Piercing the Privacy Veil: A Renewed Threat
by Devashish Bharuka*
Cite as : (2003) 1 SCC (Jour) 23
The article The Right to Privacy in the Age of Information and Communication by Ms Madhavi Divan1 seeks to express the judicial understanding of the right to privacy in India and abroad. It is attempted to give a conceptual backup to the proposal of stringent measures and a legal mechanism to be adopted to cocoon the privacy right which has received so little attention in India. It is of utmost importance that, before delving into the question as to what rights are being infringed, a preliminary inquiry into the necessity of such probing be made and why the violation of right to privacy is being considered today with increased anxiety. Is it that we were not concerned about our right to privacy before the information technology age? Or is it that such rights were not being violated before at all? Or is it that there has been no such previous multidimensional phenomena which could have violated our right to privacy to such an extent as the present Net age is doing?
Privacy at stake
Since the days of the Industrial Revolution, we have been witnessing various inventions coming up making our lives easier. Many electronic devices help us in various ways. This becomes clear if one examines the developments that took place in the communication sector. The technological revolutions in this sector have made it possible for the people to communicate among themselves transcending boundaries. There are no impediments in communications. There were even marriages held across the telegraphic lines with the priest on the one side and the couple on the other side of the line. But, amidst these developments and new modes of communications, we were already losing our own private world. As we communicated through the telegraphic lines, history tells us that there were instances of "hacking". Miscreants actually intercepted in between to "hear" what is being spoken about. We were thus already beginning to lose our privacy.
In cases of telephones, somebody found out that he can tap the telephone lines and listen to others talking. And then more people resorted to it. Some used it for their personal pleasure, some for commercial gain and we find the Government using it on the pretext of surveillance. In all these instances, right to privacy was the victim.
The Internet at its infancy stage was a small bunch of computers hooked to each other for military purposes. Again, as we saw during the telegraphic days, the connected computers increased, more computers joined hands to form networks, more networks came together to form what we know as the Internet or cyberspace. The commercial world came in to use it first only for communication and later for doing commerce itself. Now it is possible to play frauds over the Net like spamming, hacking, cyber pornography etc. Through these processes, the violator would easily find out details of a person through his e-mail account, read others' e-mails, enter into company's intranetwork and even manage to change data in the government files stored in the computers. Moreover, his e-mail account was being stuffed with unwanted mail affecting his right to privacy by encroaching on his choice to use his time the way he wanted.
We do realize that as the technology improved to provide better communication facilities, there was a graver attack on the privacy rights. But why should that happen? This happened so because, more than anything else, there was an underlying single common element emerging from all these developments and inventions: availability of more INFORMATION.
Information and control
The tremendous success enjoyed by the Internet has been of late a matter of wonderment. Theories too many, wide and varied, attempt to describe the philosophy behind the success and the psychology of the netizens2 One of the more prominent ones has been propounded by James R. Beniger3 He views the Information Technology Revolution as the need for controlling a crisis which began due to the Industrial Revolution. As the Industrial Revolution reached its advanced stage, more capital was put in, more labour brought on the field, production increased, more units and an ever-increasing amount of work being done to an extent that things began to go out of control. Resolution of the crisis demanded new means of communication to control an economy shifting from local segmented markets to higher levels of organization4
So, right from the mid-nineteenth century, there was a rush to hunt for mechanisms to bring the crisis under control by effective communication of information. With telegraph, telephones, and then the Internet, people could bring the crisis, to a certain extent, under control due to the availability of information. At the Government level, it was found more advisable to have computer records of past criminals for quick retrieval. Educational institutions maintained student records comprising every information of a student. Public libraries had personal information records of its members. Health institutions and hospitals started maintaining detailed medical records of its patients. As and when the technology improved, the availability of information in terms of quantity and quality (reliability) improved. Better information led to increased control.
However, somewhere in the process of "controlling" through the use of technology, we lost sight of the fact that increased control generates increased constraints on an individual. In due course, there was a change in the attitude as to how the information being made available can be used. More than the outsiders, it was the institutions like the Government, hospitals, schools etc. which had created the information system, actually become a threat to right to privacy due to possession of well-processed data. The Information Technology Revolution generated to control the crisis of the Industrial Revolution took a full turn and the same control with the assistance of the improved data-retrieval systems was used to violate privacy rights.
Control and "unfreedom"
There is an inverse proportional relationship between control and freedom. Greater the control, lesser the freedom since control leads to restraint on what an individual can do freely. On the same platter, we can conclude that there is a direct relationship between control and unfreedom5 Greater the control, greater the unfreedom of a person to do something he could have done had there been no control. One of the simplest examples is an agreement: a self-imposed control which makes the parties from doing or abstaining from doing something which otherwise they would have been free to do or not to do. In contradistinction to the above self-generated unfreedom, there are controls which are imposed on us by external factors like a statutory rule, which makes us unfree from doing certain acts which if we are free to do, would do.
Bringing home the point, because there has been an increase in the control by way of use of information technology and reliable information being available so easily, there is an increased threat to the privacy rights. One hundred and fifty years ago, when the telegraph came about, it could not have made available information of what is going on in someone's home so easily to the whole world as it is possible today. It has become more difficult to safeguard one's privacy rights and the additional control (which actually was inducted to control the Industrial Revolution crisis) has now found way into the private lives of persons making them lose their right to privacy.
Of course, there is another viewpoint available that there has been no change at all because the information existed all the time and just because now it is accessible doesn't make any difference. But, the moot point is not whether the information existed at allit didbut the thrust is that it was not as readily available in such a meaningful, understandable and processed form before. This is what has led to a renewed threat to these rights.
"Privacy at stake" revisited
In view of the above discussion, if we again attempt to analyse the changes in the past, we realize how big the threat is. Today, any information relating to a family's medical records, a person's driving records, a child's delinquency information, tax details, property matters, family information, one's personal preferences, tastes etc. are all vulnerable to storage, meaningful processing and widespread distribution within self-interested circles, of course, without any consent. The hospitals can sell their patients' health records to pharmaceutical companies which would then target6 such patients for their medicines. The health institutions can give information of HIV-positive patients for display on the Internet. A 25-year-past child abuse incident of a presently well-respected individual who has led a reformed life, if made available to the public through the government records, makes that individual unacceptable in society.
The use of computers is on the increase in the government bodies in India. Any government employee can make use of such information without anyone's knowledge. Companies create huge databases full of private information. In many cases, there is no protection on the dissemination of personal information. A corporate company can read e-mails received by its employees on its corporate e-mail account. Though the underlying policy is to keep track of the kind of information being exchanged by the employee during such communications, it does in the process deprive the employee of his privacy. In fact, a very common example would be using a mobile phone. With the technology improving, it is not very difficult to pinpoint a person's physical location through his mobile phone. This is but an example of "control" by using the technology which makes you "unfree" from moving undetected so long as you are using your mobile phone. Privacy, in such situations, dies an unnatural death.
We find not much of statutory protection in India presently. To understand the magnitude of the problem we are/will be facing as we increase our dependence on technology and as the information is more easily available, we can glance through a few federal privacy rights protection laws available in USA:
(1) The Electronic Communications Privacy Act protects against unauthorized access, interception or disclosure of private electronic communication by the Government, individuals and third parties.
(2) The Right to Financial Privacy Act protects financial records of individuals.
(3) The Family Educational Rights and Privacy Rights Act protects student records.
(4) The Video Privacy Act protects videotape rental records.
(5) The Telephone Consumer Protection Act regulates telemarketing practices.
(6) The Driver's Privacy Protection Act restricts release of motor vehicle records.
(7) The Cable Communications Privacy Act protects cable television subscribers' information.
(8) The Telecommunications Act safeguards customer information held by telecommunication carriers.
(9) Provision of the Internet Revenue Code mandates privacy of taxpayers' records.
This intermingling of crisis, information, control and unfreedom is what has threatened privacy rights in the recent past more than anything else. We need to take some concrete legislative action before we lose control of our overdoings of bringing a crisis under control.
- (2002) 4 SCC (Jour) 14
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- A terminology used to denote persons who use Internetnet + citizens = netizens.
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- The Control Revolution: Technological and Economic Origins of the Information Society.
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- Ibid., p. 11.
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- "Unfreedom" is an unusual word in English as compared to "freedom" and "liberty". However, unfreitheit is a current word in German. The word "unfreedom" has been used by Felix E. Oppenheim in his book Dimensions of Freedom: An Analysis where he attempts to explain the meaning of "unfreedom".
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- It could be through mails, emails, telephones or even personal meetings.
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