The Holy Trinity: Privacy, Data Protection And Identity In India

It would definitely be a fallacy to consider ourselves as private entities in this 21st century. For the simple fact of life as it stands: object we carry let us know the world about us and vice versa. On a similar strand, it is the internet where knowledge has become transparent. In days when the internet was at its infancy, data protection was embryonic and the concept of privacy as a human right was little more than a chimera.

But today in this proliferation of technology, where information Big Bang is constantly multiplying, privacy feels like a lost cause. This data explosion has put privacy and security in the spotlight with Snowden, Equifax and Cambridge Analytica proving to be three conspicuous reasons to take action.

When we look out of the window of the internet, the internet too looks back in. Interestingly, human beings have always held an innate desire for privacy. The early men or the cavemen as we know it, who drew the intricate and exquisite images of animals in caves did so in deep and dark surroundings. Their art was meant for the select few and they often signed their paintings by blowing pigment over their hand to leave their mark-a sign of an early form of biometrics.

Naturally, humans have exhibited an instinctive desire for privacy.

Notwithstanding, privacy as a theoretical construct already had its designs in ancient societies. A major rationale behind Adam and Eve’s decision to cover their body with leaves was to cover their private parts.

This idea of privacy traditionally comes from the difference between the ‘private and the ‘public’.

It was Aristotle who in his critique of Plato differentiated the public sphere of political activity and private sphere associated with family and domestic life. Besides the philosophical discussion, however, privacy as a normative concept is deeply rooted in legal, sociological, political and economic traditions.

It’s the focus on normative concepts related to informational privacy, laid out against the broader framework of laws and regulations relating to information privacy and data protection that demand our attention. While privacy as a concept hasn’t changed since humans came into existence the introduction of the digital age has nonetheless introduced layers of complexity, that we as digital citizens need to unravel and understand.

An early precursor to information privacy law was the much-celebrated 1890 essay by Warren and Brandeis titled “The Right to Privacy”. In this essay, the duo voiced concerns about the confluence of instantaneous photography (technological development) and widespread newspaper circulation that increasingly enabled journalists to intrude into private affairs.

They characterized privacy as the “right to be left alone” as an essential component of the “right to one’s personality” and through this invoked the European philosophical and legal doctrine in their articulation of the right of an individual to develop his or her personality free from unwanted publicity.

So the above instance establishes that it is the technology which has been the major driver.

Thereafter, the basic perspective on privacy in the digital world is the idea that the appropriate reaction to the massive pooling of data, is to enhance the individual access of data and consequent ownership of it. This, in turn, necessitated the need for a comprehensive regime on data protection that would seek to control the collection, storage and use of personal data.

Data Is The New Soil

The widely quoted phrase “data is the new oil” starts sounding oxymoronic when we start comparing the basics of data and oil or other existing commodities. Though they might have the same end result in driving growth and generating wealth, data is not like anything else we have encountered or created till now. Unlike traditional goods, its multiple hues make it interesting.

On one hand, it has the unrivalled nature of public good, i.e. use by some does not limit the use by others, on the other hand, it has the excludable nature of a private good, i.e. the value generated by data can be excluded from many. I would rather say, “data is the soil” as it can provide a fertile ground of value creation, can belong to anyone, yet can be controlled or processed by anyone else.

Data in a platform economy is generated by individuals who exchange data in return of access to services, many of which are free to use. So the much-used phrase in the context of privacy “When you are not paying for the product, you are the product” is in fact not entirely true.

You are actually paying for the product and you are paying through a completely new and different currency i.e. your data.

This data which is generated by personal social and business activities is not that valuable in isolation than when it combines with data of millions of others and can be analysed, processed to generate value. Data can take many forms. It can be a raw material, capital property or even infrastructure.

The Ownership Conundrum

Concept of ownership has been a critical ingredient in the formation and development of societies. Different cultures, nations have treated the concept of ownership differently. So much so that the treatment of ownership has become the basis of political philosophies like socialism and capitalism. Adam Smith in The Theory of Moral Sentiments stated that one of the sacred laws of justice was to guard a person’s property and possessions. Not only persons, multi-dimensional ownership of natural resources, forex exchange, intellectual property etc. ensured all nations had different trajectories of growth or the lack of it. Just when the world thought it has sorted most ownership battles, swords started to be drawn over the ownership of data.

The platform which facilitated the aggregation of data, the individual who is the source of data or the state under whose geography this transaction takes place — which of these entities should capture the value out of data? Whether it should be private property or common property? The decision, when it comes to data is not linear. A system of differentiated control, access and rights over data putting at the centre the principles of privacy, public good becomes the most logical approach.

The Way Ahead For Data Protection

A robust data privacy protection framework alone will be necessary but not sufficient to ensure a balance between identity, privacy and value creation out of data. The seduction of these consumer products often makes us oversee the possibility that such could be accrued without a compromise on our privacy. Maybe individuals should become more cognizant of the ramifications of BigTech and must not trade with their personal data so easily.

The article is co-authored by Pratyush Prabhakar and Sreeja Kundu

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