False sense of security: Aadhaar is broken, and the new bill doesn't fix it
The Lok Sabha has passed the Aadhaar Bill without incorporating any amendments suggested by the Rajya Sabha. Since it was introduced two weeks ago, much has been written about the bill and the Aadhaar scheme.
One of the main concerns raised over Aadhaar - not just now but in the past as well - is about the role of private companies, specifically whether there are sufficient safeguards to prevent misuse or unauthorised use of personal data collected by them.Also read - Top points raised by Jairam Ramesh over amended Aadhaar Bill
To understand what is at stake, it's necessary to explain the involvement of private parties in the collection and use of personal information for Aadhaar. Data protection could have been ensured at two levels - through contractual obligations on the private agency involved; through protection built into law such agencies as required to follow.
So, are these protections in place? Let's look at the data flow, flag concerns and explain if and how they have been addressed.
Threat to privacy
As my colleague at the Centre for Internet and Society Vidushi Marda explains, data flow for UID enrolment can be best understood by first delineating the organisations involved in it.
The UIDAI, the statutory body overseeing Aadhaar, enters into MoUs with Registrars - usually government departments or large private actors such as the LIC - to collect personal data. The Registrars in turn rope in Enrolment Agencies, or EAs - usually private parties - to set up enrolment centres for data collection.
90% Aadhar enrolment is done. Bill is like locking stable door after the horse has bolted: @ambersinha07
The UIDAI has a standard Enrolment Form which asks for information such as name, address, birth date, gender, proofs of address and identity. However, it has been reported that some MoUs allow the registrars - and by extension private EAs - to collect additional information than what is specified by the UIDAI.
Since an individual has to share personal information to register for Aadhaar, she ends up in a position of being coerced to provide additional data that's not required for enrolment. This can't be considered 'informed consent', which is the basis of all data protection laws worldwide.
Lack of accountability
The enrolment process is this: the individual fills out the form, the details are verified against her supporting documents, and then entered by an operator in the UIDAI-provided Aadhaar Enrolment Client software.
Here's the catch: these operators at the enrolment centres are not answerable to the UIDAI but to the private EAs. This lack of privity and the loose set of legal relationships between the UIDAI and the EAs raises clear questions of accountability.
Further, the language used in the UIDAI's contracts with biometric solutions providers - such as L1 Identity Solutions Operating Company and Accenture Services Pvt Ltd, both of which, incidentally, are alleged to have links with foreign intelligence agencies - is quite disturbing.
The contracts allow them "access to personal information of the purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable" for a period of seven years.
The new bill does have provisions that seem to address these concerns by directing the UIDAI to ensure its obligations are passed on to the agencies and consultants it engages to perform any powers or function under the Act. But this is no more than lip-service, for two reasons.
One, this legal obligation is on the UIDAI, neither the operators nor the EAs are subject to it in the absence of a binding contract. Two, more than 90% of the enrolment is already done, so introducing these controls now is like locking the stable door after the horse has bolted.
.@ambersinha07: Data operators are answerable to private Eas, not UIDAI. Where's the accountability?
The bill refers to the rules framed under Section 43A of the IT Act, and brings the biometric information collected for Aadhaar within the definition of "sensitive personal data or information" under these rules.
This is another attempt to provide some legal protection to the personal data collected, but it, too, amounts to little. That's because these rules are woefully inadequate.
Section 43A is a provision for data security, not data protection. It enables the framing of rules for reasonable security practices that private entities ought to follow. Although the rules seek to punch above their weight by including some data protection principles as well, they are severely limited by being subordinate to the enabling provision which only talks about data security.
The Aadhaar enrolment process has been broken since its inception. While efforts have been made in this bill to fix it, they fall way short of addressing most of the key concerns.