5. CONCLUDING REFLECTIONS AND RECOMMENDATIONS Digital identity systems impact people’s lives in many ways. Without legislative frameworks that protect human rights and equality, they can compound vulnerabilities and entrench discrimination. As Privacy International's Director of Policy, Lucy Purdon, shared with ISI: “ It's essential to have a proper legislative framework in place before a system is implemented. Data protection is an essential element of this, to cover the data in the system but also issues like how identity numbers are used. There has to be effective data protection legislation, providing responsibilities and obligations for processing activities and limited to that strictly and demonstrably necessary to achieve a legitimate aim. It should be implemented through an independent data protection authority. The law must be accessible to the public and sufficiently clear and precise to enable persons to foresee its application and the extent of the intrusion with someone’s privacy. All this should be established before deployment of the system. But, the scope and reach of an identity system means that data protection alone is not enough. To be sure that a system does not exclude or exploit, and respects human rights, there also has to be an effective legal framework on issues including gender, citizenship, equality, and more. A digital identity system itself does not provide a solution to these issues, but rather risks making these problem worse.144 The use of biometrics and the digitisation of registration in both Bangladesh and India highlights the fundamental importance of ensuring that refugee, stateless and other marginalised populations participate in consultations on the design and implementation of digitised personal identification systems. They reveal how digitisation can lock-in a foreign or stateless status and lock populations out of access to services and state protections, making the lives of marginalised populations increasingly precarious. As stated in the report of the Special Rapporteur on Racism: For stateless persons in particular, participants in consultations reported that the expansion of digital identification systems is destroying the informal means of survival that these groups have developed in the absence of proper documentation and recognition by the states in which they reside. Stateless persons, who are predominantly racial and ethnic minorities are systematically excluded from digital identity databases and documentation. Centralized biometric ID systems challenge the internationally recognized framework of nationality and citizenship in multiple ways.145 The global push for legal identities for all within the human rights and development sectors together with the push towards administrative efficiency as part of the reform process in Myanmar, leaves international development actors and private tech companies poised to provide technical and financial assistance to Myanmar to digitise registration data and roll out biometric IDs.146 Whilst inefficient administrative and legal systems in Myanmar contribute to the barriers many people in Myanmar face in proving their legal status and accessing rights and services,147 there are multiple concerns regarding the roll-out of such ID and registration schemes under the existing legal framework. With the 1982 Citizenship Law which discriminates on the grounds of race and fails to comply with international law in multiple other ways including in preventing statelessness,148 and an absence of laws protecting privacy and limiting state surveillance, the roll-out of digitised identity cards has the potential to cause further harm. A digitised system could entrench Rohingya statelessness in Myanmar, lock-in an imposed “foreignness”, and increase Myanmar’s capacity to further discriminate against Rohingya populations in Rakhine and elsewhere in Myanmar. Additionally, without changes to policies and practices in Myanmar that are applied to non-nationals in Rakhine state and Interview with Lucy Purdon, Privacy International, November 2020. On file with ISI. Ms. E. Tendayi Achiume, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/75/590 (November 2020) available at: https://www.ohchr.org/en/issues/racism/srracism/pages/indexsrracism.aspx [accessed 13/11/2020] 146 Ministry of Information (Myanmar), ‘E-IDs fundamental to e-governance : U Thein Shwe (23 January 2020) available at: https://www.moi.gov.mm/moi:eng/news/362 [accessed 11/11/2020] 147 Institute on Statelessness and Inclusion and European Network on Statelessness, ‘Country Position Paper: Statelessness in Myanmar’ (2019), available at https:// statelessjourneys.org/wp-content/uploads/StatelessJourneys-Myanmar-final.pdf [accessed 13/11/2020] 148 J. M. Arraiza and O. Vonk, ‘Report on Citizenship Law: Myanmar’ (2017) available at: https://cadmus.eui.eu/bitstream/handle/1814/48284/RSCAS_GLOBALCIT_ CR_2017_14.pdf ?sequence=1 [accessed 13/11/2020] 144 145 29