Co-contributors: Arnab Sengupta, Souvik Dutta, Lawyers, High Court, Calcutta
The questions of privacy rights and growing, expanding technology are not new. Even prior to the advent of the present pandemic, several key points were raised regarding the protection of private data and the ever increasing foray of technology into our daily lives. Such technological intrusion has come in many forms, chiefly, in the forms of social media and other applications across all platforms of operating systems, be it on the personal computer, or handheld mobile device, or tablet. Computer applications have been a key component of our lives ever since we were first armed with a smart device. In the 21st century, technology has been all pervading and with it, we have inherited some glaring concerns as to the implications of using such technology.
DEEPLY ENTRENCHED:
In recent times, the use of several social networking services have raised concerns of varying degrees, as to the invasion of private data and unauthorised sharing of such data with third parties. While some social sites such as Facebook encourage and require complete personal information e.g. full names, birthdates, location, relationship status, personal preferences, other social sites are less invasive and do not mandate the providing of personal information to such degrees. In other words, in today’s world, social networking is unavoidable and inevitable[1] unless one decides to undertake pains of being unable to fully utilise the internet, which very few possess the willingness to do.
Electronic governance can be more particularly described as application of information and communication technology for rendering governmental services, exchanging information, online transactions, incorporation of various individual systems between governments and citizens, governments and businesses, intra-departmental sections within governments, and back-office workings into the entire and complete governmental scaffold.
In India, e-governmental and e-governance services have seen a rise in the past few years under the auspices of the Ministry of Electronics and Information Technology, Government of India, as well as other respective state governments. A National e-Governance Plan has been outlined by the said ministry that incorporates social media frameworks, citizen engaging framework, etc[2]. An example of the extensiveness of e-governance in India can be given of the Aadhar programme[3], implemented in relation to residential and biometric information of all citizens of India.
BREWING TROUBLES:
Prior to pandemic, information technology has been widely used and the concerns that came with it have been troublesome. Social media has been criticised for its unauthorised sharing of private data of individual users[4]. A study, published as far back as 2006, has listed the hurdles faced by privacy advocates when it comes to e-governments[5].. Without a doubt, providing personal information to e-governmental sites is quite indispensable in order to benefit from its services, and this has raised some irksome privacy concerns with users[6].
So far as India is concerned, the above concerns have persisted especially given that India still lacks a concrete, efficient, and reliable data privacy law[7]. Currently, India’s most comprehensive provisions of the law can be accessed through the Information Technology Act, enacted in the year 2000. The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, provide an outline of India’s data protection policies. It has been reported that the chief problem lies in the fact that most websites store their data unencrypted on their servers, thereby making it quite easy for them, or governments, or hackers, to monitor that data[8]. There have been some developments in that area since then. Interestingly, the Supreme Court of India has declared the right to privacy a “fundamental right” keeping in conformity with the Fundamental Rights enshrined in the Indian Constitution[9]. It remains to be seen how far the implications of this historic judgement go when it comes to information technology.
PANDEMIC ERA AND TECHNOLOGY:
According to the United Nations, technology is key in combating the Novel Coronavirus pandemic and the UN had also released a new policy brief earlier in April, 2020, highlighting the role of technology in Coronavirus relief initiatives across the globe[10]. China, the epicenter of the present outbreak has been combating the virus by incorporating several technologically sound measures including positioning technologies, satellite monitoring, robotics, health sensors and applications, etc[11]. General consensus indicates that technology has been indispensable in our fight against Covid-19[12]. Such has been the case in India as well[13]. It has been reported by the World Economic Forum that the present crisis has ushered in a new era of technological innovation in India[14]. The Government of India has launched several programs and applications to combat Covid-19 the most prominent being “Aarogya Setu” (having a subscriber base of ten crores at present), and this application may be deemed mandatory for travelling across the country as per reports[15]. Socially, the entire world is at present reliant on social networking and video conferencing computer programs that have enabled a large populace to remain in contact with one another despite the physical social distancing rules and norms implemented by world governments[16].
Privacy International has raised unavoidable issues regarding this[17]. Contact tracing, a key component in tackling infection rates in communities, has raised questions as to the viability of such methods versus infringement of individual privacy[18]. Joseph Cannataci, the United Nations “special rapporteur” on the right to privacy, had warned against the eroding privacy rights of individuals in the midst of the current pandemic[19].
Such concerns were also raised in India, especially regarding the “Aarogya Setu” application[20]. However, officials from the Government of India have clarified that the concerns are unwarranted at best and every effort is being made to protect the personal data of users[21]. Yet, breaches in security of data are not new in the Indian context[22]. According to a recent report by Deccan Herald, unprotected servers are a worrisome aspect of data storage in India[23]. On the 11th of December, 2019, the Personal Data Protection Bill, 2019, was introduced in the Indian Parliament by its Minister of Electronics and Information Technology. The bill is pending as of date[24].
Very recently there had been alleged leaks of private data and video streams from the video conferencing application known as “Zoom” (owned by Zoom Video Communications). Amidst all the controversy, Zoom has reportedly updated its security features[25]. This is indicative of the fact that the most worrisome breaches in private data storage are becoming more frequent and strict laws and policies are required to tackle this problem. The situation is grave especially among users of social networking sites as most of the populace has maintained social contact through these sites due to physical lockdown being in force.
CONCLUSION:
A gleaming example of proper handling of data and protection of citizens’ privacy can be found today in the European Union. The Charter of Fundamental Rights of the European Union postulates that citizens of the Union have a right to protection of their personal data[26]. The General Data Protection Regulation (GDPR) is an essential step towards ensuring proper protection of private data and such laws have been quite successful in the European Union. This legislation had been incorporated in the EEA Agreement in 2018[27]. In addition to the above, further tangible and successful steps have been taken by the Union to protect its citizens’ private data[28]. Overall, it can be proposed that in today’s world, the European model has been successful and quite robust.
The conclusion to be drawn from all this is simple; better handling of users’ data is need of the hour; bet it social networking or e-government utilities. The Data Protection Bill pending in the Indian Parliament would have to be of exemplary quality and efficient.
[1] See a study published by University of Wollongong, Australia, available at “https://pdfs.semanticscholar.org/0cfa/7be2f83d648b86797aa5edd9fc078ad214e0.pdf?_ga=2.169375523.363422140.1589432425-693423378.1589432425” – Accessed on 14.05.2020, 10:34 hours. See also “https://www.exchange4media.com/digital-news/social-media-is-unavoidable-todayjames-wardincanus-42227.html” – Accessed on 14.05.2020, 10:36 hours.
[2] “https://meity.gov.in/divisions/national-e-governance-plan” – Accessed on 14.05.2020, 10:58 hours.
[3] “https://uidai.gov.in/about-uidai/unique-identification-authority-of-india/about.html” – Accessed on 14.05.2020, 11:02 hours.
[4] “https://www.forbes.com/sites/kalevleetaru/2018/12/15/what-does-it-mean-for-social-media-platforms-to-sell-our-data/#306d86472d6c” – Accessed on 14.05.2020, 11:22 hours. See also “https://www.bbc.com/news/technology-46618582” – Accessed on 14.05.2020, 11:30 hours.
[5] See “Belanger, F. and Hiller, J.S. (2006), “A framework for e‐government: privacy implications”, Business Process Management Journal, Vol. 12 No. 1, pp. 48-60.”
[6] Al-Jamal, Maryam & Abu-Shanab, Emad. (2015). Privacy Policy of E-Government Websites and the Effect on Users’ Privacy. 10.15849/icit.2015.0066.
[7] See “http://elplaw.in/wp-content/uploads/2018/08/Data-Protection-26-Privacy-Issues-in-India.pdf” – Accessed on 14.05.2020, 11:48 hours.
[8] “https://www.forbesindia.com/article/checkin/indias-internet-privacy-woes/35971/1” – Accessed on 14.05.2020, 12:06 hours.
[9] “Justice K.S. Puttuswamy (Retd.) v. Union of India”, (2017) 10 SCC 1, see “https://indiankanoon.org/doc/127517806/” – Accessed on 14.05.2020, 12:14 hours.
[10] “https://www.un.org/development/desa/en/news/policy/digital-technologies-critical-in-facing-covid-19-pandemic.html” – Accessed on 14.05.2020, 12:26 hours.
[11] “https://www.geospatialworld.net/article/the-sino-approach-use-of-technology-to-combat-covid-19/” – Accessed on 14.05.2020, 12:33 hours.
[12] “https://www.who.int/news-room/detail/03-04-2020-digital-technology-for-covid-19-response” – Accessed on 14.05.2020, 12:45 hours. See also “https://www2.deloitte.com/global/en/pages/about-deloitte/articles/covid-19/understanding-covid-19-s-impact-on-the-technology-sector-.html” – Accessed on 14.05.2020, 12:46 hours.
[13] “https://www.expresscomputer.in/news/technology-crucial-in-combating-covid-19-nivruti-rai-intel-india-head/55575/” – Accessed on 14.05.2020, 12:49 hours.
[14] “https://www.weforum.org/agenda/2020/05/coronavirus-covid19-innovation-technology-india/” – Accessed on 14.05.2020, 12:55 hours.
[15] “https://www.hindustantimes.com/tech/aarogya-setu-india-s-covid-19-tracking-app-now-has-10-crore-users/story-at2phHaAtAIb5uPFDwvVII.html” – Accessed on 14.05.2020, 13:12 hours.
[16] “https://www.hec.edu/en/knowledge/instants/what-role-social-media-during-covid-19-crisis-0” – Accessed on 14.05.2020, 13:15 hours. See also “https://theconversation.com/covid19-social-media-both-a-blessing-and-a-curse-during-coronavirus-pandemic-133596” – Accessed on 14.05.2020, 13:30 hours.
[17] “https://privacyinternational.org/examples/tracking-global-response-covid-19” – Accessed on 14.05.2020, 13:32 hours.
[18] “https://telecom.economictimes.indiatimes.com/news/covid-19-contact-tracing-technology-and-privacy-concerns/75119433” – Accessed on 14.05.2020, 13:34 hours.
[19] “https://www.independent.co.uk/news/world/coronavirus-lockdown-surveillance-tracking-dictatorship-authoritarian-united-nations-privacy-a9438561.html?utm_source=reddit.com” – Accessed on 14.05.2020, 15:20 hours.
[20] “https://economictimes.indiatimes.com/tech/software/legal-experts-point-out-liability-concerns-with-the-aarogya-setu-app/articleshow/75561944.cms” – Accessed on 14.05.2020, 15:40 hours.
[21] “https://timesofindia.indiatimes.com/india/aarogya-setu-safe-not-used-for-surveillance-assures-government/articleshow/75685880.cms” – Accessed on 14.05.2020, 15:45 hours.
[22] “https://economictimes.indiatimes.com/industry/tech/8-biggest-data-leaks-of-2019-that-hit-indian-users-hard/what-causes-data-breach/slideshow/72839190.cms” – Accessed on 14.05.2020, 15:49 hours.
[23] “https://www.deccanherald.com/business/business-news/unprotected-servers-behind-big-data-breaches-report-793168.html” – Accessed on 14.05.2020, 15:51 hours.
[24] “https://www.prsindia.org/billtrack/personal-data-protection-bill-2019” – Accessed on 14.05.2020, 16:01 hours.
[25] “https://www.dw.com/en/zoom-rolls-out-new-security-measures-amid-privacy-concerns/a-53156470” – Accessed on 14.05.2020, 15:13 hours.
[26] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). See more at “https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT” – Accessed on 14.05.2020, 16:11 hours.
[27] “https://www.efta.int/About-EFTA/news/Incorporation-General-Data-Protection-Regulation-GDPR-EEA-Agreement-and-continued-application-Directive-9546EC-508856” – Accessed on 14.05.2020, 16:18 hours.
[28] “https://ec.europa.eu/info/law/law-topic/data-protection/data-protection-eu_en” – Accessed on 14.05.2020, 16:21 hours.
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