Privacy concerns during a pandemic-THE HINDU-29-04-2020
” Justice Khanna was not speaking about the crushing of freedom at the point of a bayonet. He was concerned, rather, about situations where the government used the excuse of a catastrophe to ignore the rule of law. Quoting Brandeis, he said, “experience should teach us, “to be most on our guard to protect liberty when the Government’s purposes are beneficent. Today we live in the midst of a grave public health crisis.
There is little doubt that the government is best placed to tackle the COVID-19 pandemic.
Data and public health:
The state’s most significant responses to the pandemic have been predicated on an invasive use of technology, that seeks to utilise people’s personal health data. While the measures deployed intuitively sound reasonable, the mediums used in implementing the programme overlook important concerns relating to the rights to human dignity and privacy. Indeed, many of the models are simply not permitted for use in India. Most concerning amongst the measures invoked is the use of contact-tracing applications that promise to provide users a deep insight into the movements of a COVID-19 carrier.
Although the efficacy of applications such as these have been questioned by early adopters, such as Singapore, the Union government has made AarogyaSetu, its contact-tracing application, its signal response to the pandemic. Thus far, details of the application’s technical architecture and its source code have not been made public. The programme also shares worrying parallels with the Aadhaar project in that its institution is not backed by legislation. Like Aadhaar it increasingly seems that the application will be used as an object of coercion.
There have already been reports of employees of both private and public institutions being compelled to download the application. Also, much like Aadhaar, AarogyaSetu is framed as a necessary technological invasion into personal privacy, in a bid to achieve a larger social purpose. But without a statutory framework, and in the absence of a data protection law, the application’s reach is boundless. One shudders to think how the huge tranches of personal data that it will collect will be deployed.
The importance of civil rights:
Union of India is renowned for its incantation, that each of us is guaranteed a fundamental right to privacy. But the Court also recognised that the Constitution is not the sole repository of this right, or indeed of the right to personal liberty. The Court additionally thought it important, as Justice S. Kaul wrote, that the majority opinions of Justice Khanna’s brethren be buried “ten fathom deep, with no chance of resurrection. To be sure, the right to privacy is not absolute.
In this case, not only are the government’s technological solutions unfounded in legislation, there is also little to suggest that they represent the least restrictive measures available. A pandemic cannot be a pretext to abnegate the Constitution.