The current focus on the right to privacy is based on some new realities of the digital age. Personal spaces and safeties that were previously granted simply by physical separation are no longer protected. The digital network enters the most proximate spaces and challenges the normally accepted notions of the private. It brings into focus new means of exercising social, economic, and political power, and reducing of autonomies.
Like in the physical space, the private and the public must be separated in the digital realm as well. We need a constitutional definition and guarantee of the right to individuality, personal autonomy and privacy in the digital age. It must be provided in the clearest terms by the Supreme Court, which is currently considering this issue.
A positive right
Some arguments advanced by those seeking the right to privacy, however, are troubling. It seems that for many, the right is basically against the state, and not so much the digital corporations. One hears propositions such as: unlike corporations the state is a monopoly, corporations rely on private contracts for data access, providing data to them is voluntary, and so on.
A right is a substantive right only if it works in all situations, and for everyone. A right to free expression for an individual about her exploitation, for instance, is meaningless without actual availability of security that guarantees that private force cannot be used to thwart this right. The role of the state therefore is not just to abstain from preventing rightful free expression but also to actively ensure that private parties are not able to block it.
In the same manner, the role of the state in terms of the right to privacy in the digital age is not just to abstain from its violation. It is equally to ensure that private parties are not able to violate such a right. The court must specifically direct the state to ensure this imperative.
The elephant in the room in current privacy discussions is the status of data as the central social and economic resource in the digital age. Excluding the state from any substantial role with regard to society’s data resources without similarly constraining private corporations will lead to a future where corporations become the key organising actors for society, relegating the state to an extremely truncated role. Such a situation is especially threatening to the interests of weaker sections of society that depend on the state for justice and redistribution.
The state must retain an important part in the organisation of new social and economic structures, which requires it to play a significant role in the data ecosystem. The public sector will, for instance, need to manage some infrastructural social and economic databases above which the private sector can run a competitive economy. Some of these will be in the form of “data commons”, which will require a properly institutionalised stewardship of the state. Citizens will also require the assistance of a public interest agency to enable management of their personal data in a manner that they can obtain the best benefit of a data economy/society and its personalised services.
The role of the state
All such roles of the state must be constitutionally circumscribed, with strict laws. While establishing a right to privacy, the Supreme Court must also direct the state to develop appropriate institutions for shaping the state’s role in a digital society/economy. This may require, at some stage, an independent branch of the state exclusively dealing with data issues and management.
Framing of a right to privacy must not curtail the state’s due role in our collective digital futures. This will only ensure that global digital corporations become all-powerful economic, social and political actors. They already provide most of the digital services that appear to be of a public good nature, and in turn control and shape entire sectors.
The state must be directed by the Supreme Court to ensure that people’s right to privacy is actually available against these corporations as well. In most contexts, there is nothing voluntary in checking an online box giving away one’s privacy. A citizen must have options to undertake basic digital functions like emailing, information search, social networking, etc. without sacrificing her privacy rights. This too is the state’s responsibility.
Parminder Jeet Singh works with the NGO, IT for Change. Email: parminder@itforchange.net
