Right to Privacy versus Technology Based Surveillance

by Sri Hari Mangalam

INTRODUCTION 

“Privacy is not an entitlement; it is an absolute pre requisite”—Marlon Brando

The current day and age sees’ an explosion of technological advancements. The rapid growth of the applied sciences industries and new innovations in the communications and developments sectors has significantly changed our daily lives. However, the ever-changing technological set ups have led to various gaps in the legal framework, allowing space for misuse. Various countries abuse the gap created from an unrushed legislative process struggling to keep up with the fast-changing technological sector. 1 The resultant consequence of the unregularized development of the sector is that the universal basic civil and human rights often tend to take a backseat. The major issue currently is the tussle between the growing surveillance technology industry and the consequent infringement of the fundamental rights of privacy.2 Surveillance technology invokes concerns of privacy probably more than any other form of technological development; involving a direct inspection into an individual’s lives, often scrutinizing aspects which they would prefer remain concealed.3 Surveillance does form a necessary and critical part of criminal instigation, nonetheless, the growth in its mediums such as new infra-red technologies, high sonar readers and radar scanners create a problem of excess, instituting an easier access into the lives of the targeted, dangerously nearing the stage of privacy infringement. Unregulated development of the surveillance stimulus leads to a juncture where an individual’s rights and control over their personal information is vitiated.4

The current times of the Covid-19 pandemic have created a new space for the growth of information technology-based surveillance, a development which if left unchecked might discreditan individual’s control over their personal information endangering rights of information privacy. The infectious spread of the pandemic has made it an everchanging race to increase surveillance and potentially meet out the infected.5 Every pandemic sees the response of genuinely well-intentioned actors trying to utilize their skills in an as effective manner as possible, attempting to curtail the large scale spread of the disease, nonetheless the opportunists delineate their attempts by making a potentially invasive environment. Newer requests for surveillance possibilities in the tertiary and secondary sectors are made out in attempt to better control the outbreak. However, these new attempts might generalize intrusive surveillance, attaching a nominalized identity to a practice, vitiating constructs of individual privacy and basic human dignity. Accordingly, the aim of this paper is to cover the provision of the right of privacy under the Indian constitution. Systematically analyze the conflict between the advancements in the surveillance sphere and fundamental privacy rights while pivoting on the newer issues formed due to the Covid-19 pandemic. Moreover, an attempt has been to made to situate a common ground to allow systematic surveillance in times of social emergencies without infringing upon any fundamental rights.

RATIONALE 

A generally accepted proposition is that an individual’s right to privacy forms a fundamental factor. However, the right on its own is not absolute and is bound by reasonable restrictions. The recent struggle to better track the already corona infected or those potentially within the radar has tried to push the limits of what qualifies as reasonable. Concerns regarding what certifies as necessary surveillance and at which stage do the rights of privacy stand infringed are now surfacing as topics of heated debates. In this context it is important to analyze the conflict between the surveillance-based technological advancements and the constitutional provisions of privacy.

OBJECTIVE 

The objective of the forthcoming discussion and analysis is to provide more clarity in the relationship between privacy rights and social surveillance. It is to comprehend the recent growth in the surveillance requirements during emergency situations while necessitating an equitable social sphere to ensure non-infringement of information rights. The trunnion of the paper shall form from an analysis of the growth in the technological sphere, pivoting on providing reasonable solutions in situating a non-exploitative social space.

METHODS 

The methods utilized for research in this write up, in order to properly construe the objectives includes an analysis of both primary as well as secondary sources. Research surveys and questionnaires from online data bases and directories have been used for a detailed discussion and analysis of the theme. A comprehensive approach is followed to methodically synthesize the procured data for a structural outlook to acknowledge the importance of the rights of privacy, even in times of social emergencies.

DISCUSSION AND ANALYSIS 

The Supreme court of India, in its unanimous nine-judge ruling upheld the constitutionality of the right of privacy by calling it an intrinsic part of our lives and a fundamental provision protected under article 21 and part III of the constitution.6 However, the right to privacy is not unbridled or absolute: the central government has the power to put ‘reasonable restrictions’ on its exercise.7 The government can curtail the exchange of resources, restrict internet traffic or monitor the exchange of data in the name of national interest, to maintain social decorum and to restrict movement of terror organizations. Accordingly, the strategy for individual privacy as adopted by the supreme court was an effort to qualify up to the terms of international humanitarian laws. The court expanded the ambit of article 21 8 and applied the directive principles of state policy to emphasize upon a principle right of independent solitude.9 Article 12 of the Universal Declaration of Human Rights,10 lays down the provision that everyone has the legal right to be protected from any obstructions harming their social repute and honor, similarly Article 17 of the international covenant on civil and political matters11talks of the right of every citizen to acquire redressals against any intrusion into their privacy. These international, as well as domestic grounds, aim to ensure an equitable social space where everyone’s repute and right of solidarity is upheld, ensuring a certain level of human dignity. Nonetheless, in times of medical emergencies, a general level of intrusion is practised by the governments around the world to ensure safety and control the spread of the disease. The state necessarily exercises more power to curb the diseases’ affects and protect its citizens. Times of social emergency formulate different public situations, where more often than not, necessary human rights get diluted.

The current Covid-19 pandemic is an unprecedented public health crisis. It has brought about a situation of global panic and fear, last seen only during the times of the world wars. It is a crisis of mammoth proportions, no less. The Indian government, much like the rest of the world, has taken multiple steps to limit the disease’s spread. However, newer cases are reported every day, the number of which is only expected to rise given that India is currently in the preliminary stages of the virus. The primary focus of the government, in the absence of a cure, is the prevention and control of the disease which has globally affected more than 1, 200,000 taking lives in numbers upwards of 70,000.12 The Indian government has restricted access to many public facilities, initiated border control to stop movement across states, and imposed section 144 across the country restricting citizen assembly and movement.13

Along with these more fundamental aspects, the country has also tried to focus on identifying the potentially infected and monitor those under quarantine through newer surveillance methods. In a move precedented by the Hong Kong government, where mandatory bands and apps are being used by the state,14 India too is imposing technologically advanced mediums to observe and surveil its citizens. The different state governments, with positive intentions no less, are releasing data repositories of the citizen currently infected or under quarantine. The public access of individual medical situations is a clear violation of privacy. Rajasthan and Karnataka have released online lists which detail who is currently affected by the disease and is under quarantine. Kerala, despite facing the brunt of Covid-19 cases in India, refused to release any online repositories recognizing concerns of privacy.15

However, the issue of privacy due to newer Covtech mediums of surveillance goes beyond online directories.16 Ironically, the same state which refused to release any medical data regarding Covid-19 patients has a team of ‘virus detectives’ who go door to door, to ensure quarantine norms are followed and to locate any newly affected. Many smartphone applications are being deployed to track citizen movement and report any potential Covid developments. The BMC is coming up with their own app centered around the disease, while the Delhi government is formulating a new ‘geo tagging’ feature to observe security, ensure quarantine rules and restrict citizen movement. Karnataka is soon to a launch an application where those quarantined inside their homes are to upload a selfie every half an hour, while the state will qualify the real time nature of the photograph to cross check the uploaders location. If the citizens fail to upload a picture, the state will send over officials to check on them and ensure that they are not breaking any quarantine regulations. Similarly, the Hyderabad traffic police intends to use their automatic numbering system to monitor vehicular movement and ensure against any unnecessary quarantine breaks, the Telangana government too is using multiple apps to Geo-tag the houses of foreigners and national who have recently returned to India. The central government has made quarantine stamping i.e., stamp dating of travelers, a mandatory provision at the airports and requires those stamped to regularly update authorities on their location.

These mediums and feature not only encroach upon the individual freedom of the country’s citizens but also situates those in power with a big brother identity. The State’s involvement in situating the live tracking of its citizens, through coercive features shows a shocking disregard of the legal right to privacy. The continuous use of such mediums will allow the state an excess amount of powers over its citizens, while the fundamental rights of privacy are exploited. The features entailing live tracking of citizens, retina scanning, Geo-tagging houses etc., go against the fundamental provisions of article 21 of the constitution, which provides every citizen to live their lives with freedom and liberty. If the state is allowed to violate the fundamental provisions of the constitution, then the day won’t be far where a totalitarian identity is assumed by the authorities. The right of privacy of the country’s citizens may not be absolute but features which give extreme powers to the state and curb citizenry rights of free movement do not qualify as reasonable restrictions. The newer mediums of surveillance must be exercised within the constitution’s provisions, to ensure that privacy rights of citizens are upheld. A blatant disregard of the constitution and the rights it allows onto the country’s residents cannot be legally sanctioned even in times of a Pandemic.

CONCLUSION 

Extreme situations of emergency due to nationwide health pandemics or from threats to national security demand a better balance between the more than necessary act of governmental surveillance and individual human rights of privacy. The need for a better level of synchrony between these two aspects, governing the lives of a state’s citizens is essential. International human law standards require that any and all interferences with the rights of privacy must conform to principles of legality, proportionality and necessity.17If situations so arise where this fundamental right might get superseded, effective measures for redressal must be available. The state in its practice of newer surveillance methods must ensure that they are in accordance with legal provisions, proportional with the needs at hand, and the qualify as mediums of necessity.

A systematic set of rules or standards are required to ensure the equitable practice of surveillance throughout the country, where the rules of logic are applied to locate the persons of interest. A few of the fundamental principles that may be followed to ensure the practice of governmental surveillance without encroaching any citizenry rights are as such:18 surveillance should target not communities but the individually suspected, no discrimination should be made between nationals and foreigners to uphold the international statutes for privacy, similar standards for information collection as well as processing must be ensured, the system must have a procedure for judicial overview, while a stratagem for public suggestive interventions and relief mechanisms must be established. In order to ensure the nation’s safety from coercive elements, and maintain against the public spread of diseases without curtailing upon any humanitarian citizenry rights, these standards of practice must be utilized.

Thomas Harrison’s19thoughts on striking a balance between privacy concerns while ensuring national health and security, talk of an equitable understanding of “reasonable limits and expectations from privacy.” The reasonable expectation from privacy test applies in the same way non-electronic crimes require warrants for governmental intervention. It sets the limits, on a reasonable amount of logic which substantiate a difference between governmental intervention and supervision. The essential factor of importance for any state is to uphold the rights of its citizens, and not allow its mitigation in any way or form. The most substantial act to ensure that the basic elements of human dignity are upheld calls for protection against any constitutional infringement. No matter the social situation, the fundamental right of privacy must not be unreasonably capered.

Endnotes:

1. Economic and Political Weekly, Protection v. Privacy: The debate on surveillance rights in India, November 12, 2019, available at https://www.epw.in/engage/article/protection-vs-privacy-debate-surveillance-and-digital-rights-india (Last visited on April 7, 2020).
2. K.S. Puttaswamy v. Union of India, AIR 2018 1 SCC 809.
3. Thomas B. Kearns, Technology and the Right to Privacy: The convergence of surveillance and information Privacy Concerns, 3 William and Mary Bill of Rights Journal. 7 (1999).
4. Sheri A. Alpert, Privacy and Intelligent Highways: Finding the Right of Way, 1 SANTA CLARA COMPUTER & HIGH TECH. L.J. 97, 106-07 (1995).
5. Sifted, Fighting Covid-19 without turning into a surveillance state, March 30, 2020, available at https://sifted.eu/articles/covid-19-hackathon-surveillance/ (Last visited on April 7, 2020).
6. Supra Note.2.
7. The Information Technology Act, 2000 § 69.
8. The Constitution of India,1950, Art.21.
9. Legal Services India, Right to Privacy under article 21 and the related conflicts, July 2019, available at http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html(Last visited on April 7, 2020).
10. The Universal Declaration of Human Rights Act, 1948, Art.12.
11. The Covenant on Civil and Political matters, 1992, Art 17.
12. Worldometer, Corona Virus Updates, available at https://www.worldometers.info/coronavirus/coronavirus-death-toll/ (Last visited on April 7, 2020).
13. The Code of Criminal Procedure, 1973, § 144.
14. Aljazeera, we’re watching you: Covid-19 surveillance raises concerns of privacy, April 3, 2020, available at https://www.aljazeera.com/news/2020/04/watching-covid-19-surveillance-raises-privacy-fears-200403015854114.html(Last visited on April 7, 2020).
15 Live Law, Privacy in terms of Corona: Problems with publication of personal data of Covid-19 victims, March 262020, available at https://www.livelaw.in/columns/privacy-in-times-of-corona-154360
16 The Economic Times, as covid-19 cases rise in India, “Covtech” based surveillance intensifies, March 30,2020, available at https://economictimes.indiatimes.com/news/politics-and-nation/as-covid-19-cases-rise-in-india-covtech-based-surveillance-intensifies/articleshow/74876078.cms (Last visited on April 7, 2020).
17 Just Security, The Way forward for surveillance can balance human rights and Government Needs, January 27,2016, available at https://www.justsecurity.org/28991/surveillance-reform-balance-human-rights-government/ (Last visited on April 7, 2020).
18 Jing Ran, Striking the Balance between Privacy and Governance in the age of Technology, 11 Philosophy, Politics, and Economics Undergraduate Journal (Spring 2016).
19 Signal, Privacy v. Protection: A Delicate Balance, November 2001, available at https://www.afcea.org/content/privacy-vs-protection-delicate-balance (Last visited on April 7, 2020).

The author Srihari Mangalam is associated with the National University of Juridical Sciences, Calcutta