Privacy Protection In The Information Era

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBPrivacy Protection in the Information Era has become a major challenge for those who love their Privacy. Governments around the world are indulging in illegal and unauthorised e-surveillance and eavesdropping that the Constitution of their respective Country is not permitting.

There are two theories that are detrimental to Civil Liberties Protection in Cyberspace. The first one presumes that if a person has done nothing wrong, he needs not to be afraid of the illegal and unauthorised e-surveillance and eavesdropping of his Government. The second one is even more sinister in the sense that it presumes that National Security is “Above” Civil Liberties in “All Cases”, without even defining what constitutes National Security. Both these theories are not only “Faulty” but they are also “Inconsistent” with National Constitutions and Human Rights Protection regime of  United Nations Declaration on Human Rights.

There is no escape from this situation except that Human Rights Protection in Cyberspace must be Internationally Recognised. The United Nations (UN) has the “Legal Capacity” to do so but it has failed to protect this Human Right in Cyberspace so far. The only solace can be found in the form of the text approved by the United Nations regarding Right to Privacy in the Digital Age. But that is too little and too late and a more “Aggressive Role” must be played by UN in this regard.

A good initiative in this regard has been taken by the Hague Institute for Global Justice. The Hague Institute has constituted a High Level Commission known as the Commission on Global Security, Justice and Governance (PDF). The official website of the Commission states that Humanity is facing unique and growing range of challenges like political violence, environmental decay, cyber insecurity and cross-border economic shocks. These issues have global security and justice implications that need urgent attention but far exceed state and global institutional capacities.

To overcome this capacity deficit, The Hague Institute for Global Justice and the Stimson Center have convened a Commission on Global Security, Justice, and Governance. The Commission also brings together a select group of eminent statespersons and public intellectuals to draft and recommend reforms in this regard that would be considered during the 70th Anniversary Summit of the United Nations in September 2015.

This can be a good opportunity to consider and debate about Civil Liberties Protection in Cyberspace by various Nations. There is an urgent need to bring Transparency, Accountability and Parliamentary Oversight of the Illegal and Unconstitutional E-Surveillance activities of various Nations, including India.  The United Nations and its Affiliates/Agencies can play a pro active role in this regard.

Unfortunately, this is a very time consuming and sensitive issue and an “International Solution” may not come early and as expected. Self Defence and Privacy Protection must be ensured by Individuals and Companies at their respective levels. Privacy Software can provide a good protection against illegal and unconstitutional e-surveillance activities.  However, a Privacy Software cannot provide 100% protection and a Nation or its Agencies with sufficient resources can “Compromise” such Privacy Software. Nevertheless, it is a “Good Cyber Hygiene Practice” to use Privacy Software while surfing Internet, or making Confidential communications or sending Sensitive Data or Information.  Reset the Net and Prism Break are good starting points in this regard.

As far India is concerned, it has to work “Really Hard” in this regard. Indian Government’s present mentality is more on the side of Civil Liberties Violations than their Preservation and Protection. Indian Government must not only ensure Privacy Rights to Indians but Indian Government must “Reconcile” Civil Liberties and National Security requirements as well. E-Surveillance Projects of India also need Parliamentary Oversight and Judicial Scrutiny. The Intelligence Agencies of India need Parliamentary Oversight on a priority basis. Supreme Court of India must also immediately declare Aadhaar Project as Unconstitutional. The Encryption Laws in India are not at all satisfactory and they must be properly formulated.

Digital India Project of India and Internet of Things (IoT) (PDF) Initiatives have also been launched by Indian Government. These Projects would facilitate E-Delivery of Public Services in India in the long run. However, Indian Government must keep in mind the requirements of Civil Liberties Protection, Cyber Security, etc that would obviously arise in the near future.