Authored By: Avantika Sirohi
Avantika Sirohi
Abstract
Technological advancement is the demand of the time to compete in global market to stand up high. It’s absolutely fine to be part of this digital world but what’s not fine is when the rights of citizens are on stake in a rapid technological driven world. In the digital era survelliance through CCTVs, biometrics, facial recognition, tracking systems etc somehow blurs the concept of confidentiality. Right to privacy is not an option but a fundamental right embedded under article 21. Privacy under watch is a political, legal and an ethical hurdle. The survelliance isn’t a negative concept but a way to ensure national security and smooth administration, if used ethically. Edward Snowden says, “Privacy is the foundation of all other rights’’[1].
Major question rise is that whether privacy is actually misused? Whether fundamental rights can be violated in name of digitalisation? whether security is prioritised over human right of privacy? Whether survelliance is actually promoting democracy? This research paper mainly aims on how right to privacy after K.S Puttaswamy or the Aadhaar case (2017) is to be balanced in age of survelliance. It discusses various decisions made, emerging challenges, data protection need to preserve transparency.
It isn’t impossible to tackle these issues, all what is required is balance between the two and legal safeguards is vital for democracy and dignity.
Keywords: survelliance, article 21, Aadhaar case, privacy, technology advancement.
Introduction
Privacy is a ‘Latin word derived from ‘Privatus’ means belonging to oneself’’[2]. In general sense privacy means to keep the private matters secretive or with non-intervention of public. It can be amongst certain individuals, groups, societies which can be national or even international. It’s not a new concept but is prevalent since 15th century. Legal text like Manu Smriti stressed on preserving the personal matters or keeping the holiness of inner peace. A Greek philosopher compared human with the animals and called them as social animals as they do need a companion to interact. Though despite this everyone has certain secrets that meant not to be shared to live more fully. Privacy isn’t a mere word but recognised as a right to grant protection. Scholars like Warren and Brandies privacy not just as a “property right, but as an essential personal liberty’’[3].
The right to privacy has become a controversial topic nationwide. Due to the evolution of various new technologies like AI, it’s quite complex to create balance between privacy and survelliance. Benjamin Franklin warned against sacrificing essential liberty for temporary safety.
Survelliance means to keep check or monitoring of targeted areas through mechanisms like central monitoring system, crime and criminal tracking network system, CCTVs, automated facial recognition system and so on, mainly to keep criminal records, income tax records, record phone calls or social media communications etc. The government authorises agencies like Central Bureau Investigation (CBI), Narcotics Control Bureau (NCB), Research and Analysis Wing (RAW) etc to keep an eye directly or through instruments for maintaining security. What is believed, that this power vested with the agencies should not be abused and used if necessary and must be transparent and accountable in nature.
Within some time, role of spy agents will be mitigated, as our phones going to spy us.
Rise of survelliance
Technology in this modern society is dominant and is an intrusive part of our lifestyle. Survelliance has evolved rapidly mainly to promote security. Phycology says a human under watch, acts more cautiously and every wrongdoer is under apprehension to be caught more easily through monitoring instruments on an extraordinary scale. The rise of surveillance is an outcome of evolution of internet, smart devices, AI, social media etc as a watchdog.
If we observe sharply then one is under survelliance even while working, walking, travelling or on social media platforms etc. The amount of data gathered raises issue that over survelliance do creates behavioural changes and diminishes individuals’ sense of autonomy and privacy. This data collection process is in mass form and it’s unpredictable to know that when or where the data is taken or analysed or used. The concept is used by government (for nation’s security and ensuring political control, example: phone tapping), by corporate sectors (example: consumer monitoring), by modern technologies (example: biometrics or facial recognition). It’s a fact that more the people are relying on technology the more it’s easier to track their activities and more cybercrimes are visible. Thus, this rapid rise of survelliance has led to debate between innovation and regulation, as its obvious its somewhere eroding privacy.
Legal frameworks
In India privacy wasn’t a human right before 2017. It was one of a contentious issue since framing of constitution and was suggested by Mr. Kazi Syed Karimuddin (a constituent assembly member) to add it and even B.R Ambedkar called privacy as a “useful proposition”[4] but wasn’t added explicitly in the constitution. It’s a long journey involving various landmark cases. Privacy to be called as a human right has passed through various hurdles to be added within the ambit of right to life and personal liberty i.e. article 21.
Certain landmark judgements: –
- “MP Sharma and others vs Satish Chandra 1954”[5]
It’s the first case to talk about right to privacy to conduct search and seizure for investigation made. The 8 judges bench held that no fundamental is violated as investigation is a process for temporary period.
- “Govind vs State of Madhya Pradesh 1975”[6]
Under this case court held that right to privacy cannot be regarded as an absolute right. It must be imposed with prudent restriction.
- “People’s union for civil liberties vs union of India and others 1996”[7]
Under this case telephone tapping determined as a violation of art 21(right to privacy is under ambit of article 21) if not in compliance with law or order of court.
- “K.S Puttaswamy and others vs Union of India 2017”[8]
It’s referred as Aadhaar case where the petitioner challenged to give his biometrics for Aadhaar verification as its curtailing his right to privacy. Thus a 9 judges bench held out that right to privacy is a fundamental right under article 21 of the constitution. Further court added that right to privacy isn’t absolute, it can be restricted if reasonably required. Thus, this case paved the path of privacy as a human right in a digital world and led to the enforcement of Digital Personal Data Protection Act.
- The DPDP Act 2023
It was enforced to consider data privacy concerns. It addressed the issue harmoniously that both right and need to collect data can be achieved. It mandated the authorities to have proper consent before processing the data to maintain transparency and stipulated liability of the organisation for any misconveniences or irregularity in handling of data. The Data Protection Officer or DPO is appointed as a “torchbearer for data protection”[9].
- Information Technology Act,2000
The act enforced mainly for protection of personal data. It stipulates remedies and certain provisions regarding hacking, online fraud detection and regulate cyber security.
Generally, Privacy is affected when the agencies or companies, misuses the collected data or use it in unethical way like cybercrimes, deepfakes etc. the legal provisions evolved with time shows India’s concern towards protection of privacy rights.
Right to privacy is compromised for security?
The objective of survelliance isn’t to meagre the concept of privacy but to prevent terrorism, crime and to ensure security and public management. It was introduced in the good faith for people own benefit. It wasn’t meant to be a topic of discussion until cases involving government at guilt of misusing its power, political influence emerged and created threat to democracy.
Survelliance isn’t a negative technology if used in its limit. The proportionality must be maintained between both privacy and survelliance so that they both can coexist harmoniously.
Privacy isn’t directly sacrificed but one’s personal data intervened with consent or in due care of justice. If unethically the privacy is infringed then legal provisions acts a robust way to seek remedy including stricter penalties. Thus, judiciary plays a vital role in preventing from one to act supreme against another.
- Challenges in digital era
The nexus between regulation and innovation is constantly evolving as technology emerges and new legal challenges arises. The concern for data protection or privacy is causing a challenge to evolving changes.
People are not yet ready to fully rely on technology and somewhere scared of being defamed in the society so they are not accepting survelliance mechanism wholly. In modern society, maintaining democracy and technology hand in hand is complicated because basic human rights are affected. From national perspective a nations security is utmost required for building a strong nation whereas privacy, a human right is also equally important to be respected. This is a major challenge in evolution of rapid expansion of survelliance. The data processing should not be under malice hands, as it’s the whole turning point of degrading the actual intent of technology.
It was found that a photo can depict the latitudes and longitudes of a photo unless that function is disabled. Search engines can track the searches made by users and the vast amount of information collected from all around the Internet, such as by popular services like “Facebook, Google, Spotify or GPS systems”[10], collectively results in erosion of privacy.
A Harward review stated that privacy law, in its current form, is of no help to those “unwillingly tagged”[11]. Example: the photos of criminals are sometimes posted on the internet that do violates privacy of that person who do not want to depict his picture in public.
Recommendations
To stay technologically advanced isn’t a sin but a medium to achieve the goal effectively. An efficient survelliance mechanism can be made by: –
- Stronger data protection provisions and strict penalties.
- The authorities must be under a check to act transparently.
- The people must be aware about data processing or tracking mechanisms so that they may rely accordingly and could not be influenced easily to give consent.
- The government must appoint a body to supervise whether the data collected is legally compliant, necessary, and with proper consent.
- Clear provisions for stating the accountability for the collection and distribution of personal information.
- Tracking prevention mechanisms must be used as anti-data trackers websites.
Therefore, an ethical and a balanced approach must be used to carry forward privacy as a right not as an option in name of good conscience.
Conclusion
Technology is complementary to human acts. No doubt that technology has made our lives a way easier than before but if used ethically or in boundaries. If we deep dive in technology and see with broader perspective then survelliance is actually helping to overcome the crimes such as hacking, frauds, deepfakes and to address such issues the govt is bound to process the data to help the victims seek remedy. Privacy isn’t actually eroded but is used as a medium to achieve the goals. The issue lies in the rapid expansion and misuse over actual use of survelliance, as things which evolves slowly are presumed to give better results. Eventually that time isn’t so far when everyone is under survelliance all times and there will be no more privacy.
Bibliography
- Primary sources
MP Sharma and others v Satish Chandra, (1954) SCR 1077(India).
Govind v State of Madhya Pradesh, (1975) 2 SCC 148(India).
People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301(per Dharmadhikari D.M, dissenting) (India).
Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1(per Chandrachud D.Y ,dissenting) (India).
- Secondary sources
SCO team,Right to Privacy: Court in Review,Supreme Court Observer(2017).
Irwin R. Kramer,The Birth of Privacy Law: A Century Since Warren and Brandeis, 39 Cath. U. L. Rev.(1990).
Wikipedia,internet privacy,wikipedia(2023).
Singh N,data Protection And Privacy Challenges In Digital Age In India,White Black Legal Law Journal.23(2024).
(n.d.). Retrieved from https://trans4mind.com/quotes/privacy.html.
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[1](n.d.). Retrieved from https://trans4mind.com/quotes/privacy.html .
[2] wikipedia.(n.d.). Retrieved from Etymology : https://en.wikipedia.org/wiki/Privacy.
[3] Irwin R. Kramer,The Birth of Privacy Law: A Century Since Warren and Brandeis,39 Cath. U. L. Rev(1990).
[4] SCO team,Right to Privacy: Court in Review,Supreme Court Observer (2017).
[5] MP Sharma and others v Satish Chandra, 1954 SCR 1077(India).
[6] Govind v State of Madhya Pradesh, (1975) 2 SCC 148(India).
[7] People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301(per Dharmadhikari D.M, dissenting) (India).
[8] Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1(per Chandrachud D.Y, dissenting) (India).
[9] Singh N,data Protection And Privacy Challenges In Digital Age In India,2 White Black Legal Law Journal. 23,(2024).
[10]search engine privacy. (n.d.). Retrieved from wikipedia: https://en.wikipedia.org/wiki/Internet_privacy.
[11]search engine privacy. (n.d.). Retrieved from wikipedia: https://en.wikipedia.org/wiki/Internet_privacy.
