For any country, it is important that Government has systems in place.
For every person, the state needs to know, amongst other things, name, date and place of birth; nationality; whether the person is alive or dead, married or single and the details of their children.
Human rights
Neither the State nor society in general can function if individual identities are unknown. The Department of Home Affairs (DHA) is the undisputed custodian of identity. However, identity must be managed within the framework of the Constitution, and the human rights of citizens must be respected and protected.
It has been argued that there is a level of re-alignment required in South Africa when it comes to identity and immigration services. The DHA has stated that as presently constituted, it is not able to efficiently, securely and strategically deliver identity and immigration services. Therefore, plans are underway to put in place a comprehensive and secure National Identity System (NIS).
Develop and manage
Indeed as citizens we should welcome a comprehensive and secure National Identity System (NIS). A NIS would reduce fraud, improve services and enhance investment opportunities. It will also for the backbone of a national security system. It is important for security purposes to know the citizens in South Africa.
But unfortunately it has been stated by the DHA that the department operates without critical specialists needed to develop and manage systems and protect data from being compromised by criminal syndicates.
Information
These debates directly relate to personal information. The question therefore is what constitutes personal information. Personal Information (PI) is a very wide concept in terms of the Protection of Personal Information Act, Act 4 of 2013 (POPIA). PI is any “information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person”.
Ordinary PI includes, amongst others:
- ID numbers, any identifying numbers (e.g. a passport number but also the unique number that a company gives to its customer);
- information about where a person is (e.g. information that a GPS on a cellphone would track); and
- any unique physical, physiological or behavioural characteristics that can be used to identify an individual. Examples include fingerprints, DNA analysis, blood type, retinal scans and voice recognition.
The fundamental purpose of POPIA is to give effect to the constitutional right to privacy. The right to privacy, which is protected by section 14 of the Constitution, includes information privacy which is a person’s right to control access to and the use of private information whether by Government or the private sector. POPIA applies equally to processing activities undertaken by “public bodies”.
However, POPIA does not apply to a public body when:
- the processing of personal information relates to national security (“national security” includes the identification of financing used for terrorist and related activities or the defence of public safety); or
- the public body is involved in preventing, detecting, investigating or proving offences prosecuting offenders or executing criminal sentences.
These two exclusions only apply to the extent that “adequate safeguards have been established in legislation for the protection of such PI”. One has to consider the integrity of the information as well as security and security safeguards when it comes to personal information.
Prevent
Section 19 of POPIA provides that a responsible party must ensure the integrity and confidentiality of the personal information in its possession by putting “appropriate” and “reasonable” technical and organisational measures in place to prevent – the loss of, damage to; unauthorised destruction of, unlawful access to or unlawful processing of personal information.
The question is how would reasonableness be determined going forward by Home Affairs? This while they themselves stated that they are not able to efficiently, securely and strategically deliver identity and immigration services.
Security must take into account in the design, testing and piloting of systems, and there must be adequate disaster recover, business continuity and redundancy. These are matters that would require detailed attention when it comes to the NIS.
Revenue
Also, South Africans will have to own the vision of a modern Home Affairs and support the capital investment needed to build a capable department and highly secured agile systems. The DHA will need to build, maintain and secure the systems, infrastructure and organisation necessary for the management of identity and international migration.
It is therefore proposed that the sale of identity services and products would constitute a revenue stream for this development and also that potential partners could include the Government Printing Works, the CSIR and private sector companies. Funding requirements set aside, where does this leave the individual citizen in terms of his/her Constitutional right to privacy and the protection of personal information.
Checks and balances
What has been envisaged is that certain official transactions will require an individual’s identity to be verified, such as the transfer of a house or a vehicle, would attract a fee for a check against the NIS on a cost-recovery basis.
Other examples of foreseen mandatory compliance requiring DHA biometric identity checks are events for example such as banks complying with FICA legislation requirements; airlines verifying the identity of passengers; telecom providers for RICA compliance and higher education student verification for registration and access to examination centres.
A NIS at an additional cost to the citizens. State security and your personal information, require rights to be balanced and definitely checks and balances will be required to ensure the integrity as well as security of personal information.
We all, have rights and all rights must be balanced. Will Home Affairs be able to do so? Only the future will tell.
Ahmore Burger-Smidt | Director | Werksmans Attorneys | aburgersmidt@werksmans.com | www.werksmans.com |
