Digital identity, privacy and the right to identity in the United States of America

This article analyses digital identity as an emergent legal concept in the United States of America, as a consequence of the move to place all federal government services on-line. The features and functions of digital identity and its legal nature are examined, and the consequences are considered. The analysis reveals that the part of digital identity which is required for transactions has specific legal standing under the scheme. This feature makes digital identity valuable and vulnerable. The identifying information which links the registered digital identity with a person is especially susceptible to error and fraud. Yet the system is designed so that all dealings using the digital identity are automatically attributed to the individual to whom it is registered under the scheme, regardless of whether that person did in fact use the identity to transact. This can result in significant consequences for all users and there are implications for the integrity of the scheme, but the consequences are most immediate and serious for the innocent individual. To date, legal scholarship and jurisprudence in the United States has relied on privacy to protect personal information. This article argues that privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions because of its essentially public nature. The author argues instead that the right to identity can and should be recognised in the United States to fully protect an individual's rights under this scheme, especially considering the scheme's inherent fallibilities. (C) 2013 Dr Mare Sullivan. Published by Elsevier Ltd. All rights reserved.