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vol lI no 17
COMMENTARY
vol lI no 17
EPW
COMMENTARY
the Zero Day flaw. The fact that the government has such a tool at its disposal
poses sinister threats to human existence in the present day. These threats
can only be engaged with by answering
several pressing questions, from which
the judiciary and the legislature have
shied away.
Questions Left Unanswered
In a historic Harvard Law Review article
in 1890, Samuel Warren and Louis
Brandeis extended classical liberal theory
to conceptualise a right to privacy that
has its foundations in a right to be
let alone (Warren and Brandeis 1890).
This article was a response to the rise of
the free press that created greater intrusion into the lives of public figures, without the development of a legal regime
that offered adequate protection.
Bhairav Acharya has constructed three
aspects of the right to privacy (Acharya
2015), all of which have arguably been
violated by the FBIs present claims. The
first aspect is privacy from state surveillance, both in respect of privacy and
communication. The second rests on the
premise of privacy being integral to decisional autonomy, as excessive intrusion of surveillance has an effect on the
fundamental choices made by people
about themselves. The final privacy claim
is that of information privacy. Personal
information is any information that can
cause the identification of an individual,
either directly or in symbiosis with other
information. The uncontrolled obtaining
of these personal details fundamentally
violates the right to be let alone.
The purpose of creating the software
is, by definition, repeated use. Therefore,
this issue cannot be restricted to a question of whether it is acceptable to create
a backdoor into the data owned by a
deceased terrorist. There seems to be no
means of verifying or enforcing the governments claims that the backdoor will
not be used again. Further, if Apple is
made to comply with the governments
demands, this sets a precedent both for
courts of law and administrative authorities to repeatedly intrude into the private
lives of individuals by using the trump
card argument of national security
(Chandler 2009; Richards 2013).
Economic & Political Weekly
EPW
COMMENTARY
Rights chapter of the Constitution. However, various later benches of the Apex
Court held privacy as an integral part of
Article 21, the Right to Life and Personal
Liberty. In fact, the issue of surveillance
in criminal investigation and telephone
tapping was specifically addressed in
this regard by the Court in Peoples Union
for Civil Liberties v Union of India and
Another (1997), where the Court upheld
the right as applicable in India. However,
little or no enforcement followed, and
the Information Technology Act 2000
(and the associated rules) continued the
laissez-faire scenario with overarching
powers to intelligence agencies to carry
on surveillance exercises.
Subsequent developments include the
introduction of a biometric database in
the garb of welfare schemes (Aadhaar),
and shoddily-drafted bills on data
protection and privacy (both of which
were suitably criticised and, consequently,
withdrawn). The recently reintroduced
Aadhaar (Targeted Delivery of Financial
and Other Subsidies, Benefits and Services) Bill, 2016 was passed through a
voice vote in the Lok Sabha after minimal discussion, guised as a money bill to
avoid a showdown with the opposition
in the Rajya Sabha (Tarafder and Sen
2016). Despite the general consensus
that the current bill is an improvement
over its former version mooted by the
United Progressive Alliance II in 2010,
the questionable practice of offering law
enforcement a free hand in carrying on
surveillance programmes with little or
no accountability is continued in the
current bill. Commentators characterise
the lack of security in cyberspace as a
real threat, and feel that the new bill
does not reflect a positive attitude towards
the protection of individual privacy in
the country (Narayanan 2016; Arun 2016).
A constitutional bench of the Apex
Court is about to hear and decide on
whether the right to privacy exists as a
fundamental right in India, in order to
conclude the legal conundrum that was
very much the Courts own creation, by
repeatedly ignoring the doctrine of stare
decisis, or the law of precedent. The
Court should use this opportunity to
carve out a well-defined right to privacy,
which could preserve the constitutionally
16
Cases Referred
American Civil Liberties Union et al v James R Clapper
et al (2013): 959 F Supp 2d, p 724, SDNY.
Griswold v Connecticut (1965): The US, 381, p 479.
Kharak Singh v State of Uttar Pradesh and Others
(1964): SCR, SC, 1, p 332.
Klayman et al v Obama et al (2013): 957 F Supp 2d,
p 1.
Olmstead v United States (1928): The US, 277, p 438.
Peoples Union for Civil Liberties v Union of India and
Another (1997): AIR, SC, p 568.
Roe v Wade (1973): The US, 410, p 113.
United States v New York Telephone Co (1977): The
US, 434, p 159.
US District Court Eastern District of New York
(2016): In Re Order Requiring Apple Inc to
Assist in the Execution of a Search Warrant
Issued by This Court Case, Memorandum and
Order 15MC1902 (JO), 29 February.
available at
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