COVID-19 Lockdown & Emerging Privacy Concerns

Introduction

COVID 19: As the unprecedented crisis has gripped the world, making the world come to a grinding halt and showing no signs of coming to an end, hence to contain the spread of disease, lockdown remains only myopic viable defence to abate the spread of the pandemic in the absence of any vaccine.  Of late, to contain the spread of disease, the government has passed a slew of guidelines & orders, few of which imperil the fundamental rights and pose a gargantuan legal challenge. The present article will attempt to highlight the legal issues arising out of the present situation in the country.

Privacy Concerns

Owing to the slew of measures undertaken by the government, a lot of them imperils the much cherished fundamental rights of the citizens. The technology employed by the government to enforce strict lockdown & quarantine poses inevitable questions as to whether such measures translate into violation of much cherished right to privacy emanating from Article 21 of the constitution. Deploying drones to keep an eye on the person to ensure compliance of quarantine, sharing publicly the list of suspected patients, monitoring the movement of an individual through Smartphone & making mandatory the use of Aarogya Setu is open to legal challenges & goes totally against the spirit of Article 21 of the constitution.

There should be corresponding checks on the use of the power of the state, like any guidelines so as to keep a check on it. The same was illustrated clearly by the landmark judgement of the Apex Court in the case of K.S. Puttaswamy Vs. Union of India[1]  where the court laid down the following tests for impinging on the fundamental right to privacy:

I. The action must be sanctioned by law

II. The proposed action must be necessary for a legitimate aim

III. The extent of such interference must be proportionate to the need for such interference

IV. There must be some procedural guarantees against abuse of such interference

V. The State has to choose the “least restrictive” possible measure available

The nine-judge bench of the Supreme Court unanimously in K.S. Puttaswamy case recognized that the Constitution guaranteed the Right to Privacy as an intrinsic part of the right to life and personal liberty under Article 21. In The Puttaswamy judgment[2] of 2018 had also mandated that there should be a data protection law, which is also apparently given a major miss in the case of Aarogya Setu app, which is a glaring omission and a cause of concern for many. The possibility of the misuse of the sensitive information is not ruled out.  In the name of the Covid-19 pandemic across the country, the government is misusing its emergency power under the pretext of providing a safe healthcare. This app is another form of surveillance on the people to snatch away their democratic rights. This kind of surveillance is dangerous for the existence of democracy. There is no defensible reason for making it mandatory since there are many other ways of keeping people informed of Covid-19 related updates. Besides not providing any sort of data protection is unforgivable omission on the part of the government therefore going against the mandate of law. 

During the installation of Aarogya Setu app,  it records a registrant’s sensitive details including name, gender, age and a list of countries visited in the past 30 days, phone number, profession. Further the app continuously stores data on the location of the user using GPS to monitor whether the user has come into contact with any infected person. One is advised to review their status on the app and commute only when it is necessary or the app shows safe status. In the midst of a pandemic, the long-term impact of these measures cannot be overlooked. One must be mindful of the fact that even at the time of emergency, the fundamental and human rights can’t be compromised. These rights are inalienable & are obligation of the state while restricting any such rights, reasonability & due process needs to be followed. The individual’s meaningful consent must be obtained for the use or disclosure of their personal information; and there should be certain safeguards while imposing such policy, like-

1) Apps should promise & undertake not to leak information of a user’s locations or other Personal information to other users or with any organization.

2) The App should have safety measures against hackers & other malicious players who can hijack individual data.

3) Any breach should be punishable, with a proper remedy for redressal.

4) Clear legal backing should be introduced with appropriate provisions about specific aspects of use.

The extensive personal information that the Aarogya Setu app secures is against the present democratic norms. The privacy policy of the app  is silent as to the relevant department with which the information will be shared. In the absence of any governing legislation, the terms of service and privacy policy play reflects a very glaring concern on data retention issues. More than 45 organizations and 100 individuals on May 2, 2020 wrote to the prime minister protesting against the mandatory use of the Aarogya Setu app for workers in both private and public workplaces.[3]

The government of Karnataka informed the assembly on March 18 that it will be tracking the phones of quarantined people. Additionally, home-quarantined persons in Karnataka are required to upload their selfies every hour to prove that they are not breaking the quarantine. Tamil Nadu too is bringing technology to its use.  The state government is using geo-fencing technology to ensure compliance of quarantine. Geo-fencing sets off alarms in case a mobile device leaves a particular area. Kerala is using location data and CCTV footage to track the person, besides geo-fencing. Authorities are inspecting call records and GPS to track primary and secondary contacts of the patients. Many other states have used a similar approach. Such actions without appropriate safeguards begs a question, is the personal data of the person safe and not liable to be misused. At present a lot of issues are being left unaddressed owing to the ongoing pandemic.

Without a second though this is an extraordinary situation across the country, utmost care should be taken to ensure that the personal & sensitive information of individuals are handled with due care respecting their privacy rights. An apparent unresolved contradiction exists between the use of technology and the preservation of data privacy. The way in which individuals’ data is collected and stored is the bone of contention in the present matter. Any measure adopted by the government for the purpose of public welfare should be the least intrusive and should not intrude into the privacy rights of individuals. All the information should be collected without publishing the personal details of the person. Security protections for data processing should be introduced during the COVID-19 pandemic and fundamental rights should not be compromised at any cost and the data must be maintained securely. Any apps related to COVID-19 promoted by the Government should be free from security flaws and should be secured. Any surveillance required to respond to the pandemic should be subjected to judicial review.

Conclusion

In the view of the same it is recognized principle of the law that Right to privacy is fundamental right, therefore surveillance over an Individual & sharing publicly the list of suspected patients & other such measures goes totally against constitutional mandate. Any measure adopted by the government for the purpose of public welfare should be the least intrusive and should not intrude into the privacy rights of individuals. Such actions without appropriate safeguards begs a question, is the personal data of the person safe. A balance needs to be struck within a framework that recognises & protects citizen rights while achieving community welfare. Therefore reforms are required as to the use of the power by the government so that a balance can be struck between rights to privacy of an Individual and public Interest. Besides not providing any sort of data protection is unforgivable omission on the part of the government therefore going against the mandate of law. It is ultimately for humanity to preserve human ethics & values, which is the very essence of human nature. This can only be ensured by adhering to ethical and legal principles expounded in the article. It is imperative that the war against the pandemic is conducted with fairness, equity and justice for one and all. In the war against Covid 19, India will certainly emerge victorious.

Questions covered by the Article

1. What measures are being undertaken by the government during the ongoing pandemic?

2. Are the present measures undertaken by the government during ongoing pandemic contravenes right to privacy?

3. What reforms can be implemented to protect the right to privacy?

4. What was the test laid in the case of K.S Puttaswamy vs. Union of India for impinging on the fundamental right to privacy?

5. What are being done by various states to enforce compliance with the lockdown?


[1] K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1.

[2] Ibid.

[3] https://www.ucanews.com/news/indias-mandatory-covid-19-app-raises-privacy-concerns/87919.

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