Context:

  • There is an urgent need to reconsider the denotation of privacy as a term.
  • Since Aadhaar and many of the contemporary discussions on privacy are related to deep technological developments, the question of privacy should be rethought in the context of these technologies.

Introduction:

  • Very often when we worry about questions of privacy that it is about the role of the government or the state.
  • The state too can do much with the information on individuals that it collects through various voluntary as well as coercive means.
  • However, information about individuals is arguably much more in the private domain today than it is within various governments.
  • Moreover, the mining of this information is taken up far more assiduously by the private compared to government institutions.

Real threats: Private companies:

  • Private companies often have rules that protect them from being transparent in hiring policies, in affirmative action or even making public the salaries of all their employees.
  • Private groups know best the power of the idea of privacy.
  • They use this notion to protect themselves from governments and the public.
  • They also realize that the greatest market that is strongly available to them is the market of trading information on privacy.
  • A related problem is that the government has begun to look more and more like the private sector.

Contemporary technologies:

  • Contemporary technologies have now come to be seen as necessary.
  • The fact that we so unthinkingly buy into this story shows the success of how these technologies have colonized us so effectively.
  • The price we pay for modern technologies is not only money.
  • The major cost that we pay is the cost of our privacy — the information on each one of our private lives and, through this information, more effective control on how we act and behave.
  • Contemporary technology has made possible many new innovations that have changed the very meaning and significance of privacy.
  • From Smartphone to their applications, the fundamental trajectory is one to do with privacy.

Privacy as a fundamental right:

  • The Centre on 26th July, 2017, told the Supreme Court that privacy was indeed a fundamental right.
  • A nine-judge Constitution Bench replied that not every aspect of privacy is a fundamental right. It depends on a case-to-case basis.
  • The government did not consider privacy to be a single, homogeneous right but rather a sub-species of the fundamental right to personal liberty and consists of diverse aspects.

Right to Privacy Privacy is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others. The right to privacy is a multidimensional concept. Law:

  • Privacy law refers to the laws that deal with the regulation, storage, and use of personal information about individuals, which can be collected by governments and other public as well as private organizations.
  • Privacy laws are considered in the context of an individual’s privacy rights or within reasonable expectation of privacy.

Types: Privacy laws can be broadly classified into:

  • General privacy laws: that has an overall bearing on the personal information of individuals and affects the policies that govern many different areas of information.
  • Specific privacy laws: that is designed to regulate specific types of information. Some examples include:
  1. Communication privacy laws
  2. Financial privacy laws
  3. Health privacy laws
  4. Information privacy laws
  5. Online privacy laws
  6. Privacy in one’s home

Restriction on Right to Privacy: These restrictions have not been defined or elucidated anywhere and have been identified through the interpretation of various provisions and judgments of the Supreme Court of India:

  • The right to privacy can be restricted by procedure established by law and this procedure would have to be just, fair and reasonable.
  • Reasonable restrictions can be imposed on the right to privacy in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; (Article 19(2) of the Constitution of India, 1950).
  • The right to privacy can be restricted if there is an important countervailing interest which is superior to it.
  • The right to privacy can be restricted if there is a compelling state interest to be served.
  • The protection available under the right to privacy may not be available to a person who voluntarily introduces him- or herself into controversy.

Information Technology Act, 2000 and Privacy Protection:

  • India does not have specific data protection legislation, other than the Information Technology Act, which may give the authorities sweeping power to monitor and collect traffic data, and possibly other data.
  • The IT Act does not impose data quality obligations in relation to personal information and does not impose obligations on private sector organisations to disclose details of the practices in handling personal information.

Violation of confidentiality and privacy:

  • The terms violation of confidentiality and privacy are described under the IT Act.
  • Section 66-E very clearly explains violation of privacy as a “whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person.”
  • Section 66-E has also explained violation of privacy as a circumstances in which a person can have a reasonable expectation that is:
  1. he or she could disrobe in privacy, without being concerned that an image of his private area was being captured
  2. any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place
  • Section 72 provides for penalty for breach of confidentiality and privacy as meaning, “any person securing access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record book, register, correspondence, information, document or other material to any other person.”
  • Section 72 A explains the law of privacy and asserts that disclosure of information in breach of lawful contract.
  • Sections 66 E, 72 and 72 A require the consent of the persons concerned but within limited scope as it would be difficult to consider that it could provide a sufficient level of personal data protection.

Current scenario:

  • The Information Technology Act, 2000 was amended in 2008.
  • The amended Act which received the assent of the President on February 5, 2009, contains section 66A.
  • On 24 March 2015, the court struck down Section 66A of the IT Act for being “open ended, undefined, and vague” and the words used in the text of the provision being “nebulous in meaning”.
  • In Section 66A, there was immediate relief to a lot of people because it was struck down. Also the ruling with respect to intermediary rules has been immensely beneficial for free speech.
  • However, there are points of concern given that the Supreme Court itself is applying the ruling inconsistently and not expanding or following the course set by it.
  • The manner in which courts have handled issues of free speech and access to information does not result well.
  • At the very least it shows inconsistency by the court.

Aadhaar and Right to Privacy: The debate:

  • Privacy has been a key focus in the recent debate on Aadhaar.
  • Privacy is being interpreted in different, equally valid, ways by different sets of people.
  • But the differences in interpretations are not always obvious to those who participate in the discussions.
  • Computer scientists use the word privacy, they tend to it interpret from a narrow ‘data security’ perspective, whereas the lawyers in the Supreme Court have been highlighting the civil liberties angle to it.
  • Such discussion has resulted in groups talking past each other.
  • The solutions that the computer scientists propose, for instance, stronger standards for data security, including encryption are not satisfactory to those who highlight the civil liberties aspects of privacy.
  • Constructive conversation on the issue requires a more elaborate look at the different dimensions of privacy.

Problems and issue:

  • Aadhaar is a product of what started as an idea of biometric identity cards for the border states in India in the wake of the increased terrorist activity.
  • In a report, the consulting agency that was meant to determine the feasibility of the biometric card for border communities suggested that the identity cards could be implemented to the entire country.
  • Now the government is trying to implement the new UID scheme by masking it as a developmental agenda.
  • Deeper questions of surveillance by the state, invasion of privacy at all levels, and the very fact of human beings being depicted to be mere numbers in the eyes of state leading to violation of dignity arise as a result of the UID project.
  • Every decision made by a human in India could be under state surveillance.
  • This could potentially lead to the denial of, and access to, many important social opportunities and other facilities for a particular section of people, who could be discriminated against by the state, using the information gathered from the UID.

Free Wi-Fi Reports said that in lieu of free internet connectivity Indians are sacrificing personal security. What is it about?

  • About 96% Indians have potentially put their personal information at risk by using public Wi-Fi for checking bank accounts or sharing personal photos.
  • There is a deep division between what people think is safe when it comes to using public Wi-Fi versus the reality.
  • A majority of 73% will do or swap something for a strong Wi-Fi signal.
  • This includes access to personal emails, personal photographs, online dating profiles, contact lists and giving permission to access and even edit personal social media profiles.

The risk

  • What someone thinks is private information on their personal device can easily be accessed by cyber-criminals through insecure Wi-Fi networks or even apps with privacy vulnerabilities.
  • When we search for a book or a ticket, we start getting advertisements related to these searches in our supposedly private emails. What we read, search, buy, talk and perhaps even think get stored, used and circulated.
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