Dr. Ronnie Yearwood and Niel Harper recently collaborated to provide expert comments on the National Identity Management System Act (2021) just passed by the Government of Barbados. Given that this piece of legislation was quickly passed with no opportunities for public debate or feedback, we felt it necessary to articulate and ventilate some of our key concerns with the statute in its current form.
GENERAL COMMENTS
Disability and Accessibility
- In line with the obligations under the United Nations Convention on the Rights of Persons with Disabilities, there are no provisions in the Act for mandatory accessibility features in the digital ID and related services. As such, persons with disabilities may be excluded.
Oversight and Liability
- There is no mention of a supervisory and oversight body that ensures the digital ID system is used for its intended purposes (to prevent abuse and misuse), to audit and certify the digital ID provider and third-party trust services, to address complaints, and ultimately provide redress.
- There is no mention of the liability to be assumed by the government or trust services providers to ensure due diligence, transparency and accountability of their operations and services related to the digital ID. The digital ID service provider (Government) and trust services providers should be liable for damage caused to any natural or legal person due to failure to implement robust privacy and security controls or otherwise disadvantage individuals via the delivery of the digital ID system.
Breach notification
- The Act does not speak to data breach notification and the relationship between this statute and the Data Protection Act (2019) which is critically important. Furthermore, the Office of the Data Commissioner does not have the staffing or capabilities to oversee the various activities related to large scale data collection and processing.
Comprehensive digital ID ecosystem
- The Act does not comprehensively cover electronic signatures, electronic seals, time stamps, electronic documents, and website authentication. The legal effect of the above needs to be clearly defined to avoid confusion. Existing practices, standards and legislation exist that can be built upon to address these matters which are integral to a functional digital ID system. Without those features, the Government will essentially be replacing the existing physical ID cards and not truly realizing the value of a digital ID ecosystem that delivers identity, authentication and trust services.
Interoperability
- The Act does not speak to an interoperability framework that guarantees the digital ID system is built using open standards and can be seamlessly integrated into national and cross-border digital identity ecosystems.
SPECIFIC COMMENTS
Discrimination and equality before the law
Section 5 (9) “A person who is a visitor shall not be eligible for registration in the National Register unless that person is a person to whom subsection (1) applies.”
(Section 5(1) covers persons, for example born in Barbados or citizens of Barbados who “shall be registered in the National Register.”)
- The point is that a person who is a visitor to Barbados shall not be eligible for registration in the National Register unless section 5(1) applies.
- Is it that only Barbadians and persons resident in Barbados must register to gain access to public services (see section 5(10)) regarding the fact that if you are not registered under the Act you cannot get a national registration number, cannot be added to the electoral register to vote, cannot obtain a permit to drive, or qualify to access any goods or services requiring presentation of the ID?
- This looks somewhat discriminatory because the same requirement does not seem to be placed on foreigners for any access to services. I have not seen a reason for this proposed by the government.
(Also see section 12(1) reads: “A person who is issued an identification card may be required to produce his identification card (c) for the purpose of voting in an election in Barbados; (d) for the purpose of accessing goods or services provided by the Government or the private sector… and that identification card shall be prima facie evidence of the identity of the person shown on the identification card…”)
Voter’s rights, registration and identification
Section 5(10)(d) “A person who is not registered under this Act shall not qualify to be added to the register of electors or the revised register of electors prepared under the Representation of the People Act, Cap. 12”
Section 34(1) “An identification card authorised under section 25 of the Representation of the People Act, Cap. 12 or under the Statistics Act, Cap. 192 shall remain valid for a period of 12 months from the date of the commencement of this Act.”
- Therefore, section 34(1) provides that an ID card under the Representation of the People Act shall only remain valid for 12 months from the commencement of the new ID law. When has the Act been commenced?
Section 12(1)(c) “A person who is issued an identification card may be required to produce his identification card for the purpose of voting in an election in Barbados.”
- This needs clarification as there should be more than one valid piece of identification to enable voters’ rights […]
To read the entire comments document, please click on this link.
You can also find a full copy of the ‘Barbados Identity Management Act’ here.
Niel Harper 