Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

The Jeff Cumberbatch Column – “A Dog’s Breakfast”

Jeff_column

As a vivid figure of speech meaning something so fouled up as to be utterly useless, “dog’s breakfast” can cover anything from a play plagued by collapsing scenery to a space mission ruined by a mathematical error –Urban Dictionary

I am not among those theorists who imagine that the institution of government is inherently not to be trusted; that it is singularly devoted to the interests of its campaign financiers only; guided in its policies by some unknown shadows; and that its every initiative is to be viewed with suspicion.

Nor, equally, am I to be numbered among those who believe that governments have been placed there by divine right and that whatever they might conceive is therefore well done, pour le mieux, and should not, therefore, abide our question.

After all, any administration comprises but mere mortals with all their failings, inherent susceptibility to error and a natural liability to moments of insufficient or inadequate cerebration. It is for that reason that the apparent hostility between some members of the current governing administration and some members of the public with regard to the implementation of the collection of biometric data in the form of fingerprints of locals at the island’s ports of entry is to be regretted.

It is, of course, not my brief to advise this administration as to what should be its best approach to executing designed policy. However, I am of the considered view that in much the same way that shoddy implementation of the necessary decision to have Barbadian students at the Cave Hill Campus of UWI contribute to the cost of their tuition resulted in a substantial decline in student numbers and a loss of civic goodwill; the failures to state publicly and seasonably the rationale for the current disputed measure and to seek competent legal advice on the constitutional validity of its provisions have similarly served to ensure a degree of popular antipathy towards the government and to create a concomitant level of distrust among the citizenry. Unnecessarily so, I might add.

The truth is that there has been, at least since the start of the current decade, a global realization that the traditional methods of identification of persons –by photographs and numbers- had become obsolete; incapable of preventing identity theft; susceptible to other fraudulent abuses, and generally inadequate for their intended purpose. In an age of terrorist threat moreover, the then existing methods of identifying individuals had clearly become unsustainable.

In consequence, many jurisdictions sought to modernize their national ID databases from the simple photograph or number to include biometric identifiers, such as fingerprints, iris recognition, voice, gait and even DNA, which would authenticate individual identity and assist in border security.

And even though I have not yet heard it stated, it would appear as if Barbados is set to follow this global trend, at least in respect of the individual passport -if I am to judge from the provisions of the Immigration (Biometrics) Regulations 2015 where, according to regulation 6, any application for a passport, or for certain other stipulated registrations and permissions connected with residence in Barbados, must be accompanied by biometric data, as defined in that law, to be supplied to an immigration officer. Clearly then, the official intention seems to be to create a database of such information so as to ensure the authenticity of the relevant document.

Further, since there might have been some constitutional unpleasantry, as well as a logistical nightmare, in nullifying all the existing documents and having everyone apply for a new passport, as I have heard it suggested, it seems that officialdom took the ostensibly simplest way out, so far as its citizens are concerned, of attempting to create the database not only through new applications for the travel document itself, but also through the fingerprinting of those who use already issued ones at local ports. It is naturally to be expected therefore that there may be a similar future enterprise in respect of the national identification card.

Alarmingly and alas, none of this, to my best knowledge, was conveyed to the ordinary citizen, in circumstances where the element of biometric data required is primarily the one used by the police in criminal investigations and that may provide near conclusive evidence of culpability in a trial; in a country where there is an innate mistrust of any innovation; where, abnormally, citizens are to be required to provide their fingerprints in their own country on all travel occasions; and where, arguably, the governing administration is not, currently, at the height of popularity. In my view, the absence of prior communication in these contexts was a toxic potion for political disaster.

The direness of the situation has not been assisted either by a variety of other snafus. For one, my learned friend, Mr David Commissiong, claims to have discovered some procedural impropriety in the creation of the legislation itself and, accordingly, has launched a court action to nullify the Regulations entirely; for another, there is some further dispute as to whether it is constitutionally legitimate to prohibit nationals from re-entering Barbados, as appears to be the provision in Reg. 3 (5) –a situation that might have been avoided by simply stipulating for a summary offence and penalty for those citizens who refuse to submit to fingerprinting on their return to the country-; and the belligerent “robber-talk” and “grand-charge” by some highly-placed individuals who are sympathetic to the partisan political interests of the governing administration.

Of course, this will merely cause the issue to degenerate further into a “political dogfight” of abusion among the various supporters of the respective parties, rather than becoming the rational, informed conversation that we should be having on serious issues of contemporary national and individual security.

In a not strictly related decision of the European Court of Justice in October 2013, in a case brought by a German resident Michael Schwarz, who had applied for a passport, but refused to have his fingerprints taken, the Court ruled that although the taking and storing of fingerprints for passports under the German statute infringed the privacy and personal data rights of individuals guaranteed in the EU Charter of Fundamental Rights, it was, nevertheless, in line with European law, since it ensured protection against the fraudulent use of passports and outweighed personal privacy concerns about mandatory fingerprinting. The issue here does not touch or concern these issues, principally because neither right traversed is protected, adequately or at all, under local law and that the right implicated locally is that of freedom of movement.

It may not be too late for the governing administration to correct these deficiencies. It will require, however, a sea change in its mode of governance thus far…so we shall see. As it currently stands, a “dog’s breakfast” has unfortunately been made so far of a perfectly reasonable, though clearly opposable, objective.

Enjoy a peaceful Easter holiday.

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80 Comments on “The Jeff Cumberbatch Column – “A Dog’s Breakfast””

  1. de pedantic Dribbler March 29, 2016 at 9:10 AM #

    @Pieces, excellent perspective re “That the phone,…with its seemingly impregnable security has been cracked… seems to suggest a compromise where a trusted broker … permitted to effect the hack in exchange for the removal of the charges. …”———-

    I was trying to figure out how the FBI went from being stalled in the desert to zooming round the world in 60 secs!

    @Sargeant March 28, at 10:12 PM ..you crafted an lovely analogy re “… reminds me of …. all the concept vehicles…and when some of the technology migrates … exclaims “that is old stuff”.”

    But you overlook that if the US auto introduces ‘concept tech’ to their customers in 2016 that has been in cars across Europe as early as late 1990s and already performing wonders there then it isindeed ‘old stuff’ when it finally migrates into cars in US!

    A few basics…The data is readily available on net.

    —- France were the first with this and had excellent bank card fraud ratios and it was reported that the UK saw over 20% decrease when they intro’ed the standards after 2004.

    —– The relevant standard re bank card tech migration to stronger security is called EMV. Canada started to implement and update the fundamental to meet standard requirements since 2012 or thereabouts… In fact one of your big Canadian firms there (multinational owned) is G&D (Gieche and Devrient) which is very prominent in this industry.

    …. …all real cars long ago tested and driven successfully on the road…no driver-less concept vehicle here!!!!!

    Here is one comment from an ’08 article which crystallizes the general feeling by many industry journalists at the time which suggested that US banks were willing to live with the billions in fraud … It was a simple straightforward risk-reward analysis. That is changing significantly now clearly.

    ——- << The argument against EMV migration in the States has largely fallen on the huge investment retailers and bankers would have to make….

    … purchasing EMV-compliant POS systems and issuing EMV-compliant cards has made migration cost prohibitive, without having high card-fraud numbers nudging the initiative.

    … But a move to RFID contactless puts a similar financial demand on retailers and bankers. POS systems must be replaced and cards must be reissued.

    …My question: Why are Visa and MasterCard allowing the United States to take a baby step when a leap makes more sense? Jan. 8, 2008, by Tracy Kitten >>

    The US is FINALLY coming to the party after some of those mammoth data hacks …no longer is it a fraction of a problem and surely it stopped being just a ‘concept’ at the turn of 2000…long ago!

    Like

  2. Well Well & Consequences March 29, 2016 at 12:17 PM #

    Piece…call it linguistic inversion and a sudden change it value..that sums it up.

    Like

  3. Well Well & Consequences March 29, 2016 at 12:19 PM #

    *sudden change in value.

    Like

  4. Prodigal Son March 29, 2016 at 2:12 PM #

    Just posting what is being discussed on the VOBchat…………apparently a drunken Attorney General got into an accident at the four crossing after Boarded Hall hitting a car……………….and we wait to see if he will be charged with drunken driving……………………..

    Chatters want to know how he culd come out and talk about the reckless driving of the PSV drivers when he was caught driving intoxicated!

    Like

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  1. The Jeff Cumberbatch Column – Time for a Change? | Barbados Underground - July 3, 2016

    […] I wrote in this space some weeks ago under the title “A dog’s breakfast”, the prohibition of re-entry was, in my view, a disproportionate response to an otherwise […]

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