Rights in the age of big data 

Rights in the age of big data 

Context

Data protection legislation should be about protecting people, not innovation

Many concerns

Concerns are being voiced this month in several Indian cities by members of the public, civil society groups, academic experts and technologists, think tanks, industry associations and technology companies to a committee headed by Justice B.N. Srikrishna, a former Supreme Court judge, tasked with making recommendations and drafting a data protection law.

White paper by BN SriKrishna Committee

This committee holds immense promise but a white paper it published, the primary public document on the basis of which public comment is solicited, gives reason for concern.

Balance between privacy and innovation

Subsequent paragraphs provide further explanation: “Since technologies such as Big Data, the Internet of Things, and Artificial Intelligence are here to stay and hold out the promise of welfare and innovation, India will have to develop a data protection law… to ensure a balance between innovation and privacy.” This framing of a trade-off between the demands of technological innovation and individual rights is a terrible bargain for our future

Fundamental rights and Innovation as equal?

It presumes to hold both fundamental rights and innovation as somewhat equal, or at the very least as competing values.

Contrary

This appears contrary to the context and the mandate of the committee, as well as principles of individual liberty

The right to privacy

The formation of the Justice Srikrishna Committee on data protection was cited by government lawyers in the midst of Supreme Court hearings on the fundamental right to privacy in the Puttaswamy case.

Inescapable conclusion

A joint reading of all the six separate opinions which flow into the heart of the judgment lead to a singular inescapable conclusion

• The privacy protections that limit state intrusion and data protection laws should shield individuals rather than commercial interests or technological innovation.

Dangers of legal disruption to innovation

At this point a concern may arise about the dangers of a legal disruption to innovation

But using individual rights as a foundation is not the same as advocacy of Luddism (opposing technological change)— and may even be its very opposite

A Means not the end itself

• It would make big data subject to greater legality, the Internet of Things best suited to the Internet of people, and artificial intelligence subject to natural rights
• To forge such an understanding, a fundamental acknowledgement has to be forthcoming that technology is a means, and not the end in itself

Exist within the framework of law

• It must exist and work within the framework of the rule of law
• While traditional legal systems are slow to adapt and change, the right regulatory design will prevent pure market mechanisms that concentrate power and cause harm to individuals

Benefit of past expert efforts

• A practical way to operationalise individual choice in a data protection law is for the Srikrishna Committee to take the benefit of past expert efforts
• Most noticeably by the Justice A.P. Shah Committee which a little over five years ago proposed nine privacy principles acting on a “fundamental philosophy” of “ensuring that the privacy of the data subject is guaranteed”

Recommendations of AP shah committee

To operationalize these principles and account for “innovation” the A.P. Shah Committee among other things recommended, “the Privacy Act should not make any reference to specific technologies and must be generic enough such that the principles and enforcement mechanisms remain adaptable to changes in society, the marketplace, technology, and the government.”

Acknowledgement of data protection protecting individuals

• However, such existing recommendations proceed from a clear acknowledgement of data protection protecting individuals and not about protecting innovation, state interests for welfare objectives, or commercial interests of technologists and corporations
• To ignore them would be to chart a perilous path that has become apparent over the past few months with wider implementation of Aadhaar.

Constitutionalism as guide

• The Aadhaar project, which aims to usher a data-driven revolution in the private sector and at the same time act as a state policy panacea, has become a topic of continuing public concern
• Repeated press reports indicate continuing data breaches, exclusion and theft of benefits, lack of legal remedies and the prospect of profiling and surveillance.
• Sufficient evidence exists today persuading us to honour constitutionalism, privileging individual rights over innovation

Conclusion

In doing so, we must forsake the artificial reasonableness of a balancing exercise between unequals. Such caution was counselled by Justice Srikrishna himself when he quoted the Garuda Purana in an article critiquing judicial activism to state, “He who forsakes that which is stable in favour of something unstable, suffers doubly; he loses that which is stable, and, of course, loses that which is unstable.”

WORD POWER

Luddism: the beliefs of bands of early 19^thcentury English workmen that attempted to prevent the use of labor saving machinery by destroying it

• Any of a group of British workers who between 1811 and 1816 rioted and destroyed laborsaving textile machinery inthe belief that such machinery would diminish employment.
• One who opposes technical or technological change

Evince: Indicate

Misgivings: Doubts, reservations

LOCATIONS

IRAN & NEIGHBORING COUNTRIES

ODISHA