Privacy is synonymous to ‘the right to be let alone’, something that has been recognised by the UN as a human right. It entails a dual aspect—a concern regarding sensitive personal information and the extent to which that is shared with other parties. The modern understanding of privacy has been shaped by the technologies available, the Internet, literary sources like newspapers, and the present times we live in. The Internet and the advent of mass data collection-retention are reshaping the concept of privacy constantly. While the 2017 Supreme Court judgment heralded the right to privacy (including data protection and privacy) as an intrinsic part of the right to life and personal liberty [Article 21 of the Constitution], the government’s national project of making Aadhar mandatory for all citizens and the use of technological solutions to curb the pandemic has once again triggered a debate around ‘Privacy in India’. The escalated use of technology in personal, professional and public domains due to the ongoing COVID-19 pandemic embodies the present discourse around privacy concerns & follows the need to re-visit India’s privacy & data protection measures. 

The Indian state’s most significant responses to the pandemic have been premised on the protruding use of technology, that has been invoked at various levels – applications for location tracking, facial-recognition software systems for home quarantined individuals, real-time geotagging-enabled selfie-based hourly check-in(s) to applications, and geographic information system. While the technological interventions deployed arecritical for finding hot spots, rapid policy decision making, preventing social disruption and for aid institutions to help in dispensation of resources, the mediums used in implementing the programme can be seen as negative externalities - invading the so-called personal sphere of the citizenry, overlooking important long-term concerns relating to the rights to human dignity and privacy. Moreover, such interventions come with risks of systematic mass surveillance, which is a peril, especially since India lacks a comprehensive data protection regime, considering that the Personal Data Protection Bill is a pending legislative deliberation. To understand whether the appearance of COVID-19 has expanded the sphere of acceptable interference by the state, it becomes pertinent to analyse whether ‘privacy by design’ was a guiding factor and concern behind developing 
these manoeuvres or not.

Let’s take a look at the recent COV-TECH (technological measures to combat COVID) & other provisions adopted in India & how they have deprioritised privacy of citizens–

Aarogya Setu being mandatory for travellers of Delhi metro from September 2020, once again highlights the narrative around the ‘silence’ on the ambiguous privacy policy. The rational ignorance of the people towards the issue is premised on the notion that amidst the grave pandemic that we are living in, the government is best placed to tackle the situation, even if it involves extraordinary actions. Given this increased level of disclosure of health and personal data, privacy of a common man faces threat. The government’s technology solutions to fight COVID-19 do not meet minimum legal requirements, as established in the KS Puttaswamy vs Union of India case (2017). There is an onus on the state to find moral, ethical, judicious and reasonable policies and least restrictive measures to ensure that the right to privacy of citizens is not quarantined in the process. The privacy-data collection policy should be available to the public, mentioning comprehensive details on the type &purpose of information recorded. Safeguards like consent of the person(s), and safe deletion of the information 
if the purpose has been fulfilled should be adhered to strictly.

Due to the changed scenario, the liberal reflection on individual privacy needs a shift from the early liberal understanding of autonomy as calling for legal provisions by the state to the idea of autonomy as socially embedded. To overcome the privacy pitfalls, apart from strengthening the legal measures, the community must be made a stakeholder. Rather than seeing people only as consumers of government-made policy decisions, the urgency to protect privacy gives an opportunity for better and more democratic outcomes. Achieving this reality requires changes in culture and capacity at both sides of the table – governments to accept the inputs of outside voices in the policy making process, and a civil society willing to invest efforts to be a valuable contributor to those conversations.

These temporary COVID counter-measures can be the ‘new normal’ well after the crisis has passed, with smartphones having such apps pre-installed. Paying close attention to civil rights, thus, becomes critical.Technology, policy, administration and education must work together to carve out a separate zone of privacy and keep a proper balance between the competing interests of ‘individual’ and ‘society’ so that the COVID-19 pandemic does not turn into a data epidemic at a later stage.


- TANYA CHAUDHARY



REFERENCES:
Olga Hałub-Kowalczyk, Redefining the Right to Privacy in the Age of the COVID-19 Pandemic, Int’l J. Const. L. Blog, Apr. 2, 2020, at: http://www.iconnectblog.com/2020/04/redefining-the-right-to-privacy-in-the-age-of-the-covid-19-pandemic

The Hindu, Privacy concerns during a pandemic, April 29, 2020, at: https://www.thehindu.com/opinion/op-ed/privacy-concerns-during-a-pandemic/article31456602.ece

Rishi Wadhwa, covtech in India, April 23, 2020, at: https://iapp.org/news/a/covtech-in-india-privacy-

Roedl, Data Protection and Privacy in the times of COVID-19, May 8, 2020, at: 

Vasudha Luniya, Covid-19 and data protection and privacy, July 31, 2020, at: 

Van den Hoven, Jeroen, Martijn Blaauw, Wolter Pieters, and Martijn Warnier, Privacy and Information 

Sanya Kumar and Shrutanjaya Bhardwaj, The publication of COVID-19 quarantine lists violates the right to privacy, April 5, 2020, at: https://caravanmagazine.in/commentary/covid-19-pandemic-quarantine-lists-right-to-privacy

Joyeeta Chakravorty, Is Privacy being compromised in fight against COVID?, August 26, 2020, The Times of India