Now that the comparatively easy work of freeing the Indian Internet from the greedy reach of the North American “platform” companies has been well advanced, the current government must squarely face the most important issue of our time: Do Indians have a right to privacy and if so what does it entail in the age of data science?
Last year, the Supreme Court had cut straight to the heart of the issue in the Aadhaar petitions. On behalf of all Indian citizens, it had asked the current government to address the most basic questions in a democracy governed by the law: what are the privacy rights of its citizens and are they protected equally? Then, the government passed the Aadhaar Bill with the stated object of providing efficient, transparent and targeted delivery of subsidies, benefits and services. In the present scenario where the Aadhaar Bill was passed as a money bill, the President does not have the power to return it with recommendations, but is mandated to give assent to it.
While multiple arguments have been advanced about the necessity of having Aadhaar, now that it is the law of the land those questions are rendered moot. To advance the discussion forward we must insist on a privacy and data collection framework that allows for UID to exist without its worst case scenarios turning into a harsh reality.
While it is arguable that the collection of vast troves of sensitive information is itself an invasion of privacy, its the use of this data that is rife with abuse. Innocuous data can be used by many parties with severe consequence for innocent individuals. In the absence of any clear framework about collection, access and sharing of data, it can be shared widely and retained for years without the public ever knowing.
Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things.
The first is secrecy, which our ability to keep messages “private,” so that their content is known only to those who we intend to receive them.
The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading.
The third is autonomy, which is our ability to make our life decisions free of any force which has violated our secrecy or our anonymity.
These three are the principal components of the mixture that we call “privacy”. A precondition to the order that we call “democracy”, “ordered liberty”, “self-government”, to the particular scheme that we call freedom.
Without secrecy, democratic self-government is impossible. Because people may not discuss public affairs with those they choose, excluding those with whom they do not wish to converse.
Anonymity is necessary for the conduct of democratic politics. That autonomy is vitiated by the wholesale invasion of secrecy and privacy, that free decision making is impossible in a society where every move is monitored.
The government cannot adopt the posture that only one aspect of government’s protective responsibility matters — that the costs of privacy destruction can be imposed upon the people in return for subsidies, or any other social benefit on which they absolutely depend.
The contours of the government’s positive vision for Digital India—far more majestic, complex and potentially transformative in the lives of all Indian citizens—though now emerging, will take much more effort, public and private, and much public dialogue to fulfill. Here the experts from all quarters, along with the citizen activists who were so vitally important in the last round, must come together to debate issues and implement compromises. This will require skilled knowledge and patient expert negotiation of details, as well as research reports and social media campaigning. But unless everyone’s attention is also unremittingly focused on individual privacy—a right that restricts all government in all contexts and must be respected by private market activity of all kinds everywhere on pain of overwhelming legal liability— the Government’s majestic ambitions could also prove the foundation of intolerable despotism.
Mishi Choudhary is Legal Director, Software Freedom Law Center
Featured image credit: Seb, CC BY 2.0/Flickr