Aryan Vij ((1st Year Student of B.A.LL.B. (Hons.), National Law Institute University (NLIU) Bhopal, M.P.)).
On December 2, 2015, two terrorists of Pakistani descent brutally killed 14 Americans and seriously injured 22 others in a mass shooting attack in San Bernardino, California. In the ensuing investigations, the FBI recovered an iPhone belonging to one of the terrorists.
Citing national interest, the FBI made a formal request to the phone’s manufacturer, Apple, to unlock the device and give it access to the data stored in it for possible clues about the terrorists’ wider network.
Apple refused to accede to the FBI’s request, and vowed to vigorously fight a California court order directing it to cooperate with the FBI. A few weeks later, the FBI voluntarily withdrew its request to Apple and asked Judge Sheri Pym to drop the case.
Leading technology companies, including Google and Facebook, hailed Apple’s stand against the government to compromise the privacy of millions of iPhone owners by handing over the access codes to the FBI.
The Individual is “Sovereign”
In its recent landmark 547-page judgment page judgment, the nine-judge Supreme Court bench in India declared Right to Privacy as a fundamental right. Justice Chandrachud’s order, as part of the judgment, is most remarkable because it traces the historical roots of the right to privacy. The order quotes Aristotle who recognized over 2,300 years ago that every citizen has a “confidential zone” which only belongs to them (Justice KS Puttaswamy v. Union of India, WP(C) No: 494/2012 decided on August 24, 2017).
Justice Chandrachud recalled the “Commentaries on the Laws of England” (1765) where William Blackstone said that certain “absolute rights are vested in the individual by the immutable laws of nature, which include the right to personal security and reputation.” The order cites from the Treatise on the Law of Torts (1888) where Thomas Cooley notes that “the right of one’s person may be said to be a right of complete immunity; the right to be alone.”
Justice Chandrachud, in his order, goes on to quote from an essay “On Liberty” (1859) by John Stuart Mill, which says that, “Over himself, over his own body and mind, the individual is sovereign.”
The Importance of Individual’s Consent
The Canadian Supreme Court, in the case of “Her Majesty, The Queen vs. Brandon Roy Dyment” (1988), highlighted the critical importance of individual consent even in the matters pertaining to the safety and security of the state. The case involved a physician who collected a patient’s blood sample for medical reasons, and handed it over to the police as part of a criminal investigation.
The Supreme Court held in the case that using the blood sample without consent even for the state’s security purposes was a violation of law. As Justice LaForest famously said, “The use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity ((Bailey, Jane, Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity, and Child Pornography (2008). Jane Bailey, “Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity and Child Pornography”, 31 Dalhousie Law Journal 55, 2008. Available at SSRN: https://ssrn.com/abstract=2279618)).”
Such protection of an individual’s privacy even brings into question the validity of the Indian government collecting biometric information from the citizens without giving them an option of “consent.” The Supreme Court of India is now setting up a five-judge Constitution bench to hear petitions challenging the government’s decision to make Aadhaar mandatory for availing various welfare benefits ((Aadhaar case: Supreme Court to set up five-judge Constitution bench to hear pleas, The Indian Express (October 31, 2017) and available at http://indianexpress.com/article/india/aadhaar-case-supreme-court-to-set-up-constitution-bench-to-hear-pleas-4913605/)).
A Universally Unfair Trade-Off
Technology has universalized the world, and challenges to citizens’ privacy in the name of national security are not confined to one country alone. On September 26, 2017, Microsoft CEO Satya Nadella launched his book, “Hit Refresh,” where he writes that the consumers’ trust in governments around the world is diminishing because of weak data privacy laws, which allow the governments to act unilaterally, while hiding behind the cover of national security ((Hit Refresh: The Quest to Rediscover Microsoft’s Soul and Imagine a Better Future for Everyone. Satya Nadella, Greg Shaw, Jill Tracie Nichols, Harper Collins (2017).)).
In his book, “Nothing to Hide: The False Trade-off between Privacy and Security” (Yale University Press), author Daniel J. Solove comprehensively demolishes the fallacious pro-security argument that continues to allow governments to breach privacy of the citizens. Solove says that while the law seeks to find the elusive balance between security and privacy, systemic problems disrupt that balance. Judges are typically deferential to policy-makers in the matters of security, and the citizens lose in the process ((Nothing to Hide: The False Trade-off between Privacy and Security. Daniel J. Solove, Yale University Press)).
Privacy IS National Interest
The debate on privacy versus national interest should begin with the question: What exactly is national interest? National interest is not interest of the “nation,” which is a notional entity. It is not even the interest of the political class that rules the nation. National interest is the interest of the people who constitute the fabric of the nation.
It brings us to the second question: What is in the best interest of the people of the nation? Who gets to decide that? In a democratic society, only people must decide what is in their best interest. The political class cannot decide that on behalf of the people. They are the elected representatives of the people. Whatever the people will decide, the representative must represent that as national interest in a democracy.
This brings us to the ultimate question: What do the people want? Do people want to be the deciders of their own destiny, or do they want to leave it in the hands of a deeply distrusted political class that has historically worked only with a single-minded goal of perpetuating its seat of power?
A Failed Trade-off
Governments around the world have traditionally held the greatest contempt for citizens’ privacy in the name of national security and national interest. Has this approach led to a decrease in terrorism over the decades? Has this approach led to a decrease in nuclear, chemical, biological and other forms of global threats to the world?
The truth is that citizens’ privacy has the least degree of connection with terrorism, war, climate change and other forms of manmade dangers that have been unleashed on the civilization by those who gain political power and then have a compelling need to perpetuate that power by compromising all the basic human values of integrity and dignity.
Privacy – A Birthright
To borrow the famous phrase from India’s freedom struggle, privacy is not even a fundamental right, it is a birthright. Privacy is the core need of a human being, whom Aristotle called a “social animal.” Human beings, like many other species, by nature live in herds. When you live in a herd or in an evolved social system, your privacy becomes your most intimate possession. In the Bible, even the world’s first citizens, Adam and Eve, had privacy as their first basic need.
Without privacy, you are naked because someone else can peep into your private existence and violate it. What can be a bigger interest of a human being than privacy? To extend this argument, what can be a bigger national interest than the citizens’ privacy? Those who propagate the myth that privacy is dichotomous from national interest, and that there must a balance or a trade-off between the two, either do not understand the deepest human values of personal freedom and dignity, or have a vested interest in compromising the privacy of citizens to perpetuate their own power over them.
Exposing the Propagandist Element of ‘National’ Interest
Any term that begins with the word “national” should first of all be examined with tempered caution and suspicion. This word is the greatest tool of propaganda that has ever been invented since the inception of civilization by men to rule over other men. Hitler used it to great effect by misleading an educated and aware nation like Germany, completely subordinating their will, and making them support the barbarian extermination of millions of Jews, followed by a globally destructive world war – all in the name of ‘national interest’.
Hitler devoted an entire Chapter 6 to propaganda in his autobiography Mein Kampf. He wrote: “All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. The art of propaganda lies in understanding the emotional ideas of the masses ((Mein Kampf : An Autobiography Of Adolf Hitler 1st Edition. Adolf Hitler, Gbd Books (2010).)).
“The function of propaganda,” Hitler further wrote, “is not to weigh and ponder the rights of different people, but exclusively to emphasize the one right which it has set out to argue for. Its task is not to make an objective study of the truth, and then set it before the masses with academic fairness. On the contrary, its task is to serve our own right, always and unflinchingly.”
Nations have Wronged the Individual
The individual supersedes the nation. Without an individual, there is no nation. However, ‘nationalism’ presents a twisted truth, which suggests that ‘national interest’ supersedes ‘individual interest’ – as if national interest is something different from individual interest.
The advancement of democracy in the world has, ironically, added more strength to the counterfeit concept of nationalism. Democracy, by definition, is a celebration of the individual. Although democracy has brought freedom to the many against the power of an autocrat, but it has also compromised the liberty of the one against the power of the many ((REINHOLD NIEBUHR, The Nation’s Crime Against the Individual, The Atlantic (November 1916 Issue) accessible at https://www.theatlantic.com/magazine/archive/1916/11/the-nations-crime-against-the-individual/306365/)).
Can there be a ‘Fair’ Trade-off of Self-respect?
George Orwell’s Nineteen Eighty-Four described a world marked by a complete absence of citizens’ privacy and an absolute governmental control and surveillance. The citizens in the Orwellian world are told to speak with care because the ‘Big Brother’ is watching. The dark world of Orwell’s 1984 is a world without citizens’ autonomy, dignity and self-respect ((1984, George Orwell and Erich Fromm. Signet Classics (1950))).
Privacy is the foundation of citizens’ freedom, dignity and self-respect. The privacy of Draupadi constituted the self-respect of Pandavas.
Lord Krishna said in the Bhagvad Gita, as the two gigantic armies stood facing each other on the battleground: “Self-respect, O Arjuna, is worth dying for.” Trading self-respect for something as emotionally deceptive and propagandist as ‘national interest’, which has already caused enough bloodshed in history, is truly against the interest of a nation – where ‘I’ am the ‘nation’.