A Guide to Litigating Identity Systems
e) The majority opinion in the Aadhaar judgment is significantly less
concerned with security risks, partly because of the offline storage used in
the Aadhaar system.100 The majority also highlights the potential data
protection law101 and limits the length of time for which data can be
stored. The majority found the time period to be unreasonable and too
great a risk to an individual’s right to be forgotten.102
f)
The Supreme Court of the Philippines identified a risk that, in the event of
a security breach, an intruder could access or manipulate the information
stored in an identity system, leading to exposure or alteration of an
individual’s loan availments, income tax returns, and documents
regarding sensitive medical information.103
37. The storage of biometric data for authentication in an identity interferes with
the right to privacy because the data is permanent, and its collection and
storage inhibits an individual’s ability to be forgotten.
a) The majority opinion in the Aadhaar judgment discusses the right to be
forgotten,104 although it ultimately finds the identity system to be
constitutionally permissible.105 The majority conceives of the right to be
forgotten as the “right to prevent or restrict disclosure of personal data
by a fiduciary.”106
b) Influential scholarly sources for the dissenting opinion in the Aadhaar
judgment argue that biometric data collection specifically implicates the
right to remain anonymous.107 Anonymity is inextricably associated with the
right to privacy as an individual cannot have a reasonable expectation that
100 Aadhaar Judgment, ¶ 48 at 57.
101 Aadhaar Judgment, ¶ 225 at 298.
102 Aadhaar Judgment, ¶ 205 at 283.
103 Blas F. Ople, Part III at 5.
104 Aadhaar Judgment, ¶ 205 at 282.
105 Aadhaar Judgment, ¶ 308 at 376.
106 Aadhaar Judgment, ¶ 225 at 298.
107 Aadhaar Judgment, ¶ 127 of dissent.
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