Identification versus anonymity in e-government SOME IMPORTANT DISTINCTIONS: OPACITY AND TRANSPARENCY TOOLS

Some important distinctions: opacity and transparency tools

To answer this question, it is good to recall the distinction we made in FIDIS deliverable D7.4 between privacy as an opacity tool and data protection as a transparency tool.

In a nutshell, in D7.4 Hildebrandt and others explained that transparency tools are directed towards the control and channeling of legitimate uses of power, and compel government and private actors to ‘good practices’ by focusing on the transparency of governmental or private decision-making and action, which is the primary condition for an accountable and responsible form of governance. Data protection regulation is such a transparency tool with regard to one of the most important governmental assets: (personal) information. It sets, inter alia, the rules with regard to the legitimate processing of that information, creates specialized and independent bodies to control and check the actions of government, and so on.

A different set of tools are opacity tools, such as privacy, which protects natural persons, their liberty and autonomy against state interference and also of interference of other (private) actors. They are essentially linked to the recognition of human rights and the sphere of individual autonomy and self-determination. Both doctrine and research projects that work with the concept of privacy often understand informational privacy as: ‘The freedom of a natural person to sustain a “personal space”, free from interference by other entities’ or as ‘the right of a natural person to decide for itself when and on what terms its attributes should be revealed.’

In sum, tools of opacity set limits to the interference of power in relation to the individuals’ autonomy and thus with the freedom to build identity and self. It can also be said that opacity tools imply the possibility and protection of the anonymity of individuals and their actions. Keeping identity data out of the public sphere can, for instance, lead to avoiding undesired identification and/or profiling.

In practice, privacy as an opacity tool can be attained via identity-obfuscating techniques, based on which (some or all) user’s characteristics or traces are hidden (made opaque), and thus make undesired identification more difficult. Some of the techniques used for that are anonymity, unlinkability, unobservability, pseudonymity, and encryption. Various European projects research identity management system. Some of these, like the EU PRIME project, This type of IDM systems, also known as FIDIS type 3 IDM systems (see FIDIS deliverable D3.1) is certainly privacy-enhancing, but it is not being implemented in Belgian eGovernment.

Notwithstanding privacy’s core importance, it is clear that privacy is a relatively weak fundamental right: not a single aspect of privacy takes absolute precedence over other rights and interests and never does an individual have absolute control over an aspect of his/her privacy.

Privacy can be restricted when balanced against other interests (rights of others, law enforcement, public health, etc.) and under a number of conditions (such as the legality of the restriction). The interference should correspond to a pressing social need and take into account the principle of proportionality. Tasks government entities carry out for the public interest justify to some extent limitations of the right to privacy and exceptions of the general data protection rules.

It is self-evident that these exceptions and limitations also affect the privacy components of the identity management architecture used in eGovernment. Concretely, this means that a privacy-enhanced identity management architecture based on user control and pseudonyms – such as the one developed by PRIME – will not always be a realistic option, especially not in those contexts where privacy coexists with a number of strong other interests and exceptions, such as in eGovernment.  

A relevant question that arises in this context is: when a government – such as the Belgian federal government – chooses for a Benthamite approach to identification, and identity knowledge thus indeed increases, can some degree of privacy still be provided to the government’s clients?

In our point of view, this is the case. We come back to this later. First, we explain why we believe Belgian federal eGovernment indeed allows an increased identity knowledge.