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It is no exaggeration to say that privacy is the biggest issue of our time. In academia, human evolution itself has been studied through the prism of privacy as a factor, given that all sexual relations throughout the ages, whether verbal or sexual, have been characterized by varying degrees of intimacy; and now that human interaction has gone so deeply into the Internet, we must grapple with what “the record” might mean as a serious departure from the past. We are clearly exposed. Perhaps much more than we can imagine. But can the law guarantee what technology has taken away? In India, the Supreme Court upheld privacy as a fundamental right in 2017, but the legislative initiative has so far failed. After long delays and lengthy negotiations, a revised draft law on the protection of personal data is expected soon. While its actual details remain under wraps, the expected deviations from the latest draft of the bill have caused a stir both online and off.
According to recent hints, the Indian government is likely to reject the advice of a parliamentary group that wanted the law to cover non-personal data as well. This is just as well, as it would be a waste of attention. What matters is the privacy of online traces that can be traced back to identifiable individuals. The abuse of what we give away with our clicks, keystrokes and thumb movements has been rampant, with users of a variety of apps routinely spied on for commercial gain, so increased fines for a well-defined set of breach data would be welcome. Companies should not only get people’s consent for what they keep and explain why they need it, for example, they shouldn’t be made cheap for not deleting user records after strict time limits. Note that Big Tech offenders with deep pockets also need to be deterred. The big relief that online businesses expect from the revised bill will come in the form of an easing of the compliance burden. The insistence on local data storage has been a problem for both large and small businesses. By avoiding turning back the clock on operations that rely on global server systems, the new version is expected to spare startups and others the pain of escalating costs. And if onerous reporting requirements are eased, smaller players with limited budgets will have less to complain about. If such arrangements make it easier to do business, we have the Center to thank for being responsive to commerce concerns.
However, privacy is a personal right. And our law should go beyond business regulation. He must protect people from prying eyes, even those who claim to be acting on behalf of the state. As with other fundamental rights, a high bar should be set for any breach of privacy in the public interest. Such surveillance should be rare and require court warrants or other high-level recommendations. This would reduce the risk of state surveillance on a scale, should any regime be so inclined, and offer citizen-centric safeguards. Unfortunately, it’s unclear at this time whether New Delhi’s reimagining of our privacy law has changed the sloppy way the old draft exposed our electronic profiles to government agencies. However, the biggest concern in recent years has been data breaches by private individuals and online leaks by masked fraudsters. But privacy, by definition, means keeping all of our personal belongings secret—unless we choose to share them—from all other entities, both private and public. We should pass a law that reflects this. And it’s best done by giving us axiomatic ownership of our personal data, and the rest follows from that basic premise.
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