The involvement of the executive in the implementation of the data protection
law by the data protection authority which might be already compromised
removes any doubt about the independence of the DPAs to supervise and
enforce data protection law.
4.6 Digital identification systems (DIS)
According to the World Bank about 1.1 billion are without identification
documents, with an estimated half being in Africa. The Sustainable
Development Goal (SDG) 16.9 intends to ensure that everyone has legal
identity including birth registration by 2030. To respond to this challenge, the
World Bank launched an identification for development effort, though there are
several challenges with the DIS. In most countries, there is a notable absence
of comprehensive frameworks enforcing data subject rights and mitigating
against abuse of persona data. Since DIS are based on large data sets and
integrated systems, the abuse of data usually occurs through surveillance,
profiling and attended discrimination. The combining of data sets, means data
subjects have limited control and knowledge of how their information is being
used, including inability to correct inaccurate data, and access personal data. In
addition, due to the cross-border data transfers, DIS presents unique
challenges of interoperability, enabling data subjects capacity to access
services and enforce their rights across borders. This means that DPAs across
regions, and borders must be capable of protecting transnational data subject
rights. Furthermore, sufficient technical and organisational measures and
safeguards are required to protect against unauthorised access. Data
Protection Authorities must be involved and be aware of the many stages and
steps of development of DIS. This means they have to be active or at the least
aware of each data cycle point. From data capturing, DPA must enforce the
principles of data collection such as purpose specification. On data hosting,
credentials, and services, the DPA must be capable of enforcing the rights in the
data protection law.
Globally, DIS has been touted as social protection solutions and access to
services. For instance, in India the Aadhaar system is a 12 number
identification issued to 1,3 billion people after collection of demographic and
biometric information linked to personal data such as voter card, passport,
driver's licence, bank account, utilities (electricity, gas) mobile phone,
education and property. This integrated system presents major risks for data
privacy even though it might be advancing other rights. 67 By their very nature,
DIS are dependent on large data sets, within public and private sectors.
The constitutionality of the Aadhaar system in protection of the right to privacy was challenged in Justice K.S. Puttaswamy Retd. and Another v.
Union of India and Others Writ Petition Civil No. of
. The majority bench found Aadhaar to be constitutional with a few amendments. The
court decided on the constitutionality by weighing privacy rights with other rights, finding that while privacy was important, the Aadhaar system
advanced other rights such as dignity, and welfare, which were equally important.
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