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By
Rachika Agrawal
Source:
This article appeared in the February 2004 issue
of Lawyers Collective
Half
a century has passed since India framed its Constitution
and still the Indian Constitution still does not
recognise privacy as an inherent fundamental right.
The concept of privacy as a fundamental right
first evolved in the sixties in the case of Kharak
Singh v State of Uttar Pradesh, (1964) 1 SCR 332.
The Court held that the Right to Privacy is an
integral part of the Right to Life. But with no
clear cut laws, it remains in the grey area.
Thus,
under Article 21 of the Constitution of India,
an encroachment upon one's privacy can be only
shielded if the transgressor is the state and
not a private entity. If the offender is a private
individual then there is no effective remedy except
in tort where one can claim damages for intruding
in his privacy and no more. Tort itself falls
in the grey area.
An
example of this being, when Maneka Gandhi moved
the Delhi High Court against Khushwant Singh's
autobiography Truth, love and a little malice
claiming it had violated her privacy. The
judgment went in favor of Khushwant Singh. The
two judge bench observed that the right to privacy
enshrined in article 21 could be invoked only
against the state action and not against private
entities.
Another
landmark judgment which addressed the issue of
privacy was the telephone tapping case— People's
Union for Civil Liberties v Union of India, (1997)
1 SCC 301. In this case the Supreme Court observed,
"The Right to Privacy by itself, has not
been identified under the Constitution. As a concept
it may be too wide and moralistic to define it
judicially. Whether Right to Privacy can
be claimed or has been infringed in a given case
would depend on the facts of the said case…."
Privacy
vis-a-vis technology
The problem gets serious when one is virtually
defenseless in cyberspace. The Information Technology
Act, 2000 (ITA) has recognized various crimes
like cyber- stalking, cyber snooping, spam mail
and such others. An individual can do very little
about these offences. But even the ITA touches
the issue of privacy only under Section 72 which
talks about breach of confidentiality and privacy.
Thus, if a Government official passes on electronic
information or data that he has received about
an individual in his official capacity, he can
be punished.
With
the advancement of technology, with every passing
moment, even the new ITA seems obsolete. In a
recent article by Satyantan Chakrawarty(1) on
the need for use of new hi-tech devices for the
purpose of investigating, the author stated that
sometimes the officials transgress their authority
and enter the private domain of the people thus
infringing their privacy. The Research and Analysis
Wing (RAW) had access to bugging, surveillance
and counter surveillance equipment. A variety
of devices can be used by an investigating agency,
like, e-logger(2), GSM monitor(3), laser ear(4),
e-mail interceptor(5), spy cavities(6).
However,
the increased use of these devices has definitely
increased the vulnerability of a person, and the
only check on this is the controller appointed
by the Government of India under the ITA. If the
controller is convinced himself that the interception
is required then he may grant the permission for
the same. The ITA also provides for a list of
reasons, which are not exhaustive, under which
the controller can grant such permission. The
reasons in the list are, in the interest of maintaining
the sovereignty and integrity of India, security
of the state, in the interest of pursuing friendly
relations with foreign states, public order and
preventing a cognizable offence.
The
fact that cannot be ignored here is that while
in a case of privacy infringement by a state or
an instrumentality of the state, as discussed
above, an infringement action can be brought under
Article 21 of the Constitution(7), there is no
remedy available if such an infringement is committed
at the hands of a private individual. For such
an infringement no expensive devices and equipments
are required.
Cellular
phones
As digital photo components have plummeted in
price and their size has shrunk, the privacy implications
of cameras on phones have raised concerns beyond
the fears of stalked celebrities and cheating
spouses.
Even
the makers of camera phones do not seem keen on
the technology when it is turned on them. Samsung
Corporation and LG Electronics Inc, the South
Korean handset makers, caused a chuckle in the
industry when they banned the use of their own
phones (with camera) in their own facilities this
year.
Computers
As regards the friendly computers, our very own
PCs can infringe our privacy by sending out a
a lot of information about us to third parties.
A software programme by the name of Spybot.gen
downloaded on a computer's hard drive has the
power to read MS Word documents and send contents
back to its originator, or to an accomplice.(8)
Also,
hacking and spoofing are words not unknown to
us. Section 66 of the ITA has defined hacking
and the impact of such hacking can be best understood
when a website is defaced. Section 66(1) states,
"Whoever with the intent to cause or knowing
that he is likely to cause wrongful loss or damage
to the public or any person destroys or deletes
or alters any information residing in a computer
resource or diminishes its value or utility or
affects it injuriously by any means, commits hacking."
Thus, hacking can be committed only if the person
has the intent or knowledge of committing the
same.
Though
steps have been taken by the Ministry of Information
and Broadcasting to combat this crime a lot has
yet to be done. Setting up a cyber crime cell
is not the only step that we need to take. More
importantly, we need to educate the investigators
in this specialised field. There should be many
training programmes for the police and investigating
officers on cyber crimes, as awareness levels
of such executive functionaries are often quite
poor.
Further,
reporting the matter to the police means inviting
negative media publicity. It also leads to a media
trial about the security capabilities of the said
company or its network, often even without giving
the company an opportunity to express its side
of the story. The hassles of going to court and
producing evidence are other strong deterrents.
Unfortunately, this scenario prevails not only
in India but also worldwide.
However, as a result, cyber crimes like hacking
go unreported. The government basks under a false
sense of security that their companies and networks
are free from cyber crime. Very few cases are
reported to the police and consequently there
are very few convictions.(9) Either one should
have all the latest state-of-the-art security
systems in place or you are totally insecure.
There is a need to standardise the cyber laws
as only 12 countries, including India, have authenticated
digital signatures. Further the countries without
cyber legislation needs to be convinced to assist
in checking IT crimes.
Conclusion
Just as the human mind is ingenious enough to
devise new ways for perpetuating crime, similarly,
human ingenuity needs to be channelised into developing
effective legal and regulatory mechanisms to control
and prevent cyber crimes.
Thus,
we see that the more technically equipped we become,
the easier it has become to peep into the bedroom
of others. Though an individual has protection
from state intervention but what protection can
an individual claim against a person who is infringing
one's right to privacy sitting miles away, probably
in some other country. These are some questions
which have not yet been addressed by any of the
statutes and require a lot of thinking to be done
by the legislators of the country as has already
been done by other countries.
When
George Orwell(9) floated the idea of 'the thought
police' back in 1930s, no one must have ever perceived
this to become true with time. Today, the more
tech-savvy you get, the more vulnerable you get
to the infringement of your privacy. There are
lots of new devices in the market facilitating
communication but using them means trading off
one's privacy. 'They know where you are.' The
cellphones today provide a facility specially
to the parents of youngsters to track down the
whereabouts of their children. But tomorrow they
could even haul you up for 'unwelcome thoughts'.
Welcome to the then imaginary, but now real Orwellian
world. Big brother is watching you…. almost
always…
end
notes:
(1)
Satyantan Chakravarty, Technology Spying: Big
Brother is Listening…, India Today,
Nov17, 2003
(2) E- Logger is a computer worm that is sent
as an e- greeting to a target. It will pick up
passwords, read all files and capture all keystrokes
of targeted computer.
(3) GSM Monitor automatically tracks targeted
cellular phones round- the - clock. Sophisticated
GSM gateways track underworld callers whose voice
samples are fed in systems.
(4) Laser Ear picks up vibrations created by speech
and convert them into electric signals to reproduce
conversations by hitting infra red rays on the
window of a room.
(5) E- mail interceptor: a Special software allows
intelligence agencies to capture e- mails and
voice mails using about 2,00000 key words at India's
Internet and telephone gateways. This is passive
tracking with no human involvement.
(6) Spy Cavities are hidden cone shaped metal
cavities in walls which pick up sounds which can
be recreated.
(7) Provides for a fundamental right to life and
liberty i.e. the state shall not deprive an individual
of his life and liberty except according to law.
(8) Bhopal Plus, After Big Brother, Spybot
is Watching You, Nov. 14, 2003, Vol. II, Issue
No. 30
(9) George Orwell's book "1984"
in which he gave the concept of hauling up people
for thoughts against the Big Brother by the Thought
Police.
Rachika
Agarwal is a fourth year student at the National
Law Institute University, Bhopal.
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