Authored By: Manual Martin
Kannur University School of Legal Studies Manjeshwar Campus
Abstract
The rapid advancement of Artificial Intelligence (AI) has revolutionized digital interactions, but it has also intensified concerns surrounding privacy in cyberspace. AI systems thrive on vast datasets, often collected through surveillance, profiling, and automated decision-making, raising critical questions about data protection, consent, and individual autonomy. In India, the jurisprudence of privacy has evolved significantly from Kharak Singh v. State of UP to Justice K.S. Puttaswamy v. Union of India, establishing privacy as a fundamental right. Yet, emerging AI-driven technologies, including facial recognition, predictive policing, and algorithmic governance, challenge traditional safeguards. Globally, similar tensions exist between innovation and rights protection, highlighting the urgent need for robust legal frameworks and ethical standards. This paper explores privacy concerns posed by AI in cyberspace, evaluates judicial responses, and suggests policy interventions that balance technological progress with the safeguarding of individual rights in the digital age
Introduction
At the advent of the digital era, the right of privacy has become one of the most debated and quickly changing aspects of human rights law. Cyberspace and Artificial Intelligence (AI) have radically redefined how information is generated, gathered, stored, processed, and shared. Although these technologies present unparalleled opportunities for efficiency, innovation, and regulation, they also pose a serious threat to personal privacy, data security, and core freedoms.
The need is being felt most urgently in jurisdictions such as India, where constitutional recognition of the right to privacy as a fundamental right is relatively recent in Justice K.S. Puttaswamy v. Union of India,[1]but burgeoning technological adoption has already highlighted broad regulatory gaps. Worldwide, regulations such as the EU’s General Data Protection Regulation (GDPR) are attempts to protect personal information, yet AI decision-making, facial recognition systems, algorithmic profiling, and cyber monitoring continue to erode individuals’ capacities to manage their personal data.
This article addresses the complex privacy issues of AI and cyberspace based on case law, legislative standards, and international best practices. It ends with suggestions for achieving a balance between technological innovation and constitutional freedoms.
Evolution of Privacy Jurisprudence in Cyberspace
Early Judicial Recognition of Privacy
The codification of privacy as an actionable right developed slowly in India. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court ruled on police surveillance, concluding that unauthorized domiciliary visits were contrary to “ordered liberty,” although privacy was not directly established as a fundamental right.[2]Likewise, in Gobind v. State of Madhya Pradesh, the Court hesitantly recognized that privacy might arise as a safeguarded right under Article 21.[3]
Subsequently, R. Rajagopal v. State of Tamil Nadu prioritized privacy under press freedom, protecting the right of the individual “to be let alone” from unwarranted publication.[4]This line of progress ended in Justice K.S. Puttaswamy v. Union of India, where a nine-judge bench in the Supreme Court decided by consensus that privacy was an integral right to Article 21.[5]
The digital revolution has given rise to new domains of privacy clashes. The old doctrines of dealing with physical intrusion fall short when faced with algorithmic profiling, cyber watch, or bulk harvesting of metadata. In People’s Union for Civil Liberties v. Union of India, the Supreme Court generalized privacy to modes of communication by holding that telephone tapping violates Article 21 unless it is supported by law.[6]
At the global level, privacy has been recognized under Article 17 of the International Covenant on Civil and Political Rights (ICCPR),[7]while regional instruments like the European Convention on Human Rights (ECHR) Article 8 provide robust privacy protections.[8] Yet, AI’s predictive capabilities and big data analytics challenge these safeguards by blurring the boundaries between private and public spheres.
Privacy Challenges by AI
Algorithmic Profiling and Discrimination
AI systems are based on data-driven models that analyze immense amounts of personal data. Predictive policing, targeted advertising, and credit scoring frequently include profiling that may result in discriminatory practices. For instance, AI algorithms may lead to a disproportionate flagging of individuals from marginalized groups, reinforcing biases embedded in training datasets.[9] The transparency of AI models, also referred to as the “black box problem,” worsens concerns as impacted individuals cannot rightfully challenge automated decisions.
Facial Recognition and Biometric Surveillance
Facial recognition technologies (FRT) use by law enforcement and private actors raises urgent privacy issues. In India, biometric governance initiatives like Aadhaar had raised controversies regarding data storage and surveillance threats.[10]In contrast, in the United States, the courts have held warrantless location data use, as in Carpenter v. United States, requiring warrants for obtaining historical cell-site location information.[11]
Data Harvesting and Surveillance Capitalism
Personal data is monetized by tech companies, giving rise to Shoshana Zuboff’s “surveillance capitalism.”[12] AI extends this by knowing consumer behaviour with greater accuracy. Social media harvests browsing history, geolocation, and interactions to fuel algorithmic models that drive user engagement. The Cambridge Analytica case epitomizes how AI-powered data harvesting undermines democratic processes.[13]
D. Cross-Border Data Flows and Jurisdictional Challenges
Cyberspace also crosses state boundaries, making it difficult to enforce privacy legislation. AI systems tend to process information which is located in several jurisdictions, and thus the applicable law becomes uncertain. For example, information produced in India can be located on servers in the United States and processed in Europe, giving rise to conflicts between conflicting legal regimes.[14]
Cybersecurity and Privacy Risks
Increase in Cybercrimes
The use of AI in cyberspace has spawned advanced cyber threats, such as deep fakes, phishing, and ransomware. Cybercriminals take advantage of AI to launch attacks based on vulnerabilities, boosting risks to individual privacy. For example, AI-created deep fakes pose risks to reputational rights and identity protection.
Defect of Current Legal Systems
India does not have a robust data protection regime as of now. The Information Technology Act, 2000, offers limited protections, mainly in the form of “reasonable security practices.”[15] Although the digital Personal Data Protection Act (2023) is an attempt at filling this void, it has been criticized for offering too many exemptions to the State.[16]The GDPR, on the other hand, binds data controllers with stringent requirements, such as the right to explanation of automated decision-making
State Surveillance and National Security
Governments globally more and more use AI-based surveillance for counter-terrorism and law enforcement. Though national security is a valid goal, untrammelled surveillance may lead to the development of a surveillance state. In Anuradha Bhasin v. Union of India, the Supreme Court emphasized proportionality and judicial monitoring in limitations concerning digital rightLegal7 Challenges
Children’s Privacy in AI System
AI-facilitated education platforms, intelligent toys, and digital learning apps gather children’s data, posing greater concerns. Children are less able to consent, and hence are at risk of exploitation. the U.S. *Children’s Online Privacy Protection Act (COPPA)[17]and GDPR’s Article 8 try to give protection, but enforcement is variable.
Intermediary Liability and Platform Governance
Google India Pvt. Ltd. V. Visaka Industries Ltd. Cases point to the challenge of making intermediaries answerable for invasion of privacy.[18] With AI moderating, questions of liability become more intricate, since algorithms can under-censor or over-censor, violating freedom of expression in addition to privacy.
AI and Workplace Surveillance
Employers are increasingly applying AI tools to track productivity, keystrokes, and workers’ communications. Although justified on the basis of managerial prerogatives, these practices could violate informational self-determination and have a chilling effect on workers’ rights.²³
V. Recommendations
Constitutional Protection and Judicial Checks
Judges need to keep using the proportionality test, as defined in Puttaswamy and Anuradha Bhasin, to warrant that State surveillance is legal, legitimate, and proportionate.²⁴ Judicial checks must be institutionalized to review the deployment of AI in the police and governance.
Holistic Data Protection Law
India needs to fast-track enactment of a rights-based data protection act in terms of GDPR tenets. The same needs to incorporate: Right to explanation of algorithmic decisions. Data localization with appropriate guarantees to ensure sovereignty and international data flows balance. Independent Data Protection Authority with coercive powers.
Ethical AI Frameworks
Regulation of AI should include transparency, accountability, and equity. Algorithmic audits, impact assessments, and open-source examination can decrease biases. The EU’s draft AI Act, which classifies high-risk AI systems, lessons can be learned from.[19]
Enhancing Cybersecurity Infrastructure
Public-private collaboration must improve cybersecurity resilience. Mandatory breach notification legislation and capacity development in law enforcement are paramount in combating AI-enabled cybercrimes.
Enabling Digital Literacy and Consent
The users have to be enabled by awareness campaigns, clear privacy policies, and informed consent structures. Vulnerable populations like children and marginalized groups should have special protections created.
Conclusion
The confluence of AI and cyberspace has reconfigured the edges of privacy, generating issues that go beyond traditional legal paradigms. Judicial acknowledgment of privacy as a constitutional right is a milestone, but it is not complete without strong legislative protection, ethical governance of AI, and international cooperation. Reconciling innovation through technology with constitutional principles necessitates a multi-stakeholder framework that engages the judiciary, legislature, civil society, and technology creators.[20]
As India and the world ride out this digital revolution, the need of the hour is to address privacy not as a personal right but as a collective good for maintaining democracy, human dignity, and rule of law in the era of AI. The emergence of Artificial Intelligence (AI) and cyberspace has transformed the understanding of privacy, raising unprecedented legal, ethical, and social challenges. In India, privacy has evolved through judicial recognition, beginning with Kharak Singh v. State of UP (1964) and culminating in Justice K.S. Puttaswamy v. Union of India (2017), where privacy was declared a fundamental right. Despite this recognition, the digital ecosystem—characterized by algorithmic surveillance, data mining, biometric authentication, and internet regulation—poses constant threats to personal autonomy and informational security.
Key case laws such as R. Rajagopal v. State of TN (1994), PUCL v. Union of India (1997), and Anuradha Bhasin v. Union of India (2020) reveal the judiciary’s attempt to strike a balance between state interests and individual freedoms. However, technological advancements outpace traditional legal safeguards, leading to gaps in data protection, intermediary liability, and enforcement. The lack of comprehensive legislation, ethical frameworks, and cross-border governance further aggravates vulnerabilities in cyberspace.
The article emphasizes that safeguarding privacy requires more than judicial intervention; it demands robust data protection laws, accountability in AI deployment, ethical governance structures, and international cooperation. In India, the enactment of the Digital Personal Data Protection Act, 2023 is a positive step, but its effectiveness depends on implementation and awareness.
Ultimately, the article concludes that privacy should not merely be seen as an individual entitlement but as a collective societal good, essential for protecting democracy, human dignity, and the rule of law in the AI-driven digital age.
Reference(S):
Sources
Books
Shoshana Zuboff, The Age of Surveillance Capitalism (Profile Books 2019).
Daniel J. Solove, Understanding Privacy (Harvard University Press 2008).
Journals
Gautama Bhatia, State Surveillance and the Right to Privacy in India: A Constitutional Biography, 26 Nat’l L. Sch. India Rev. 127 (2014).
Paul Schwartz & Daniel Solove, The PII Problem: Privacy and a New Concept of Personally Identifiable Information, 86 N.Y.U. L. Rev. 1814 (2011).
Case Laws
- Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
- Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148.
- R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
- Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
- Carpenter v. United States, 138 S. Ct. 2206 (2018).
- Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
- Google India Pvt. Ltd. v. Visaka Industries Ltd., (2020) 4 SCC 162.
Official Websites
Ministry of Electronics and Information Technology (MeitY), Government of India.
European Commission, GDPR Portal.
News Reports
“Cambridge Analytica Scandal: How Facebook Data Was Misused,” BBC News (Mar. 2018).
“India’s Digital Personal Data Protection Bill Passed by Parliament,” The Hindu (Aug. 2023).
[1] 1.Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[2] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
[3] Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148.
[4] R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
[5] Puttaswamy, (2017) 10 SCC 1.
[6] People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
[7] International Covenant on Civil and Political Rights, art. 17, Dec. 16, 1966, 999 U.N.T.S. 171.
[8] European Convention on Human Rights, art. 8, Nov. 4, 1950, 213 U.N.T.S. 221.
[9] Daniel J. Solove, Understanding Privacy 42–44 (Harvard Univ. Press 2008).
[10] Gautamap Bhatia, State Surveillance and the Right to Privacy in India: A Constitutional Biography, 26 Nat’l L. Sch. India Rev. 127, 139 (2014).
[11] Carpenter v. United States, 138 S. Ct. 2206 (2018).
[12] Shoshana Zuboff, The Age of Surveillance Capitalism 56–59 (Profile Books 2019).
[13] Cambridge Analytica Scandal: How Facebook Data Was Misused, BBC News (Mar. 2018).
[14] Paul Schwartz & Daniel Solove, The PII Problem: Privacy and a New Concept of Personally Identifiable Information, 86 N.Y.U. L. Rev. 1814, 1823 (2011).
[15] Information Technology Act, No. 21 of 2000, India Code (2000).
[16] India’s Digital Personal Data Protection Bill Passed by Parliament, The Hindu (Aug. 2023).
[17] Children’s Online Privacy Protection Act, 15 U.S.C. 6501–6506 (1998).
[18] Google India Pvt. Ltd. V. Visaka Industries Ltd., (2020) 4 SCC 162.
[19] Ministry of Electronics & Information Technology, Government of India.
[20] European Commission, Proposal for an Artificial Intelligence Act, COM/2021/206 final.
