Privacy vs National Security

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.”

-Edward Snowden

The Supreme Court of India in the Justice K.S Puttaswamy case 2017(Aadhar case) held the right to privacy as a fundamental right, subject to certain reasonable restrictions. Since independence, as read in MP Sharma and Kharak Singh cases, Indian courts have been reluctant in recognising privacy as a fundamental right. The same type of reluctance can be deduced from the legislature in the online privacy spectrum. Presently there is no express legislation on privacy or data protection in India. The relevant law, which deals with data privacy in some way, is the IT Act, 2000, which is completely obsolete for the desired purpose. However, the executive has updated the IT Act with rules notified in 2009 and 2021 which in absence of any data privacy legislation seem to encroach the citizens right to privacy and free speech. Almost every argument in favor of the rules is supported by the rhetoric of National security.

In this essay, I’ll try to shed some light on why privacy matters.

Privacy has a broad scope for interpretation. For this essay we’ll define privacy as the control that one has over information about oneself. According to Aristotle there are two spheres of life distinct to each other, ‘Polis’ the political sphere and ‘Oikos’ the domestic or private sphere of life. The ‘oikos’ is the part of life individuals have control of, whereas ‘polis’ is the part where government authority comes in. This can also be understood by supposing that almost everything in nature is common to all i.e inherently public. But on the other hand, one possesses oneself, his own body hence private. Almost every culture in the world has valued privacy through concealment, seclusion or secret ceremonies etc. Hence, it is very important that governments respect this distinction between public and private.

It is not uncommon to get answers like “No! We don’t have a problem with the government snooping on our texts, they are doing it for our safety. We trust them.”. The problem with this view is that you really can’t trust your government, history has been a witness that when governments make guidelines for surveillance without respecting individual liberties, all hell breaks loose. For example,

Emergency in the Indira Gandhi era

It was proclaimed by the then Prime minister Indira Gandhi on 25th june 1975. The Emergency was a 21 month period which saw civil liberties being curbed, forced sterilizations, censored press and large political imprisonments. It is alleged that 140,000 people were imprisoned by citing preventive detention and 11 million were forcibly sterilized during this period. The period also saw the autocratically passed 42nd constitutional amendment, which in a single amendment changed the contents of the constitution. Even the judiciary- as evident from the ADM Jabalpur case- became the government’s tool to dissent suppression. One of the darkest moments of Indian democracy. The Indira Gandhi government cited ‘internal disturbances’ for the proclamation of the emergency, but in reality it was all just a facade to protect her Prime Ministerial position after her election victory was voided and she was banned from contesting any election for the next six years in the Raj Narain judgement of the Allahabad high court.

The ‘trust the government’ view could’ve possibly been a trustworthy one, if there wasn’t a lack of procedural safeguards in the IT Act. What’s to stop a power-guided government from overthrowing the public-private distinction? 

Another view is that the concept of privacy is valuable only for criminals as lawful civilians have ‘nothing to hide’. The proponents of this view, believe that privacy as a price paid for security is a rewarding tradeoff but they ignore the fact that when they trade their privacy for security to the government, they give the government sweeping powers over the control of information on their lives. Which makes the government even more dangerous than criminals. What if the government starts surveilling a particular section of society based on ethnicity, appearance or class and starts profiling them. There are even more dangers just like these. Should the security gains for the many be seen as viable against the liberty losses of a few?

Another view is that ‘What use is privacy if we aren’t even secure.’. It cannot be denied that some security is essential for living an enriched life. At the basic level security lets an individual live with dignity, ambition and have sovereignty over himself, his beliefs. That is why we choose an agent to protect this sovereignty and that agent is usually the government. We give the government authority to undermine our privacy for security. That, in itself, is a reason to worry.

George Orwell in his dystopian novel ‘1984’ perfectly described the worry of such use by the governments that would undermine not only our bodily sovereignty but also of the mind.

“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.”

-1984

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