Lubrication is not the Solution to Bad Law

Posted by shonk at 02:53 AM in Politics | TrackBack

Court TV founder Steven Brill is starting a company to make security ID cards, which he claims will allow users to bypass long lines at security checkpoints like those in airports with a thumbscan. Once I got over the irony of "Brill" being the nickname of Gene Hackman's hyper-paranoid character in Enemy of the State, I got down to actually reading the article. The basic idea is that the card would be issued to those that pass a background check against, among others, the state's database of known terrorists. Bearers, certified not to be on any watch list would then, presumably, be less suspicious than others, thereby meriting less stringent security checks.

Apparently, Brill has been frustrated with post-9/11 security bottlenecks in airports and offices and decided the answer is not "millions of hourly wage, private guards going through the motions." According to the article,

The venture is intended, in part, to solve the problem without the implementation of a government-issued national ID card program, which Brill calls "unworkable" and "the worst kind of threat to our civil liberties."

"First, the potential for abuse by the government in having all this information is a real disaster for the country and the values it cherishes," Brill said. "Second, they would screw it up. The history of government and data and technology is a comedy act."

I agree with those points, but I'm curious how a privately-developed but state-sponsored ID card would be much of a difference. In order to be used at airports, Brill's company would have to be certified by the TSA, the FBI or the Justice Department (or all three) with heavy federal oversight almost assured. Given that the card would rely in large measure on federal databases and any technical changes would almost assuredly have to receive federal approval, I don't see how this plan solves any of the problems with a national ID card that Brill so aptly points out. In fact, I'm inclined to view this venture more cynically as an attempt to cash in on an as yet untapped state subsidy, much as I did Larry Ellison's "helpful" offer shortly after 9/11.

This whole issue is, in a way, a microcosm of the larger problem of excessive laws effectively impeding social interaction. Glenn Reynolds (of Instapundit fame) commented on this a couple of days ago:

There are too many laws — many of them contradictory or obscure — for any person to actually avoid breaking the law completely. (My Criminal Law professor, when I was a law student, announced to us that we were all felons on the first day of class. There were too many felonies on the books for us not to be: Oral sex in Georgia? Oops!) And given that many laws are dumb, actually following all of them would probably bring society to a standstill, just as Air Traffic Controllers and pilots can make air travel grind to a halt by meticulously following every safety rule without exception.

As Robert Clayton Dean asks,

Stop and think about that for a minute. What does it say about a society, when strict adherence to its laws would be an unmitigated disaster?

I leave the answering of that question as an exercise for the reader.

Reynolds goes on to point out two significant problems with this situation:

One is that although we regulate criminal trials pretty closely, the fact is that if everyone’s a felon in some way, the real power is at the stage of deciding whether, and what, to charge someone with — and that process is governed by “prosecutorial discretion,” which is almost completely unregulated.

...

The other problem is that law is like anything else: when the supply outstrips the demand, its value falls. If law were restricted to things like rape, robbery, and murder, its prestige would be higher. When we make felonies out of trivial crimes, though, the law loses prestige. As the old bumper stickers about the 55 mile-per-hour speed limit used to say: “It’s not a good idea. It’s just the law.”

So what's the solution? Even Reynolds the law professor admits that in some cases, "the best way to get a law changed is for people to ignore it." Which is a bit more palatable to me than Steven Brill's apparent approach of making enforcement of bad laws more efficient.