-by Vini Singh
The COVID-19 pandemic has swept the world. The fast-spreading infectious disease has compelled almost every government to impose severe measures. Many of these measures have had a substantial impact on fundamental freedoms. India is no exception. The government has had to impose a strict nationwide lockdown to slow down the spread of the virus.
Many more restrictions are likely to become a part of our lives until the time the disease is contained. And, many of these will probably be in the digital sphere given the heavy reliance on technology for contact tracing of infected individuals and for storage of health-related data. Technology giants like Google and Apple have already started developing apps for contact tracing via Bluetooth emissions. Some governments are already using indigenously developed applications for this purpose. For example, Singapore uses an app called TraceTogether to trace movements through Bluetooth. China is also using a similar technology where people are required to scan a QR code before they can use public facilities like riding a subway. The QR code is calculated based on the past movement history of the person in question. Likewise, South Korea anonymises the movement and health data and informs people if they might have come into contact with an infected person so that they can get tested. They use both GPS and Bluetooth for tracing. Norway’s Smittestopp also uses both Bluetooth and GPS for contact tracing. India’s Aarogya Setu which has become one of the highest downloaded apps in the world also relies on Bluetooth and GPS. The use of the app has also been made mandatory by all public and private employees by an executive decree issued under the National Disaster Management Act.
Given that people carry their phones with them all the time as if it were a limb, tracing and mapping location is already extremely intrusive. Recently, in Carpenter v. U.S. the United States Supreme Court held that tracing a person’s location using cell location data without due purpose and in absence of a warrant was an unreasonable restriction on the right to privacy. Earlier, in U.S. v Jones too the U.S. Supreme Court had found location tracking via GPS without a warrant to be a violation of privacy rights. The Indian Supreme Court has also found constant surveillance to be an unreasonable restriction on privacy in Govind v. M.P. and PUCL v. UOI. Usage of the app would, therefore, amount to staying inside a panopticon.
While the government has made the usage of this app mandatory so far only for public and private sector employees, the judiciary is not far behind in abuse of power during the pandemic. Recently, the Jharkhand HC had mandated the download and use of the app as a condition for granting bail to a former BJP MP. Even the NOIDA police are collecting fines for the offence of not downloading the app. None of these restrictions on privacy is reasonable as per the test formulated by the Supreme Court in its Privacy judgment.
Furthermore, security concerns have been raised with respect to the storage of data by ethical hackers which makes this indefinite retention of data extremely problematic. Considering that it may be impossible to avoid the usage of technology to deal with such situations, it is time to strengthen the privacy and digital rights framework, particularly information self-determination and the right to be forgotten.
The views are personal.
Image Courtesy: Cashify
ABOUT THE AUTHOR
Vini Singh is Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur. She is a graduate (B.A.LL.B, 2012) from Hidayatullah National Law University, Raipur and holds a Masters of Law degree (2013) from University College London.