Trade-Offs in Governance and Rights
Policymaking as Uneasy Choices

Pranesh Prakash

Fellow
Centre for Internet and Society

Affiliated Fellow
Information Society Project, Yale Law School

 

 

 

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Takeaways

Policymaking 101s

1. Always be critical. Question received knowledge.

 

2. 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.

 

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.)

What I Won't Cover

1. Evolution of the right to privacy in India

 

2. Excessive surveillance in India +
Complete lack of accountability

 

Surveillance in India: Policy and/versus Practice (video)

How Surveillance Works in India

Can India Trust It's Government on Privacy?

 

3. "What are the (numerous) problems with Aadhaar?"

How do we feel about Aadhaar?

1. Is Aadhaar 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 Inherent Trade-offs

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

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

Privacy vs. Fraud Detection

(Inaccurate assumptions)

  • Aadhaar as financial address (fails without authentication): Andhra
  • Biometrics for authorization (fails since biometrics are public): Surat
  • Aadhaar as real identity (fails since fake biometrics are possible): Kanpur

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

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 are always "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.

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?

Takeaways

Those who defend Aadhaar aren't all evil, and those who attack Aadhaar aren't all being malicious

 

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

 

While the size 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")

Trade-Offs in Governance and Rights

By Pranesh Prakash

Trade-Offs in Governance and Rights

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