BIRD, C. J., Concurring. I recognize the importance of the state’s interest in ensuring the safe and lawful use of California highways. Therefore, the application procedure currently utilized by the Department of Motor Vehicles must be upheld. However, I write separately to discuss some of the problems [195]that might occur should our construction of Vehicle Code section 12800, subdivision (c) be circumvented.
Nearly two decades ago, Justice William O. Douglas warned of “an alarming trend whereby the privacy and dignity of our citizens [are] being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen—a society in which government may intrude into the secret regions of man’s life at will.” (Osborn v. United States (1966) 385 U.S. 323, 343 [17 L.Ed.2d 394, 406, 87 S.Ct. 429] (dis. opn. of Douglas, J.).)
Six years after these words were written, the people of California amended article I, section 1 of the state Constitution to include among the various “inalienable” rights of “all people” the right of “privacy. ” The amendment sought to combat “the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society.” (White v. Davis (1975) 13 Cal.3d 757, 774 [120 Cal.Rptr. 94, 533 P.2d 222].)
In enacting the 1972 privacy amendment, the voters of California presented the courts with a challenging task. The amendment protects the right to informational privacy: “‘Fundamental to our privacy is the ability to control circulation of personal information. . . . This is essential to social relationships and personal freedom. The proliferation of government and business records over which we have no control limits our ability to control our personal lives.’” (White v. Davis, supra, 13 Cal.3d at p. 774, quoting the election brochure argument in favor of the privacy amendment, italics in original.)
The privacy amendment also guards against the threat to liberty posed by the marriage of conventional surveillance methods and computer technology: “‘The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms.’” (ibid.)
The dizzying pace of technological progress raises difficult problems for the judiciary. As this court has observed: “Development of photocopying machines, electronic computers and other sophisticated instruments [has] accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 248 [118 Cal.Rptr. 166, 529 P.2d 590].)
[196]The United States Privacy Protection Study Commission has warned that this task will not be easy: “In some cases, changes in record-keeping practice have already made even recent legal protections obsolete.” (Personal Privacy in an Information Society, U.S. Privacy Protection Study Com. Rep. (1977) p. 10.) Fortunately, the courts may draw assistance from a wealth of thoughtful commentary.1
The fingerprint is a uniquely accurate and immutable form of personal identification. When used for narrow purposes and with proper safeguards, it may help to ensure the accuracy of public records—one of the goals of the privacy amendment. (See White v. Davis, supra, 13 Cal.3d at p. 775.)
However, the very characteristics that make fingerprinting so useful also create cause for concern. Though innocuous by itself, the fingerprint can serve as a “key” to sensitive and potentially dangerous information about a person. As one information expert has explained, “[c]ertain key data . . . are not sensitive per se, but derive sensitivity from the information to which one gains access through the key.” (Bing, Classification of Personal Information with Respect to the Sensitivity Aspect, in Data Banks and Society (First Internat. Oslo Symposium on Data Banks & Society 1972) p. 107 [hereafter Classification of Personal Information].)
With current technology, an individual who provides a fingerprint for use in authenticating a personal identification system is ceding the ability to preserve a measure of anonymity in the sensitive areas of his or her life. A fingerprint lifted from the scene of a political meeting or lovers’ tryst can be fed into a computer and matched with its owner’s identity.2
[197]Latent fingerprints can be taken from the innumerable pieces of paper used by individuals—for example, political leaflets or personal correspondence. Without effective safeguards, the potential for invasions of privacy is virtually limitless. Any existing protections for a citizen’s anonymity could be rendered nugatory.
The present record contains a graphic illustration of the potential for government agencies to surreptitiously lift fingerprints as a means of circumventing privacy rights. Prior to the enactment of the mandatory fingerprint requirement, applicants for driver’s licenses were permitted to waive that requirement. Nevertheless, according to declarations submitted by DMV officials, the DMV regularly took latent prints from the applications of persons who had declined to give a thumbprint. Indeed, it was only when the DMV converted its files from paper to microfilm—thus eliminating the possibility of taking latent prints—that the present mandatory requirement was enacted. According to the declaration of one official, this was “[t]he primary impetus behind the legislation making the thumbprint requirement mandatory. ”
The ballot argument prepared by the drafters of the privacy amendment stated that the right of privacy is essential to several fundamental rights guaranteed by the Bill of Rights, including those guaranteed by the First Amendment. (White v. Davis, supra, 13 Cal.3d at p. 775.) For this reason, it is appropriate in interpreting the scope of the privacy amendment to consider the long line of First Amendment cases in which the courts have recognized the constitutional value of the freedom to preserve a zone of personal anonymity. (See generally Com., The Constitutional Right to An[198]onymity: Free Speech, Disclosure and the Devil (1961) 70 Yale L.J. 1084.)
For example, protection has been afforded against government efforts to compel the disclosure of group membership lists since any exposure could inhibit the exercise of the right of association. (See, e.g., N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 462 [2 L.Ed.2d 1488, 1499-1500, 78 S.Ct. 1163]; Socialist Workers Party v. Attorney General of U.S. (2d Cir. 1974) 510 F.2d 253, 257.)
The courts have also recognized the importance of anonymity for the constitutional right of free expression. For example, in Talley v. California (1960) 362 U.S. 60 [4 L.Ed.2d 559, 80 S.Ct. 536], the United States Supreme Court held void on its face a Los Angeles city ordinance which prohibited public distribution of any leaflet which failed to list the name of its author. (Id., at p. 65 [4 L.Ed.2d at p. 563].)
In striking down the ordinance, the high court observed that “[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. . . . [H] Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. ... It is plain that anonymity has sometimes been assumed for the most constructive purposes. ’ ’ (Id., at pp. 64-65 [4 L.Ed.2d at p. 563]; accord Britt v. Superior Court (1978) 20 Cal.3d 844 [143 Cal.Rptr. 695, 574 P.2d 766] [overbroad judicial discovery order]; Schuster v. Municipal Court (1980) 109 Cal.App.3d 887 [167 Cal.Rptr. 447] [overbroad ban on anonymous campaign literature]; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255 [overbroad ban on use of disguises in public].)
This court has recognized a constitutionally protected zone of anonymity in nonspeech contexts. (People v. Chapman (1984) 36 Cal.3d 98 [201 Cal.Rptr. 628, 679 P.2d 62].) In Chapman, an individual claimed a constitutional privacy interest in maintaining her anonymity as the subscriber to an unlisted telephone number. A unanimous court agreed and held that disclosure of the subscriber’s identity “may well add the missing link to make up a ‘virtual current biography.’” (Id., at p. 109, quoting People v. Blair (1979) 25 Cal.3d 640, 653 [159 Cal.Rptr. 818, P.2d 738] and Burrows v. Superior Court, supra, 13 Cal.3d at p. 247.) Accordingly, it was held [199]that the police could not obtain this information without prior judicial approval. (Chapman, supra, 36 Cal.3d at p. 111.)3
Chapman disapproved a Court of Appeal decision (People v. Elder (1976) 63 Cal.App.3d 731 [134 Cal.Rptr. 212]) which had concluded that names and addresses were not protected from warrantless disclosure because they “relate to identification rather than disclosure of private, personal affairs.” (Id., at p. 737; Chapman, supra, 36 Cal.3d at p. 111, fn. 8.)
Because a fingerprint file may provide an even stronger essential link, there is no comfort in the assurances some courts have offered that fingerprints “provide a simple means of identification; no more.”4
The logic of recognizing a constitutionally protected privacy interest in an individual’s name and address applies with equal or greater force to fingerprints. At stake is the individual’s expectation of privacy—specifically, the expectation that he or she may maintain a zone of personal anonymity. That expectation is not abandoned when an individual is required to provide identifying information. Like the name and address given the telephone company in Chapman and the financial information given the bank in Burrows, the disclosure of the fingerprint required on the application for a driver’s license is not volitional. The DMV will not issue anyone a driver’s license unless they supply a fingerprint.
An individual can no more participate in the economic life of contemporary society without a driver’s license than without a bank account or telephone. (See Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398 [188 Cal.Rptr. 891, 657 P.2d 383]; Chapman, supra, 36 Cal.3d at [200]p. 108; Burrows, supra, 13 Cal.3d at p. 247.)5 Thus, by bowing to the fingerprint requirement, an applicant for a driver’s license does not abandon his or her expectation of personal anonymity.
Even those who willingly provide a fingerprint should not be deemed to consent to the use of their fingerprint except for the narrow, driving-related purposes for which the DMV may properly require accurate identification. (See Chapman, supra, 36 Cal.3d at pp. 106-108; Blair, supra, 25 Cal.3d at p. 654; Burrows, supra, 13 Cal.3d at p. 247; People v. McKunes (1975) 51 Cal.App.3d 487, 492 [124 Cal.Rptr. 126].) Here, of course, petitioner expressed her expectation of privacy by refusing to give a fingerprint even though it might cause substantial hardship to herself and her family.
The recognition that the constitutional right of privacy is implicated by the DMV’s collection and dissemination of fingerprints is supported by another consideration. Unlike a name and an address, identifiers which an individual repeatedly discloses to private and governmental organizations, fingerprints are rarely requested, required, or knowingly provided. (Cf. Chapman, supra, 36 Cal.3d at p. 109; but see ante, fn. 2, regarding the DMV’s former practice of secretly obtaining latent fingerprints from the applications of those who had elected not to provide an inked print.) Yet, a fingerprint reliably linked with its owner’s name and other identifying data may constitute an unprecedentedly powerful and invasive tool of surveillance.
Unless an individual takes the precaution of wearing gloves at all times, a trail of latent fingerprints is left in the places he or she occupies, even if only for brief periods of time. Fingerprints find their way onto personal papers, correspondence, books, telephones and innumerable other objects [201]handled in the course of everyday life—or in the course of political meetings, lovers’ rendezvous or other activities generating heightened privacy concerns. It is the rare individual who leaves behind a calling card with his or her name and address. Yet a fingerprint, matched against the DMV’s files, will yield the same information.
In White v. Davis, supra, 13 Cal.3d 757, the alleged surveillance activities took a more conventional form. Undercover police agents registered as students at a state university, attended university classes and meetings of campus organizations, and submitted reports to the police department for retention in individual dossiers. (Id., at p. 762.) This court held that the presence of the undercover police agents stripped the students and professors of the protective cloak of anonymity guaranteed by the First Amendment (id., at pp. 767-76S)6 and the state privacy amendment (id., at p. 775).
Here, no such overt surveillance is alleged. However, easily accessible fingerprint files, when combined with sophisticated techniques for lifting latent fingerprints, permit ready identification of individuals participating in controversial or compromising activities. The identification may be made secretly, without the need for direct observation and with a correspondingly reduced chance of discovery.
The advent of computerized fingerprint matching technology makes the DMV’s fingerprint file the practical equivalent of the name and address file for unlisted telephone subscribers in People v. Chapman, supra, 36 Cal.3d 98, or the identification required on the leaflets in Talley v. California, supra, 362 U.S. 60. This technology had not yet been perfected in 1972, when the privacy amendment was enacted, or in 1975, when this court first interpreted the amendment’s scope in White v. Davis, supra, 13 Cal.3d 757. (See Sanger, Fingerprinting and Computers, supra, L.A. Daily J. p. 4, col. 3; Project SEARCH, Report on Latent Fingerprint Identification Systems (1974) p. 12; Project SEARCH, Analysis of Automated and Semi-Automated Systems for Encoding and Searching Latent Fingerprints (1974) p. 6.) However, the voters and this court recognized the general danger posed by the marriage of computers and conventional surveillance methods. (See ante, at pp. 195-196; White v. Davis, supra, 13 Cal.3d at pp. 774-776.)
Not only does the fingerprint provide a “key” for the surveillance of personal activities, but it also supplies a means of linking an individual [202]identified from a fingerprint to the mass of information stored in private and governmental data banks. A fingerprint file enables the user to match a latent fingerprint to a personal number, which in turn can provide access to personal data from farflung sources. As the proponents of the privacy amendment pointed out: “‘Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create “cradle-to-grave” profiles of every American.’” (Quoted in White v. Davis, supra, 13 Cal.3d at p. 774.)
Alexander Solzhenitsyn once noted that “‘[a]s every man goes through life ... he fills in a number of forms for the record, each containing a number of questions. . . . There are thus hundreds of little threads radiating from every man.’” (Quoted in Linowes, Must Personal Privacy Die in the Computer Age? (1979) 65 A.B. A. J. 1180.) When these threads are woven together, an intimate personal portrait may emerge.
Thoughtful commentators have warned that “as ‘life-long dossiers’ and interchange of information grow steadily, the possibilities increase that agencies employing computers can accomplish heretofore impossible surveillance of individuals, businesses, and groups by putting together all the now-scattered pieces of data.’’(Westin, Privacy and Freedom (1967) pp. 366-377, italics added; see also White v. State of California (1971) 17 Cal.App.3d 621, 631 [95 Cal.Rptr. 175] (conc. & dis. opn. of Friedman, J.).)
In short, a fingerprint file can provide both a direct means of identifying individuals against their will and an indirect means for obtaining a wealth of personal information about them. Accordingly, fingerprints have been described as “sensitive” information, in contrast to less sensitive identification information such as a name or a date of birth. (Classification of Personal Information, supra, at pp. 108, 116.)
Individuals are constantly faced with requests for personal and sensitive information from a wide variety of government agencies and private organizations. In many cases, this information is essential to the provision of needed services. (See generally, Right to Informational Privacy, supra, 22 Washburn L.J. at p. 470; Computers and Privacy, supra, 60 Den. L.J. at pp. 449-450.) The collection and storage of fragmentary bits of information and their use for narrowly specified purposes do not necessarily pose a serious threat to individual privacy, provided there are adequate safeguards against misuse and unwarranted disclosure.
In White v. Davis, supra, 13 Cal.3d at page 775, this court enumerated the principal evils at which the privacy amendment was directed: “(1) [203]‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.”
Petitioner’s challenge focuses on the third concern. She concedes that the DMV could properly require fingerprinting if the prints were used solely for the purpose of authenticating drivers’ licenses.
However, the fingerprint requirement was enacted for broader purposes. In enacting the challenged provision, the Legislature declared its intent to create a statewide fingerprint-based identification system. (See majority opn., ante, at p. 193.)
The constitutional guarantee of privacy requires that information about an individual be used solely to achieve the specific purposes for which it was obtained. (White v. Davis, supra, 13 Cal.3d at p. 775.) However, the stated purpose of the fingerprint requirement—accurate personal identification—is so broad that it imposes no effective constraint on subsequent use. It is as if the use of a gun were “limited” to the purpose of shooting. By nature, fingerprints are invariably and solely useful for accurate identification.
Moreover, the requirement directly implicates the privacy amendment’s protection against the “disclosure of [information] to some third party.” (Ibid.) As noted above, fingerprints can be used to identify individuals without their consent or knowledge. Although the fingerprints are collected by the department primarily for department purposes, a wide variety of agencies and private parties regularly use the files to identify persons from fingerprints. (See majority opn., ante, at p. 193.)
The collection of fingerprints for such unspecified and widespread usage infringes on individual privacy rights. No person should be compelled to provide the state with such a potent instrument of control absent effective safeguards against misuse.7
[204]The reflections of Justice Brennan concerning the challenge of constitutional interpretation in a rapidly changing world are particularly germane. “[T]he genius of our Constitution resides not in any static meaning that it had in a world that is dead and gone, but in the adaptability of its great principles to cope with the problems of a developing America. A principle to be vital must be of wider application than the mischief that gave it birth. Constitutions are not ephemeral documents, designed to meet passing occasions. The future is in their care, and therefore, in their application, our contemplation cannot be only of what has been but of what may be.” (Brennan, State Constitutions and the Protection of Individual Rights (1977) 90 Harv. L.Rev. 489, 495.)
The more recent articles include: Soma & Wehmhoefer, A Legal and Technical Assessment of the Effect of Computers on Privacy (1983) 60 Den. L.J. 449 (hereafter Computers and Privacy); Lautsch, Computers, Communications and the Wealth of Nations: Some Theoretical and Policy Considerations About an Information Economy (1983) 4 Computer L.J. 101; Note, Computers in the Private Sector: Right to Informational Privacy for the Consumer (1983) 22 Washburn L.J. 469 (hereafter Right to Informational Privacy); Note, The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis (1983) 36 Vand. L.Rev. 139; Landever, Electronic Surveillance, Computers, and the Fourth Amendment—The New Telecommunications Environment Calls for Reexamination of Doctrine (1983) 15 U.Tol. L.Rev. 597; Freedman, The Right of Privacy in the Age of Computer Data and Processing (1982) 13 Tex. Tech L.Rev. 1361; Comment, The Constitutional Right To Withhold Private Information (1983) 77 Nw.U. L.Rev. 536.
The process was explained in a recent professional journal: “Basically, the system reads a latent print with a video camera, converting the image to a series of pre-determined mathematical values. These are then stored in the computer’s memory bank. . . .
tt
“The computer scans through its memory bank, producing a printout that lists, in descending order of probability, the suspects who have fingerprints that match in some detail the original print.
“The computerized system does within minutes what would take a trained fingerprint [197]expert hours or even weeks of manual searching. Even then, the odds of a manual search producing a matching print are infinitesimal. And while a manual search often requires more than just one fingerprint, a computerized system can digest even a partial print.” (Sullivan, Computerized Fingerprint System (Apr. 1984) Police Chief, at p. 50; see Sparrow, Digital Coding of Single Fingerprints: A New Approach for the Computer Age (1982) 10 J. Police Sci. & Admin. 206.)
The San Francisco Police Department now owns such a computer system and recently used it to identify and arrest a suspect using a single latent fingerprint left six years earlier. The process took less than an hour. (See Automated Fingerprint System Solves Record Number of Cases (May 6, 1984) 15 Crim. Just. Newsletter 6, 7; Sanger, Fingerprints and Computers, L.A. Daily J. (May 2, 1984) p. 4, col. 3; see generally Local Police Advancing in Use of Computers (Apr. 1985) 16 Crim. Just. Newsletter 1-3.)
The record does not reveal the level of technology currently possessed by the DMV. However, it is clear that the DMV is capable of making identifications solely from latent fingerprints. The supervisor of the latent print section of the Division of Law Enforcement of the Department of Justice stated in a signed declaration that that section frequently uses the DMV files to identify persons from fingerprints. The declaration further reveals that the section’s services “are provided to law enforcement agencies, district attorneys’ offices, coroners’ offices as well as state agencies throughout California. The thumb print appearing on the California drivers’ licenses has been in many instances the only source available in effecting an identification.” (First italics added.)
Chapman involved an unlawful search and seizure and was decided on the basis of the privacy component of the guarantee against unreasonable search and seizure in article I, section 13 of the California Constitution. However, the opinion spoke in broad terms of “the constitutional right to privacy” (36 Cal.3d at p. 110) and relied on cases upholding privacy claims guaranteed by the First Amendment (id., at pp. 110-111) and by evidentiary privileges (id., at p. 110).
This pithy language appears in the opinion of the federal district court in Thom v. New York Stock Exchange (S.D.N.Y. 1969) 306 F.Supp. 1002, 1011, affirmed sub nom. Miller v. New York Stock Exchange (2d Cir. 1970) 425 F.2d 1074, certiorari denied (1970) 398 U.S. 905 [26 L.Ed.2d 64, 90 S.Ct. 1696]. In that case, a New York statute requiring fingerprinting of all employees of securities firms was upheld against a claim that it violated the right of privacy guaranteed by the federal Constitution.
The following “subsequent history” demonstrates the inadequacy of the Thom court’s analysis. After the lower courts had ruled in favor of the statute’s constitutionality, it was learned that “[a]s a result of this statute, several hundred employees have been found to have ‘criminal records’ and dismissed from their employment; half of those fired had no record of convictions, but only of arrests. . . . [H] . . . [However,] no New York statute provides for automatic dismissal of a securities employee with a past arrest record, . . . .” (Italics added.) (Menard v. Mitchell (D.C. Cir. 1970) 430 F.2d 486, 495, fn. 52.)
Vehicle Code section 12800 requires only those persons who wish to drive motor vehicles or to obtain an identification card to be fingerprinted. This limitation scarcely narrows the sweep of the requirement. One could state with equal accuracy—and with equal lack of practical significance—that only those who wish to work must obtain a social security number. The record discloses that the DMV maintains records on approximately 20 million driver’s license and identification card applications.
Prior to July 1, 1982, when giving a fingerprint on a driver’s license application became mandatory, approximately 10 to 15 percent of applicants chose not to provide one. This is not an insignificant number. Further, even if a majority of applicants did not object to giving a fingerprint, this fact is not dispositive. As this court observed in Chapman, “[t]he fact that many customers do not seek to keep their identities . . . private does not in any way diminish the privacy rights of those who do.” (36 Cal.3d at p. 108.)
. Nor does the sheer magnitude of the fingerprint collection program alter the inquiry. “Whatever role the expectation of privacy may play in determining the extent of a constitutional right, ‘. . . the state cannot curtail a person’s right of privacy by announcing and carrying out a system of surveillance which diminishes that person’s expectations.’” (Id., at p. 113, quoting De Lancie v. Superior Court (1982) 31 Cal.3d 865, 875, fn. 11 [183 Cal.Rptr. 866, 647 P.2d 142].)
The creation of dossiers reporting the views expressed in the classes and meetings was also condemned for its inhibitory effect on the exercise of free speech. (White v. Davis, supra, 13 Cal.3d at pp. 767-768, citing N.A.A.C.P. v. Alabama, supra, 357 U.S. at p. 462 [2 L.Ed.2d at pp. 1499-1500] and Talley v. California, supra, 362 U.S. at p. 64 [4 L.Ed.2d at pp. 562-563].)
As construed in the majority opinion, the statute authorizes the department to collect fingerprints for its internal use in authenticating the identity of driver’s license applicants. However, this statute, effectively enforced, would not answer petitioner’s objection to the use of the prints to authenticate the driver’s license number as a universal statewide identifier, increasing the number’s usefulness for linking personal information from different computerized data bases. Inevitably, the department’s internal use of the prints to ensure the accuracy of its driver records also serves to increase the reliability and utility of the driver’s license number for identification and data-matching by outside government agencies, businesses, and individuals. In light of the difficulty of verifying that the fingerprint files are not freely disseminated to private parties, I want to emphasize that any unauthorized dissemination would clearly be an egregious violation of the applicant’s right to privacy under the state Constitution.