This article originally appeared on VICE India.
Over the last couple of months, coronavirus has transformed many aspects of most of our lives—from what ‘outdoor’ and ‘freedom’ mean to us to the impact on our mental health when we can’t physically touch the people we love, to the kind of manic behaviours we are capable of when facing shortages. But if we zoom out a little, we see that one of the biggest changes it’s making around the world is how we look at surveillance and privacy—with the COVID-19 outbreak probably altering their definitions and boundaries forever. “The world has never seen this kind of a situation before,” Nikhil Pahwa, New Delhi-based digital rights activist and founder of digital news portal MediaNama, told VICE. “From a civil rights perspective, the challenge is of balancing the health of many versus the privacy of a few.”
You could see that when governments started expanding the possibilities of technology in their countries. Look at China, who is tracking people through their smartphones; or Israel, who used its counter-terrorism agency to monitor people; or even Singapore, who is using a contact-tracing smartphone app to track infected people.
India, too, is taking matters into its own hands. In Rajasthan, the government made public the personal details of those under home-quarantine. In Karnataka, they mandated all those quarantined to send selfies every hour throughout the day. Cities like Delhi had government officials plastering posters on home-quarantined patients’ houses that revealed their names and those of their family members. Tamil Nadu is using a facial recognition app to track quarantined people. And then, last week, the Ministry of Electronics and Information Technology launched a contact tracing mobile app called Aarogya Setu, which live-tracks the location of the users.
These measures are, of course, passed off as legitimate in the face of a crisis. The World Health Organisation (WHO) calls this “public health surveillance”, which is necessary for governments to warn and prepare for possible public health emergencies. So in Delhi, for instance, when the posters with personal details started cropping up in front of quarantined people’s homes, Dr Nimmi Rastogi—the coordinator at dialogue and development commission (an advisory body in Delhi government)—justified the move by saying that it is in the larger interest of the society. “At this time, I believe this step is fine because we have to prevent the spread and have to make people wary of coming in contact with those suspected to be carriers of coronavirus,” she told the local media.
But privacy and personal data are not black-and-white, especially in India.
And even though the emergency is on a scale never seen before, activists and advocates are becoming increasingly wary of the dangers this Orwellian state of affairs implies. “It is a compelling justification for sacrificing an individual's right to privacy. The choice between public health and privacy has an obvious answer,” write lawyers Nikhil Pratap and Kashish Aneja in a column on Bar and Bench . “But the either-or choice between privacy and public health is an oversimplification. The right to privacy must not be completely sacrificed in favour of public health considerations.”
Last week in an interview with Thomson Reuters Foundation, Joseph Cannataci, the UN special rapporteur on the right to privacy, warned that this surveillance could “cause lasting damage to the right to privacy” across the world. “Dictatorships and authoritarian societies often start in the face of a threat,” he said. “That is why it is important to be vigilant today and not give away all our freedoms.”
So how scary is the situation in India? Pahwa, for one, observed the introduction of “a new term in our vocabulary”—contact tracing—and how it’s a trigger point for surveillance that “can be extremely invasive to people’s privacy.” In fact, activists are contesting whether contact tracing is even effective in the first place. Citing the example of the Aarogya Setu app, Pahwa says, “This app will only work for contact tracing if many people have the app installed, have the app running, with Bluetooth and location-enabled. In a country where many people don't have smartphones, its effectiveness will be limited.”
Pahwa also adds that there is a growing sense among tech experts that contact tracing could persist beyond the COVID-19 pandemic. “That is worrying because tracking people all the time is a disproportionate act of violation of privacy. Governments will also have granular access to any user’s location trails, which is essentially surveillance,” he says. This deluge of surveillance has also come at a time when the Indian government is already pushing for technology and surveillance—especially facial recognition—to establish a nationwide record and access to the personal data of its citizens. It’s been flagged by Indian privacy advocates, especially keeping in mind how the state has used it to clamp down on dissenters in the last few months. In the US, facial recognition use by the police forces was banned last year in San Francisco keeping in mind its potential for abuse and an oppressive surveillance state.
Another side-effect of increased surveillance is loss of autonomy, or what many look at as people being reduced to objects.
It’s like when you think you are making a decision, but you’re, in fact, not. You don’t really own your decisions. “I see this happening right now, too,” says Apar Gupta, the Executive Director at Internet Freedom Foundation (IFF). “Look at the selfie app in Karnataka, for instance. It needs people to proactively geo-tag their selfies and upload every hour, failing which could lead to criminal prosecution. Not only does it set a sleep schedule for them (the timing for selfies starts at 7 a.m. and ends at 10 p.m.), but it also impacts people in different ways according to their age groups or mental or physical health conditions. The criminal prosecution, at the same time, demonstrates that privacy and surveillance are not isolated to other forms of mental and physical harms.”
But the arduous work to challenge the escalating surveillance has started. Last week, the IFF, which has been one of the key groups spearheading advocacy around privacy and data personal protection in India for many years, signed a joint letter with Software Freedom Law Centre (SFLC) in Delhi, another group fighting for digital freedom in the country. These activists urged the government to use “strict legal measures to regulate and supervise” personal data of Indians during the ongoing COVID-19 pandemic.
Sidharth Deb, the policy and parliamentary counsel at IFF, tells VICE how this moment is crucial for India to create a valid legal framework to ensure that the government usage of all this data is done in a manner that is respectful of privacy as well. “This is necessary for a democracy,” he says. “Surveillance must have a legitimate aim and purpose. These restrictions must be proportionate in nature, and the measures should be within an institutional framework so that it limits the scope for abuse. For a measure to be proportionate, it has to be the least invasive of the alternatives considered. This requires crucial principles of strict purpose and data minimisation. Without them, data collection and use can happen in excess or opaque manner, which will make it difficult to audit these activities.” Deb also maintains that while collecting such data, the government must give assurances that the data is stored on a separate server, while also ensuring that it all “will be destroyed once its original purpose has elapsed."
As experts and researchers lay the groundwork to contain coronavirus surveillance, they are also cognisant of the negative social impact on the ground—stigma, discrimination and ostracisation—which are proving to be counterproductive to the efforts to contain the spread of coronavirus in India. In Pune, for instance, a list of coronavirus suspects went viral on social media, leading to mass ostracisation. In Himachal Pradesh, a man died by suicide after facing social boycott for being suspected to have the coronavirus even though he tested negative.
Instances like these made the Jan Swasthya Abhiyan, a local group from Rajasthan that fights for public health rights, call out such surveillance measures and point out that this “might breed wider stigma and deter people from reporting their illnesses and revealing their travel/exposure history for the fear of social intimidation.” "This, in turn, would make it even harder for the government to trace cases and contain the virus. Such measures can cause potential harm and distress to patients and their families in both short and long term, even if they are certified to be infection-free,” the group said in a statement.
As the coronavirus pandemic is expected to take at least a few years to go away (and not entirely, at that), experts wonder what it means for the future of this surveillance. “There are researchers in the US who are exploring decentralised and privacy-respecting apps for contact tracing,” says Deb. “The MIT (Massachusetts Institute of Technology), for example, has developed an app called ‘Private Kit: Safe Paths’, which provides a template for an open-source, privacy-respecting, and secure framework, while also giving agency to the individuals to opt out. It is hoped that with greater trust that looks out for the interests for all parties, participants in app-based contact tracing ecosystems will be more forthcoming with the authorities, and can support swift detection and containment of the disease with limited intrusions into people's basic fundamental rights.”
Pahwa, at the same time, feels that the current measures must remain in the ambit of emergency situations. “Emergency measures need to be treated as emergency measures, and even there you need to choose the least invasive measures,” he says. “If the virus dissipates, these measures should not persist.”
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