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Privacy upheld as fundamental right: What term means for you, what’s govt view

What is individual privacy? How does the government view it? Is it only for elites?

Aadhaar Controversy Updated: Aug 24, 2017 14:18 IST
Samarth Bansal
A woman goes through the process of eye scanning for Unique Identification (UID) database system at an enrolment centre at Merta district in Rajasthan February 21, 2013.
A woman goes through the process of eye scanning for Unique Identification (UID) database system at an enrolment centre at Merta district in Rajasthan February 21, 2013.(REUTERS)

A nine-member bench of the Supreme Court on Thursday delivered a landmark judgment unanimously declaring the right to privacy a fundamental right under the Constitution.

Privacy had emerged as a contentious issue while the apex court was hearing a batch of petitions challenging the Centre’s move to make Aadhaar mandatory for government schemes.

The privacy debate is not easy to follow. Distinctions are made between what individual privacy means when it comes to the government as opposed to private players such as Google and Facebook.

Here is a nine-point primer on the right to privacy and the Indian government’s view of it:

1. What is Privacy?

Not everyone understands what privacy means, which makes the privacy debate even more difficult. And those who do may interpret it differently.

One of the earliest definitions comes from Warren and Brandeis, who, in a 1890 paper, described privacy as the “right to be left alone”. In that sense, privacy is not necessarily about hiding something or keeping stuff secret.

In 1975, Altman describes privacy as “selective control of access to the self”. This implies that privacy concerns an individual’s ability to control what personal information is disclosed, to whom, when and under what circumstances.

Some suggest that the social context and culture determines the meaning of privacy: what is considered private in one part of the world may not be so in the other. Helen Nissenbaum proposed the idea of contextual integrity wherein boundaries allow individuals to control the transfer of personal information. But there are multiple boundaries, not one, which she calls “context based boundaries.”

2. Privacy from government

Traditionally, privacy has been understood in terms of surveillance by the state. Given that the government enjoys influence over the state machinery and have coercive powers related to law enforcement, mass surveillance is in a contest with the basic tenets of a liberal democracy.

“The right of privacy against the State is thus premised on the idea of personal freedom.”

3. Privacy from private actors

In recent years, with the onset of the data science revolution, private companies like Google and Facebook are able to collect and store large volumes of data about their billions of users. Their business model relies on processing the troves of data and monetising the “free” service by selling advertisements.

“The right to privacy against private actors is founded on principles of contract law, most prominently involving notice and consent.”

4.It’s a trade-off

Privacy is often at loggerheads with national security and the benefits of big data. Governments justify surveillance programmes by claiming that the information gathered about citizens would help in fighting terrorism. But that comes at the cost of their privacy.

Given that both “national security” and “privacy” are vaguely defined, advocates Vrinda Bhandari and Renuka Sane in their document on privacy framework in the age of internet point out that “there is no clarity on when one gives way to the other, and it is undeniably the rhetoric of national security that invariably overwhelms privacy.”

5. Indian government’s contradictory views

The Indian government argues that privacy concerns by private bodies should be viewed differently than by the government. In the Whatsapp Case, for instance, the Union government had said that the right to privacy is an integral part of Article 21 of the Constitution, which provides for the right to life and personal liberty. But in the case of Aadhaar, the government contradicts this view, arguing that privacy is not constitutionally inherent. Basically, they asked the court to view the right to privacy on a case by case basis.

6.What’s the impact of privacy invasion?

Identify theft: your personal information can be used to get phone numbers or credit cards in your name.

The motive could be financial fraud or to take part in illegal activities. Further, acquired information can be used to manipulate an individual in ways that they don’t even know. Your data can be used to get you to buy something online, try to get you to act in a certain way or to believe in something in a particular way. For instance, targeted political advertising, where campaigners spend money to show separate content to people with differing political beliefs.

7. Is privacy only for the elites?

When people say “In India, privacy doesn’t matter”, some point towards the lack of awareness and sensitivity to privacy issues, others toward cultural attitudes.

But one of the most common points is that privacy is only the preserve of the rich and the elite. They care about privacy, supporters of this view argue, as they already have access to basic services which the poor need. Privacy comes at the cost of development, as has been argued in the case of Aadhaar.

But as Alok Prasanna Kumar puts it, such an argument misunderstands the right to privacy and underplays its role in allowing individuals to make free choices. Privacy-is-for-elite argument is that of a “paternalistic and patriarchal state that knows what’s good for you and won’t let you make your own choices,”

8. “I have nothing to hide”

“I don’t care about privacy as I have nothing to hide” is quite regularly heard. Implicit in this argument is that only those who have something to hide—because they have done something wrong—are concerned about privacy invasion. And if that’s not the case, how can an individual’s information be used against her?

But experts say that this argument wrongfully equates privacy with secrecy, which are two distinct concepts. “Privacy is about exercising the choice to withhold information, which others have no need to know,” Bhandari and Sane wrote in an op-ed, while secrecy “is about withholding information that people may have a right to know.”

Question: If you have nothing to hide, will you share your Facebook/Gmail password with your friends?

9. Orwellian Reminder

Does the spread of technology mean that privacy is dead? If you think so, George Orwell’s classic novel 1984 will set alarm bells ringing. He talked about a surveillance state where people were aware that they could be monitored by the government at any given moment. And in such a society, where privacy shrinks to zero, Orwell said people can’t have unconventional thoughts, which is the way to a totalitarian society.