New Normal: The Dilemma of Privacy?

Originally published on Medium, July 2020 | https://medium.com/@sahay0011/new-normal-the-dilemma-of-privacy-60deca3a62da

Photo by Matthew Henry on Unsplash

Contact tracing is an effective way to contain Covid-19 pandemic. However, it has revived the perennial debate between state control and privacy. The Chinese success in controlling the outbreak with aggressive surveillance recognises the command state but it came at a cost. The recent human rights successes are threatened as even democracies adopt surveillance. Privacy and liberty are quintessential for the creative and entrepreneurial citizenry. Therefore, it is paramount to handle pandemic innovatively and preserve the innate freedom and privacy of the individuals.

With evolution, humankind realised the importance of collective living. It provided comfort and a sense of belongingness. Eventually, across the globe, collective-living transformed into some form of control society. Family, tribe, kingdom and nation-state, it is a natural progression. Initially, it was driven purely out of co-living necessities but it evolved ensuring that control remains with a few. This is the genesis of hierarchy, and thereby control, within family, religion and state. History indicates that control is a natural paradigm. As is the struggle between privacy and control.

What is privacy? It is the foundation of personality without which one is nothing but a naked wild animal. It regulates our thoughts, emotions, relationships and provides for autonomy in decision making. The Constitution of India doesn’t define privacy but provides a very crucial provision in the form of Article 21 as the fundamental right.

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”(1)

Supreme Court judgement, 2017 Puttaswamy vs UoI(2), points out the inalienability of privacy from dignity, under the same umbrella of life and liberty recognised by the constitution. Privacy is also highlighted as the ultimate expression of an individual’s sanctity, and a constitutional value providing for choice and self-determination(3).

On the other hand, social contract theorists argue that subjects give up their liberty, including privacy, in exchange for security and peace. In the absence of which, Hobbes argues that everyone would be for themselves(4). However, such a tyrannical regime may provide security but cannot guarantee, therefore surrender of privacy is akin to accepting its will. It is an Orwellian idea of a state which micromanages subjects and enforces its will. That is, the subjects do not have the innate freedom to comprehensively decide their own will.

However, as with most fundamental rights, it is not absolute but any interference must meet legality, legitimacy and proportionality(5). There may be reasonable restrictions on privacy in case of a threat to the security of group, community or nation. Therefore, any intervention in the contact tracing must respect individual privacy and constitutional morality. In legal terms, it must pass the proportionality test. Given the nature of the disease, our healthcare facilities would’ve overwhelmed beyond capacity without contact tracing and isolation. Thus, passing the basis of proportionality. However, such surveillance should be supported by a statute providing legitimacy and legality.

With forced isolation, complete lockdown, and mass surveillance, the only country which was prepared to contain the spread is China(6). The spread forced even the democracies to enforce lockdown and contact tracing. However, all these measures require collection and dissemination of data, which is the bedrock of industry 4.0 technologies like AI/ML. If private technologies were not enough, an empowered state with institutional surveillance and control pose a greater risk on individual privacy, freedom, and liberty.

Beyond the realm of state surveillance, we need to keep in mind the ethical challenges about privacy, accountability, bias and transparency of the new technologies(7). There are 2 approaches to contact tracing, centralised and decentralised. While, protocols can range from Geofencing, GPS, Bluetooth and QR Code among others. No protocol can ensure complete privacy but we can safeguard our data — its collection, storage and usage. A decentralised and localised approach can ensure that only relevant data is shared.

Data should be stored locally on the device and transmitted only when the user is identified as infected. Time-bound deletion of primary data. Data must be anonymised before secondary use. Access to data must be controlled by a codified protocol. Lastly, accountability in case of a breach. Further, the state must ensure transparency about the surveillance to establish a relationship of trust.

In the context of India, NIC has rolled out Aarogya Setu application. Besides, several states and municipal corporations have their contact tracing applications. This indicates a multi-level decentralised approach towards contact tracing. Other good points about the Aarogya Setu being the bug-bounty program and detailed privacy policy. However, data use is defined as “to be used by the Government of India only”(8), which may have wider interpretations. Moreover, the measures are not backed by a statute, leaving a big question on legitimacy, accountability and responsibility.

As per the MIT Technology Review, only 15 countries out of 44 are transparent about the use of corona tracing applications and 17 have provisions for data destruction. On the other hand, 25 are recording more data than required(9). The list mostly contains democratic countries but the trends show an authoritarian inclination. South Korea, a democracy, has successfully contained the excesses of the coronavirus with the learnings from MERS but questions remain about the digital surveillance(10). There is a greater need to balance freedom of movement and right to privacy with the measures to tackle the pandemic. It may be the need of the hour but privacy, liberty and transparency are the key virtues of the democracy. We should not let a crisis pull us back and we must establish a legitimate and proportionate data safety and privacy framework.

Similarly, it will have larger implications in the global order. If the democracies don’t keep their home safe, the other end of the crisis could see a shift towards authoritarianism(11). Today, we stand at a juncture where a crisis is being used to usurp power. Hungary’s rule by decree(12), China’s modern surveillance and repression of Uighurs(13), Putin solidifying control over Russia(14), these are only a few examples but sufficient to indicate why we need to address the state and its powers. Democracies have the onus to control the spread of disease without brutal authoritarianism and set a precedent.

References

1. Article 21, The Constitution of India. URL
2. [168–169], 2017 SC Judgement, Puttaswamy vs UoI. URL
3. [169], 2017 SC Judgement, Puttaswamy vs UoI. URL
4. Lloyd, Sharon A. and Sreedhar, Susanne, “Hobbes’s Moral and Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2019 Edition), Edward N. Zalta (ed.), URL
5. [264], 2017 SC Judgement, Puttaswamy vs UoI. URL
6. Zak Doffman, “This New Coronavirus Spy Drone Will Make Sure You Stay Home”, Forbes Magazine (March 2020), URL
7. Karen Hao, “Coronavirus is forcing a trade-off between privacy and public health”, MIT Technology Review (March 2020), URL
8. Privacy Policy, Aarogya Setu App, NIC, MietY — GoI, URL
9. Patrick Howell O’Neill, Tate Ryan-Mosley and Bobbie Johnson, “A flood of coronavirus apps are tracking us. Now it’s time to keep track of them”, MIT Technology Review URL
10. William Galo, “South Korea Balances Privacy, Public Health in Virus Fight”, Voice of America URL
11. Rachel Kleinfeld, “Do Authoritarian or Democratic Countries Handle Pandemics Better?”, Carnegie Endowment for International Peace, URL
12. Benjamin Noval, “Hungary Moves to End Rule by Decree, but Orban’s Powers May Stay”, New York Times, URL
13. Josh Rogin, “The coronavirus brings new and awful repression for Uighurs in China”, The Washington Post, URL
14. Michael Mainville, “Russian Voters Back Reforms Allowing Putin to Stay Until 2036”, The Moscow Times, URL