[Here is the full text of 4th Justice V R Krishna Iyer Memorial Lecture delivered by Justice V Ramasubramanian, Judge, Supreme Court of India]
It is indeed a privilege to be invited deliver a Memorial Lecture instituted in the name of Justice V.R. Krishna Iyer, an icon of the robed brethren and a saviour of the robbed classes. The greatness of Justice Krishna Iyer is that even in capturing his multifaceted personality, we are short of words and we look upto him to provide the appropriate vocabulary. Of his contribution and personality, he himself said as follows:
"My life has had an arboreal feature, a variegated vicissitudes-now a moffusal lawyer, sometime in jail, then a creative talent with multiple portfolios as successful minister, back to the High Court bar, off to the Bench, flight to Delhi as member Law Commission. Then came the 'brotherhood' stage in the Supreme Court with innovative curial experiments, with truth and justice playing truant and judicial efforts to democratize remedies, working restlessly for making law, people and justice synthesize….. And law of all- the scene of life is near sunset, yet yarning and so long as the candle lasts, burning, for public causes. This twilight, yet bright, span is dedicated for campaigns, and claims every hour, every day. Some brethren making busy money or ambitiously chasing post-retiral offices, may scorn at me for a tireless tongue and fearless pen. True, it is all "words, words, mere words, no matter from the heart". My waning life is but a struggle for "lost causes,(Justice V.R. Krishna Iyer Fifth Memorial Law Lecture, Kochi, December 14, 2019) forsaken beliefs, unpopular names and impossible loyalties". Fail, I may, but fight I must, since I am a human being and everything that affects any human anywhere is never alien to me."
Therefore, I thank the trustees of Sarada Krishna Satgamaya Foundation for Law and Justice to have given me this honour and privilege. As Soli Sorabjee said, Justice Krishna Iyer's most signal contribution to the development of constitutional law is his creative, expansive and humanistic interpretation of Article 21. This singular aspect of his judicial career', according to Soli Sorabjee, justly entitles him to a rank among the great, and a permanent place in the hearts and minds of the needy and the neglected, the destitute and the despised, the poor and the suffering – in fact the people of India. Therefore, it is befitting that the topic for the lecture revolves around a right which is now recognised as part and parcel of the right guarenteed under Article 21.
I would divide my lecture into 3 parts, the first providing a glimpse of the development of the law of the right to privacy in India, the second dealing with the history of its development in the west and the third, on the impact of science and technology on this right to privacy.
I. DEVELOPMENT OF THE LAW IN INDIA
Indian courts started off with a negative note as can be seen from the earliest decision of the Supreme court in M.P. Sharma vs. Satish Chandra (AIR 1954 SC 300), where the Supreme Court held that there is no justification to import the right to privacy into our Constitution by a process of strained construction, analogous to American Fourth Amendment.
But in the year 1963, the right to privacy was recognised as part of the right to life under Article 21 of the Constitution, in the minority view expressed by Justice Subba Rao in Kharak Singh vs. State of U.P. (AIR 1963 SC 1295). In that case a person was charged in a case of dacoity but was later released for lack of evidence. However a 'history sheet' was opened under U.P. Police Regulations, and he was put under surveillance. He was required to make frequent visits to the police station and sometimes police visited his house as part of domiciliary visits at night. They would knock at the door, wake him from sleep, and he was made to report to the police whenever he went out of his village. Though the majority view held the domiciliary visits to be bad, surveillance was not held unlawful. But Justice Subba Rao, in his minority view held that the concept of liberty in Article-21 was comprehensive enough to include privacy and that a person's house, where he lives with his family, is his "castle" and that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. Justice Subba Rao opined that every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. Therefore, all acts of surveillance according to him would infringe Article 21. The following extract from the minority view expressed by Justice Subba Rao and Justice Shah in the said judgment, laid the foundation for the development of the Law relating to the right to privacy:-
"The Scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life."
While U.P.Police Regulations were under challenge in Kharak Singh, identical regulations issued by the State of Madhya Pradesh came under challenge in Govind vs. State of M.P. And Others (1975 (2) SCC 148). The petitioner in this case also had a similar complaint that his name is included in the history sheet, that the police were making domiciliary visits day and night, that his movements were watched and he was made to report whenever he had to go out of the village. Though the court found in this case that the impugned regulations ill accord with the essence of personal freedom, the court upheld the Regulations on the ground that there are serious problems defining the essence and scope of the right to privacy and that there are serious questions about the propriety of judicial reliance on the right that is not explicit in the Constitution. However, Justice K.K.Mathew also indicated in the judgment the broad contours of the right to privacy as something that must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation and child rearing. The Court expounded the theory further, on the following lines:
"Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ... many of the Fundamental Rights of Citizens can be described as contributing to the right to privacy. .... individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the World, the image they want to be accepted themselves, an image that may reflect the values of their peers rather than the realities of their natures."
R.Rajagopal vs. State of Tamil Nadu (1994 (6) SCC 632) is a turning point in the history of the development of the law of privacy in India. It is a case where a person by name Auto Sankar, convicted of heinous crimes and lodged in prison, wrote his autobiography and sent it through his wife to a weekly magazine. When the magazine announced its publication as a serial, the State warned of action since the story purportedly contained information about the nexus that the convicted prisoner had with the government officials. The State action was challenged and the question concerning the freedom of the press vis-a-vis the right to privacy was examined by the Supreme Court at length in the case. Dealing with the origin of the said right, the Supreme Court held :-
"The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin - (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising - or non-advertising purposes or for that matter, his life story is written- whether laudatory or otherwise -and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21."
Following R.Rajagopal, came the decision in People's Union for Civil Liberties vs. Union of India ((1997) 1 SCC 301), which arose out of a challenge to section 5(2) of the Indian Telegraph Act which pemitted interception and tapping of telephones. Holding, without striking down the statutory provision that it is a serious invasion of the right to privacy and a variety of technological eavesdropping, the court formulated various safeguards for the exercise of such power. The Supreme Court affirmed in this case that the right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article-21 of the Constitution and that the said right cannot be curtailed "except according to procedure established by law".
The next decision in Mr.'X' vs. Hospital 'Z' (1998) 8 SCC 296, provided another dimension to the right to privacy. This case arose out of a claim for damages made by a person against a hospital which disclosed the fact that the patient tested positive for HIV (+) infection, resulting in his proposed marriage being called off and the patient being ostracised by the Community. Dealing with the contention that the right to privacy was invaded, the Supreme Court held:-
"Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctor-patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, the public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person's "right to be let alone" with another person's "right to be informed".
" Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article-21."
Though certain observations made in the said judgment, were later held to be uncalled for by a Three Member Bench of the Supreme Court in Mr."X" vs. Hospital "Z" ((2003) 1 SCC 500)), the law laid down on the right to privacy was not upset.
The next milestone in the journey of the right to privacy is the decision in People's Union for Civil Liberties vs. Union of India (2003 (4) SCC 399) which arose out of a challenge to the Constitutional validity of section 33B of the Representation of People Act inserted by Amendment Ordinance 2002. Right to privacy was pitted against the right to information in this case. In order to annul the effect of an earlier decision of the Supreme court in Association of democratic Reforms which held that the voters had a right to know about the criminal background of candidates, their assets and liabilities and educational qualifications, the amendment was brought. While declaring the amendment unconstitutional, the Supreme Court held that "by declaration of a fact, which is a matter of public record, that a candidate was involved in various criminal cases, there is no question of infringement of any right of privacy". Even with regard to the declaration of assets by candidates, the Supreme Court held that a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar Fiscal Legislation.
Interestingly, right to privacy, which encompassed within itself, the right to require public authorities not to disclose details in their possession, came up for consideration in District Registrar -vs- Canara Bank (2005) 1 SCC 496). In this case, the Supreme Court was concerned with a State Amendment brought forth by the State of Andhra Pradesh, to section 73 of the Indian Stamp Act, by which, a person authorised by the Collector was empowered to search and seize any registers, books, records, papers, documents or other proceedings in the custody of a Bank for the purpose of discovering any fraud or omission in relation to the stamp duty payable on a document. The Banks themselves challenged the vires of the said amendment on the ground that it offended both the right to privacy of their customers, as well as the duty of the Banks to maintain secrecy and confidentiality. After pointing out that the right to privacy and the power of the State to "search and seize" have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed, the court listed out the circumstances under which the right could be curtailed. The court held that "Intrusion into privacy may be by (1) legislative provisions, (2) administrative/executive orders, and (3) judicial orders. If it is by legislative intrusions, they may be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionality of the intrusion vis-a-vis the purpose sought to be achieved. If the intrusion is by administrative or executive action, it has to pass the test of reasonableness. If the intrusion is by judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for the protection of the particular State interest.
After this came Aadhar and Justice Puttasamy. A little background may be of interest. On March 03, 2006, approval was given by the Department of Information Technology of the Government of India for the project titled 'Unique Identification for BPL Families'. In January 2009, UIDAI was constituted as an attached office under the aegis of the Planning Commission. By September 2010 enrolment process of Aadhaar began with the nationwide launch of the Aadhaar project. A Bill was introduced in the Rajya Sabha on December 03, 2010 known as 'National Identification Authority of India Bill, 2010'. In November 2012, a writ petition was filed in supreme court assailing the aadhar scheme as violative of Article 21. The Government of India filed a counter contending that a 8 Judge Bench of the court had already held in M.P.Sharma vs. Satish Chandra that right to privacy is not a fundamental right. In view of the stand so taken by the Government, the matter wwas sent by a 3 member Bench to a 5 member Bench which referred the issue to a 9 member Bench. The 9 member Bench, by its judgment in August 2017 held in Justice Puttasamy vs. Union of India that right to privacy is a fundamental right.
By the time the 9 member Bench answered the reference and remanded the writ petitions for disposal to the 5 member Bench, the Parliament passed the Aadhar Act, 2016. Therefore, the validity of the aadhar scheme was taken up by the 5 member Bench in the light of the statutory regime. In a judgment delivered in September 2018, the court upheld the Act and the scheme but advocated a strong data protection law and exempted certain services. In accordance with the said judgment, the Government prepared a Personal Data Protection Bill, 2019, which has now been sent to the joint Parliamentary Committee.
Thus the law of the right to privacy had a rollor coster ride for about 64 years, from the time the journey started in 1954 in M.P. Sarma's case. This is in contrast to the long journey of about 400 years that it had in the west. Let me now move on to the
second part of my lecture dealing with the historical perspective of this right in US, UK and Europe.
DEVELOPMENT OF LAW IN ENGLAND, EUROPE & U.S
What Sir Edward Coke declared in the year 1604 in Peter Semayne v. Richard Gresham is identified as the commencement of the journey. He said that a man's home is his castle and fortress, as well for his defence against injury and violence, as for his repose. This was in the context of the Sherif of the town attempting to effect an order of attachment of certain movable items, as security for the debt incurred by the owner of the goods, but which were found in another person's house. This famous declaration led to the issue of the Petition of Rights in 1628 which prohibited the King from housing troops in private homes without the owner's consent. What was referred to as "castle" by Sir Edward Coke, was amplified by William Pitt, the first Earl of Chatham (William Pitt, the Elder), who became the Prime Minister of Great Britain in the following words: "the poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the storm may enter- the rain may enter- but the King of England cannot enter."
This principle was later transported to the United States, where it was given the following dimension by Henry W. Grady, a journalist and Editor : "exalt the citizen. As the state is the unit of the government, he is the unit of the state. Teach him that his home is his castle and his sovereignty rests beneath his hat."
After nearly 300 years of Sir Edward Coke's exposition that a man's house is his castle, an article appeared in the Harvard Law Review (4 HLR 193 dt: 15-12-1890). The title of the article was "The Right to Privacy", it was authored by Samuel Warren and Louis Brandeis, both alumni of the Harvard Law School. Brandeis later became a judge of the United States Supreme Court. The article authored by them is considered to be one of the most influential essays in the history of American law and it is the first publication in the United States on the right to privacy. In simple terms, the authors argued that it is a right to be let alone.
But the American Courts had an occasion to consider the scope of this right for the first time in Olmstead v. United States in the year 1928. Olmstead was prosecuted for violating the National Prohibition Act by unlawfully possessing, transporting and selling alcohol. The conversations that Olmstead had with his employees and business associates over a period of time on telephone, were tape recorded by the police before they initiated prosecution. The tape recording of the conversations was facilitated through wire taps attached to the telephone wires in the public streets. Under the fourth amendment to the Constitution, the US citizens were guaranteed a right against unreasonable search and seizures. But the Supreme Court held that the wire taps attached to telephone wires on public streets did not constitute a search under the fourth amendment, as there was no physical entry into the house or office of Olmstead.
But exactly 40 years later, this decision was overruled in Katz v. United States. Charles Katz was a gambler who was suspected of using a public telephone booth to transmit illegal wagers. The FBI recorded his conversations via an electronic eavesdropping device attached to the exterior of a public telephone booth. On the basis of these recordings, he was convicted, but the SC overturned his conviction on the ground that the government's eavesdropping activities violated the right to privacy that he had while using the telephone booth and thus they constituted a search and seizure within the meaning of the 4th amendment. Interestingly, the SC held that the 4th amendment (protection against search and seizure) applied not merely to tangible items but also to oral statements. Justice Stewart reasoned "one who occupies a telephone booth shuts the door behind him and pays the toll that permits him to place a call, is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." The court declared that the 4th amendment protected the people and not places.
Thus what started off as a right to be let alone within the four walls of the house and the right not to have tangible material seized without the authority of law, way back in 1604, got expanded by the 20th century, into a right covering even intangible things such as a conversation between two individuals made in private,.
Yet another dimension of the right to privacy was developed by the United States Circuit Court of Appeals for the Second Circuit in Haelan Laboratories v. Topps Chewing Gum in the year 1953. In this case a producer of baseball cards packaged with bubble gum had exclusive contracts with a large number of major league baseball players, to use their photographs as part of sales promotion techniques. When another company also got a similar contract, Haelan sued them alleging infringement. It was argued in defence that personal rights like privacy cannot be assigned and that the contract that the Plaintiff had with the players was just a waiver of the continued invasion of the right to privacy. Upholding the Plaintiff's claim, the Circuit Court held that a man had a right in the publicity value of his photograph and that as a consequence he had a right to grant the exclusive privilege of publishing his picture. The court held that the right to publicity is a pecuniary assignable right. But till the time this decision was rendered, it was not clearly established that the right of privacy protected individuals from the unauthorised use of their names or images for commercial purposes, even if they were public figures. For instance, naming a cigar after a famous lawyer and politician was held in Atkinson v. John Doherty to be not actionable unless it was libellous. In Hannah Manufacturing Co. v. Hillerich and Bradsby Co. the Fifth circuit declared "fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property". From the position so taken in 1935, we have come to a stage where famous personalities make huge money in endorsing goods and services. The decision in Haelan is hailed as the one that signalled the birth of the right of publicity inhered in an individual.
In Griswold v. Connecticut, a 1965 decision, the right to marital privacy was developed as emanating from penumbras of the fundamental constitutional guarantees and the rights guaranteed under the Bill of Rights, which together created zones of privacy. In this case the directors of a medical centre which gave advice on birth control and the use of contraceptives were prosecuted under a law which prohibited contraception. The US Supreme Court declared the statute unconstitutional, as the same infringed the right to marital privacy. The court said "would we allow the police to search the sacred precincts of marital bedrooms of telltale signs of the use of the contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
In Stanley v. Georgia, the police conducted a search in the residence of Robert Stanley on suspicion that he was engaging in bookmaking. During the search, they found pornographic material and prosecuted him under the relevant law. The US Supreme Court set aside his conviction holding: "the rights that the appellant is asserting in the case before us…the right to read or observe what he pleases…the right to satisfy his intellectual and emotional needs in the privacy of his own home…the right to be free from state enquiry into the contents of his library."
Then came the landmark decision in Roe v. Wade in 1973. A Texas law prohibiting abortion except where it is necessitated upon medical advice for the purpose of saving the life of the mother came under challenge. This case divided the entire country into two camps one pro-life and the other pro-choice. The US Supreme Court held that the due process clause of the 14th amendment to the US Constitution provided a right to privacy that protects a pregnant woman's right to choose whether or not to have an abortion. However the court cautioned that the right is not absolute but must be balanced against government's interest in protecting woman's health and protecting prenatal life. The court evolved a trimester framework declaring that during the first trimester of pregnancy, governments could not prohibit abortions at all and that during the second trimester governments could require reasonable health regulations and that during the third trimester abortions could be prohibited entirely, so long as the laws contained exceptions for cases where the life and health of the mother had to be saved. But Roe v. Wade was partly overruled 19 years later, in Planned parenthood v. Casey. However the constitutional right of a woman to have an abortion was upheld even in Casey.
The European Convention of Human Rights, which entered into force in the year 1953 guarentees the right to respect for private and family life, home and correspondence. Therefore, as part of the European Union, the United Kingdom gave a statutory flavour to this right by incorporating in The U.K. Human Rights Act, 1998, section 6, which places a duty on public authorities not to act incompatibly with certain rights and freedoms drawn from the European Convention on Human Rights. The Charter of Fundamental Rights of the European Union, which entered into force in the year 2009, guarentees (i) the right to respect for a person's physical and mental integrity (ii) right to respect for one's private and family life, home and communications (iii) the right to the protection of one's personal data and (iv) the right to marry and the right to found a family. Therefore, England now has two regimes, one under the European convention an charter and another under the local statute.
Sexual preferences of a person became the subject matter of controversy in Lawrence v. Texas. In this 2003 decision, the US Supreme Court declared a Texas state law criminalising homosexuality as violative of the 14th amendment. Justice Kennedy wrote "the petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime".
The retention by the police, of DNA and other biometric data, even after a person was cleared of criminal charges, was held in R v. The Commissioner of Police of the Metropolis to be violative of Art 8 of the European Convention on Human Rights. Similarly the installation of a GPS device on the car of a person suspected of violation of narcotics laws was held by the US Supreme Court, in 2012, to be violative of the 4th amendment, in United States v. Jones. Justice Sotamayer held that GPS monitoring may alter the relationship between citizen and government in a way that is inimical to democratic society. The opinion of Sotomayer proved to be a path breaker for the reason that until then, it was believed that the information widely shared by an individual with others, was not entitled to protection. The moment information is shared widely, the reasonable expectation of privacy was gone, the courts thought. But the decision in Jones held that privacy included the ability to share information and also to determine who can see this information and how it will be used.
An interesting dimension of the right to privacy, in the context of a ban on in vitro fertilisation arose before the Inter American Court of Human Rights in the case of Artavia Murillo et al. v. Costa Rica. Following a ruling of the Constitutional Chamber of the Costa Rican Supreme Court of Justice, a general prohibition of the practice of in vitro fertilisation was imposed in Costa Rica since 2000. Since the law was a result of a ruling of the Supreme Court, a few individuals petitioned the Inter American Commission. The Commission made a number of recommendations to the state, in terms of the American convention. Since the state failed to act, the Inter American Commission of Human Rights submitted a brief to the jurisdiction of the Inter American Court. The commission argued that the decision to have biological children belongs to the most intimate sphere of private and family life and that the way in which couples arrive at this decision is part of a person's autonomy and identity both as an individual and as a partner. Living together and the possibility of procreating is part of the right to found a family.
In Riley v. California, a 2014 decision, the United States Supreme Court held that the evidence culled out from the digital contents of the mobile phone of an individual, was not admissible, if it was obtained through a warrant-less search. Justice Roberts wrote "modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life'. He explained that modern phones expose to the Government, far more than the most exhaustive search of a house. A phone not only contains in digital form many sensitive records previously found in the home, but it also contains a broad array of private information never found in a home in any form.
Thus what was originally thought of as a mere right to be let alone within the 4 walls of his house, the right to privacy blossomed into a bouquet of flowers of multi colors with different fragrances and beautiful shapes. But the fourth industrial revolution that ushered in the digital age, has attacked and wounded this right to a great extent, which we shall now consider in the third part of this lecture.
IMPACT OF SCIENCE AND TECHNOLOGY
Sun Microsystems, an American company, which created the Java programming language and the Solaris operating system, had a CEO by name Scott Mc Nealy. He declared some 20 years ago (in 2000 ) that "Privacy is dead, deal with it".
Taking clue from what he said, Brock N.Meeks, an award winning investigative journalist and MSNBC.com's Chief Correspondent, wrote an article titled "Is Privacy possible in digital age". It was published on 8th December 2000 in MSNBC as follows:
"Privacy in the digital age may not be as dead and buried as McNealy believes, but it's certainly on life support. Our unbridled love affair with all things technological, has an evil twin: a seemingly unstoppable encroachment on our personal privacy. The same streaming video technology that allows grandma and grandpa to chat with their grandchildren is being used to spy on employees in the workplace or capture unsuspecting lovers stealing a kiss"
The magnitude of the issue raised by Brock Meeks in the aforementioned article, was realised only in the year 2013. On June 6, 2013, the British newspaper the Guardian, published a story titled "NSA Prism Programme taps into user data of Apple, Google and others". After 3 days, the Guardian revealed that the source of their information was Edward Snowden, a 29 year old employee of a company by name Booz Allen Hamilton. This company had a contract with NSA and they had hired Snowden to work at the Threat Operation Center of NSA in Hawaii. While working there Snowden downloaded more than a million highly classified documents, then flew to Hong Kong on May 20, 2013 and contacted journalists from The Guardian and Washington Post and began to share NSA's secrets with the world. On October 30, 2013, the Washington Post published a story under the caption "NSA infiltrates Links to Yahoo, Google Data Centers worldwide". This shook the world of netizens. PRISM was NSA's Electronic Surveillance program and it is an acronym for Planning Tool for Resource Integration, Synchronization, and Management. Snowden's revelations showed that the 2 most powerful Governments of the world were accessing phone records and user data of millions of people around the globe, which included leaders of other countries. What was interesting was that even the technology giants such as Microsoft, Google et al, were not aware of this large scale snooping by the Governments as the surreptitious tapping was through the undersea fiber optic cables. Therefore, what was clear was that when we are busy watching Big Boss, the Big brother was watching us.
But when we talk of snooping by Governments, we must also keep in mind that the moment we enter the world of internet, we create huge footprints, we leave a trail, which enable a lot of other people to know exactly where you are at a particulat point of time, what you are doing, what your likes and dislikes and what your habits are.
Today google knows more about you than your spouse. Google knows that I was born in vishaka star, vrischika rasi. Whenever a transit of jupiter, saturn or rahu takes place, my mail box is bombarded with a lot of information, completely unsolicited, about the effect of such transit on the rasi in which I was born. How do they know this ?
Third parties who now know all about you, because of the way you use the net, fall under 4 categories, namely (i) the Governments and the law enforcement agencies (ii) the service providers and (iii) the information providers and (iv) the hackers. Snowden exposed the first category namely the Governments. The service providers, who fall under the second category exploit you by virtually selling you as a product to those who want to sell products to you. For instance, if you access google for the first time to find out if there is a convenient flight for you to go to Chennai on a particular day, you will thereafter start receiving a lot of advertisements, in your mail box, from several online portals which offer services under the travel category. How do they know your IP address. They come to know it through the internet search engine. They pass on this information for a price. Your wife may not be aware of your travel plans, but google and online travel agency/management portals such as makemytrip, cleartrip, goibibo etc., will know about your trip. The only good thing about them is that they don't tell your wife, because they purportedly respect your privacy. In other words, you are actually sold by the search engine without your knowledge and consent.
The third category of people who know all about you, are those who provide free access to their websites. For instance you search for a place of interest and go to the website of the institution that manages it. You will find a message popping up asking your consent for the use of what are called cookies. Most people click yes thinking that cookies are nothing but biscuits. But a cookie is a small amount of data generated by a website and saved by your web browser. Its purpose is to remember information about you, similar to a preference file created by a software application. The portal then stores information about you for future use for marketing.
The fourth category of persons who thieve specific information about you for the purpose of blackmailing or for draining money out of your account, are the hackers. The Cyber crime branch of Hyderabad police had a very curious case about 3 years ago. A college student staying in a hostel approached the police with a complaint that an unknown person was blackmailing her with the threat of posting her nude photographs online. She was sure that she never took any selfie of herself after undressing and that she never even shared any photograph of hers with anyone. She did not have a boy friend whom the police could suspect. Therefore, the police did not get any clue except that the victim had made online payment of the first instalment of money demanded by the blackmailer. When the police traced the bank account through which money was withdrawn, they found out that the bank did not follow the KYC norms while allowing the account to be opened and hence the blackmailer had opened the account in a fictitious name and withdrawn the money. Therefore, the only way out for the police was to get the IP address of the person who sent the email demanding the ransom. There are a series of offcial steps to be taken before the service providers can be compelled to part with the IP address. The police took these steps and got the IP address of the person who was blackmailing the victim. It was an youngster living in Cuttack. When the police caught him and seized his laptop, they found his modus operandi to be simple. He uploaded popular songs, injected a particular virus into them and made them available for downloading, for anyone interested. The victim girl had downloaded one of those songs and the virus got into her system. The virus was capable of switching on the camera of a system automatically if the system was on. One day, the victim girl, who was working in her system, went to take bath without shutting down the system. The virus had switched on the camera. Since the victim was not aware of this, she came out of the washroom and changed her dress. The camera captured her images and the virus send them to the perpetrator, who then made use of them to blackmail the victim. The victim and the perpetrator did not even know each other either before, or after the commission of the crime. Therefore, cybercriminals constitute the fourth category of persons, who invade your right to privacy, in the digital age.
Thus, science and technology has completely changed the dimensions of human rights, eroding some of them and at the same time, creating a new genre of rights. This can be seen from an interesting case, which came up before an English court. It concerns the right to self-identity, a facet of the right to privacy which is concomitant to the right to respect for private and family life. In R (J.K) Versus Registrar General, the person who came to Court was born a male. He married woman in 2007. They had biological child in the year 2012 and the birth certificate issued by the Registrar General for England & Wales recorded the name of the biological parents as father and mother respectively.
After the birth of the first child, the biological father developed a desire to become a woman. A course of feminizing harmone treatment was undertaken which required two years of living as a female before a referral was made for gender reassignment surgery. In the meantime the wife became pregnant a second time. Therefore, the claimant sent a request to the Registrar of births requested him to amend the birth certificate of the first child so as to indicate his female name and to show her identity as parent rather than as father. The Registrar General refused, forcing the father turned female to approach the Court. The right sought to be enforced by him was the right to respect for private and family life guaranteed under Article 8 of ECHR. By the time this case came up, the law was already well-settled that the protection under Article 8 was available to people belonging to LGBT community. But the Queen's Bench division of the Administrative Court, UK rejected the claim on the ground that the enforcement of such a right on behalf of the claimant would interfere with the child's rights to have its original identity preserved. Though the Court held that there can be no State interference with the sexual orientation of the claimant, the Court also held that the alteration of the entries made in the birth certificate would provoke disputes that would be contrary to the public interest.
Therefore, the way we look at ourselves and the way technology has changed our world view, has had a huge impact on the right to privacy. These are the new age challenges to the right to privacy.