The 2010 Memorandum between UIDAI and West Bengal when CPI-M ruled the state may be read here.

On Sunday, February 18, media reported how Mamata Banerjee, chief minister (CM), West Bengal had lashed out at the Union Government on cases of thousands of Bengal residents receiving letters from branch offices of the UIDAI “de-activating their Aadhaar cards. Sanmarg a portal had also carried reports on Saturday.

Today, Tuesday, February 20, Dr Gopalkrishna, in an open letter to Mamata Banerjee has, while welcoming her move urged how and why, after the Supreme Court’s verdict of September 26, 2018 and November 13, 2019, in the aftermath of the Aadhaar Act, 2016 (as amended in 2019), there is a logical and legal compulsion for States to un-sign their MoUs with UIDAI.

The professor points out that these MoUs were signed in the pre-Aadhaar Act era and continued to operate in the era when unconstitutional Sections like Section 57 of Aadhaar Act was recognised and declared as unconstitutional and illegitimate by the Supreme Court’s verdict of September 26, 2018 and by the deletion of Section 57 by the amendment of 2019 in Aadhaar Act. The verdict of November 13, 2019 recognised that the entire Act is unconstitutional.

Section 57 of un-amended Aadhaar Act, 2016 stated that “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or anybody corporate or person, pursuant to any law, for the time being in force, or any contract to this effect”.

Section 25 of the Amendment Act 2019 states that Section 57 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 has been omitted with effect from July 24, 2019.

This MoU signed between the West Bengal government & UIDAI “is outdated and it imperils the autonomy of the State and the citizens. Your considered intervention will pave the way for other States to act on this MoU which is facilitating unlimited and indiscriminate mass surveillance and mass spying at the behest of World Bank’s eTransform Initiative and its partners since 2010. “

Citizens Forum for Civil Liberties (CFCL) welcomes your letter to Hon’ble Prime Minister on the subject of “Aadhaar is becoming inactive” in defence of the natural and fundamental rights of fellow citizens.

Dr Gopalkrishna’s Open Letter to CM West Bengal, Mamata Banerjee:

“I submit that a 7-judge Constitution Bench has been constituted to declare it to be so in order to adhere to judicial discipline. The fact remains no sane person will wait for formal announcement of poison to desist from consuming poison.

Aadhaar Act is a poisonous law.

“It is a black law akin to the colonial law which was bitterly resisted by Mahatma Gandhi’s first Satyagrah. Our Hon’ble Chief Justice of India has declared this law to be a fraud on the Constitution of India in his order dated September 26, 2018. He has reiterated it on at least two more occasions. In this backdrop, constitutional, legal, judicial and political imagination creates a logical compulsion to resist this law which creates an architecture of unlimited government based on 360 degree surveillance. It is eroding the constitutionally mandated autonomy of States beyond repair.

“I submit that West Bengal’s Home Department signed the attached MoU with UIDAI on July 1, 2010. Shri A.G. Ghosh, OSD & ex-officio Special Secretary signed it on behalf of Home Department, West Bengal Government and Shri Nirmal Kumar Sinha, Deputy Director General, UIDAI, Planning Commission signed it on behalf of UIDAI.

“This MoU is outdated and it imperils the autonomy of the State and the citizens. Your considered intervention will pave the way for other States to act on this MoU which is facilitating unlimited and indiscriminate mass surveillance and mass spying at the behest of World Bank’s eTransform Initiative and its partners since 2010.

“Citizens Forum for Civil Liberties (CFCL) welcomes your letter to Hon’ble Prime Minister on the subject of “Aadhaar is becoming inactive” in defence of the natural and fundamental rights of fellow citizens.

(Source: https://www.livehindustan.com/national/story-why-aadhaar-is-becoming-inactive-west-bengal-mamata-banerjee-wrote-a-letter-asking-for-reply-from-pm-9346756.html)

Reference articles by Dr Gopalkrishna:

“India’s First Metadata case: Supreme Court’s Constitution Bench to decide illegitimacy of Aadhaar Act amid Great Data Robbery” (https://mainstreamweekly.net/article13958.html), “India’s First Metadata Case and Pegasus – Part 2” (http://mainstreamweekly.net/article14053.html) and India’s First Metadata case: Mass Surveillance, Mass Spying and Unending Census Part 3 (http://mainstreamweekly.net/article14196.html) provides robust argument in this regard.

Having worked on the subject since 2010, I will be happy to share more details regarding the illegitimacy of Aadhaar Act. ”

Background provided by Dr Gopalkrishna (excerpted from his articles):

Metadata ability to redefine human existence in ways which are yet fully to be perceived. Justice DY Chandrachud, in the November 2019 judgment before he assumed office as CJI, drew on the paper of Christina Moniodis titled “Moving from Nixon to NASA: Privacy’s Second Strand- A Right to Informational Privacy”. Dr. Chandrachud cites her with approval. He states that metadata “results in the creation of new knowledge about individuals; something which even she or he did not possess. This poses serious issues for the Court. In an age of rapidly evolving technology it is impossible for a judge to conceive of all the possible uses of information or its consequences.”

Also drawing from the Yvonne McDermott’s paper “Conceptualizing the right to data protection in an era of Big Data”, Dr. Chandrachud observes, “The contemporary age has been aptly regarded as “an era of ubiquitous dataveillance, or the systematic monitoring of citizen’s communications or actions through the use of information technology”. It is also an age of “big data” or the collection of data sets. These data sets are capable of being searched; they have linkages with other data sets; and are marked by their exhaustive scope and the permanency of collection.”

The (2019) verdict refers to the decision of the Court of Justice of the European Union (CJEU) Tele2 Sverige AB vs. Post-och telestyrelsen (2016) wherein it was seized with the issue as to whether in light of Digital Rights Ireland, a national law which required a provider of electronic communications services to retain meta-data (name, address, telephone number and IP address) regarding users/subscribers for the purpose of fighting crime was contrary to Article 7, 8 and 11 of the Charter of Fundamental Rights of the European Union. The CJEU struck down the provision allowing collection of such meta data on grounds of lack of purpose limitation, data differentiation, data protection, prior review by a court or administrative authority and consent.

Here are some reasons for scrapping Aadhaar databases scheme and repealing Aadhaar Act (as enunciated by Dr Gopalkrishna):

1. The majority order of the Supreme Court’s 5-Judge Constitution Bench on September 26, 2018, has pointed out that the UID/Aadhaar Number project and NPR project are part of the one database convergence scheme. NPR has been mentioned at least on eight occasions in the order to underline the same. A centralized database is the most vulnerable entity in the digital world. The leakage of the database of UK’s children has revealed the old maxim, “If you have nothing to hide, you have nothing to fear, has been given a very public burial”. This has been thoroughly debunked. This maxim is attributed to Nazi propaganda minister Joseph Goebbels. Database State, a report from the UK, states: ‘In October 2007, Her Majesty’s Revenue and Customs (Department) lost two discs containing a copy of the entire child benefit database.’ Only blind faith in a Utopian State can persuade people to think that they have nothing to fear after trusting their personal sensitive information to a Database State and non-State actors like Safran, Ernst & Young and Accenture.

2. One of the earliest documents that refer to UIDAI, a 14-page document titled ’Strategic Vision: Unique Identification of Residents’ prepared by Wipro Ltd for the government envisaged the close linkage that the UIDAI’s Aadhaar would have with the electoral database. The use of the electoral database mentioned in Wipro’s document remains on the agenda of the proponents of UID/Aadhaar.

3. The 41-page Wikileaked document titled ’Creating a unique identity number for every resident in India’ that declared itself to be a ’Confidential- property of UIDAI’ reveals that from day one the Union government wanted to create a file on each of “1.2 billion residents”, the division of work between Ministry of Home Affairs (MHA)’s NPR and Ministry of Electronics and Information Technology (MEITY)’s UID/Aadhaar was/is merely an attention diversion tactics to outwit citizen’s scrutiny.

The ongoing merger of the electoral database with UID/Aadhaar number debunks UIDAI’s claim in the confidential document that UID/Aadhaar number “will not contain intelligence” and “the location of the person. “From these disclosures, it seems that the government has adopted an adversarial role vis-a-vis Indians and acting beyond its constitutional mandate in order to pander to the interests of the commercial czars, non-state actors and foreign intelligence companies.

4. In an RTI reply dated October 25, 2013, UIDAI shared a truncated contract agreement with Ernst & Young. The contract agreement states that “the Unique ID will be a random 12-digit number with the basis for establishing uniqueness of identity being biometrics”. It announces that “we will provide a Unique Identity to over 113.9 crore people.”

This is evidently a fraudulent announcement because UIDAI with which the agreement has been signed had the mandate to provide Unique Identity to only 60 crore residents of India, and not to 113.9 crore people.

It is evident that while the government kept Ernst & Young informed about its motive, it kept states, citizens, the parliament and the Supreme Court in the dark. The contract agreement reveals that “biometric systems are not 100 % accurate” and “uniqueness of the biometrics is still a postulate.” This admission pulverizes the deceptive edifice on which MEITY’s UID/Aadhaar and MHA’s NPR rests.

5. Section 57 of un-amended Aadhaar Act, 2016 stated that “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or anybody corporate or person, pursuant to any law, for the time being in force, or any contract to this effect”.

It implies that UID/Aadhaar of “over 113.9 crore people” has been shared with foreign private body corporates like Ernst & Young. It is only after the horse had escaped the barn that the door was closed through Section 25 of Aadhaar and Other Laws (Amendment) Act, 2019 in compliance with the Court’s order dated September 26, 2018.

Section 25 of the Amendment Act 2019 states that Section 57 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 has been omitted with effect from July 24, 2019.

6. At paragraph 8 of the majority order authored by Justice A K Sikri, it is recorded that “a Processes Committee was set up on July 03, 2006, to suggest the process for updation, modification, addition and deletion of data and fields from the core database to be created under the Unique Identification for BPL Families project.

This Committee, on November 26, 2006, prepared a paper known as ’Strategic Vision Unique Identification of Residents’. Based thereupon, the Empowered Group of Ministers (EGoM) was set up on December 04, 2006, to collate the National Population Register under the Citizenship Act, 1955 and the Unique Identification Number project of the Department “of Information Technology.

Subsequently, “a Committee of Secretaries was formed. The said Committee gave its recommendations which were discussed by EGoM. After approving the Aadhaar Scheme in principle, it instructed the Cabinet Secretary to convene a meeting to finalise the detailed organisational structure of the UID.

After considering the recommendation of the Cabinet Secretary, Notification No. A-43011/02/2009-Admn.I was issued on January 28, 2009, by the Government of India which constituted and notified the UIDAI.” Annexure 1 of this notification that constituted UIDAI deals with the Role and Responsibilities of UIDAI. The fourth point in this notification reads: “implementation of UID scheme will entail” taking “necessary steps to ensure collation of NPR with UID (as per. approved strategy)”.

7. The minutes of a meeting of the Committee of Secretaries held under Chairmanship of Cabinet Secretary November 23, 2015 talks of “integrating the twin approaches under NPR and Aadhaar.”

The “integrating the twin approaches under NPR and Aadhaar” which is referred here is the same as taking “necessary steps to ensure collation of NPR with UID (as per. approved strategy)” underlined in the notification mentioned in the Aadhaar Act.

8. A Ministry of Home Affairs communication dated July 19, 2019 states that “The National Population Register (NPR) thus prepared, was seeded with Aadhaar number during its updation exercise in 2015 along with a collection of demographic details of new household members. Approx. 60 crores Aadhaar numbers have been seeded in NPR Database.”

This communication discloses that “It has now been decided by the Ministry of Home Affairs to update the existing NPR database during April 2020 – September 2020 along with House listing & Housing Census phase of Census 2021. While updating the NPR, the Aadhaar number of all the individuals whose Aadhaar number is not available in the NPR Database will also be collected along with various other items. Necessary notification for updating NPR in 2020 will be issued shortly.”

9. The Court’s order reveals that “A core group was set up to advise and further the work related to UIDAI…The core group, inter alia, decided that it was better to start with the electoral roll database of 2009 for undertaking the UIDAI project.” If an UID/Aadhaar-enabled Biometric Attendance System is indeed a ‘digital equivalent’ of an ‘age-old attendance register,’ why did the National Human Rights Commission object to a radio collar which can also be argued by sophists to be a ‘digital equivalent’? It may be recalled that the Union Ministry of External Affairs had agreed with the NHRC’s assessment. The Union minister of external affairs informed Parliament that some 18 students were detained and released in the US with radio monitoring devices on their ankles, pending completion of investigations for possible involvement in irregularities. ’We have also strongly protested the radio collars as unacceptable, which should be removed immediately.’ If the ‘digital equivalent’ means biometric equivalent as well, then radio collar and DNA-based identity and attendance will also be deemed equivalent to ‘age-old attendance register.’ It is quite evident that such claims are deeply misleading.

10. The reference to ‘such other biological attributes’ in Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, and the definition of ‘biometrics’ under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000 underlines that it includes ‘the technologies that measure and analyse human body characteristics, such as “fingerprints”, “eye retinas and irises”, “voice patterns”, “facial patterns”, “hand measurements” and “DNA” for authentication purposes.’ It is abundantly clear that the plan of UID/Aadhaar-based surveillance does not end with the collection of fingerprints and iris scan, it goes quite beyond it.

The confidential document of UIDAI reveals that “One way to ensure that the unique identification (UID) number is used by all government and private agencies is by inserting it into the birth certificate of the infant. Since the birth certificate is the original identity document, it is likely that this number will then persist as the key identifier through the individual’s various life events, such as joining school, immunizations, voting etc.” Notably, there has never been any occasion wherein there was an all-party meeting to seek the consent of all the political parties with regard to merger of UID/Aadhaar database with “electoral roll database”. It is evident that the provision of Electoral Bonds in the Companies Act, 2013 and the merger of Voter-ID Number and Aadhaar Number through amendment in Aadhaar Act is an exercise in merger of electoral database and Aadhaar database which will lead to extinction of political and civil rights of present and future generations.

According to Dr Gopalkrishna, Justice Sikri authored order of Supreme Court’s Constitution Bench missed the opportunity to save present and future Indians from the dictatorship of faceless donors created through Finance Act 2017 and Finance Act 2018 which has compromised national security and almost all the public institutions. He has made citizens and natural persons residing in India naked and transparent in a legal system in which artificial persons, the opaqueness of body corporates has been legalized. The order committed a Himalayan blunder by ruling that right to have natural and human rights of citizens can be made conditional. This is being done by the government at the behest of the beneficial owners of ungovernable technology companies who have turned ruling political parties into puppets through their limitless and anonymous transnational donations.

This creates a compelling reason for the States to un-sign the MoUs they have signed with UIDAI and discontinue both UID/Aadhaar and NPR exercise. This is required to resist the emergence of an unlimited government, unlimited by the Constitution of India and Constitutionalism. Aadhaar database scheme is an unlimited census in disguise. It is naturalising mass surveillance and mass spying in myriad disguises and through diverse kinds of fish baits.

There is a compelling logic for setting up a High Powered Commission of Inquiry to probe the ongoing bartering of citizen’s databases and transfer of national data assets to foreign entities. In the face of assault on citizens’ rights and the emergence of a regime that is making legislatures and judiciary subservient to automatic identification, big data mining and artificial intelligence companies, the order of Justice Sikri undermined the Constitution and the sovereignty of the citizens who framed it. If the flawed order is not reversed by the 7-judge Constitution Bench, India’s social policies will be guided by biometric and genetic determinism and eugenic thinking of beneficial owners of unaccountable and admittedly undemocratic institutions.

In a country where no intelligence chief or official has been held accountable for the assassination of three of its Prime Ministers and for betraying the nation’s secrets, can it be hoped that all those who have compromised India’s data security will be made liable for their treacherous acts of transferring the sensitive data of present and future citizens including ministers, legislators, soldiers, and judges?

(The author, Dr. Gopal Krishna is a lawyer and law and philosophy researcher. He had appeared before the Parliamentary Committee that examined the National Identification Authority of India Bill, 2010 that was withdrawn in 2016 and enacted later as Aadhaar Act 2016)

Disclaimer: The views expressed here are the author’s personal views, and do not necessarily represent the views of Sabrangindia

Related:

Mamata Banerjee attacks Union Govt, says Aadhaar cards being rejected en masse in Bengal

New “advisory on Aadhaar as date of birth proof soon

CJP EXCLUSIVE: How the Union of India took a giant step towards both NPR & NRC in 2015 without informed consent

West Bengal Assembly next in line to pass resolution against CAA

After Kerala, Punjab Assembly passes resolution against CAA

WB becomes first state to declare it will skip NPR meet in Delhi

Kerala passes resolution for withdrawal of CAA

The post Logical, Legal Compulsion for West Bengal, other states to un-sign MoUs with UIDAI: Expert to Mamata Banerjee appeared first on SabrangIndia.

Now, The Hindu reports that to avoid inconvenience to the public and government schemes’ beneficiaries and quell a sense of anxiety about a recent directive to cease the usage of Aadhaar as a ‘date of birth’ proof, the Unique Identification Authority of India (UIDAI) is likely to issue a clarification soon that those relying on the ID proof for age may do so after undertaking a ‘risk-based assessment’.

The controversy around reliance on Aadhaar, a biometric-linked identification proof, has become ubiquitous in recent years, with linkages to taxpayers’ PAN cards, provident fund and bank accounts, among others. The Unique ID (UID), as it is also known, is a the document, the “critical document” for effecting direct benefit transfers to millions of government welfare scheme beneficiaries, using what the Centre calls ‘the JAM (Jan Dhan bank accounts, Aadhaar, and Mobile Phones) trinity’. It was never meant to be the base data for citizenship.

High Court judgments – Jurisprudence 

The UIDAI, in a December 2023 missive, has asked all agencies that use Aadhaar to authenticate identities to delete it from the list of acceptable documents for verifying a person’s date of birth. The authority said this was an iteration of its stated position and had been underlined by different High Court judgments. Now, Aadhaar ID cards come with a prominent disclaimer that they are “a proof of identity, not of citizenship or date of birth.”

Responding to a recent query on the issue, Finance Secretary T.V. Somanathan said: “I am certain that Central ministries will work out an appropriate arrangement to see that the public and beneficiaries of various schemes are not adversely affected.”

A senior Electronics and IT Ministry official indicated to The Hindu that the UIDAI would not withdraw the directive but would soon issue an advisory for agencies that rely on Aadhaar authentication for welfare benefits and KYC (Know Your Customer) compliance purposes.

“The UIDAI circular in question reflects and reiterates our stance that an Aadhaar number can be used to establish the identity of an individual subject to authentication and is not per se a proof of date of birth. However, the UIDAI is likely to issue a clarification, putting the onus on user agencies to accept the date entered into Aadhaar records or verify it further, with the emphasis being on risk-based assessment,” the official said, requesting anonymity owing to the sensitivity of the issue.

“The birthdate and even the address mentioned in Aadhaar are only a reasonable assessment of the age and location of an individual, based on documents provided at the time of enrolment. But it cannot be construed as fool proof evidence for either of those details… it is up to the concerned entity to decide whether to accept them or seek more documents after assessing the risks involved in their use cases for Aadhaar authentication,” the official explained.

As has been known, the date of birth can be verified by using documents such as birth certificates or school-leaving certificates, wherever knowing the precise age is critical, be it opening a bank account for a minor or a senior citizen, or transferring pension benefits, he pointed out. Even a passport or driving licence can be used to confirm a person’s age.

Following this UIDAI communiqué, some entities like the Employees’ Provident Fund Organisation (EPFO) have already scrapped Aadhaar’s use as birthdate proof, while other departments and user agencies are still evaluating the impact. Central Board of Direct Taxes chairman Nitin Gupta said Aadhaar is linked to about 59 crore PAN cards and issues arising from the UIDAI diktat would be assessed.

Revenue Secretary Sanjay Malhotra noted to The Hindu that Aadhaar is being used for registrations under the Goods and Services Tax (GST) regime as well, but the date of birth is not vital in those cases. “For date of birth, generally in government, it is the birth certificate or the class X passing certificate that works,” he said.

Related:

Aadhaar-linked wages for MNREGS workers mandatory from Jan 1, 2024

ECI undertaking to SC: Aadhaar number not mandatory to enrol as voter

‘Don’t deny govt welfare schemes if people don’t have Aadhaar cards or mobile nos,’ Orissa HC

The post New “advisory on Aadhaar as date of birth proof soon appeared first on SabrangIndia.

 
There were three separate judgments from Justice Sikri, Justice Bhushan and Justice Chandrachud. CJI and Justice Khanwilkar did not pronounce a separate judgment but concurred with Justice Sikri. Justice Bhushan’s judgment was also in line with that of Justice Sikri. But Justice Chandrachud wrote a dissenting judgment.
 
Delivering his judgment Justice Sikri said that Aadhar “empowers marginalised section of societies as it gives identity to such persons.” Aadhaar will remain mandatory for filing tax returns and one would be required to link Aadhaar to PAN. It would also be required to obtain benefits under government schemes.
 
However, in a win for privacy activists, Section 33(2) of the Aadhaar Act that dealt with the National Security exception has been struck down. This section permitted disclosure of information, including identity and authentication information, made in the interest of national security. Justice Sikri has also read down Section 33 (1) that enables disclosure of Aadhaar information on order of a District Judge. Now the owner of the information should be given opportunity f hearing before issuing such orders.
 
Additionally Section 57 of the Aadhaar Act, that permitted private entities to use Aadhaar information to authenticate the identity of a person, has also been held unconstitutional. Therefore no private company can either demand Aadhaar information or make it mandatory for providing services. Aadhaar will not be required for opening a bank account or for getting a mobile phone connection.
 
Section 47 that allowed only the UIDAI to file criminal complaints in case of data breach has also been struck down. It has been held that exclusion of individuals from filing complaints was arbitrary. The SC also ruled that authentication records cannot be retained beyond 6 months, therefore the provision of retention of date for 5 years was held illegal. It was also held that profiling using Aadhaar was not possible due to inbuilt safeguards.
 
School admissions would also not require Aadhaar. The court said, “School admission does not qualify as a subsidy, benefit or service for the purpose of section 7 and hence, Aadhaar may not be mandatory for the same; bodies like CBSE, NEET also may not require Aadhaar.”

Justice Chandrachud wrote the lone dissenting judgment saying Aadhaar is liable to be declared as unconstitutional. “Violation of fundamental rights under the Aadhaar scheme fails on the touchstone of tests of proportionality,” he said.  “Constitutional guarantees cannot be compromised by vicissitudes of technology,” he noted in a strongly worded dissenting judgment.
 
Highlighting the clandestine manner in which Aadhaar Act was practically sprung upon Indians, Justice Chandrachud said, “Passing the Aadhaar Bill as a Money Bill was subterfuge and superseding the authority of the Rajya Sabha was a fraud on the Constitution.” He has also told telecom companies to delete all Aadhaar data received from customers. Justice Chandrachud also expressed his apprehensions about the misuse of data for profiling and the controversial Section 7 of the Aadhar Act. “Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar,” he said. Speak about the discretionary powers given to UIDAI, he said, “Dignity of rights and individuals can’t be based on algorithm, rights of the 2 billion people cannot be tested as mere contract.”
 
Former Attorney General Soli Sorabhji appeared cautiously optimistic about the judgment. He said, “I think on the whole it is a good judgement. Though personally, I am happy with Justice Chandrachud’s judgement striking it down on the ground that it bothers right to privacy.”
 

The post Aadhaar Verdict: SC upholds constitutional validity, assuages some privacy concerns appeared first on SabrangIndia.

Image Courtesy : factordaily

Wikileaks new Cables about CIA and Aadhaar Data Leakage
On 24th August wikileaks published new cables regarding ExpressLane Project by CIA through its liaison companies. Indians are the one of major victim of this ExpressLane Project because CrossMarch is one of the initial Digital Equipment Provider (DEP) in Aadhaar Project. WikiLeaks Cables says that “ These documents show one of the cyber operations the CIA conducts against liaison services — which includes among many others the National Security Agency (NSA), the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI).The OTS (Office of Technical Services), a branch within the CIA, has a biometric collection system that is provided to liaison services around the world — with the expectation for sharing of the biometric takes collected on the systems. But this ‘voluntary sharing’ obviously does not work or is considered insufficient by the CIA, because ExpressLane is a covert information collection tool that is used by the CIA to secretly exfiltrate data collections from such systems provided to liaison services. ExpressLane is installed and run with the cover of upgrading the biometric software by OTS agents that visit the liaison sites. Liaison officers overseeing this procedure will remain unsuspicious, as the data exfiltration disguises behind a Windows installation splash screen. The core components of the OTS system are based on products from Cross Match, a US company specializing in biometric software for law enforcement and the Intelligence Community. The company hit the headlines in 2011 when it was reported that the US military used a Cross Match product to identify Osama bin Laden during the assassination operation in Pakistan”. Cross Match was one of the first multi-national Bio-metric Service Provider had secured the approval of UIDAI for the collection of Bio-Metric data of the citizens in the country in Aadhaar Scheme. On 2011 October Company had bagged the said approval and on September 2010 company received Provisional Certificate for use of UID program. GGI News Reports thatIn 2012, Francisco Partners acquired Cross Match Technologies Inc. Infamous Israeli Cyber Weapon group Called NSO is the one of portfolio company of Francisco Partners. This Multi-Giant links will helps to determine the depth of Multi Billion Dollar Industry of Bio-Metric. GGI News adds as per the new analysis by the research and market India’sBio-metric Market will hit by $2 Billion in 2018. Cross Match’s Indian partner is a Noida based Smart id. Since 2014 Smart id had carried out Bio-Metric Data Collection of 1.2 Million Peoples of the country. As per Wiki Cables these 1.2 Million Bio-Metric Data is now with CIA.

USA Patriot Act and Privacy of Individuals Around the Globe
The September 11, 2001 terrorist attacks prompted congressional action on many fronts, including passage of the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)Act. After the enactment of said act by Bush Administration, people outraged around the world and made protests against the unilateral movement by US Government. Many of provisions in the Patriot Act will curtail the privacy of individuals as well as American Citizens and others around the world. According to Patriot Act the Organizations within the states are bound to share their Cloud,Centralized Data Servers and other tangible and intangible sophisticated documents with federal agencies like NSA,FBI etc. Title II of the Act, Enhanced Surveillance Procedures, includes provisions that affect monitoring of Internet activities. Section 210 expands the scope of subpoenas for records of electronic communications to include records commonly associated with Internet usage, such as session times and duration. Section 211 clarifies that cable companies offering Internet services are subject to 18 U.S.C. ch. 119 (Wire and Electronics Interception and Interception of Oral Communications), 18 U.S.C. ch. 121 (Stored Wire and Electronic Communications and Transactional Records Access), and 18 U.S.C. ch. 206 (Pen Registers and Trap and Trace Devices)in their provision of those services. Cable companies had sought, in particular, to clarify their obligationswith regard to release of personally identifiable information about subscribers and whether they were required to notify the subscriber that the information had been requested by a governmental entity as required under the 1992 Cable Act. Under this section, no notification is required, but disclosure specifically does not include a subscriber’s video programming choices. Peter Swire, who served as privacy counselor at the Office of Management and Budget during the Clinton Administration, worries that the Act does not include sufficient provisions to deal with potential abuses by law enforcement of the new authorities granted in the Act. Title II of the Patriot Act, “Enhanced Surveillance Procedures,” expanded the reach of FISA ( Foreign Intelligence Surveillance Act) Court Orders to allow the FBI to obtain “an order requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism and clandestine intelligence activities.”

How did Indians reach in this Land Mark Judgement over Privacy and What is Next ?
In 2015 during Aadhaar petition J. Chelameswar’s 3 members bench struck on Kharak singh and M.P Sharma Case precedents,and they directed the question whether Right to Privacy is Fundamental Right or not to Constitution bench. CJI has the duty to constitute constitution bench but Honorable court sit idle. After 2 years gap again Aadhar petitions came before J Chalameswar’s bench and bench requested petitioners and Union of India to mention it before CJI seeking setting up of the Constitution Bench at the earliest, so as to decide the main matter referred to it in August 2015 . Then CJI constituted 5 members constitution bench in July. The first day of argument The Attorney General for India pointed that the existence of a fundamental right of privacy is in doubt in view of two decisions : the first M P Sharma v Satish Chandra, District Magistrate, Delhi was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh was rendered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On July 18 CJI JS Khehar constituted nine members constitution bench to decide whether Right to Privacy is Fundamental Right or not. Now 9 bench over ruled precedent cases with upholding J Subba Rao’s minority Judgement in Kharak Singh and marked Right to Privacy as fundamental Right. Now this unanimous judgement by constitution bench will help in Aadhaar Matter (J.Puttaswamy (retired) & Ors v Union of Inida) which is going to be start on September 5 before J Chalemeswar’s bench. It is the duty of respondents ( Central and other respondents like UIDAI,TRAI etc) to prove Aadhar doesn’t invade privacy and for now Petitioners have edge in Aadhaar Case. The impact over Right to Privacy Judgement don’t settle within the contours of digital privacy in modern era and will percolate into other infamous Statutes which prevents Cow slaughter across the various states in the country and Sections like 377 in Indian Penal Code.

“Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non state entities regulates aspects of social existence which bear upon the freedom of the individual” these are the words of J DY Chandrachud from the recent Judgement on Privacy. Here court clearly affirms that Right to Privacy is an inalienable right of citizen under Indian Constitution. Through this land mark verdict by Supreme Court of India protected Individual Privacy is under Part III of the Constitution. This will allow the peoples to seek Constitutional Remedies through Article 32 and 226 respectively in Supreme Court and High Court. The revelation by Wiki Leaks is again unveiled the vulnerability of centralized Bio-Metric Data System and interest of Private players in the largest Bio-Metric project of the world. Privacy is an inevitable element for the bodily integration of individual and any act to derogate the right will be the catacomb of physical existence.
(Author is a Law Student in Government Law College, Thrissur , Kerala and member of Citizen Collective for Digital Rights and Privacy)

Reference :

1. Marcia S. Smith, Jeffrey W. Seifert, Glenn J. McLoughlin, and John Dimitri Moteff : Resources, Science, and Industry DivisionThe Internet and the USA PATRIOT Act: Potential Implications for Electronic Privacy, Security, Commerce, and Government
2. Swire, Peter. If Surveillance Expands, Safeguard Civil Liberties. Atlanta Journal-Constitution op-ed, October 21, 2001
3. https://www.mayerbrown.com/publications/the-usa-patriot-act-and-the-privacy-of-data-stored-in-the-cloud-01-18-2012/
4. https://wikileaks.org/vault7/#ExpressLane
5. www.livelaw.in
6. JUSTICE K S PUTTASWAMY (RETD.) AND ANR V UNION OF INDIA AND ORS WRIT PETITION (CIVIL) NO 494 OF 2012
7. http://gginews.in/cia-spies-access-aadhaar-database/

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