Privacy Vs National Security: Pros and Cons

Contours of the Right of Privacy in a modern world

It is not that this right is a new concept that needs immediate attention and scrutiny- the simple reason behind the rise and recognition of this right in various legal systems is an account of the changing dynamics of the way people interact and connect with each other. There is an information explosion and increased connectivity due to the unprecedented growth seen in Information and Communication Technology (ICT), fundamentally transforming the way we make connections. While these innovations have definitely improved our life, they have also opened up new avenues and concerns. These technologies are developing at a rapid pace and while it is all well and good from a consumerist perspective, misuse of these technologies is becoming equally rampant, which has forced the authorities to step up their guard and accordingly deal with the hazards associated with the use of such technologies. The problem arises when these authorities, in a bid to ensure security and maintain surveillance start trampling on the privacy of its citizens, albeit ‘for the greater good’.

Most of the time the citizen is unaware of these seemingly dubious activities of the state, interspersed by revelations from the ‘Edward Snowdens’ of the world, followed by uproar and debates and repeated assurances from the State and its various institutions of their utmost regard and respect for this basic right, ensuring the citizens of a certain semblance of privacy in their lives. But, as the dust settles and other issues acquire significance, the ‘status quo ante’ is restored and violation of privacy continues unabated and unencumbered, citizens unaware of the eyes of ‘Big Brother’ on the activities of the individual. It is in fact naivety to assume that any person connected to the internet has any semblance of privacy- the applications and the technology we utilize for our convenience record seemingly innocuous details about our preferences, which are then used to collate and construct an online profile of the concerned individual, apart from tracking their actions and preferences. In a world dominated by consumerism and cutthroat competition, this data acquires special significance and adds to the competitive advantage of Big e-commerce companies which utilize this data to the best of their abilities to increase their profits, which is again a corroboration and application of the ‘Big data theory’, extracting value from large scores of data and in use for predictive analytics and user behavior analytics.

Going by the same analogy, the state is also not far behind in its efforts to regulate the life of citizens in some way or the other, regulation through the internet being the latest weapon in its arsenal. It has become quite common to effect violations of privacy under the garb of national security. It cannot be denied that our actions are being observed and recorded by the state, the only question which remains is to determine to what extent such a violation is permissible.

Surveillance in a Modern State

After we have established that Surveillance and violations of the right to Privacy by the state are unavoidable, it is pertinent to understand the other side of the story. Why does the state feel compelled to control and keep a check on the activities of its citizens? The answer to this question lies in the development of economic systems and the functioning of economies. The industrial revolution and the advent of capitalism were accentuated by cutthroat competition and an almost impulsive need to increase efficiency. Therefore, managers were engaged to ensure that workers’ productivity did not suffer because of their laxity, and herein lies the roots of surveillance. With the gradual development of technologies, it became easier to keep a check on the activities and actions of the workers, and eventually, this concept found application in the governance of the nation, as explained by Max weber’s notion of capitalistic bureaucracy. This has been amplified by the exponential growth observed in Information and Communication Technology, which has made it all the more difficult for an individual to ensure anonymity.

Surveillance has become necessary on account of the burgeoning of societies and the increase in the diversity of the populace. As the heterogeneity in the individual's increases, the anonymity of the actions of individuals also increases and it becomes difficult to attribute and control the unlawful actions of individuals. In such a situation, mass surveillance by the state becomes the need of the hour to ensure social order and control at a much larger scale. As Hagerty and Ericson describe it as “the progressive disappearance of disappearance”, thereby making it difficult for individuals to make it difficult for individuals to remain anonymous or to escape social monitoring without losing their social benefits.

Every notion and every action taken by the state with respect to ensuring security or good governance has an impact on the lives of the citizens. But, we must not forget that it is also the responsibility of the state to protect the sovereignty and integrity of the state and in the face of new threats emerging from cyberspace, certain actions need to be taken. This is the core of the averments put forth by the state and the ultra-nationalists and it will not be wrong to acknowledge that this line of arguments does have the strength and therefore it becomes pertinent to balance and maintain an equilibrium between these conflicting concepts.

Privacy Vs National Security: Understanding the Trade-off

It is very difficult to imagine a private life in today’s connected world, characterized by seemingly endless possibilities for growth and advancement or tyranny and despotism depending on the intention of the user. It is indeed a precarious situation wherein maintaining the safety of citizens requires a breach of their privacy, albeit in a discrete manner. The problem lies in the fact that there is no check on the power of the state to have insight into the details of a citizen, which he has a right of keeping to himself. It is because the city generally has no knowledge of such wide sweeping powers of the state, living in a utopian world wherein the state neither has the ability nor the need to delve into the private lives of the citizens. As shown previously, the same is not viable in the present state of affairs and it is indeed better to accept the reality that such violations will become more prevalent in the years to come.

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In such a situation, it is inconceivable to think of any semblance of privacy in the lives of citizens. Roger Marshall highlighted the same in an article published in the Wire, recounting the case of a juvenile offender in America, who was tracked by utilizing the DNA gathered from a glass of cold drink offered by the investigators. While the same can be justified on account of public good and controlling delinquent behavior, this at the same time raises concerns as to the extent to which the state can go to further its objectives in maintaining security, law, and order. The advancement in technologies has increased the scope and the possibilities of such violations and this presuppose the need for having a discussion and finding a balance between these conflicting concepts. The main issue is the need to define the extents to which the privacy of citizens can be violated. This would require contemplation and discussions between the stakeholders, i.e., Citizens, ISPs, and the Government. In the author’s humble opinion, it is better to define the limits and extent of such examinations rather than simply maintaining the façade of respecting the privacy of citizens.

It must be made clear to the citizens that some violations of privacy are bound to happen and that the same cannot be avoided. Moreover, in complex societies adorned with a diverse variety and heterogeneity, ensuring the simultaneous exercise of such rights would require a balanced approach as these rights are not absolute and are subject to reasonable restrictions. Instead of discretely collecting data and utilizing it for a variety of purposes, the focus should be on increasing transparency and educating citizens about the perils of sharing their personal data and the potential harm that they may be susceptible to by sharing such data. Further, adequate safeguards should be deployed in order to ensure that the data collected is not misused. The main problem is the information deficit in the general masses and concerted efforts need to be made in order to educate citizens about the same. Such a discussion would entail dual benefits- reduced scope of misuse as the masses are more diligent about how they use and protect their personal data and securing the cooperation of the citizens in the state’s pursuit of maintaining law and order and keeping a check activity which has the potential of jeopardizing the sovereignty and integrity of the nation.

Right to Privacy: In a National Perspective

The K.S Puttuswamy judgment was historic because it recognized something as basic and intrinsic and quintessential for leading a normal life envisaged under Article 21 of the constitution of India. Prior to this judgment, there had been rulings wherein the court talked about its facets but never explicitly declared it as a part of the fundamental right to life. This judgment has opened Pandora’s box as every action of the state would now be scrutinized and judged at the altar of the citizen’s privacy. Various bills have been blocked and the validity of provisions of legislation has been challenged on account of this judgment. What needs to be seen is whether there is an effective application of this right in the coming years. Take for instance the Aadhar card controversy – it in fact marked the inception of this debate which was followed by a petition filed by the retired High Court Justice and the recognition of this right. However, the actions of the state have continued unabated to secure control over the lives of citizens.

The DNA technology (Use and Application) Regulation Bill, 2019 is a prime example of the hegemonic interests of the state in regulating the lives of the citizens. This bill was passed by the erstwhile National Democratic Alliance government in January, despite numerous concerns pertaining to misuse of the data collected, consent, and privacy. This bill seeks to utilize DNA technology to establish the identity of a certain category of persons by maintaining a database (DNA Databanks) and a DNA regulatory board. The main concern regarding the legislation was regarding the possibility of misuse given the deplorable state of the justice adjudication system and the duration for which such data would remain in the database, rendering it susceptible to misuse. These concerns were allayed by the ruling dispensation by highlighting that every law is susceptible to misuse and that the said bill was brought after a lot of deliberation and discussion. Another problematic area is regarding the collection of data in civil disputes as the provisions do not stipulate where such data would be stored.

Recently, a petition was filed in the Madras High Court regarding the linking of social media profiles of registered users with their Aadhar cards. Despite the fact that such an idea was rejected by the division bench of the Madras High court, the Tamil Nadu Government chose to file an appeal before the honorable Supreme Court. The petition was filed highlighting the fact that individuals guilty of incitement by posting inflammatory posts on social media sites got away with the same and that there was a need to bypass the stringent privacy regulations of the intermediaries to ascertain their identities. Since then, the petition has been expanded in its scope to examine the adequacy of the legal framework on cybercrimes and the responsibility of the intermediaries providing telecommunication and online services. Further, the new rules proposed by the Union Ministry of Electronics and Information technology regarding cooperation on the part of intermediaries in identifying originators of offensive content shows that there is a certain nexus between the actions of the state and its need to have control over data and the lives of the citizens. This is precisely the reason behind the apprehension of various activists regarding a potential violation of the right to privacy by the state, justified by the government in order to maintain security and peace.

Conclusion

The discussion in the above paragraphs has clearly shown the necessity to achieve an equilibrium between national security and the privacy of citizens. What is essential on the part of the state to ensure basic respect for privacy and the personal lives of the citizens is something that needs to be deliberated upon and this can be done only by encouraging discussions and recognizing the threat to privacy posed by the modern developments in Information and Communication technology. Formulation of standards regulating the extent to which the data of the masses can be collected and utilized needs to be addressed by adequate legal reforms and changes in the enforcement machinery. Growth in ICT is taking place at an exponential rate and so are the possible threats of misuse and exploitation. The problem is that advancements to deal with these threats have not been at pace in the legal framework. The need of the hour is to promulgate legislation and formulate rules for preventing the misuse of the personal data of citizens and protecting privacy.

Further, concerted efforts to educate people about the potential breaches of data and the inherent risks involved in transacting in an increasingly digitized world are also pertinent in light of the new emerging threats. Dealing with these will require the cooperation of both the citizens as well as the government in order to deal with the challenges posed by the modern technological developments