Right to Privacy in a digital age?

Around six weeks ago, the Supreme Court of India ruled that the Right to Privacy is a Fundamental Right under the Constitution. While hearing the case, the Court had expressed its concerns on personal data collected from citizens to private players. By declaring that privacy is protected under the Constitution, a common man is now armed against unreasonable State intrusions and protected information privacy in a digital age.

In 2012, a report was submitted by an expert group which described global privacy practices and had proposed to establish National Privacy Principles. The report suggested that necessary legal provisions be made to make privacy safeguards technology neutral and these should be applicable to both government as well as private companies.

In 2016, I participated in Harvard MUN as a part of the student delegation from my school. My Committee discussed issues relating to mass surveillance in the digital age by governments and how it undermines the right to privacy. I have pulled an excerpt from my notes which appears below. Hope this provides some relevant thoughts to our present discussions.

International community is at the intersection of two phenomena. One one hand, the past decade has seen massive increase in electronic communications globally and on the other hand governments have increased their capabilities to plumb communications. As non-state actors can pose significant security threats, States want to surveil not only communications by foreign governments but also foreign private citizens. This poses a central dilemma for law and policy. International law has a critical role to play to resolve this dilemma. Adopting a number of procedural norms to regulate foreign surveillance would help states and their citizens to begin to balance privacy and security in observable ways. States should pursue basic norms that they can adopt at a cost that they can bear.

Privacy is a fundamental human right and it occupies a central position in democratic societies. Human rights also reinforce other rights such as freedom of expression, freedom of association as recognised by international human rights laws. Mass surveillance systematically interferes with the right to privacy and the international community has failed to develop agreed-upon concepts of when a State may infringe on that right to privacy so that the infringement is not arbitrary or unlawful. Mass surveillance might therefore be justified only when it is exercised under a legal framework and which makes mass surveillance necessary to achieve a legitimate objective and is proportionate to the objectives. The legal framework should be clear, precise, publicly accessible and non-discriminatory.

With the advent of the public internet, social media platforms and continued progress in technology the logistical challenge to conduct mass surveillance has decreased; the falling costs of storing and mining large amounts of data and the availability of personal content from the service providers have made mass surveillance by Governments possible at an unprecedented scale. If left unchecked, surveillance programs could be used by either the political elites or the intelligence agencies themselves to subvert the civil protections of the Constitution and to destroy the representative governments.

There are several advantages to mass surveillance. Some of them are a drastic reduction in crime, the disappearance of low-level corruption; reduction in police brutality; justice becomes unbiased; monitor activities of non-state actors that threaten national/public security; could be helpful in conventional disasters, global catastrophic risk, lethal pandemics in early stages. 

It is critical that a clear and explicit set of principles are laid out for carrying out mass surveillance regardless of the purpose of the surveillance – including enforcing the law, protecting national security gathering intelligence, or another State function. Such principles should apply to the surveillance conducted inside the domestic territories of a State or outside. These Principles should allow the State to uphold the right to privacy of an individual and its obligation to protect these rights from abuse by non-state actors such as business enterprises. States need to ensure that laws, policies, and practices related to mass surveillance adhere to international human rights laws of privacy and freedom of expression. The existence of a published law makes it politically more difficult for a government to resist principles drawn from that law.

Substantive norms derived from the interpretation of Article 17 of ICCPR are still in the early stages of development before a consensus emerges to apply it to foreign surveillance. As a result, the first kinds of international norms to emerge should be procedural rather than substantive. So, States should regulate the kinds of procedures employed for intelligence collection rather than substantive definitions of what areas of personal activity are entitled to privacy and situations under which States may interfere with that privacy. These procedural norms should be less discretionary and easier to assess for compliance and easier to state in simple language.

Some Principles of Mass surveillance are : Legal framework, Legitimate Aim, Necessity, Proportionality, Judicial Authority, Due Process, Transparency, Right to remedy, Public oversight. As more and more states adhere to these norms, international law will take shape eventually.

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