A Guide to Litigating Identity Systems: The Right to Privacy and National Identity Systems

A common theme of all major pieces of national jurisprudence analyzing the rights implications of national identity system is an analysis of the systems’ impacts on the right to privacy.

The use of any data by the State including the implementation of an ID system must be done against this backdrop with respect for all fundamental human rights. The collection of data to be used in the system and the storage of data can each independently implicate privacy rights and involve overlapping and distinct considerations. Additionally, the particular risks associated with identity systems—heightened danger of cybersecurity attacks  and identity fraud,  as well as potential facilitation of mass surveillance —further threaten the right to privacy. Given these risks to privacy, it is vital to ensure that courts give adequate weight to potential privacy rights violations in their balancing of competing interests, so as to not allow disproportionate or unnecessary impacts on privacy in furtherance of the stated aims of the systems

National identity schemes implicate all of these components of privacy through the collection of biometric data, the use of biometric data for authentication, the storage and sharing of sensitive personal information, including biometric dat, in the system, and the mandatory nature of national identity systems.

This section of the guide provides a variety of arguments explored by different jurisdictions, addressing a variety of conceptions of privacy rights, and balancing the importance of privacy rights with proposed benefits of identity systems. Advocates and human rights defenders should utilize this section of the guide to raise identity systems’ impacts on privacy rights and challenge the systems under the proportionality frameworks used by courts to analyze the systems.