This article is written by Yashraj Verma & Apurva Surve.
Technology and privacy are two entwined thoughts that must be mutually examined and confronted. Technology is a social practice that epitomizes the limit of social orders to transform themselves by making the likelihood to create and control not just physical objects, yet also besides images, social structures, and social relations. In turn, privacy portrays an imperative and complex part of these social relations.
The 20th century has brought to reality the possibility of a worldwide town, where advanced innovation has interconnected and enmeshed the world economies, cultures and populations. India is no exception, with over 400 million internet users as of 2018, making it the second-largest internet population on the planet. While more prominent availability by means of the internet guarantees enormous scope progress, it likewise leaves our computerized social orders open to new weaknesses. Cybercrimes know no borders and evolve at a pace at par with emerging technologies.
The NCRB’s data states that the total of 44,546 cases of cyber crimes was registered in 2019 which is way more than the tally of 2018 where 28,248 cybercrime cases were reported. Cybercrime is rising at an alarming rate in India as can be witnessed with the spike in cyber crimes cases during this lockdown. A spike of 350% can be seen in the phishing websites with various other cyber crimes against women.
Informational privacy has become a furiously challenged element of security in recent times because of the compromises between surrendering such protection from one perspective and getting a few advantages on the other. How social orders handle information, be it in the domain of market conduct or State functionalities, lies at the core of this discussion.
Modernization, industrialization, and appearance of innovation there have been advancement in the economy yet addition in a hike in the number of crime percentages and fraudulent activities. This paradigm shift has brought a lot of ethical and juridical problems such as infringement of the right to privacy. Nowadays in this techno-tech world, all transactions are done via means of the internet. Personal data is been shared online which has risen the level of individuals been trapped in the snare of noxious activities. With innovation in coding, any individual can without much of a stretch hack into accounts to recover individual, essential information and archives.
Nowadays, confidential scattered data can be easily retrieved by any person sitting at one place. Since incipient days privacy has always been a tenacious issue, where we have no specific justice delivering mechanism for it in India. The duty to respect privacy is prima facie duty of state which seems to be deviating since technological advancements. There is a connection between freedom, human dignity, and privacy.
The conundrum of privacy
The issue of privacy can be traced in numerous cases. The privacy of an individual can be asserted to be his basic human right which he/she can claim against the state through the discourse of Fundamental Rights guaranteed under part III of the Supreme law of the land. The issue of privacy related to the body, cyberspace, identity, etc has existed from the beginning when the technological revolution had sowed its seed. But this issue got the media coverage and people got to know about right to privacy only after 2017 Judgement.
Justice Dr D.Y Chandrachud in his landmark judgment on K.S Puttuswamy v Union Of India, popularly known as the Aadhaar case, very well have addressed the challenges to privacy which is dealt in Article 21 of the Indian Constitution and also the constitutional interpretation of liberty of an individual in the context of social order. In the Aadhaar project, the government gathered numbers and demographic biometric data which was sensitive data to let its subject profit offices which individuals thought could be abused effectively with most recent innovation. In this milestone judgment, Quorum of nine appointed judges of the Supreme Court pronounced right to privacy as a major right under part III of the constitution. The Right to privacy of various groups can be encroached by the use of technology.
The Attorney General for India encouraged that the presence of a principle of the right to privacy is in question taking into account two decisions: the first – M P Sharma v Satis Chandra, District Magistrate, Delhi was delivered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh was delivered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained perceptions that the Indian Constitution doesn’t explicitly protect the right to privacy. These were some of the precedents where the issue of privacy came into question.
Privacy concern of an individual is of significant importance in today’s digitally sound time. The benefits of digital technology in our lives are many; however, while enjoying these benefits the amount of information disseminated has serious implications on privacy. While we deem technology in and itself as neutral the repercussions caused are significant of high gravity. The right to privacy in the digital age has per se been aggressively threatened by data automation which has lead to infringement the rights of customers.
The latest scandal that involved Facebook users and Cambridge Analytical researchers mishandling of data of over 40 million users. The dubious data gathering tactic included the use of Facebook Graphs API (application program interference that made data interconnectivity and data delivery a perfect epitome to infringement of the rights in the business world. Due to progression, the world has become a small place. One-click away customers can purchase all merchandise and enterprises online by the means of e-commerce. Buyers need to give all their bank card numbers, their data which can be misused by many sellers or sites that will be a threat to consumer’s privacy. This has created the void between the merchants and purchasers relation.
While data protection law has the potential to cut back on speculative data collection by companies, data privacy in companies is not well placed to protect individuals vis-a-vis automated technologies and privacy. Privacy Right of employers are infringed due to technology, employees face myriad issues related to privacy. This is because no longer employee privacy is related to employers monitoring and work performance, counting sales or, looking over employee’s shoulders. Instead, employers can monitor their employees through electronic means including emails and computers. Emails give companies a great deal of technological advancement. Information Technology is an important tool when misused or kept open to employers can create a problem of the privacy of employees. The Electronic Communication Privacy Act in the USA governs the privacy of emails. Employers argue that they need to monitor everything to enhance job performance, Prevent theft, fraud, and other malicious illegal activities, but then this becomes an invasion of employee right to privacy and is repugnant by employees.
Overview of available policies & legislations
Excessive data collection has a chilling effect on society narrowing individual right to freedom of speech, Freedom of expression because of the perceived threat. Privacy ‘sine qua non’(a thing that is absolutely necessary), if infringed can be detrimental to democracy limiting civil engagement. Protective legal frameworks have been a standard reaction to the interception of private interchanges by the state; however, the idea of the reaction differs across jurisdictions. Mostly, such reactions involve some type of judicial involvement in the block attempt of private communications by law enforcement authorities. India does not have any express legislation governing data protection.
However, relevant laws dealing with data protection are the Information Technology Act. IT act 2000 provides various laws and punishments to prevent misuse of data and protect individuals and curb cybercrimes such as breach of confidentiality and privacy. Various organizations have also been set up to protect the rights of individuals such as the EU (European Council) which adopted a directive on 25th July 1995 for the protection of individual personal data and free moment of data. The directive sought to prevent misuse and abuse of personal data laying down comprehensive rules to protect data. The Directive requires the company to comply with minimum data protection and if the companies fail to meet this prescribed modus operandi according to the mentioned stringent laws, they have to face sanctions.
European Union has its own General Data Protection Regulation (GDPR) regulation. GDPR is a piece of guideline expected to improve information insurances inside the European Union (EU). The makers of the guideline need to give residents more prominent authority over their information and make it simpler to control information taking care of by making guidelines reliable over the union’s 28 member states.
As there is a vast advancement in the technology with the widespread use of the Internet for various things, a new threat has emerged against the States which cannot be fought by armed forces. The growing prominence of the right to privacy in the digital age would not have occurred if there was a presence of robust and expert civil constituency. This is an era of technology where computers have become an indispensable part of our lives where all data shared can never stay anonymous from humble beginnings to entire businesses being set up online we have come a far way. Our dependence over technology has risen over the years and will continue to rise with ever-changing development even when technology is surged to achieve great heights yet our country does not have any specifically dedicated law governing the noxious online data privacy.
No facile legalistic approaches have been taken yet to curb cybercrimes and protect the fundamental right of privacy in the cyberspace. So to curb such threats Tallinn Manual was introduced with two versions namely (Tallinn manual 1.0, 2013) & (Tallinn Manual 2.0, 017) respectively. This Manual is international legislation to govern cyberspace and related privacy issues. So, we can clearly depict from the above-mentioned facts that privacy of an individual in this digital era is an issue of prime importance and negligence for the same can bring devastating repercussions both in an individual capacity as well as for the Nation as a whole in general. Accordingly, India can also come with stringent laws on data privacy and adhere to the international guidelines for the same. Setting up a law mechanism specifically for the protection of rights and cybercrimes is a need of the hour.
It is the state’s duty to protect of rights of its subjects if such a mechanism is set up nothing can stop our nation from developing using advanced technology where curbing crimes and granting rights will become easy. Furthermore, in this digital AI era, the government can think of different programming which will empower the proficiency in the field of advanced reconnaissance and will upgrade the working of the legislature with a superior result and a comprehensive methodology which the current government needs. The government should collaborate with foreign technological giants to regulate the digital data and segregate the unwanted details by running the cybersecurity software on a different platform and thus govern the same without infringing any person’s privacy.
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