ID card has no legal basis, says expert

A leading data protection expert has questioned the legal basis for the public services card, arguing no piece of legislation specifically mandates its introduction or use.

Simon McGarr, a solicitor and data protection consultant, said references by the Department of Social Protection to the Social Welfare Consolidation Act of 2005 as the law underpinning the public services card project did not adequately provide for the move.

Social Protection Minister Regina Doherty has come under fire after admitting the card, while not legally mandatory, is now compulsory for applicants for, and recipients of, welfare payments.

It is also essential to have a public services card to renew a driving licence or apply for a first-time passport and it will become compulsory for passport renewals, some school services, and farming transactions next year, and for many more public services in the future.

A number of people had their benefits cut off or suspended because of their failure to register for a public services card when directed by the department.

Mr McGarr told RTÉ he believed the card was a backdoor route to a national identity card scheme and was concerned at the way the whole project had been undertaken.

“There doesn’t appear to be a lawful basis for making it compulsory for people to get it but there does appear to be a compulsion on some of the most vulnerable people in society to force them to get it,” he said.

He said his reading of section 247c of the Social Welfare Consolidation Act 2005, as relied on by the department, did not reassure him.

“It doesn’t mention the public services card at all. It has no purpose in relation to the public services card,” he said. “It only sets out that a person may be required to attend at a public office with proof of identity and allow a photograph be taken and retained in electronic form for the purposes of authentication of their identity.

“So the section that they have cited doesn’t give them a legal basis for the issuing of public services cards and doesn’t make it mandatory.”

Mr McGarr said he was concerned about the kind of information stored on the card, such as the photograph which is a biometric scan.

He said best practice internationally warns against compiling personal identity databases using such irrevocable biometric information.

“If it’s leaked, we can’t change our faces. If it’s leaked, we can’t change our fingerprints. That is why you don’t use irrevocable biometric information in identity databases.”

Mr McGarr said he had seen departmental training documents which referred to the use of fingerprinting as a further stage in identity authentication. The department later said it “does not and has no plans to collect fingerprints”. It also said it had never used facial scanning cameras in local dole and welfare offices and “has no intention of doing so”.

The department said it was satisfied the card was supported by existing legislation, as the act referred to provided for the compiling, use, and sharing of the public service identity, namely the personal information and photographs used in creating the public services card.

Mr McGarr said the department’s statement did not make sense, referring to former social protection minister Joan Burton’s statement to the Dáil in 2014 that facial image scanning was already taking place.

Ms Burton said at the time: “The department has recently deployed facial image matching software to help to detect and deter duplicate SAFE applications [SAFE is an authentication standard].

“For example, if someone goes in and has a photograph taken, it is matched with the stock of 580,000 photographs on the system. Facial recognition techniques are used to a high level. If someone applies for a PSC in Galway and is already on the departmental system, it will show that the person has a card in Athlone.”

The department rejected the description of the services card as a national identity card. “The public services card is a card for accessing public services only,” it said.


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