Unlocking Our Data-Driven Future
In his new book, technology lawyer Rahul Matthan charts the growth of privacy
jurisprudence in India, linking it to the spurt in Aadhaar usage under the current dispensation at the Centre. The tone is academic, with a generous sprinkling of anecdotes that enliven the discussion of what has become a serious global issue in our time.
Mr Matthan begins his treatise with an analysis of the history of privacy, not in the legal sense of the term but the very idea whose germination was closely associated with early man giving up a hunter-gatherer role to settle down to agricultural practice and cohabit with others in a community. Early settlers needed the assistance of other members of the tribe to protect themselves in the absence of any safeguards, and so, the concept of privacy
as we understand it today, involving both material and intellectual isolation, was virtually unknown.
As civilisations grew, the need for this kind of privacy too increased, with man inhabiting his own spaces. Mr Matthan credits technology — in this case building material — for the shift in attitudes which, he notes, is ironical because technology today is widely credited with providing the state with tools that infringe on individuals’ privacy.
From here, the nature and scope of privacy grew manifold, and Mr Matthan takes a more lawyerly approach to defining this slippery beast, guided by legislation and court rulings in the West. The discussion on India begins with a fascinating analysis of how the Constituent Assembly debated including privacy as a fundamental right in the Constitution, an idea that ultimately did not come to pass.
The thrust of the book, though, is Aadhaar, which Mr Matthan thinks is the one policy measure that should make all of us sit up and take notice. His argument in this regard, that the provision gives the government massive information to profile anyone, is one that has been debated threadbare in the media since the matter came up before the Supreme Court.
To his credit, Mr Matthan recognises the need for a universal identity platform in a country in which the government provides subsidies to millions. To that extent, he is not against Aadhaar per se, but the idea of Aadhaar’s co-option as a tool through which the government has absolute control over Indians’ personal details, including their medical and financial records.
The fear that stems from this state of affairs is genuine, but Mr Matthan devotes little space to enunciating the specific nature of these concerns. He concedes that Indians have not had the need for a privacy law until Aadhaar because our other identity documents — driver’s licence, passport, ration card — work in silos, negating the chance of their misuse. It would then be legible to argue that Aadhaar is perhaps a necessary evil, one that needs to be curtailed, yes, but certainly an improvement over the system that preceded it.
To paint the state as Orwellian, then, as Mr Matthan and those who argue in his vein suggest, is putting the proverbial cart before the horse. That term is perhaps better applied to Silicon Valley’s tech giants, with their abuse of user data
to help parties influence voters and elections. Matthan makes no mention of this, though he does bring up the need to shift the burden of privacy regulation from user consent to platform accountability. We already see this at work in, say, Whatsapp’s commitment to stanch the flow of fake news.
Finally, the nature of the privacy debate pits the ordinary user against an invisible machinery, public or private, out to abuse its humongous data
repository. But our rampant use of social media, where we are keen to share the most intimate details of our lives, dilutes the righteous indignation inherent in this stance. How many of us, for example, bother to read the fine print before clicking on “I Agree” when we create new social media accounts?
While Mr Matthan praises the 2017 Supreme Court judgement on privacy, he is silent on the B N Srikrishna Committee which is due to submit its recommendations to the government on a data
privacy law any day now. This is surprising, given the work that Mr Matthan has put — and which he talks about at some length in the book — into framing the contours of any future privacy law. (His name was recommended by Nandan Nilekani to Manmohan Singh during Aadhaar’s genesis.)
Privacy 3.0 is a comprehensive compendium on the beginnings of the privacy movement in India. Although the book is largely balanced, it suffers from the malaise, observed in the mainstream media and civil society as well, of imagining the worst horrors that attend diluted privacy provisions. Privacy legislation is work in progress and it is hoped that the final draft will accommodate the many competing demands on our polity.