Tue | Dec 18, 2018

Gordon Robinson | The Big Spy

Published:Sunday | November 19, 2017 | 12:00 AM

Readers expecting me to get involved in the political three-ring circus put on by the Senate over the National Identification System (NIDS) Bill can stop reading now.

I don't give a flying fig about any politically inspired distraction. The sole issue squarely before Jamaica is privacy with a capital 'P'. And, of course, trust (with a capital 'T'):

Well, either you're closing your eyes to a situation you do not wish to acknowledge, or you are not aware of the calibre of disaster indicated by the presence of a pool table in your community.

Well, ya got trouble, my friend. Right here, I say, trouble right here in River City With a capital 'T'; and it rhymes with 'P' and THAT stands for Pool!

Eric Arthur Blair (better known by his pen name, George Orwell), a lucid, uncompromising philosopher and enemy of totalitarianism or social injustice, predicted, in 1949, that, by 1984, the State would exert complete control over social life. Big Brother would be watching you!

But it wasn't until the early 1990s that Thailand, a constitutional monarchy dominated by the military, inaugurated a centralised database system to monitor its 55 million citizens. According to David Flaherty in his excellent 1991 treatise 'On the Utility of Constitutional Rights to Privacy and Data Protection':

"[T]he system includes a Population Identification Number (PIN) with a required computer-readable ID card with photo, thumbprint, and imbedded personal data. Such Personal Identification Numbers are the key to creating a surveillance society. The Thai system ... is designed to track voting patterns, domestic and foreign travel, and social welfare. Twenty-two network terminals will eventually permit 12,000 users to have access to this relational database."


Intrusive Surveillance


Technological advances have permitted even more intrusive surveillance. The usual government camouflage is 'data protection' (keeping your information from the 'wrong' hands), which is different from 'privacy' (best and most simply defined as the right to be left alone).

The USA constitution doesn't include an express right to privacy, but the Supreme Court used the Fourth Amendment right against arbitrary search and seizure and Fifth Amendment right against self-incrimination to imply one.

The Canadian constitution also doesn't explicitly recognise a right to privacy but does guarantee conscience, thought, belief, opinion, life, liberty, security of the person and, in Section 8, security against arbitrary search and seizure. The Canadian Supreme Court also implied a right to privacy against governmental encroachment [see Hunter v Southam, Inc 2 S.C.R. 145, 159-60 (1984) where Section 8 was held to be "all about privacy"].

In Hunter, a newspaper's premises and files were searched under a statute whose constitutionality was challenged. Chief Justice Brian Dickson stated that the function of a constitution "is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a ... Charter of Rights, for the unremitting protection of individual rights and liberties." The court determined Section 8's purpose was "to protect individuals from unjustified state intrusions upon their privacy".

The Canadian Supreme Court also found the limitation that only "unreasonable" searches were unlawful (Hunter, pp 159-160): "indicates an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement ...".

"Law enforcement" could trigger the balancing of competing "interests". Chief Justice Dickson further wrote (pp161-162): "the individual's right to privacy will be breached only where ... the interests of the State are ... demonstrably superior ... . The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone ... where credibly based probability replaces suspicion."

A citizen's right to privacy cannot be abrogated because it'll make administration easier.

In R v Dyment [2 S.C.R. 417 (1988)], a blood sample was taken from an emergency patient without his knowledge or consent. CSC found three privacy breaches, namely territorial/spatial; personal; and informational. CSC (pp 427-428): "[T]he restraints imposed on government to pry into [citizens'] lives go to the essence of a democratic state."

CSC said (p 429) privacy claims were based on the need to protect the sanctity of human dignity, individual dignity and integrity.

Jamaica's charter guarantees similar rights: "(j) the right of everyone to:

(i) protection from search of the person and property;

(ii) respect for and protection of PRIVATE AND FAMILY LIFE, AND PRIVACY OF THE HOME (my emphasis); and

(iii) protection of PRIVACY OF OTHER PROPERTY (again, my emphasis) and of communication."

For ease of reference, here's Canada's constitutional provision (interpreted to include a right to privacy):

"Everyone has the right to be secure against unreasonable search or seizure."

Jamaica's Parliament is forbidden to pass any law infringing constitutional rights, except as is demonstrably justified in a free and democratic society. So, what are Government's demonstrably justifiable reasons (law enforcement/crime detection?) for abrogating this express right to privacy "guaranteed" to every Jamaican? White Paper 01/2016:

"... Jamaica doesn't have any reliable means of efficiently verifying [every citizen's] identity through a single ... authoritative source of trusted identity." So, Government's current "means" (TRN, birth certificate, passport, driver's licence; voter ID) are neither "reliable" nor "efficient". Are they to be scrapped? Will NIDS be better? Does administrative bungling permit Government to obliterate my constitutional right to privacy? From whence will TRUST, eroded over 50 years, suddenly appear?

"Issues arising from the non-existence of NIDS include: ... social exclusion of the poorest due to lack of basic legal identity documents, fraud within social benefits programmes, identity theft ... ." So, we're abrogating three million citizens' privacy; taking intrusive biometric information, so poor people can access benefits? Puh-leeeeeeeeeze!

"There are also errors in some official records ... ." So what? Correct them. Will NIDS be error-free? How can we trust this new system? Government isn't telling us the truth.

"Existing identification numbers (TRN, NIS, voter ID, passport, etc) ... are sectoral and function-based. This means the sharing of information is challenging due to technical, logistical or legal barriers."

FINALLY! There it is. NIDS has NOTHING to do with poor people's social benefits; identity; "law enforcement"; "crime detection".

NIDS doesn't even pretend to protect your data. NIDS expressly permits Government to easily SHARE your data regardless of "technical, logistical or legal barriers". They admit they want to circumvent the law! Why? Goodman's Law, of course: Don't ask if it's about the money; it's ALWAYS about the money. TRN didn't help the taxman capture a single 'robot' taxi, so here comes NIDS like a new immuno-deficiency virus!

Analysts have been accused of falling asleep at the NIDS wheel before November 10's Senate fiasco. Not me. Cawn't sey mi neva dida warn yu! On June 27 ('Pick a card; any card') I wrote:

"... Government quickly slipped its new national identity legislation past a sexually stimulated media. Soon, Big Brother won't ... have to spy, as we'll hand our privacy to him on a silver database. The worst trick is to promise it's 'voluntary'. Of course, it's not. According to Onika Miller, when she was permanent secretary at OPM in 2015, multiple entities will have access to your NID information 'at different levels ...'. Adroitly misdirecting ... , Jacqueline Lynch-Stewart assured [us] that the system is 'safe, secure, and good for business.'"

"Safe from whom? Not Government. The REAL problem isn't security, and Mrs Lynch-Stewart let the cat out of the bag by continuing: 'Let me be clear. NIDS will ... be a one-ID system in Jamaica that, instead of carrying around multiple IDs, each of us will have one single ID that'll allow us to do business with Government.' Uh-oh!

"To obtain what's yours by right (for example, passport, driver's licence), you'd better have 'volunteered'. I predict this'll prove the most dangerously invasive legislation brought before Jamaica's Parliament. It's much worse than the Special Zones Bill ... ."

Since then, NIDS has discarded the veneer of voluntarism! NIDS' unmitigated gall is exposed by the White Paper that relied on Article 6 of the 1948 Universal Declaration of Human Rights as the policy's context: "Everyone has the right to recognition everywhere as a person before the law."

How sweet! I'm teary-eyed at Government's sudden interest in recognising human equality (except you're homosexual) and impressed it'd go so far in that regard as to destroy Jamaicans' constitutionally guaranteed privacy rights in order to share citizens' retinal scans/fingerprints across the public service. Who/where else will know?

Pity Government doesn't have similar respect for Article 12: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence ... ."

Meredith Wilson wrote Ya Got Trouble (about a travelling musical instruments salesman who uses a community's new pool table to foreshadow slippery slopes) for Broadway musical The Music Man (1957). Robert Preston performed the song in the 1962 movie version.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.