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(Anindita Deb is a fifth year student at University Law College, Gauhati University, Guwahati.) "In my considered opinion, right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human beings. In other words, it is born with the human being and extinguishes with human being.” - Justice Abhay Manohar Sapre in his separate judgement in the case of Justice K.S. Puttaswamy (Retd) v Union of India The grimness of the situation of a world stalked by a deadly virus can be estimated by the fact that dark clouds of death and uncertainty now loom over the race that has even managed to set foot in space. In the background of crumbling world order and a quest for the discovery of a cure, this article attempts to discuss the growing privacy concerns in the era of a pandemic.
Demystifying privacy challenges With the practice of social distancing becoming the new normalcy, digital platforms are the new heroes in the business. The government of India, leaving no stones unturned, has added several such digital platforms in its arsenal of weapons against the deadly coronavirus These apps have multifaceted functions from tracing infected patients to identifying COVID-19 hotspots. The Aarogya Setu App, for instance, uses GPS and Bluetooth facilities to keep a record of all the places the device has been at a 15-minute interval and of all other Aarogya Setu App users it detected nearby. The App also proactively informs users about the practices for restricting the spread of the virus. This undoubtedly eases the burden off the shoulders of the health care system and enables the detection of infected patients but the consequence of such unrestricted data gathering can be grave. Privacy concerns have been raised by experts. A French ethical hacker has also flagged security issues with the app. The seriousness of the situation is further accentuated when third parties or private entities participate in the process of data collection. Google has recently released ‘Community Mobility Reports’ which provides an insight into the movement pattern of its users during the pandemic. While the data remains anonymous, it does not mitigate the concern of data exploitation. Voicing a similar apprehension, an international digital rights group, the Electronic Frontier Foundation (EFF), raised privacy concerns about a Coronavirus screening website made by Verily concerning how the data collected by it will be used. Embarking on the digital route, the Kerala administration has also tied up with an IT startup called Sprinklr for COVID-19 management. Reportedly, the app has scarce experience in data collection and monitoring a pandemic and is now a treasure trove of crucial health data of many Keralites. Several other methods for containing the menace of the deadly Coronavirus are also being used. The Karnataka Health Department, the Rajasthan government and the Mohali Administration have revealed the details of the people in quarantine and the ones suspected of carrying the virus respectively. The information revealed is sufficient enough to have a pernicious impact on the privacy and mental health of these individuals, keeping in mind the societal stigma surrounding the ailment. Similarly in Delhi, posters starting with ‘COVID-19: Do not visit. Home under quarantine’ have been glued outside the houses of the suspects revealing their details. Noble intentions can never be used by the executive as a veil for concealing abdication of responsibilities of safeguarding the mental health and privacy of the citizenry. Such ill-judged actions have resulted in the creation of a situation where ‘naming and shaming’ is the norm; this is in a world that is already grappling with a deadly disease. The Test The Supreme Court’s verdict in Justice K.S.Puttaswamy (Retd) vs. Union Of India heralds a new age of data protection and privacy. The right to privacy was added to the ever-expansive body of laws entrenched in Article 21 of the constitution. The judgment evolves a three-fold test to test the reasonableness of a restriction imposed on privacy. For the restriction to be reasonable, it should be (i) legal, (ii) proportional to the object sought to be achieved by the law, and (iii) it should have a legitimate aim. In the middle of the coronavirus nightmare, concerns of privacy may seem to be a luxury of the privileged but any action taken in the divergence of the threefold test may serve the purpose of becoming a dangerous precedent and ushering in an age of arbitrary state actions. On first blush, it may seem that the issue of the legality of actions can be resolved by relying on The Disaster Management Act,2005 and The Epidemic Diseases Act, 1897 but on a closer look, it can be found that none of these enactments grant legitimacy to collect and disseminate information in the manner it has been done. The activity of publishing the details of individuals consists of the following steps-a) collection of information b) preparation of a list containing the information c) publishing the list. None of these activities have been mentioned or sanctioned under the Acts and are being carried on an ad-hoc basis. It may be argued that Section 6 of The Disaster Management Act, 2005 and Section 2(1) of The Epidemic Diseases Act,1897 impart a legal bedrock on which the aforementioned activities are being undertaken but these provisions do not provide a mechanism for data collection and dissemination. As such it would be no exaggeration to state that these executive actions have no legal validity. Reportedly, such action of collection and disseminating of information has birthed an increase in morbidity and mortality rates since many have shied away from visiting hospitals. Concerning the issue of proportionality of the restriction to the object sought, it is pertinent to note that Personal Data Protection Bill, 2019 in clause 12 enlists medical emergency as one of the grounds on which personal data can be processed without the consent of the person. The presence of this provision in the bill, however, does not grant an exemption to the executive with regards to purpose limitation, lawful processing, storage limitation, transparency, and accountability. Clauses 4,5,6 and 9 of the bill clearly highlight the principles of lawful processing, purpose limitation, limit on collection of personal data, limit on data retention respectively. The government may therefore, process data for the purpose of safeguarding the life and health of the public but the data has to be removed once the purpose has been fulfilled. The activities of the government fail to achieve validity when tested on the furnace of proportionality. Data collection and storage by the executive in a nation that is in a privacy law vacuum is nothing but an unbridled exercise of power with no safeguards to regulate the process. This also begs the question of ‘least restrictive measure’ The principle of ‘least restrictive measure’ requires a least intrusive but an equally effacious measure. In the presence of equally effacious and less restrictive measures like inspection visits, video calls, surprise visits, the collection and dissemination of personal information leading to a breach of privacy seems to contradict the requirement of ‘least restrictive measure’ . It appears to be an illustration of the phrase ‘using a sledgehammer to crack a nut.’ The activities of revealing the details of individuals based on mere conjecture, that refraining from doing so would result in the breach of either the quarantine restrictions or the restrictions imposed on a Covid-19 suspected patient, appears inordinate when juxtaposed with the ostracizing that the individual might have to experience as a result of such actions. The third test laid down by the Puttaswamy judgment is that of a legitimate aim. It can be assumed that in the face of an unprecedented event like that of the coronavirus pandemic, personal data collection in public interest is the need of the hour. However, public interest as a legitimate aim would still be nugatory in granting legitimacy to governmental actions on account of lack of legality and proportionality. Resolving the quandary It is pertinent to state that activities of data collection and dissemination are presently unfounded in law since the Data Protection Bill, 2019 is yet to become an Act. In order to give it a legitimate foundation, it is essential that all activities of data collection, processing, and dissemination are undertaken on the bedrock of due process incorporated in law. With the entry of private players in the digital platforms, strict surveillance and monitoring should be maintained on the behest of the government to prevent the exploitation of data. In the current circumstances, it may appear that revealing the names and details of COVID-19 suspected individuals or quarantined individuals may serve the purpose of deterrence but this assumption appears to be short-lived when the situation is viewed from the perspective of an individual who runs the risk of being ostracized by the society he lives in. The knee jerk reaction of such an individual would be to evade the process of reporting. The object of the state could be met by maintaining an anonymous graphic representation of patients, sticking posters of caution in the locality of quarantined or suspected COVID-19 individuals, frequent video calls, surprise checks, and inspection visits along with strict punitive measures for breach of laws. These measures will serve the object of the government without serving the names and details of individuals on a platter. Conclusion It will not be erroneous to state that the world is going through a dark time and the government has gone the extra mile by enforcing stringent lockdown and social distancing norms along with the creation of quarantine facilities to pave way for a brighter and healthier future. Inter arma silent leges is a latin phrase which roughly translates to – In times of war, the laws fall silent, but in the Indian context, the supreme law of the land should not fall silent even in times of a war against an invisible enemy A pandemic cannot be used to abnegate a right that is embedded in the very being of an individual. While a lot has been done by the judiciary for the safekeeping of privacy, it must be ensured that the principles of privacy do not remain merely in black and white but translate into a reality.
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