This article is written by Swapneel Mahesh Sejpal, from Gujarat National Law University.

Introduction

“I accept and agree to the terms of use” and “This site wants to access your cookies” are the most ubiquitously found things on the internet (after those irritating YouTube ads of course). But have you ever wondered what these things mean and what happens to your private data when you click on “I accept” without a second thought just so that you can see cute dresses on Amazon or post your sun kissed vacation selfies on Facebook? This piece attempts to bring to the fore ethical, legal and social issues connected to the massive scheme of data collection that funds the social media giants and highlights how humans have been converted from living entities with real lives into a data product sold in the market to the highest bidder. To understand it better, we need to gain a deeper insight into the concept of privacy and look at the major milestones that have revolutionised how technology intermingled with our personal lives and changed it forever.

Introduction to the idea of privacy

The traditional concept of privacy has its origins in ancient times. As man began to evolve from a primitive hunter gatherer to a more civilized agriculturist, he started differentiating between private and public spaces. Public places were meant for communal use while his private space was his own bubble of comfort. It was a place where he could freely be himself and not have to worry about the judging gaze that the society casts upon the individual. This concept gained prominence in almost all civilized communities across the globe and privacy became an unwritten but a core underlying principle of societal relations. This status quo remained unchanged till the latter half of the nineteenth century. It was with the introduction of new photographic and printing techniques that were widely used by the press to encroach upon the personal lives of celebrities that the need for a more comprehensive and modern right to privacy was now urgently felt.

The beginning of modern concept of privacy

In the landmark essay on right to privacy, Warren and Brandeis espoused the principle of  “Right to be left alone”. They stated that The intensity and complexity of life, attendant upon advancing civilization, had rendered necessary some retreat from the world, and man, under the refining influence of culture, had become more sensitive to publicity, so that solitude and privacy had become essential to the individual; but modern enterprise and invention had, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.  Instantaneous photographs and newspaper enterprise had encroached upon the sacred precincts of private and domestic life, and numerous mechanical devices had threatened to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” This was especially true considering that it was the time when the United States government had started tapping the rapidly expanding telephone lines to monitor the conversations of known criminals. This essay was the pioneering document that sought to recognize privacy as a civil non-contractual right of the utmost importance. The authors of this historic essay justified the need to have a right to privacy by terming it as an extension of several rights which were clearly recognized in common law. They compared the right to control over intellectual property to privacy by stating that as the creator of anything had the discretion over its publication and propagation, similarly, the thoughts and actions of an individual within the four walls of his house were product of his own and thus the individual should have total control over the dissemination of the same. This was quite understandable considering that the case on hand was that of the press invading the private lives of the rich and famous. But it was this landmark piece of work that laid the ground for establishing the right to privacy as an inherent and inalienable right that provided a certain basic protections to everyone against blatant intrusions into their personal lives.

This thought process was the guiding light for the major part of the 20th century until a ground-breaking technology came into the picture in the early 1970s and forever changed the world by making it possible to connect two people sitting thousands of kilometres from each other instantaneously. This technology was called the interconnected network or the internet.

Internet and the concept of online privacy

The internet as a technology has its root as a military tool for communication between different secure locations. But it has made far more impact in the civilian side of the spectrum. It has grown as a community platform where users upload information for everyone to see and benefit from and in turn they are able to access the information posted by others to benefit from it. This may sound like a utopian system of give and take meant to benefit everyone but it has instead raised a whole new set of unprecedented problems of its own. The internet, by its very nature is meant to be an open place where there are very basic restrictions on freedoms. This technology pins its existence on various users uploading a variety of content for others to consume. This method of operation causes problems because with minimal restrictions come maximum violations of privacy. The community and society at large is no stranger to the perils of non-consensual pictures and materials being uploaded to various websites, cyber bullying and shaming, leaked chats and videos and other equally disturbing things which are transmitted across the globe at the speed of light and become available to billions of people for consumption disregarding the privacy of the victim who can now do nothing to control the damage caused. With more and more people coming online, the internet has become an essential part of our identity and is now so important that most of the companies check a person online before hiring them (this happens even after they have met a person face to face and have conducted an interview). With this trend of an online and offline life comes a problem of dual identities where one tends to have different behaviour in two entirely different worlds. It is the offline personalities that drive the ever curious gossip groups that are always searching for a scoop into the lives of other people and turn it into juicy fodder for those willing to consume it. This threat is not just limited to the rich and famous, it is also equally problematic for common people whose personal lives become a soap opera for the masses. It is as if the very concept of privacy has eroded with the advent of the internet era. Nothing is private and every action, reaction and decision of yours is available to millions of people around the world to judge, comment and ridicule. It is as if we are back to square one in terms of social interactions with the internet era being similar to the time when we were hunter gatherers with no sense of privacy and it seems as if the efforts of almost four millennia have been reduced to waste.

Snowden and the surveillance state

Humans have always been sceptical of their actions and movement being tracked by the government in order to control them. The very idea of a ruling class controlling the thoughts and actions of individuals is anathema to the concept of freedom, liberty and democracy. The sense of hatred towards surveillance states attempting to control every aspect of the lives of their citizens was captured by the famous author George Orwell in his book “1984”. The atrocities committed by the Nazis with the help of their mass surveillance instilled a deep sense of fear amongst the general populace about the powers of a surveillance state. And now in the age where everyone carries a smartphone in their pocket, it is much easier for the state to conduct mass surveillance on its citizens. Gone are the days when you had to wiretap phone lines and send special agents to tail people, now you can simply hack into their phones through the software backdoors and listen into their conversation and record their movements and actions using the inbuilt camera and GPS on their phones. When the NSA contractor Edward Snowden blew the whistle on the United States government conducting a massive data collection exercise on its own citizens as well as foreign nationals under the guise of security after the 9/11, it caused an uproar within the general public who were worried about the vast sums of data collected on them.

In the revelations Snowden made to the Guardian, he mentioned a US government software tool called PRISM that enabled the authorities to collect massive amounts from data from a variety of sources and combine those together and form an online psychological profile of an individual. This was troubling because he also claimed that a lot of countries have this ability to create profiles on individuals. This ability to get a sense of how an individual thinks and what he believes in can easily be used by oppressive regimes to stifle opposition and remain in power forever thus bringing shocking flashbacks from the Nazi era. This also meant that authoritarian countries like China and Russia could use these tools to enhance their suppression of ethnic minorities and other activists protesting against the regime thus leading to a massive human rights disaster. The entire world was shocked by these revelations and many countries decided to take a closer look at their own data collection programmes and change things for the better. It was as if we had experienced the nightmare that was unfair use of data and were moving towards a better future. But that was about to change within a very short time.

Cambridge Analytica and the commercialization of private data

Man is a social animal by nature. Our whole civilization is built upon our ability to live in a social structure and cooperate with each other. Socialization is the reason why language and communication were invented; it is why stories and poems are written. It is the ability to socialize and transfer knowledge that has made us the most advanced species on this planet. Earlier, we were only able to communicate with our immediate neighbours due to the lack of technology for sending messages across long distances. Then we invented the idea of postal services and began writing letters to each other. This technique although very useful was very slow and inefficient. Then came the telephones which made it possible to communicate with a limited number of people in a very fast manner. But we needed an instantaneous forum to socialize with people living halfway across the globe instantly. Thus, we gave birth to the idea of online social communities called social networks. These platforms enabled us to express ourselves in front of a global community and help us build social connections across the globe.

These network profiles of ours mirror our personalities and the sites we share them on are supposed to be bastions of free speech and expression available to all. But this utopian myth begins to evaporate really fast when you start considering that these so called bastions of freedom are a commercial enterprise for the companies who own them. They derive their revenues not from the free users but from the advertisers who pay to have their ads strewn across the sites. It is in this ever increasing quest for ad revenue that the social media giants provide a plethora of data to third party advertisers to help them fine tune their messages better. This leads to several issues because our private data is a constitutionally protected item and unregulated trade of it amounts to a gross violation of our basic rights. There is no oversight of the transactions and the usage of data. This gives the companies accessing our data unlimited power because unlike the government which is morally bound to work in the interest of its citizens and can be held accountable for its actions, these companies only work for profits and are not at all answerable to the public because a majority of the algorithms they use to protect the data are trade secrets and cannot be disclosed. This gives them the power to run alternative governments and decide the fate of millions of people without a shred of answerability and accountability.

These companies usually have no moral compass and run purely for the motive of achieving profit without giving any attention to the real life problems they cause. The most famous case of commercialization of data is that of the Facebook-Cambridge Analytica scandal. Barely four years after the shocking Snowden revelations, the case of Cambridge Analytica interfering with the 2016 Presidential Election of the USA made headlines around the globe. This obscure British military contractor used data it had harvested from Facebook and combined it with psychological profiling to create a profile of millions of Americans and the candidate they were most likely to vote for. The company then used a blitzkrieg of targeted advertising and fake news articles to try and change the entire outlook of an individual on the candidates and their campaigns. The company completely changed the mood of millions of Americans and led them to believe that they were voting for the right candidate. The effect of Cambridge Analytica’s actions was so profound that they actually managed to vote into power the most unpopular president in the history of the country. The company not only influenced the perceptions but also changed the outcome of an entire election. And how much did it cost? Well, a few hundred million dollars which is pocket change considering that the fate of an entire country and the global relations are at stake. This shows that how commercialization of data without any regulatory oversight creates a parallel system of governance and finance operating outside the realm of traditional laws but very well having a profound impact on the functioning of our day to day lives can wreak havoc if it wants to. The power to change the entire narrative on a topic deeply affects the public discourse which in turn has grave consequences for the freedom of speech and expression which are considered to be the cornerstones on which our modern democratic societies are based. 

Conclusion

In a world where our online and offline identities are so closely connected, even an iota of mischief to one can have grave consequences for the other. The social media giants act as self-proclaimed gatekeepers of the truth and seek to impose upon the world their own brand of society in which every action of every individual benefits them directly or indirectly. Their quest for profits can have disastrous consequences for our venerable ideas of freedom, liberty, fraternity, democracy, individualism, gender identity, ethnic identity etc. and maybe the whole idea of society. Our privacy is going to be even more threatened in the near future as digital appliances make their way into our homes, on our wrists and maybe someday even inside our bodies. This increasing unification of man with machine will lead to a humongous stream of data that will be stored and processed by increasingly powerful machines as defined by Moore’s Law (or maybe even outpace it) to create more and more complex algorithms to govern our lives. With the advances that technology has made and will make, maybe one day it will be able to peer into our minds and find out exactly what thoughts are. And if a concept like that does become true, privacy shall cease to exist completely or to quote Orwell- “For the first time he perceived that if you want to keep a secret, you must also keep it from yourself.”

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