24 September 2020

Identity Systems

Privacy International's A Guide to Litigating Identity Systems comments

Some of the largest, data-intensive government programs in the world are National identity systems—centralised government identity schemes that link an individual’s identity to a card or number, often using biometric data, and require identity authentication within the system for the provision of public benefits and participation in public life. The discussion surrounding these systems has largely centered on their perceived benefits for fraud protection, security, and the delivery of services. 

While a number of national identity systems have been challenged in national courts, court analyses of the implications of identity systems have largely mirrored this broader public discourse centered on arguments in favour of identity systems. Two of the three most prominent national court judgments analyzing identity systems—the Aadhaar judgment in India and the Madhewoo judgment in Mauritius and the Huduma Namba judgment in Kenya —upheld the systems, lauding perceived benefits while under-developing critiques. Human rights advocates may find this largely one-sided discussion discouraging, as it limits the extent to which groups and individuals concerned about the human rights impact of identity systems can organize around strong arguments challenging those systems, in whole or part. 

It is in response to this context that Privacy International partnered with the International Human Rights Clinic at Harvard Law School to guide the reader through a simple presentation of the legal arguments explored by national courts around the world who have been tasked with national courts that discuss the negative implications of identity systems, particularly on human rights, and to present their judgement. This argumentation guide seeks to fill that gap by providing a clear, centralised source of the arguments advanced in and discussed by national courts that discuss the negative implications of identity systems, particularly on human rights. It gives advocates a tool for developing arguments in any given national context challenging an identity system, informing debate from a human rights perspective, and further building the repertoire of arguments that can be advanced in the future.

This guide proceeds in five parts: 

First, the guide lays out the wide range of arguments challenging identity systems because of their impact on the right to privacy, providing advocates tools for ensuring privacy right infringement is given adequate weight in courts’ proportionality analyses. 

Second, it outlines arguments surrounding biometric information (which includes iris and fingerprint information), an important component of most identity systems, challenging assumptions of biometric authentication’s effectiveness and necessity. 

Third, the guide presents arguments on data protection concerns, highlighting the importance of safeguards to protect rights, and pointing to issues around the role of consent, function creep, and data sharing. 

Fourth, the guide sets out arguments on rights other than privacy, namely liberty, dignity, and equality. The fourth section provides detail on the social and economic exclusion and discrimination that can result from the design or implementation of identity systems. 

Finally, the fifth section of this guide discusses identity systems’ implications for the rule of law, the role of international human rights law, and considerations of gender identity. Rather than providing a list of arguments, as is the case in the other sections of this guide, the fifth section provides a general overview describing the absence of consideration of these themes in existing jurisprudence and the reasons why these themes warrant future consideration. By developing these arguments in conjunction with the variety of existing arguments illustrated in this guide, advocates can address and challenge the multitude of facets of human rights threatened by identity systems.