Adv.O.Jotsna, Associate, Alishahz Legal LLP –
What is privacy? The position of being in full control of oneself and all that one considers essential to private self-perseverance, under the assurance of non-interference from others. Privacy is an almost second hand presence in our lives, that it is always taken for granted. Somewhere in history, the blatant exploitation of the privacy of individuals, gave it the status of a ‘right’ that is inherently granted and fundamentally protected, subject to ‘reasonable restrictions’ as seen by the State. The reasonable in the ‘reasonable restrictions’ has been proven many times to be not so reasonable and arbitrary at points, under the guise of national sovereignty, national security, national integrity and at present for public welfare.
The onslaught of COVID-19 has thrown the entire world off balance, new rules are emerging, and it is very blatant that we are in unchartered waters. With a few minor hiccups, the human-kind is managing to fight against the global pandemic united and in solidarity. Owing to the need to trace a patient’s whereabouts on the days prior to testing positive and the necessity of communicating the possibility of contracting the Corona Virus to the people residing in and travelling to the concerned locations, many countries have turned to mobile applications to facilitate the same.
This puts the personal information of private citizens on the national radar, information which is also accessible to the public. One need not highlight the dangers of such apps. Given the seriousness of the issue at hand, where the right to privacy of private individuals could be violated by anyone, and where the personal information could be exploited, many countries have brough forth and set down strict norms and conditions while handling such information. Europe Union has released guidelines for the usage of contact tracing apps, and has also asked for the strict compliance of General Data Protection Regulation. But this is just one instance, nearly every country affected by the COVID outbreak, has developed and released their own versions of the contact tracing apps, some enforced voluntarily with minimal information collected, while others with mandatory provisions collecting a horde of sensitive and personal information. Austria and Singapore are examples of the former, whereas China and India of the latter.
Austria was one of the first among the European countries to develop a tracing app, named DP3T, which handled the information stored in a decentralised manner transparently, while only storing minimal information collected voluntarily. Singapore also developed a voluntary contact tracing app, the TraceTogether, wherein the locations where stored temporarily and in an encoded manned, which could only be decoded by the Health Ministry with the encryption key.
On the other end of the spectrum, China utilised the already launched Alipay Health Code app, requiring its mandatory installation. The app collected personal information, in addition to location details. Now, with COVID-19 under control, talks that the App is there to stay and outlast the pandemic, is stirring privacy fears.
The Arogya Setu app launched by India, attests that fears of privacy violation have not been laid to rest by the Supreme Court judgement in the Aadhaar case. Private information of citizens ranging from names, birth dates, biometric information, and GPS signals have been collected and stored through the App. In stark contrast to many other countries, no specific guidelines have been laid down. Already there has been divulging of information garnered through the app, and its dispersion through social media applications, mainly through WhatsApp. This has very rightly triggered fear and panic among the users of the app, due to which a less than satisfactory Government announcement was released, stating that unique IDs (ring any bells?) are used which ensures the anonymity of the app users. The Government also stated that third party access was not possible, and that the information of users will be saved only in case of a positive COVID testing. No fears have been quelled with this announcement. India being populated by a largely conservative and traditional society, has not taken kindly to the arrival of Corona virus. Their fear of contracting the disease, is giving rise to vicious verbal and sometimes physical attacks towards health workers, police and possible carriers of COVID.
It is not hard to imagine the danger of right information in the wrong hands. However, in addition to this, we have to also think about the implications of our personal information in the hands of the State. Due to the sudden emergence of the pandemic and the panic stricken among the citizens, several bars and obstacles have been put on hold. In short, the Rule of law protecting the citizens of a State from the arbitrary thumb of the State has been upended. Until serious and deliberate rules are framed by the Government relaying the procedure and regulation for collection, dispersion and divulsion of the personal information through the Arogya Setu app, both during the COVID-19 pandemic and after the pandemic, the true extent of the hollow opened by the app will not make itself known.