By Kam Sandhu @KamBass
Since the Indian government introduced and accelerated its national biometric ID scheme – now the largest biometrics database in the world – Usha Ramanathan, a law researcher, has become engulfed in a subject she never thought she would be poring over; privacy.
In August, Ramanathan was part of a group of activists, advocates and legal professionals who won ‘the fundamental right to privacy’ for Indian citizens in a Supreme Court case against the Indian government. Petitions challenging the various reaches of Unique Identification (UID) or Aadhaar, remain with the Court meaning the case is not over. The final decisions are expected before the end of the year.
Despite some coverage of a mass surveillance project underway in India, the story has failed to receive much traction outside of the country, despite the drivers having relevance worldwide, says Ramanathan;
‘These are not interests that have been locally generated. These are corporate interests that transcend boundaries, these are multinational corporate interests and interests that are relatable to intelligence agencies and governments having interests in other governments and people.’
To many citizens, India has been the home of an experiment. A poor country, where new monetary value can be realised from the population, in a century where humans have become the product;
‘Data as they keep telling us now is the new oil. So if the 20th Century was dominated by oil, this Century is going to be dominated by data. But if we thought it was only about data in terms of understanding the world around us, the market now demands new products, and human beings have become that product. We are now generating data and Mr Nilekani calls it the ‘Trickle Up Phenomenon.’
Nandan Nilekani is an Indian billionaire, entrepreneur, and co-founder of the multinational ‘digital transformation and IT company’ Infosys. He left the company in a ‘blaze of glory’ and international success almost a decade ago. Nilekani then took up the role (2009) of Chairman of the Unique Identification Authority of India (UIDAI) – the custodian organization for citizens’ biometric ID.
Nilekani has been vocal about the threat of ‘data colonisation’ – calling for Indian politicians to guard and challenge against data mining and profiting by GAFAM (Google, Apple, Facebook, Amazon, Microsoft). It is not hard to understand this sentiment. However, Ramanathan argues this has only led to ‘colonising ourselves’ rather than protecting citizens’ value.
FinTech (financial technology) has become one of the prominent industries trying to cash in on the new data yield. With access to information through the expanding UID, FinTech companies can begin creating credit assessments of citizens and promote access to loans and funding.
“The way it’s being said now, when it started it was, what we have is data, and we leave digital footprints and those digital footprints FinTech companies for example will be willing to provide us services without asking us for too much in terms of transaction fees but they will just ask for our detailed information about ourselves and then they can give us credit. So credit became the key to explaining why they needed to get to that data. So today when they say trickle up, they say well if you only have data about yourself, give it to us, you will get something in return.
The opportunities can be positive; millions have no bank account in India, and rural obstacles can be overcome with technology. Schemes like Aadhaar Pay have been promoted as ‘financial inclusion.’
But ‘in the definition of financial inclusion you have financial literacy,’ says Ramanathan, whose criticism comes largely from the coercive tactics used to push the population onto a system they do not understand, without knowledge of the long term consequences.
UID was introduced in 2009 as a free, voluntary tool to aid welfare provision and access to government services. Its rapid expansion has been supported by the Narendra Modi government under who, the ID has become mandatory in over 50 welfare services. For government there is the benefit of surveillance from the scheme and numerous identifiers have been added to the UID, including marriage registry, scholarships and education, quickly creating, amongst India’s 1.3bn citizens, one of the largest mass surveillance projects so far.
Other motions to ‘sell’ the expansion of the scheme to the public have had less tact. Attorney generals defending the government at the Supreme Court said privacy was a ‘western’, ‘elitist’ ideal, which citizens in a poor, developing country like India could not have.
Ramanathan instead argues that developing countries with less robust democracies have been targeted aggressively, and research confirms this for biometric ID schemes.
“It’s a kind of attrition, aggression, you don’t see in democratic states. And a kind of coercion you would never see in a democratic state. So it is saying that we have power and we can penalise you and we can paralyse you so you better do our bidding or else.
“I understand to a certain extent when technology comes there’s this excitement. But at some point you have to pause and see if it’s okay or not and if it’s okay for a state to function like this. That pausing never happened.
“Even the corporates don’t know the various ways in which they will use the information, but having all of this information, this data, gives them opportunities to create ways in which they can use the data. So the first thing is databasing; seeding it in different databases. Creating the potential to converge all this and then we’ll see how we use it. One thing that has already started happening in a big way is exclusion.”
The UID uses fingerprints, iris scans and facial recognition. There has been talk of DNA use previously. However, due to high levels of manual labour across India, fingerprints – which are the most common verification element – can change over the course of hours and days, causing failure rates regularly over 35%. This can bar citizens from collecting the welfare or government provisions the ID promised to make more efficient. Rural jobs have particularly suffered with fingerprint matching, while iris scanners have not been used on sites due to cost. Despite these failures and the creation of a Unique Biometrics Centre of Competence (UBCC) to deal with the ‘diversity’ of India’s population, Ramanathan says the advocates of the scheme will not admit the problems, nor release reports on the failure concerns.
“Biometrics was an experiment on a whole population and we realised early on that biometrics is not a workable proposition at all. Definitely not in India, because 51% of the population does manual work, there’s no way that kind of thing is going to work for them.
“You know it amazes me that there is biometric failure all around, people are unable to get their rations, and you haven’t had a single acknowledgement from anybody who wants to push this project. Instead what you have is activists who have gone and seen, recorded and brought all of this before them. And you have the UID chief saying this is all mala fide. These people are doing it deliberately to defame the project. Usually you have a lot of ethical hackers who will help you find flaws in your system, but here if you point out any flaw you become the enemy. Denial does not come if you care about a public and I do not expect Nilekani to care about the poor of this country but surely the people sitting in government should.”
On October 28th The Asian Age reported the story of Santoshi, a young girl of 11, who had died in Jharkland after Aadhaar failed to link to a ration card for food the family sorely needed. The area, like many places across India writer Antara Dev Sen noted, was ‘barely touched by electricity or connectivity’ and yet demanded technological competence from some of the poorest. Another citizen, Rooplal Marandi, 75, also from Jharkland ‘died because biometrics machines failed to read his daughter’s fingerprints,’ and had refused the family their food rations for two months.’ The fault these families carried, Dev Sen writes, was being ‘born very poor in a country that is now too posh to care about the poor.’
Despite being a scheme that was originally marketed as a benefit to the nation’s marginalised, these problems persist. And it has not stopped the aggrandisement of the scheme and its advocates internationally.
“The World Bank has documents that say if you try to deliver services to people through an ID system, 40% of the poorest will fall out of the system. They have a document to that effect.
“I think the World Bank Institution will try and push it in the developing world. One of the times when Nilekani spoke at the World Bank – that’s on their website now – and the President of the World Bank was present, he was excited beyond words. He said ‘are you telling me that if there is a woman at an ATM in Nairobi and she is using the ATM with her biometrics, we will not know what transaction she’s done but we know that she is there at the ATM at that time?’ And the answer of course was yes and there was full excitement. And we’ve learned since that in Africa for instance, any project that goes to the World Bank, you now have to have an identity project that goes along with it. That’s what we hear.”
As Aadhaar expands, its reach is going beyond the nation’s poor. A requirement to link tax records and bank accounts has seen the middle classes experience the coercion of the scheme for the first time, Ramanathan says;
“Not only do they say that we will not give you welfare if you do not come here and give your biometric ID at regular intervals and it does not work, but also if you want money and you put it in a bank – which is the only way you can keep the money – I will freeze your account and not let you access your own money if you do not put the number in. You will not be allowed to continue with your mobile phone if you do not have your (UID) number linked to your SIM card. So the threat level has just shot up.
“One of the things is the taxpaying, law abiding people are feeling the most threatened, because they are being told now that unless you put the number in, and the number works, you will not be able to pay your taxes. So around me I am watching people who are used to being law abiding, and they are frantic that they will not be able to be law abiding. So government is pushing people to a point where you cannot be law abiding unless you are going to make a slave of yourself to the state. Which you might be willing to do but you may not manage to do because the system is deeply flawed.”
The use of mobile numbers for ‘seeding’ has increased, amid failure rates of biometrics. The government is moving to eventually disconnect any SIM cards not linked to UID. These mobile numbers are then used to log presence (or lack of) in different sites, to build a complete profile. For example, attending court could require the use of your phone number upon entry;
“There is something like 111 sites where they want us to put these numbers. It’s the kind of thing where the UID derives its own ethical language that we don’t keep. We don’t collect on caste or religion or income or medical records but then you put this number in every database so that you can actually converge all that using this number. So that’s open and ugly.”
During the quick escalation of the scheme, the change from a positive voluntary policy to ‘ugly’ mandatory breaches of privacy and rights has been little articulated. Here the court case has forced the government to admit how far they would like the scheme to go and how this interacts with the agency of the population. Being forced to say this on a public stage has created some dramatic moments at the Supreme Court, which have ultimately helped Ramanathan and her peers’ case;
“The attorney general said not only that there was no fundamental right, but there was no right to privacy, so that was one dramatic moment when the whole course changed in the public eye.
“Then of course earlier this year he helped us further by telling the court what makes them think they have the absolute right over their bodies. Now the point about these questions as we quickly realised is not that the question is being asked by the wrong person and therefore the question itself was wrong. Plainly the question was not why do you think you have a right to privacy, but why does the state want to take away our right to privacy and it’s not about having an absolute right over our bodies, why does the state feel they need to deny it.
“And then of course somewhere along the argument, the attorney general also said they were arguing about the right to be forgotten and the attorney general said, you may want to be forgotten but the state will never want to forget you. It was plainly telling us that here we are, we have power over you and we will use that power to keep you where we want you.”
Ramanathan is thankful to the attorney general, but admits there are many areas yet to tackle;
“What the attorney general has done for us and we are grateful to him for it, is help, had it referred to a nine judge bench, and had a nine judge bench give us a really strong privacy right. So I don’t think we would have been able to achieve this on our own, we needed the attorney general to do us this service. There is gratitude to him for having pushed us this far.
“Now that that is established, the UID case itself, only an element of that is located in privacy. There is a whole host of other issues that are involved in this. Some of which have a reflection of privacy too. For instance surveillance, profiling and tracking. A lot of it has to do with the nature of state power, the constitution. Not the power of the state over a people, but being about the limits of power of the state over a people. That is one of the central themes in all of this. And the idea of coercion, of lawlessness, the extent of rampant lawlessness of the state has been amazing in this process. And the companies that are involved in all of this. So there is a multiplicity of issues.”
Ramanathan remains aware of the government’s movements in the time before the final decisions of the case. She believes achieving ‘fait accompli’, so 99% of Indians are on the scheme before a decision is handed down, is a possibility given previous aggression by government. Though, petitioners sought assurance in 2015 that this would not be acceptable.
In other ways, the issues of data, surveillance and privacy are rearing across the world. In the Financial Times, a suggestion of minimum global privacy regulation was mooted in response to the various ways companies are exploiting populations. Does Ramanathan think this would work?
“You know I’ve been working on business and human rights ever since the Bhopal Gas disaster. I watched how close to impossible it is to have any kind of binding standards when it comes to corporations. International standards I don’t see them as the route for us. If it comes, that’s fine. But we know how long it took to get an International criminal court. And we know how difficult it is to get that International criminal court to function. We know the power of the multinational corporation, so I am not sure that is going to be an answer.
“I think global principles are very good because then we are able nationally to draw on them to get national standards, but I don’t expect such standards that are linked with liability coming in the International sphere anytime soon and being enforced. So I wouldn’t put all my apples in that basket.”
Still, as Ramanathan explains more about Nilekani, issues regarding tech elites here in the UK and US do not seem too different.
“He said one year ago I knew New York better than any town in India – I’m not sure that it’s very different now. They all came to this little village in Rajasthan where the Prime Minister, Sonia Gandhi, Nilekani, they flew in in helicopters behind the stage. Some got driven in others came in. They talked, and 200 metres away from the people they got down and they left. How will you even know the people of this country?”
Nilekani has now returned to Infosys, amidst some embarrassing top level arguments which have left the company without a CEO. He said recently that the company is back to ‘being boring’ and on the right track. But according to Ramanathan, Nilekani has not stopped making business for himself. The creation of a Goods and Service Tax Network has seen Infosys handed a large public contract, and even more data of every company across India;
“There is another project that has gone alongside this called GSTN (Goods and Service Tax Network) – GST (Goods and Service Tax) was brought in so there would be a common market – it was to facilitate the market. That’s a different conversation. But they have a GSTN.
“That GSTN was set up on the basis of a report in 2011 by a committee of which Mr Nilekani was a chair, called the TAG UP committee – the Technology Advisory Group on Unique Projects.
“You can see multiple YouTube talks by him where he says he helped set up the GSTN system, which from the smallest to the largest [company] has to report to this system. It’s not about annual reporting or whatever. Every invoice has to be uploaded onto the system, because they’re going to be doing the taxation through this system.
“The way that they described it there, was that seeing as government are incapable of dealing with the amounts of data they have, all the data should be handed over to private companies set up for that purpose. These would be private companies set up which will act in the public interest. They will make profit but not maximise profit. They will naturally be monopolies as they will handle all government data, but if companies want to come in for competition, that’s fine.
“The Finance minister said the GSTN would be, they’re called national information utilities. The idea is they will create products and services out of the data they get through the use of algorithms and they will be able to see, it will be like a panopticon and continuing view of what is happening in parts of the country and every month you have to report to them. Everything you do has to be reported to them.
“They have given a huge contract to Infosys to which Mr Nilekani belongs. Infosys recently had a collapse of sorts, and Mr Nilekani has now gone back at Infosys to set things right for Infosys. The contract for GSTN is sitting with Infosys, and Mr A B Pandey who has worked with UIDAI and Nilekani since 2010, he has been given additional charge of the GSTN.
“Now if people can’t see conflict of interest and all kinds of problems in this then I don’t know where we’re going to see it. So this UIDAI and of course GSTN requires you to put your UID number in that.
“I think Shakespeare got it right when he said ‘they are all honourable men.’ All these are honourable men, so you can’t say anything against them. Otherwise you’re defaming them.”