Coronavirus: the most frequently used term in today's date. This infectious disease has posed an unprecedented threat all over the world. To control the spread of this disease and to prevent further transmission, the government is trying to seek for various preventive measures by tracking the affected people. These includes Epidemic modelling, contact tracing, documentation of quarantine patients. In the midst of all these efforts to deal with the pandemic, the use of these methods is raising sensible concerns of invasion of privacy of individuals.

Balancing The Right To Privacy Of An Individual And Public Interest

Tracking By Varoius Authorities

Various countries are adopting different means in order to track COVID-19 affected people. The US and UK are coordinating with various private agencies in order to track people and their detailed history. In Italy, the government is analysing people's location data through their mobile tracking to determine whether they are obeying government lockdown or not. Singapore, Iran, Russia, and Israel are using mobile applications to track and identify new cases of COVID-19.

India has also developed many such apps. The Ministry of Electronics and Information Technology has launched a new application named ‘Corona Kavach'[i] which make use of GPS tracker and notify the person if they have come in contact with an infected person. Indian government is also collecting data from airlines and railways. Kerala used CCTV footage, tracing call records and using GPS to find the locations of the infected persons and has published them. Rajasthan government made names and addresses of COVID-19 suspects public through newspapers and social media, they claimed that this will ensure effective containment of coronavirus transmission.

A list of home-quarantined persons in Nagpur went viral on social media. Details included the person's name, address, mobile number, start date of quarantine as well as the police station under which jurisdiction the resident comes. In places like Delhi, several posters are glued to the walls of the COVID suspected patients. The posters read ‘COVID-19: Do not visit. Home under quarantine', and it is undersigned by the magistrate of the respective districts.[ii]

My present topic of discussion is on Indian perspective and to what extent the government tracking is effective and efficient.

Incursion Of Privacy

These types of disclosure of information may seem normal to a layman. But it has a negative impact as an individual's personal information is being spread in public which is against their right to privacy. These disclosures may also lead to an unhealthy society. There have been cases where several medical workers were forced by their landlords to evict as they feared that they could be a source to spread Covid-19.

Moreover, due to total lockdown of the country, people are more engaged in social media platforms than ever. Various persons can misuse this disclosed information and circulate those through social media which may lead to various confusions amongst people. These measures are in direct violation of medical ethics and patients' right to privacy and confidentiality. During such a condition of public health emergency; the government can adopt every possible measure which it thinks proper.

But this doesn't mean that the right to privacy of an individual should be completely sacrificed in order to give preference to public health. It is essential to strike a balance between an individual's right to privacy and public interest at large. The possible question in this context is to what proportion can the right to privacy of people be invaded during such a public emergency?

Right To Privacy - A Constitutional Right

According to Black's Law Dictionary, Right to Privacy means “right to be let alone”; the right of a person to be free from any unwarranted interference. The Constitution of India incorporates Right to Privacy under Article 21. The term ‘privacy' is a dynamic concept. There are several case laws in this context.

In the case of Kharak Singh v. State of Uttar Pradesh[iii], the desire for private life was rejected. The Supreme Court held that there is no fundamental Right to Privacy.

Another notable judgement is Gobind v. State of Madhya Pradesh[iv] where the Supreme Court held the existence of a fundamental right to privacy under Article 21. Though the petitioner lost, privacy won for the first time and gained a small recognition under personal liberty in the Indian Constitution[v].

The Right to privacy got recognised as a fundamental right after the landmark judgement K.S Puttaswamy v. Union of India[vi] by the Supreme Court of India in 2017. From this judgement, it is clear that right to privacy is a fundamental right and it makes a place amongst the Golden Triangle of the Constitution. The Puttaswamy judgement laid down a three-part test to examine if an action is justified as ‘interference of privacy.' The three-part test includes whether the action is sanctioned by law, whether the action is aimed at achieving a legitimate aim and whether the action is necessary for the achievement of that aim[vii].

The Personal Data Protection (PDP) Bill was introduced in the Lok Sabha by the Ministry of Electronics and Information Technology on December 2019. This is a draft legislation. This Bill consists of important principles regarding the personal data protection of an individual. It provides for processing personal data by the data Fiduciary (person or government) on grounds that a person's consent (Data Principal) is taken and the data collected must be used only for a specific, clear, and lawful reason.

However, in certain circumstances the personal data can be processed without consent if required by the State for any legal proceedings or to respond to any medical emergencies. Sub-clause (d) and (e) of Clause 12 of the PDP Bill specifies a mechanism for the collection and processing of data during a health emergency. The government should not excuse from other principles of the personal data protection such as lawful administering, transparency, and accountability.

Major Issues
Presently the government is implementing different provisions of the National Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 in order to exercise emergency response measures. These acts do not comply with the provisions of data protection. And in a country like India which has no such data protection law or a data protection authority, there is high chances of privacy concern of individual.

The data fiduciaries have to abide by the rules laid down in the Puttaswamy judgement as well as the drafted rules of the PDP Bill. Presently the condition is so critical that there are public health concern and people need to know who is COVID infected. So, it is necessary to share the information, but it must be up to a certain extent. The circulation of this information like name, contact number, detailed address of the COVID-19 affected individuals in the form of “quarantine lists” has caused a criticism and people have raised concerns over their breach of privacy.

Publication of sensitive private information can lead a person towards harassment, and even racism. According to several news reports, many individuals are receiving repeated anonymous calls and messages, after their private data was made public. In India, we do have a social history of untouchability and at times like these, coronavirus suspects are more likely to be victims of blaming and shaming. They are getting hate messages from the societies and are being verbally abused.

It may also deter people from reporting their illnesses and revealing their travel history for the fear of social bullying. This would make it even harder for the governments to trace cases and prevent the spread which is the main purpose for which these measures were adopted.

India Government has launched a contact tracing application Arogya Setu to stem the novel coronavirus outbreak. It uses Bluetooth and location services to trace a user's contacts. If a user tests positive of coronavirus, this app will alert all devices with which the patient's phone comes in contact[viii]. Though the government has directed this app a compulsory for all, there is concern about its privacy policy as well. It raises concern over transparency, data storage and function-creep.

The government has access not only to the users' names and birth date but also to their biometric data. In case a user doesn't give access to all personal data, he will have limited access to the app. Digital Rights Organization ‘Internet Freedom Foundation called the app a ‘privacy minefield' and also reported that it doesn't adhere to the principles of transparency and accountability.[ix]

Karnataka has developed an application ‘Quarantine Watch where it asks citizens in home quarantine to upload selfies every hour. This is monitored in a real-time basis to keep a watch whether the citizens are following the quarantine. This app also has privacy issues. The operators may mishandle those images. There are no such declarations that these apps will be totally deleted once the pandemic is over. The government can keep a track of the people even after this pandemic. These apps have given rise to issues as how long will a user's data will be stored, and will it be secured?

Conclusion
In today's scenario government action cannot be based upon carte blanche. But it should act effectively not only to protect lives and health of people but also safeguard public trust on government. Coronavirus surveillance might violate individual's privacy, but consent-based privacy framework should be followed. The government must go an extra mile to ensure that right to privacy is not quarantined in the process. There is a fear among millions today, and we need to solve this fear. It is very challenging. But also, an amazing opportunity to unlearn, relearn, and test our capabilities and value systems.[x]

End-Notes:

1. FE ONLINE, Government of India launches coronavirus tracking app Corona Kavach, now available for all android phones, FINANCIAL EXPRESS (March 27,2020, 06:12 PM), https://www.financialexpress.com/industry/technology/government-of-india-launches-coronavirus-tracking-app-corona-kavach-now-available-for-all-android-phones/1911452/
2. Pooja Biraia Jaiswal, Privacy of COVID-19 suspects violated; names, addresses made public, THE WEEK (March 22, 2020, 11:30 PM), https://www.theweek.in/news/india/2020/03/22/privacy-of-covid-19-suspects-violated-names-addresses-made-public.html
3. Kharak Singh v. State of Uttar Pradesh, AIR 1964(1) SCR 332.
4. Gobind v. State of Madhya Pradesh, 1975 (2) SCC 14.
5. Right to Privacy: Cases that helped shape how it's understood by the law, THE NEW INDIAN EXPRESS (July 19,2017), https://www.newindianexpress.com/nation/2017/jul/19/right-to-privacy-cases-that-helped-shape-how-its-understood-by-the-law-1630937.html
6. K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
7. SANYA KUMAR & SHRUTANJAYA BHARDWAJ, The publication of COVID-19 quarantine lists violates the right to privacy, THE CARAVAN (April 5, 2020), https://caravanmagazine.in/commentary/covid-19-pandemic-quarantine-lists-right-to-privacy
8. RUPALI BANDOPADHYAY & ARUN GUPTA, Data privacy and Aarogya Setu Covid-19 app, THE TIMES OF INDIA (April 20, 2020, 1:27 PM), https://timesofindia.indiatimes.com/blogs/voices/data-privacy-aarogya-setu-covid-19-app/
9. NEWS INDIA, ‘Privacy Minefield': India COVID-19 app raises surveillance fears, ALJAZEERA (May 1, 2020), https://www.aljazeera.com/news/2020/05/minefield-india-covid-19-app-raises-surveillance-fears-200501090057782.html
10. MADANMOHAN RAO, A Nation battles coronavirus- 65 quotes from India's journey in tackling COVID-19, YOURSTORY (April 13, 2020), https://yourstory.com/2020/04/quotes-coronavirus-covid-19-india