Why should an organisation that focuses on the Internet be invited to such a committee? There are some obvious reasons related to data protection and big data. CIS had previously served on the Justice A. P. Shah committee that was tasked by the Planning Commission to make recommendations on the draft Privacy Bill in 2012. There are also some less obvious connections, such as academic research into cyborgs wherein the distinction between human and machine or technology is blurred; where an insulin pump makes one realise that the Internet of Things could include the Internet of Body Parts. But for this note I will focus on biometrics — quantifiable data related to individual human characteristics — and their gate-keeping function on the Internet.
The bouquet of biometric options available to technologists is steadily expanding — fingerprint, palm print, face recognition, DNA, iris, retina, scent, typing rhythm, gait, and voice. Biometrics could be used as authentication or identification to ensure security and privacy. However, biometrics are different from other types of authentication and identification factors in three important ways that have implications for human rights in information societies and the Internet.
Firstly, biometrics allow for non-consensual authentication and identification. Newer, more advanced and more expensive biometric technologies usually violate human rights more extensively and intensively than older, more rudimentary and inexpensive biometrics. For example, it is possible to remotely harvest iris information when a person is wide awake without even being aware that their identification or authentication factors have been compromised. It isn't difficult to imagine ways to harvest someone's fingerprints and palm prints without their knowledge, and you cannot prevent a security camera from capturing your gait. You could use specialised software like Tor to surf the World Wide Web anonymously and cover your digital tracks, but it is much harder to leave no trail of DNA material in the real world.
Secondly, biometrics rely on probabilistic matching rather than discrete matching — unlike, for example, a password that you use on a social media platform. In the 2007 draft of India's current Human DNA Profiling Bill, the preamble said "the Deoxyribose Nucleic Acid (DNA) analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead, without any doubt." This extract from the bill was quoted in an ongoing court case to use tampered chain of custody for DNA as the means to seek exoneration of the accused. And the scientists on the committee insist that the DNA Data Bank Manager "...shall communicate, for the purposes of the investigation or prosecution in a criminal offence, the following information to a court, tribunal, law enforcement agency ... as to whether the DNA profile received is already contained in the Data Bank" — in other words, a "yes" or "no" answer.
This is indeed odd for those who come from the world of Internet policy — especially when one DNA lab worker confidentially shared that after a DNA profile was generated the "standard operating procedure" included checking it against the DNA profile of the lab worker to ensure that there was no contamination during the process of generating the profile. This would not be necessary for older forms of biometrics such as the process of developing a photograph. In other words, chain of custody issues with every generation of biometric technology are getting more and more complex. In the developing world, the disillusioned want to believe that "technology is the solution." The fallibility of technology must determine its evidentiary status.
Finally, biometrics are only machine-scrutable. This means machines and not human beings will determine whether you are guilty or innocent; whether you should get subsidised medicine, grain, or fuel; whether you can connect to the Internet via mobile phone, cybercafé or broadband. DNA evidence is not directly observable by judges and therefore the technology and equipment have to be made increasingly transparent so that ordinary citizens as well as the scientific community can audit their effectiveness.
In 2009, the Second District Court of Appeal and Circuit Court in Florida upheld a 2005 ruling requiring CMI Inc, the manufacturer of Intoxilyzer 5000, to release source code, failing which evidence from the breathalyser would be rendered inadmissible in more than 100 drunk driving cases. If the transparency of machines is important when prosecuting misdemeanours then surely this is something we must advocate for when culpability for serious crimes is determined through DNA evidence and other types of biometric technologies. This could be accomplished by the triad of mandates for free/open source software, open standards and open hardware. This is not necessary for all DNA technology and equipment that is used in the market, but only for a small subset of these technologies that impinge on our rights as human beings via law enforcement and the judicial system.
It has been nine years since India started the process of drafting this bill. We hope that the delays will only result in a robust law that upholds human rights, justice and scientific progress.