Developing A Jurisprudence of Privacy in The Digital Era
Himanshu Dhandharia
Assistant Professor, University of Petroleum and Energy Studies, Dehradun, Uttrakhand
*Corresponding Author E-mail: himanshudhandharia@gmail.com
ABSTRACT:
A lot has been discussed about Privacy in the public domain. However, little is known about the jurisprudence of Privacy which often raises fundamental questions about the concept of Privacy. In the year 2018, the apex court in Justice K.S.Puttuswamy (retd.) vs. Union of India has tried to unfold the philosophical aspect behind the privacy and declared it a fundamental right. It requires a contemplation that why it took so long to declare it as a fundamental right in India whereas, in other nations, it has already been declared an integral part of individual autonomy. Through this paper, author seeks to trace the origin of the right to privacy and what is so special about privacy? This paper also attempts to examinethe dynamics of right to privacy with special reference to the current digital era.
KEYWORDS: Right to Privacy, Fundamental Rights, Data Protection, Information Technology.
INTRODUCTION:
Imagine if someone has the power to foresee the crime and a person could be arrested in the present solely on the basis of that foreknowledge. The idea seems outrageous, isn’t it? In the year 2002, Steven Spielberg directed a futuristic movie called Minority Report.1 The movie encompassed mutated humans (Precogs) who helpedthe specialized police department to arrest future criminals before the crime is committed. The movie showcased the level of surveillance culture in the society where biometrics and surveillance cameras were installed in every nook and corner of the city. Apart from the government, private entities also kept a sharp eye on the citizens for their business benefits like delivering targeted advertisements on the basis of their daily activities. It depicted that the future is not secure as it appears that by that time we would have shared all the sensitive details to the government and private agencies. Agencies after getting hold of sensitive information predict the future activities of the individuals, leaving almost iota of “individual autonomy”.
Individual autonomy is a cluster of moral rights. It has a close association with personal space, privacy, silence, concealment, security, control, and comfort which are other important aspects of human existence.2 Some philosophers think that human existence would be devoid of any significance if such rights are taken away. On the contrary, cynical views about privacy also exist. Philosophers who endorse this view, argue that there is nothing special about privacy and there is, in fact, no right as privacy at all. They are of the view that any interest which shall be protected as private can well be protected by other rights, namely, property right, bodily security, etc.3 Some say privacy rights are not adequately legally grounded.4 Feminist also criticize it by saying that the right to privacy safeguards those who oppress, dominate women and cover up abuse.5 The term privacy is used in all the branches of studies including but not limited to sociology, politics, law, etc. yet it lacks a uniform meaning or analysis attached to it.6 Therefore, it becomes crucial to understand what is so special about privacy and why it is a matter of deep concern to humans.
Aristotle gave a fine distinction between the public sphere of politics and political activity (the polis) and the private sphere of the family (the oikos).7 The public sphere of politics was a domain of the government where it enjoyed full autonomy. However, self-regulation was applicable in the private sphere which was thedomainof families. These two distinct spheres of life displayed that people used to have control over their own private domain. Besides this, privacy also played a crucial role in the economic sphere of individuals. During the Industrial Revolution, the concept of laissez-faire dominated the economic sphere of individuals.8 Workers at that time demanded the right “to be let alone” from the state so that they could utilize their potentialities to the fullest with minimum interference from the State.9 Later, Locke, also in his analysis of property gave the distinction between public and private. He argued a person in the state of nature could enjoy gifts of nature as it is a common heritage. However, if one through his own efforts acquires or construct a property then it would be his private property.10 There is a clear distinction between public and private spheres but the interpretation of private is varying in all the three cases. In the first case, a sphere which is forbidden for the government to enter is termed as private, in the second, freedom from economic interference is private and finally limited admission, seclusion or isolation is private. Evidently, the definition of “private” varies from context to context.
Social contract philosophers i.e. Hobbes, Locke, and Rousseau advocated the theory of natural rights. The natural rights were sacrosanct in nature which included the right to privacy in its fold. Locke argued that the laws made by the government for its subject were subordinate function, while the principal function was to protect the life, liberty, and property of the individual.11 He also contended that the individual has only given up certain natural rights to the government and remaining natural rights like life, liberty, and property yet remain with the individuals.12 Locke also propounded the concept of “Tabula Rasa”.13 When an individual moves from the state of nature to the civil society, he carries certain inalienable rights along with him. In civil society “tabula rasa” means a clean slate where an individual is free to write his own destiny, free to describe his own characteristics.14 Thusone may strongly suggest that conjecture of free and self-authored soul was the essence of every social contract theorist.
John Stuart Mill while explaining the meaning of individual liberty and dignity, argued that individual actions can be divided into “self-regarding” and “other-regarding actions”.15 Self-regarding actions were those where an individual had full sovereignty over his actions, mind, and freedom.16 Other-regarding actions were left free for the state actions. The state legitimately can regulate the other-regarding actions but if it goes beyond the other-regarding actions and enters into the self-regarding actions then it destroys the individual liberty.17 Therefore, the state could interfere and regulate the other-regarding actions which concern others. While attaching the ultimate importance to the concept of individual liberty and dignity, he concluded that the right to privacy rationally comes to the individual.18
The concept of protection of liberty and property is as old as common law. However, nature and extent of such protections are required to be defined from time to. Public and private sphere has emerged as an ever-changing concept where social, political and economic changes are occurring with new demands and changing needs of the society. Simultaneously, these changes ask for recognition of new rights. Thus, the law always grows to meet the demands of new human spheres. Initially, the remedy available against physical interference with life and protection was only given in cases of the trespass of property.19 The concept of “right to life” was limited in its sphere to protect the person from restraint and violence only. On the other hand, an individual could secure his land and cattle under the protection of the right to property. Later, with the spiritual growth of humans which included feelings and intellect, new rights were also acknowledged.20 Now, the right to life is extended to mean and includethe right to enjoy life, the right to be let alone, the right to liberty, so on and so forth.
In the year 1890, Warren and Brandeis formulated a legal theory which focused on the ‘right to privacy’.21 They prudently identified the ‘right to privacy’from the point of view of the American jurisprudence.22 They argued that ‘right to life’ which is a fundamental right includes ‘right to be let alone’in its fold and ‘right to privacy’ is the end product of the entire arrangement. They thoughtfully separated the concept of the ‘right to privacy’ from the ‘right to liberty’ and ‘right to property’ and contended that right to liberty safeguards a wide array of civil protections than privacy. They separated right to privacy from right to property which included every form of possession (tangible and intangible) for spiritual interests. Hence, they invented the new concept which protected unprotected legal right i.e. “Informational Privacy” meaning control over the information about oneself.
After the work of Warren and Brandeis, public and courts started to magnify the concept of privacy because of which confusion and certain inconsistencies arose regarding the right to privacy. In order to develop a more streamlined idea about privacy law, William Prosser analyzed the concept thoroughly and introduced four interest in privacy.23
1. Intrusion upon a person’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about an individual.
3. Publicity placing one in a false light in the public eye.
4. Appropriation of one’s likeness for the advantage of another.
He argued that Warren and Brandeis were more concerned about the second interestpertaining to disclosure of embarrassing private facts about the individuals, as newspaperization was a new concept at that point of time and to create a market,newspaper companies used to disclose private information (gossips) of rich and famous to the masses.24 Prosser also raised three questions in relation to privacy, firstly, whether appearance in public per se implied forfeiture of privacy,secondly, whether facts part of a “public record” could still be considered private, and thirdly, whether a significant lapse of time could affect the privacy of revelations.25 The fundamental difference between the concept of Warren and Brandeis and Prosser was that Prosser has given the account of what courts have protected since the publication of their concept and Warren and Brandeis analyzed what should be protected under the garb of privacy law.
Abraham L. Newmangave a contemporary account of privacy. He argued that law regarding privacy protection is well acknowledged by the courts and the states.26 Despite the universal acceptance of informational privacy, the United States (US) has adopted a restricted system for privacy protection. The US still rely on self-regulatory guidelines within industry and government.27 It is evident that the US is still following the laissez-faire approach for protecting informational privacy. Contrary to this, the European Union (EU) has adopted a more stringent approach to protect informational privacy from corporate abuse. EU has new GDPR by virtue of which there is a complete ban on the transfer of information outside the EU unless the transferee assures that they have adequate data protection laws. There is a stark difference between the EU and the US approach. EU has theorized the issue of informational privacy in respect of data protection and the US alternatively has characterized informational privacy in terms of the right to privacy.28 The word “data protection” is more useful in drawing a relationship of privacy with technology as it clarifies the real object of protection and what technical modes could be adopted to safeguard the data. Therefore, the EU has transformed the informational privacy into data protection laws.
Constitutional privacy means freedom to shape one’s own destiny according to one’s own reasons and logic. In the realm of the constitution, the individual gets autonomy where he has the freedom to decide his personal and intimate matters without any interference.29 Indian Constitution also provides autonomy to the individual to make a personal choice and decide his own personal and intimate matters. Recently, the Supreme Court has decriminalized homosexuality.30 Through this landmark judgment, the apex court has given a personal sphere to the LGBT community.31 However, Constitution did not explicitly protectthe right to privacy until the Supreme Court interpreted the same in the light of Article 19 (1)(a) and Article 21, Constitution of India and held that the right to privacy is a fundamental right with certain restrictions.32 In contrast to this, Informational Privacy means exercising control over the dissemination of information about the concerned individual.33 Moreover, the definition of privacy can be either descriptive or normative. Constitutional privacy can be descriptive as it elaborates the situations or conditions where the individual has complete autonomy. On the other hand, normative privacy would be informational privacy as it is concerned with controlled used of information.34 Informational privacy in the normative term refers to moral rights which are not absolute and involves the individual to have direct or indirect control over access to information about oneself or situations in which others could acquire information about oneself, and technology that can be used to generate, process or disseminate information about oneself.35 In India has constitutional privacy but unfortunately lacks adequate laws to protect the informational privacy of the citizens against the corporates.
Information Technology (IT) has raised alarming issues regarding privacy and there are basically two reactions to this. The first reaction comes from persons involved in IT and research and development. They are of the view that there is no privacy in the digital era and it is difficult to protect it. They also advocate that people should now get used to it and get over the euphoria of privacy. The second reaction is that privacy is of extreme importance to mankind and they must make every attempt to protect it. The above two reactions can very well be traced with the debate between reductionists and coherentists.
The reductionists argue that claims of privacy are accompanied by claims with regards to other values and things that are significant from a moral point of view. According to this view, the importance of privacy is reducible to other concerned values or sources of value.36 This view has been defended with the mention of property rights, security, autonomy, intimacy or friendship, democracy, liberty, dignity, or utility and economic value. Reductionistis of the view that the significance of privacy should be supported and clarified in terms of those other values and sources of value.37 Contrary to reductionists view, coherentistshold that privacy is valuable and its value and significance cannot be derived from other considerations.38 Once such example of coherent view may involve the privacy and the personal sphere of life as a human right. More recently a new privacy account has been suggested in respect of ever emerging information technology which acknowledges that there is a cluster of related moral claims which fundamentally forms the basis of privacyhowever, itensures that there is no single essential core of privacy concerns.39 A recent final addition to the body of privacy accounts is epistemic accounts, where the notion of privacy is analyzed primarily in terms of knowledge or other epistemic states. According to this, having privacy would mean that others don't have the knowledge of certain private propositions whereas lacking privacy would mean that others have a fair knowledge of the private proposition.40 An important aspect of this epistemic account is that it is seen as a relation with three argument places: a subject (S), having certain degree of privacy, a set of propositions (P) that subject wants to keep private (also called as personal propositions) and a set of individuals (I) with respect to whom S wants to keep the personal propositions private.41
Another significant distinction that can be traced is the one between the European Union (EU) and an Americanapproach. Wherein, the first theorizes the issues of informational privacy in terms of ‘data protection’, the second does so in terms of ‘privacy’.42 It seems that while discussing the relationship of privacy matters with technology, the notion of data protection is most helpful, since it points to a clear picture of what is the objective behind such protection and by which technical means such data can be protected. At the same time, it answers the questionof why the data ought to be protected? Informational privacy is thus recast in terms of the protection of personal data.43
Personal data or information, for example, date of birth, whereabouts, religion, sexual inclination, IP address of PC or metadata and so on, which is often linked to individuals carry a significance to every individual. In contrast to this personal data can be considered sensitive and even more valuable or important for other reasons, such as secret recipes, financial data, or other military or security intelligence. Abuse of sensitive data can have serious consequences on the individual's fundamental rights than abuse of other, "ordinary" personal data. Additionally, abuse of sensitive data might be irreversible having long haul ramifications for the person notwithstanding his social condition. Data that is utilized to secure other data/information, for example, passwords, codes, patterns, and so forth likewise adds to privacy, nonetheless, their protection is just instrumental to the protection of other information along these lines such data/information is not a matter of consideration.
An important distinction that has been made in philosophical semantics is that between the referential and the attributive utilization of descriptive labels of people. From a legal perspective personal data is characterized as data that can be connected with a natural person. There are two ways in which this connection can be made; a referential mode and a non-referential mode. The law is fundamentally worried about the 'referential use' of descriptions, the kind of use that includes acquaintance relationship of the speaker with the object of his insight. If the legal definition of personal data is interpreted referentially, a great part of the data about people would be unprotected; that is the handling of this data would not be compelled on good grounds related to privacy or personal sphere of life.
It is true that technology plays a crucial role in storage, gathering, retrieval, and dissemination of information. Its main ethical impact relates to accessibility or inaccessibility accompanied by the manipulation of information. Technology has the ability of widespread as well as simultaneous access to information.44 Protection of personal data and direct or indirect control over access to those data by others finds the following moral justifications:45
· Prevention of harm: Access to one's passwords, characteristics, and whereabouts without any restrictions may cause severe harm to the data subject.
· Informational inequality: Personal data especially the one shared online becomes a business commodity and is often misused by corporates for their business benefits. It is often realized that individuals are not able to negotiate contracts about the use of their data nor do they have the means to check whether an opposite party to contract comply with the terms of the contract.
· Informational injustice and discrimination: Personal information provided in one sphere or context or for one purpose may change its meaning when used in another sphere or context which may lead to discrimination as well as disadvantages for the individual.
· Encroachment on moral autonomy: Lack of privacy expose individuals to outside forces that can influence the choices of these individuals who are often left with no control over their choices.
Now, technology has dominated every sphere of human existence. Current, technological advancements have the capability of dominating the thinking pattern of the human brain through complex algorithms. If the mind could be influenced through external processes, then the concept of “autonomy” requires a rigorous brainstorming, to safeguard its possible breach. We have judged the technology against existing moral norms but failed to ascertain the power of technology to change moral norms46. People are so overwhelmed with the technology that they hardly consider privacy as a matter of right. Today, technology has changed the perspective of individuals regarding privacy. Social network websites ask individuals to share more and more information about themselves. Sharing various activities on these websites have become a new popular moral norm.
Most of the internet services are free. However, service providers only ask for a grant of complete access to the device for providing dedicated personalized service to the user. That device can be either a computer or mobile phone which contains all the information about the individual. The business model of these companies works on the information that users provide to them. Companies after analyzing the information and tracking the online behavior, make a detailed profile of users which is used for sending the targeted advertisements. Therefore, in the garb of providing personalized services, companies have made personal information or data a business commodity.
In these circumstances, one can conclude that technology per se has not altered the norm of privacy. Rather, it is the human who with his greed to make more profit has abused the technology in such a way that there is a dire need of privacy protection laws. It is the business model of these companies which should be regulated instead of technology. Technological advancements cannot be restricted or controlled. Therefore, it is not always advisable to presume the conflict between individual privacy and information technology. Furthermore, apart from laws, individual privacy can also be secured through Information Technology. Hence, conflicts between privacy and technology must be considered with the whole new approach.
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Received on 17.05.2019 Modified on 24.05.2019
Accepted on 30.05.2019 © A&V Publications All right reserved
Int. J. Rev. and Res. Social Sci. 2019; 7(2):353-358.
DOI: 10.5958/2454-2687.2019.00026.1