TECHNOLOGY & HUMAN RIGHTS

Digital Identification and Inclusionary Delusion in West Africa 

Over 1 billion persons have been categorized as invisible in the world, of which about 437 million persons are reported to be from sub-Saharan Africa. In West Africa alone, the World Bank has identified a huge “identification gap” and different identification projects are underway to identify millions of invisible West Africans.[1] These individuals are regarded as invisible not because they are unrecognizable or non-existent, but because they do not fit a certain measure of visibility that matches existing or new database(s) of an identifying institution[2], such as the State or international bodies.

One existing digital identification project in West Africa is the West Africa Unique Identification for Regional Integration and Inclusion (WURI) program initiated by the World Bank under its Identification for Development initiative. The WURI program is to serve as an umbrella under which West African States can collaborate with the Economic Community of West African States (ECOWAS) to design and build a digital identification system, financed by the World Bank, that would create foundational IDs (fID)[3] for all persons in the ECOWAS region.[4] Many West African States that have had past failed attempts at digitizing their identification systems have embraced assistance via WURI. The goal of WURI is to enable access to services for millions of people and ensure “mutual recognition of identities” across countries. The promise of digital identification is that it will facilitate development by promoting regional integration, security, social protection of aid beneficiaries, financial inclusion, reduction of poverty and corruption, healthcare insurance and delivery, and act as a stepping stone to an integrated digital economy in West Africa. This way, millions of invisible individuals would become visible to the state and become financially, politically and socially included.

Nevertheless, the outlook of WURI and the reliance on digital IDs by development agencies proposes a reliance on technologies, also known as techno-solutionism, as the approach to dealing with institutional challenges and developmental goals in West Africa. This reliance on digital technologies does not address some of the major root causes of developmental delays in the countries and may instead worsen the state of things by excluding the vast majority of people who are either unable to be identified or excluded by virtue of technological failures. This exclusion emerges in a number of ways, including the service-based structure and/or mandatory nature of many digital identification projects which adopt the stance of exclusion first before inclusion. This means that in cases where access to services and infrastructures, such as opening a bank account, registering sim cards, getting healthcare or receiving government aid and benefits, are made subject to registration and possession of a national ID card or unique identification number (UIN), individuals are first excluded unless they register for and possess the national ID card or UIN.

There are three contexts in which exclusion may arise. Firstly, an individual may be unable to register for a fID. For instance, in Kenya, many individuals without identity verification documents like birth certificates were excluded from the registration process of its fID, Huduma Namba. A second context arises where an individual may be unable to obtain a fID card or unique identification number (UIN) after registration. This is the case in Nigeria where the National Identity Management Commission has been unable to deliver ID cards to the majority of those who have registered under the identity program. The risk of exclusion of individuals may increase in Nigeria when the government conditions access to services on the possession of an fID card or UIN.

A third scenario involves the inability of an individual to access infrastructures after obtaining a fID card or UIN, due to the breakdown or malfunctioning of the technology for authentication by the identifying institution. In Tanzania, for example, although some individuals have the fID card or UIN, they are unable to proceed with their SIM registration process due to breakdown of the data storage systems. There are also numerous reports of people not getting access to services in India because of technology failures. This leaves a large group of vulnerable individuals, particularly where the fID is required to access key services such as SIM card registration. An unpublished 2018 poll carried out in Cote d’Ivoire reveals that over 65% of those who register for National ID used it to apply for SIM card services and about 23% for financial services.[5]

The mandatory or service-based model of most identification systems in West Africa take away powers or rights of access to and control of resources and identity from individuals and confers them on the State and private institutions, thereby raising some human rights concerns for those who are unable to fit the criteria for registration and identification. Thus, a person who ordinarily would move around freely, shop from a grocery store, open a bank account or receive healthcare from a hospital can only do that, upon commencement of mandatory use of the fID, through possession of the fID card or UIN. In Nigeria, for instance, the new national computerized identity card is equipped with a microprocessor designed to host and store multiple e-services and applications like biometric e-ID, electronic ID, payment application, travel document, and serve as the national identity card of individuals. A Thales publication also states that in a second phase for the Nigerian fID, driver’s license, eVoting, eHealth or eTransport applications are to be added to the cards. This is a long list of e-services for a country where only about 46% of its population is reported to have access to the internet. Where a person loses this ID card or is unable to provide the UIN that digitally represents that person, such person would be potentially excluded from access to all the services and infrastructures that the fID card or UIN serves as a gateway to. This exclusion risk is intensified by the fact that identifying institutions in remote or local areas may lack authentication technologies or electronic connection to the ID database to verify the existence of individuals at all times they seek to be identified, make a payment, receive healthcare, or travel.

It is important to note that exclusion does not only stem from mandatory fID systems or voluntary but service-integrated ID systems. There are also risks with voluntary ID systems where adequate measures are not taken to protect the data and interests of all those who are registered. An adequate data storage facility, data protection designs and data privacy regulation to protect the data of individuals is required, else individuals face increased risks of identity theft, fraud and cybercrime which would exclude and shut them off from fundamental services and infrastructures.

The history of political instability, violence and extremism, ethnic and religious conflicts, and disregard for the rule of law in many West African countries also heightens the risk of exclusion of individuals. Different instances of this abound, such as religious extremism, insurgences and armed conflicts in Northern Nigeria, civilian attacks and unrest in some communities in Burkina Faso, crisis and terrorist attacks in Mali, election violence, and military intervention in State governance. An OECD report accounts for over 3,317 violent events in West Africa between 2011 – 2019 with fatalities rising above 11,911 within those periods. A UN report also puts the number of deaths in Burkina Faso to over 1800 in 2019 and over 25,000 displaced persons in the same year. This instability can act as a barrier to registration for a fID and lead to exclusion where certain groups of persons are targeted and profiled by state and/or non-state (illegal) actors.

In addition to cases where registration is mandatory or where individuals are highly dependent on the infrastructures and services they wish to access, there might also be situations where people might opt to rely less on the use of the fID or decide not to register due to worries about surveillance, identity theft or targeted disciplinary control, thereby excluding them from resources they would have ordinarily gotten access to. In Nigeria, only about 20% of the population is reported to have registered for the Nigerian Identity Number (NIN) (this was about 6% in 2017). Similarly, though implementation of WURI program objectives in Guinea and Cote d’Ivoire commenced in 2018, as of date, the registration and identification output in both countries is still marginally low.

World Bank findings and lessons from Phase I reveal that digital identification can exacerbate exclusion and marginalization, while diminishing privacy and control over data, despite the benefits it may carry. Some of the challenges identified by the World Bank resonate with the major concerns listed here, and they include risks of surveillance, discrimination, inequality, distrust between the State and individuals, and legal, political and historical differences among countries. The solutions proposed, under the WURI program objectives, to address these problems – consultations, dialogues, ethnographic studies, provision of additional financing and capacity – are laudable but insufficient to dealing with the root causes. On the contrary, the solutions offered might reveal the inadequacies of a digitized State in West Africa where a large population of West African are digital illiterates, lack the means to access digital platforms, or operate largely in the informal sector.

Practically, the task of tactically addressing the root causes to most of the problems mentioned above, particularly the major ones involving political instability, institutional inadequacies, corruption, conflicts and capacity building, is an arduous one which may involve a more domestic/grassroot/bottom-up approach. However, the solution to these challenges is either unknown, difficult or less desirable than the “quick fix” offered by techno-solutionism and reliance on digital identification.

October 19, 2020. Ngozi Nwanta, JSD program, NYU School of Law with research interests in systemic analysis of national identification systems, governance of credit data, financial inclusion, and development.

TECHNOLOGY & HUMAN RIGHTS

India’s New National Digital Health Mission: A Trojan Horse for Privatization

Through the national Digital Health ID, India’s Modi government is implementing techno-solutionist and market-based reforms to further entrench the centrality of the private sector in healthcare. This has serious consequences for all Indians, but most of all, for its vulnerable populations.

On August 15, 2021, India’s Prime Minister Narendra Modi launched the National Digital Health Mission (NDHM), under which every Indian citizen is to be provided with a unique digital health ID. This ID will contain patients’ health records—including prescriptions, diagnostic reports, and medical histories—and will enable easy access for both patients and health service providers. The aim of the NDHM is to allow patients to seamlessly switch between health service providers by facilitating their access to patients’ health data and enabling insurance providers to quickly verify and process claims. Accessible registries of health master data will also be created. But this digital health ID program is emblematic of a larger problem in India—the government’s steady withdrawal from healthcare, both as welfare and as a public service.

The digital health ID is a crucial part of Modi’s plans to create a new digital health infrastructure called the National Health Stack. This will form the health component of the existing India Stack, which is defined as “a set of digital public goods” that are intended to make it easy for innovators to introduce digital services in India across different sectors. The India Stack is built on the existing foundational user-base provided by Aadhaar digital ID numbers. A “Unified Health Interface” will be created as a digital platform to manage healthcare-related transactions. It will be administered by the National Health Authority (NHA), which is also responsible for administering the flagship public health insurance scheme, the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB-PMJAY), providing health coverage for around 500 million poor Indians.

The Modi government proclaims that the NDHM and digital health ID will revolutionize the Indian healthcare system through technology-driven solutions. But this glosses over the government’s real motive, which is to incentivize the private sector to participate in and rescue India’s ailing healthcare system. Rather than invest more funds in public health infrastructure, the Indian government has decided to outsource healthcare services to private healthcare providers and insurance companies, using access to vast troves of health data as the proverbial carrot.
Indeed, the benefits of the NDHM for the private healthcare sector are numerous. It will provide valuable, interoperable data in the form of “health registries” which link data silos and act as a “single source of truth” for all healthcare stakeholders. This will enable quicker processing of claims and payments to health service providers. In an op-ed lauding the NDHM, the head of a major Indian hospital chain noted that the NDHM will “reduce administrative burden related to doctor onboarding, regulatory approvals and renewals, and hospital or payer empanelment.”
The government appears to have learned its lessons from the implementation of the AB-PMJAY, which allowed people below the poverty line to purchase healthcare services through state-funded health insurance. Although the scheme included both private and public hospitals, it relied heavily on private hospitals, as public hospitals lacked sufficient facilities. However, not enough private hospitals onboarded because rates were non-competitive as compared to the market, and because the scheme was plagued by long delays in insurance payments and insurance fraud. But, instead of building up public healthcare and reducing dependency on the private sector, the government is eager to fix this problem by providing better incentives to private providers through the NDHM.

Meanwhile, it is unclear what the benefits to the public will be. Digitizing the healthcare system and making it easier for insurance companies to pay private hospitals for services does not solve more urgent and serious problems, such as the lack of healthcare facilities in rural areas. The COVID-19 pandemic saw public hospitals playing a dominant role in treatment and vaccination, while private hospitals took a backseat. Given this, increasing the reliance placed on the private healthcare system through the NDHM is counterintuitive.

This growing reliance on the private sector is also likely to further disadvantage people living in poverty. The lack of suitable government hospitals forces people into private hospitals, and they are often required to pay more than the amount covered by the government-funded AB-PMJAY. Further, India’s National Human Rights Commission has taken the position that denial of care by private service providers is outside its ambit, notwithstanding their enrollment into state-funded insurance schemes like AB-PMJAY. Also, as the digital health ID will enable insurance companies’ access to sensitive health data, they may deny insurance or charge higher premiums to those most in need, thereby further entrenching discrimination and inequalities. Getting coverage with a genetic disorder, for instance, is already extremely difficult in India, something a digital health ID could worsen because insurance companies could access this information, rendering premiums prohibitively expensive for millions who need it. Digitization also renders highly-personal health records susceptible to breaches: such privacy concerns led many persons living with HIV to drop out of treatment programs when antiretroviral therapy centers began collecting Aadhaar details from patients.

Not having a digital health ID could lead to exclusion from vital healthcare. This is not a hypothetical. The government had to issue a clarification that no one should be denied COVID-19 vaccines or oxygen for lack of Aadhaar after numerous concerning reports, including allegations that a patient died after two hospitals demanded Aadhaar details which he did not have.

Nonetheless, plans are speeding ahead as the “usual suspects” of India’s techno-solutionist projects turn their efforts to healthcare. RS Sharma, the ex-Director General of the government agency responsible for Aadhaar, is the current CEO of the NHA. The National Health Stack was reportedly developed in consultation with i-SPIRT, a group of so-called “volunteers” with private sector backgrounds who act as a go-between between the Indian government and the tech sector and played a vital role in embedding Aadhaar in society through private companies. A committee set up to examine the merits of the National Health Stack was headed by another former UIDAI chairman.

Steered by individuals with an endless faith in the power of technology and in the private sector’s entrepreneurial drive to save the Indian government and governance, India is determinedly marching forward with its technology-driven and market-based reforms in public services and welfare. This is all underlined by a heavy tendency towards privatization and is in turn inspired by the private sector. The NDHM, for instance, is guided by the tagline “Think Big, Start Small, Scale Fast,” a business philosophy for start-ups.

Perhaps most concerningly, the neoliberal withdrawal of government from crucial public services to make space for the private sector has resulted in the rationing of those goods and services, with fewer people having access to them. Having a digital health ID is not likely to change this for India’s health sector, and is allowing for this privatization by stealth.

December 14, 2021. Sharngan Aravindakshan, LL.M. program, NYU School of Law; Human Rights Scholar with the Digital Welfare State & Human Rights Project in 2021-22. He previously worked for the Centre for Communication Governance in India.

TECHNOLOGY & HUMAN RIGHTS

“Leapfrogging” to Digital Financial Inclusion through “Moonshot” Initiatives

The notion that new technological solutions can overcome entrenched exclusion from banking services and fair credit is quickly gaining widespread acceptance. But tech-based “fixes” often funnel low-income groups into separate, inferior systems and create new tech-driven divisions.

In July 2021, the New York City Mayor’s Office of the Chief Technology Officer launched the NYC[x] Moonshot: Financial Inclusion Challenge. This initiative seeks to deploy digital solutions to address inequalities in access to financial institutions. As the Chief Technology Officer stated, “Too many people have been left out of the financial system for too long. This disparity means that financial transactions … end up costing more for those who can least afford it.”

One in ten Americans are “unbanked,” meaning that they do not have a bank account. People of color are disproportionately excluded from traditional financial institutions. Banks consistently operate fewer branches in Black, Native American, and Latinx communities, creating “banking deserts,” while the practice of redlining continues. Poorly-regulated predatory financial institutions such as payday lenders, which impose higher costs than banks and trap customers in cycles of debt, are highly concentrated in these communities and take advantage of financial exclusion. In New York’s borough of the Bronx, over 49% of households are unbanked and high-cost lenders significantly outnumber banks.

Unequal access to banking means unequal access to fair credit. This compounds inequalities, as a poor credit record increasingly determines crucial outcomes, including higher interest rates on loans, higher insurance premiums, and difficulty obtaining employment or housing.

NYC is pursuing technology-based solutions to address these issues. The Moonshot initiative, which seeks proposals “utilizing breakthrough financial inclusion technology” to bring the unbanked into the financial system, follows previous tech-driven schemes. A recent initiative involved IDNYC, the city’s official identification card launched in 2015. This ID scheme had sought to facilitate access to banking by providing government-issued IDs to groups previously unable to open bank accounts for want of official identification; the ID is explicitly available to undocumented immigrants. However, shortly after its launch, the city’s largest banks dealt a blow to the IDNYC scheme by refusing to accept it as sufficient identification to open accounts. In response, the Mayor’s Office turned to technology. In 2018, it solicited proposals from financial firms to introduce electronic chips—the same smartcards used in debit cards—into the ID cards. This would allow IDNYC cardholders to load money onto their ID cards and make payments using these cards. Such reloadable cards are known as prepaid cards.

This proposed integration of identification and payment functions was not unique. In the U.S., the city of Oakland’s municipal identification scheme enabled cardholders to have their welfare benefits deposited onto the ID card and make payments with it. Also in California, the city of Richmond’s ID similarly functions as a prepaid card. In 2020, MasterCard’s “City Key” card, which combines official identification and payments, was distributed to low-income residents in Honolulu. Outside of the U.S., MasterCard was involved in adding electronic chips to national ID cards in Nigeria, and the Malaysian national ID also functions as a reloadable debit card.

But the proposal to incorporate smartcards into IDNYC was abandoned. Dozens of immigrants’ rights organizations warned that the integration of payment functions increased immigrant cardholders’ risk of surveillance and profiling. Adding the chip would lead to “massive data collection” by the financial technology firm brought into IDNYC and, because such firms are legally required to retain information about cardholders, undocumented immigrants’ data could be subpoenaed by the Trump administration. The Mayor’s Office accepted that these risks were fundamentally in conflict with the inclusionary goals of IDNYC and withdrew the plan.

While the proposal was abandoned, the narratives and driving forces behind it have intensified. Turning to a prepaid card system to “eliminate banking deserts” in NYC followed a well-established script that promises to “leapfrog” over deeply-rooted social problems using new technologies. The Gates Foundation, McKinsey, MasterCard, and others have long furthered this narrative that groups left behind by traditional financial institutions can be reached through innovative technological solutions which “leapfrog” banks. Bill Gates was famously quoted saying, “banking is necessary but banks are not”—and today, actors which are not banks, such as payment technology companies and telecommunications firms, are increasingly offering “financially-inclusive” services such as mobile money and smartcard solutions in explicit efforts “to ‘disrupt’… traditional banking services.” Prepaid cards especially seek to bypass banks: by their very design they operate without any link to bank accounts.

As such, these technological solutions funnel unbanked groups into a separate, “parallel banking system.” Prepaid cards do not provide access to bank accounts, so cardholders remain unbanked. This is an inferior banking product; cardholders do not gain the same access to the services and fairer credit that bank accounts enable. Financial inclusion persists, but the unbanked now have smartcards.

Further, the companies “disrupting” banking are usually not subject to the same legal obligations as banks, nor do they provide the same financial protections. Within these separate, technology-enabled payment systems for the unbanked, the extractivism and predatory practices that financial inclusion efforts are supposed to address re-emerge. NYC’s Chief Technology Officer had lamented that financial exclusion means that transactions cost “more for those who can least afford it”—but when Oakland launched its smartcard ID, the company running the prepaid function levied countless fees on cardholders, including $0.75 per transaction, $1 per reloading of funds, and a $2.99 monthly fee. The fees were higher than those of banks. Further, the insistence that electronic payments will solve financial exclusion is motivated by a desire to monetize new customers’ transaction data. Companies are racing to “capture the data of the newly ‘included’” and uncover the “financial lives of the poor” as a new market segment.

As the Immigrant Defense Project and others argued, turning IDNYC into a prepaid card would therefore “be perpetuating, not resolving, inequality in our banking system.” Within our work outside the U.S., we see the same technological solutions being embraced, all while they siphon low-income groups toward less-regulated, separate systems. For example, in South Africa and Australia, recipients of state benefits are forced onto prepaid cards not linked to traditional bank accounts. Still, “digital financial inclusion” through these technologies is being hailed as the solution to financial exclusion.

The 2021 Moonshot initiative appears to be based on the same ideals. The very notion of a “moonshot” is solutionist—it connotes a monumental (technologically-driven) effort to achieve a lofty goal. Official “launch” documents state that technology can “help solve the most pressing issues of people’s lives.” Rather than seeking to work with banks, the scheme turns to developers: the unbanked need “new options.” This focus on technology can obscure the root causes of financial exclusion—namely racism, discrimination, and predatory financial practices. “New options” will too often mean separate, inferior systems; and eschewing attempts to resolve inequalities within the “old options” leaves harmful practices—such as the linking of everything from housing to insurance with credit reports, continuing redlining, and the closing of bank branches without regard for those left behind—unaddressed. 

September 21, 2021. Victoria Adelmant, Director of the Digital Welfare State & Human Rights Project at the Center for Human Rights and Global Justice at NYU School of Law. 

TECHNOLOGY & HUMAN RIGHTS

Everyone Counts! Ensuring that the human rights of all are respected in digital ID systems

The Everyone Counts! initiative was launched in the fall of 2020 with a firm commitment to a simple principle: the digital transformation of the state can only qualify as a success if everyone’s human rights are respected. Nowhere is this more urgent than in the context of so-called digital ID systems.

Research, litigation and broader advocacy on digital ID in countries like India and Kenya has already revealed the dangers of exclusion from digital ID for ethnic minority groups[1] and for people living in poverty.[2] However, a significant gap still exists between the magnitude of the human rights risks involved and the urgency of research and action on digital ID in many countries. Despite their active promotion and use by governments, international organizations and the private sector, in many cases we simply do not know how these digital ID systems lead to social exclusion and human rights violations, especially for the poorest and most marginalized.

Therefore, the Everyone Counts! initiative aims to engage in both research and action to address social exclusion and related human rights violations that are facilitated by government-sponsored digital ID systems.

Does the emperor have new clothes? The yawning evidence gap on digital ID

The common narrative behind the rush towards digital ID systems, especially in the Global South, is by now familiar: “As many as 1 billion people across the world do not have basic proof of identity, which is essential for protecting their rights and enabling access to services and opportunities.”[3] Digital ID is presented as a key solution to this problem, while simultaneously promising lower income countries the opportunity to “leapfrog” years of development via digital systems that assist in “improving governance and service delivery, increasing financial inclusion, reducing gender inequalities by empowering women and girls, and increasing access to health services and social safety nets for the poor.”[4]

This perspective, for which the World Bank and its Identification for Development (ID4D) Initiative have become the official “anchor” internationally, presents digital ID systems as a force for good. The Bank acknowledges that exclusionary issues may arise, but is confident that such issues may be overcome through good intentions and safeguards. Digging underneath the surface of these confident assertions, however, one finds that there appears to be remarkably little research into the overall impact of digital ID systems on social exclusion and a range of related human rights. For instance, after entering the digital ID space in 2014, publishing prolifically, and guiding billions of development dollars into furthering this agenda, the World Bank’s ID4D team concedes in its 2020 Annual Report that “given that this topic is relatively new to the development agenda, empirical research that rigorously evaluates the impact of ID systems on development outcomes and the effectiveness of strategies to mitigate risks has been limited.”[5] In other words, despite warning signs from several countries around the world, including chilling stories of people who have died because they were shut out of biometric ID systems,[6] the digital ID agenda moves full steam ahead without full understanding of its exclusionary potential.

Making sure that everyone truly counts

While the Everyone Counts! initiative only has a fraction of the resources of ID4D, we hope to inject some much needed reality into this discourse through our work. We will do this by undertaking–together with research partners in different countries–empirical human rights research that investigates how the introduction of a digital ID system leads to or exacerbates social exclusion. For example, we are currently undertaking a joint research project with Ugandan research partners focused on Uganda’s digital ID system, Ndaga Muntu, and its impact on poor women’s right to health, and older persons’ right to social assistance.

Our presence at a leading university and law school underlines our commitment to high quality and cutting-edge research, but we are not in the business of knowledge accumulation purely for its own sake. We will aim to transform our research into action. This could come in the form of strategic litigation and advocacy, such as the work by our partners described below, or in the form of network building and information sharing. For instance, together with co-sponsors like the UN Economic Commission for Africa (UNECA) and the Open Society Justice Initiative (OSJI), we are hosting a workshop series for African civil society organizations on digital ID and exclusion. The series creates a space where activists hoping to resist the exclusion associated with digital ID can come together, gain access to tools, information and networks, and form a community of practice that facilitates further activism.

Ensuring non-discriminatory access to vaccines: An early case study 

A recent example from Uganda demonstrates just how effective targeted action against digital ID systems can be. The government began rollout of its national digital ID system Ndaga Muntu as early as 2015, and it has gradually become a mandatory requirement to access a range of social services in Uganda.

To address the threat of COVID-19, the Ugandan government recently began a free, national vaccine program. One of the groups eligible to receive the vaccine would be all adults over the age of 50. On March 2, however, the Ugandan Minister of Health announced that only those Ugandan citizens who could produce a Ndaga Muntucard, or at least a national ID number (NIN), would be able to receive the vaccine. Conservative estimates suggest that over 7 million eligible Ugandans have not yet received their national ID card.

Our research partners, the Initiative for Social and Economic Rights (ISER) and Unwanted Witness (UW), sued the Ugandan government on March 5 to challenge the mandatory requirement of the Ndaga Muntu.[7] They argued that not only would the requirement of the national ID in exclude millions of eligible older persons from receiving the vaccine, but also that it would set a dangerous precedent that would allow for further discrimination in other areas of social services.[8]

On March 9, the Ministry of Health announced that it would change the national ID requirement so that alternative forms of identification documents, which are much more accessible to poor Ugandans, could be used to access the COVID-19 vaccine.[9] This was a critical victory for the millions of Ugandans who seek access to the life-saving vaccine–but it is also a warning sign of the subtle and pernicious ways that the digital ID system may be used to exclude.

Humans first, not systems first

The Ugandan case study shows the urgent need for the human rights movement to engage in discussions about digital transformation so that fundamental rights are not lost in the rush to build a “modern, digital state.” In our work on this initiative, we will remain similarly committed to prioritizing how individual human beings are affected by digital ID systems. Listening to their stories, understanding the harms they experience, and channeling their anger and frustration to other, more privileged and powerful audiences, is our core purpose.

Digital transformation is a field prone to a utilitarian logic: “if 99% of the population is able to register for a digital ID system, we should celebrate it as a success.” Our qualitative work does not only challenge the supposed benefits for these 99%, but emphasizes that the remaining 1% equals a multitude of individual human beings who may be victimized. Our research so far has only confirmed our intuition that digital ID systems can deliver significant harms, particularly for those who are poorest, most vulnerable, and least powerful in society. These excluded voices deserve to be heard and to become a decisive factor in deciding the shape of our digital future.

April 6, 2021. Christiaan van Veen and Katelyn Cioffi.

Christiaan van Veen, Director of the Digital Welfare State and Human Rights Project (2019-2022) at the Center for Human Rights and Global Justice at NYU School of Law. 

Katelyn Cioffi, Senior Research Scholar, Digital Welfare State & Human Rights Project at the Center for Human Rights and Global Justice at NYU School of Law.

TECHNOLOGY & HUMAN RIGHTS

Prominent human rights expert admitted as amicus curiae in groundbreaking legal challenge to Ugandan national digital ID system

Today, at the High Court of Uganda in Kampala, the Hon. Justice Boniface Wamala issued a decision to admit the application of Professor Philip Alston of New York University School of Law to participate as amicus curiae, or ‘friend of the court’, in a petition for the enforcement of human rights challenging the use of the country’s national digital ID system as a pre-condition to access to public services.

The admission of the amicus application is a critical development in this groundbreaking litigation, the latest in a series of legal challenges that have raised concerns about national digital ID systems in countries including India, Kenya, and Jamaica. This case is one of the first globally to center concerns around social and economic rights. The applicants, three Ugandan civil society organizations, argue that the national digital ID system suffers from persistent and severe gaps in coverage, and its integration with the country’s social welfare programs has resulted in the exclusion of vulnerable and marginalized individuals from fundamental services such as social protection and healthcare.

“Given the importance of the national digital ID system and its mandatory usage, it is imperative that it is fully inclusive. All Ugandans, regardless of age or economic status, must be able to access their social welfare benefits,” said Professor Alston. “Today’s decision by the High Court is an important and welcome step in that direction.”

In a 32-page brief, Professor Alston seeks to assist the court in analyzing some of the novel legal questions at the heart of the case. He calls attention to the obligations of the Government of Uganda under international human rights law, the serious consequences that digital and non-digital barriers to public services may have on the enjoyment of rights, and the high burden of proof that falls on the government to justify any measure that leads to exclusion. The brief also emphasizes the need to ensure equal treatment and non-discrimination in the enjoyment of these rights, particularly given the high risk that any negative impacts of the digital ID system will continue to fall disproportionately on poor and marginalized groups.

“As many governments turn to digital ID systems to mediate access to essential public services, there is an urgent need for courts to ensure the protection of economic and social rights,” said Professor Alston.

Setting aside the objections of the two government respondents, the Attorney General and the National Identification & Registration Authority, Judge Boniface Wamala stated that the “positive benefits of the intervention as amicus curiae outweighs any possible opposition from the parties in the main cause. It is in public interest, the interest of justice, the protection and progressive development of human rights and socio-economic reform that the leave sought in the application is granted.”

“The court and by extension the multitude of Ugandans whose human rights the main petition is fighting to protect shall benefit from the input and expertise that Prof. Philip shall contribute in its adjudication,” said Counsel Elijah Enyimu, who represented Professor Alston. “The contents of the amicus brief shall be elucidatory on the standards and protections necessary for the realization of ESCR in Uganda.”

The Applicants and Respondents will be back in court to argue their cases on April 5, 2023. In the meantime, those who have missed out on social protection payments or been turned away from health centers due to their inability to access the national digital ID will continue to wait for a judicial decision.

This post was originally published as a press statement on March 24, 2023.