Are the bells tolling for privacy?

The fate of our many liberties in the digital space hangs in balance.

Earlier this June, I paid a visit to my uncle in Kanpur. It was a hot summer day, the kind that makes you crave ice creams and air conditioning. As I crashed on my uncle’s sofa, I asked for his phone to connect to the speaker, and a strange series of minor events took place. Before handing his phone to me, my uncle turned off his mobile data and closed all apps. As long as I had his phone in my hand, he seemed a little uncomfortable.

It is behaviour that I can understand. Our gadgets have become valuable windows into our lives. And while I do not have a lot to hide, every time someone asks for my phone, I become a little paranoid about what they might find in there. For a value that is so universally treasured, privacy is not very well defined. But every time someone mentions that if you don’t have anything illegal to hide, you should not worry about surveillance, I like to ask them to hand their phone over to me and trust me to browse their conversations, photo library, and search history.

The debate on privacy has been raging on for as long as I can recall. And it is about to get more intense. Earlier this month, WhatsApp sued the Union Government to stop the new intermediary guidelines that would require platforms to make messages ‘traceable’. Making messages traceable to the originator would destroy the anonymity offered by end-to-end encryption. This technology ensures that no one (apart from the sender or the receiver) can view messages exchanged in transit.

The new rules can significantly undermine user privacy and will be challenged in the Delhi High Court. Multiple experts will attest whether or not the rules are legal, necessary, or proportional.

As established by the Supreme Court, the Right to Privacy is a fundamental right guaranteed by the Constitution. As a right, it is subject to reasonable restrictions. To judge whether an infringement on privacy is justified, the act:

Must be sanctioned by law.

Must be necessary in a democratic society for a legitimate aim.

Must be proportionate to the need of the interference.

Must come with procedural guarantees against abuse of power.

The stringency of these guidelines can vary depending on how they are applied. The higher the intensity of review, the heavier is the justificatory burden on the State to satisfy the court that a rights-infringing measure is proportional.

So, for example, in the test for proper purpose, at a low-level of scrutiny, the court checks whether the measure is pursuing a legitimate aim. At a higher level of scrutiny, the court asks whether the law serves a legitimate aim and whether the aim is of sufficient importance to warrant overriding a fundamental right.

In more layman’s terms, low level of scrutiny is like asking whether I want my uncle’s phone to connect to the speaker. At a higher level of scrutiny, it is like asking whether or not connecting to the speaker is a good enough aim for me to have control over my uncle’s phone.

The answer to whether or not end-to-end encryption will survive this challenge lies not just in the fine print, but also in how it will be applied. The future of privacy in India is at a crossroads. How things develop here will decide the fate of messaging, the internet, and our liberties in the digital space.

The writer is a policy analyst working on emerging technologies. He tweets @thesethist

Tech-Tonic is a monthly look-in at all the happenings around the digital world, both big and small.