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private
ownership and use
This page considers cooption of consumers, card ownership
and private use of national identification schemes in
Australia.
It covers -
introduction
Politicians, officials and solutions vendors have typically
emphasised that a national identity card is intended as
a mechanism for public administration - in particular
the delivery of social services - and will not be used
by the private sector. In 2007 the federal Human Services
Minister, in introducing the Human Services (Advanced
Service Delivery) Bill, went further, characterising
the Access Card as "the anti-ID card" and commenting
that there would be prohibitions regarding private sector
use of the Card.
Ownership of the Access Card will be vested in the card
holder, a concession on the part of government that is
arguably meaningless, and those owners will be allowed
to "use their card for any lawful purpose they choose".
Claims that the Access Card (or a similar national identity
card) will be restricted to official use are disingenuous.
They are inconsistent with private sector use - and misuse
- of driver's licences and other identity documents such
as passports, uses acknowledged by the federal/state privacy
protection agencies and by the Access Card Task Force's
privacy advisers.
More broadly they pose questions about
- policymaking,
as ministers had recently mooted the benefits of a government
services card that provides a standard form of identification
and even features an electronic wallet capability
- the
shaping of debate about privacy, responsibility and
services, as a case can be made for private sector use
of a card if that use occurs within a coherent and effective
privacy framework.
card ownership
In discussing the Access Card and the earlier Australia
Card proposal we have differentiated between ownership
of the card (plastic, dye and a magnetic stripe or an
integrated circuit) and the information that underpins
the card.
The Explanatory Memorandum for the Human Services
(Advanced Service Delivery) Bill 2007 indicates
that
The
Bill will vest ownership of the card in the card holder.
This is intended to provide greater choice to individuals
about the uses to which they might choose to put the
card other than for health and social service purposes.
The card belongs to the card owner and he or she can
use the card for whatever lawful purpose they choose.
Vesting
provides the holder with ownership of the plastic, not
of the data.
The proposed legislation does not give the individual
rights over the data held by government agencies. Ownership
of the card does not entitle the holder of that plastic
to restrict how the data is used by government agencies,
when it is used by those agencies, whether it is used
and when it is deleted from any government database.
As with most property, including real estate, 'ownership'
is not an absolute right. The owner of a card will not
be able to sell the card to someone else (and use of the
card to deceive people, whether in the private or public
sectors, will of course be an offence under common and
statute law). The owner will not be allowed to destroy
the card, deface it or gift it to someone else.
The Explanatory Memorandum envisages that the
government will secure ownership of the name of the card
and an Access Card symbol.
cooption
Elsewhere on this site we have noted that driver's licences,
passports and official concession cards have for many
years been used by both public and private sector entities
as primary forms of identification.
That use reflects their inclusion of a photograph, name
and date of birth (or age). It also reflects perceptions
that the particular identity document is likely to be
authentic - a perception that some critics have noted
is problematical, with for example the trade in forged
drivers' licences and manipulation of 'proof of age' cards
by teens - and that courts will accept use of those documents.
It is thus common to encounter requests that consumers
identify themselves by displaying a drivers licence (or
equivalent) when opening an account with a video rentals
store, applying for a job, obtaining some items from a
pharmacy, renting equipment or a house, using a gymnasium
or gaining entry to a nightclub. Under the 100
Points regime a licence is, of course, a key identity
document for opening a bank account.
It is increasingly common for organisations to take copies
of those documents (eg make a photopy or scan a card)
or abstract information (enter details on a database)
for indeterminate retention and use.
Consumers are typically not forced to provide the identification
and state/territory legislation generally features provisions
prohibiting compulsory provision to unauthorised entities (eg businesses rather than police). Section 175(1) of the NSW Road Transport
(General) Act 2005 for examples specifies that
A
person must not (knowing that he or she is not by law
authorised to require its production) demand production
by another person of that other perso's driver licence.
Maximum penalty: 20 penalty units.
That
penalty has apparently never been applied.
In practice most choose to provide the identity document on the basis of convenience
(it is easier than gaining and displaying alternative
identification or using another retailer) and because
familiarisation has lowered sensitivities about potential
privacy abuses. Agreement to provide the identification
often signifies acceptance of terms and conditions, including
storage of the captured information and its provision
to third parties. There has been little case law regarding
efforts to restrict such uses.
Unsurprisingly, Subclause 6(2) of the Human Services
(Advanced Service Delivery) Bill
clearly
expresses the Government's intention that an access
card is not a national identity card and is not to become
a national identity card. However, if individuals choose
to use the card for identity purposes they may do so.
A
person will be taken to 'require' production of an access
card if
they
provide no reasonable option for a card owner to prove
that they are who they say they are. That is, a person
will contravene this clause if they require the access
card as the only acceptable source of proof of identity.
In
discussing action by officials the Memo notes
that
an
authorised person who copied a person's access card
number for a reason that was not connected with the
provision of Commonwealth benefits would commit an offence
under clause 57, unless that copying was with the card
owner’s written consent or was excused under section
10.5 of the Criminal Code Act 1995 (which would enable
copying if that was justified or excused by or under
a law).
national proof of identity
Protestations that the government services Access Card
will not be a "national identity card" have
become something of a mantra.
The government has not defined "national identity
card". If we take such a card to be a document that
- is
issued to all adult citizens (and residents)
- must
be carried by those individuals (eg while driving, in
the street, in restaurants, at work, at sporting and
cultural events)
- must
be produced as proof of identity when requested by law
enforcement officials and other agents of the state
the
disavowals by government are legitimate. Claims that the
card will be "an anti-Identity Card" are however
nonsensical.
The Access Card will provide a key - if not the
key - proof of identity in dealings with government.
It will also become the de facto national standard
proof of identity in private sector interactions, replacing
the drivers licence used by many Australians.
That use reflects -
- legal
permissibility - individuals can treat the card as their
preferred proof of identity document
- convenience
- the card will be small and cheaper to obtain than
a passport
- expectations
- the card is being promoted as technologically more
advanced ("the smartcard" with "a biometric
photograph and digital signature") and as more
legitimate than drivers licences and most other existing
identity documents
- ubiquity
- most adult Australians will have a card, in a standard
format and with a photograph.
Will
Access Cards be forged?
The answer is yes.
There is a commercial incentive for people to manufacture
and use fake cards as a proof of identity in private sector
transactions (in much the same way that people use fake
drivers licences for purposes other than identification
when dealing with traffic police). Massaging an image
and a bit of plastic so that it appears to an authentic
card is trivial.
Most people in the private sector, lacking online verification
mechanisms, will presumably take cards at face value.
The user of a fake card that doesn't feature egregious
errors (eg is the wrong colour or has a typo in a word
such as 'Australia') is unlikely to be detected purely
through use of that card unless the user is stupid enough
to interact with a government agency or agent such as
a doctor.
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