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No beating about the bush.
Citizens would face an unprecedented onslaught from the provisions of DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology. Biometric profiling of any sort is dehumanising
The dangers of trusting identification technologies for determining social policies is bound to be consequential 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.”
The 21st century ideology of genetic determinism is being promoted through biometric identification. Such identification includes DNA profiling. DNA profiling is ‘undesirable particularly as forensic DNA developments are intertwined with significant changes in legislation and contentious issues of privacy, civil liberty and social justice.’ The argument which is often mouthed in defence of biometric National Population Register (NPR) and unique identification (UID)/Aadhaar number is that it is meant for social security akin to social security number in the US, which incidentally is not based on biometric data. This must be seen along with a similar argument being advanced for a DNA profile. They say such profiling is required because it “is very much like a social security number—though it is longer and is assigned by chance, not by the federal government”. Clearly, the ramifications of automatic profiling, tracking and surveillance is unfolding and trapping unsuspecting citizens in its ambit.
The 58-page Draft Human DNA Profiling Bill, 2012 which is the revised version of the 35-page DNA Profiling Act, 2007 appears linked to the emergence of a surveillance and database state using Union Home Ministry’s biometric NPR, National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC), Union Surface Transport Ministry’s Radio Frequency Identification (RFID), Union Finance Ministry’s National Information Utility, Planning Commission’s Unique Identification /Aadhaar, Union Rural Development Ministry’s Land Titling Bill, World Bank’s e-Transform Initiative, North Atlantic Treaty Organisation (NATO)’s identification policy and Sam Pitroda’s Public Information Infrastructure and Innovations etc.
Having initiated collection of biometric data like fingerprints and iris scan for NPR and UID number, the Draft Human DNA Profiling Bill takes the next step and 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”.
A paper ‘Prelude to a Miss: A Cautionary Note against Expanding DNA Databanks in the Face of Scientific Uncertainty’ by Jennifer Sue Deck wherein a text of Office of Technology Assessment, US Congress, ‘Genetic Witness: Forensic Uses of DNA Tests’ reads: “DNA fingerprinting is all but foolproof, but some fool is going to use it”. This is apt about all kinds of biometric identification.
Profiling based on Deoxyribose Nucleic Acid (DNA) is aimed at examination of human biological material acquired through intimate forensic procedure. This biological material 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 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) Taking of a sample of blood;
(c) Taking of a sample of pubic hair;
(d) 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) 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) Taking of a dental impression;
(g) 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.
DNA Profiling is aimed at regulating the use of DNA analysis of body substance profiles and making provision for establishment of DNA Profiling Board consisting of eminent scientists, administrators and law enforcement officers to lay down standards for laboratories, collection of body substances, custody trail from collection to reporting and establishment of a databank and to create policies for use and access to information from such data bank, appointment of a DNA Databank Manager to supervise, execute and maintain the databank and for matters connected therewith.
A decision of the European Court of Human Rights (ECHR) about violation of the right to privacy and family life by DNA profile retention in criminal justice databanks is relevant here. The case was heard publicly on 27 February 2008, and the unanimous decision of 17 judges was delivered on 4 December 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. This was before David Cameron became the Prime Minister in May 2011 defeating Tony Blair's Labour Party which had introduced identity card legislation and compulsory DNA recording.
The technique of DNA profiling was pioneered in the UK and it was the first nation to establish a criminal justice DNA databank. The decision is non-appealable. Unmindful of this, in India National DNA databank is being proposed.
Once the DNA databank is in place the enlargement of scope for its new predictive uses cannot be ruled out given scientific advancements underway. In such a situation a readymade DNA based inferences adversely impacts impartiality of the criminal justice system and other systems become questionable. Contrary to the existing legal provisions under Census Act and Citizenship Act, the Bill states that the DNA data will also be used for the "creation and maintenance" of population statistics that can be used for "identification, research, protocol development or quality control".
The Bill once it becomes a law will grant the authority to collect vast amount of sensitive DNA data of citizens merely on the ground of suspicion in a criminal case. The data will be held till the person is cleared by court. Under the Identification of Prisoner Act, there is a reference of collection of sensitive biometric data like fingerprints wherein biometric data of prisoners can be collected that too with the permission of a Magistrate but on acquittal the biometric data is required to be destroyed. The Draft Human DNA Profiling Bill is far more regressive than the colonial law. The provision of collection of citizens DNA data in the Draft Bill for DNA Database in effect treats the citizens worse than prisoners.
The preamble to the Bill admits that "DNA analysis offers sensitive information which, if misused, can cause harm to a person or society". It proposes the creation of a National DNA Data Bank which will be headed by an officer in the rank of a Joint Secretary to the Government of India. There is a section in the Bill that allows for "volunteers" to give their DNA profiles. It is quite strange that "volunteers" are expected to share their sensitive data with the government. It is noteworthy that Unique Identification Authority of India (UIDAI) too had initially claimed that enrolment based on biometric data is voluntary. Subsequent events and official documents reveal that it is explicitly mandatory by implication.
The DNA Data Bank like other databases like Centralized Identity Data Register (CIDR) of UID/Aadhaar and NPR are saleable commodities but the Bill provides for the imprisonment of a few months or a fine of Rs50,000 for "misuse" of the DNA profiles. The Department of Biotechnology (DBT), Union Ministry of Science and Technology have circulated this Bill to other ministries for their inputs.
In all likelihood DNA Data Bank, CIDR, NPR and criminal database will get converged in furtherance of World Bank’s e-Transform Initiative unfolding in partnership with six transnational companies namely, Gemalto, IBM, L-1 Identity Solutions, Microsoft and Pfizer and two national governments of France and South Korea. Such convergence poses a threat to minorities and political opponents whose targeting is imminent.
It may be noted that US Genetic Information Non-discrimination Act (GINA), 2008 prohibits US insurance companies and employers from discriminating on the basis of information derived from genetic tests. The necessity of such law underlines that genetic information like DNA facilitates discrimination.
Manifesto of biometric identification promoters will read like the 1,500 page regressive manifesto titled “2083: A European Declaration of Independence” brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on his fellow citizens. It refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA” etc as well in this manifesto.
These words and their imports merit attention in order to safeguard human rights of present and future generation of citizens which faces an unprecedented onslaught from the provisions of DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology. Biometric profiling of any sort is dehumanising.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
While agreeing to give urgent hearing in the Aadhaar matter, the apex court refused to modify its earlier order
The union government and state-run oil marketing companies on Tuesday failed to get any relief from the Supreme Court over the unique identification (UID) or Aadhaar number. The apex court, while agreeing to give urgent hearing in the matter refused to modify its earlier order.
On 23rd September, the Supreme Court ruled that Aadhaar is not mandatory to avail essential services from the government. While hearing a public interest litigation (PIL) filed by retired Karnataka High Court judge Justice KS Puttaswamy and advocate Parvesh Khanna questioning the legal sanctity of Aadhaar, the apex court said, "The centre and state governments must not insist on Aadhaar from citizens before providing them essential services."
The apex court will hear the matter on 22nd October.
Meanwhile, the Cabinet clears National Identification Authority of India Bill to provide statutory status to Unique Identification Authority of India (UIDAI) and legal backing to Aadhaar.
The Database State is an exercise in outsourcing of government through technologies that govern individuals to admittedly undemocratic entities wherein biometric identification is being made a pre-condition for citizens to have any rights
Database State, a report from the UK revealed how the old maxim, 'If you have nothing to hide, you have nothing to fear' has been given a very public burial. The report states, ”In October 2007, Her Majesty's Revenue and Customs lost two discs containing a copy of the entire child benefit database. Suddenly issues of privacy and data security were on the front page of most newspapers and leading the TV news bulletins. The millions of people affected by this data loss, who may have thought they had nothing to hide, were shown that they do have much to fear from the failures of the database state.” Likewise, creating database containing biometrics is a giant leap towards authoritarian control by data mining companies. It turns citizens into subjects and suspected criminals, who can be kept under leash by control over sensitive data. Through convergence each data can be transformed into sensitive data.
If consent for it is granted by uninformed citizens then citizens become a number on a computer of a state actor or non–state actor engaged in ‘welfare’ services. This would automatically create a file on each citizen. In an effort to appear harmless, the claims are that the file would contain very little information like but as has now come to light it is being linked to ‘preventing terrorism’, ‘stopping crime’ or ‘protecting children’ etc. This in turn creates logic for profiling and tracking citizens based on their financial transactions, mobility, religion, caste, region, orientations, health records and driving record.
Right to privacy and freedom belong to citizens by right. It is not granted by government. A government is the servant of the citizens, not its master. Governments are supposed to seek the permission to limit these rights in certain circumstances. It signals a break-down of a democratic government if it chooses to engage in indiscriminate surveillance of citizens or to impose a system of compulsory identification or to open a file on each citizen or to criminalise citizens who refuse to comply as is proposed to be done by the Indian National Congress (Congress) led government with the connivance of the opposition parties.
When political candidates of Congress party and its allies stood up for elections and sought votes did they seek the mandate to put the voters under surveillance?
The 'database state' is the tendency of the state and non-state actors to use computers and biometrics to manage society by putting people under watch by mouthing benevolent schemes and excuses.
Databasing people is akin to modern day enslavement by those who are wedded to the faith in property-based democracy. Slavery by whatever name is wrong on principle.
Non-state actors have prevailed on state agencies to adopt "Transformational Government" initiative. It might sound good unless one comprehends that what is being transformed is not government but it is power over citizens under the dictates of non-state actors.
This was attempted by UK’s Tony Blair government, which misled the world and its own citizens about Iraq having nuclear, chemical, and biological weapons programme although it knew that it was not true. Not surprisingly, the British citizens could see through the fraudulent misrepresentation and voted for the coalition of David Cameron-Nick Clegg. UK's Deputy Prime Minister Nick Clegg said, “This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports” in the British House of Commons.
Clegg added, “We won't hold your internet and email records when there is just no reason to do so. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. Schools will not take children's fingerprints without even asking their parent's consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.”
But the Sonia Gandhi-led coalition government in India chooses to follow the discredited path of Tony Blair and his UK's Identity Cards Act, 2006. Both, Blair and UKID Act, have been abandoned.
Given the fact that ‘radical restructuring of the security architecture at the national level’ is underway, when Nandan Nilekani, the chairman of Unique Identification Authority of India (UIDAI) was asked more than two years back as to how tracking of citizens can get facilitated once different databases like National Population Register (NPR), National Intelligence Grid (NATGRID), National Technical Research Organisation (NTRO), Crime and Criminal Tracking Network System (CCTNS), Multi-Agency Centre (MAC), central monitoring system (CMS) , Socio Economic and Caste Census (SECC), National Investigation Agency (NIA), national cyber coordination centre (NCCC), national critical information infrastructure protection centre (NCIIPC), telecom security directorate, Public Information Infrastructure and Innovations and UID are converged, you can actually track all the information. He responded saying, “I don't want to talk about that.” His silence is deafening. But intelligence agencies be it UIDAI or any or any of it incarnations are known for adopting such stances.
Under NATGRID, 21 sets of databases will be networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies, it is quite clear that the biometric databases under creation are meant for such agencies in India and elsewhere. The Rules made under the Information Technology Act, 2000 in April 2011 provide access to any data held by any "body corporate" in India. This does not apply to body corporate of foreign origin.
In such a backdrop, there is a compelling logic for VS Sampath, the Chief Election Commissioner, to rescind the dangerous proposal of Dr SY Quraishi, his predecessor, to Union Ministry of Home Affairs asking it “to merge the Election ID cards with UID”. Such an exercise would mean rewriting and engineering the electoral ecosystem with the unconstitutional and illegal use of biometric technology in a context where electoral finance has become source of corruption and black money in the country. This would lead to linking of biometric UID/Aadhaar, election ID and electronic voting machines (EVMs), which are not as innocent and as politically neutral as it has been made out to be. It is noteworthy that all EVMs have a UID number as well. This will amount to electoral surveillance.
Surveillance is a “shameful act” of supervising and imposing discipline on a subject through a hierarchy system of policing. Michel Foucault, the author of 'Discipline and Punish: The Birth of the Prison' examined the systems of social power through the lens of the 18th century philosopher Jeremy Bentham, the originator of the now iconic Panopticon. This Panopticon was/is a design for a prison in which the inmate's cells are arranged in a circular fashion around a central guard tower. The architectural configuration allows for a single guard's gaze to view all inmates, but prevents those inmates from knowing exactly when they are being watched.
It was aptly observed, “The major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” This design is a “generalised model of functioning and a way of defining power relations in terms of the everyday lives of men.”
In initiatives like biometric identification the subject, the citizen is seen but he/she does not see. He/she is the object of information, but never a subject in communication. Foucault's Panoptic model is quite valid for biometric database because these databases are meant to ensure real time tracking and profiling of citizens and turns them into subjects and in a slave like situation. Tumultuous colonial history of the technologies associated with surveillance reveal that the origins of surveillance happened during free trade of slaves.
Biometric identification treats Indian citizens worse than slaves. It is an act of identification prior to any act of omission and commission. It is a case of a deepening of everyday surveillance. It is similar to what was done under the Britain's Habitual Criminals Act of 1869 required police to keep an “Alphabetical Registry” and cross-referenced “Distinctive Marks Registry. The first held names and the latter descriptions of scars, tattoos, birthmarks, balding, pockmarks, and other distinguishing features. This registry of marks was systematically disaggregated into nine general categories pertaining to regions of the body. Therefore there were files for the head and face; throat and neck; chest; belly and groin; back and loins; arms; hands and fingers; thighs and legs; feet and ankles.
The proposed convergence of biometric information with financial and personal data such as residence, employment, and medical history heralds the beginning of the demolition of one of the most important firewalls in the structure of privacy. Such convergence of databases poses a threat to minorities and political opponents as they can be targeted in a situation where government is led by any Nazi party like political formations.
Late Roger Needham, a British computer scientist aptly said, “If you think IT is the solution to your problem, then you don’t understand IT, and you don’t understand your problem either.” It sounds like he was addressing this observation to gullible citizens, political class and the likes of Capt Raghu Raman, the CEO of NATGRID Grid, Sam Pitroda, the head of Public Information Infrastructure and Innovations, Nilekani and C Chandramouli, the Registrar General of India for National Population Register & Census Commissioner.
Safeguarding of citizens' privacy and their civil liberties in the face of an unprecedented onslaught from collection of biometric data and other related surveillance measures that are being bulldozed by unregulated and ungovernable technology companies by overawing the Governments through its marketing blitzkrieg is emerging as fight between the David and the Goliath. Database State cannot be the aim of any democratically healthy government. It is an exercise in outsourcing of government through technologies that govern individuals to admittedly undemocratic entities wherein biometric identification is being made a pre-condition for citizens to have any rights.
In effect, right to have rights is all set to be made dependent on being biometrically profiled and not on constitutional guarantees and Universal Declaration of Human Rights. This is a regressive step that takes citizens to pre-Magna Carta days (1215 AD) or even earlier to the days prior to the declaration of Cyrus, the Persian King (539 BC) that willed freedom for slaves. Should it not be resisted?
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)