Privacy vs Security: Need to Strike a Thin Balance

by P. Arun

In August 2017, the Supreme Court delivered a momentous judgement on privacy. In Justice K.S. Puttaswamy (Retd.) vs Union of India, the nine-judge Constitutional Bench utilised its interpretative jurisdiction and unanimously declared that privacy is a constitutional right. After this high-voltage judgement enthusiastic responses started overflowing in several newspaper dailies and journals. It was widely hailed as a landmark judgement for being remarkable for “its clarity of vision and elegance†1 and stinging criticism to the preceding judgement on Section 377.2

However, the outcome of this judgement was also examined by the sceptics who held that privacy had not been defined by the Court in a “more precise way†. (“First Define ‘Privacy’†by Shailesh Gandhi in EPW, September 2, 2017) Because it failed to identify its contours, it would curtail the Right to Information and freedom to publish. A legal expert was sceptical about the nature of privacy adjudicated by the Court. She pointed out the clumsy exceptions given to vital state interests and surveillance state. (“Data privacy: Great idea, but there’s room for the State to step†by Chinmayi Arun in The Indian Express, August 25, 2017).3 Despite jubilation around this judgement from different corners, the sceptics have poignantly touched upon not merely problems but also its consequences for Indian democracy.

Definitional under-coherence had been the core of the concept of privacy. And it is regarded to be in a state of disarray and chaos (Daniel Solove/Julie Innes) due to its vagueness and ambiguity as to what it means.4 And it is a problematic concept because it is “so complex, so entangled in competing and contradictory dimensions†. (Robert Post) According to Ronald J. Krotoszynski, it is a polysemous concept which is highly protean in nature as it contains a multitude of concepts.5 Despite being a problematic concept, it does not lose its sheen and relevance in a democracy, because it is the harbinger for our liberties and freedoms. The author was right as he suggested: “The law needs to [be] definitive as possible.†But if we look into the judgement, it tried to define the significance of different normative values in privacy such as—individual personality, auto-nomy, dignity, creativity, imagination, self-creation, independence, freedom of thought, reputation, heterogeneity and many more. Also in case of privacy instead of regarding the Court’s failure to define privacy, we can see that it opened the doors to envision privacy in different contexts and circumstances. Helen Nissenbaum proposes a context-based approach to privacy. The context-relative informational norms define and sustain essential activities and key relationships and interests, protect people and groups against harm, and balance the distribution of power. Here the information gathering and dissemination must be appropriate to that context and obey the governing norms of distribution within it and its failure would be the violation of contextual integrity.6

The above-mentioned sceptics also untapped the dilemmas and contradictions such as right to information and right to privacy, right to publish vs right to privacy, national security vs privacy and social security vs privacy. These debates can be seen more intently as a tussle between and “political rights vs economic rights†and “communitarianism vs individualism†.

Right to Information, Right to Publish and Right to avail Resources

Firstly, the issue concerning corruption is a serious issue, along with the distribution of welfare resources to the poor. However, the author in a sweeping statement said: “Right to privacy ends where the RTI and the right to publish starts.†And he went on to suggest the need for Aadhaar to curb corruption and leakages in welfare schemes. The author seems to contradict: while on the one hand he suggests transparency and accountability, on the other hand, he proposes to deploy a non-transparent and unaccountable biometric system. Here the problem needs to be dealt with little caution and care, the right to privacy and right to information/publish/avail resources must get along with each other so that one cannot trump over the other. Even the Court held that,

“Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom.†(155 pg. 216)

“Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects.†(157 pg. 221)

Instead of placing them in a state of anta-gonism, where we subvert one over the other; we need to protect what the Constitution guarantees, that is, individual civil and political rights along with the aspirations for achieving socio-economic rights. Therefore, they need to be equally protected, because they are “comple-mentary and not mutually exclusive†. (155 pg. 217) Also, there is an instrumental value of political rights on socio-economic rights. The Court pointed out historically how the denial of civil and political rights for economic well-being has been utilised “to wreak the most egregious violations of human rights†. (154 pg. 215) Because the “conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want†. (155 pg. 217)

Surveillance, Security and Privacy

Secondly, proliferating terrorism is a serious concern. It has been 16 years since the 9/11 terrorist attacks in the US, and in a few more months, it would also be the same for the Parliament attack in India. As an aftermath of this, the counter-terrorism efforts led to the emergence of the surveillance state. The offshoot of such surveillance created an intense debate on ‘Security vs Liberty’, and till now this disso-nance is unsettled. The legal expert (Chinmayi Arun) prudently highlighted exceptions for national security, cyber-attacks and distribution of resource. The privacy, which was placed in the pinnacle of fundamental right, was suddenly displaced. The Court, on one hand, enunciated that

“Formulation of a regime for data protection is a complex exercise which needs to be undertaken by the State after a careful balancing of the requirements of privacy coupled with other values which the protection of data sub-serves together with the legitimate concerns of the State.†(179 pg. 253)

But, on the other hand, the Court cited a trade-off thesis of Richard Posner who contends that “if we do not allow the Constitution to bend, it may break†. He believes that there is a direct connection between liberty and security, a kind of automatic direct balance between them—a ‘fluid hydraulic balance’. It alters continually as wax and wane. Posner disdains civil libertarians and maintains that funda-mental rights of liberty and privacy are ‘mischievously’ blocking appropriate measures for national security. As the Court also cited his words that “privacy is the terrorist’s best friend†therefore, the “State does have a legitimate interest when it monitors the web to secure the nation against cyber-attacks and the activities of terrorists†(179 pg. 254).7 Along with them some other scholars who agree with the trade-off thesis are Adrian Vermeule and Eric Posner. And it was constantly reminded in the present regime that privacy is not an absolute right.

The trade-off thesis is nothing but a zero-sum trade-off. And Daniel Solove observes it as a false trade-off because the balance between privacy and security is rarely assessed properly. He argues that the real balance should be between “security measure with oversight†and “regulation and security measure at the sole discretion of executive officials†.8 However, Jeremy Waldron cautions about the consequen-tialism of trading off liberty for the sake of security. He argues that “we must be sure that the diminution of the liberty will in fact have the desired consequence†. Reducing liberty consequently increases the power of the state, which may be used to cause harm or further diminish liberty. Instead of trading off liberties for purely symbolic purposes and a conse-quential gain, there should be assessments about the effectiveness of such trade-offs.9 Once our former Vice-President Hamid Ansari raised a question: “Does our intelligence system provides adequate safeguard to privacy of communi-cations by making it unaccountable and non-transparent?†10 Though the judgement delivered is hailed as a landmark in protecting rights, the Court lost an opportunity to highlight the significance of accountability and transparency in intelligence and national security. And it is a major challenge for the democracies around the world along with India, to strike a thin balance between the often-corrosive surveillance measures with civil liberties.

Endnotes

1. Venkatesan, V. (2017, September 15), ‘A historic moment‘, Frontline. Retrieved from http://www.frontline.in/cover-story/a-historic-moment/article9834447.ece

2. Hegde, S. (2017, September 4), ‘And then there were nine’, The Hindu. Retrieved from http://www.thehindu.com/todays-paper/tp-opinion/and-then-there-were-nine/article19617096.ece Shah, A.P., and Bhandari, V. (2017, September 4), ‘Legalise sex by consent: Section 377 has become untenable in the light of Supreme Court’s historic privacy judgment’, TOI. Retrieved from https://blogs.timesofindia.indiatimes.com/toi-edit-page/legalise-sex-by-consent-section-377-has-become-untenable-in-the-light-of-supreme-courts-historic-privacy-judgment/

3. http://www.newindianexpress.com/opinions/2017/aug/25/data-privacy-great-idea-but-theres-room-for-the-state-to-step-in-1647907—1.html

4. Solove, D. (2008), Understanding Privacy. Cambridge, Massachusetts: Harvard University Press; Innes, J.C. (1996), Privacy, Intimacy, and Isolation, New York: Oxford University Press.

5. Krotoszynski, Jr., R.J. (2013), ‘The Polysemy of Privacy. Indiana Law Journal,88 (881).

6. Nissenbaum, H. (2010), Privacy in Context: Technology, Policy, and the Integrity of Social Life. California: Stanford Law Books.

7. Posner, R. (2006), Not a Suicide Pact: The Constitution in a Time of National Emergency, New York: Oxford University Press, pp. 31-41,143-145.

8. Solove, D. (2011), Nothing to Hide: The False Trade-off between Privacy and Security, Yale University Press, pp. 33-36.

9. Waldron, J. (2003), ‘Security and Liberty: The Image of Balance’, The Journal of Political Philosophy, 11(2).

10. “Intelligence for the World of Tomorrow†(Fourth R.N. Kao Memorial Lecture, January 19, 2010), accessed August 14, 2017, http://pib.nic.in/newsite/erelcontent.aspx?relid=57085.

The author is a Research Scholar in the Department of Political Science, University of Hyderabad. His primary areas of research interest are privacy and surveillance. He can be contacted at e-mail: arun.p[at]uohyd.ac.in