Rights, Governance, and Trade-Offs
Policymaking as a Series of Uneasy Choices

Pranesh Prakash

Centre for Internet and Society

Affiliated Fellow
Information Society Project, Yale Law School

Public Interest Technology Fellow

New America Foundation



CC-BY-SA 4.0
(copy, share, adapt: sharing is caring)

no proprietary standards or software were used in the making of this slide deck


Policymaking 101s

1. Public policymaking involves adjudicating between competing choices, including competing social goals, competing rights, all in a field of limited resources and often for people with divergent backgrounds.


2. A "rights-based approach" doesn't always lead to right answers.


3. Hanlon's Razor: Never attribute to malice that which is adequately explained by stupidity.  (But also: malice and stupidity aren't necessarily the only two options.)


4. Always be critical. Question received knowledge.

How do we feel about Aadhaar?

1. Is Aadhaar (or any other national biometric ID system) a net positive or a net negative?



2. Does Aadhaar infringe/violate fundamental rights?

How do we feel about Aadhaar?

3. Does Aadhaar enable fundamental rights?


Why do we feel the way we do?


How deeply have we thought about it?  How strongly do we feel about it?


How do we decide whether something infringes or violates a right?


Are there any trade-offs?


How should ground realities (including limited state resources) affect rights?

Thesis on Contradictions Within Social Goals/Rights

Examples of Trade-offs That Are At Times Inherent

privacy and state's duties

privacy and usability

privacy and fraud detection

security and usability

privacy and collective security

privacy and privacy

security and security

freedom of expression and privacy

Privacy vs. State's Duties

Compulsory universal vaccinations



Mother and child tracking system

Privacy vs. Usability

Third-party identity providers
(Facebook / Google)

Privacy vs. Fraud Detection

UIDAI + Limited transaction logs
NPCI + UID-IIN mapper

Security vs. Usability

Modes of authentication:

Iris/Fingerprints/Face + One-time passwords vs. PIN / demographics

Consequence: exclusion and even death.

Security+Privacy vs. Usability

Virtual IDs

Security vs. Security

Multiple biometrics databases
Singular biometrics database

Privacy vs. Privacy

Anonymous releases of personal photos


Tor Hidden Services / Onion Services

Freedom of Expression vs. Privacy

Right to be forgotten

Aren't Rights Trumps?


Can There Be a Conflict between Human Rights?

Aren't all human rights "universal, indivisible, interdependent, and interrelated"?


What about Steiner's argument that rights can never conflict and that rights must always be "compossible"?

Rights as Trumps?

Limitations in the Dworkinian view

Social goals vs. rights?

Social and economic rights vs.  civil and political rights?

Rights as Trumps?

Is security a social goal or a human right?

"Everyone has the right to life, liberty and security of person."


What of subsistence?

"Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."


"Motherhood and childhood are entitled to special care and assistance."

Rights as Trumps?

When there are so many rights, it is hard for rights to act as trumps.



(Is the rule against double jeopardy really a universal human right?)

Rights as Trumps?

Different limitations on different rights. If rights are indivisible, which set of limitations apply in any particular case?


In India, social and economic rights seem to be placed on a lower pedestal (in general), so how do we understand our position in the UN vs. our own Constitution?

Rights as Signposts?

Signpost vs. Map


Those who defend a policy (like Aadhaar) that you dislike aren't all evil, and those who attack such a policy aren't all being malicious


Policymaking involves making hard trade-offs. It's complicated!


While the quantum of the trade-offs can be reduced through optimization, the trade-offs cannot themselves be avoided


Architecture determines rights. Implementation determines rights.

("Code is Law")

Rights, Governance, and Trade-Offs

By Pranesh Prakash

Rights, Governance, and Trade-Offs

Slides for the "Rights, Governance, and Trade Offs" talk at Fundación Karisma.

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