National Digital ID programmes are being deployed worldwide to facilitate inclusionOGP participating governments are working to create governments that truly serve all people. Commitments in this area may address persons with disabilities, women and girls, lesbian, gay, bisexual, tr... of marginalised communities, and ensure more effective and open governance through efficient delivery of government services and welfare measures, reduced corruption, and preservation of national security. In many national identity programmes, the mandatory collection and storage of biometrics is pushed as the primary solution to establish and authenticate identity (particularly in developing countries with weak civil registration systems). These raise concerns around privacy and surveillance, and a potentially adverse impact on civil liberties. Centralised databases of sensitive information are also targets for cybersecurity attacks. Amidst the global push for national digital ID programmes, it is critical to adopt a rights-based approach and incorporate safeguards during their development and implementation.

One such example is the National Integrated Identity Management System (“Huduma Namba”), set up in Kenya as a foundational identity system to create a biometric population register for citizens and residents and act as a “single source of truth”. The questions raised by our evaluation framework are reflected in the litigation challenging it. For instance, while deciding the constitutionality of the Huduma Namba system, the Court stalled its implementation until an “appropriate and comprehensive regulatory framework” could be enacted. Echoing one of our first tests in the framework, the Court acknowledged that “a law that affects a fundamental right or freedom should be clear and unambiguous.” Our framework is intended as a series of questions against which such digital ID programmes may be tested. We intend for it to inform the trade-offs that must be made to ensure that rights are adequately protected and harms minimised at every stage. It comprises three kinds of tests – rule of law, rights based, and risk based.

Rule of Law Tests

The use of Digital ID by state and private actors requires a rule of law framework to prevent misuse of the system for purposes outside its intended scope. Digital ID systems must aim to meet basic rule of law parameters, such as that of legislative mandate. Digital ID, by its very nature, can potentially violate an individual’s right to privacy and free speech. Any potential infringement of these rights must be sanctioned by a statutory law passed by the appropriate legislative body and not merely an executive instruction. This law must be accessible to all persons who may be impacted, and sufficiently precise as to limit discretion and prevent executive abuse. It must have a legitimate aim, to which all the purposes for which the digital ID is used must correspond. All actors and purposes that arise from this legitimate aim must be clearly identified, as well as how it applies to State and private actors. Potential mission creep should be mitigated by clearly expressed purpose limitations backed by law, to ensure that the executive authority cannot use the digital ID for unspecified purposes without a proper legislative or judicial examination of additional uses, or fresh consent from users. The law must also provide ex-ante and ex-post accountability measures.

Rights Based Tests

Digital ID inherently involves restrictions on certain fundamental rights. At every stage of the project, each aspect of the identity framework must be examined against the rights it may violate, and if these violations are necessary and proportionate to its potential benefits. This is important because failure or absence of identification can lead to exclusions from basic entitlements. Principles of data minimisation must clearly dictate the amount and nature of data to be collected and stored. Access control mechanisms that regulate access to data by different actors must be laid out in the surrounding legal framework and enforced through strict civil and criminal penalties for any violations. Exclusions arise out of not only poor implementation, but also design flaws in the system. If the intended use of ID can lead to denial of services, mechanisms must be employed to ensure that individuals are not deprived. Most importantly, digital ID must not be mandatory to access benefits, and multiple alternative identification mechanisms should be provided. An opt out option that does not restrict access to the service, and mandatorily erases collected information must also be provided.

Risk Based Tests

A digital ID system must account for any potential harms. This approach to privacy requires that the system be examined against tangible risks to individuals, allowing the administrator to prioritise risks in order of severity and respond accordingly. These risks can be classified into privacy harms, exclusion harms and discriminatory harms. A differentiated approach to governance would involve categorising various uses of digital ID as per se harmful (which can be prohibited outright), per se not harmful (which can avoid regulationGovernment reformers are developing regulations that enshrine values of transparency, participation, and accountability in government practices. Technical specifications: Act of creating or reforming ...), and sensitive (where regulation is based on various factors). The risk level arising out of a digital ID is measured in terms of severity and likelihood. These harms must then be proportionately addressed by law. Threats to the ID system can be analysed based on its uses, with a wider number of uses resulting in a higher level of risk. If the risks arising from the system are demonstrably high, mechanisms to restrict use must be employed until mitigating factors are introduced. Mitigating strategies would include notifications in case of breach, having a tested business continuity plan and increased capacity buildingEnhancing the skills, abilities, and processes of public servants, civil society, and citizens is essential to achieving long-lasting results in opening government. Technical specifications: Set of ac.... The choice of strategies depends on the design of the ID system and its reliance on private entities for different functions.

Recommendations

As policy areas like digital governanceAs evolving technologies present new opportunities for governments and citizens to advance openness and accountability, OGP participating governments are working to create policies that deal with the ... continue to grow within the Open Government PartnershipThe Open Government Partnership (OGP) is a multi-stakeholder initiative focused on improving government transparency, ensuring opportunities for citizen participation in public matters, and strengthen... More, OGP members have a unique opportunity to adopt a rights-based approach and incorporate safeguards during the development and implementation of their digital ID programmes. Our framework highlights some clear steps that governments must take. 

1. The consultation process at the planning stage of the programme must be inclusive, participatory and transparent in its proceedings. 
2. The scope of the proposed system must be clearly defined, stem from a legitimate aim and operate within a clearly defined legal framework. 
3. Every aspect of the system must be measured against its potential impact on fundamental rights, and whether this is necessary or proportionate to its apparent benefits.
4.  A differentiated approach to risk with mitigation strategies for potential harms according to their severity must be employed from the outset.
5.  A robust and independent grievance redressal mechanism is crucial to ensure accountability. 
6. No ID should be made mandatory, as this may further perpetuate the exclusion of already marginalised communities. 
7. Mechanisms should be implemented to ensure that no one is deprived of entitlements due to lack of identification. 
8. Since digital ID programmes create an inherent power imbalance between the State and its residents, it is important to ensure that the benefits they promise do not lead to hasty implementation without a rigorous evaluation.

This blogpost is based on “Governing ID: A Framework for Evaluation of Digital Identity“ by Vrinda Bhandari, Shruti Trikanad and Amber Sinha.