The Central Government notified certain sections of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘the Act’) last month. As of now, only the sections setting out the establishment, powers and functions of the Unique Identification Authority of India (UIDAI) have been brought into force.
Passed earlier this year, the Act is aimed at more efficient delivery of government subsidies and services by eliminating ghost identities and reducing corruption. It does so by obtaining and storing, in a centralized database, biometric and demographic information of all Indians who have been residing in India for more than one hundred and eighty-two days. This database, called the Central Identities Data Repository (CIDR), not only stores information parted with at the time of enrolment, but also keeps a record of every identification request sent to it. Thus, every time a resident is required to authenticate her identity by any service provider, the CIDR would maintain a record of it. Significantly, (and contrary to three previous Supreme Court orders), there is little room for doubt that the scheme has been envisaged as being mandatory to avail the benefits attached to it.
If the lack of an overarching privacy law wasn’t enough reason to worry, the government’s submission before the Supreme Court that there is no fundamental right to privacy has raised legitimate concerns about the project and its implementation. A lot has been written about the problems with the Act and the larger scheme itself. But two aspects of the privacy debate under Aadhaar deserve urgent attention. First, as a mandatory scheme with no option to opt-out at a later stage, Aadhaar raises important issues of consent and one’s right to control the use of their personal information. This has famously been articulated as ‘informational self-determination’ in several European jurisdictions. The second concern is procedural and pertains to the method of collection and storage of sensitive personal information.
No Power to Consent or Opt-out
Biometric information such as fingerprints and iris scans form a core part of one’s bodily integrity. A requirement to part with such information as a condition precedent to availing essential services undermines basic constitutional values. While the enrolment form has a checkbox to verify consent, this is merely illusory, as failure to consent would amount to automatic exclusion from a host of benefits and services. Despite the fact that the Act mandates ‘enrolling agencies’ (discussed later) to explain the purpose of collecting demographic and biometric information at the time of enrolment, there is no legal obligation to inform residents of the extent of information being held about them. Aggregation of information within the CIDR as a result of a series of authentication requests over a long duration of time comes perilously close to creating a complete personality profile of every resident. This makes the state privy to a wide range of activities from buying an LPG cylinder to enrolling in a school, thereby drastically altering the individual-state power dynamic.
The Act further dilutes individual agency by creating statutory exceptions to how personal information can be used. Section thirty-three of the Act allows disclosure of personal information if a court (a District Judge or above) deems fit or if it is in the interest of “national security”. Both these caveats are problematic. To illustrate the first, in 2014, the CBI approached the Bombay High Court asking the UIDAI to run a fingerprint match on its database in order to enable it to identify culprits in a criminal investigation. Before the Court, the UIDAI had argued against sharing its data owing to privacy concerns. However, the Court felt differently. The Bombay High Court directed the Central Forensic and Scientific Laboratory to appoint an expert to determine if the Aadhaar database was technologically capable of matching fingerprints. This order has been stayed by the Supreme Court but the case is yet to be disposed off. The information shared with UIDAI was never envisaged to be used in criminal investigations. However, the Act explicitly allows information to be shared if a court allows it. As per UIDAI’s own statement, the system has a False Positive Identification Rate of 0.057 per cent. When applied to all residents within the country, a fingerprint search would have the effect of putting lakhs of residents under scrutiny.
Secondly, not only has the phrase “national security” not been defined in the Act (or in any other legal text for that matter), it would be the Executive’s sole prerogative to determine whether a situation qualifies for the exception. In both these situations, the individual whose information is actually at stake need not be consulted before her information is disclosed. These two exceptions are couched so broadly, that it is almost farcical to say that personal information will be used only for the authentication of one’s identity.
The Act contains broad exceptions to how personal information can be used and does not provide for any mechanism to opt-out or have one’s data deleted from the CIDR. In doing this, it diminishes one’s agency to consent, revoke consent and control how this information can be used. A society where individuals are unable to anticipate and predict the amount of information held about them and how it may be used is likely to have a chilling impact on democratic participation.
Dubious Collection and Storage of Personal Information
The issue of consent aside, organizational mechanisms in place to collect and store personal information of over a billion residents also give rise to multiple concerns. Prior to the passing of the Act, the UIDAI had outsourced the process for enrolment to various private entities which possessed the requisite know-how. Sensitive personal information such as biometrics has thus been captured, stored and retained by private companies using their own technology and without any oversight by government officials. In 2014, news reports of ‘Lord Hanuman’ having an Aadhaar card surfaced. Vijay Madan, the then Director General of the UIDAI later explained in a statement that this was ‘not a security issue’ but an instance of ‘malpractice’. The agency was then reportedly removed from the UIDAI panel. The Act has not only given legislative sanction to the practice of private companies collecting personal information, but also does not present the affected individual with any recourse in case of a breach.
Once the data is transferred to the UIDAI, it is maintained by it in the form of the CIDR. The perils of centralized storage of personal information have long been acknowledged. Any unauthorized security breach could jeopardize the information of all residents at once. This is vastly different from a smart-card system or Apple’s Touch ID, which stores biometric information locally on the device. Under European data protection jurisprudence, storage is an important element to ascertain whether the means used are proportionate to the aim sought to be achieved by the law. If the purpose of the system is only to authenticate identity in order to plug leakages in the distribution system, the need for centralized storage must be questioned.
Aadhaar has the potential to irreversibly alter the relationship between the government and people. As the world’s second most populous country, the desire to make the distribution system more efficient is an important goal to strive for. But in this case, the trade-off between privacy and efficiency is not only undesirable but also unnecessary. Finally, the manner in which the Act was passed and the government’s submissions before the Supreme Court display a lack of good faith that only add to the already long list of concerns associated with the project.