“Everyone has the right to a nationality”

Global Data Justice: framing the (mis)fit between statelessness and technology

14 February 2019 | Linnet Taylor, Associate Professor at Tilburg Institute for Law, Technology and Society (TILT) & Hellen Mukiri-Smith, PhD Researcher at TILT

Global Data Justice is an emerging field of research centering on the idea that we should base the governance of data technologies on social justice principles, rather than, for example, prioritising rules that will promote economic growth at the expense of beneficial outcomes for people using (or not using) those technologies. It is based around the tension, on the global level, between the power of new data sources such as mobile phones and social media to make people visible in new places and new ways, and the need to protect people from being targeted as consumers, voters, refugees or any other identity in a way that is harmful to them. Should we make everyone visible and thus better understand their needs and how to represent them, or should we protect them from visibility and risk that they go uncounted and unheard? This tension makes the issue of data justice worth researching, particularly on the global scale where it is most extreme.

This tension is particularly relevant for stateless people. The plight of the stateless is they suffer from ‘public invisibility’: they are deprived of membership of any political community because they are without a national identity, have no legal claim to recognition from the governments of the countries they live in, and as a result cannot claim human rights protections or services from these governments.  Goal 16.9 of the Sustainable Development Goals (SDGs) calls for the provision of ‘legal identity for all, including free birth registration’ by 2030, but does not offer a definition of what constitutes legal identity or  ‘consensus or a legal framework around identification as a national (or access to nationality)’, meaning that the determination of whether a person has legal identity varies with each local context, and may prove to be ambiguous for vulnerable populations such as the stateless.

The right (not) to be registered

We are living at a moment where new data technologies are making the issue of visibility and identification very relevant for people who are stateless. The Rohingya are one high-profile example of the mismatch between having identification and actually having rights. In Myanmar they are being forced to acquire identity cards that classify them as noncitizens, and when they flee to Bangladesh they are asked by UNHCR to accept biometric ‘smart ID cards’ that they see as serving the same function, as well as making them repatriatable on other terms than their own.  This is evidence of 'biometrics function creep,’ where systems initially designed for the purposes of legal identity are used to aid in denationalization and repatriation of stateless people as a daily practice.

Governments and humanitarian organizations are therefore using biometrics databases as a tool for ‘inclusive exclusion’ that ‘feeds into the 'sovereign power' of deciding on who will and will not be provided with protection’, for the purposes of managing and controlling the identities and movements of stateless people.  In the case of the Rohingya, until they have control over what goes into the database about them, Rohingya activists argue, they will not receive justice. 

Identification vs. rights

In addition to biometrics, many other technological ‘identity solutions’ are being proposed in relation to refugees in particular, including ones based on blockchain systems. The ID2020 initiative, in particular, has the attention of tech giants and development donors. However, we need to ask critical questions of these systems. Does having an ID, whether in the blockchain or on a card, in itself lead to ‘protection, access to services, and basic rights’, as ID2020 coalition claims? Or is that done by governments through citizenship rights, which are hard-won, political settlements between states, refugees and the international community?  There is a real likelihood that registration and identification of stateless people though data technologies may not provide functioning citizenship of the kind which ‘signifies membership in a political community; membership that provides individuals with identity and human rights protections’.

This is for two main reasons. First, statelessness is not only a symptom of lack of birth registration. In many instances it is also a result of a combination of factors such as discriminatory laws against minorities, discriminatory nationality laws, poverty and anemic identification systems. Second, there are precedents that registration of birth and acquisition of other legal identification documents are not a guarantee against statelessness: see, for example, the ruling by the constitutional court in the Dominican Republic in 2013 where Dominicans of Haitian descent were denationalized on the grounds that birth registration documents, identification cards and passports were improperly issued. Similarly, in Kenya an identification card is not in itself proof of citizenship for Nubians.

The right to be excluded

Worryingly, calls by heads of states through the Global Compact for Safe, Orderly and Regular Migration for biometric identifiers be added to population databases [paragraph 35] and biometric data on migrants be shared among states and relevant organizations [paragraph 18] appear to be primarily aimed at managing the identification and return of stateless people, serving the interests of governments and humanitarian organizations but not the interests of the stateless.

The idea of ‘self-sovereign identity’ (SSI) – that you can prove your identity through a non-state database – is gaining acceptance amongst donors as an approach to providing economic identities to refugees and the stateless. But are we, as a community, interested in providing the vulnerable with the ability to work for Amazon Turkey from a refugee camp, or in the larger struggle of ensuring actual citizenship rights? Where should the responsibility of the international community end, and does a purely technical response suffice?

Elaborate technological fixes for verifying identity are attractive if you want to enable large numbers of consumers to prove their age to online service providers, banks, insurers and other commercial entities. They are well suited to what one might term ‘middle class problems.’ Whether these ‘solutions’ actually solve the kind of problems the Rohingya are facing, though, is what we should be debating. Once you remove the state from the picture, you could argue that people are not acquiring meaningful rights. They may be more able to start a bank account, to work and pay into it, and to buy things they need. But that doesn’t answer the problem of citizenship. Although working and eating are fundamentally important, the rights of citizenship are still the bedrock on which they are based. Anything else is just a ticket to the global gig economy with no home to return to at the end of your shift.   

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