STEWARDING: DIGITAL GOVERNMENT & IDENTITY

PSGR has always been concerned about how the state regulates technology, to ensure the safety of the biology around us, from our mokopuna, to kōura, to the food crops that we consume. Rather than being ‘techno-optimists’ and engaging in hopeful imaginaries, we recognise that technology is embedded in political, cultural and social systems, and the way technology is harnessed and engaged is a function of how power operates in those systems.

A primary consideration is that technology should be regulated (stewarded and governed) in such a way as to ensure the health and safety of our most vulnerable, our pregnant mothers and children – of future generations. This technology may be GE, pesticides, food additives, EMF radiation, medical treatment - or our digital identities. Technology carries an added risk because the rate and magnitude of development and release of these technologies into social, human and environmental systems, far exceeds development of technology fifty, or one hundred years ago.

Renieris E. Human Rights and the Pandemic

Discussion drawing attention to regulation is 'controversial' because, very simply, if a technology is found to be unsafe and regulated, there will be an impact on corporate profitability. It can be contested, because - if we look at pollutant exposures, the impact on a 60kg adult is different from a baby, or for those experiencing second generation exposures. The capacity to regulate before harm has occurred, is due to the strength of the overarching regulatory regime, the degree of transparency and accountability built into the system in order to govern and place limits on the power of institutional actors with a vested interest.

Frequently, it takes many years before an unsafe new technology or initiative can be 'proven' safe in such a way as to enable regulation, as often, proving harm is difficult - and there is little funding or resourcing to explore the potential for harm (leaving civil society in a state of ignorance). Online data can be used and applied by large institutions, and that the way this data is applied or strategically weaponised can directly impact our wellbeing and health, and that of our children. We are also aware that for twenty years regulatory environments and the scientific communities that should support them, have been distinctly underfunded and state institutions have been encouraged to work cooperatively with the actors they regulate. This promotes an environment of 'regulatory capture'.

This is why PSGR has prioritised participation in discussion concerning the development of digital identity (or passports) and the ongoing social and legal governance of these technologies. As with all technologies, it is the stewardship of the technology in such a way that protects human health and wellbeing that is of the utmost importance.

Digital identity systems aggregate identification in one place. This produces an enormous amount of data which has potential to be exploited for behavioural and financial gains. Much of this can be ‘black boxed’, and the capacity for effective governance rests on the independence of commissioners, the ongoing oversight that can ensure that those tasked with the day-to-day management, are not susceptible to influences that result in political or legal erosion of the commitment to protecting the public interest.

As Elizabeth Renieris has noted:

The pandemic has highlighted the pressing global governance challenges we face with respect to digital technologies, from the swift erosion of privacy to mass surveillance, a widening digital divide and increasing digital exclusion, and a transfer of power and control over infrastructure from governments to private corporations. In the face of these challenges, proposed interventions that only address individual civil and political rights are unlikely to succeed. And yet, a human rights-based approach has never been more vital. Human rights can be relevant again in the age of technology when properly recalibrated to reflect a more balanced approach—one that integrates individual civil and political rights, such as the freedom of expression and privacy, with more collective economic, social, and cultural rights, such as the right to an adequate standard of living, the right to enjoy physical and mental health, and the right to take part in cultural life.

PSGR participated in the Department of Internal Affairs consultation Towards a Digital Strategy for Aotearoa. PSGR’s report reflected the importance of producing a robust overarching legal (constitutional) structure which would place the protection of human rights at the centre of all policy and legislative work.

PUBLIC CONSULTATION TO THE DIGITAL IDENTITY SERVICES TRUST FRAMEWORK BILL, DECEMBER 2021.

New Zealand Parliament website: Policy objectives

The Digital Identity Services Trust Framework Bill (the bill) is intended to establish:

[A] legal framework for the provision of secure and trusted digital identity services for individuals and organisations.

The policy objectives of the Bill are to—

help drive consistency, trust, and efficiency in the provision of digital identity services:
support the development of interoperable digital identity services:
provide people with more control over their personal information and how it is used:
enable the user-authorised sharing of personal and organisational information digitally to access public and private sector services.

The PSGR responded with a report to the Economic Development, Science and Innovation Committee. The PSGR considered that the current Bill was premature and that many pressing issues concerning law, technology, commerce and ethics remained unresolved.

Access our December 3, 2021, 21 page report to the Economic Development, Science and Innovation Committee PDF HERE

On April 19, 2022 the Economic Development, Science and Innovation Committee released their Commentary. This Bill is yet to reach the third reading. Over 4,500 people submitted their thoughts on the Bill, but the Committee considered that a late influx was attributable to misinformation campaigns.

Digital Identity Services Trust Framework Bill Government Bill
As reported from the Economic Development, Science and Innovation Committee Commentary. Page 3.

THE PSGR'S REPORT TO THE DIGITAL IDENTITY SERVICES TRUST FRAMEWORK BILL, DECEMBER 2021.

The PSGR's introduction to their report focused on the following issues:

The preferred government intervention is a governance and compliance regime targeted to the governing of service providers who would supply. The Trust Framework is designed to ‘align with trust frameworks in Australia, Canada and the United Kingdom, and is the basis for delivering on the Prime Minister’s commitment under the Single Economic Market agenda for mutual recognition of digital identity services with Australia’ (July 2, 2020, Department of Internal Affairs).

The public have not been provided input into the policy consultation. Transparently, the Cabinet and official’s preoccupation with the DIB concerns operation of the governance board and accreditation practicalities rather than the overarching policy or public interest questions of policy.

This fails the goal of being people-centred because governance in this respect is narrow and instrumental. ‘Governance’ as evidenced in the development of related policy is narrowly constructed (instrumental) and concerns the establishment of a governance board or the accreditation team.

Policy papers supporting this DIB and the Bill itself focus on reporting systems, and give no indication that any anticipatory regulation will occur to actively prevent harm. It is not evident that these institutions will have adequate powers of scrutiny, and the regulatory teeth, both to anticipate error and malfeasance, and to monitor and analyse the boundaries of risk and prevent harm before the harm has occurred.

The supporting policy and the DIB itself are configured to solve a narrow problem. The proposal assumes that trusted providers will be ‘trusted’ without setting in place overarching aims and values to assist long-term policy and decision-making. 2 7. Broader assessment of best practice in other jurisdictions outside the Anglo-American world, including considering the European framework, the Scandinavian countries (progress of the Nordic/Baltic e-ID project (NOBID)), and Estonia appears not to have been undertaken. 8. Governance of digital identity is a distinctly socio-technical - human and technical - endeavour. The decision-making that protects the public interest should be informed by values that then inform technical decisions. The DIB should reside inside a larger policy environment that reflects greater norms and values (as a constitutional approach) - that then guides the legislation and the judgments of officials when presented with information (as intelligence).

Democratic deliberation ensures that the policy platform and rules in place are more likely to be robust, reduces risk that unanticipated problems will occur, and creates an environment where a novel technology is more likely to be utilised and trusted over the longer term. 10. Democratic deliberation is important for the development of normative frameworks, publicly shared understandings of common terms which are subject to legal interpretation. Legacy approaches, cultural differences, regulatory dynamics and political environments are all institutional properties which impact how important concepts are understood.

Digital identity systems can amplify inequalities and produce unjust outcomes. This can occur through the methods of collection, which can produce barriers to disadvantaged groups; and by the potential use of intelligence gathered through information gathering and accumulation.

Stewardship requires resourced technological, legal, ethics-based and technical investment to predict and navigate threats. Surveillance and data theft is often invisible and/or silent. It does not involve cutting and pasting, or the leaving of fingerprints.

PSGR submit that broader consultation is required in order to provide an overarching governance and constitutional structure in order to ensure the future DIB is ‘people-centred’. We do not consider it necessary to fast-track the Bill through Select Committee and quickly achieve Royal Assent.

PSGR submits that the DIB does not progress, and instead, adopts and engages in a transparency-based Kiwi version of ‘comprehensive engineering’, proposed by Delft University ethics and technology researchers: ‘Adequate solutions to systemic problems - especially a pandemic—are always systems solutions, which take into account many technological aspects, human behaviour, values, and norms. Comprehensive engineering is a form of complex systems (dynamics) engineering (complex adaptive systems) accommodating different aspects of socio-technical systems: systems dynamics and complexity, moral, social (legal, institutional, behavioural and economic, cultural) and technical aspects. This is an interdisciplinary and multi-disciplinary approach to engineering, offering comprehensive analyses and future solutions.’

The Bill can be read in depth in PDF form on the Parliamentary site or on our page HERE.

Reference: Renieris E. Human Rights and the Pandemic: The Other Half of the Story How our approach to technologies deployed during the Covid-19 pandemic demonstrates a need to recalibrate our view of human rights in the digital age. Carr Center for Human Rights Policy Harvard Kennedy School, Harvard University. Text.

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