務員等共済組合法及び被用者年金制度の一元化等を図るための厚生年金保険法等の一部を改正する法律の一部を改正する法律の施行に伴う地方公務員等共済組合法による長期給付等に関する経過措置に関する政令の一部を改正する政令の一部を改正する政令案に対する意見募集の結果

情報通信審議会　情報通信技術分科会　放送システム委員会　NHK配信用設備作業班（第2回）

9月20日からの大雨に関する被害状況等について（第12報）

大臣官房総務課管理室 非常勤職員採用情報

In a number of countries around the world, communities—and particularly those that are already vulnerable—are threatened by expansive cybercrime and surveillance legislation. One of those countries is Jordan, where a cybercrime law enacted in 2023 has been used against LGBTQ+ people, journalists, human rights defenders, and those criticizing the government.

We’ve criticized this law before, noting how it was issued hastily and without sufficient examination of its legal aspects, social implications, and impact on human rights. It broadly criminalizes online content labeled as “pornographic” or deemed to “expose public morals,” and prohibits the use of Virtual Private Networks (VPNs) and other proxies. Now, EFF has joined thirteen digital rights and free expression organizations in calling once again for Jordan to scrap the controversial cybercrime law.

The open letter, organized by Article 19, calls upon Jordanian authorities to cease use of the cybercrime law to target and punish dissenting voices and stop the crackdown on freedom of expression. The letter also reads: “We also urge the new Parliament to repeal or substantially amend the Cybercrime Law and any other laws that violate the right to freedom of expression and bring them in line with international human rights law.”

Jordan’s law is a troubling example of how overbroad cybercrime legislation can be misused to target marginalized communities and suppress dissent. This is the type of legislation that the U.N. General Assembly has expressed concern about, including in 2019 and 2021, when it warned against cybercrime laws being used to target human rights defenders. These concerns are echoed by years of reports from U.N. human rights experts on how abusive cybercrime laws facilitate human rights abuses.

The U.N. Cybercrime Treaty also poses serious threats to free expression. Far from protecting against cybercrime, this treaty risks becoming a vehicle for repressive cross-border surveillance practices. By allowing broad international cooperation in surveillance for any crime 'serious' under national laws—defined as offenses punishable by at least four years of imprisonment—and without robust mandatory safeguards or detailed operational requirements to ensure “no suppression” of expression, the treaty risks being exploited by government to suppress dissent and target marginalized communities, as seen with Jordan’s overbroad 2023 cybercrime law. The fate of the U.N. Cybercrime Treaty now lies in the hands of member states, who will decide on its adoption later this year.

Update 9/26/24: The hearing and scheduled committee vote on PERA and PREVAIL was canceled. Supporters can continue to register their opposition via our action, as these bills may still be scheduled for a vote later in 2024. 

The U.S. Senate Judiciary Committee is set to vote this Thursday on two bills that could significantly empower patent trolls. The Patent Eligibility Restoration Act (PERA) would bring back many of the abstract computer patents that have been barred for the past 10 years under Supreme Court precedent. Meanwhile, the PREVAIL Act would severely limit how the public can challenge wrongly granted patents at the patent office. 

Take Action

Tell Congress: No New Bills For Patent Trolls

EFF has sent letters to the Senate Judiciary Committee opposing both of these bills. The letters are co-signed by a wide variety of civil society groups, think tanks, startups, and business groups that oppose these misguided bills. Our letter on PERA states: 

Under PERA, any business method, methods of practicing medicine, legal agreement, media content, or even games and entertainment could be patented so long as the invention requires some use of computers or electronic communications… It is hard to overstate just how extreme and far-reaching such a change would be.

If enacted, PERA could revive some of the most problematic patents used by patent trolls, including: 

• The Alice Corp. patent, which claimed the idea of clearing financial transactions through a third party via a computer. 
• The Ameranth patent, which covered the use of  mobile devices to order food at restaurants. This patent was used to sue over 100 restaurants, hotels, and fast-food chains just for merely using off-the-shelf technology.  
• A patent owned by Hawk Technology Systems LLC, which claimed generic video technology to view surveillance videos, and was used to sue over 200 hospitals, schools, charities, grocery stores, and other businesses. 

The changes proposed in PERA open the door to patent compounds that exist in nature which nobody invented

A separate letter signed by 17 professors of IP law caution that PERA would cloud the legal landscape on patent eligibility, which the Supreme Court clarified in its 10-year-old Alice v. CLS Bank case. “PERA would overturn centuries of jurisprudence that prevents patent law from effectively restricting the public domain of science, nature, and abstract ideas that benefits all of society,” the professors write.  

The U.S. Public Interest Research Group also opposes both PERA and PREVAIL, and points out in its opposition letter that patent application misuse has improperly prevented generic drugs from coming on to the market, even years after the original patent has expired. They warn: 

“The changes proposed in PERA open the door to patent compounds that exist in nature which nobody invented, but are newly discovered,” the group writes. “This dramatic change could have devastating effects on drug pricing by expanding the universe of items that can have a patent, meaning it will be easier than ever for drug companies to build patent thickets which keep competitors off the market.” 

Patients’ rights advocacy groups have also weighed in. They argue that PREVAIL “seriously undermines citizens’ ability to promote competition by challenging patents,” while PERA “opens the door to allow an individual or corporation to acquire exclusive rights to aspects of nature and information about our own bodies.” 

Generic drug makers share these concerns. “PREVAIL will make it more difficult for generic and biosimilar manufacturers to challenge expensive brand-name drug patent thickets and bring lower-cost medicines to patients, and PERA will enable brand-name drug manufacturers to build even larger thickets and charge higher prices,” an industry group stated earlier this month. 

We urge the Senate to heed  the voices of this broad coalition of civil society groups and businesses opposing these bills. Passing them would create a more unbalanced and easily exploitable patent system. The public interest must come before the loud voices of patent trolls and a few powerful patent holders. 

Take Action

Tell Congress to reject pera and prevail

Documents: 

• EFF Coalition Letter Opposing PERA
• EFF Coalition Letter Opposing PREVAIL
• IP Law Academics Letter Opposing PERA
• US PIRG Letter Opposing PERA and PREVAIL
• Generation Patient, I-MAK, R Street, US PIRG Letter Opposing PERA and PREVAIL
• Association for Accessible Medicines Statement Opposing on PERA and PREVAIL

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