Biometric Technology at the Borders of Citizenship
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Whatever the forum for discussion, one shall caution against the overreach of
the private sector into the identification of the most appropriate standards for
remote digital onboarding in borderline contexts. Private companies are intimately
connected with abusive border patrolling (Davitti 2019; Davitti 2020) and too often
entrusted with the management of immigrants detention facilities (e.g. Radziwinowiczówna 2022; Yang 2022), which is exactly where some of the identity onboarding
procedures might take place; resultantly, the risk of deploying identity procedures as
detention management practices makes privatised violence and brutality even more
real than it already is – especially so when procedures are digitised and outsourced
to corporations on remote, turning accountable faces into ‘structural indifference’
(Bigo 2023, 231) and necropolitics (Davies, Isakjee, and Dhesi 2017, 1273–1274). In light
of the controversial role of private contractors in migration management, those
corporations which manage migration detention facilities should not participate in
the definition of standards for identity onboarding in borderline contexts. Indeed,
while it is not feasible to completely exclude corporations – especially multinational
ones – from standard-setting and regulatory practices (Graz 2018), one should still
aim to inject seeds of transparency, professional ethics, accountability, and social
responsibility into these processes by ‘regulating private regulators’ (Verbruggen
2019). This could be attained, for instance, via stringent rules against sliding doors,
conflicts of interests, secretive (unregistered) lobby, and regulatory capture, and by
sidelining those corporations which already exhibit a record of abuses throughout
the entire financing and supply chain, and which are contracted for border patrolling
and migration management in the same regions, insisting on the very same (segments of) populations the technology is being designed for. Decoupling corporate
rule-enforcement from corporate rule-making functions might also contribute to
debunking vested interests and preventing abuses (Van Loo 2020).
From a more economic (and specifically antitrust) perspective, while the lack of
standards may well lead to a series of anticompetitive behaviors, including vendor
lock-in effects (World Bank Group 2017, 6), enforcing privately selected standards
onto all market participants based on market power or regulatory capture is equally
detrimental to a healthy competitive environment. Recourse to open-source standards is therefore recommended, especially for and in the interest of developing
countries where it is expected that several updates to proprietary software would
otherwise be necessary (ibid., 26).
Lastly, when it comes to standard-essential patents on the hardware (and software, where patentable) of remote-onboarding stations and devices, their global
licensing in fair, reasonable, and nondiscriminatory (FRAND) terms should account
for the multijurisdictional nature of the aforementioned phenomena and refrain as
much as possible from non-comity behaviors such as anti-suit injunctions. Moreover,