Privacy in the time of coronavirus

We are going through an unprecedented global crisis. The spread of the corona virus has paralysed our societies and economies in a way that hasn’t happened for several decades. Historian Yuval Harari argues in his recent FT article, and I agree, that the storm will pass, but the choices we make now will change our lives for years to come.

One of the biggest questions this crisis has confronted us with is that of individual agency and privacy. One of the most influential papers on privacy, written by Samuel Warren and Louis Brandeis in 1890 for the Harvard Law Review posited privacy as the ‘right to be left alone’. That is precisely what we can’t afford in times like this. The Govt. has the right and obligation to tackle the public health emergency through all means at its disposal. For example, it should quarantine people that it believes are at high risk of transmission – with or without their consent. Researchers are also exploring ways to use social media data to track the virus.

Once the genie of surveillance is out of the bottle – for good or for bad – it is difficult to put back.

This is where things start getting complex. Once the genie of surveillance is out of the bottle – for good or for bad – it is difficult to put back. History is replete with examples of a slide down this slippery slope. In the early 1900s, US President Theodore Roosevelt used the crisis following the assassination of his predecessor to circumvent the legislature and create the forerunner of the FBI. Through multiple crises over the decades, the US intelligence apparatus gained more and more powers outside the checks-and-balances of the constitution and has created a mass surveillance network that snoops on every American.

Corona is India’s first such crisis after its citizens received a right to privacy through a 2017 Supreme Court judgment. It is therefore crucial that our response to corona virus does not undo the significant progress that we have made as a society. At the same time, the right should not impede fight against coronavirus.

Thankfully, the Supreme Court judgment recognised that the right to privacy is not absolute, and can be curtailed if need be. It also outlined the process to do so in a way that prevents abuse of such exemptions. The court laid out three tests that any exception must meet – necessity, legality, and proportionality. Let’s look at all three.

The necessity test says that an encroachment on the right to privacy must be unavoidable to achieve a different social need. This test is clearly met in the case of corona. The only way for the Govt. to effectively fight corona is to know our travel histories, and the only way to contain it is to quarantine those who are affected.

The democratic law-making process is our only safety valve since it protects the sacred bond of trust between citizens and state

The second test, legality, states that any violation of the right to privacy must be based on a law passed by Parliament. While doing so, the Government will need to clarify the purpose of the exemption, its extent, and safeguards for citizens. Parliament could pass such a law in relatively short time. In case Parliament is not in session, the President can issue an ordinance that provides a temporary framework. Those who feel aggrieved could approach the courts, which in turn would evaluate whether the law finds the right balance between privacy and the needs of the time. The democratic law-making process is our only safety valve since it protects the sacred bond of trust between citizens and state that is invaluable while fighting against crises like corona.

Finally, the Supreme Court said that the extent of violation of privacy should be proportionate to the benefit from doing so. In plain terms, this means that the Government should conduct the least-intrusive amount of data collection. For example, if the Government wanted to collect social media information to fight corona, it should only collect travel history and not an individual’s entire dataset. It could go one step ahead and ask social media platforms to flag any travel to high-risk countries, rather than collecting the data itself.

Such safeguards need to be built into the law. More importantly, the law itself should be written well enough to prevent an unchecked accretion of power. As Srinivas Kodali points out in his recent op-ed, the Epidemics Act of 1897, which is a colonial single-page law from over a century ago, can be used to justify all sorts of restrictions on individuals. We need to write high-quality, modern laws for risks of the modern world.

The unstoppable march of technology has raised many such complex questions. There are probably no perfect answers, but the framework provided by the Supreme Court can help us navigate the trade-offs effectively. Even in the most pessimistic projections, most of us will survive this corona storm. But how we as a society steer our ship during this tempest will determine the life we live once it is over.