NIDS, The first attempt – Why did it fail?

Contributor(s), Nickardo Lawson

 

  1. A comprehensive national identification system (“NIDS”) by which each Jamaican is uniquely identifiable has been lauded by many because it potentially affords the government a clear view into the population, enabling accurate assessment of our needs and to target and deliver attendant social services to us more effectively, achieve greater returns on social investments, and monitor money and resource flow across the country. It may also function as an aid to the detection of crime.
  2. The Government’s first attempt at NIDS by way of the National Identification and Registration Act, 2017 (“the Act”) became law on December 8, 2017 but without a date fixed for its implementation. The implementation of the Act was quickly challenged. It was argued that major aspects of the system that it sought to establish would likely infringe upon the Claimant’s constitutional rights and freedoms and indeed, that of every Jamaican. The Court, upon review, struck down the Act. The Government went back to the drawing board and devised a new system by way of the National Identification and Registration Act, 2020 (“the 2020 Bill”).
  3. Given the current national discussion about what NIDS will mean for us as a nation, this author proposes to offer some insight into why the 2017 Act failed and in Part 2 of this article will then provide an analysis of the 2020 Bill, as presented, to determine whether the new proposed system has fixed the problem.
  1. It is important that the reader understands that the Constitution is the supreme law of Jamaica and the standard by which all other laws are judged. The Constitution contains a body of rules which guarantee certain fundamental rights to each Jamaican. As is relevant to this article, some of these rights include the right to privacy (physical, informational, and choice) equality before the law, the right to liberty and security of the person.
  2. The 2017 Act enacted a system which applied to all Jamaicans and all persons ordinarily resident here. By this system, your sole means of identity was through mandatory enrolment into a database and the issuance of a national identification number (“NIN”) and a national identification card (“NIC”). This system of enrollment did not apply to foreigners doing business in Jamaica.
  3. Further, the scheme compelled all Jamaicans to submit biographic, biometric and demographic information including your full names, date, time and place of birth, full names of your parents, gender, height, place of residence, mailing address, nationality, marital status, the full names of your spouse, the date and place of marriage. If deceased, date and place of death and the age at the time of death (it is unclear who is to submit this information on behalf of the deceased person). Further, you were required to provide your photograph or other facial image, your fingerprint, eye colour, manual signature, retina or iris scan, vein pattern (if not possible to collect), your foot, toe and palm print. The database may also include any distinguishing feature, and your blood type. Finally, you were required to submit your employment status, your race, religion, education, profession, occupation, address, matrimonial home, and telephone number.

Requiring only Jamaican Citizens and ordinary residents to enroll

  1. Not surprisingly, the Court found that the fact that only Jamaicans and persons resident in Jamaica were required to produce a NIN and NIC to gain access to goods and services provided by the state without a corresponding requirement for foreigners to do the same, unfairly discriminated against Jamaicans. No valid reason was advanced by the government for creating this distinction which clearly made doing business on our own island more onerous for us when compared with foreigners.
  2. The system also did not say that should the Jamaican have other forms of reliable identification then the public body is still to facilitate access to goods and services it offers. If the system directed at ensuring that the person seeking to gain access to goods and services of a public body is who he or she claims to be then there is no rational reason, the Court noted, to exclude other forms of reliable identification. It cannot be that the only way a person can identify himself is by way of the NIN which in turn requires enrolment. A major failing of the system is that the public body is not given any discretion in relation to Jamaicans but undoubtedly has such a discretion in relation to foreigners.
  3. The Court also concluded that coercing all citizens to obtain a NIN and a NIC by depriving them of public services if they do not, is disproportionate to any benefit to be gained. Accordingly, the Court held that those requirements infringed the rights to privacy and the liberty and is not justified in a free and democratic society and so could not be allowed to stand. The Court also found that it also infringes the right to equality before the law.
  4. Obviously if one chooses to access public services it is normally necessary to satisfy that entity of one’s identity so that is not the root of the issue. The system is unconstitutional because it purports to make a national identification card or number the only method of verification of identity.

Criminal Prosecution

  1. If you failed or chose not to enroll you would face criminal prosecution. The risk of prosecution was not once and for all but continuous because non-registration was a continuing offence and so a single prosecution did not mean that the person would not be prosecuted again if he or she refused to enroll.
  2. The Court found that imposition of a criminal offence for failure to enroll offends the right to security of the person and privacy. These rights, the Court noted, reflect, and are integral to, the dignity of a person. The 2017 Act compelled persons to divulge information personal to them- it is the right to choose, whether to share personal information, which individual liberty in a free and democratic society jealously guards.
  3. This author agrees with the court that the mandatory nature of the requirement as well as the breadth of its scope, and the absence of a right to opt out, are not justified or justifiable in a free and democratic society. The Court rightly observed that “if it is intended to prevent corruption or fraud, then it is premised on the assumption that all Jamaicans are involved with corruption and fraud”. This is obviously irrational. The danger of abuse by the state or its agencies, and the removal of personal choice, outweigh any conceivable benefit to be had by the community at large.

Disclosure to Third Parties

  1. The Court found that the aspects of NIDS that permitted third parties to access your personal information without your consent amounts to a breach of your privacy rights. The 2017 system allowed for disclosure of all identity information in broad terms. For example, in relation to crime, the regime permitted disclosure on any individual upon an order of a judge without that individual being afforded the right to be heard and to challenge that disclosure. Other countries including India, permit the person whose information is to be disclosed, a fair hearing before a decision is made to release their information.
  2. The 2017 system did not provide sufficient safeguards against misuse and abuse of the data collected. There is no independent oversight body that is mandated to conduct an audit of the body which the Act established to collect and keep your information or to take action where it is found that employees of that body individually, or the body as an institution, has disclosed your personal information.
  3. Clearly, there must exist a mechanism to access the data generally, but any such mechanism must suffer the most stringent controls to prevent abuse and impact the right curtailed as little as possible. The 2017 system had no or no adequate protections thereby failing at the bare minimum. In addition, no justification was advanced showing why third parties need to have access to the data stored.

Data Minimisation

  1. Plainly, the Government was unable to justify that the information required to be collected as set out above, was necessary to identify persons. As well, the Government was unable to show all reasonable steps were taken to ensure that the right to privacy had been violated as little as possible. There is no evidence that the concept of data minimisation, which is the concept of taking no more than is necessary to meet the objective of the NIDS. The Court therefore concluded that the information that the system required to be collected amounted to an overreach without justification.

The Right to a Passport

  1. Under the 2017 system holding a NIN was a prerequisite to holding a passport. So that if you refused to enroll you would not only face criminal sanctions but would not be able to access a passport. The Court found that the requirement of a NIN is disproportionate and so harms your right to access a passport. The government was unable to advance a justification for this except perhaps administrative convenience and the Court rightly held that convenience is not a sufficient reason to violate your right. In addition, insofar as it is a prerequisite to the right of a passport, it directly impacts freedom of movement since a passport is required to travel out of Jamaica.

Conclusion

  1. The Court also commented that the system as envisaged, could possibly lead to commercial exploitation of personal data and profiling without consent. Profiling can be used to predict market behaviour and preferences and even influence the outcome of national elections. These are contrary to global privacy protection norms.
  2. Simply put, the Government went too far in its first attempt and in this Author’s view, the Court was correct to strike down the system in its entirety. However, given the obvious benefits of NIDS, what are the suitable alternatives available to the Government to achieve the same outcome? Part 2 of this article will offer an in-depth analysis of the Government’s attempt to remedy the shortcomings of the 2017 Act.

 

This article is intended to provide general information only and is not to be relied on in place of legal advice.

Mr. Nickardo Lawson is an Attorney-at-Law in the Kingston office of the law firm DunnCox, located at 48 Duke Street. You may contact him at nickardo.lawson@dunncox.com.

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