16 Nov 2017 20:20 IST

Right to Privacy: a myth

The apex court ruled that it’s a fundamental right. But is privacy possible in today’s connected world?

In a recent judgement, the Supreme Court of India reiterated that the Right to Privacy is a fundamental right of every citizen. This has wide implications, given the major social and technological issues that are playing out around us in today’s highly connected world.

For instance, enrolment in the Aadhaar ID system involves the sharing of private information, including biometrics. People also knowingly throw around vital private information in the public domain through social media forums.

The volume of private data that is being captured through the internet and social media is growing with every passing minute. This rich source will form the substructure for emerging phenomena such as artificial intelligence, machine learning, cognitive computing and social media analytics, benefiting various government and private agencies, including companies.

The question is: can such private data can be used for public purposes? Can it be regulated? Are there exceptions? If so, under what circumstances? Are the legalities and interpretation of the Constitution clear on these matters? Especially since techcompanies and data scientists, backed by large corporates, are pouring millions of man-hours and resources into developing these ‘high-end’ technologies, what could be the implications, given such uncertainties?

A cheap price

Three issues are dominant here.

~ First : Commercial entities and corporates are attempting to understand customer preferences and needs, and are hungry to capture and analyse customer-centric ‘private’ data that could help them position their products or services with more precision.

~ Second : The government needs access to private data to ensure that national security is not breached. Proactive surveillance is of utmost importance.

~ Third : Miscreants, terrorism-linked or otherwise, hackers and financial fraudsters look for such private data.

Once one of the above agencies secure such data, the probability of the others getting hold of the same becomes higher. Today, ‘data brokers’ are selling private data — such as like marital status, income levels, phone number, email ids,and online purchase habits — for a ridiculously low price.

Private data is also being widely tracked by the government and other agencies. Today, images, videos and satellite tracking systems are ubiquitous. Facial recognition, fingerprint sensors and biometrics are only becoming cheaper and more accurate with each passing day and are being extensively deployed by commercial agencies.

What does it convey?

So what message does the Supreme Court ruling convey?

In the recent judgement, the Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21, and as a part of the freedoms guaranteed by Part III of the Constitution.

Although the case was referred to the bench in relation to Aadhaar and the legality of using biometrics, this 2017 judgement came in the context of whether Right to Privacy is a fundamental right and can be traced in the rights to life and personal liberty.

Decisions on this matter by courts of law in two earlier cases were inconsistent but the latest judgement clearly puts to rest such divergence, reiterating that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty. It also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

With this ruling, although it has not expressly said that Aadhaar violates privacy concerns, it is amply clear that Aadhaar will have to meet the challenge of privacy as a fundamental right. Institutions like banks and telecom companies are constantly urging their customers to link their bank accounts and phone numbers with Aadhaar. How legal and valid are these directives is a question that definitely needs to be answered.

Privacy and data

While enrolment in Aadhaar and linkage to various utility functions continue to be debated, other issues like WhatsApp and Facebook data sharing and the privacy implications of such firms taking advantage of the contents, will evolve in the coming days.

It will be interesting to analyse how other large democracies handle issues of privacy. The Fourth Amendment of the US Constitution provides some respite but, again, only from the perspective of the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The ultimate goal of this provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government.

Since Edward Snowden leaked various classified information and disclosed the level and depth of global surveillance during 2013 by various US and other government agencies across nations, the right to privacy has indeed become a serious question.

What does the future hold?

The digital footprint one leaves in today’s environment is quite far reaching. Taxi aggregators know where we are going; the Amazons of the world know our purchase patterns; travel and hotel booking engines know where we are travelling and where we will be on certain days; the browsers know what we browse.

Medical records are well-integrated with such information. Aadhaar-linked accounts, telephone connections and property data identify financial and real-estate investments and income-tax history. With sensors becoming cheaper, the Internet of Things gaining ground, and telematics devices becoming more common, there does not seem to be anything close to individual privacy.

A case to re-visit

Recently, major technology companies such as Apple, Facebook, Google, Microsoft, Twitter and Verizon, filed a note with the US Supreme Court, urging the highest judicial authority to re-visit the privacy protections of consumers by changing the way the Fourth Amendment is applied, especially with respect to emerging internet-based technologies.

These companies have been neither recommendatory nor advisory, but have requested that they be consulted in such a far-reaching social cause.

For sure, more and more commercial entities and corporates will want to understand customers preferences better and will want to use customer-centric ‘private’ data to their benefit. Current technologies, cloud computing, big data and high-end analytics will only help them do this better.

A perfect myth

Governments around the world will need to go after terrorist organisations and will strive to ensure national security at any cost. Miscreants, hackers and financial fraudsters are also not going to give up and will be ahead of the curve in accessing private data.

Corporate and data scientists will continue to mine high levels of private data — and this will only increase in the coming days. In effect, securing the right to privacy of individual citizens sounds like a perfect myth!