What SC’s Distrust Of Private Companies’ Role In Collection Of Bio-Metric Data Signifies
Claims about biometric data deeply unscientific, illegitimate promotes genetic determinism and digital casteism.
Now that Supreme Court’s bench of Chief Justice J S Khehar, Justice N V Ramana and Justice D Y Chandrachud have admitted on January 5, 2017 that “biometric data collection by private agencies is not a great idea”, it is time to examine the idea of biometric data based 12-digit unique identification (UID)/Aadhaar number project which is linked to proposed imminent DNA profiling of Indian residents. The Human DNA Profiling Bill, 2015 aimed at regulating the use of Deoxyribose Nucleic Acid (DNA) analysis of human body substances proﬁles and to establish the DNA Profiling Board for laying down the standards for laboratories, collection of human body substances, custody trail from collection to reporting and also to establish a National DNA Data Bank and for matters connected therewith or incidental thereto. The Bill provides for procurement of “Intimate body sample” which means a sample of blood, semen or any other tissue, fluid, urine, or pubic hair, a dental impression; or a swab taken from a person’s body orifice other than mouth obtained through “Intimate forensic procedure”. The intimate forensic procedure means the following forensic procedures, namely:-(a) an external examination of the genital or anal area, the buttocks and also breasts in the case of a female breast; (b) the taking of a sample of blood; (c) the taking of a sample of pubic hair; (d) the taking of a sample by swab or washing from the external genital or anal area, the buttocks and also breasts in the case of a female; (e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks and also breasts in the case of a female; (f) the taking of a dental impression and (g) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks and also breasts in the case of a female.
As per Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, “ ‘biometric information’ means photograph, finger print, Iris scan, or such other biological attributes of an individual as may be specified by regulations.” The reference to “such other biological attributes” makes it clear that voice sample and DNA profiling is included under its ambit.
When one looks at the definition of the “Biometrics” which “means the technologies that measure and analyse human body characteristics, such as ‘fingerprints’, ‘eye retinas and irises’, ‘voice patterns’, “facial patterns’, ‘hand measurements’ and ‘DNA’ for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000, it becomes clear that the plan of data collection does not end with collection of finger prints and iris scan, it goes quite beyond it.
The fact remains biometric data like finger print, voice print, iris scan and DNA do not reveal citizenship. While use of biometric technology, an advanced technique for the identification of humans, based on their characteristics or traits is unfolding there is agency within India too. These traits can be face, fingerprint, iris, voice, signature, palm, vein, and DNA. DNA recognition and vein recognition are the latest and most advanced types of biometric authentication. Biometric technology is being deployed in the application areas like government, travel and immigration, banking and finance, and defense. Government applications cover voting, personal ID, license, building access, etc; whereas travel and immigration use biometric authentication for border access control, immigration, detection of explosives at the airports, etc. Banking and finance sector use biometric authentication for account access, ATM security, etc.
Such profiling is aimed at examination of human biological material that is coded with “the past history and thus dictate the future of an individual’s racial and genealogical makeup, and influence an individual’s medical and psychological makeup.” The proponents of the biometric profiling such tools can make all citizens ‘safe’ forever. “Biometrics are turning the human body into the universal ID card of the future”. Unmindful of dangerous ramifications of such applications, biometric ID’s are all set to be made as common as e-mail addresses. Biometric information includes DNA profiling wherein biological traits are taken from a person because by their very nature are unique to the individual and positively identifies that person within an ever larger population as the technology improves.
Supreme Court’s observation must be looked at in the light of a decision of the European Court of Human Rights (ECHR). The case was heard publicly on February 27, 2008, and the unanimous decision of 17 judges was delivered on December 4, 2008. The court found that the “blanket and indiscriminate nature” of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and ruled that the United Kingdom had “overstepped any acceptable margin of appreciation” in this regard. The decision is nonappealable. The Court cannot ignore this decision because the Aadhaar Act extends to DNA through the definition of biometric information in Section 2 (g)
The Court’s observation must be seen in the context of what happened in 1998 at National Biometric Test Center, San Jose State University set up by the Biometric Consortium, which is the US government interest group on biometric authentication. The centre was asked to testify to the USA’s House Committee on Banking and Financial Services hearing on “Biometrics and the Future of Money”. This testimony of May 20, 1998 was reprinted under the title, “Biometric Identification and the Financial Services Industry. This centre emerged from a meeting of Biometric Consortium held in 1995 at the Federal Bureau of Investigation (FBI) training facility. This Test Center has defined biometric authentication as “the automatic identification or identity verification of an individual based on physiological and behavioral characteristics”. Agencies like US Department of Defence, North Atlantic Treaty Organisation, World Bank Group, USAID and Interpol has been promoting such automatic identification in at least 14 developing countries including Pakistan, Bangladesh and Nepal without any democratic mandate as part of a convergence project to ensure merger of private sector, public sector and citizens sector. The E-identity and biometric UID/Aadhaar related projects are part of World Bank’s e-Transform Initiative formally launched on April 23, 2010 for convergence.
The Court’s observation faintly and partly echoes the Public Statement by 21 concerned citizens of August 2015 and the Statement of Concern against UID/Aadhaar by 17 eminent citizens issued in September 2010 demanding that the project based on biometric profiling “should be halted before it goes any further”. The signatories to the statements included Justice VR Krishna Iyer, Supreme Court of India, Prof. Romila Thapar, Prof. Upendra Baxi, Justice A.P.Shah, Prof. Anil Sadgopal, Prof. Kalpana Kannabiran and others. The Court made these observations in the cases filed by Justice K.S.Puttaswamy (Retd), Major General S.G. Vombatkere, former Additional Director General Discipline & Vigilance in Indian Army, Col. Mathew Thomas, a defence scientist and several eminent persons which include several transfer petitions from Tamil Nadu, Maharashtra and other states subsequent to the order of Supreme Court Bench of five judge headed by Chief Justice of India which reads: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest” in its order dated October 15, 2015 in the Writ Petition (Civil) No. 494 of 2012. This case pertains to supreme national interest filed by stalwarts of impeccable and unquestionable integrity. This is a test case for how the Court deals with genuine public interest litigation filed in pursuance of citizens’ fundamental duties taking in to account.
Neither the Court nor the concerned lawyers been able to read both the biometric UID/Aadhaar Number Act and Identification of Prisoners Act (which is force) together to in order to fathom the disturbing ramifications of the former. The Identification of Prisoners Act, 1920 reads: “The object of this bill is to provide legal authority for taking measurements, finger impressions, footprints and photographs of persons convicted of, or arrested in connection with, certain offences.” According to the Identification of Prisoners Act at the time of the acquittal of the prisoner, his biometric data is required to be destroyed. Since 1857, fingerprint identification methods have been used by police agencies in India and around the world to identify suspected rebels, political dissidents and criminals. The first systematic capture of hand images for identification purposes initiated by William Herschel, a civil servant in colonial India in 1858. It is noteworthy that in 1898, Edward Henry, Inspector General of the Bengal Police established the first British fingerprint files in London. The biometric UID/Aadhaar Number project goes further by storing the biometric data forever. The UID/Aadhaar Number project and related s schemes is unfolding to undertake indiscriminate profiling citizens and residents of India. It is like fixing a dehumanizing genetic caste identity on a person.
The promoters of biometric UID/Aadhaar Number are promoting digital caste system and digital racism. Jacob Appelbaum, computer security researcher, hacker, activist, and a spokesperson for WikiLeaks has warned, biometric Aadhaar/”UID will create a digital caste system because going by the way it is now being implemented, if you choose not to be part of the system, you will be the modern-day equivalent of an outcast. In theory, you are supposed to have the freedom to choose but in reality, the choice will only be whether to be left out and left behind”.
If biometric identification under Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 is deemed legitimate then there is a logical compulsion for the Court to declare The Identification of Prisoners Act, 1920 as redundant because the latter provides for a government limited by law and the former provided for a government made unlimited by law as far as indiscriminate human profiling is concerned.
It is apparent that there is a need for the Supreme Court, High Courts and legislatures to examine whether or not biometrics provides an established way of fixing identity of Indians. Has it been proven? A report “Biometric Recognition: Challenges and Opportunities” of the National Research Council, USA published on 24 September 2010 concluded that the current state of biometrics is ‘inherently fallible’. That is also one of the findings of a five-year study. This study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency. Notably, West Bengal legislature has passed unanimous resolution against biometric UID/Aadhaar number. It is high time other State legislatures ponder to ponder over it as well.
Another study titled “Experimental Evidence of a Template Aging Effect in Iris Biometrics” supported by the Central Intelligence Agency (CIA), the Biometrics Task Force and the Technical Support Working Group through Army contract has demolished the widely accepted fact that iris biometric systems are not subject to a template aging effect. The study provides evidence of a template aging effect. A “template aging effect” is defined as an increase in the false reject rate with increased elapsed time between the enrollment image and the verification image. The study infers, “We find that a template aging effect does exist. We also consider controlling for factors such as difference in pupil dilation between compared images and the presence of contact lenses, and how these affect template aging, and we use two different algorithms to test our data.”
Neither the Court nor the concerned lawyers have been able to recognize that citizens’ opposition to biometric UID/Aadhaar has a historical context. It is linked to more than a century old world famous ‘Satyagraha’ of Mahatma Gandhi in order to oppose the identification scheme of the government in South Africa. On 22nd August, 1906, the South African government published a draft Asiatic Law Amendment Ordinance. The Ordinance required all Indians in the Transvaal region of South Africa, eight years and above, to report to the Registrar of Asiatics and obtain, upon the submission of a complete set of fingerprints, a certificate which would then have to be produced upon demand. The move proposed stiff penalties, including deportation, for Indians who failed to comply with the terms of the Ordinance. Knowing the impact of the Ordinance and effective criminalisation of the entire community, Mahatma Gandhi then decided to challenge it. Calling the Ordinance a ‘Black Act’ he mobilised around 3,000 Indians in Johannesburg who took an oath not to submit to a degrading and discriminatory piece of legislation. Biometric aadhaar case demonstrates how ‘Those who forget history are condemned to repeat it’.
Biometric profiling is inherently dangerous because it tracks individuals based on their religious, behavioural and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities.
The reference to “Aadhaar card” by the Court’s repeated orders unequivocally illustrates that it has not applied its judicial mind to the core concern relating to ‘UID number’, ‘Aadhaar number’ or ‘Aadhaar’ and the Adhar Trust. Unless arguments in the Court and Court’s orders make rigorous distinction between them, they cannot do justice to their role.
An application filed on July 16, 2015 in the Supreme Court intending to formally make biometric UID/Aadhaar applicable to other government schemes such as obtaining passports, PAN cards, immigration, railways, telecommunications and prison management systems shows that that unmindful of Court’s orders biometric UID/Aadhaar number is a tool for exclusion, not for claimed inclusion. In fact such profiling with biometric data is fraught with dangers of unprecedented communal crisis at the local, regional and national level in the country.
The promoters of world’s biggest biometic database project based on the unscientific and questionable assumption that there are parts of human body likes fingerprint, iris, voice etc that does not age, wither and decay with the passage of time. Unique Identification Authority of India (UIDAI) is acting on a manifestly unscientific basis. Those who support UID/Aadhaar number and related initiatives display unscientific temper by implication.
The reason for the vehement opposition to (UID)/Aadhaar number project is that it is contrary to the basic structure of the Constitution of India, which provides for a limited government and not an unlimited government. The project is aimed at creating an unlimited government. It is incorrect, bad and illegitimate.
For a 21 month period between 25 June 1975 to 21 March 1977, the country was put under internal Emergency under Article 352 of the Constitution of India, effectively bestowing on Indira Gandhi, the then Prime Minister, the power to rule by decree, suspending elections and civil liberties. This was made legal and it remained so as long as it lasted. The powers given to her virtually had no limits. The human body came under assault as a result of forced vasectomy of thousands of men under the infamous family planning initiative of Sanjay Gandhi. UID/Aadhaar number project constitutes a bigger assault on human body because it links “biometric information” to “demographic information” which includes “information relating to the name, date of birth, address and other relevant information of an individual, as may be specified by regulations for the purpose of issuing an Aadhaar number, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history” as per Section 2 (k) of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
Given the fact that judicial orders from the High Courts and Supreme Court have so far dealt with the limited issue of how UID/Aadhaar cannot be made mandatory, first thing anyone should understand with regard to gathering momentum against biometric unique identification (UID)/Aadhaar number is that the very first document that residents of India encounter in this regard is UID/‘Aadhaar Enrolment Form’. At the very outset the enrolment form makes a declaration is that “Aadhaar Enrolment is free and voluntary.” This is a declaration of Government of India. This is a promise of Union of India. As a consequence, all the agencies state governments, the Government of India and the “agencies engaged in delivery of welfare services” are under legal and moral obligation to ensure that the UID/Aadhaar cannot be made mandatory. As such the Supreme Court has simply stated what the Union of India itself has promised. In its interim order what the Court has done is to simply reiterate the significance of the promise made by Government of India. If programs, projects and schemes are launched in breach of Governments’ promise, it will set a very bad and unhealthy precedent and no one ever in future trust the promise made by Union of India. The column number 8 in the UID/Aadhaar Enrolment Form on the first page refers to “agencies engaged in delivery of welfare services” but does not define who these agencies are. It appears that its definition has deliberately been kept vague. Which are the agencies that are involved in delivery of welfare services? Aren’t security agencies and commercial agencies with ulterior motives included in it?
On page number 2 of the UID/Aadhaar Enrolment Form provides, “Instructions to follow while filling up the enrolment form” which states that column numbered 8 is about seeking consent from an Indian “Resident (who) may specifically express willingness / unwillingness by selecting the relevant box” by ticking “yes” or “no” options. The column number 8 reads: “I have no objection to the UIDAI sharing information provided by me to the UIDAI with agencies engaged in delivery of welfare services.” Now, the issue is that if residents are promised that enrolment is “voluntary” they may give their consent unaware of its ramifications but if they know that it is made “mandatory” they may refuse to give their consent.
Are the agencies with whom Unique Identification Authority of India (UIDAI) on behalf of President of India has signed contract agreements with foreign surveillance technology companies like Accenture Services Pvt Ltd, US, Ernst & Young, US, L1 Identity Solutions Operating Company, now France (as part of Safran group), Satyam Computer Services Ltd (Mahindra Satyam), as part of a “Morpho led consortium” (Safran group), France and Sagem Morpho Security Pvt Ltd (Safran group), France “engaged in delivery of welfare services”? Admittedly, these agencies have access to personal information of the Purchaser and/or a third party or any resident of India for at least seven years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future. The purchaser is President of India through UIDAI.
The contract agreement is applicable to both Centralised Identities Data Repository (CIDR) of digit biometric unique identification (UID)/Aadhaar number which is ‘voluntary’ and the ‘mandatory’ National Population Register (NPR) of Ministry of Home Affairs which is also generating Aadhaar number. Notably, column number 2 in the Aadhaar Enrolment Form on page number 1 and 2 refers to “NPR Number” and “NPR Receipt/TIN Number” and at states “Resident may bring his/her National Population Register Survey slip (if available) and fill up the column” number 2.
The databases of both the numbers namely, UID/Aadhaar number and NPR number are being converged as per approved strategy. Does it not make both the databases of biometric identification numbers one and mandatory in the end? Is the promise by the Prime Minister about Aadhaar Enrolment being “free and voluntary” truthful? It is not “free” for sure because it costs citizens’ their democratic rights. As to it being “voluntary” it is not so by design. It is evident that the Prime Minister has been miser with truth.
Initially, it seemed surprising as to why L1, a high value company that worked with the US’ intelligence was sold to French conglomerate Safran group which has a 40 year partnership with China. It also seemed puzzling as to why the contract amount given to Sagem Morpho of Safran Group is not being disclosed. There is no confusion as to why such agencies of US, France and China are eagerly collecting the biometric database of Indians at the rate of Rs 2.75 per enrolment and de-duplication. It is reveals the lack of business of Indian decision makers. These foreign entities are getting possession of national assets of Indians along with payment for doing the favour of collecting it! “Biometrics Design Standards for UID Applications” prepared by UIDAI’s Committee on Biometrics states in its recommendations that “Biometrics data are national assets and must be preserved in their original quality.” Isn’t such preservation being undertaken by these foreign agencies in their supreme national interest of their own governments?
UIDAI’s paper titled ‘Role of Biometric Technology in Aadhaar Authentication’ based on studies carried out by UIDAI from January 2011 to January 2012 on UID/Aadhaar biometric authentication reveals that the studies “focused on fingerprint biometric and its impact on authentication accuracy in the Indian context. Further, improvements to UID/Aadhaar Authentication accuracy by using Iris as an alternative biometric mode and other factors such as demographic, One Time Pin (OTP) based authentication have not been considered in these studies.”
This paper explains, “Authentication answers the question ‘are you who you say you are’”. This is done using different factors like: What you know– user ID/password, PIN, mother’s maiden name etc, What you have – a card, a device such as a dongle, mobile phone etc and What you are – a person’s biometric markers such as fingerprint, iris, voice etc. The ‘what you are’ biometric modes captured during UID/Aadhaar enrolment are fingerprint, iris and face. It is noteworthy that this paper also refers to biometric markers like ‘fingerprint, iris, voice etc’ revealing that after fingerprint and iris, ‘voice’ print is also on the radar and its reference to “etc” includes DNA prints as well.
Notably, ESL Narasimhan, governor of Andhra Pradesh said, “We are spending thousands of crores on identification cards every other day and then saying it is useless card. It happened in case of citizenship card, PAN card, voter identity card and now they are coming to Aadhaar card. He was speaking at the inaugural session of fifth international conference on ’emerging trends in applied biology, biomedicines and bio-forensics’. This was reported by Business Standard on 30 November 2013. Narasimhan is a former head of the Intelligence Bureau (IB). DNA analysis has become so cheap that within a few years instead of an Aadhaar, one can have whole DNA sequence with unique marker because “with a few thousand rupees, everybody’s entire DNA sequence can be put on a card”, argued Ramakrishna Ramaswamy, vice chancellor, University of Hyderabad, speaking at the same conference. It is noteworthy that these efforts are going in a direction wherein very soon employers are likely to ask for biometric data CD or card instead of asking for conventional bio-data for giving jobs etc. It is likely to lead to discrimination and exclusion.
A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its October 1, 2010 issue observed “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.” So far the Court has not been able to appreciate such concerns.
In villages, they say when you give a hammer to a blacksmith he/she will only think in terms of nailing something. The only difference is that here it is the human body which is being nailed. If you only have a hammer, you tend to see every problem as a nail. If biometric technologies are at hand, some people under the influence of technology tend to see every problem as an identification problem.
The UIDAI paper states, “Of the 3 modes, fingerprint biometric happens to be the most mature biometric technology in terms of usage, extraction/matching algorithms, standardisation as well as availability of various types of fingerprint capture devices. Iris authentication is a fast emerging technology which can further improve Aadhaar Authentication accuracy and be more inclusive.”
Such absolute faith in biometric technology is based on a misplaced assumption that are parts of human body that does not age, wither and decay with the passage of time. Basic research on whether or not unique biological characteristics of human beings is reliable under all circumstances of life is largely conspicuous by its absence in India and even elsewhere.
Notwithstanding similar unforeseen consequences Prime Minister’s faith in biometric remains unshaken. It seems that considerations other than truth have given birth to this faith. Is there a biological material in the human body that constitutes biometric data which is immortal, ageless and permanent? Besides working conditions, humidity, temperature and lighting conditions also impact the quality of biological material used for generating biometric data. UID/Aadhaar number is based on the unscientific and questionable assumption that there are parts of human body likes fingerprint, iris, voice etc” that does not age, wither and decay with the passage of time.
It is apparent that like Indira Gandhi and Dr Manmohan Singh, Prime Minister Narendra Modi too has become instrumental in the installation in establishment of authoritarian architecture through biometric identification of Indians. This is likely to get the similar response from voters as they had given in the aftermath of proclamation of emergency. The human body is again under attack through indiscriminate biometric profiling with patronage of the ruling parties at the centre and in the states.
Unmindful of such glaring evidence that creates a logic compulsion for stoppage of UID/Aadhaar number projects, all the political organisations and institutions of government which supported imposition of emergency are likely to support biometric identification project as it helps build a permanent emergency architecture which was conceived during the imposition of internal emergency. The institutions which supported suspension of right to life and personal liberty and provided exemplary justice to victims of Bhopal disaster seem to be suffering from the curse of Albatross.
The observations based on many inferred past “facts” can be deceptive. This does not mean that there are no methods at all for exposing a hypothesis concerning “facts” about emergence of a surveillance transnational state to critical objective evaluation. At a time when computing cloud beyond India’s jurisdiction is unthinkingly being embraced by the National e-Governance Programme amidst apprehensions about technological and legal challenges associated with the concept of ‘shared platform’ without ascertaining the risks associated with its usage of such emerging technologies, the specter of Investor-state dispute settlement (ISDS) or investment Court system (ICS) that is making national judiciary subservient is looming on the horizon.
Referring to the British victory over Indians in 1857, William Howard Russell of ‘London Times’ wrote: “Our siege of Delhi would have been impossible, if the Rajas of Patiala and Jhind (Jind) had not been our friends”. The seize of the “national assets” of database of personal sensitive biometric information of all the present and future Indians would have been impossible but for the help of ‘commercial czars’ and the witting or unwitting complicity of civil servants, legislators, ministers, editors and other legal entities. The International Biometric Industry Association has listed potential applications for including voter registration, access to healthcare records, banking transactions, national identification systems and parental control.
Indeed it has right been said, “Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.” It appears that the Court is on trial (to paraphrase “Courts on Trial” by Judge Jerome Frank). Amidst the observations by the three-judge bench, the Supreme Court’s website continues to refer to the case as a “Five Judges Bench Matter” since October 2015 as per a written order of a five judge Constitution Bench headed by Chief Justice of India which underlined that “there is some urgency in the matter”. It is apparent that the advertising and public relations blitzkrieg unleashed by identification and surveillance technology vendors have clouded the minds of legal fraternity. The dangers of trusting such technological advances for determining social policies will consequent in a situation where “[A] warrant requirement will not make much difference to a society that, under the sway of a naive and discredited theory of genetic determinism, is willing to lock people away on the basis of their genes” among other adverse effects.
Gopal Krishna is a public policy researcher and a member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010. He had appeared before the Parliamentary Standing on Finance that examined the Aadhaar Bill, 2010. His doctoral thesis was on corporate crimes and accountability of public institutions. He is editor, www.toxicswatch.org.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
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