Nothing to Hide Argument: An Analysis of Prof: Daniel J Solove’s observations with respect to the ongoing Right to Privacy Debate in India

K R Shiyas

The Indian citizens are waiting for the historical judgement on the Right to Privacy from the highest court of land. During seven days consecutive hearing before nine judges’ Constitutional bench, Indian Legal arena had been going through an intense moot over jurisprudentional and philosophical aspects of privacy and control of the state over its citizens. Supreme Court of India is checking whether Right to Privacy is a Fundamental Right or not under the Constitution of India. The question was raised while considering the famous Aaadhar Case ( J.Puttaswamy [retired] & Ors v Union of India ) before the SC bench comprised J.Chalemeswar, J.Bobde , J. Nagappan in 2015. After the long gap of two years, the current CJI J. Khehar had appointed nine Judges Constitution Bench to hear this landmark case. The judgement over privacy should have huge impact over various projects by the Government of India including the infamous Bio-Metric Project of the Government known as Aadhaar Scheme , Digital India flag-ship programs like e-Mudra, and other Digital India Ventures and surveillance programs like NETRA,NATGRID,CSM etc.

Right to Privacy arguments were intensified around the globe after the revelation of Surveillance Program of US known as PRISM, by the NSA analyst Edward Snowden. However, the Right to Privacy was an alien concept for the majority people of the largest democracy. But the Aadhaar Project by the preceded UPA Government was the game changer then NDA Government take over the baton in 2013 and fueled the Aadhaar Project with special legislation. When the bio-metric program was announced by authority, a number of peoples had confronted with announcement and outraged. But most of them did not perceive the threat of surveillance program by the Government, and replied they have “Nothing to hide”. Nothing to hide argument is a problematic one which needs to be cautiously dealt with. The every person who had been argued for Right to Privacy should have witnessed the above argument at least once. While considering the Constitutional validity of Section 139AA in Income Tax Act 2017, the former Attorney General Senior Advocate Mukul Rohtagi had contented before the court that Right to Privacy is a foreign concept and Indians are not concerned much about privacy. Similarily, during the recent Right to Privacy hearing, the State of Gujarath’s counsel Rakesh Dwivedi reiterates before SC that privacy claims only by those who do wrong.

Nothing to Hide Argument

Nothing to hide argument is not new. In May 2006, USA Today revealed the story that the NSA had obtained customer records from several major phone companies and was analyzing them to identify potential terrorists. The telephone call database is reported to be the “largest database ever assembled in the world.” In June 2006, the New York Times stated that the U.S. government had been accessing bank records from the Society for Worldwide Interbank Financial Transactions (SWIFT), which handles financial transactions for thousands of banks around the world. Many people responded with outrage at these announcements, but many others did not determine the problem because they were stuck on “I have got nothing to hide”. George Washington University of Law’s Research Professor Daniel J. Solovei intelligibly unravels the Nothing to hide argument in his paper titled as “I’ve Got Nothing to hide” and Other Misunderstandings of Privacy”. Daniel observes in his introduction that “When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private”. In the course of debate about privacy the State always place the Nation-Security and Prevention of Crime in the first phase. People think that the legal protection over the privacy will intensify illegal exchanges and create hurdle to crime investigation by the authorities. What exactly is “privacy”? How valuable is privacy and how do we assess its value? How do we weigh privacy against countervailing values? These questions have long plagued those seeking to develop a theory of privacy and justifications for its legal protection.

We have to approach nothing to hide argument skeptically. Philadelphia, National Constitutional Research Center, former president and noted legal commentator in US Jeffrey Rosen pointed out that, in Britain the government has installed millions of public surveillance cameras in cities and towns, which are watched by officials through closed circuit television. The campaign slogan by government was “If you’ve got nothing to hide, you’ve got nothing to fear”. The psychology of power is tied up with visibility as Foucault had said. The constant visibility of individual induces himself that he is under continuous observation of authority. People don’t know the trap of visibility, until and unless it directly intrudes into their private space. Pre-Information Technology revolution, there was only two players in surveillance, i.e. state and People. Data brokering industry changed the players and brought multiple players rather than consumers. The sociologist Thomas Mathiesen has contrasted Michel Foucault’s “Panopticon”– a surveillance house in which the few watched the many – with what he called the “Synopticon” – created by modern television, where the many watch the few. But in the age of the Internet, Mathiese continues, we are experiencing something that might be called the “Omnipticon”, in which the many are watching the many, even though no one knows precisely who is watching or who is being watched at any given time.

Dimensions of Nothing to Hide Argument

One line utterance of individuals like ‘I have got nothing to hide’ argument must be reevaluated in a more sophisticate manner. It is the common notion in a law and order prevailing society that the common Law abiding citizen should have nothing to hide and he believes state has the right to search even his wardrobe for making him more secure. Here nothing to hide argument becomes more challenging. When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. Thus, if an individual engages only in legal activity, she has nothing to worry about. When it comes to the government collecting and analyzing personal information, many people contend that a privacy harm exists only if skeletons in the closet are revealed. Solove pointed out a similar contention had made by American Jurist Richard Posner as follows “When people today decry lack of privacy, what they want, I think, is mainly something quite different from seclusion: they want more power to conceal information about themselves that others might use to their disadvantage. Privacy involves a person’s “right to conceal discreditable facts about himself”. That means privacy argument is sprouting when the individual is forced to conceal that negative information or illegal exchange about the person. Yes, people might have unpropitious situation which direct to conceal the activity and do not want others to know. The condition may change person to person. When we take the Indian context, public figures especially politicians are cautious about their habits – for example, unlike in the west, Indian public conscious believes that consuming alcohol is a worst habit. Nothing to hide argument is does not cover all dimensions of privacy. The mooters have only few handpicked concerns like business secrets, personal relations, organizational information and some extend to the diseases and condition of health. When the debates started over UIDAI and Aaadhar the Indian public didn’t feel anything discreditable or pernicious. D.Solove observes the conditioning of public , in adding that “When people respond to NSA surveillance and data mining that they have nothing to hide, the more sophisticated way of understanding their argument should be as applying to the particular pieces of information that are gathered in the NSA programs. Information about what phone numbers people dial and even what they say in many conversations is often not likely to be embarrassing or discreditable to a law abiding citizen. Retorts to the nothing to hide argument about exposing people’s naked bodies to the world or revealing their deepest secrets to their friends are only relevant if there is a likelihood that such programs will actually result in these kinds of disclosures. This type of information is not likely to be captured in the government surveillance. Even if it were, many people might rationally assume that the information will be exposed only to a few law enforcement officials, and perhaps not even seen by human eyes. Computers might store the data and analyze it for patterns, but no person might have any contact with the data”. In an article titled as ‘Taxonomy of Privacy’, Solove had created taxonomy of privacy and mapped out the problems of surveillance and detrimental effects of it. Solove had created four general categories of privacy problems with sixteen different subcategories. The first general category is information collection, which involves the ways that data are gathered about people. The second general category is information processing. This involves the storing, analysis, and manipulation of data. Information dissemination is the third general category. Disseminating information involves the ways in which it is transferred—or threatened to be transferred—to others. The last category involves invasions. Invasions are direct interferences with the individual, such as intruding into her life or regulating the kinds of decisions she can make about her life. He adds that privacy have no definite explanation, it resembles in every action of individuals. There is no specific inclusion or exclusion in the matrix of privacy. Technologies like internet and its various services like search engines, social networks, online trades etc have socially desirable applications, particularly in regards to ease human effort and information gathering. But do such technologies bring closer the prospect of an Orwellian dystopia, where no one can escape the watchful eye of Big Brother. The virtual space and Information Technology is a labyrinth. Day by day the physical existence of individual is becoming more derogatory in nature and humans are in search of better virtual identity than his real ones. The intensified use of digital surveillance measures like Bio-metric will bring us to a digital panopticon and it will be disastrous. The arguments and debate over privacy will never paused in future, whether the highest court of land uphold Right to Privacy as Fundamental Right or not.

(Author is a Final Year Law Student in Government Law College Thrissur, Kerala, India )

Reference :

DANIEL J. SOLOVE, I have Got Nothing to Hide and Other Misunderstandings of Privacy, [VOL. 44: 745, 2007] SAN DIEGO LAW REVIEW 2008

JEFFREY ROSEN, THE NAKED CROWD: RECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (2004)

Thomas Mathiese, “The Viewer Society: Michel Foucault’s Panopticon”: Revisited,THEORETICAL CRIMINOLOGY 1(2) 215, 221 (1997)

RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 271 (1983)

RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 46 (5th ed. 1998)

Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477 (2006).

Scott O’Reilly,Philosophy and the Panopticon,https://philosophynow.org/issues/36/Philosophy_and_the_Panopticon

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