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Privacy is not a present day notion, if we see the history in which it matured and grown this far it is by getting knocked down every way possible. It has its own destitution from not being mentioned to being one of the most controversial, delusional and unsettled fundamental right in India. From household to constituent assembly nobody talked about it in past, but world has changed now. People just not talk about it rather they demand it. Before in year 1954 Supreme Court begin to face the questions regarding the privacy in MP Sharma vs Satish Chandra1case but till now it is a never ending notion that might last a long way. Privacy never got the attention it needed and was ignored. By the time domain of privacy has expanded to the extent that Now it became a question of at most importance, it is question of people, who has entered a new era of technology, who won’t accept privacy as simply a question mark, they won’t give away their privacy just for the larger interest of the state, We need a convincing solution which feeds the need of privacy of people as well as interest of the state.
On 24th august 2017, in the landmark case of Puttuswamy v. union of India2 , a 9 judge bench of the supreme court of India grants privacy as a fundamental right making it as the most major judgment in the timeline of privacy. Supreme Court declared that right to privacy will come under part III of the Constitution and this right will be stated in the fundamental right to life and liberty under Article 21. If we see the background of this judgment we see how big an achievement it was for people of India. This judgment was stated as the effect of the aadhaar case when it was argued on the fact that the constitution of India does not include privacy as a fundamental right of people. It was argued based on two crucial cases first being M.P. Sharma vs. Union of India3, by 8 judge bench and the second one being Kharak Singh vs. State of Uttar Pradesh4, decided by 6 judge bench. M P Sharma was handled with right against self incrimination whereas Kharak Singh case was on whether intrusion into a person’s home is a breach of liberty, but at that situation there wasn’t any regarding right to privacy in the Indian constitution. The landmark judgment of Supreme Court in the case of Puttuswamy v. union of India5 has put a deep impact and made a big milestone by making it the most important judgment which added and after a long span of time connected the history of privacy and evolved and arised as a Fundamental right which was long awaited.
Necessity for the privacy in the society
Privacy matters a lot when we talk about an individual who want to maintain his or her reputation in a certain way, in that scenario privacy place a very major role. It is more about respecting each other’s privacy as well as their private space so that people can grow up and deal with their own private matters without any interference. Privacy make people strong independent a give them some hold on their personal like and give them a space to grow and think about themselves without getting judged by others. Privacy gives them a chance of redemption, a sense of understanding, a space to think and this help people to think positively and protect them from guilt feelings, revenge, vengeance etc.
An individual always like to control the data related to himself or herself as to what extent they want the world to know about it. The most important and strong benefit of privacy is that it stops the government to put its nose anywhere and everywhere.
Post Right to privacy as Fundamental right
If we all observe the present status of right to privacy we can very rightly say that at present right to privacy has more importance than before maybe because of the ongoing development in the technology or can be because of the power of information which can be misused very easily and also on a very bigger scale, if control is taken by the Wrong people. It can be as strong as a weapon that can shake and uplift the whole political system of the country and can get its citizen on a very higher level of risk. This is what makes privacy so important and crucial to be protected from both private and public players who are engaged in the social media intermediaries as well as the government. Both if given exclusive powers can misuse it. We have to understand the power of information and understand that privacy is as important as transparency and nothing should impact their interplay it should be balanced and should exist with each other that is the only way both the powers can be used effectively without harming
anyone and by this we can keep a balance and a check on authorities as well as people who can misuse privacy if given absolutely.
How Technology can be Threat to privacy:
The Technological advanced era that we are living in has both positive and negative effects to us. It has given both ethical and juridical problems which are new and different than the old ones. There are some challenges that we are facing in this era that are the biggest threat to right to privacy,
Call tapping is hearing of a phone call between two or more people without them getting to know and this phone tapping will amount to the violation of the fundamental right , Article 19(2) that is right to freedom of speech and expression.
In recent times GPS( Global Positioning System) tracking is the widely used method to track vehicles which is a positive side, but. This method also has negative side where this technology provides much information after observing and examining persons activities which is a violation of his right to privacy.
If a question is asked like Is there any other way for government to trace messages other than breaking end to end encryption , then the answer is YES, The government has numerous alternatives for getting information to prove offences which was committed online, they can get access to other type of encrypted data such as metadata, and any other digital trails if available. The government already has accessibility for getting the encrypted data. The new IT rules just introduces some rules which will make this acquiring of data easy compared to the older method as it shortens the process.
Whatsapp v Central Government
This case has been considered as an important case to manifest the fate of the right to privacy in the present time. In the centre of this case lies the right to privacy that’s why this case can be called as the most important test of the application of right to privacy as provided by the Indian Constitution.
The new Information Technology rules Rule 4(2) imposed on the social media platform with more than 5 million users an obligation to ensure traceability of the originator of the information. Whatsapp challenges the central government on “Information Technology (Intermediary Guidelines and Digital Media Ethic Code) Rules 2021” which were informed on 25th February, 2021. New IT rules have bought new acquiescence for social media platforms and companies to implement the system of traceability and this should be effective by 26th may, 2021.
What the new Information Technology (Intermediary Guidelines and Digital Media Ethic Code) Rules 2021 has to say:
The new IT rule focuses on the concept of traceability. Traceability mentioned here means the origin of a particular message on a private messaging service.
There are other certain important rules which has to be followed by the popular messaging services in India, the rules like Setting up of grievance redressal mechanism and also taking down of illegal and explicit content within a certain time frame.
The Grievance redressal mechanism should be divided into three tiers, where one of it is held and controlled by the government and the other two by the particular messaging service.
Rule 4(2) of the new Information Technology(Intermediary Guidelines and Digital Media Ethic Code) Rules 2021 puts an obligation on social media intermediaries with more than 50 lakh users in India to enable traceability in their system to enable all the information about the originator and trace them easily if required by government authorities or courts for certain offences.
It is very well specified that government authority won’t get an absolute authority in this matter, that will be only limited to certain kind of cases.
In the past lot of regulation on Information Technology has came into being which had made lot of changes in the power of government authorities to provide information to them for instances, “Section 69 of the Information Technology act 2000” had put limitations and give power to the central as well as state governments or the authorities to take “Information or monitoring or decryption” of information from any source “if satisfied that it is necessary or expedient to do”. “The Information Technology(Procedure and safeguards for Interception, monitoring and decryption of Information) Rules, 2009”was issued to regulate the such orders related to centre and state or other authorized officer’s power to access the information from social media intermediaries provided that such an information which can be acquired from other means which are available to authorities and the order to get such information will given only on some specified grounds which includes country’s security matters and many other public matters which can even related to any cognizable offences or even for “investigation of any offence”.
The new IT rule also focuses on the concept of traceability. Traceability mentioned here means the origin of a particular message on a private messaging service.
Also read: National education policy 2020
Unintended consequence by new IT rules
The agencies enforced by law can demand the technological Companies to trace the first originator of a particular message. The messaging services like whatsapp have end to end encryption, and won’t be storing any information related to a particular message and guarantee the privacy to its users, but according to the new IT rules, the information must be stored by the messaging services to find the originator of the message and also would result in breaking of end – end encryption which is given by those services.
The new rules also state that all the explicit content should be taken down by the messaging companies within a certain time frame, but this action goes against the a landmark judgment in the case of Shreya singhal6 where the court has stated that “companies would only be expected to remove content when directed by a court order or a government agency to do so”
These rules forced whatsapp to question central government and approach the Delhi high court. Whatsapp in their defense argued on the point that taking away end to end encryption makes people vulnerable which will lead to chaos and retaliation by people and activists will be against the public and private players for violation of their fundamental rights.
End to end encryption as provided till now by whatsapp is a system of communication where only the users have access to their messages and information communicated by them and no involvement of third party. It lowers the risk of breach of Privacy and make it difficult to get hacked and by this they can effectively insure the Fundamental right to privacy of the people. If this system of communication is tweaked then it will result in the rise of cyber hacking cases.
Whatsapp states in its official website why and how traceability won’t work , “Tracing messages would be ineffective and highly susceptible to abuse. If you had downloaded an image and also had shared it or captured a screenshot and resent it or sent an article on WhatsApp that someone sent you on mail, you would be considered to be the author of that content. At another point, someone might copy and paste the same piece of content and send it along to others in an entirely different circumstance. Think of this like a tree with many branches — looking at just one branch doesn’t tell you how many other branches there”
Whatsapp also stated what the Experts have commented on the new IT rules and the concept of traceability,
Mozilla: “ The open internet is fundamentally based on the principles of interoperability and common standards, which may begin to fragment under these rules. Some provisions, such as those enabling traceability of encrypted content and automated filtering, are fundamentally incompatible with end-to-end encryption and will weaken protections that millions of users have come to rely on in their daily lives ”
Access Now: “ The mandates in the new [Indian IT] rules would result in encouraging internet platforms to over-censor content, require dangerous unproven AI-based content regulation tools, retain vast amounts of user data for handing over to the government, and undermine end-to-end encryption crucial for cyber security and individual privacy ”
The Government’s say regarding the whatsapp case
even in case of the most serious crime. This approach puts citizens and society at risk by severely eroding a company, the ministry of Electronics and IT gives importance on two important legal points relating to the traceability concept and of right to privacy, the release states that , there is no Fundamental right which is absolute including right to privacy and all the rights are subject to reasonable restrictions, and also is provided in the release that the traceability measure will be the last resort, the release also states that “ Any operations being run in India are subject to the law of the land. WhatsApp’s refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted ”7
The Governments release also contains a communique which was issued in the year 2019 by the government of various countries that includes New Zealand, U.S, Canada, Australia , U.K.
The Communique that was mentioned in the release by the ministry declares, “ We are concerned where companies deliberately design their systems in a way that precludes any form of access to contebility to identify and respond to the most harmful illegal content… Tech companies should include mechanism[s] in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can obtain access to data in a readable and usable format ”8
Lack of transparency in government actions
On the other hand government has put forward their arguments that by tracing the originator they can prevent a whole lot of illegal works. For instance, giving wrong information that led to chaos and mob lunching, sexual images of minors and women and cases like boys locker room can easily be stopped and the only solution to this is to trace the originator. But we have seen in many instances how government misused its powers there is no as such defined line between what are the powers of government to take away right to privacy of people and what are their limitations. As Supreme Court has declared that right to privacy comes with limitation but there is no specific limitation that has to be followed. So here the question arose weather we should give away our right to privacy for a greater interest of state where we have no idea if it is in good hands or not. Here we are facing the question about the privacy of the people close to 740 million internet users in India, whereas whatsapp has more than 400 million users alone, it is important to to understand their point of view but neither whatsapp nor the central government is concerned about their fundamental right.
Government has lot of time gone against the fundamental right of privacy of people. Indeed it is true that right to privacy is not an absolute type fundamental right and this has been time to time clarified by Supreme Court that there can be restrictions on this right and they are necessary because they include protection against wrongdoing. But when we see the Aarogya setu app it is considered to be imposed on people by government and it is another type of surveillance app which tracks the location of the person. In the amid of global pandemic this app was introduced by government of India and was imposed on companies like zomato, swiggy and many others to make it compulsory for their staff members to download the app and later it was made compulsory in malls and other public places. This app used to track the movement of its user through GPS and also stores the information and the data of its users. The question on the app started soon as there were no clear policies of the app and was complete silent on this matter, there was no check and balances on the app and it only mentioned that the data was encrypted. The question here arises that why this public app is made mandatory. Arguing that it was made under Disaster Management Act is not a sufficient answer as this app is against the fundamental right of privacy and it breached privacy in every view.
As we see the past instances and there policy to share information with Facebook we can say that whatsapp is more concerned about his own business rather than the right of people so we can not completely say that whatsapp is fighting for people’s rights, court has to give their decision keeping that in mind.
Scrutiny of the new IT rules
According to sources, The IT rules was introduced with the consultation of those who are of interest, but the draft of the same rules regarding the concept of traceability which was released in the year 2018 received opposition from various companies and stakeholders and also civil society organizations.
There are certain changes and additions made to the same draft which was submitted in 2018 and is announced as the ne IT rules but these rules before being notified to the public weren’t put on a period of consultation.
The government may have not have more care towards the consequences that might happen because of the new IT rules .
This traceability debate has been going on in India from a very long time, a recent case where the concept of traceability came up was in Antony Clement Rubin v Union of India10, this case was related to the petition of linking social medial users with their aadhar numbers.
Best of the both world:- Transparency as well as privacy
The need of the hour is to enact a kind of legislation which has flavors of both transparency as well as privacy. We need “a right oriented data protection legislation” so that it can stop misuse and exploitation of data or information and by this we can safeguard the privacy and stop the mass surveillance which government has been found doing time to time now it’s the time when state has to act more responsibly and should accept their duty to protect citizen’s personal information rather than take that information for granted.
It’s the time when government has to complete its true promise and give to the people their right to privacy with reasonable restriction. Government should just not think about their own benefit or the state interest rather they should establish a mixture of both right as well as restriction on privacy.
Right to privacy certainly is a question of this era and it’s the most delusional topic which still lack much information on it and it is not a very certain and fixed right in terms of its implementation and the powers and limitations of people, government and private players are not clearly stated in the constitution. It is true that this right is not absolute right and it is provided to people with restrictions. Because of the past cases on the matter related to right to privacy and the judgments which evolved it and because of them it stands this powerful as a fundamental right . Indian judiciary has trialed many cases and on basis of those cases they came to a consensus that right to privacy is as important a right as right to life to us. It is a very important essential or we can say part of right to life and personal liberty(Article 21) these past judgements have a very long lasting and deep impact which can never be underestimated they are the one which helped in realization of the importance of right to privacy to the courts.
Author: YASHAS.J, KLE SOCIETY’S LAW COLLEGE
Editor: Kanishka Vaish, Senior Editor, LexLife India