Hong Kong's “Smart” Identity Card: Data Privacy Issues And
Total Page：16
File Type：pdf, Size：1020Kb
Hong Kong’s “Smart” Identity Card: Data Privacy Issues and Implications for a Post-September 11th America I. INTRODUCTION .................................................................................. 519 II. HONG KONG’S COMPULSORY ID CARD: PAST HISTORY AND CURRENT USE.................................................................................... 524 A. Hong Kong’s Political Transition from Colony to “Special Administrative Region” .............................................................. 524 B. Hong Kong Residents’ Evolving Attitudes Toward Government................................................................................. 526 C. The Compulsory Hong Kong Identity Card................................ 527 III. SMART ID CARDS AND HONG KONG’S IMPENDING UPGRADE ........... 531 A. Smart Cards and Their Characteristics...................................... 531 B. The Hong Kong Government’s Smart ID Card Plan.................. 533 1. Government justifications for upgrading to a smart ID card system............................................................................ 533 2. Personal data to be stored on the smart ID card.................. 535 3. Initial functions to be served by the smart ID card. ............. 537 4. Future applications planned for the smart ID card.............. 538 C. The Role of Biometrics in Hong Kong’s Smart ID Card ............ 540 D. The Government’s Assurances Regarding Privacy and Security ....................................................................................... 542 IV. LEGAL IMPLICATIONS ........................................................................ 543 A. Data Protection Measures Prior to Hong Kong’s Enactment of a Specific Privacy Ordinance ............................... 545 B. Hong Kong’s Personal Data (Privacy) Ordinance .................... 548 C. Looking Beyond the Personal Data (Privacy) Ordinance— What Issues Should Post-PDPO Legislation Address? .............. 553 1. Various measures proposed to ensure data privacy............. 553 2. The Government’s responses to those proposals thus far. 558 V. IMPLEMENTATION OF SMART ID CARDS IN OTHER JURISDICTIONS ................................................................................... 561 VI. CONCLUSION...................................................................................... 566 Hong Kong’s “Smart” Identity Card 519 I. INTRODUCTION Imagine that you are a frequent customer of your friendly neighborhood bar. Each Friday night, after a long hard work week, you and your co-workers converge on the bar and line up at its entrance. You are first greeted by the bar’s doorman. You momentarily surrender your driver’s license, which he swipes through a sophisticated scanning machine. The machine instantly reads the information stored on the barcode or magnetic strip of your license. It then lights up, certifying that your license is valid and that you are over twenty-one years of age. Having shown that you are legally entitled to purchase and consume alcoholic beverages, the doorman returns your license and permits you to enter. A clever use of technology? Yes. The machine eliminates the possibility of human error and reduces patrons’ waiting time. It also helps combat the problem of illegal underage drinking: persons attempting to gain entry using fake identification will be automatically detected and denied access. There is more to this scenario, however. What you may not realize is that the scanning system also reveals other information about you. Depending on your state’s motor vehicle registration practices, this information might include your name, address, birthdate, height, eye color, or social security number. Furthermore, the bar’s management may decide to collect this information and use it to build up its own customer database for marketing purposes. Currently in the United States, neither the states nor federal government regulates the collection of information and marketing by private businesses.1 The bar’s management may even use this database to analyze its clientele based on sex, age, ZIP (postal) code, or other categories. It has the ability to develop customer mailing lists based on specific characteristics, and target groups of customers for a particular event (e.g., an “all-male-performer show”2 that would appeal to women in the 21-34 age range).3 1 State motor vehicle departments, on the other hand, are prohibited from providing driver’s license information to direct marketing companies. The Driver’s Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-2725 (2003), placed limits on what information the departments could release to third parties. Jennifer Lee, Welcome to the Database Lounge, N.Y. TIMES, Mar. 21, 2002, at G1, LEXIS, News Library, NYT file [hereinafter Lee, Database Lounge]. 2 Lee, Database Lounge, supra note 1. Kenny Vincent, owner of the New Orleans bar Kenny’s Key West, gave the following illustration: “Let’s say I’m doing an all-male-performer show . I could just mail to just girls I want to target between 21 520 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Summer2003) In the United States a growing number of private businesses are utilizing this driver’s license scanning technology. Bars and convenience stores increasingly rely on this technology to avoid illegal sales of alcohol and cigarettes to underage purchasers.4 Other entities, such as airports, hospitals and government agencies, are also installing identification (ID) card scanners to strengthen security in response to the recent terrorist attacks on the United States.5 Despite its noble purpose, this trend has alarmed privacy advocates, who point out that a common data scanning system shared by government and private businesses essentially amounts to “a de facto national identity card or internal passport that can be registered in many databases.”6 Now imagine that your government has announced a plan that would require you to carry a national identity card that features your personal information. This ID card is a “smart card,” with an embedded silicon chip that performs data storage and computational functions. This smart card is many times more powerful than ID cards with magnetic stripe or bar code storage systems. As futuristic as this sounds, the fact is that smart cards are increasingly used to perform everyday functions. For example, smart card technology is utilized on credit cards (to manage cardholder “perks”), stored-value cards for use on public transit, and on employer or government-issued identification cards. Governments worldwide have been increasingly attracted to the concept of smart cards as a replacement for traditional “dumb” ID cards. Smart cards have been promised to combat identity theft and abuse of welfare privileges, increase the efficiency of government services by centralizing information, and even allow for rapid border crossings. Thus, the implementation of smart ID cards may be viewed as an investment in infrastructure to accommodate future technological advances that will facilitate more efficient interactions between people and government. and 34. I have all that information. The whole reason to have a database is to advertise and market to your customers.” Id. 3 Id. The Rack, a popular bar in Boston that attracts about 10,000 customers per week, has this scanning technology in place and actively uses it. Id. In 1999, to combat the problem of underage drinkers gaining entry with fake identification, owner Frank Barclay purchased an Intelli-Check driver’s license scanning machine. Id. Barclay soon realized that by building a database of his clients’ personal information, he could paint an intimate portrait of his clientele and exploit it for marketing purposes. Id. Said Barclay, “You swipe the license, and all of a sudden someone’s whole life as we know it pops up in front of you . [i]t’s almost voyeuristic.” Id. 4 Id. 5 Id. 6 Id. Hong Kong’s “Smart” Identity Card 521 The Hong Kong Special Administrative Region (HKSAR) is an interesting example of a government that decided to invest in smart ID card technology. In October 2000, government officials formally announced a comprehensive plan to replace existing government-issued ID cards with smart identity cards,7 and over a four-year period smart cards will replace 6.8 million existing Hong Kong Identity Cards (“HKID cards”).8 The first phase of the plan is scheduled to begin in August 2003.9 From its very inception, however, the project has been burdened with controversy. Debate has centered not on the cost of the sophisticated card system (over US$394 million10), as one might expect, but on the very “smartness” of the card, and the implications for data privacy—how much personal data should the government store on the card’s smart chip? Since the government’s October 2000 announcement of smart card plan, officials from various government departments have attempted to reassure the public that the cards will generally bear the same “basic data” traditionally featured on HKID cards (such as name, date of birth, and immigration status). With respect to additional applications, however, Hong Kong’s Secretary for Information Technology and Broadcasting, Carrie Yau, recently stated that those uses would be strictly optional.11 Such optional applications include the use of the HKID card as a driver’s license, library card, the storage of digital certificates (used for verifying one’s identity during Internet transactions), or to update the government 12 on changes of address. 7 See SECURITY BUREAU, LEGISLATIVE