Aspects of Aadhaar, India’s biometric ID, struck down as unconstitutional.

aadhaar-1537929142.jpeghttps://www.livelaw.in/breaking-sections-33247-national-security-exception-gone-private-entities-cannot-demand-aadhaar-data/ (Includes full text of the decision.)

Sections 33(2),47 & 57 Of Aadhaar Act Struck Down; National Security Exception Gone; Private Entities Cannot Demand Aadhaar Data [Read Judgment] | Live Law

Among the aspects that were ruled unconstitutional:

  • Disclosure of information “in the interest of national security” without authorization from a Joint Secretary or higher ranking officer and a Judicial Officer.
  • Permitting private entities to use Aadhaar for authenticating their users/customers.
  • Disclosure of an individual’s information without providing the individual an opportunity to challenge the order.

The court further held that Section 139AA of the Income Tax Act, 1961 is not violative of right to privacy as it satisfies the triple test (I) existence of a law; (ii) a ‘legitimate State interest’; and (iii) such law should pass the ‘test of proportionality’,

However, the bench held that the move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality. It has been also held that Mandatory linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law.

Justice D.Y. Chandrachud wrote a strong dissent (includes the full text of the dissent) to the ruling’s upholding of the Aadhaar Act’s constitutionality. The bill was passed by classifying it as one that could bypass Rajya Sabha, the Upper House of the Parliament.

“The passing Aadhaar Act as money bill is a fraud on the constitution”, Justice Chandrachud observed. The decision of Speaker to classify a bill as money bill is amenable to judicial review. The judgment also highlighted the importance of Rajya Sabha in passing laws.

“If a constitution has to survive political aggrandizement, notions of power and authority must give compliance to rule of law.”, he observed in his dissenting judgment.

Justice Chandrachud deemed the entire Aadhaar project to be unconstitutional.

“Constitutional guarantees cannot be compromised by vicissitudes of technology”, he observed.

Section 57 of the Act was held to be violating Articles 14 and 21 of the Constitution. Allowing private enterprise to use Aadhaar numbers will lead to exploitation of data.

Holding that Aadhaar had potential for surveillance, it was stated that the architecture posed risk on potential violation of leakage of database. Source code is of foreign corporation. “The data must all the time vest with the individual”, said the judgment. It was held that many provisions of Aadhaar Act provide for invasive collection of biometric data.

Link

New York, NY – Today, a group of Muslim owned businesses, mosques, individuals, and student groups have finalized a settlement agreement with the New York Police Department (NYPD) in Hassan v. City of New York, a federal lawsuit challenging the suspicionless, discriminatory surveillance of American Muslims in New Jersey. Filed in 2012 in federal court in New Jersey, Hassan was the first lawsuit brought on behalf of American Muslims unlawfully surveilled under the NYPD’s program. The plaintiffs are represented by Muslim Advocates, the Center for Constitutional Rights, and Gibbons P.C.

As a series of Pulitzer Prize-winning reports by the AP revealed, under the surveillance program, the NYPD spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim Student Associations in New Jersey. The monitoring included video surveillance, photographing license plates, community mapping, and infiltration by undercover officers and informants at places of worship, student associations, and businesses. Internal NYPD documents, including a list of 28 “ancestries of interest,” revealed that the NYPD used racial and ethnic backgrounds as proxies to identify and target adherents to Islam. By its own admission, the NYPD’s surveillance of Muslims failed to produce a single lead.

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

– Not engage in suspicionless surveillance on the basis of religion or ethnicity;

– Permit
plaintiff input to a first-ever Policy Guide, which will govern the
Intelligence Bureau’s activities, and to publish the Guide to the
public;

– Attend a public meeting with plaintiffs so they can
express their concerns about the issues in the lawsuit directly to the
NYPD Commissioner or senior ranking official;

– Pay businesses and
mosques damages for income lost as a result of being unfairly targeted
by the NYPD and pay individuals damages for the stigma and humiliation
harms they suffered for being targeted on the basis of their religion.

Settlement Reached in NYPD Muslim Surveillance Lawsuit

Link

About surveillance as the internet’s dominant business model.

Ethan Zuckerman’s recent The Internet’s Original Sin is inspired by this talk:

The fiasco I want to talk about is the World Wide Web, specifically, the advertising-supported, “free as in beer” constellation of social networks, services, and content that represents so much of the present day web industry. I’ve been thinking of this world, one I’ve worked in for over 20 years, as a fiasco since reading a lecture by Maciej Cegłowski, delivered at the Beyond Tellerrand web design conference.  Cegłowski is an important and influential programmer and an enviably talented writer. His talk is a patient explanation of how we’ve ended up with surveillance as the default, if not sole, internet business model.

The Internet With A Human Face – Beyond Tellerrand 2014 Conference Talk by Maciej Ceglowski