In a unanimous verdict a rare nine-judge bench of the Indian Supreme Court ruled on August 24th that privacy was part of a fundamental right to life and liberty under the country’s constitution.
The ruling came as a referral from a smaller panel hearing a challenge to India’s biometric identity programme, Aadhaar, which has signed up more than one billion Indians.
Aadhaars’s incorporation of biometric data in citizens’ daily lives involves compulsory use in voter identification, healthcare, social welfare payments, and other public sector functions like passports. But it has bled quickly into online banking where you can’t open an account without one, job seeker authentication, blood donors, and loan applications.
It’s a problem we face as citizens of any networked country now. The scale and complexity of redistributive power needed by the state and by cities over the 20th century has forced us to largely give up the idea of privacy from the public sector.
We have more social benefits to sustain and redistribute. We have more brittle social orders such as cities and utility networks to continue. We have a highly mechanized and interdependent society – and people continue to flock to the most information-hungry parts of it in droves. Stand on top of any mountain overlooking a city at dusk and just wonder at what it takes to sustain this entire thing as an organism: information. Part of the success of the city is because the public realm, as well as the private, can know you well enough to anticipate what you are about to do in the next half an hour – by harvesting bits of data about you. And anticipate next week. And next year.
All of that – the entire brittle artifice of it – needs sustaining with our data. In this new world, personal information will become more powerful than finance.
It’s good that over 150 national constitutions mention the right to privacy in their constitutions in one form or another. But personally I don’t think it’s a strong value, I don’t think we show we want it to be, and I don’t think it needs to be.
Why does our privacy relationship with the state need to be stronger when our privacy relationship with all companies and linked persons is essentially freely given away by us whenever we use Facebook, Baidu, Snapchat, Google, Trademe, cellphones, electricity, emails, toll roads, travel, LinkedIn, Uber, Snapchat, eftpos, Visa and Mastercard, loyalty cards, etc etc? If a Facebook user fell dead in a forest, would they still exist? To get back to Aadhaar for a moment as an example, the Indian Supreme Court ruling is going to impact the workings of a host of global corporations including all those listed above. It’s big.
We willingly throw our privacy into the air when it’s the commercial sphere where it’s largely unregulated, so they can track us better than Minority Report. But the state, who actually keeps the entire society and country going, gets highly regulated. Nope, this isn’t a liberal argument, or a proto-Godwin shift. This is a basic social contract argument.
Since we rely on the state for more of our needs than Facebook, our social contract including that of privacy should be more forgiving, including to those institutions seeking that information to support those needs.
And yet the opposite is the case: the privacy we freely give away to tech companies and to the public gives us far less in return. Mark Zuckerberg has no social contract with me. But the state has one with me.
You may well respond: but the collection of data into enforcement mechanisms greatly curtails free speech. I would respond: our society shows that we are living in the greatest moment of free speech we have ever been in.
Way back in 1993 the purposes of the Privacy Act were farsighted about how the state intrudes into our personal data:
These principles are regulated by the New Zealand Privacy Commissioner.
We – and a billion Indians – have no need to hold the state and the commercial realm to parallel standards of privacy of course. Only the State should have enforcement capacity. Perhaps we need a global standard that is nationally enforced. But perhaps also we and that billion Indians need to accept that because our data is what keeps our modern public realm functioning, the public realm should have as much access to it as possible.