Big Data And Surveillance; Does Privacy Exist Anymore?
Updated: May 17, 2021
Evelyn Jeniffer Ilakiya, Nyayshastram
Surveillance means to watch over or monitor people. This system uses technology to collect and generates data of a substantial portion of the people. When employed by the State, it serves many purposes, like controlling crime, and trafficking and helps in maintaining public order, peace, and security in the society. It uses various mechanisms. Most of the central systems that are employed are phone and SMS monitoring software(telephone tapping), Internet monitoring software, which includes applications and social media servers that procure personal data. Shadowing of location and GPS tracking systems and Surveillance through biometrics, drones and cameras (e.g. CCTV cameras fixed in ATMs, shops and other places) are also prevalent today.
I. Constitutional validity
William Parent defines “Privacy as the condition of not having undocumented personal information known or possessed by others” . The right of privacy protects the liberty of a person, it enables his/her to be in their personal space and to do things, that are not prohibited by law. It is non-interference from the public or the Government in the personal affairs of a person. It is also unanimously recognised as a Human right. As per Article 12 of the Universal Declaration of Human Rights: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
The Indian constitution under Article 21 states that"No person can be deprived of his life and personal liberty except according to the procedure established by law". The phrase - Personal liberty under this was interpreted to contain in itself privacy, but it was not explicitly guaranteed. Later, on 24 August 2017, the Supreme Court upheld the Right to privacy as a fundamental right in the landmark Judgement of K.S. Puttaswamy v. Union of India and Ors. Article 19 and 21 are contemporary. Article 19 guarantees the right to freedom of speech and expression of a person. Both the rights cannot be withheld unless prohibited by a reasonable restriction. Surveillance, though invades the privacy of a person is mostly brought under the exception of National security and interest of Sovereignty and integrity of the State.
II. Surveillance and Data interception
Surveillance through telecommunication, bio-metrics, and internet software monitoring is presently used all across the world. Phone tapping is one of the central systems across the world. In India, it finds its legality under Section 5(2) of the Indian Telegraph Act, 1885 which states that both the central and state Government have the authority to intercept messages transmitted through a telegraph when there occurs a situation of public emergency and safety which raises the need to protect the sovereignty and integrity in India. The constitutional validity of this particular section was disputed in the case of PUCL v Union of India. The Court held that individuals had a privacy interest in the content of their telephone communications. Telephone tapping amounts to privacy invasion when exercised without procedure established by law. It violates the fundamental right to freedom of speech and expression unless it falls within the restriction under Article 19(2). The Court further established, in this case, strict guidelines, safeguards, and how phone tapping should be executed.
India has also been exposed to surveillance through Bio-metrics. This system involves creating a database, by scanning a part of the body, like an eye or fingerprint. This was challenged in the Aadhar card case. The denied right to privacy was brought into the limelight by the Retired High Court Judge Puttuswamy. A suit was filed against the Union of India by him, in which he contended that the Aadhar scheme, which involves the identification of citizens using bio-metrics, was violative of the right to privacy guaranteed by the constitution. This new administration system was brought by the Government and was imposed on all people as an obligation to obtain benefits from Government policies and schemes. This case was taken up by a constitutional bench consisting of nine members.
The Court ruled out that information obtained by the authorities will have restricted use, i.e. for PDS Scheme, and will not be used for any other purpose, It further upheld the right to privacy as a fundamental right. Justice Kaul opined that the “Right to privacy includes the protection of informational privacy and the right to preserve personal reputation. Law must provide for data protection and regulate national security exceptions that allow for interception of data by the state”. The undemocratic nature of the same was questioned mainly because Government authorities take power in their own hands and dictate what people have to do and not to do, they Interfere with the personal affairs of a person, violating their liberty, equality, and freedom. Many believe that the Aadhar Card Scheme is being converted into the most effective surveillance system by obtaining biometric and linking the card to services such as filing of Tax Returns and Bank Accounts.
The Information technology act permits and regulates web surveillance. Section 69 provides for the interception, monitoring, and decryption of computer sources by Central and State Governments in the national interest. It grants the Central Government the "power to authorise to monitor and collect traffic data or information through any computer resource for Cyber Security”. Apart from the State, Private companies which do not come under the umbrella of the State also unlawfully carry out these activities.
There are several other similar instances that -have never come into the light. The more we use internet services, the more of our data is procured, intercepted,and shared every day even without our knowledge. Vast databases of a person’s financial, medical, and telecommunications are recorded.
Although there are penalties imposed in the Information Technology Act for misuse of data, it does not sufficiently address the issue. Thus from the above-discussed facts, the privacy invasion caused by unlawful data interception and surveillance poses a threat to a democratic nation. In the present Indian scenario, there are no specific laws on the protection of privacy. The Personal Data Protection Bill 2019, introduced by the present Government, is pending before the parliament. This bill is aimed at protecting and regulating the processed data of individuals in the hands of companies, Government agencies, and internet sources. Not adhering to this law might attract a maximum penalty of up to 5 crores. It provides for systematic procedures and safeguards.
 DeCew, Judith, "Privacy", The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/spr2018/entries/privacy/> Accessed on 21/10/2020
 Art 12 , Universal Declaration of Human Rights
 Art 21, the Constitution of India
 Bharat Vasani, Ramgovind Kuruppath and Samiksha Pednekar, ‘Surveillance In The Post-Puttaswamy Era’(Cyril Amarchand MangaldasBlog November 19, 2019) <https://corporate.cyrilamarchandblogs.com/2019/11/surveillance-post-puttaswamy-era-right-to-privacy/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration> acessed on 4 March 2021
 K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (2017) 6 MLJ 267.
 Art 19, the constitution of India
 Right To Privacy: Surveillance In The Post-Puttaswamy Era’ (BloombergQuintOpinion, November 12, 2019) <https://www.bloombergquint.com/law-and-policy/right-to-privacy-surveillance-in-the-post-puttaswamy-era> accessed 4 March 2021.
 S. 5(2), The Indian Telegraph Act, 1885.
 PUCL v union of India ,(1997) 1 SCC 301
 Chris Woodford, ‘Biometric fingerprint scanners November’ (EXPLAINTHATSTUFF, November 6, 2020) <https://www.explainthatstuff.com/fingerprintscanners.html> acessed 4 March 2021.
 Varun Kalra & Ramisha Jain, An Armistice between Right to Privacy and Right of Surveillance, 4 INDIAN J.L. & PUB. POL'y 1 (2017). Accessed on (21/10/2020)
 S.69, The Information Technology Act, 2000
 S.69( B ), The Information Technology Act, 2000
 in ’Karmanya Singh Sareena v Union of India ,SLP (C) 804/2017