Privacy – A Primer

“YOU HAVE ZERO PRIVACY ANYWAY. GET OVER IT.” 1

Scott McNealy's impulsive remark mirrors the perceptions of many on both sides of the privacy fence.2 Privacy is one of the most contentious legal issues arising in real as well as cyberspace. Just as in the actual world, privacy is of extreme importance not only to individuals but also to corporations and Governments. Presently privacy of the individual has acquired critical relevance. Privacy is a basic need, essential to the development and maintenance of both; a free society and of a mature and stable individual personality.3

Old is Gold?

The US judge Thomas Cooley’s succinct characterization of “Privacy” in 1888 as “the right to be let alone” is not as simple as it sounds. Much water has flown since Warren & Brandeis noted in an 1890 article “Right to Privacy” echoing Thomas Cooley.4 In a recent case that right seems to have expanded a bit to ‘The Right to be Forgotten’ in May 2014, the European Court of Justice ruled against Google in a case brought by a Spanish man, Mario Costeja González, who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid.5

Privacy as a Right

Of all human rights in the international catalogue, privacy is perhaps the most difficult to circumscribe and define. In its narrowest sense, some might think of it as no more than a luxury for the better-off in developed countries. At its widest, it can connote the last opportunity for the poorest and weakest human being to defend themselves against the ever-encroaching pressures of the power groups in their societies which are forever pushing inwards the boundaries within which those unique individuals can still take final refuge, and ultimately ‘be themselves’.6

The technological developments over the years and the resultant economic boom and the security concerns has made deep inroads into this area of human existence that it is anathema to speak about privacy - as it is perceived to be hiding something. This is appropriately reflected in the comment of the CEO of DoubleClick, an online marketing giant, more pithily, “Personal information is the oil of the twenty-first century.”7

The modern privacy benchmark at an international level can be found in the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy.8 Article 12 states: “No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks”, sums up the international spirit of protection of privacy of a human being.

The U.S. courts recognize a general constitutional right to speak anonymously.9 In McIntyre v. Ohio Elections Commission,10 the Supreme Court identified and supported anonymity as an integral element of freedom of speech under the First Amendment. However, true anonymity has serious implications for the cyber community due to its vulnerability to abuse.11

Internet and the Deception of Freedom

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather….. We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before,” declared spirited Barlow.12

The Internet “gives many individuals a false sense of privacy”. This behind-the-scenes monitoring is arguably more dangerous than even the feared telescreen of George Orwell’s dystopian Nineteen Eighty-Four; at least there the subjects knew of their surveillance.13 (“You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”)14

The Internet offers unique temptations both for collectors of personal information and for individuals who are asked to reveal it. Bubblews, a new social networking platform, is attempting to build a self-sustaining ecosystem in which users who create engaging posts are paid for their work. It prides itself on being different from Facebook and Twitter. Many consumers are passionate about their own privacy but will trade it for quite small monetary inducements. But freeware takes away your freedom! Mostly!!

India’s Effort to Address Privacy Protection

India does not currently have a general data protection statute. Nevertheless, the judiciary has derived a “right of privacy” from the rights available under Articles 19(1) (a) (the fundamental right to freedom of speech and expression) and 21 (the right to life and personal liberty) of the Constitution of India. The Government can deprive a citizen of his constitutional right of freedom of speech and expression for any of the reasons set out in Article 19(2). By natural extension of this principle, the Supreme Court, in Gobind v. State of Madhya Pradesh15, held that a violation of personal privacy is possible with the sanction of law.

A group of officers was constituted to develop a conceptual framework that could serve the country’s balance of interests and concern on privacy, data protection and security and which also responds domain legislation on the subject. They came out with a definition of privacy that will give insight into our line of thinking.16

“Privacy for the purpose of this approach paper could particularly be defined as the expectation that confidential personal information disclosed by any individual to Government or non-Government entity should not be disclosed to third parties without consent of the person and sufficient safeguards need to be adopted while processing and storing such information. In essence, disclosure of data which can be used to identify a physical person without following the due procedure could be construed as breach of privacy.”

Data Protection and the Right to Information

There are some concerns about whether the rights granted by privacy legislation would run contrary to the rights available under the Right to Information Act which provides citizens the right to access public information. Data protection legislations exist around the world even in countries that have enacted detailed public information access legislations. These two types of laws have been proven to be capable of existing side by side.17

Future Scenario – or Past Revisited

Nineteen Eighty-Four may be three decades late, but it appears to be around the corner. The only question is whether the U.S. government or Google will be Big Brother -- and which would be worse. The NSA wants all our data, but it doesn't seem capable of crunching it. Google is more competent, but that could make it scarier, as it appears to be taking us toward a Terminator future.18

We will continue with our discussions on privacy covering 1) Comparative study of privacy protection in different countries 2) Technology 3) Intellectual Property Rights, 4) E-Commerce, & 5) Literature & Media in the coming months … till then

Venkatesh Viswanath

Dr. S. Ravichandran
Academic Initiative
Surana and Surana International Attorneys


References:

1. Sun on Privacy: 'Get Over It' Wired News (Jan 26, 1999) < http://www.wired.com/news/politics/story/17538.html> McNealy is the Chairman and CEO of Sun Microsystems, which is both the developer of the Java programming language used to implement applets in web browsers and a member of the Online Privacy Alliance

2. Website Privacy Policies In Principle And In Practice, Scott Killingsworth, J.D., Yale University, 1975; B.A., Yale University, 1972

3. Report of the Younger Committee on Privacy (1972) Cmnd. 5012

4. ‘The Right To Privacy’, Harvard Law Review, Vol. IV December 15, 1890 No. 5,

5. http://en.wikipedia.org/wiki/Right_to_be_forgotten#cite_note-17 (Google v Gonzalez)

6. Privacy and Human Rights, An International and Comparative Study, with Special Reference to Developments in Information Technology - James Michael, Dartmouth, UNESCO Publishing, Oct 27, 1995 Pg. 1

7. Regulating Cyberspace: The Policies and Technologies of Control - Richard A Spinello, Quorum Books, Westport, Connecticut. London pg. 63

8. Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of December 10, 1948 available at http://www.un.org/Overview/rights.html

9. See ACLU v. Miller, 977 F. Supp. 1228, 1232 (N.D. Ga. 1997).

10. 514 U.S. 334 (1995).

11. Who Owns Your Information: Anne Wells Branscomb argues that individuals would have different objectives for wanting to remain anonymous in cyberspace. While anonymity is game and fun for some computer users, it provides a refuge for antisocial behavior and an escape route for assumption of responsibility for computer misuse.

12. ‘A Declaration of the Independence of Cyberspace’ by John Perry Barlow barlow@eff.org, Davos, Switzerland, February 8, 1996

13. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1092 (2002)

14. Read generally George Orwell’s, Nineteen Eighty Four, a Novel first published in 1959.

15. AIR 1975 SC 1378

16. Approach Paper For A Legislation On Privacy

17. ibid

18. Was 2013 the Run-Up to Nineteen Eighty-Four?- By Rob Enderle, TechNewsWorld 12/23/2013