The word privacy has been around for a long time. The value assigned to it has, however, differed across times and spaces. Early uses can be traced with reference to Greek city-states, such as Aristotle’s idea of the public sphere for political activity and private sphere for domestic life. In contemporary times, discussions on ‘privacy’ often see it as a product of modernity as distinct from the middle ages. [i]

Habermas and Kollseck, for instance, noticed the creation of the private sphere with the rise of bourgeois society and criticism against absolute state authority. [ii] Privacy in this sense can be thought of as a private sphere where a distinction can be drawn between domestic life and the state or the society. The private sphere can generally be conceived as constituting domestic affairs and personal information, which theoretically is supposed to be outside the purview of governance and institutions. In practice, however, the freedom to fully function in the private realm has quite often suffered not only under the influence of authoritarian regime but liberal democracies too. Relevant to the ongoing digital age, the article attempts to critically engage with the crisis of modernity that is failing to distinguish between the private and public sphere. In so doing, privacy can be identified as an ambivalent category in which one’s domestic life or information, which is another term for data, becomes increasingly tokenistic against the vested national interest or the strengthening of the public sphere.

Usage of the word privacy sometimes connoted to control information and crucial development towards relating privacy with controlling information that could be seen emerging in American society, discussed briefly in the article. At other times it was also understood in a relational sense. The discussion about privacy has been attached to other values like individuality, seclusion, or freedom closely tied with the concept of human rights. In America, for instance, the idea of private life or the right to privacy was essentially needed for the right to be let alone. [iii] There is a differentiated conceptualisation of privacy, but a background discussion gives us the idea that private sphere or privacy is identified in response to some external control or intrusion, safeguarding one’s intimate space, and so on. Therefore, privacy can be questioned based on its recognition of the action of the community, state, and institutions. Moreover, the extent to which individuals own their privacy needs to be revisited when they no longer are the sole bearer of controlling information. 

 In the age of information and the internet, privacy discourse can be expanded to a vast realm as a huge pool of data is accessible to others. Like the earlier times, even today, one’s privacy is determined by various actors, but there is a greater extent of the involvement of both state and non-state actors in the present context. Data is usually referred to as information pertaining to an individual or an entity, and there remains an intrinsic relationship between data and privacy. The use of data only makes sense when it comes to information about people or their associated activities. The exercise of data gathering reveals a lot about private life. The burden of protecting one’s data, however, is not equally shared. The agency involved in collecting data has better influence than the one who is providing information to determine the purpose of such exercise and the extent to which the data will be handled. The modern state in this regard represents a version of Orwell’s fiction in which the totalitarian state had the power of surveillance over its citizens. [iv]

The post 9/11 world has increasingly raised concern about surveillance, whether through FISA’s authorisation to collect all telephony metadata by the government and its agencies in the USA[v]or through the USA Patriot Act accelerating the methods of cyber-surveillance. Although it is not to say that the method of surveillance is sui generis to the USA, countries today are rapidly advancing towards metadata retention laws because of the relatively simpler and inexpensive technology involved in the new internet age. [vi] In post independent India, the colonial hangover of mapping, enumeration, and data collection continues to surface, resulting in the politics of majority-minority, or fractured caste politics, and other deeper classifications of its citizens. The related discourse of surveillance is inevitable, which brings a qualm to the very right to live a dignified life. The controversial Aadhar Act and its biometric technique, the National Register of Citizens or the National Register of Population in contemporary India, indicate more towards accessing and archiving data closely related to one’s private life.

The right to live a dignified life is enshrined in the principle of human rights, which is considered the most fundamental of all rights. Moreover, there is wide recognition of the prerequisite to safeguard a person’s privacy as a core value of Human Rights[vii]. Nonetheless, it would also be an insufficient argument if the onus of protecting human rights and privacy is left to the state or the rule of law. As one witnesses that many countries have made legislation in the realm of privacy to promote human rights.

Recognising a particular kind of right under the law doesn’t automatically restore a value judgment. Neither does it enable one to easily realise the freedom to enjoy valuable functioning like privacy or human rights. This lacuna in the digital age is realised more so where access to information about one’s life is not restricted to an individual’s choice or state-mandated data collection practice. Information is available to non-state actors like the market, corporation, individuals and entities. This contrasts with Westin’s notion of privacy in which individuals must be the determiners of the nature of information about oneself that should be known to others[viii].

In the digital age, there is a free flow of data available to private organisations, political parties, and essentially each online, whereby a consenting individual’s claim to privacy remains nominal against all the information about the data subject available to others. The state usually hides behind the efficiency argument for involving the private players. The laissez-faire economic model doesn’t reduce the state’s role per se; it is a kind of model in which there is a deliberate attempt of the state to reduce its role and partake in certain key areas of development. 

This is relevant to the present crisis of the COVID-19 pandemic where one is witnessing technological innovations on the one hand, for example, the contract tracing applications and, on the other hand, an increased amount of personal data available to application developers, health care facilitators, etc. Therefore, the logic of consent remains symbolic when efficiency is the key objective, and there is increasing involvement of various agencies into one’s intimate sphere.

Consent and Data Protection

The idea of consent has been one of the chief aspects of the architecture of many data protection laws, such as the European Union’s General Data Protection Regulation or as recent as India’s Personal Data Protection Bill. For instance, personal data processing can be lawful only if the consent of an individual is involved, albeit with many exceptions. One of the negative fallouts of consent is exclusion. Therefore if one has to avail of services such as a mobile phone application, the person has to consent to use the app or else the individual would be excluded from availing such options. To cite an example of an externality of such measures, in the contemporary political discourse of India, one observes an increasing power of the state and its machinery or even judiciary to violate one’s right to privacy or lead a dignified right. There are instances of charges of sedition, contempt of court, and other such coercive actions against individuals based on social media post. Consenting Individuals quite often trade-off their liberty for using such technologies. With regard to digital information and communication where there is an overlapping of the public and private sphere, it’s important to remember Habermas, who mentions “a well-secured private autonomy helps ‘secure the conditions’ of public autonomy just as much as, conversely, the appropriate exercise of public autonomy helps ‘secure the conditions’ of private autonomy”[ix].

[i] Chartier, R., Philippe, A., & Duby, G. (Eds). (1989). A History of Private Life: Passion of the Renaissance. Vol. III. Cambridge, Mass.

[ii] Goodman, Dena. (1992). Public Sphere and Private Life: Toward a Synthesis of Current Historiographical Approaches to the Old Regime. History and Theory. 31(1): 1-20. Wesleyan University: Wiley. DOI: 10.2307/2505605.

[iii] Warren, Samuel D. et al. (1890). The Right to Privacy. Harvard Law Review. 4(5): 193-220. The Harvard Law Review Association.

[iv] Orwell, George. (1949). Nineteen Eighty-Four. Secker & Warburg.

[v] https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order, accessed on 2^nd  March 2021.

[vi] Bernal, Paul. (2016). Data gathering, surveillance and human rights: Recasting the debate. Journal of Cyber Policy. 1(2): 243-264.

[vii] James R. Michael. (1994). Privacy and Human Rights: An International and Comparative Study. Dartmouth Pub Co.

[viii] Alan F. Westin. (1970). Privacy and Freedom. London: The Bodley Head.

[ix] Habermas, Jurgen. (1996). Between Facts and Norms: Contributors to a Discourse Theory of Law and Democracy. Cambridge, Mass: MIT Press.

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Nabaneeta Goswami is an independent researcher.