How evolving technology challenges legal protections and our fundamental right to privacy
The right to privacy is a fundamental human right that refers to an individual’s right to keep their personal life private and free from interference or intrusion by others, including the government and other organizations. Privacy is associated with and is a bulwark of other rights. There can be no dignity without privacy, and dignity is part of the Preamble, forming part of the basic structure of the Constitution. The Supreme Court’s landmark verdict making individual privacy a fundamental right will impact the lives of 135 crore people in ways ranging from eating habits to online behaviour, and from sexual preferences to welfare scheme benefits.
In previous cases, such as those of M.P. Sharma and Kharak Singh, the Supreme Court of India did not recognize the right to privacy as a fundamental right, considering it instead an ordinary right. However, in K.S. Puttaswamy vs. Union of India, a nine-judge bench of the Supreme Court acknowledged that the right to privacy is a fundamental right, rooted in Article 21 (Right to Life and Personal Liberty). By recognizing the right to privacy as an intrinsic part of Article 21, which applies to all, citizens or otherwise, the court has enabled anyone to seek constitutional remedies under Articles 32 and 226 in case of privacy violations.
People have less legal right to privacy than they think they do
To understand this better, it’s useful to look back to the time before smartphones and the internet. Back then, once you locked your door and sealed your envelopes, there was little chance for the government, corporations, or others to invade your private life. A century ago, with the advent of the telegraph and telephone, privacy was protected by prohibitions against wiretapping without a court order issued on probable cause. In fact, up until the 1990s, all forms of personal communication—telephone, telegraph, and postal mail—were protected by strong laws guarding against intrusion by the government, corporations, and individuals.
The game has changed
However, that protection is now history. The advent of the internet has dramatically changed the landscape, and lawmakers have been largely silent on protecting people’s digital privacy.
Consider these questions:
– It’s illegal to wiretap people’s phones, so why don’t we have the same laws to protect their VoIP calls (like Skype)?
– It’s illegal to intercept and open people’s physical first-class mail, so why aren’t similar laws in place to protect email?
– It’s illegal to place bugs in people’s homes, so why don’t we have strict regulations on what systems like Alexa, Siri, or Cortana can transmit back to their companies for permanent archiving?
– Although it’s legal to observe or film people in public, it’s illegal to stalk them from place to place. So why don’t we have laws preventing facial recognition technology from tracking individuals across networked video surveillance systems?
– Similarly, it’s illegal to physically stalk people, so why don’t we have laws to tightly restrict digital tracking via GPS data collected from people’s phones? Such tracking is happening on a massive scale and is being used to analyze not only one’s locations but also their associations by matching GPS tracks.
We have strong laws to protect physical privacy, yet there is minimal protection when it comes to digital privacy. The digital world deserves the same level of legal protection as the physical world.
The writer is a PG student from the Department of Politics & Governance, Central University of Kashmir
By Zubair Rashid
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