Last month, news that the IRS has started requiring people who want to set up an account to go through a private company called ID.me created an uproar. What it means is that when dealing with the IRS you may be forced to run a time-consuming, inaccessible, and privacy-invasive gauntlet in the name of “identity verification.” And the IRS is just the latest government agency to place this company as a gatekeeper between itself and the public it’s supposed to serve. During the pandemic, at least 27 U.S. states started using ID.me’s service to verify identity for access to unemployment benefits. The company is also being used by other federal agencies such as the Department of Veteran’s Affairs and the Social Security Administration.

The Treasury Department is reportedly reconsidering the IRS contract, and we strongly urge them to abandon their plans to use ID.me, as should the states that are using it. The ACLU has been working with some of our state affiliates to gather more information about the role of this company in the states via public records requests. We’re still gathering information, but what is already abundantly clear is that the system is beset with privacy and equity problems. We think there are three key problems with relying on ID.me that policymakers need to recognize.

1. The lack of accessible offline options

One problem is ID.me’s lack of accessibility and the barriers that creates for people on the wrong side of the digital divide. Using the service requires uploading government identification documents and taking a live selfie, which means you need an internet-connected device with a camera (no desktop computers that lack webcams). If someone is unable to verify their identity through the automated process, as apparently occurs often, they must go through a live virtual interview with ID.me. That requires a strong enough internet connection to transmit live video, and time to spare. Users of the service report having to wait in a virtual queue for the interview for hours, only to be booted out of line when internet connections fail. This especially disadvantages Latinx, Black, Indigenous, and rural households, which are less likely to have reliable broadband access.

Even worse, many states using ID.me to vet unemployment insurance recipients don’t give people an alternative, offline means of doing business or provide extremely limited offline alternatives, forcing people to use ID.me if they want the government benefits they’re entitled to. It seems likely such problems will worsen as government agencies increasingly move business online.

We should make a commitment as a society to preserve offline ways of doing business. Just as people should have a right to physical and not just digital identity documents, so too should people have a right to do business by mail or in person. And people need not just offline alternatives, but meaningful ones — a single office across the state doesn’t cut it. The IRS and other government agencies have been doing business for more than a century without the need for high-bandwidth video chats; people should have alternatives today.

2. Outsourcing a core government function

Even if you do have reliable internet access, that’s no guarantee that the ID.me system will work. ID.me appears to be nearly universally reviled by users for its poor service and difficult verification process. But this is not a problem of one badly managed company; the problem is structural. A for-profit company is always going to short-change service when the people it serves aren’t its customers. A private company has an incentive not to do extra work even where that’s required for fairness and equity, and it’s exempt from the checks and balances that apply to government such as public records laws or privacy laws specifically applicable to government agencies.

Outsourcing this function also creates privacy problems. ID.me collects a rich stew of highly sensitive personal information about millions of Americans, including biometric data (face and voice prints), government documents, and things like your social security number, military service record, and data from “telecommunications networks, credit card bureaus, [and] financial institutions.” That information will be retained for up to seven and a half years after a person closes their account. The company promises it won’t share personal information with third parties — but reserves a number of exceptions, like voluntarily complying with law enforcement requests that are “not prohibited by law.” The company’s typically dense privacy policy makes it hard to know just what they consider themselves entitled to do with people’s data, and states may or may not choose to add additional privacy protections in their contracts with ID.me. But any pool of information that sensitive will always pose temptations for for-profit entities — and for malicious hackers who see a valuable honeypot ready to be raided.

Government agencies are also susceptible to hackers, of course, but there are great efforts underway to improve their security and they are subject to far more oversight than an up-and-coming Virginia tech company. The IRS already holds enormous troves of sensitive data about Americans and is constrained by strict laws ensuring their confidentiality. Companies like ID.me, meanwhile, are barely regulated at all.

3. Biased biometrics that aren’t subject to independent audits

Another big issue with ID.me is its use of face recognition, which the company uses to decide whether your selfie matches your identity documents. Face recognition is generally problematic; it is often inaccurate and has differential error rates by race and gender, which is unacceptable for a technology used for a public purpose. ID.me claims the face recognition algorithm it uses for these one-to-one identity verifications has “no detectable bias tied to skin type” — but we have no choice but to take the company’s word on this because it is not subject to the transparency requirements of a government agency.

In addition, after claiming for months that it used face recognition only for one-to-one image comparisons, the company last week admitted that it also performs “one-to-many” searches against some larger database of other photographs it holds. Even the CEO previously admitted that kind of search was “more complex and problematic.” The revelation raises numerous questions. How is that one-to-many facial recognition match being conducted? Are they doing a broader search for duplicate applicants among the millions of photos the company now holds (which would greatly increase error rates)? Or is the company maintaining some internal ban list of suspected wrongdoers (which would also raise due process questions)? Or something else? What are the error rates for these one-to-many searches? Do they differ by race and gender? And what standards is ID.me using to determine whether there is a match and when to alert law enforcement for what it thinks may be fraud? Law enforcement uses of one-to-many facial recognition has already lead to people — especially Black people for whom the technology is particularly inaccurate — being wrongly accused and arrested.

People should not have to be subjected to a private company’s dragnet to access government services. More broadly, no biometric technology should be used unless its use in real-world conditions is subject to regular and open auditing by an independent party and found to be accurate, accessible, and free of bias. And the federal government shouldn’t give money to the states for purchasing biometric technology without that kind of auditing. Many of the states using ID.me for unemployment insurance have done so using federal funds.

There is no reason that we can’t have non-biased identity proving systems that protect our privacy, lessen fraud, and make things easy for users. But such systems shouldn’t be run by private companies, shouldn’t be exclusively online, and need to be closely audited. The solution to the security problems created by moving online cannot be a discriminatory system that further erodes privacy and exacerbates the harms of the digital divide.

Over 100 years ago, the U.S. Supreme Court issued a series of rulings known as the Insular Cases that still prevent millions of people — overwhelmingly, people of color — from accessing certain constitutional rights and protections. These rulings continue to uphold systemic racism today.

In the Insular Cases, the Supreme Court spoke to whether, and to what extent, the rights and protections guaranteed by the Constitution applied to residents in the then-new territories of Guam, Puerto Rico, and the Philippines. In this string of cases decided from 1901 to 1922, the court described the territories’ inhabitants as “alien races” and “savage tribes.” The court based its views squarely on the presumed racial inferiority of the non-white people who lived there. In doing so, the Supreme Court showed obvious contempt for the predominately Asian, Black, Indigenous, Latinx, and Pacific Islander residents of these territories.

The Insular Cases are unabashedly racist, firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people. This is why the ACLU, along with a coalition of civil rights groups, sent a letter to the Biden administration last week urging them to condemn these cases and stop relying on the precedent they set in present or future cases.

As usually understood, these decisions held that constitutional provisions and safeguards do not automatically apply to people living in the territories. The rationale for that view was explicitly race-based. In the leading Insular case, Downes v. Bidwell, the court considered whether the phrase “United States,” as used in a specific constitutional provision, included Puerto Rico. Informed by disdain for Puerto Rico residents, the court said it did not. The opposite result — acknowledging the Constitution fully applied in Puerto Rico — was too alarming to consider. As one justice put it, doing so would “inflict grave detriment to the United States,” indicating that affirming constitutional rights applied to people in a predominantly BIPOC-populated territory would be a threat to the broader country.

Since the United States’ founding, there was a long-held presumption that the Constitution’s protections would naturally apply in the nation’s territories. The court broke away from this practice with the Insular Cases to keep the new territories from enjoying full constitutional protections. When the U.S. acquired Florida in 1819, for example, few seriously questioned whether the Constitution applied there. Key differences between territories acquired before 1898 and those acquired later — particularly the people who lived there and their location — made all the difference to the court.

The later-acquired territories were, for the first time, populated mostly by people of color and so far from the U.S. mainland that they were unlikely to be settled by white people. To ensure the Constitution would not block U.S. expansion, the court made up a new doctrine — so-called “territorial incorporation” — that said some constitutional provisions and protections could be switched off in those islands and for those residents until Congress said otherwise.

Despite many justices criticizing this doctrine in the ensuing 120 years, the “territorial incorporation” doctrine still effectively allows federal courts to question, on a case-by-case basis, whether certain protections apply to the territories’ residents. In one 2016 case, a federal court wrongly cast doubt on the constitutional right of same-sex couples to marry in Puerto Rico. In another recent decision, a federal court of appeals held that U.S. agents did not need a warrant to search a person’s property as it arrived to the U.S. Virgin Islands from South Carolina. Because it was a so-called “unincorporated territory,” the court reasoned Congress could establish an “artificial customs border” between the U.S. Virgin Islands and the rest of the United States that would infringe on the rights of any person passing through.

Reliance on these racist cases must end. Unfortunately, the U.S. Department of Justice, a key voice federal courts regularly hear from, continues to depend on them. It hasn’t yet seen fit to renounce them, as it did with Korematsu v. United States, a case that rested on similarly odious racial assumptions. Instead, the DOJ relies on the Insular Cases even as it acknowledges, as it did recently at oral argument before the Supreme Court, that their reasoning and rhetoric are “obviously anathema,” alluding to the racist origin of the very doctrine the DOJ continues to rely on when convenient. This reliance on case law grounded in white supremacy contravenes the Biden administration’s stated goals of redressing systemic racism.

While dismantling systemic racism is a necessary but complicated goal, the Insular Cases give the Biden administration a perfect opportunity to back up words with action. The DOJ should publicly condemn the Insular Cases and stop relying on them in future court filings. The department’s refusal to disavow them when recently invited to do so by the Supreme Court perpetuates a painful legacy akin to Jim Crow, and risks undermining its credibility on issues of race. The presumed inferiority of territorial residents is archaic, offensive, and racist. It was wrong at the time of the Insular Cases, and cannot justify differential treatment today.

Misinformation is fueling an attack on trans youth in state legislatures. These attacks overwhelmingly focus on youth and schools. They try to make being trans shameful — but they won’t stop youth from being trans. They will only make it harder for kids to grow up at all and make it harder to access the support, education, and community that all young people deserve.

While everyone should be contacting lawmakers and expressing their support for trans youth, we know that these attacks aren’t limited to statehouses. The lies about trans youth spread at the dinner table, PTA meetings, and many other places. It takes all of us speaking out and speaking up.

Watch ACLU’s Ambassador for Trans Justice, Miss Peppermint, and LGBTQ & HIV Project Staff Attorney Taylor Brown tell us the truth about trans youth and then check out these resources, so you know how to respond the next time you hear a lie about trans youth.

Using people’s names and pronouns is a matter of respect.

“It’s hard not to take it personally, but over the years I have grown numb to the discrimination. Sometimes, these experiences made me want to give up. But that’s not true happiness. That’s not what I’m here for. I’m here to identify myself accurately and get respect. So, I have no choice but to keep pushing through.” — Erica Aries

• We all want to be respected and seen for who we are. When a young person’s name and pronouns are respected, they do better in school, have more confidence, and have lower rates of suicide.
• People change their names for a variety of reasons. If the only time you have difficulty using someone’s name and pronouns is when they are trans, ask yourself why.
• It doesn’t hurt you to be kind and be respectful. But it could be very meaningful to someone else. There’s no reason not to try.

Trans women are women.

“Cisgender women should be concerned whenever an alleged concern for ‘protecting’ our well-being is invoked to justify exclusion.” — Shayna Medley & Galen Sherwin

• Attempts to legislate who is or isn’t a woman are not new. Lawmakers have often tried to exclude poor women, unmarried women, Black women, and others from legal protections. Across time and cultures, trans women have often been not only accepted but revered.
• There’s nothing wrong with saying “woman.” Just ask yourself if that’s the most specific and inclusive language you can use.
• Policing what it means to be a woman hurts everyone. That’s why the ACLU fights against sexist dress code policies and practices that push women out of the workforce.

School sports are about participation and belonging. It’s wrong to deny students the chance to try out for a team.

“The false rhetoric taking hold is a distraction to the real threats to girls and women in sports, such as lack of Title IX understanding and compliance; inequity in compensation, resources, sponsorship, and media attention; harassment and abuse of female athletes and women working in sports, the list goes on.” — Women’s Sports Foundation

• Transgender people want to participate in school sports for the same reasons as their peers: to challenge themselves, improve fitness, and be part of a team. Excluding trans youth from sports sends them the message that they are not worthy of the same kinds of opportunities as their classmates.
• Professional women athletes and organizations fighting to end discrimination against girls in school sports are all speaking up to oppose these bills. They are saying girls’ sports need more funding and resources.
• We’re talking about kids. Growing up is hard for all of us, but imagine if your ability to simply go to school and try out for a team was up for debate. No young person should have to fight this hard just to be on a team.

Trans youth know who they are. They should be able to ask questions and discuss their gender with their parents and medical professionals without inference from politicians.

“[After starting hormone therapy,] I now feel a level of confidence I never knew was possible. I can easily and confidently interact with other people, whether I know them or not. My body is finally beginning to match who I am.” — Dylan Brandt

• What you won’t hear from many supporting these bills: None of the care being provided to transgender youth is new or provided only to trans youth. We’re talking about care that has been given to youth with a wide range of diagnoses for decades.
• These bills are ultimately about stopping trans youth from experiencing joy. Denying medical care and support to transgender youth has been shown to contribute to depression, social isolation, self-hatred, risk of self-harm and suicidal behavior, and more. In short: It’s life threatening.
• Doctors and major medical associations have spoken out against these bills and in support of trans youth having access to gender affirming care.

Trans people have always been here.

“Trans people are not new. We have always been here. As long as there’s been recorded human history, we have always existed. But we have been written out of the human story — and when you come from a community that is without a full range of possibility models, it raises the question, in yourself as well as others, of whether or not you deserve rights or a place in society.” – Imara Jones

• If you aren’t aware of any trans people you’ve met, then you might not be aware of how many trans people have existed throughout human history. Just because something is new to you, it doesn’t mean it’s new to everyone.
• It’s okay for you to learn about trans people on your own time — the ACLU’s Trans in America documentary series is a good start, and the ACLU’s advocacy on behalf of transgender people goes back decades.
• You can speak up against these harmful attacks even if you have questions and are still learning.

You can take action by following your local ACLU affiliate, supporting grassroots organizations led by trans people, or sharing this resource with others. And be sure to check out our Know Your Rights information so you know how the law protects trans and non-binary people from discrimination.

Learn more:

• Transgender and Non-Binary Leaders Tell Federal Court Trans People Deserve Joy at Any Age
• The Coordinated Attack on Trans Student Athletes
• Doctors Agree: Gender-Affirming Care is Life-Saving Care
• Five Things to Know About Gender-Affirming Health Care
• Trans in America Documentary Series

https://www.aclu.org/issues/lgbtq-rights/transgender-rights/trans-america