Will Digital ID help Stateless People? The Threat of Digital Administrative Violence
European Network on Statelessness
Everyone has the right to a nationality.
By José-María Arraiza , Independent Scholar
The rise of digital ID systems presents opportunities and risks for stateless people. While developing nations adopt digital IDs, those without proper documentation or recognized nationality are left behind, challenging the promised inclusivity of these systems. This blog post explores the intersection of digital identity and statelessness, questioning the efficacy of digital IDs in promoting inclusive development and calling for engagement with stateless communities in the design and implementation of these systems.
National identification and related public services are going digital, and so are some of the obstacles faced by stateless people. During the last two decades there has been a massive introduction of digital IDs around the world. Several countries, including throughout Europe, are progressively incorporating digital functions and tools into their national identification systems and developing broader digital trust services infrastructure (e.g., eIDAS in the European Union), although not without controversy. Some countries have used biometric ID systems, such as Aadhaar in India, to lead the way for others to “leapfrog” traditional stages of development and move forward rapidly through the adoption of modern systems. The problem is that not everyone is included in such a leap. Systems are mostly designed for people who already have documentation and a nationality.
Meanwhile, undocumented persons and/or those with no recognized nationality are not yet ?benefiting from digital transformation. This is despite the fact that the countries where digital ID systems are supposed to be of greatest benefit are hosting the most undocumented and/or stateless persons. As borders are crossed, people on the move are questioning utopian digital visions. Democratic backsliding, coups d'état and the use of digital IDs by illiberal regimes are also curbing Digital ID enthusiasm.
A New ID Paradigm?
Digital ID projects, including biometric data management, have successfully been framed as a potential solution to address the lack of legal identity of millions of people (i.e., achieving “legal identity for all”, as articulated in Sustainable Development Goal 1.6.9). They are also a great business opportunity for tech companies, moving billions of dollars. The emerging identity model shifts its traditional center from civil registration towards an economic transactional digital identity, part of broader digital public infrastructure. Its functions go well beyond the “old” identification systems as it creates a door into a variety of digital public services and market spaces. Digital ID enjoys the allure of technology: it sounds attractive, innovative, and promising. But will these digital identification systems really help to address the legal identity problems of undocumented and/or stateless populations and other vulnerable groups? Will they succeed in promoting development and inclusion? Which risks to they create that States will abuse their control over people’s movement? Or are they paving, as some are arguing, a “digital road to hell”? Why are digital IDs necessary to begin with? If digital transformation in identification is unavoidable, what are the key safeguards?
Policy Shifts Needed
The lived experiences of users are telling us that while digital legal identification systems can be positive tools for development they are also a high-risk territory for human rights protection, including the protection of the right to a nationality. Examples are abundant: in Uganda, an inadequate enrolment process has led to mass exclusion from the Ndaga Muntu ID scheme. Its mandatory nature hampers access to public services (especially for elderly and other vulnerable groups). In Pakistan, similar problems are reported about the Computerised National ID Card (CNIC). Moreover, the CNIC incorporates patriarchal assumptions on how families should look like, hampering the rights of single mothers and LGBTQ.
Sometimes, human rights actors are litigating in courts the worst aspects of these systems. Kenya’s Huduma Namba system was first challenged by the Nubian Rights Forum in 2019 on privacy and non-discrimination grounds, which delayed its implementation. A second challenge, this time by the Katiba Institute and Yash Ghai, led to the suspension of the programme by the Supreme Court in 2021 for violating the right to privacy. The court saw the governments’ mass data collection as a breach of data protection legislation, literally “putting the cart before the horse”. The new proposed system, Maisha Namba, is also facing criticism. Earlier on, in India the Supreme Court, in light of Aadhaar’s mass biometric data collection recognised privacy as a fundamental right and required a “robust regime of data protection”. In 2018, the court upheld the constitutionality of Aadhaar, but struck down its mandatory use where fundamental rights are threatened.(e.g., in school admission). In Jamaica, the Supreme court ruled in 2019 that the National Identification and Registration Act was unconstitutional, as mandatory biometric registration violated privacy rights. More recently in Uganda, three Civil Society Organisations have sued the government claiming the mandatory reliance on Ndaga Muntu excludes elderly from social welfare benefits and hampers women’s access to health.
These rough judicial journeys exemplify the troublesome relation of digital ID’s with human rights. They point to the need for a policy shift: to move from the current rush for mass identification towards more contextual models based on the principles of inclusion and human rights protection, including the right to a nationality.
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Replicating Statelessness Digitally
There are at least four key problems with digital IDs and statelessness. First, digital ID systems continue to amplify the exclusion of vulnerable groups, including stateless persons. Not only in terms of nationality: often, public services such as health are made conditional upon enrolment. Isolated communities and other vulnerable groups can be affected by over-reliance on digital technology and biometrics. Secondly, vulnerable groups have systematically been excluded from participating in the design of digital identification systems. Third, these systems can easily be weaponized through surveillance and repression. Fourth, administrative and judicial remedies against rejections (and from a broader fair trial perspective) can be hampered or diluted by digitalization.?
Inescapably, legal identification systems are interwoven with citizenship laws. Normally, digital IDs are restricted to nationals and ultimately constitute citizenship markers. The digitalization of an identification system does not imply that the legislative gaps or discrimination – often a colonial legacy – are solved. Hence, digital ID replicates statelessness digitally. This is what has happened for example, to the Nubian populations of Kenya, who have the same problems with the new digital systems as those they suffered analogically. In Europe, undocumented Roma in Serbia, for example, are at risk of marginalization under the digital “social card”. Similar patterns affect many minorities, such as ethnic Haitians in the Dominican Republic, ethnic Bengalis in Assam (India), Rohingya in Myanmar, and others.?
Digital Administrative Violence
Digital IDs are clearly a double-edged sword. While they can make services available to the individual in ways which were unthinkable a few years ago, they can also separate the individual from the state, becoming more opaque than ever. Who can one complain to if a fingerprint reader does not work? Can a user even get to know the reasons behind a digital rejection? How will evidence be presented in complaints? Can a digital gatekeeper or a chatbot be as accountable as an administrative official?
The new systems, as gatekeepers, open Kafkian opportunities for digital forms of administrative violence. What kind of obscure digital doors will be closed for stateless people who are waiting for justice before the law?? How will such digital bureaucratic black holes be avoided? Prior to the irruption of digital ID, deprivation of nationality has been often exercised through the administrative violence of bureaucracy: procedures are implemented discriminatorily. Technology makes such practices even easier to enact and harder to monitor, identify, and to complain against. The 2021 Dutch tax authority scandal, where xenophobia was built into an algorithm, is a telltale example. Exclusion, blocking individuals, and closing pathways to citizenship may be at the tip of a finger. Digital technology may therefore be the ideal foxhole to hide discriminatory practices.
Participation in Digital Public Infrastructure (DPI)
The UN has acknowledged to some extent the challenges ahead in relation to Digital ID and other public services in what has been termed “Digital Public Infrastructure” (DPI). There is a UN High Impact Initiative on Digital Public Infrastructure which follows the principle that DPI must be “people-centric and respect human rights and fundamental freedoms”. Hence, the UNDP and the Office of the Special Envoy on Technology launched in September a promising initiative, though somewhat undefined, the Universal Safeguards for Digital Public Infrastructure. The UNDP has also released a Governance Framework for Digital ID, a self-assessment tool which includes questions on whether states have put forward measures to prevent childhood statelessness and should raise awareness amongst policy makers.
All these initiatives will need a reality check if they are to succeed. To overcome the initial magnetism and seductiveness of technology, policy makers will have to listen to the lived experiences of users and face the realities of a quasi-dystopian world shaken by seemingly endless conflict, displacement, climate change, and poverty. Stateless people need to be engaged in the making of digital ID systems if these are to be genuinely inclusive.?
Moving from Mass Identification towards Protection and Inclusion
Digital ID cannot automatically help stateless people enjoy their rights. Digital ID systems will help prevent and address statelessness if policy makers lay aside the rush for mass identification and pay more attention to protection and inclusion. Inclusion and addressing/preventing statelessness need to be firmly entrenched in digital ID. Specifically, in relation to statelessness, governments should ensure that:?
These?measures also require political will, advocacy, capacity building, and strategic litigation efforts. Recent initiatives, such as a civil society coalition for digital ID and human rights, are working in this direction. However, legal identity for all will only be possible with systematic and coordinated efforts that focus on the protection of stateless people as well as their identification. Let us hope that unlike in Kafka’s “Before the Law” tale, the doors to justice assigned to stateless persons do not remain closed for too long.