Privacy debate needs cultural perspectives

Discourse on privacy calls for an anthropological analysis, along with legal and social standpoint.

The debate on the right to privacy has resurfaced primarily on account of Aadhaar registrations having become mandatory, either through linking of the PAN Card or other means.

There have been intense debates on the compromise of citizens’ privacy under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act that governs the registration of Aadhaar cards. The Supreme Court is currently deliberating on the right to privacy and its status as a fundamental right.

Before drawing conclusions on whether Aadhaar affects citizens’ privacy, we think the wider and more significant issue of relevance is that of “privacy” being a pliable and uncertain concept. This is seen across the ongoing debates on privacy.

The concept of ‘right to privacy’ is not specifically and explicitly guaranteed in the Indian Constitution. Also, there is no comprehensive privacy legislation, except limited data protection standards under the Information Technology Act, 2000, and its associated rules.

Theoretically, privacy has various aspects: first, privacy of an individual over her body (“physical privacy”) and second, privacy of an individual over her information, including communications (“informational privacy”). Another, and a much less discussed aspect of privacy in this context, is the right to remain alone or right to make decisions free of influence (“spatial privacy”). Sometimes, the same action could violate more than one of these aspects of privacy.

For example, spatial privacy of an individual may be affected when her decisions and patterns of making such decisions are watched with an aim to develop analytics and conclusions that could either 1) predict her further decisions; or, 2) influence her choice without her realisation. This could also result in the violation of her informational privacy as relevant information about her decisions will be read over. However, these typologies are often stressed in varying degrees under different notions of privacy across the globe.

This can be highlighted by comparing definitions of right to privacy. For example, Privacy International, an active charitable organisation that advocates the right of privacy, has defined it in an encompassing way on the lines of the Universal Declaration of Human Rights. It says, privacy enables us in ‘[establishing] boundaries to limit who has access to our bodies, places, and things, as well as our communications and our information.’ This emphasises on both the physical and informational privacy.

In contrast to this, one of the first conceptualisations of the right to privacy which was authored by Brandeis and Warren (1890, Harvard Law Review) focused extensively on spatial privacy with ancillary inclusion of informational privacy. There are numerous such variations across different definitions of privacy. It is not surprising then that on more than one occasion, the United States courts have acknowledged the difficulty in defining privacy. Even in legal theory, there are questions relating to privacy that are far from being answered conclusively.

Legal scope of privacy
Aadhaar is only a manifestation of the bigger problem — that is, the lack of clarity on the legal and ethical scope of privacy in modern society. If we had clear noti­ons and perceptions of privacy, legally, perhaps, an argument on whether the government committed an illegality in data-mining could be answered clearly.

This ambiguity is exacerbated by the fact that understanding of privacy is a function of cultural and social norms that vary across different regions. The idea of privacy of a substantial number of Indians depends on traditional value-systems.

“I don’t have anything to hide, privacy is for those who fear exposure of their misdeeds,” contended a good number of people who accompanied us in the queue to apply for Aadhaar.

They did not factor in the relation between surveillance and democratic institutions of the state. This common understanding of privacy is divorced from the ongoing theoretical debates that involve academics, lawyers, and policy analysts. The heated arguments in the Supreme Court over the common man’s privacy rights are alien to the common man in our society.

In addition, while the arguments hinged on legal technicalities, right to privacy should also be understood as a function of value systems and not in isolation of the cultural context. Therefore, the discourse on privacy ought to involve an anthropological analysis, along with legal and social perspectives. Simultaneously, the common man needs to be educated on the implications of data aggregation and analytics. Until and unless such awareness is created, any consent by the common man to surrender personal data is uninformed and vitiated.

Unfortunately, time is running out on this issue. As Aadhaar’s implementation envelops massive amounts of citizens’ data, it may already be too late in the day to enter into detailed and informed conversations on privacy.

(Grover is a lawyer and senior lecturer at the School of Policy and Governance, Azim Premji University, Bengaluru. Motwani is a practicing lawyer and currently reading for Master of Public Policy at the University of Oxford)