Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR existence a legal framework on the collection and processing of personal data, adequate protection of the data requires the operationalization of the said legal framework. 854. The second front of the arguments put forward on the protection and security of the personal data to be collected pursuant the impugned amendments relate to the design and implementation of NIIMS. There were three limbs to these arguments. The first limb of the arguments made by the Petitioners in this regard was that extensive personal information is being collected by NIIMS in a centralized database which is linked to other functional databases, exposing it to breaches and unauthorised disclosure. 855. The 1st Petitioner submit in this respect that it is clear from the Respondents’ evidence and public statements that NIIMS and the Huduma Namba associated with it are designed to create a cross-fertilized web of databases containing personal data of all sorts, and the Respondents have not provided any evidence to suggest that the NIIMS database and other government databases will not be linked in any way. In its view, the Respondents have not controverted the Petitioners’ prima facie case that the databases will seed each other, permitting invasive searches using a single unique identifier that links across multiple government databases. Furthermore, that, contrary to the assertions of the Respondents and their experts, NIIMS fails to capture the more recent innovations developed to strengthen data protection in the Aadhaar system, let alone other options that would not establish a massive, centralized biometric database. 856. The 1st Petitioner contends that the 5th Respondent’s expert witness, Loyford Muriithi, states in his affidavit that the NIIMS database will not have access to functional data, except on a “need basis,” but also states that the NIIMS database “cannot access functional data” stored in institutional databases. Thus, the assertion, without any support, is internally contradictory and conflicts with multiple other descriptions of the NIIMS database by the Respondents’ other experts. 857. Accordingly, that there are no legal limitations on access between the NIIMS database and functional databases, and no verifiable public information on the technical structure of the system precludes it. Furthermore, that the Respondents’ evidence misstates the inevitability of a centralized master population registry model, and that the seeding of data from one database to another further undermines the argument that NIIMS could conceivably be considered data-minimal. The 1st Petitioner submits that the real hazardous data trail comes not just from the master population register, but also from all the other databases that are linked using Huduma Nambas and the authentication logs. It was pointed out in this regard that the absence of integration and seeding between Aadhaar and functional databases is a chief reason that the system was upheld in the Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others (supra). 858. The 2nd Petitioner submissions on this limb were that NIIMS will be accessible to various government agencies from the centralized data base, which re-affirms the fear that biometric data stored therein will be susceptible to meddling by third parties. The 2nd Petitioner submits that there is no evidence that encryption will guarantee the security or privacy of the said information. Moreover, there are no regulations, principles or standards against which the propriety or sufficiency of the security systems purportedly deployed for NIIMS can be measured and no attempt has been made to demonstrate, by way of actual verifiable evidence, that NIIMS does have the security features the Respondents say they have. 859. The 2nd Petitioner further argues that it has not been demonstrated that it is even necessary for other Ministries, Departments and State agencies to directly access NIIMS for purposes of ‘authentication or verification of identification’, as opposed to requesting for authentication from the central database and thereby eliminate the need for third party access. It was submitted that the fact that NIIMS was purportedly developed by the State and is under the exclusive control of the State engenders the idea of a monopoly of data collection, processing, storage and use contrary to best practice and standards for data protection. In conclusion, the 2nd Petitioner submits that the objects and benefits of centralized databases are far outweighed by the potential risks to fundamental rights and http://www.kenyalaw.org - Page 142/174