Drones, Tort and Aviation Vetting

Earlier this month the national inister for Infrastructure and Transport announced that legislation had been introduced legislation into Parliament to 'strengthen security at Australia's major airports to guard against insider threats'.

 “Changes to the Aviation Transport Security Act 2004 will make airside areas of Australia's major airports more secure by paving the way for new and enhanced security screening,” Mr Chester said. 

“Specifically, airports will be able to randomly select people, together with their vehicles and belongings, for screening when they are working inside the secure airside area of an Australian airport to make sure they do not have prohibited weapons in their possession. 

“The changes are the first stage of the Government's plans to strengthen airside security by mitigating the insider threat. In addition to screening of airport workers, the Government will also introduce stronger access controls for airside areas and security awareness training for airport and airline staff.

The Government has also quietly released its Response to the 2014 Eyes in the Sky: Inquiry into drones and the regulation of air safety and privacy report by the Standing Committee on Social Policy and Legal Affairs.

That response states

On 14 July 2014, the Chair of the Standing Committee on Social Policy and Legal Affairs tabled the Committee’s report of its inquiry into the use of RPAS.

The Committee’s report, entitled “Eyes in the sky”, has made six recommendations in relation to safety and privacy aspects of RPAS operations in Australia. 

The Government agrees with Recommendations 1 and 2 of the report and has identified measures by which the recommendations can be put into action. 

The Government does not support Recommendation 3 and specifically the establishment of a separate tort on privacy. 

The Government notes Recommendations 4, 5 and 6 of the Committee’s report and will continue to monitor developments on the use of RPAS as they relate to the Commonwealth’s surveillance device legislative regime. 

The Civil Aviation Safety Authority (CASA) is responsible for implementing Recommendation 1 and the safety related aspects of Recommendation 6, as well as working with the Attorney-General’s Department to implement Recommendation 2. 

The Attorney-General’s Department is responsible for Recommendations 3, 4 and 5, the privacy related aspects of Recommendation 6, and for working with CASA in the implementation of Recommendation 2.

Specifics are

Recommendation 1 - The Committee recommends that the Australian Government, through the Civil Aviation Safety Authority (CASA), broaden future consultation processes it undertakes in relation to remotely piloted aircraft regulations so as to include industry and recreational users from a non-aviation background. Future consultation processes should identify and seek comment from peak bodies in industries where remotely piloted aircraft use is likely to expand such as real estate, photography, media, and agriculture, amongst others. 

Response - The Government agrees with this recommendation. CASA will be consulting with industry and the community on a future modernisation review of the RPAS regulations commencing early next year. This review will take into account work on RPAS by the International Civil Aviation Organization (ICAO), which is responsible for the development of international aviation safety standards and recommended practices, as well as the views of industry and community stakeholders. 

Recommendation 2 - The Committee recommends that the Australian Government, through the Civil Aviation Safety Authority (CASA), include information on Australia’s privacy laws with the safety pamphlet CASA currently distributes to vendors of remotely piloted aircraft. The pamphlet should highlight remotely piloted aircraft users’ responsibility not to monitor, record or disclose individuals’ private activities without their consent and provide links to further information on Australia’s privacy laws. 

Response - The Government agrees with this recommendation. CASA and the Office of the Australian Information Commissioner have collaborated to produce a plain English privacy statement which will be included on all future print runs of the Flying with control? brochure and the Don’t go there brochure which raises awareness of RPAS use near emergency situations. The wording will say “Respect personal privacy. Don’t record or photograph people without their consent – this may breach state laws”. Copies of relevant RPAS brochures are available on the CASA website. 

Recommendation 3 - The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person’s seclusion or private affairs. The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission’s proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft. 

Response - The Government does not support a separate tort of privacy. Introducing a new cause of action would only add to the regulatory burden on business, which is contrary to the government’s commitment to reducing red tape. The common law already provides avenues for individuals to seek redress for the torts of trespass, nuisance, defamation and breach of confidence. The states and territories also have their own legislation. In circumstances where the Privacy Act applies to regulate some of the activities of an RPA (for example, where an RPA is being operated by an entity covered by the Privacy Act and in doing so collects personal information), an individual who considers their privacy has been breached may complain to the Office of the Australian Information Commissioner. 

Recommendation 4 - The Committee recommends that, at the late-2014 meeting of COAG’s Law, Crime and Community Safety Council, the Australian Government initiate action to simplify Australia’s privacy regime by introducing harmonised Australia-wide surveillance laws that cover the use of listening devices, optical surveillance devices, data surveillance devices, and tracking devices. The unified regime should contain technology neutral definitions of the kinds of surveillance devices, and should not provide fewer protections in any state or territory than presently exist. 

Recommendation 5 - The Committee recommends that the Australian Government consider the measures operating to regulate the use or potential use of RPAs by Commonwealth law enforcement agencies for surveillance purposes in circumstances where that use may give rise to issues regarding a person's seclusion or private affairs. This consideration should involve both assessment of the adequacy of presently existing internal practices and procedures of relevant Commonwealth law enforcement agencies, as well as the adequacy of relevant provisions of the Surveillance Devices Act 2004 (Cth) relating but not limited to warrant provisions. Further, the Committee recommends that the Australian Government initiate action at COAG’s Law, Crime and Community Safety Council to harmonise what may be determined to be an appropriate and approved use of RPAs by law enforcement agencies across jurisdictions. 

Response - The Government notes the Committee’s recommendations. Traditionally, the Commonwealth has had a limited role in the enforcement of state and territory criminal law. The Government considers it appropriate that states and territories continue to modify their own surveillance device laws, if necessary. At a federal level the Government considers that the Commonwealth Surveillance Devices Act 2004 (Cth) strikes an appropriate balance between the protection of privacy and the ability to investigate serious offences. The Act adequately regulates the use of drone borne optical and listening devices by law enforcement. The Act is technologically neutral with the result that surveillance through an RPAS is only lawful if conducted within the same legal parameters as traditional optical surveillance devices. The Government will continue to monitor developments in RPAS usage by the general public and law enforcement agencies to ensure that the Act continues to provide appropriate protections at the Commonwealth level. 

Recommendation 6 -  The Committee recommends that the Australian Government coordinate with the Civil Aviation Safety Authority and the Australian Privacy Commissioner to review the adequacy of the privacy and air safety regimes in relation to remotely piloted aircraft, highlighting any regulatory issues and future areas of action. This review should be publicly released by June 2016. 

Response - The Government notes the Committee’s recommendation. Issues of air safety and privacy are however regulated by separate means, through separate legislation and by separate Government agencies. It is appropriate then that reviews of the adequacy of the air safety and the privacy regimes are conducted by the agency with expertise and responsibility for each area: CASA for air safety and the Attorney-General’s Department, in consultation with the Office of the Australian Information Commissioner, for privacy matters. Each agency will, however, have appropriate regard for the findings of the other’s review in any matters where issues are identified that may affect both air safety and privacy. As indicated in response to Recommendation 1, CASA will be consulting with industry and the community on a future modernisation review of the RPAS regulations commencing early next year. This review will take into account work on RPAS by the International Civil Aviation Organization (ICAO), which is responsible for the development of international aviation safety standards and recommended practices, as well as the views of industry and community stakeholders. CASA will also issue a suite of advisory circulars to provide more guidance to the industry in areas such as RPAS training, licensing, safety management and maintenance over the remainder of the current financial year. The Attorney-General’s Department will continue to liaise with CASA as required, in consultation with the Office of the Australian Information Commissioner, on issues regarding privacy and air safety in relation to RPAS, with a view to addressing particular regulatory issues and any emerging areas of action.

Volenti

'The Volenti Defence under Australian and Canadian Law: A Comparative View' by Marel Katsivela in (2014) 8 Journal of Comparative Law comments

Assumption of risk constitutes a defence in negligence actions in Canada and in Australia. Important similarities but also differences underline the two common law defences. The present study presents and compares the two common law defences. It also comments on some provisions of the relatively recent tort law reform legislation in Australia and on how the legislation interacts with the Australian and the Canadian common law defences.

Katsivela states that the assumption of risk as a well-known defence in the area of torts

exists where the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he runs, agrees to incur it. The defence originates from the Latin maxim volenti non fit injuria (volenti). Under Roman law, it stated a principle of estoppel vis-à-vis Roman citizens who consented to being sold as slaves.   

Volenti reflects the individualism of early common law, drawing from the principle that ‘one is free to work out one’s own destiny.’ During the 19th century, this defence was very important for employers who were usually defendants in actions for injuries the employees had suffered at work. Due to volenti, employees were deemed to have accepted the risks of their employment. With the adoption of apportionment legislation in Canada and in Australia in the 20th century, the scope of assumption of risk became restricted. From that time onwards it is essential to distinguish between volenti and the victim’s contributory negligence. 

Torts—including the assumption of risk defence—remain largely defined by provincial/ state case law in the two countries. However, tort reform legislation adopted by Australian states in 2002-2003 has regulated volenti without repealing the common law defence. As we are going to see later, Canada has not adopted legislation similar to the Australian one. 

The object of the present study is to present volenti in Australia and in Canada and to comment on their similarities, their raison d’être as well as their differences and their possible effect or influence in advancing the law in the two countries. In this regard, we will review the common law defences in the two countries and examine some provisions of the Australian tort reform legislation. We will also focus on how the legislation interacts with the Australian and the Canadian common law defences. Our analysis will be limited to negligence actions rather than intentional torts since assumption of risk arises more often within the scope of the former. Although this defence has been invoked in a variety of negligence actions, we do not aim at examining all its fields of application but, rather, use case law that best illustrates its elements and aids in the presentation of the applicable principles and comparative analysis. 

In undertaking this task, we are conscious of the fact that we are examining rules present in two common law jurisdictions. Jurisdictions sharing the same legal tradition often share common legal reasoning and concepts. However, commonwealth countries (for example, Australia and Canada) have developed distinctive common law rules at the domestic level. Similarities but also differences are often noted when examining specific legal issues or concepts in two or more common law nations. The assumption of risk defence following Canadian and Australian law constitutes no exception. Important similarities but also differences will be observed regarding volenti in the two jurisdictions.  

In commenting on this defence from a comparative perspective, we align ourselves with the third category of comparative law scholars described by Pr. Mehren. These scholars do not reject or embrace convergence of local laws.  They believe that such convergence may or may not occur. Until or unless it takes place, however, they opine that it is the responsibility of comparative law to determine to what degree and the way in which convergence of local laws exists or may be occurring, and to provide the analytical tools that enable jurists from different legal cultures to achieve a shared understanding of their respective intents, positions or views. 

This is precisely the approach the author adopts. We do not know whether convergence of tort law principles will take place at the international level. We do not, however, exclude such a development. Until this occurs, we feel that it is our duty to examine (tort) concepts applicable in different countries in order to shed some light on the rules governing them and identify the degree of their convergence. This will allow jurists worldwide to achieve a better understanding of the laws in different jurisdictions. 

The following sections form the basis of our analysis: the first two sections focus on the presentation of volenti in Australia and in Canada respectively and the third section analyzes the applicable laws. 

Power and Irrationalism

'The Enlightenment Gone Mad (I): The Dismal Discourse of Postmodernism’s Grand Narratives' by Rainer Friedrich in (2012) 19(3) Arion 31-78 comments

[T]here is a discernible commonality among the various branches of postmodernism. They have in common a penchant for passing death sentences and issuing death certificates, promulgating, with either insouciant glee or ponderous gloom, the death of reason; the death of the enlightenment; the death of universalism; the death of normativity and law; the death of meaning and truth—in short, the death of almost everything that the Western intellectual tradition stands for in general and that modernity has claimed in particular. With exorbitant virulence, postmodernism has turned against the anthropocentric and subjectivistic-individualistic tenor in modernity, in particular against its focus on the thinking subject, with the denigration of the Cartesian cogito, yielding further death certificates: the death of man; the death of autonomous subjectivity; the death of the self; the death of the author. Such pervasive negativity, often speaking in apocalyptic tongues, is the chief defining feature uniting the many postmodernisms. This had prompted Jacques Derrida to ridicule his own postmodern camp for the tendency of “going-one-better in eschatological eloquence . . . the end of history . . . the end of the subject, the end of man, the end of the West, the end of Oedipus, the end of the earth, Apocalypse now.” By his own admission, Derrida, as we shall see, has been no stranger to the apocalyptic tone he derides. A murky discourse of death, Postmodernism usurps the epithet from yesterday’s dismal science and accedes to the status of today’s dismal discourse.

In 'The Enlightenment Gone Mad (II): The Dismal Discourse of Postmodernism’s Grand Narratives' in (2012) 20(1) Arion 67-110 Friedrich comments

... Foucault was a voluptuary of power. Detestable to Foucault is only that kind of power that wraps itself insidiously in the language of truth, rationality, science, knowledge, jurisprudence, democracy, popular sovereignty, humanitarianism, and morality; that effaces itself in order to be able to rule with an invisible hand, so that it cannot be combated—detestable is, in short, the power/knowledge régime, the disciplinary power prevalent in the democratic republics. That’s the kind of power Foucault urges resistance to. When calling it, as he occasionally does, productive and creative, Foucault is referring primarily to its ability to invent ever more, and more sophisticated, forms of camouflage and vehicles for its hidden hand. 

Yet power is for Foucault also creative and productive when, for instance, it gives rise to limit-experiences in sado-masochism, a relationship the core of which is sexually charged power—and to Foucault that’s a desirable thing. This hints at the hidden normativity in Foucault’s power-discourse. How to disclose it? I propose a new avenue. Let us seek the criterion for judging and evaluating power within his power discourse, so that we cannot be accused of forcing extraneous norms on it that would subject him to a dis- course he disowns. Foucault does have a criterion by which to evaluate, judge, and condemn the modern power-knowledge régime. It is, quite simply, power—unadulterated, undisguised, self-asserting, authentic power that is. In Foucault’s Grand Narrative there lurks the unreflected and un- stated normativity of good and bad power: power precious and desired versus power ugly and detested. For a starter, here is a passage reminiscent of Batailles’s affective politics:

Power has an erotic charge. . . . How do you love power? Nobody loves power any more. This kind of affective, erotic attachment, this desire one has for power, for the power that’s exercised over you, doesn’t exist any more. The monarchy and its rituals were created to stimulate this sort of erotic relationship towards power. The massive Stalinist apparatus, and even that of Hitler, were constructed for the same purpose. But it’s all collapsed in ruins and obviously you can’t be in love with Brezhnev, Pompidou or Nixon.

 There is an air of regret in this. The culprit for the “collapse in ruins” is quickly identified: 

Humanism is everything in Western civilization that restricts the desire for power: it prohibits the desire for power and excludes the possibility of power being seized. The theory of the subject (in the double sense of the word) is at the heart of humanism and this is why our culture has tenaciously rejected anything that could weaken its hold upon us. But it can be attacked in two ways: either by a “desubjectification” of the will to power . . . or by the destruction of the subject as a pseudosovereign.

Like Nietzsche, Foucault admired the age of the sophists— the age prior to Plato’s inauguration of Western metaphysics that forced the will to power to efface itself and masquerade as the disinterested pursuit of truth. Nietzsche had invoked the “culture of the sophists” (“Sophisten-Kultur”) as “the invaluable movement amidst the moral and idealist swindle of the Socratic schools which was then breaking out in all directions.” In that culture, Foucault holds, arguing in the same vein, “effective, ritual discourse” (rhetoric that is), “precious and desirable,” is “linked to the exercise of power,” “charged with power and peril,” and “respond[s] to desire or to that which exercises power.” In short, in the discourse of the sophists, the overt, undisguised, self-assured will to power was operative. Through rhetorical discourse, as the sophist Polos in Plato’s Gorgias (466b11–c2) unabashedly holds, one can, like a tyrant, have one’s personal and political enemies in the city-states put to death and thus enhance one’s own power. No self-effacement here! It’s the kind of desirable power that humanism prohibits. 

Thus it is overt authentic power that provides Foucault’s Grand Narrative with its criterion for indicting disciplinary power on the charge of establishing the carceral in moder- nity’s democratic societies. The implication of its crypto-normativity is somewhat disconcerting. It appears that any regime, any society, any social formation where the will to power is exercised freely, assertively, and overtly, without masking itself as some form of non-power, is preferable to liberal or social democracy.

Explanation

‘The epidemiology of ‘bewitchment’ as a lay-reported cause of death in rural South Africa’ by Edward Fottrell, Stephen Tollman, Peter Byass, Frederick Golooba-Mutebi and Kathleen Kahn in (2011) J Epidemiol Community Health comments

 Cases of premature death in Africa may be attributed to witchcraft. In such settings, medical registration of causes of death is rare. To fill this gap, verbal autopsy (VA) methods record signs and symptoms of the deceased before death as well as lay opinion regarding the cause of death; this information is then interpreted to derive a medical cause of death. In the Agincourt Health and Demographic Surveillance Site, South Africa, around 6% of deaths are believed to be due to ‘bewitchment’ by VA respondents.

Using 6874 deaths from the Agincourt Health and Socio-Demographic Surveillance System, the epidemiology of deaths reported as bewitchment was explored, and using medical causes of death derived from VA, the association between perceptions of witchcraft and biomedical causes of death was investigated.

 The authors conclude

The odds of having one’s death reported as being due to bewitchment is significantly higher in children and reproductive-aged women (but not in men) than in older adults. Similarly, sudden deaths or those following an acute illness, deaths occurring before 2001 and those where traditional healthcare was sought are more likely to be reported as being due to bewitchment. Compared with all other deaths, deaths due to external causes are significantly less likely to be attributed to bewitchment, while maternal deaths are significantly more likely to be.

 They comment

Witchcraft provides a moral agency framework that can make sense of seemingly random events in space and time, and in South Africa, witches using Muthi (‘medicine’) are said to be able to cause disease and misfortune. This has important consequences for treatment choices; seeking Western healthcare and remedies for witchcraft-related illness is considered redundant or, at best, secondary to traditional rituals, medicines and sacrifices.

In the world’s poorest settings, where belief in witchcraft is prevalent and the burden of disease and premature mortality is highest, the vital events of individual lives are not recorded and medical registration of deaths and their causes is rare. Localised surveillance systems have been established in many resource-poor settings in an attempt to overcome this lack of information. These Health and Socio-Demographic Surveillance Systems (HDSSs) monitor populations in clearly defined geographic areas and record all information on births, deaths and migrations. Since 1992, every death occurring in the Agincourt HDSS, South Africa, is subject to a verbal autopsy (VA), whereby trained fieldworkers interview the closest care giver of the deceased to retrospectively record the signs and symptoms of the deceased. These data are later used to derive a probable cause of death. The VA tool also records the respondent’s opinion as to what, in their opinion, the main or most important cause of death was, which in numerous instances is ‘bewitchment’. This study explores the epidemiology of reported bewitchment and its associations with individual and household characteristics of the deceased, including VA-derived medical causes of death.

 The authors go on to comment

Exploration of the epidemiology of bewitchment as a lay- reported cause of death over a 15-year period in the Agincourt HDSS, South Africa, provides a useful insight into a population’s understandings of death. Illness duration and specific causes of death appear to be important factors associated with the likelihood of a death being reported as due to bewitchment. Deaths following a long illness and those due to obvious external causes are approximately 60-70% less likely to be reported as bewitchment compared with other causes. Conversely, maternal deaths are almost three times more likely to be reported as bewitchment compared with non-maternal deaths when controlling for age and sex groups. This association with maternal deaths, and the greater proportion of bewitchment deaths among women in the reproductive age group of 15-49 years compared with other age-sex groups, suggests that the Agincourt community may associate the sudden deaths of otherwise healthy young women with malicious supernatural causes. ...

The greater proportion of bewitchment deaths in the mid- 1990s may also be related to heightened consciousness of witchcraft activity resulting from politically motivated witch hunts in the area during the early days of post-apartheid. During this transitional period in South Africa, characterised by a climate of uncertainty and long-standing mistrust within and between sectors of society, there was an ‘epidemic’ of occult violence and fear of malicious supernatural forces within the former Northern Province, including the former homeland of Gazankulu in which Agincourt is located. It was also a social climate in which fears about witches flourished, nourished by rapidly expanding charismatic churches that offered sanctuary and support against evil brought by witches. The prevalence of witchcraft during that period has been interpreted by some to be an aggressive rationalisation of misfortune from unknown or uncontrollable forces. Time, and perhaps the gradual success of reconciliation initiatives, may have overcome some of these driving forces towards the beginning of the new millennium, and the incidence of witchcraft-related violence did diminish after 1997.

The study indicates an association between bewitchment beliefs and maternal deaths. Maternal deaths fit well into commonplace understandings of witchcraft. For example, invisible agents or those with a grudge working in mysterious ways and with intent to cause harm target seemingly healthy individuals performing the natural and expected role of child-bearing, causing unexpected illness and death that results in prolonged suffering for the immediate family. Furthermore, witchcraft has previously been identified as an important factor that affects women’s reproductive health, with pregnancy being described as a state of acute vulnerability to the actions of jealous others. Moreover, it is commonly believed that witches are particularly keen on attacking the generative capacities of families and lineages, so an affliction that special- ises in fertile victims and as a consequence of sexual activity is considered tailor-made for their craft. The relative rarity of maternal deaths, the role of women in childbirth and the importance of fertility in African society in general may further explain why maternal deaths are associated with witchcraft in some people’s eyes, perhaps echoing beliefs held in Europe until the 17th century that midwives and witchcraft were closely linked. 

Assigning blame to witchcraft may be a mechanism for dealing with the incomprehensibility of why a woman should die during the natural process of childbirth and the catastrophic consequences of death with respect to infant survival and family life. This can be contrasted to deaths caused by obvious and more comprehensible external causes, such as accidents, homicide and suicide, which were less likely to be reported as witchcraft. 

There is an increasing trend in deaths being reported as due to bewitchment in relation to increasing education level of the deceased, although not statistically significant in the multivariate analysis (tables 1 and 2). It has been shown that education is not necessarily a protective factor against belief in witchcraft and that formal education may in fact contribute to the growth of witchcraft by exposing people to new ways of thinking and conduct. Resulting changes in behaviour may clash with local values resulting in suspicions and accusations of witchcraft.   

If the true medical and social causes of illness are not recognised at the community level, it is difficult to intervene and prevent them. An ethnographical study in Nigeria, for example, shows that discussants believe that reproductive health problems and delivery complications caused by curses and witches can only be cured by traditional healers, animal sacrifices and prayers, with medical interventions considered redundant. Similar beliefs were evident from the open histories of the VAs in the current study. For example, one case report of an 18-year-old woman apparently suffering from postnatal psychosis describes how she was separated from her child and taken to an evangelical church to be healed, whereupon she was tied up with ropes so tight that ‘there were scars on her ankles and arms’. Following 2 weeks with a traditional healer, the woman was sent home and died within hours. This potentially preventable death highlights the devastating consequences that may result from inappropriate and misguided treatment-seeking behaviour, which are likely to be motivated by lay cultural understandings of illness. 

The fact that individuals who sought only traditional treatments for their terminal illnesses were almost six times more likely to have their death reported as bewitchment supports the view that traditional medicine and bewitchment are strongly associated (table 2). Nevertheless, almost 40% of bewitchment cases in this study accessed Western healthcare, occasionally in combination with traditional care (results not shown). This reflects pluralistic healthcare-seeking behaviour characteristic of the Agincourt population and South Africans in general  and is suggestive of a process of health-seeking behaviour in which personal beliefs and actions are continuously debated and evaluated throughout the course of an illness. The apparent willingness to use Western care reinforces the need to improve the accessibility and, crucially, the quality of existing services. In particular, there is an apparent need for enhanced communication to patients and their relatives regarding the meaning of diagnoses and realistic treatment expectations.

Understanding divergences between biomedical and cultural concepts of illness has implications for health measurement techniques. Rather than replicating a purely clinical paradigm, through which the social context of illness and death may edited out, VAs should instead be considered as an interface between epidemiological and ethnographical methods that are able provide important information on the chain of biomedical and social events associated with preventable mortality. As demonstrated by the current study, quantitative exploration of certain local concepts or perceptions of illness may facilitate translation of these culture-specific interpretations into more generic medical models useful for health measurement.

Insights gleaned from the people directly affected by specific health issues are also critical in developing sustainable health programmes and building health partnerships. Planners need to understand barriers and enablers to care seeking which are likely to include local understanding of the causes of illness and consequent perceived appropriateness of Western medicine in the framework of certain world views. With such insights, the perception of witchcraft and its associations with illness and death have real public health implications.

UID

'Aadhaar: wrong numbe, or Big Brother calling?' by Kalyani Menon Sen in (2015) 11(2) Socio-Legal Review comments

Aadhar, touted by its supporters as the ultimate tech solution to India’s development problems, failed to bring the UPA back to power. Despite having trashed it from the Opposition benches, the BJP government is now rolling it out at an accelerated pace despite strong opposition from civil society groups and continuing concern about the technology and its social and ethical implications. This paper examines the of cial justi cations for Aadhar from the perspective of those whose interests it claims to serve.

Experience on the ground suggests that the real attraction of Aadhar for this government lies in its potential as a tool for the promotion of the interlinked agendas of neoliberal globalisation and militarised nationalism. Disguised as “development”, Aadhar is facilitating India’s transition into a society where critics and dissenters are seen as enemies rather than as essential actors in democracy.

The author argues that

India has changed in this last one year – for better or for worse, depending on one’s position on the political map. Old laws are being overhauled, old programmes are being junked, old institutions are being given the coup de grace, old icons are being cleared away from their pedestals and replaced with new idols, the rusty iron frame of the bureaucracy is being pulled apart, holiday lists and restaurant menus are being revised – everything, it seems, is being refurbished and repurposed in the pursuit of one man’s all-consuming vision of development. But the more some things change, the more one thing stays the same. Aadhaar, the magic number that was peddled by the previous government as a wide-spectrum remedy for corruption, exclusion and poverty, is still with us. True, its self-proclaimed creator and his ambitions have disappeared into oblivion, starry airs and high-pro le election campaign notwithstanding. But that seems inconsequential now, when the Modi Sarkar itself, with far less publicity and far more determination, is pushing through his incomplete agenda of converting every single Indian into a number in the world’s largest biometric database.

As a matter of fact, the idea of Aadhaar is rooted in something far weightier than Nilekani’s rosy vision of an IT-enabled India. The proposal for a national identity card was rst oated in 1999 by the Kargil Review Committee, set up to study national security in the aftermath of the Kargil war. The committee recommended issuing of special identity cards to Indian citizens living in border areas in order to distinguish them from illegal in ltrators. In May 2001, a Group of Ministers headed by the then Home Minister L. K. Advani, accepted and expanded this recommendation, suggesting that a “multi-purpose national identity card” be issued to every citizen. In December 2003, the Citizenship (Amendment) Bill, 2003 was introduced in the Lok Sabha by the Home Minister, with a clause empowering the central government to “compulsorily register every citizen of India and issue national identity card to him [sic].”

However, this history was more or less buried by the time Aadhaar was nally launched in 2009 by the Congress-led UPA government. The UPA’s publicity pitch presented it as a “game-changer,” a magical techno-fix whereby the hitherto excluded could claim their fair share of the fruits of development. Rumblings to the contrary – concerns around security, privacy, profiling, data-creep, targeting – were dismissed as the carping of professional nay-sayers with little concern for the needs and priorities of the poor.

The modus operandi is very different now. Gone are the days when grandiose announcements of Aadhaar-enabled service delivery by the powers-that-were were stymied and undermined by sceptical judges, lethargic bureaucrats and venal party cadres. Instead, what we have now is a steadily growing list of government services and functions that have been successfully coupled to Aadhaar in various parts of the country. Cooking gas subsidies, house allotments, school scholarships, admission into remand homes and welfare homes, passports, “e-lockers” for archiving documents, bank accounts under the Jan Dhan Yojana,  provident fund accounts, pensions, driving licences,insurance policies, loan waivers and even entry passes for the Kerala Chief Minister’s mass contact programme - all these can be claimed by flashing an Aadhaar card.

One does not know whether the ethical, technical and operational glitches that blocked the UPA from implementing Aadhaar have been addressed and resolved. There doesn’t seem to be much conversation about them anymore. As far as we know, the concerns set out in the first leaflet circulated by the “Say No to UID” Campaign in 200918 still stand.

The Campaign had pointed out that the UIDAI – set up through an executive order as a project of the Planning Commission – did not have a legal mandate for collection of personal data and biometrics. This is still the situation: the National Identification Authority of India Bill was introduced in the Rajya Sabha in 2010, but was rejected in 2011 by the Parliamentary Standing Committee on Finance chaired by Yashwant Sinha of BJP with a recommendation of “back to the drawing board”.

The Campaign had also raised questions regarding privacy and data protection. Apart from the technical issues involved in safeguarding a database of a billion plus, the Campaign also alerted the public to the on-going dilution of existing safeguards. For instance, the UIDAI is allowed to provide personal data in cases where “national security” is invoked. Earlier, such a disclosure required an order from the Union Home Secretary or a State Home Secretary. Now, all it needs is advice from any officer above the rank of Joint Secretary. Moreover, there is no provision to penalise misuse of data obtained under this provision.

Even at that early stage, the Campaign warned that the use of biometric identifiers like ngerprints and iris scans could lead to invalid data and “false positives” for millions of Indians – those whose hands and fingers are worn out from a lifetime of hard labour, or those whose corneas have been scarred by glaucoma, injuries or infections. Activists also demonstrated how ngerprint scanners and iris scanners can be deceived and “spoofed” – false figerprints can be created using latex and adhesives and coloured contact lenses can blur and obscure iris patterns.

Most alarming of all was the fact that the proposed Bill did not contain any mechanisms for credible and independent oversight of the UIDAI. The Campaign pointed out that this would increase the risk of “functionality creep” – the government would be able to add features and additional data to the Aadhaar database without informing or taking the consent of citizens and without re-evaluating the effects on privacy in each instance. The Campaign pointed to the manner in which “national security” was being repeatedly and successfully invoked to defend “encounter killings” and other extra-constitutional actions by the police and armed forces, and warned that this had created an enabling environment for abuse of the UID database to serve undemocratic, illegal and unethical purposes.

Despite the fact that all these concerns remain as valid as when they were first raised – no convincing answers having been offered either by the UPA government or the Modi Sarkar – the government seems determined to go ahead with its grand plans for Aadhar. As this article goes to press, a pilot project has been launched in Bengaluru to give the district police access to databases of the National Population Register, Aadhaar and the Crime and Criminal Tracking Network System (CCTNS) to enable online verification of identity, address and criminal record of those applying for passports.