Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Development: Toward the Digital Age (2017). Further, that these mitigations should be implemented at the design stage, rather than later, in order to ensure that privacy is embedded at the outset into the systems. He was of the view, however, that mitigations cannot solve all problems with identity systems, and challenges still remain. 118. Dr. Fisher’s affidavit focused on identity systems that use biometrics and unique identifiers. He defined the term biometrics as the measurement of unique and distinctive physical, biological and behavioural characteristics used to confirm the identity of individuals. He gave examples of the modalities that can be used to include fingerprints, iris, facial photographs, and vein patterns and explained the processes involved in extracting, storing and using biometrics. 119. Dr. Fisher addressed various challenges that arise with biometric databases. He referred to the report by the United Nations High Commissioner for Human Rights (UNHCR) on The Right to Privacy in The Digital Age dated 3rd August 2018 and the report by the European Union Agency for Fundamental Rights titled Fundamental Rights Implications of Storing Biometric Data in Identity Documents and Residence 120. Cards, (2018) which highlight significant human rights concerns with the creation of mass and centralized databases of biometric data. According to these reports, due to the scale and sensitive nature of the data which is stored, the consequences of any data breach could seriously harm a potentially large number of individuals. Further, that if such information fell into the wrong hands, the database could become a dangerous tool against fundamental rights. 121. Dr. Fisher further deposed that some individuals may have biometric features that make it challenging or impossible to enrol or authenticate them, citing the case of manual labourers who may have worn fingerprints. It was also his deposition that in some occasions, it may be inappropriate and an invasion of an individual’s privacy to collect facial photographs, for example for those who wear headgear for religious reasons, or are part of communities who object to having their photographs taken. His averment therefore was that enrolling in a biometric system can be physically impossible or privacy invasive. 122. Another challenge identified by Dr. Fisher is that biometrics can potentially be used to identify an individual for their entire lifetime. This means that caution has to be shown in the face of changing regimes or political contexts, and also the changes in technology. The technology surrounding biometrics is continually evolving, which places new pressures and risks on biometric systems. For example, it is possible to clone a fingerprint from a photograph, using commercially-available software. Another concern identified by Dr. Fisher is that unlike a password, an individual’s biometrics cannot be changed. 123. A further challenge identified by Dr. Fisher is that biometrics are essentially probabilistic and there are other means of authenticating the individual that are deterministic. He gave the example of the use of Personal Identification Numbers (PIN), which either matches or does not match with the stored PIN. He deposed that biometrics are different and do not make a definitive decision on whether an individual is who he or she claims to be, but rather a probabilistic one. This meant, according to Dr. Fisher, that some individuals are going to be excluded from what they are entitled to, or falsely accepted as somebody they are not. 124. Dr. Fisher also addressed the challenges arising from the use of unique identifiers. He defined a unique identifier as a unique number or code, for example an identity number. He stated that a unique identifier is a feature of an identity system that is particularly problematic, arising from the ‘seeding’ of identity numbers across multiple government or private sector databases. This, he stated, creates the risk of providing a “360 degree view” of an individual. His evidence was that the linking and seeding of databases with a single number gives the opportunity for all information about an individual, across multiple databases, to be accessed. Citing a statement in the United Kingdom case of Marcel vs Commissioner of Police of the Metropolis [1992] Ch 225 (Browne- Wilkinson VC), he contended that the gathering of information about an individual from several government agencies in one http://www.kenyalaw.org - Page 19/174