Rights, Governance, and Trade-Offs
Policymaking as a Series of Uneasy Choices
Pranesh Prakash
Fellow
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
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Takeaways
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?
Aadhaar
Why do we feel the way we do?
How deeply have we thought about it? How strongly do we feel about it?
Aadhaar
How do we decide whether something infringes or violates a right?
Aadhaar
Are there any trade-offs?
Aadhaar
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
vs.
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?
Text
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?)