31 March 2017
By CCG NLU DELHI
Earlier this week, an agency entrusted with enrolling individuals under the Aadhaar scheme inadvertently published Mahendra Singh Dhoni’s personal information online. When it was pointed out this amounted to a gross violation of privacy, the government released a statement confirming that such publication was illegal and that the agency had accordingly been blacklisted. Another post indicated that several databases containing individuals’ Aadhaar numbers can be obtained by a simple online search. Over the last few months, the government has made the Aadhaar number mandatory for a host of benefits, including essential schemes such as the mid-day meal scheme for school children. As Aadhaar increasingly becomes the gateway to accessing benefits, the lack of clarity about how the number can be used, displayed or stored deserves further attention.
Aadhaar was introduced in 2009 as a way to plug leakages in the welfare delivery mechanism. It proposed to do so by creating a secure authentication mechanism that is capable of accurately verifying the identity of beneficiaries. Under the regulations framed under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 (‘Aadhaar Act’), this can be done in three ways –
- Demographic authentication – requires some demographic information (such as name or address) along with one’s Aadhaar number
- One Time Password authentication – authentication through a One Time Password, sent to an individual’s registered mobile number, coupled with one’s Aadhaar number
- Biometric authentication – uses biometrics along with the Aadhaar number
However, besides authentication, the Aadhaar number, usually printed on paper card and laminated has gained wide currency as a regular identification card. It is popularly used as a proof of identity, and photocopies of it are readily submitted where identity proof is required for compliance with certain legal obligations (such as hotel reservations, use of a cyber-café etc.). The wide circulation of information printed on these cards – Aadhaar numbers as well as basic demographic information such as one’s name and address, makes it susceptible to misuse.
To illustrate, if an entity opted to authenticate its customers using the ‘demographic authentication’ model, the easy availability of such information would make it exceptionally easy to avail the service under a false identity. Even for authentication using biometrics, it has been repeatedly argued that fingerprints can easily be copied and re-created. This points to a need for more restricted use of the Aadhaar number, and stringent safeguards for its storage and sharing.
The legal framework does not specifically prohibit the use of Aadhaar as an identity document, but news reports indicate that the UIDAI does regard this as being problematic. In the weeks following demonetisation, the UIDAI, through its Twitter handle, had ‘advised’ people not to share their Aadhaar numbers printed on such cards. It further warned that if a photocopy was being submitted, it should be self-attested and the purpose for sharing should be clearly stated to avoid misuse. This form of advisory, without any formal action to tackle concerns regarding misuse of Aadhaar data raises several concerns.
The Aadhaar (Sharing of Information) Regulations 2016 (Regulations) require that any individual or entity that collects the Aadhaar number must –
- Not publish or publicly display it;
- Ensure its security and confidentiality;
- Ensure that numbers have been redacted before publishing any database that contains them;
- Not transfer it in an unencrypted form, except when required for correction errors or grievance redressal; and
- Not hold such data for longer than is necessary to achieve the desired purpose.
However, a blog post that has been shared widely shows that organisations including government departments have been callous in how they store Aadhaar information. Under the Regulations, this constitutes a violation of Section 29 of the Aadhaar Act. Such a lapse in storing Aadhaar information is punishable with imprisonment for a term which may extend to three years or a fine that may extend to ten thousand rupees or both (in case of a company, the fine may extend to one lakh rupees). However, it remains to be seen if the UIDAI will initiate any action against these entities.
This highlights another weakness of Aadhaar’s legal framework – it does not allow individuals to approach the court for any instance of data mismanagement. The complaint can only be initiated at the behest of the UIDAI. As a result, individuals whose data has been made public can only hope that the UIDAI will take action against erring entities. A recent report highlights that the UIDAI has only initiated criminal complaints in three out of 1390 complaints received by it so far.
Besides this major lacuna, what qualifies as adequate security for storing Aadhaar numbers remains unknown, as the regulations do not prescribe any standard. They are therefore inadequate to ensure that the Aadhaar number remains confidential.
So is the Aadhaar number confidential? The law certainly seems to suggest so, but its wide use as an identity proof indicates otherwise. It is apparent that the Aadhaar is popularly used as an identity document, contrary to its original purpose as a means for authentication or verification of identity. Despite being in contradiction with the scheme of the regulations, there has been little effort on the UIDAI’s part to initiate any course correction. It has been pointed out that one reason for this could be that it will reduce the public acceptability of Aadhaar, and public perception may take a hit. But it is extremely short-sighted to sacrifice individuals’ security and privacy in order to maintain public perception.
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*Builds on important disclosures made by @St_Hill in a post here.
Author: kritikaccg
