1. LEGAL IDENTITY FOR ALL AND DIGITISATION OF ID One facet of the digital border is the expansive use of biometrics or the “automated recognition of individuals based on their biological and behavioural characteristics[.]” Biometrics can include fingerprint data, retinal scans, and facial recognition, as well as less well-known methods such as the recognition of a person’s vein and blood vessel patterns, ear shape, and gait, among others. Biometrics are used to establish, record and verify the identity of migrants and refugees… Researchers have documented the racialized origins of biometric technologies, as well as their contemporary discriminatory operation on the basis of race, ethnicity and gender… The frequent results of this differential treatment include perpetuation of negative stereotypes, and even prohibited discrimination that for asylum seekers might lead to refoulement.¹⁷ Recent years have seen more countries introduce and roll out digital identification systems, which store biometric data and have become gateways to access other rights and services. This global push for digital identification systems can be understood within the context of the UN Sustainable Development Goals (SDGs) target to achieve “legal identity for all” by 2030.¹⁸ The aim of the SDGs is to “leave no one behind”, and there can be strong arguments made, that the push for digital identity can be an equaliser, through which previously undocumented and unseen groups are counted and thereby factored into development planning. This push may even provide an opportunity to ensure that stateless or undocumented persons are included in the mainstream development agenda.¹⁹ Digital identities can be utilised towards social protection and poverty alleviation, enabling marginalised or hard to reach communities to access services²⁰ more easily, including health, social and financial services. Within this context, large development actors, including private tech companies, have prioritised digital solutions to these issues. The most significant of these drives is the World Bank Group’s ID for Development programme (ID4D). The goal of the ID4D is for all people to be able to access services and exercise their rights, enabled by digital identification. ID4D directly supports countries to achieve Sustainable Development Target 16.9 and in making progress towards dozens of other targets such as poverty elimination, reduced inequalities, gender equality and women’s empowerment, safe and orderly migration, universal health coverage, and financial inclusion, among others.²¹ for Development programme (ID4D). Agencies working with refugee and stateless populations such as UNHCR and IOM have also utilised biometric Ms. E. Tendayi Achiume, ‘Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance’, A/75/590 (2020) available at: https://www.ohchr.org/en/issues/racism/srracism/pages/indexsrracism.aspx [accessed 13/11/2020] 18 UN Legal Identity Expert Group, ‘United Nations Strategy for Legal Identity for All’ (2019), paras 12 & 13, available at: https://unstats.un.org/legal-identityagenda/documents/UN-Strategy-for-LIA-draft.pdf [accessed 13/11/2020]. While the SDG’s did not define the term ‘legal identity’, a subsequent operational definition was agreed by UN Legal Identity Expert Group. Accordingly: “Legal identity is defined as the basic characteristics of an individual’s identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorized civil registration authority following the occurrence of birth… In the case of refugees, Member States are primarily responsible for issuing proof of legal identity. The issuance of proof of legal identity to refugees may also be administered by an internationally recognized and mandated authority”. This definition, while providing useful insight into how UN entities will be approaching SDG 16.9, is not necessarily reflective of a wider human rights based position, according to which key human rights principles (legal personhood, equality before the law, the right to a name, nationality and to know one’s parents etc.) should centrally inform understandings of legal identity. For a deeper critique, see Institute on Statelessness and Inclusion, “Statelessness, Human Rights and the Sustainable Development Agenda: A Working Paper” (2017), available at: https://files.institutesi.org/SDG_working-paper2017.pdf [accessed 13/11/2020] 19 A. Gelb and B. Manby, ‘Has Development Converged with Human Rights? Implications for the Legal Identity SDG’ (2016) available at: https://www.cgdev. org/blog/has-development-converged-human-rights-implications-legal-identity-sdg [accessed 11/11/2020]; See also, Institute on Statelessness and Inclusion, ‘Making SDG 16.9 work for the wider Sustainable Development Agenda: Lessons from the citizenship, statelessness and legal identity community’ ( 2019) available at: https://files.institutesi.org/legal_identity_policy_brief.pdf [accessed 13/11/2020] 20 Internet Health Report, ‘A global push to identify everyone everywhere, digitally’ (2019) available at: https://internethealthreport.org/2019/a-global-pushto-identify-everyone-digitally/ [accessed 13/11/2020]; See also P. Rawat and J. C. Morris, ‘The Global and the Local: Tracing the Trajectory of the Largest Biometric Identity Program’ (2019) 47 Politics & Policy 6, available at: https://onlinelibrary.wiley.com/doi/epdf/10.1111/polp.12334 [accessed 13/11/2020] W. Ben-Hassine, ‘Digital identity programs: what could go wrong? Our contribution at UNCTAD’s E-Commerce Week’, Access Now Blog (2018) available at: https://www.accessnow.org/digital-identity-programs-what-could-go-wrong-our-contribution-at-unctads-e-commerce-week/ [accessed 13/11/2020] 17 7