Six degrees of separation

Annoyed by the regular text messages from banks and mobile service providers to link Aadhaar with the accounts and SIMs? Scared if they will freeze your deposited money, and block the mobiles? Confused because Ravi Shankar Prasad, the information and technology, and law minister, tweets, “No need to link Aadhaar with all these facilities”? In the same trail, the minister also said, “Yes! You need to link your mobile number with Aadhaar as directed by the Supreme Court.” So, where lies the truth? What are the implications of the recent constitutional bench’s privacy judgement on these linkages?

The answer possibly lies hidden in the recent statement by Arun Jaitley, finance minister. He maintained that Aadhaar will “pass the test or constitutionality” because it has adequate safeguards for data protection. He obviously was talking in the context of a petition in the apex court on the legality of making the biometrics mandatory to avail welfare schemes. This order will decide whether such linkages can then be made with bank accounts, PAN, SIM, and air travel in the name of national security and transparency.

Clearly, one has to wait for this judgment, and possibly many more in the future to get clarity. Therefore, it is critical for the judicial clarifications to come sooner than later. The reason: the government has imposed a December 31, 2017, deadline for most linkages. However, the pro-privacy lawyers believe that a citizen doesn’t need to worry. “The Supreme Court is conscious of these things. When the hearing starts (in the first week of November), if the Supreme Court believes that these are matters which need to be injuncted, there will be temporary orders that are passed,” says Sajan Poovayya, a senior advocate, who argued for one of the petitioners in the privacy case.

Another crucial clarification that is required is to make a distinction between data protection and data usage. This relates directly to what Jaitley said. Just because the data is secure, and encrypted or, as Prasad said, it’s minimal and doesn’t have details, it doesn’t imply that the data cannot be misused. The questions that will come up before the apex court in the near future will be of the following nature. If you give data to your mobile operator, can it share it with a bank or a marketing company? More importantly, can the three then combine their respective data to do your profile-building? Even scarier, can the government agencies force the banks, phone companies, and social media networks to share the data with it?

It’s this six degree of separation theory, and inter-linkages that are important in the privacy debate. For example, Prasad quipped that everyone collects data about you. The restaurants do it, so “eat chappati and dal at home” or else the former “will know about your food habits”. “Don’t travel by plane. Take your cycle and go to Mumbai (from Delhi).” The fact is that a citizen isn’t bothered about such individual collection of data. It is when such data is shared between mega collectors, and turns into meta data — that creates problems. The reason: meta data can easily be used to connect anyone to an event, or another individual.

Hence, the meta data can be used to declare you a criminal or a terrorist. It can be then be used to arrest you under draconian acts that won’t allow you bail. It will be for you to prove your innocence, and not the other way around. This is the scariest bit about data collection, meta data, right to privacy, and the right to be forgotten.

While the constitutional bench has given the overall contours of what comprises the right to privacy, which is now a fundamental right, the various benches will need to deal with the specific issues. According to Poovayya, several laws may fall by the wayside. “For example, the validity of Section 377, i.e. the liberty of an adult to indulge in a sexual activity with the same sex-partner,” he explains. In addition, there will be legal questions on the use of Narco analysis — when a serum is injected to make an accused talk. But there is a greater urgency in linkages to PAN, bank accounts and SIMs.

The reason: as the citizens feel scared and compelled to stick to the existing deadlines, the linkages will be fait accompli. Once, a person has done this she will then have to fight for the right to be forgotten, if the Supreme Court later rules that such linkages aren’t allowed. The private sector has used similar tactics in the past to get favourable legal orders. In the telecom sector, for instance, a private operator skirted the law, but got saved when it argued that there were hundreds of thousands of users for its services. Fortunately, there are cases, like in the 2G scam, where such arguments didn’t work.

Government stresses on Aadhaar as mandatory for mobile connections claiming it’s following the Supreme Court order. They are referring to a litigation filed by the NGO Lokniti Foundation against those obtaining mobile numbers with fake identity proofs. However, as per The Wire, the apex court had actually dismissed the plea when the government assured Aadhaar linking will lead to genuine connections. The court never mandated Aadhaar for the connections, which was even recommended by the NGO. So basically, media reports as well as the government are merely misreading the verdict.

The government is making efforts to urge the people to carry out the linkages. Prasad has argued several times that Aadhaar has helped to bring about “more transparency and savings of public money” by reducing corruption in government welfare schemes. He added that the government saved R57,000 crore “which used to be pocketed by middlemen and fictitious claimants”. NITI Aayog CEO, Amitabh Kant feels that Aadhaar can reduce the transaction costs to “almost zero”. Prasad also listed out the benefits of biometrics in the health sector. According to him, they can encourage research and monitoring of trends in diseases, apart from the maintenance of medical records.

The last words on the subject, at least till now, were given by a philosophical Poovayya. “I think the (right to) privacy judgment will impact the way the Indian civilisation will itself grow because one of the most important aspects of (it)… is decisional autonomy…. Therefore, there will be a systematic change in the way the society will grow, and intelligent discourse will be undertaken. There will be a systematic change in how the state will treat its citizens going forward. Therefore, the impact will be far-reaching and cannot be encapsulated in a paragraph to say that this will happen (in the future).”